Maurice deG. Ford, 1975
“The Reinstatement of Alger Hiss,” a previously unpublished article by Maurice deG. Ford written in 1975.
At nine on the morning of May 9, 1975, the Supreme Judicial Court of Massachusetts heard oral argument on the petition of Alger Hiss for readmission to the bar. Twenty-five years had elapsed since his conviction of perjury on the testimony of Whittaker Chambers at the height of the McCarthy era. The Hiss case had been the vehicle which Richard Nixon, then a young member of the House Committee on Un-American Activities, had used to gain national prominence. Now the era is different, and events seem to have come full circle. Former President Nixon rests in disgrace within the seclusion of San Clemente. Alger Hiss’s application for reinstatement at the bar gives the Massachusetts Supreme Judicial Court, and us, a chance to reflect on the Red Scare of the McCarthy era and on where we have come as a nation. It may also be an opportunity to redress, in some measure, a grievous individual injustice.
Not that the question before the court is cast in such encompassing, global terms. The Supreme Judicial Court of Massachusetts is not the forum to retry, or even review, Alger Hiss’s original conviction. That matter was settled, at least legally, when the Supreme Court of the United States declined to grant certiorari in 1951. Nor will the McCarthy era, as a whole, be on trial. Courts, and this is perhaps their strength, deal with much more concrete, narrowly defined cases and controversies. The precise issue before the Massachusetts Supreme Judicial Court is whether, under Section 18(4) of Rule 4:01 (relating to reinstatement) Alger Hiss can now meet “the burden of demonstrating that he has the moral qualification competency and learning in law required for admission to practice law in [the] Commonwealth, and that his resumption of the practice will not be detrimental to the integrity and standing of the bar, the administration of justice or to the public interest.”
Alger Hiss originally submitted his application for reinstatement in early November 1974, two and one-half months after President Nixon had lifted off, for the last time, from the White House lawn. He is now 70 years old. His affidavit, accompanying the application, recounts a distinguished career – membership on the Harvard Law Review, selection, upon graduation from Harvard Law School in 1929, as law secretary to Justice Oliver Wendell Holmes of the United States Supreme Court, employment by the eminent old Boston law firm of Choate, Hall and Stewart and by an equally prestigious New York firm. In the early and middle 30s, he served in a number of positions in the Roosevelt Administration, including a stint on the staff of then-Solicitor General (and later Supreme Court Justice) Stanley Reed, one of the most sought-after legal opportunities open to a bright young man.
This was followed by ten years in the State Department. He was with President Roosevelt at Yalta, and instrumental in the founding of the United Nations. In 1946, he was elected President of the Carnegie Endowment for International Peace (of which John Foster Dulles was then Chairman of the Board). He retained this post until his indictment on two counts of perjury before the grand jury. After a hung jury in his first trial, Hiss was convicted and sentenced to Lewisburg federal penitentiary, where he served from March 1951 to November 1954.
Along with the ordeal of Julius and Ethel Rosenberg, the trial of Alger Hiss was perhaps the most sensational event of the McCarthy period. There is little need to recount it here. Most of us remember the accusations of Whittaker Chambers, who testified that, while employed by the State Department, Hiss had passed Chambers (alias George Crosley) secret government documents when both were underground members of the Communist Party. Microfilmed copies of some of these documents were produced, almost magically, out of the famous pumpkin on the Chambers farm; other copies in Chambers’ possession had allegedly been done on a Woodstock typewriter belonging to Mr. and Mrs. Hiss (although the latter protested that the typewriter had been out of their possession at the time). And we remember the waffling testimony of Alger Hiss’s superior at the Carnegie Endowment (shortly to be Eisenhower’s Secretary of State), John Foster Dulles.
Following his conviction, and solely because of it, Alger Hiss was disbarred from practicing in Massachusetts, New York, and before the Supreme Court of the United States. Hiss’s responses to the reinstatement questionnaire, accompanying his application, set forth, perhaps more dramatically than any other document, the sharp decline of his fortunes since his release from Lewisburg penitentiary: work for a manufacturer of women’s hair accessories, 15 years spent as a salesman of office supplies and printing on commissions that amounted to no more than $6,000 to $12,000 annually, supplemented, recently, by a small amount for speaking and writing. Even more saddening have been a marital separation, which occurred shortly after his release from jail, and years of living alone and isolated in rented rooms, mainly in Greenwich Village.
Yet, as his friend, Eli Whitney Debevoise (a founding partner in what is now one of New York City’s most distinguished law firms) puts it in his own affidavit on behalf of Alger Hiss’s readmission to the bar, the years since Hiss’s conviction, despite financial impoverishment and personal loneliness, have not been without their indications of character and even greatness as a man. “During the period since his release from prison,” Debevoise writes, “[Alger Hiss’s] manner of life, including his acceptance of a job available to him as a way of earning his living in a field much less interesting or demanding on his intellectual powers than the positions he had prior to his conviction and his steadiness in sticking to it…show moral stamina and moral qualities which are important requisites in the practice of law. He has not lost a broad interest in other matters and in current events and continues to be an unusually able and intelligent man.” His life has been exemplary, free from arrests or convictions, save one, as his reply to the reinstatement questionnaire notes poignantly:
In 1955, I was fined $5.00 in a Magistrate’s Court in New York City for playing catch with a baseball with my son in Washington Square Park.
Shortly after the submission of his application for readmission to the Massachusetts bar, the Supreme Judicial Court ordered that the state’s Board of Bar Overseers hold a preliminary hearing and present a report to it on the Hiss case. After examining Alger Hiss personally and sifting through evidence on his behalf (including strong support from Ervin Griswald, former Dean of the Harvard Law School and Solicitor General of the United States, and retired Supreme Court Justice Stanley Reed), the Board of Bar Overseers admitted:
We find that he has courageously and industriously set himself to earn an honest living and to support his family, without bewailing the financial loss caused by his conviction and disbarrment. We find that he is well regarded in … business … and enjoys there an excellent reputation for honesty and integrity…
The Board of Bar Overseers likewise noted that Alger Hiss has continued to try to make an intellectual contribution:
Mr. Hiss has also, since his release from prison, lectured … at many American schools, colleges and universities, and conducted seminars at some of them. Audiences at Harvard, Princeton, Wesleyan … New School for Social Research, University of Virginia and Johns Hopkins [Hiss’s alma mater] have heard him. And Mr. Hiss has made three trips to England for similar purposes. He has authored at least two books, and has written book reviews for legal periodicals. He edited, at the request of the late Professor Mark deWolfe Howe of Harvard, an abridged edition of the Holmes-Laski correspondence. His lecture subject matter, as well as that of his writings, generally has not been his own misfortunes or conviction, but has related to the United Nations and to American foreign policy.
Mr. Hiss has supported and educated a child of his own and a stepson, and, although presently separated from his wife, we find that he has been a good family man.
While refraining from its practice, Mr. Hiss has remained interested in the law. Many of his closer friends are lawyers with whom he has continued to discuss legal affairs and developments on an informed but informal basis.
He shows no bitterness toward those who were involved in his trial, and he accepts the American judicial system as the best, although he feels that he, personally, is the victim of a miscarriage of justice.
Despite these findings, the Board of Bar Overseers unanimously felt forced to conclude that “Mr. Hiss’s readmission to the Bar would have an adverse effect on the administration of justice, the public interest and the standing of the Bar” and recommended that the Massachusetts Supreme Judicial Court not reinstate him. The reasons for this perplexing negative recommendation appear to rest primarily on the Board’s interpretation of previous decisions of the Supreme Judicial Court relating to the readmission of attorneys.
The Board of Bar Overseers believed that its recommendation against readmission was compelled by a 1943 Massachusetts decision relating to a lawyer by the name of Keenan. Keenan had been disbarred as the result of an investigation into public complaints of widespread corruption at the bar and had been found guilty of bribing jurors. Five years after his disbarrment, Keenan applied for readmission. More than 60 lawyers, judges and friends testified that, save for this one conviction, his conduct was highly ethical. Nonetheless, the Supreme Judicial Court concluded that Keenan’s conviction of bribing jurors was evidence of the most convincing kind, militating against reinstatement, and that to overcome that evidence “require[d] little less than absolute assurance of a complete change of moral character” or “guarantee against the repetition of the corrupt conduct.” Since Keenan had continued to protest his innocence of the bribery charge at the time he applied for reinstatement, the Court felt it did not have the requisite assurance that he would not commit a similar crime again.
Since the time of his indictment on the perjury charges levied against him by Whittaker Chambers, Alger Hiss has maintained his innocence. He has continued to assert his innocence in the proceedings for reinstatement, saying, at the hearing before the Board: “I have not had any complete change in moral character. I am the same person I have been, I believe, throughout my life.” The Board did not feel able to reopen or question the justness of Hiss’s original conviction, especially since the major witness against him, Whittaker Chambers, was deceased (“It is surely not for the Board, as the petitioner suggests, to determine whether or not, in view of the political atmosphere of the so-called ‘McCarthy era,’ the verdict of the jury may be regarded as so suspect that we may disregard it or minimize it.” And, since the verdict, accordingly, stood, and since Hiss refused to recant, the Board found no way, according to its interpretation of the Keenan case, to find him of the requisite moral character for readmission:
Accepting, then, the finality of the judgment and of the verdict in Mr. Hiss’s case, it follows logically that, even admitting the possibility of a failure of justice, the petitioner cannot show that he repents or has reformed, so long as he continues to insist on his innocence. Strict application of logical principles might, in fact, lead to the conclusion that the petitioner gives evidence of his present lack of moral character when he again testifies to his innocence of the original charge, in the face of a conviction which this Board, for the purposes of its deliberations, must accept as establishing the fact of his guilt.
The Board of Bar Overseers admitted that, “if it were free to consider the matter in the absence of the only evidence to the contrary (the conviction), [the Board would] unanimously find that Mr. Hiss is presently of good moral character and that he would almost certainly not commit any serious crime if readmitted to the bar.” And it agreed that “[t]he logic stated may sound mechanistic – at least syllogistic….” Nonetheless the Board expressed its belief that it was “bound to approach this problem in the manner indicated.”
The Board of Bar Overseers report to the Supreme Judicial Court in the Hiss case is rife with ambivalence (“Our personal sympathy for Mr. Hiss, his upright and persuasive bearing, humility and reasonableness, cannot, as we see the facts, warrant a finding of present good character when such a conviction remains in the balance so long as we are legally unable to consider its correctness…”). The Board seems to be pleading for some release from its “mechanistic – at least syllogistic” – logic. And, at the end of its report, it appeared almost to beg the Supreme Judicial Court to prevent the Board from being a modern-day Pontius Pilate:
We believe ourselves bound by the decisions of this Court to make the findings above set forth. We believe that this case may presently call into question our interpretation and application of the stated principles of law on which the Board relies. We believe that the reconsideration of those principles, if appropriate, is not a matter for our action. (Emphasis supplied.)
It thus became particularly interesting to see how Massachusetts’s highest court would handle the matter.
Oral Argument Before the Supreme Judicial Court
The paneled courtroom in which the Supreme Judicial Court of Massachusetts sits contains just two portraits. One of them is Justice Oliver Wendell Holmes, Jr., for whom Alger Hiss had clerked in 1929-1930. The stern countenance of his old mentor peered down at him. as Alger Hiss arrived at the oral argument in his case on May 9th. He was present “as a spectator only,” but held himself available to speak to the justices if they so requested. “Look who’s up there on the wall,” exclaimed his son, Tony Hiss, a staff writer for The New Yorker, nudging his father. The elder Hiss, glancing up at Holmes’s handlebar mustache, replied, “I’m so pleased to look up there and see him looking exactly as I remember him.”
Although he is now seventy, the years have treated Alger Hiss kindly. He appeared as lean as he was when a young man, impeccably dressed in a grey, three-piece suit. The courtroom was crowded, although not as many old friends were present as one might wish. Alger Hiss was still somewhat alone. Tony Hiss, who is now writing a book about his father tentatively entitled He Who Laughs Last, recalled the traumatic events of his childhood: “I was scared…. These big guys were coming and taking Dad away.” Apparently referring to Whittaker Chambers, Tony Hiss noted: “Back then, if you said something hysterical, you got taken seriously.” And he had obvious affection for his father, and sensed what a difference readmission to the bar might make in the latter’s life – and not only symbolically. “He loves the law and finds it as exciting and stimulating as ever. He can certainly use the money. He makes $5,000 in a bad year and $8,000 in a good year.”
The attorney who presented the oral argument on behalf of Alger Hiss was John F. Groden. But past legal figures in Mr. Hiss’s life were not forgotten. On the brief with Mr. Groden was Harold Rosenwald, Esq., Alger Hiss’s lawyer in his second jury trial and the appellate proceedings which followed it, whom even the unfavorable Board of Bar Overseers report characterized “with affection, as dedicated, gifted beyond the capacity of most advocates, persuasive and persistent.” Harold Rosenwald wanted to be with him this time, as well. Although they did not appear to be present in the courtroom, there were old friends, themselves eminent in the law, who had stood by him in the many lean years, and wanted to come forth for him as references now – Richard Wait, a partner in Choate, Hall and Stewart, and colleague in their early years; Professors Richard Field and Victor Brudney of the Harvard Law School; and Robert B. von Mehren, Esq., a partner in the Debevoise firm in New York City.
At the beginning of oral argument, John Groden, Mr. Hiss’s attorney, asked the seven justices of the Supreme Judicial Court to focus on what he considered the most relevant question: “What is the moral character of Alger Hiss right now?” He distinguished away the Keenan case, upon which the Board of Bar Overseers had felt compelled to rely so heavily, by noting that 22 years of “exemplary behavior” had elapsed between Alger Hiss’s disbarrment and petition for reinstatement, contrasting with only five in Keenan’s situation. Whereas the court has found that there was “no certainty that … Keenan would not again fall a victim to the same weakness that was his first undoing,” the Board of Bar Overseers had concluded, in contrast, Alger Hiss “would almost certainly not commit any serious crime if readmitted to the bar.”
The moving party for Hiss’s initial disbarrment in Massachusetts in 1952 had been the Boston Bar Association. When he filed his petition for readmission in November 1974, the Board of Bar Overseers asked the Boston Bar Association if it now wished to express any views on the matter. The President of the Boston Bar Association, Edward J. Barshak, replied, in a detailed letter which Mr. Groden asked permission to read to the full bench:
Board of Bar Overseers
294 Washington Street
Re: Application of Alger Hiss
Dear Mr. Heserve:
On December 17, 1974, notice was sent to all members of the Council of the Boston Bar Association and to all former presidents of the Association of a special meeting to be held on December 23 concerning the application of Alger Hiss….
At the December 23 meeting of the Council, Mr. Hiss appeared with counsel. He was questioned fully by members of the Council. After deliberations, the Council voted that I should communicate with the Board of Bar Overseers, in favor of the application, as follows:
It is the opinion of the Council of the Boston Bar Association that Mr. Hiss’s “resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest.” (S.J.C. Rule 4:01, Section 18(4) ).
In addition to the actual vote, set forth above, I think I should convey some information about the meeting and deliberations…. The attendance at the meeting was the largest I have ever seen. There was much discussion among the members of their individual views for voting in favor of Mr. Hiss, but it was decided to limit the actual vote as set forth above [t]here were no arguments presented against Mr. Hiss or his application.
Edward J. Barshak
Although it did not take part in the oral argument, the Boston Bar Association also submitted a friend-of-the-court (amicus curiae) brief on Alger Hiss’s behalf.
Finally, Mr. Groden called the justices’s attention to a 1974 decision of the Maryland Supreme Court in which it had decided to reinstate Maurice L. Braverman as a lawyer 19 years after his disbarrment for being convicted, also in the McCarthy era, of a conspiracy to teach and advocate the violent overthrow of the government, in violation of the old Smith Act. Braverman, like Hiss, had refused to recant. Addressing this issue, a panel of judges (the Maryland counterpart to the Board of Bar Overseers), reporting to the Maryland Supreme Court, concluded:
As to Petitioner’s reformation, the Baltimore Bar Association raises the philosophical question of how petitioner has proven his reformation when he refuses to recognize the existence of any misconduct from which to reform. Since petitioner is adamant in his belief in his innocence, he is consistent in not expressing any repentance. While he seems to hinder his cause by not taking what may be the easier way of confession and contrition, the intellectual honesty of his position must be recognized. Reform has been defined as: to change from worse to better, to bring from a bad to a good state. We believe petitioner has demonstrated his reformation without an expression of contrition from him.
Groden argued that the Massachusetts court should apply the reasoning of the Braverman decision to the Hiss case.
Following Mr. Groden’s argument, which was uninterrupted by questions, Bar Counsel Robert DeGiacomo rose to present the opposition of the Board of Bar Overseers. If the Board of Bar Overseers was ambivalent about Alger Hiss’s reinstatement, Mr. DeGiacomo was even more so. He differed from the Board on its interpretation that the Keenan case made public recantation an absolute requirement of readmission to the bar. “The implications of political justice,” he said, “together with the requirements of a loss of basic human dignity, which are implicit in such a demand in this case, would serve no purpose. This Court and this political system need no such affirmation.” Clearly Mr. DeGiacomo had in mind other political systems which insisted on extracting confessions despite protestations of innocence, and he did not want any state in the United States to imitate such a system.
Mr. DeGiacomo did argue, however, that perjury, particularly in the context of espionage, was so serious an offense – and went so centrally to the issue of what it means to be an attorney – that conviction of it should forever bar reinstatement. He agreed that Alger Hiss had suffered greatly, but argued, quoting the language of the Keenan decision, that “the true test must always be the public welfare. Where any clash of interest occurs, whatever is good for the individual must give way to whatever tends to the security and advancement of the public justice.”
Mr. DeGiacomo – and his sincerity was evident – was concerned that Alger Hiss had violated his most sacred trust – the oath which all newly admitted members of the bar in Massachusetts take, by which they “solemnly swear that [they] will do no falsehood, nor consent to the doing of any in court….” Having once broken his solemn oath, Mr. Hiss should not be allowed to take it again. If the profession contained former convicted perjurers, there would always be in the minds of many of the public “a doubt, a fear.” To add strength to his argument, Bar Counsel DeGiacomo drew on the part of St. Thomas Aquinas’s Summa Theologica, entitled “Of the Recovery of Virtue by Means of Penance,” which distinguished the public wrongdoer, like Hiss, and the more private sinner:
Those who have been publicly convicted or caught in the act of perjury … and of such like crimes, according to the prescription of the sacred canons, must be deprived of the exercise of their respective orders, because it is a scandal to God’s people that such persons be placed over them. If … the aforesaid crimes are not proved by judicial process, or in some other way made notorious, those who are guilty of them must not be hindered, after they have done penance, from exercising the orders they have received or from receiving further orders….
It almost brought one back to the days when the Massachusetts Bay Colony was a theocracy!
To underscore his point, that the members of the bar must regulate themselves according to the strictest standards in order to be thought above reproach by the public, Robert DeGiacomo chose to close his presentation with a quotation from a speech Hiss’s old mentor, Justice Oliver Wendell Holmes, Jr., made to the Suffolk County Bar Association dinner in Boston on February 5, 1885:
The law is made by the Bar, even more than by the Bench; yet do I need to speak of the learning and varied gifts that have given the bar of this State a reputation throughout the whole domain of the common law? I think I need not, nor of its high and scrupulous honor. The world has its fling at lawyers sometimes, but its very denial is an admission. It feels, what I believe to be the truth, that of all secular professions this has the highest standards.
This prompted a friend to whisper to Hiss: “That’s a double whammy.” Hiss nodded, but said nothing.
The justices had not asked Mr. Groden any questions from the bench, but Mr. DeGiacomo was not to escape so lightly. Justice Paul Reardon wondered whether it was “proper to ask whether there is any instance in which jury verdicts might be mistaken?” DeGiacomo replied: “Indeed, juries are fallible and they do make mistakes.” Chief Justice G. Joseph Tauro inquired: “Is there anything in the record in the past twenty-five years which would support the fact that Hiss was guilty of espionage?” DeGiacomo again replied, I sensed with a twinge of relief: “I know of nothing, your honor. Since his conviction, he has conducted himself as an honorable man. In his modest station … he has been a credit to society. There is no question about that.” And, again, just after DeGiacomo had finished with his final quotation from Justice Oliver Wendell Holmes, Jr., Chief Justice Tauro called attention to the fact that the Boston Bar Association, in its efforts at self regulation, had had quite a different opinion than the Board of Bar Overseers about who would be a credit to the profession.
Although it is always risky to try to predict the outcome of a case by the questions asked by the justices (sometimes they will give the side they most favor the toughest time), many of Hiss’s sympathizers, as they emerged from the courtroom, seemed optimistic. Alger Hiss, himself, appeared almost buoyant. But with typical lawyerlike caution, he declined to comment on a pending case in which he was intimately involved, and felt it “inappropriate” to answer many questions. But he did venture one prediction (which proved correct): “I’m going to the Celtics game tonight, and I don’t think it will be the final game of the series.”
On August 5, the Court ruled unanimously in favor of reinstating Hiss to the Massachusetts bar.