Lawyer for Civil Liberties 1950-1954
The Defense of Dr. W.E.B. DuBois
[On February 9, 1951, the Peace Information Center and five of its officers, including Dr. W.E.B. DuBois, were indicted for failure to register under the Foreign Agents Registration Act.
The indictment charged the Center with acting as publicity agent for the Committee of the World Congress of the Defenders of Peace.
Vito Marcantonio led the legal defense for Dr. DuBois, to whom he often referred as "the greatest living American." Associate counsel were attorneys Gloria Agrin, Stanley Faulkner and Bernard Jaffe of New York as well as the law firm of Cobb, Howard & Hayes, and Dean George Parker, of Washington.
On November 20, 1951, United States District Judge Matthew F. McGuire entered a judgment of acquittal for the Peace Information Center and the five individual defendants who had been charged with violating the Foreign Agents Registration Act. Judge McGuire ruled to grant Marcantonio's motion for a judgment of acquittal on the grounds that the prosecution had failed to link up the activities of the Peace Information Center in its circulation of the Stockholm Peace Appeal with any foreign principal.
Dr. DuBois devotes chapters 12 and 13 of in The Battle For Peace, published in 1952, to this trial. The following excerpts are, with his permission, quoted from that account.
It is interesting to note that in listing the legal expenses of the action Dr. DuBois wrote: "To this should be added ... at least $10,000 which Marcantonio earned but would not accept."]
Jurisdictional questions were first raised, based on the fact that the organization was defunct, and on the question of the jurisdiction of the court over individual defendants. These motions were denied, although the court admitted that there was still some question as to the liability of the officers of the Peace Information Center, if it were proven that the Peace Information Center no longer existed. Marcantonio said:
"The plea of not guilty did not in any manner, shape or form revive the dead. In other words, if John Jones were indicted and he died, and died before the indictment, certainly he could not be found guilty and considered in being simply because counsel pleaded not guilty. And pleading not guilty they pleaded not guilty for all purposes, including the establishment of the nonexistence of the individual,"
The Court: "You have just said what I have said, much better. So, we will leave it that way."
We had determined to confine ourselves to as few witnesses as possible and to rely on the strength of our case rather than corroborative repetition. I had been chosen as the main witness, with two other witnesses to substantiate certain occurrences which took place during my absence in Europe. These were named; and then Marcantonio added that we might subpoena the Secretary of State and the Attorney General. Later, when it seemed that I might need character witnesses, Albert Einstein offered to do "Whatever he could."
The prosecution ... tried to say that the Defenders of Peace had said there was a terrible plot against humanity, and that the United States was the center of this plot, and for that reason the Defenders of Peace were attacking the United States. The defendants' lawyers objected to this. The judge reminded the prosecution that they had established the existence of a foreign group [The Defenders of Peace] with headquarters in Paris. They should now indicate to the jury the evidence seeking to show the connection between that foreign group and the Peace Information Center.
This led to a long argument in which Marcantonio stressed the fact that it was absurd to argue that parallelism in thought or expression established the relation of agency. "Two people may have parallel views, one at the north pole and one at the south pole. That does not establish agency." The Court agreed that two parallel lines never meet, but said that he assumed that the connection between the two lines of thought was going to be indicated. The Court said that unless this nexus was shown, "I think that at the proper time you would be entitled to a directed verdict."
Mr. Maddrix [the prosecuting attorney] stressed the fact that the propaganda of the Defenders of Peace was that Anglo-American imperialism was the foremost champion of a new war, and the Soviet Union a great peace-loving power, the champion of peace; and that the evidence of this propaganda was admissible. Marcantonio replied: "After he makes that statement, all we need is a band to play 'Stars and Stripes Forever' -- the United States is warlike; the Soviet Union is peaceful -- you have a speech in Congress."
Mr. Rogge ... [testified] mentioning the meeting of the Bureau of the Defenders of Peace in Prague. When asked as to the substance of my speech he said: "The substance of Dr. DuBois' speech was that all the difficulties of the world stem from what he described as the capitalistic warmongers in the United States."
Mr. Marcantonio asked that that be stricken out, and the Court said that he was not going to get off on any ideological discussion with reference to capitalism or any other form of enterprise; that the essential question was whether or not Dr. DuBois was present. "What was said and who else was there is immaterial." The judge told the jury to disregard what Mr. Rogge had said. Later he excluded testimony about mention at Stockholm of setting up a peace movement in the United States.
Rogge was asked [by Mr. Marcantonio] if he had a meeting in his home in February, 1949, with regard to the establishment of a peace organization in the United States. He answered that he had permitted such a meeting to be held. He admitted allowing telegrams to be sent out over his name inviting people to the meeting; and that it did result in appointing a committee on organization.
Then Mr. Marcantonio turned to the Congress of the Defenders of Peace in Paris, and brought out the fact that Mr. Rogge had sent a letter to Dr. DuBois asking him to attend that Congress, showing him the letter.
Rogge admitted that when he attended the meeting in Prague in August, 1951, he was agent of a foreign country, and Marcantonio tried to get the letter which he had written in Prague, agreeing with the purposes of the World Defenders of Peace, admitted as evidence, but it was excluded.
Later in chambers Mr. Marcantonio interjected, angrily: "You have no case and why don't you admit it? I think this is one of the most deliberate diabolical plots ever pulled which is being pulled on these defendants."
He apologized for losing his temper, but added that the "prosecution wants to convict these defendants on their political views."
"You are trying to frighten us," said Mr. Maddrix.
Marcantonio replied: "I am not trying to frighten you at all. I am exposing you."
The Court finally said: "Mr. Marcantonio, you have indicated your surprise and your righteous indignation. They say of nuns they never get angry; it is always righteous indignation."
On Tuesday afternoon, November 20, the defense [conducted by Mr. Marcantonio] began its argument for a judgment of acquittal. It first based a plea for dismissal on the ground of "lack of jurisdiction." The Peace Information Center in order to be under the jurisdiction of the court must be in existence, and the government must prove its existence. The judge remarked: "You say that the Peace Information Center is dead. I say to you, there is a general presumption that a condition of affairs once existing is presumed to continue to exist until the contrary is shown."
Marcantonio replied: "There is only one presumption in criminal law, the presumption of innocence."
Here Marcantonio gave the prosecution an opportunity to give up the case on a technicality which would have saved their faces. He tried to get Maddrix to admit that the Peace Information Center had ceased to exist before its indictment. Had Maddrix admitted this, the case would undoubtedly have been thrown out of court then and there. But Maddrix stubbornly and indignantly refused to make the admission ....
Marcantonio then turned to the argument for a directed acquittal: "The organization did not register because it is not an 'agent'. If it is not an agent as defined in the statute, therefore, the defendants could not have failed to cause it to register; and, hence, the judgment of acquittal should, by right, be directed to the individuals as well as the organization. Attacking the Government's brief, he continued:
"The Government is seeking to spell out here a theory of the law which is something out of this world. And I read that language: 'While it is believed that evidence of a connection between Peace Information Center and the Committee has material probative value, the statute does not include 'connection' as a necessary element in the proof of this phase of the charge.'
"Now, I submit, and I think that your Honor has indicated quite clearly, that connection must be established. Here, again, the Government reveals itself in its very last sentence.
"Now what is the Government saying here? It is saying that a statute states that the relationship does not have to be one pursuant to a contractual relationship; therefore no connection has to be established; no connection has to be established because no contractual relationship has to be shown.
"I contend, and I believe Your Honor has indicated time and time again, that unless connection has been shown, there is no relationship of agency and principal..."
Marcantonio insisted that the basic definition of "agency" in the law of 1938 was not changed by the law of 1942, and that 1) the Government must establish that the Peace Information Center was acting in behalf of the Partisans of Peace; 2) that the Peace Information Center was subject to control of the Partisans of Peace; 3) that the Partisans of Peace had consented to the fact that the Peace Information Center should act on its behalf; 4) that the Peace Information Center consented to the control of the Partisans of Peace; 5) that the Peace Information Center consented to act for the Partisans of Peace; and 6) that there was a consent on the part of the Peace Information Center to be subject to the control of the Partisans of Peace."All these are musts; if any one of these fails, the case fails."
The Court brought up the case of interlocking directorates where, for instance, Dr. DuBois was a member of the Partisans of Peace, and also a member of the Peace Information Center. The judge admitted that this in itself did not necessarily prove that one was subject to the control of either, but he asked if that wasn't a circumstance which, along with other evidence, might prove it. Marcantonio answered:
"No, sir. I will tell you why it is not -- Because you have no evidence of control. Let me put it this way. All you have here, so far as Dr. DuBois is concerned, is that he was a member of the Congress of the Defenders of Peace, and that he is president of this organization; period."
He said there was no testimony that the organization of which Dr. DuBois was a member decided to have an organization over here; nor that there were directions given which Dr. DuBois had to carry out over here.
The argument went over into the afternoon. The judge intervened with the following analogy, directed to Mr. Maddrix of the Prosecution. He said suppose you were living in Vienna and published a pamphlet on taxation which I liked. I ask your permission to republish your pamphlet in New York at my expense. The Government asks me to register as your agent. I refuse. I maintain that while I agree with your thought I am not your agent and therefore will not register. Is not that right?
Mr. Maddrix replied that the Government insisted that the agency was implied by the similarity of ideas.
Here Mr. Cunningham of the Government prosecution, came up with the extraordinary plea that no connection need be proven. He maintained that a publicity agent as defined by the law of 1942 was not an agency in the sense of the law of 1938:
"...The foreign principal may never have heard of the person here, as I have said before. We have to show it was the subjective intent of these people here to disseminate information in the United States, propaganda for and on behalf of, and further the propaganda objectives of the European organization."
The judge leaned forward and asked how a person disseminating propaganda of the type that the statute prohibits could be found guilty of acting for a foreign principal, "if the principal never heard of the disseminator and the disseminator never heard of the principal?" The judge continued, "Your contention is this: that if there is an argument about salt and pepper, Congress, by virtue of its power, said, 'pepper could be salt and salt could be pepper'."
Mr. Cunningham answered, "Yes, sir. That is exactly what is confusing the issue here."
Mr. Marcantonio retorted: "Except that the English language is still the same. Salt is salt and pepper is pepper. Principal is principal and agent is agent."
The court recessed until the afternoon. Mr. Marcantonio then insisted that the Government had not proved its contention of agency.
"Again, I repeat, repeat, repeat and repeat again there was no evidence of control and direction. Furthermore, even if they went so far (and let's assume for the sake of argument only) that the Stockholm Appeal which we circulated was the propaganda of a foreign organization, we still would not be guilty and there still would be no evidence of our being guilty under this act, unless they showed control, unless they showed relationship. Merely circulating the Stockholm Peace Petition in and of itself is not evidence. It is not any evidence of control. It is not any evidence of consensual relationship ... What is more ... in the Government's case we grasp something that is positive. We find in all of the documentary evidence adduced time and time again there appears the affirmative statement that the Peace Information Center is not affiliated with anybody."
The judge said:
First of all, with reference to the motion for dismissal predicated upon jurisdictional ground, that is denied and the record will so indicate." The judge continued:
"The Government has alleged that 'Peace Information Center' was the agent of a foreign principal. . . in this case the Government has failed to support, on the evidence adduced, the allegations laid down in the indictment. So, therefore, the motion, under the circumstances, for a judgment of acquittal will be granted."
The Defense of William L. Patterson, Executive Secretary of the Civil Rights Congress
[William L. Patterson, executive secretary of the Civil Rights Congress, was indicted on November 27, 1950, for alleged contempt of Congress.
The indictment was based on Mr. Patterson's alleged refusal to comply with a subpoena, issued by the House Select Committee on Lobbying Activities, for the production of records of the Civil Rights Congress.
Congressman Lanham of Georgia, acting chairman of the committee, presiding at a committee hearing on August 4th, 1950, called the Negro witness, Mr. Patterson, a "black son of a bitch." The hearing concluded a few minutes later. Subsequently Mr. Patterson was cited for contempt by Congress.
Congressman Marcantonio opposed the resolution approving the contempt citation on the floor of the House. 106 Members voted against it.
At the trial in April, 1951, Vito Marcantonio headed defense counsel, with George Crockett and Ralph Powe as associate counsel.
On April 11th, 1951, a jury composed of 7 Negro and 5 white men and women informed the Court, after having had the case for about 25 hours, that they were unable to agree upon a verdict. Judge Alexander Holtzoff discharged the jury and then suggested to William Hitz, Assistant United States Attorney, that the Government drop the case.
Marcantonio's closing statement to the jury is given below.]
Mr. Marcantonio: May it please Your Honor, and ladies and gentlemen of the jury:
This is not an easy case. It is not an easy case because of so many legalistic mystifications to the ordinary layman. So, in my limited manner, I shall try to give you those things upon which there is a certain agreement, not agreement before this case started, nor agreement before the indictment, but agreement that was brought about only as a result of our forcing those agreements.
You will recall the opening statement of the prosecutor, and from that opening statement you would have gathered that this had been a gross wholesale refusal on the part of this defendant to comply with the request of this committee.
What do we find at the end of the case? That there has been established, and the Court will tell you so, [that] 32 categories of information were requested of this defendant, and of the 32, there is no default on 28; on 28 there is no default. There is no charge of contempt now before you on 28 ... as of the four there is where the big dispute lies, and when you analyze those four, when you take the subpoena with you into your room, you will look at those four that are in dispute, and you will find that they overlap, and cover each other. It amounts to practically the same item.
In other words, this defendant is here for practically nothing at all.
What else is no longer in dispute?
This defendant was indicted, mind you, on two counts. The Government tried to double up on him, tried to hit him twice, and tried to hit him hard. The Judge, as a result of what has been developed here, has ruled, and I have asked the Judge's permission to inform you of this, that count 1 is out. He has granted a judgment of acquittal on count 1. So count 1 is out.
Twenty-eight requests, no default. Four requests, when you read them together really amount to one, and when you get down to really brass tacks, and get down to reality, when you consider it from the standpoint of common sense, you find that those requests are nothing.
Let's see what the story is on that one request. One very pertinent thing happened before that [Congressional] hearing on the 4th of August, which was not read to you by the District Attorney. I want to read it to you.
Mr. Hitz: [the district attorney] I object to it. It is not in evidence.
The Court: What do you want to read?
Mr. Marcantonio: It is on page 32, on the bottom.
The Court: Did you read this in evidence, Mr. Hitz?
Mr. Hitz: I did not.
The Court: If this was not read in evidence, I do not think you can refer to it.
Mr. Marcantonio: My recollection is that it was read.
The Court: Mr. Hitz states that he did not read it. Naturally his recollection would be better, since he has a notation.
Mr. Crockett: [associate defense attorney] May I inquire, wasn't the entire transcript offered in evidence?
The Court: Just a moment. Mr. Marcantonio is summing up.
Mr. Crockett: I am just asking for information.
The Court: You may not interrupt.
Mr. Marcantonio: The entire transcript was offered in evidence, except as to certain portions.
The Court: I said to Mr. Hitz that he may read certain portions as he pleased into the record and to the jury, and you may read such portions as you desire, and neither side read this portion.
Mr. Marcantonio: Except the whole transcript was in evidence, except certain matters which Your Honor agreed to delete. I am reading from that transcript.
The Court: I am going to say you are limited to only such parts of the transcript as either side read into the record, and read to the jury.
Mr. Marcantonio: I will abide by Your Honor's ruling. At any rate, the fact of the matter is that this defendant was framed. Why was he framed? I will now read as to what happened the first day, and that portion of the first day which begins to give the beginning of the frame-up in this case. This defendant appeared on the first day, and he asked permission to read a statement.
Mr. Hitz: Can you give me the page?
Mr. Marcantonio: Yes. Page 20. You read page 20. And this is at the very outset, the very beginning. We find there this statement from Mr. Lanham [a member of the Congressional Committee before which Mr. Patterson appeared]. He says:
"Mr. Chairman, before this man" "This man." That is very significant ". . . reads his statement, I think he should answer the questions propounded by counsel, and the committee, before he is permitted to sound off."
Right at the very beginning, a member of a Congressional committee, having a witness before him, refers to a statement as "sounding off"; refers to him as "this man"; and reveals a tactic, which is part of the strategy to get Patterson.
Now we go further. Before Patterson had a word to say as to what kind of activity they were engaged in, Mr. Lanham refers to what? To the members of the defendant organization who came down here to see their Congressmen. How does he refer to them?...
"Mr. Lanham. Have they not had hordes" hordes ". . . of people coming down here?"
This is at the beginning. First, "don't let him sound off"; then refers to his people as "hordes of people" that come down here.
Now, bearing this in mind, and I could go through this record, parts of which were read by the prosecutor, where time and time again Mr. Lanham got rough with this defendant. Then what happened? The first day is over. This defendant during that first day brought out what? He brought out the character of his organization. He had come down here under subpoena, which he felt did not apply to him. He felt that, rightly or wrongly, it did not apply to him. But, nevertheless, he came; and he stated the documents that he had brought down. This committee then adjourned. Somehow or other, somewhere, somehow, somebody realized that they did not have the screws on Patterson. Somebody felt that the subpoena which was served on him the first day was not good enough with which to nail Patterson down. So a new subpoena is issued on Patterson on August 3, asking him to come back on the morning of August 4, bringing back with him documents in 32 categories.
Bear that in mind. August 3, to bring back documents with him dealing with 32 categories.
This committee knew, and Mr. Lanham knew, that this defendant had not brought the documents that were requested in the first subpoena. The defendant had said what he had brought down. Mr. Lanham knew it. The subpoena was issued and the then chairman of the committee does not say, "You get on the airplane and come down here tomorrow post haste with these records that you have not brought." That is the common thing to do. That is what any Congressional committee would do. But this man was out to get Patterson, the man who is supposed to have brought the hordes down, the man who is to be stopped from sounding off.
So, they don't tell him to go back. They don't direct him to go back and bring the records. Mind you, we are now dealing with wilfulness. I am talking about the District Attorney's proposition, "wilfulness."
Here is a man supposed to be wilful, under these circumstances. They don't tell him to go back. They say, "You stay over." If you recall, I very carefully questioned the Clerk of the committee, and brought out that not only had the Chairman instructed Patterson to stay over, but that the Clerk of the committee had paid Patterson to stay over. So, here it is: they are out to get him, and they prepared the process of framing him.
"If you leave, you are in contempt; you are violating the order of the committee."
He stayed over and they paid him for staying over. He is expected to deliver documents on the 4th of August which he, on the 3rd of August, said he did not have with him. Do you get that?
Now, also bear this in mind: That Patterson at no time said that any of these documents which they claim he did not deliver, existed. I say they have got to establish that these documents existed.
The Court: Mr. Marcantonio, that is a question of law for the Court. The Court has ruled, in view of the defendant's refusal to produce, it is not necessary to establish existence of documents.
Mr. Marcantonio: But, at the same time, this defendant did not have the opportunity, and there is no law that can change this physical fact; no judge; nobody. It is a physical fact that has been placed there by the Almighty Himself, that this defendant was not physically capable of being present on August 4 and producing documents, when he was directed to remain in the city of Washington, and paid to remain in the city of Washington.
On that proposition there can be no question. He is not a superman. Only some conniving mind, a mind that resented Patterson, a resentment that was displayed right here on this stand which was a reflection of his attitude toward Patterson before the Committee resentment against what? Resentment against Patterson, who said his organization did what? That he was busy in the Willie McGee case in Mississippi; (that was read by the District Attorney); that he was busy trying to save the Trenton Six in the State of New Jersey; that he was busy trying to prevent the wholesale execution of the Martinsville Seven in the State of Virginia.
Here is the man standing before this committee, and on the day he is standing, Mr. Lanham sitting, saying, "Don't let him sound off; his people are hordes"; and this continues; and then they give him a subpoena which only a superman could comply with...
Then what happens?
The next day, no argument on the part of Patterson. He is offering to do everything. What he does not have, he says, "I will bring back." He is feeling his way around, trying to find out what his constitutional rights are, and while he is doing this, and complying and complying and complying, Patterson is stepping aside all the time from the trap that has been laid for him by Lanham, the trap that has been laid for him by this subpoena to do the impossible as he is stepping aside, who provoked this incident [in the committee hearing]? This is important. Remember, I am talking about this incident in connection with framing this defendant. Who provoked it? Who used the word "lie" first? It was Lanham who kept saying "lie," "lie," "lie." Patterson said it once. Then you heard what happened.
Mr. Lanham said he didn't remember, that somebody had to tell him about what he said. We have all lost our tempers in our lives, and we know very well as to any highlight of any occurrence that took place when we lost our tempers; we remembered. Mr. Lanham said he didn't remember. He was not telling the truth to this jury. He lied to this jury. He lied to this jury, and he lied to this Court. It was venom that came up to his head, all the filth, all that is vile, all that is bigoted, all that is race-hatred, came to the fore.
At first it was skillfully concealed. At first it [the hearing] was definitely directed to frame him. Failing that, the explosion takes place; and in this explosion this defendant was not given an opportunity to complete this hearing. I do not know what he would have said if the opportunity had been afforded him. You have no right to conjecture. The point is here that he was never given the opportunity to complete this hearing, and any person who comes before any committee of Congress is entitled to a full and complete hearing. He was deprived of that opportunity. He was deprived of that opportunity by that explosion.
That committee was adjourned; it was adjourned in the midst of that explosion, maybe a minute later. What difference does it make? Maybe two minutes later. What difference does it make? Any person with any ounce of common sense will know that that committee was terminated only as a result of that explosion, an explosion that emanated from, race hatred which started with the attempt to get Patterson, the attempt to frame him, the attempt to get him to commit contempt.
Now, under these circumstances, how could it be said that this defendant wilfully refused?
First of all, in my opinion, it must be established that this person was able to produce; was able to produce. Was he able to produce? That is the first question on the question of wilfulness. Was he able to produce? They put him in the position of being unable to produce. Having put him in that position, they say, "Cite him on contempt; we will cite him on two counts." They make 32 charges. They wind up with one count, and four charges...
Ladies and gentlemen of the jury, I will tell you this, and I am fully responsible, and take the responsibility for what I say: That this defendant stands here only because an acting chairman of a committee of Congress can call him "a black son of a bitch," and get away with it. That is why he stands here.
The Court: There is no evidence on that point, and the jury will disregard that statement.
Mr. Marcantonio: I will state this: The hearing of this committee on August 4 was abruptly terminated only because the acting chairman of this committee could call this man a "black son of a bitch," and get away with it. I challenge anybody to deny that. That committee adjourned and ended; it terminated.
Patterson was explaining things. He was getting along. Thirty-two items "Where are your bank records?" He states the bank records had been subpoenaed. Item after item was explained by him, explained away. No default. These four items, he might have explained... or he might not have explained... The point is he did not have the opportunity. It was closed; it was terminated. It was shut down because what happened was permitted.
Contempt? Well, 106 members [of the House of Representatives] decided there was no contempt, and voted against it.
Mr. Hitz: I object.
The Court: I excluded that from the testimony.
Mr. Marcantonio: Very well.
The Court: You must confine yourself to the record.
Mr. Marcantonio: Very well, I will confine myself to the record.
This defendant, not having been permitted to complete his testimony, stands before this bar of justice today. Again I say because Mr. Lanham wanted it that way, Mr. Lanham framed it that way, because they put him in a position in which he could not comply. These are physical facts, and no matter what amount of legalistic mystification the prosecutor may give you, these physical facts cannot be denied.
On top of that, these physical facts ... were manufactured and made that way, because the acting chairman of this committee could not say the word "Negro," on the stand. Yes, the Honorable Judge and I disagreed as to what we heard. The Judge stated that he heard the witness Lanham say "Negro." I heard him say "Nigra." What you heard him say is what counts. Your recollection is what counts. Your Honor may be mistaken. I may be mistaken. There is no disrespect in saying His Honor may be mistaken. What you heard is what counts. The fact that he could not say "Negro" on that stand that is why Patterson was framed .... Mr. Lanham could not stomach anybody petitioning the Congress of the United States... Since when has it become unlawful to petition the Congress of the United States? The rights of petition are guaranteed by the First Amendment, guaranteed by the men and women who shed their blood so a free nation could be established in this country.
The Court: Please do not pound the furniture.
Mr. Marcantonio: That may be, Your Honor. I feel strongly about this. I feel strongly about this, Your Honor.
The Court: It is a breach of the Court to pound the furniture.
Mr. Marcantonio: Perhaps the furniture may be hurt. But, what is more important are the rights and dignity of human beings. That is more important than the furniture. The rights of, and dignity of, human beings, the rights and dignity of the proposition that all men are created equal, that men are not to be framed because of the color of their skin that is more important than the furniture of this court or any court of the United States of America.
The Court: You will have to stop making inflammatory remarks. If Government counsel had made such remarks I would have declared a mistrial. Of course, I cannot declare a mistrial because of remarks of defense counsel.
If you repeat these inflammatory remarks, I am going to prevent you from continuing.
You have eight minutes more.
Mr. Marcantonio: I do not believe it is my intention to be inflammatory when I state that Patterson was framed by Lanham, not because of a desire that came from nowhere, but Patterson was framed by Lanham because of the fundamental proposition that Lanham did not recognize the principles of equality of all men, irrespective of race, color, or creed, because Lanham revolted against any individual, particularly if he were a Negro, who stood up for that proposition, revolted against any person, particularly if he were a Negro, who was a leader of an organization whose activities were engaged in the defense of men, particularly Negro people, who were framed because of the color of their skin.
Lanham framed Patterson for that reason, and so in that respect, deep, deep, deep down the fundamental issue is the issue of equality.
Ladies and gentlemen of the jury, you have seen the difficulties under which I have had to labor in this case. I would not be here, I assure you, if I did not believe in what I have stated to you today. Life is too short. Life is too short to be hypocritical about anything as fundamental as this.
What is involved here is elementary decency. What is involved here is the frame-up, clever, diabolical at the beginning, and then the explosion towards the end; the frame-up of not only Patterson but the frame-up of everything that Patterson represented before that committee; the frame-up of 14 million of his fellow Americans.
The Defense of Ben Gold, President of the International Fur and Leather Workers Union
[On August 28, 1953, Ben Gold, President of the International Fur and Leather Workers Union of the United States and Canada for seventeen years, was indicted in connection with an affidavit he had executed on August 29, 1950, under Section 9(h) of the Taft-Hartley Act. (See pages 225, 298, 301.)
The indictment charged violation of the false statements act, alleging that Gold knew his affidavit was false in three respects in that, at the time he executed the affidavit, he was in fact a member of the Communist Party (first count); affiliated with the Communist Party (second count); and supported an organization that taught the overthrow of the United States government by force (third count). Vito Marcantonio was general counsel for the defense, with Harold I. Cammer, Joseph Forer and David Rein as associate counsel.
In his summation to the jury given below Marcantonio presented a detailed analysis of the testimony that had been presented and declared, "We have exploded every single theory advanced here by the government. Phony theories, conjectures, guesses. Innuendos, no evidence, no evidence."
On April 2, 1954, the jury returned a verdict of guilty on counts one and three, and not guilty on count two. At this time an appeal is pending in the United States Court of Appeals for the District of Columbia.]
CLOSING ARGUMENT TO THE JURY ON BEHALF OF THE DEFENDANT
Mr. Marcantonio: May it please your Honor and ladies and gentlemen of the jury: This case has been a very long case. It has been a very difficult one .... The issue has been lost in a cloud, a fog, a smokescreen of prejudice and bias, a prejudice and bias that the prosecutor has attempted to work up so that you ladies and gentlemen of the jury would forget the issues.
It is nothing new. It is an old technique that lawyers have employed ever since we have had courts in our country. When you have no evidence on the issues, when you have nothing that you can say about the specific question that the jury has to decide, then talk about something else, to the best of my limited ability, I shall do nothing else but talk about the issues in this case, because I think the very basis of justice in our country is to confine ourselves to the issues that have to be resolved in any case, and once we permit the jurors to be diverted from the issues, deflected from... the question that has to be decided, then justice becomes a mere mockery in this country.
And what is the real question? It is a very simple question, and that question is contained in the charge that was made against Mr. Gold in the indictment. The indictment charges that when he said that he was not a member or affiliated with or supported the Communist Party on August 30, 1950 that he had made a false statement. That is the charge.
To determine that, we have to determine whether or not Mr. Gold was a member, whether or not he supported, whether or not he was affiliated with, the Communist Party as of August 30, 1950. Nothing else counts. What happened 30 years ago, what happened before he resigned, that is not the issue. It is not the issue at all.
As a matter of fact, when the prosecutor stood up here this morning and said... [he was] going to prove that the defendant had been a member of the Communist Party, why, it was just knocking at an open door.
Nobody ever denied that the defendant, Mr. Gold, had been a member of the Communist Party for many, many years. We contend that he had been a member of the Communist Party up to August 24, 1950. Nobody denied that.
Nobody denied he signed the affidavit. We conceded that, and nobody at any time ever denied that Mr. Gold, while he was a member of the Communist Party, was ... a member of the Communist Party. In other words, we have never said that while he was a member of the Communist Party he didn't fulfill his obligations as a member of the Communist Party.
That is all past. That is not the issue. That is what the Government would like to make the issue in this case, and do you know why? Because in this kind of case, for membership or affiliation or support, what must you have?
What would you want to be judged by if you were charged with membership in any organization? You would want a witness to take that stand, wouldn't you, and say: I saw the defendant at a meeting of the organization, a public meeting.
Did anybody come here and testify and say that the defendant was ever at any public meeting of the Communist Party? Nobody did. Not a single one of their witnesses said that.
Did anybody come here and say that the defendant ever paid dues after August 30th, or August 24, 1950? Did any witness come up on this stand and say that the defendant attended a secret meeting of the Communist Party after August 24? Did any witness come here and say that the defendant in any manner, shape or form received orders, of which the witness knew, and that the defendant had carried out, for the Communist Party, after August 24, 1950?
That is the big thing in this case. Not a single piece of evidence of membership. Not a single piece of evidence of support. Not a single piece of evidence of affiliation, by any single witness who took the stand, on the part of this defendant, Mr. Gold, after August 30, 1950.
Please bear that in mind. Not a single witness, and the Government cannot contend that any single witness came here and gave you even so-called circumstantial evidence.
Now, let us see, what would be circumstantial evidence? If somebody came here and said that on August 31st, or on September 1st, or on September the 5th, or October, or in December, of 1950, I saw Mr. Gold leaving the building of the Communist Party, that would be circumstantial evidence. Did you have anything like that?
Or if somebody came here and took the stand and said: I saw Mr. Gold on the corner of the block where the headquarters of the Communist Party is located, after he signed that affidavit. Did anybody bring that evidence? Did anybody come in with that kind of circumstantial evidence?
Did anybody ever come in and say: I saw Mr. Gold talking quietly in a corner with one of the leaders of the Communist Party? Now, that would be circumstantial evidence, things of that character: In the neighborhood of the Communist Party, or carrying out orders of the Communist Party, or in any manner, shape or form being seen at a secret conclave, or an open conclave, or paying dues, that would be direct or circumstantial evidence, either way.
But this case has nothing of that at all, not a single iota of evidence of that kind. There is no direct evidence, and ladies and gentlemen of the jury, there is no circumstantial evidence.
Now, would you want to be judged, if you were charged with being a member or affiliated with or supporting an organization, by the state of this record at this time, and I am dealing only with the record. I am dealing only with the record. Would you want to be judged by the lack of this kind of evidence that I have described? No membership, no dues paid, no association, no attending a meeting, no being seen in the neighborhood, no private conclave or conferring, no carrying out orders, no connection.
No evidence of any connection in any manner, shape or form, either secret or overt.
That is a physical fact. That is a fact that nobody can contradict. That is a physical fact that is just as physical as this board here. It is just as physical as you are sitting there, and I am standing here.
Now, something very significant happened in this case, and I know that you ladies and gentlemen noticed it. It was the most significant thing in this whole trial, and the prosecutor today tried to dance around it very gingerly. He skipped around it but didn't dare touch it. He tried to skip around it because he had to make mention of it because he knew what had happened, just as you knew what had happened, and I knew what happened; and he knew he had to account for it.
Do you remember when Eckert [a prosecution witness] was on the stand? Keep that picture in mind for a moment.
I now go back to the opening day of this trial. Bear in mind what I said about the kind of evidence that is needed, and I will read what the prosecutor said he was going to show. I am reading from page 74 of the minutes:
"We intend to show that the defendant Gold attended that meeting."
The meeting that occurred was described as the meeting of January or February, 1948.
"We intend to show you that the defendant Gold attended that meeting and that among the people who were there was William Z. Foster, Eugene Dennis, and John Williamson, who was labor secretary of the Communist Party at that time, and labor leaders who were of the Communist Party at that time, and labor leaders who were Communist Party members, and that the discussion took place for some four hours during the course of an evening, and that it was a closed meeting, that during the course of the discussion Mr. Gold participated as to what was to be done by the party members, union officials, signing the nonCommunist affidavit, and that during the course of that discussion one of the means that was put forth as to how Communist Party members who were union officials could sign the nonCommunist affidavit was to use the device of a technical resignation.
"In other words, it was stated in the meeting to technically resign from the party without actually breaking from it, and then go ahead and sign the nonCommunist affidavit."
What did he say he was going to prove? He was going to prove that there was a meeting at which Mr. Gold was present, and that at this meeting they plotted to put in technical resignations while actually not breaking with the party. That is what he said he was going to do, didn't he? Those are his words, not mine.
This was to be the foundation of a case against Mr. Gold. Upon this was going to rest the whole theory of fake resignations. Upon this the building was going to be built, the structure, of this defendant meeting with leaders of the Communist Party together with other trade union leaders, and that together they conspired to file fake affidavits.
He said he was going to prove it; that it took place at that meeting. Let us go back to the proof.
Eckert is on the stand. Do you remember that day? With all the arm twisting, and questions, objections, conferences at the bench, tortuous proceedings, and what finally came out of it?
This is page 2075 of the record, and bear in mind he said he is going to prove that at this meeting they plotted to file fake affidavits. Bear that in mind.
He has got his witness to prove it and what does the witness say?
"Question: During the course of the meeting in 1948, can you tell these ladies and gentlemen " I not asking this question, the prosecutor was asking this question "can you tell these ladies and gentlemen whether or not there was any discussion at that meeting, where you and Gold and the rest of the union leaders were, that in order to comply with the Taft-Hartley affidavit the union leaders would resign from the party?
"The Witness: The meeting's decision was not to sign."
I will repeat that: [The Witness:] "The meeting's decision was not to sign. I don't recall specific discussion of the mechanics of signing it."
Where is the plot? Where is the plot that he was going to prove, the meeting where they conspired to file fake affidavits? The charge they made upon which his whole house was to be founded the house fell with that answer.
And then he tried to retrieve and again he said,.
[The Prosecutor]: "Do you recall any discussion apart from the specific discussion, Mr. Eckert?
"The only reference I can recall," said Mr. Eckert, "is the reference made by Mr. Williamson in his opening remarks, when he spoke of the Farm Equipment Workers, which the general tenor of those remarks was that they had given permission for the Farm Equipment Workers to sign, and that they had discussed I don't recall whether he used the word procedures or mechanics but that he had discussed the matter with the Farm Equipment Workers. And nobody raised that question further, that I can recall."
Again nobody, nobody, ladies and gentlemen of the jury, at that meeting where the plot was supposed to have been hatched or discussed, discussed the matter of resigning, the mechanics of resigning. The phony affidavit theory of the Government falls.
And then he presses further. He has not the answer. The proof is not forthcoming, the house is tumbling down, and he said:
"Was there discussion that Grant Oaks, the head of Farm Equipment, was leaving the party if he signed?"
Then I objected at that time, and there was colloquy between the Court, and finally the witness says:
"There was no discussion about Grant Oaks actually leaving the party."
Mind you, this was the meeting that was supposed to plot about leaving the party, filing phony resignations, and there was no discussion of it at all, and to the contrary, the discussion was not to comply and not to resign, and then came the famous words of this trial.
Ladies and gentlemen of the jury, we have all been in many experiences in our lives, and as we march along the path of life, there are certain things that stick with us, and I am sure that as far as this trial is concerned, there are two words that will stick with you, with me, with his Honor, and with the prosecutor, and with the Court officials who have been following this case, and those are the two words that follow:
I will ask the question again so as to get the continuity:
"Was there discussion that Grant Oaks, the head of Farm Equipment, was leaving the party if he signed?
"The Witness: There was no discussion about Grant Oaks actually leaving the party.
"By Mr. Lowther: [the prosecutor] Why not?"
You remember the words, "why not?"
I don't know whether I jumped like a jack rabbit, but I jumped; I jumped, and I said to his Honor, I said, "why not?" What do we mean by "why not?" He could not get this witness to confirm the plot, to confirm the conspiracy upon which this case was supposed to have been built.
And so, desperately, he asks the witness: "Why not?" After my objection he withdrew the question.
Why not? Yes, I asked why not, and I think the public will ask why not, and you deep down in your consciences will ask why not.
Why not is there any evidence here of any direct membership, of any membership, any evidence, and I don't want to repeat it, but any evidence of paying dues, or attending meetings, or secret meetings at which the defendant has been at since August 30th, or of any circumstantial evidence of being in the neighborhood, or communicating with anybody in the Communist Party. Is there any evidence of membership? Why not?
Yes, where is the evidence of the plot? Where is the evidence of the conspiracy... there was no plot, no evidence of it.
He said he was going to prove it. That was his boast. That was the statement he made to you at the beginning of this trial, that he was going to prove it; and not only didn't he prove it, but he proved the contrary... somehow, somewhere, Mr. Eckert knew that he had testified before the CIO convention, and he could not say that at that meeting they had plotted phony resignations.
He had to tell the truth under my cross-examination, and I brought on word for word what he said before the CIO meeting, as to what happened at this meeting with the Communist leaders in January.
What happened at that meeting? Well, it was just the opposite. Not to resign; not to file phony resignations, but everybody was of the opinion to continue to refuse to comply. If you don't comply, that means you don't resign. If you don't resign, it means you don't file any affidavit, and the meeting and the plot disappears, and the opposite is proven.
So no evidence of Communist Party membership, support, or affiliation. Not a single iota of evidence of any plot, and the evidence just the opposite. Not a plot to file phony resignations, but a determination to continue to refuse to comply.
So the prosecutor is confronted with that situation, and so he developed a new theory. He said we can't prove our case, so we are going to pull a new one, something new in law.
We will show what was in the man's mind at the time he resigned, and how will we show you what was in the man's mind?
We will become mind readers. I always thought, ladies and gentlemen, that we judged a man by his conduct. That is [the] experience of human beings, reasoning human beings, everywhere in this world.
He says he wants to judge what was in his mind, and so he starts punching through the open door again, to prove that Gold was a Communist 30 years ago, that he had been a Communist, that he had attended Communist conventions, that he had been in Moscow.
Well, now let me say one thing about this whole business of being a Communist and being in Moscow. Let us assume, for the sake of argument, that everything he said [was] in those books ... [is there]. Of course, you will realize that you can take a book, and.., read one page and read on, and... find that there are different meanings, but I don't need to go through all that.
That is a very insignificant part of this case, whether or not the Communist Party advocates the overthrow of the Government by force and violence. That is an insignificant part of this case because, ladies and gentlemen of the jury, what the Communist Party does, or the Communist Party doesn't do, is not binding on this defendant.
The only question that he [the prosecutor] wanted to prove, to show that the Communist Party advocated the overthrow of the Government by force and violence, was to show that the Communist Party was an organization that did so, and that the defendant supported it, and so being unable to prove support, and being unable to prove affiliation and membership, he did throughout this trial what he did throughout his one hour of summation.
I am not so good at mathematics. I am just an ordinary individual who handles figures like you, a layman, but I followed his time. Do you know that he devoted actually of his 60 minutes he devoted, to the best of my calculation, 49 minutes to the Communist Party and just about 11 minutes to Mr. Gold.
Now, as far as the Communist Party is concerned I am not here, and I don't stand here as attorney for the Communist Party. The Communist Party, and it has been stipulated, the Communist Party has not been declared illegal by any Congress, and it has not been declared illegal by any court, and it is not illegal to belong to the Communist Party.
Now, I am not here to defend the Communist Party. That is not my job, and I would be falling into a trap. This prosecutor wants you to try the Communist Party, to have you find the Communist Party guilty, but when you come in and the Judge asks you, ladies and gentlemen of the jury, have you agreed upon a verdict, and you say we have, your verdict is not for or against the Communist Party, your verdict is for or against Mr. Gold.
So the prosecutor knows that, but he wants you to find the Communist Party guilty, forget Mr. Gold, shove him in the background, and then try to tie him up loosely with the Communist Party because of his past membership, no evidence of present membership, tie him up because of his past membership, and you find the Communist Party guilty and come in with a verdict of guilty against the defendant.
I am not going to fall into that trap. I am not going to stand up here and fall into that trap to defend the Communist Party.
As for the defendant, I want to deal with him. He is on trial. Let us assume that everything he [the prosecutor] read here, from one or two pages is contained on every page what Karl Marx said in 1848, or what Stalin said, or what Lenin said. Let us assume that the defendant did read what Lenin said, and he did read what Stalin said; and the prosecutor says those books stand for the proposition that the Communists want to overthrow the Government of the United States by force and violence.
Let us assume for the sake of argument that is true. I ask one question. I ask one question as for this defendant's past conduct: Even through his [the prosecutor's] trained seals yes, they are trained seals, these so-called experts, and I will discuss them later but did anyone of them ever say that they ever heard Mr. Gold advocate the overthrow of the Government by force and violence?
Has anybody come here and said that Mr. Gold has practiced a life of deception?... Who has come here with a single iota of deception with respect to the conduct of this defendant throughout his life and of this defendant as a leader of his union?
What is more... has anybody said, and please bear this in mind because it is so important, has anybody come here and said that throughout the years of Mr. Gold's membership in the Communist Party, he at any time said or advocated or whispered or intimated the overthrow of the Government of the United States by force and violence?
Nobody. None of the trained seals that you have had here ... have even remotely intimated that Mr. Gold has advocated the overthrow of the Government by force and violence at any time throughout his career in the Communist Party.
So you may read books and you may study them, but what counts is what you say and what you do. The day has not come in America, ladies and gentlemen, when we are to be condemned by the books we read and the lessons we are taught, nor has the day come when we are to be condemned by lectures given us or by what the lecturer said, nor has the day come when we hold men and women guilty because of their association in any organization, and I hope by the grace of the eternal living God that day will never come in America, where you and I will be judged by the lectures we hear or the books we read, or where you and I will be judged by association.
Guilt by association has not been grounded in America. It is being resisted by free men and women everywhere in the United States, and I trust that that resistance will continue by your verdict here today.
So what do we have about the defendant's past? He [the prosecutor] tried to bring out that the defendant in the past, besides attending the Lenin school, made attacks on Congress. You remember how much of a big deal he made of that? I think we can put that in its proper perspective.
An attack on Congress is not unAmerican. It is a good old American custom. I know, I was attacked for 14 years while I was there. Attack on Congress? People have their opinions of Congress. Some think they are good Congressmen, some think they are bad. Some people thought I was good; some thought I was bad. That goes for every Congressman; and the President of the United States, as witnesses have admitted, declared one of the Congresses to be the worst Congress in the history of the United States. That is one of the big awful things that this defendant did.
And some of the other awful things he did was in 1939 he said: "The Yanks are not coming." Well, a lot of other people said that, too.
I pointed out that Senator Wheeler said it and many others said the same thing, and so he [the prosecutor] tries to bring out because Mr. Gold took certain positions in the past, therefore because he took those positions as a Communist in the past, that proves conclusively that he is a Communist member after August 30, 1950.
Now, would you want to be judged by that kind of evidence? Is that the way you try people in our country? Is it on the basis of conjecture? Just because you wore a certain style hat back 30 years ago, that means you wear it again today? Just because you danced to certain tunes years ago... [does that mean you dance to] the same music today?
In other words, the Government lacking any evidence has developed these theories, and one theory is: Take his past and his past becomes his present, by magic. The past becomes the present by magic.
The issue is the present, and there is no evidence on the present, and I keep on emphasizing that because that is so important, and that is the issue, and he [the prosecutor] keeps on dealing with the past, and he keeps on dealing with the Communist Party.
Well, he says, we will have some substitute for evidence, and what is the substitute for evidence? This substitute for evidence has sure gone through many changes. "You can't resign" theory. Once a Communist always a Communist, and today, I think I will be charitable and I will just use the word silly, [in reference to the prosecutor's] comparing resignations from the Communist Party with resignations from the Army of the United States.
Now, isn't that ridiculous? You and I know that if a person tried to go AWOL, just drops out of the Army, he winds up in Leavenworth.
If a man doesn't pay his dues in the Communist Party, he drops out. What happens to him?
Oh, he says, they denounce him. Let us see the facts of life. What are the facts of life here?
This is not my testimony. Mr. J. Edgar Hoover, and I don't care for what reasons he says Communists dropped out of the Communist Party, we find, according to J. Edgar Hoover that from 1949 to 1951 over 23,000 Communists dropped out of the Communist Party. Were there 23,000 denunciations? If that were a fact and after all he is talking about a practice if you want to establish a practice on a course of conduct, you bring in evidence upon evidence to show that everybody that drops out was denounced and attacked.
Well, as a matter of fact, when you add up the thousands and thousands who dropped out, as I got out of these witnesses, it runs into hundreds of thousands. Is anybody so absurd as to want you to believe that there were hundreds of thousands of denunciations of those who dropped out? Let's see the facts on their own theory.
First of all, he [the prosecutor] can't deny that there were hundreds of thousands that dropped out, and he can't deny that there were not hundreds of thousands of denunciations. He can't deny that. That is another physical fact. It is just as much a physical fact as the proposition that this foundation upon which he intended to build this case ... failed when Eckert was forced to tell the truth because Eckert remembered he had testified before.
The second proposition take Lautner himself [a government witness]; let's take his experience. You remember he said he went in the Army, and I asked him: Did you ever sign an affidavit in the Army in which you asserted that you were not a member of the Communist Party or any similar organization, and he said: He did.
Then I asked him: Were you telling the truth when you signed that affidavit?
He said he did, and I said: How come you were telling the truth, and he said: Why, it is simple, I just dropped out of the Communist Party; I was released of all obligations while I was in the Army.
His own witness, Lautner, said that he dropped out, and he was released, and no obligation while he was in the Army, and I asked him: Were you denounced, and he said: No.
I said: As a matter of fact, you kept on communicating, writing letters to your friends in the Communist Party?
And he said: I did.
There is an illustration of a person dropping out, his own witness dropping out, and he wasn't denounced.
Let us take this other factor.. . From the word resign the witnesses started using a new word. They said when you break with the Communist Party, you are denounced. That was the first retreat. That retreat came from Lautner, and then there was another retreat.
That retreat came from Budenz [a government witness] when he said: Only those who testify against the party are denounced, others are left alone.
So it is either break or testify. Now, before I deal with that any further, let us go back to the experiences of their own witnesses.
You are denounced and you are not permitted to go to parades, and all that kind of nonsense. What happened to Mr. Johnson [a government witness]?
Didn't he say that he attended and spoke at what he claimed to be Communist front meetings, meetings that were supposed to be controlled by the Communist Party after he broke with the Communist Party? Didn't he say that? Didn't he admit it?
So we have Lautner leaving the Communist Party not denounced; we have Johnson leaving the Communist Party, and then attending Communist, so-called Communist front meetings.
All this adds up to one proposition, to a very simple common sense proposition, that what is applicable here in this case is the same as is applicable anywhere in life.
You leave an organization and you denounce it, and the organization denounces you. You leave an organization and you testify against it, and the organization denounces you.
That is what happened in the cases of the trained seals when they showed you the public repudiation of these people by the Communist Party they had been denounced because they had testified, because they had denounced in turn. That is why they had been denounced.
It is not that you are denounced just because you leave the party. But let's come back to their theory. First it is resign and then it becomes break.
Well, they say if you break, there will be no favorable mention of you. That is what he said, no favorable mention of you.
Well, I showed two individuals who broke, prominent people, didn't I? I showed you when we had Mr. Lautner on the stand, and I asked him to alibi that editorial in the Daily Worker away. I showed there, didn't I, that Mr. Browder, who had broken with the Communist Party, and when he finally was indicted, it was the Daily Worker that came to his defense, even though originally they had disagreed with him, and they thought the indictment was horrible, and they called for the defense of Mr. Browder.
And then when Mr. Budenz was on the stand, I asked Mr. Budenz about Michael Quill, and Mr. Budenz placed Michael Quill in the Communist Party when he, Mr. Budenz, was there, and then he admitted that Michael Quill had broken with the Communist Party.
Then I asked him, and I showed him another editorial in the Daily Worker, and I said; Isn't it a fact, Mr. Witness, that the Communist Party here defends Mr. Quill against the indictment which has been issued against Mr. Quill?
Mr. Budenz said: Yes.
So there you have living proof, through their own witnesses, and, ladies and gentlemen, ... while we don't have to prove that we are innocent, they have to prove that we are guilty; [yet] I submit that a cold blooded, dispassionate analysis, without the prejudice and the hysteria about the Communist Party, will lead to one inevitable conclusion, that through the mouths of their own witnesses we have established our innocence.
So here again we have another illustration of how their case falls. They have no real evidence, and I am now dealing with the substitute, with the phony goods. They don't have real goods, and I am dealing with the substitute and showing you what a poor substitute this is. I am showing you the holes in the texture of this cloth that they would have you buy, showing you how Budenz admits that one who drops out or who breaks with the party is defended.
Lautner admits one who breaks is defended. They do receive favorable mention.
As far as Mr. Gold is concerned, what mention has he received in the Daily Worker anyway? They mentioned that he resigned. They mentioned that he marched in a parade, and they have an ad, an advertisement of a bazaar of an organization of which Mr. Gold was chairman. That is not favorable mention. That is factual mention.
So on their own theory, favorable mention, there is no favorable mention. On their own theory, resign, you can't resign, and hundreds of thousands have resigned.
Resign and you don't get any favorable mention. We have showed through Budenz and through Lautner that Quill and Browder did get favorable mention.
But what is the real gist of the situation here? ... First of all, it doesn't make a bit of difference what the organization does about you. If you quit, you quit.
I don't care whether it has ironbound discipline.. . I don't care how iron bound that discipline is. If you quit, you quit.
If they are going to shoot you, and you want to quit, you quit, but there is nothing in this affidavit that requires the defendant to throw bricks at the Communist Party. All it requires is that I resign. You go your way and I go my way.
It has never been contended here that this affidavit required the defendant should have political disagreements with the Communist Party, and let me say, incidentally, right here, that I am sure his Honor will charge, that the defendant's views are not on trial.
He is not indicted for his views. Even the Government doesn't say that when Mr. Gold asserted his views, and asserted in the affidavit that he didn't believe in the overthrow of the Government by force and violence, that he lied. No, sir, the Government doesn't dare say that. They didn't indict him for that. So he is not on trial for his views.
So all that was required of the defendant was to break, quit, resign; not attack. There is no requirement here for the defendant to show that he had political disagreements with the Communist Party.
He quit. He quit for the reason that I have shown you, that the witnesses bore out. He had to make a choice: He didn't want to make a choice, but he had to make the choice. It was either Communist Party membership or remaining with this union, and he made that choice.
He made it honestly; he made it unequivocally. He signed a letter just as any ordinary member resigning from an organization because of ill health would sign that letter.
He said, fraternally; goodbye, you are going your way and I am going my way. You are not fighting me and I am not fighting you.
The law requires I quit .... so that I can be president of the union, and he did it.
Where is there any evidence after that that this man Gold, president of the union, anywhere was a member of that party, or affiliated with it, or supported it? There is no direct evidence in any manner, shape or form.
Ab, but says the Government, when he quit, he used Aesopian language. We go into fairy tales, Aesop's Fables.
What do we mean by Aesopian language? Lenin sometime, somewhere, somehow, in 1905, he had a revolution in Russia, and the police were after him, the Czar's police were after him, and I don't know if the day has come in America when we have to defend the Czar and the Czar's regime against what the Russian people did in 1905.
I am not going to do it here, and I am not going to defend the Czar. Let the prosecutor do that.
But Lenin in 1905 said: When the police are after us, we will use different names, we will use the names of characters in fairy tales dealing with that situation at that time.
Now, you see, they had nothing on this defendant. Past actions they knew that past actions could not stand up because there was nothing about overthrow of the Government on the part of the defendant, and what is more, past actions are not part of this case.
The plot upon which this case is based, that evaporated; it blew up in the prosecutor's face; yes, and on top of that this business, this theory about you can't resign, we have shown you that the requirements are not that be breaks with the Communist Party, not that he is called names, but that he just quits; and that fades into insignificance.
So they get up this theory that Lenin said to use the names of fairy tale characters. That is double talk. In 1905 against the Czar. I don't know, maybe somehow, somewhere, Lenin [who died in 1924] sent that message to the Lenin Institute in 1930, and from the Lenin Institute it was taken over here, and the Government's theory is if Mr. Gold resigned, he had in mind using double talk.
Now, let us see how absurd, how tremendously fantastic that is. Let us assume for the sake of argument that there was a deal here, that Gold is to put in a phony resignation, and it wasn't on the level.
Well, if you were doing that, what would you do? You would just send a letter and say, "I resign, period." Or better than that, you know what you might do, if you thought the Government was going to start this kind of business about being denounced, that the resignation is not on the level unless you are denounced, and if they are in cohoots, if this is collusive, what would you do?
You would say to the Communists, "I resign. You call me names and I call you names"; and then they [the Government] would have brought a super-duper trained seal to say calling each other names was Aesopian language, which means that they really loved each other but they didn't denounce each other.
But the fact of the matter is if there was any conspiracy, any scheme for a fake resignation why should this defendant after all, he is no fool, he has been many, many years in the labor movement, he has had a lot of experience why should he then put in, "I resign, and I shall continue to fight for true democracy and democratically elected Government and against the slave labor act."
If there was any conspiracy for him to fool anybody, he would have said nothing. What purpose would these words have served? He used these words because he believed in these words. If he had sent a message to the Communists, saying, "Look, boys, I resign but don't worry about me; I am still one of the boys," and [if] their theory of Aesopian language double talk, is a good theory, it is not just hot air, what would the defendant have done?
He would have used no language at all. He just would have said: "Boys, send the word around or whisper around, I am all right, I am just one of the boys."
Isn't that the conduct of a person who was putting in a fake resignation? Isn't that the conduct of a person who will put in a fake resignation? Certainly it is.
But the conduct of a person who is honestly resigning was the conduct of the person that did issue this statement. Yes, we do want you to take this in the jury room, this statement in which he states: Both parties which control the Government are responsible for the constantly increasing cost of living, they are responsible for the housing shortage.
Well, I don't know whether they are or not. It is up to you to think about it.
They spent billions upon billions of dollars of the taxpayers' money for war preparation. They passed and enforced the Taft-Hartley law. Well, didn't they?
They encourage and direct the UnAmerican Activities Committee, the Department of Justice, and the FBI to hire stool-pigeons to unleash this unprecedented campaign of witch hunting.
Think about that persecution and terrorism against Communists, progressives, liberals, and trade union leaders.
Ladies and gentlemen of the jury, that statement is not the statement of a Communist Party member today. It is the statement of anybody who opposes what is going on today in a certain section of Washington, D. C., and I am not going to mention the place. I don't want any objection. You know what I mean.
That is the conduct of an honest man. He made the statement that every liberty-loving American would make in the days when that statement was made, which were the forerunners of the days and the conditions, which I am not permitted to mention, but which you understand... exist today.
Ah, but they say, he used the words true trade union democracy ... I mean, true democracy -- fight for true democracy and democratically elected government, and they say, Ah, everything has failed, no direct evidence, past actions can't count unless they are tied up with present actions, and we have no present actions, so we get a new one.
We bring trained seals to the witness stand.
Mr. Lautner, based on your membership in the Communist Party, you left in 1950, based on your membership and the teachings and the reading of these books, can a man who has resigned or broken with the Communist Party march in the May Day parade?
The next one, Harper, the same question. No.
What is the situation? What is the situation? I used to object and his Honor would say: Well, they are tendered as experts; it is a matter of weight of evidence, and the jury will have to put the weight of evidence on that.
Ladies and gentlemen of the jury, let us discuss that. They have no case, so they put on these so-called experts. Every one of them paid $25 a day, making a good deal. This business of fingering has become a good racket for the trained seals.
You know, I cannot help at this time but remind myself of a saying that is found in the sixth chapter of the eighth verse of Revelations: "I looked and beheld a pale horse, and his name that sat on him was Death."
And there is no more utter death in this world than the death of truth. Men who are paid to give opinion-evidence, to lie; and... the Department of Justice and the prosecutor accuses; and who testifies? And the prosecutor testifies.
Did the defendant resign? No. It is a reaffirmation of membership.
Then on cross-examination I asked this question, and they testified so many times, and I said: Where do you find that true democracy means the dictatorship of the proletariat? Where did you ever say that before?
Now, this is a very important thing, isn't it, if it is the concept of the Communists that true democracy means the dictatorship of the proletariat? If that is so, where have you said it before?
They said: We were not asked.
Well, we got Budenz finally. There is a man that has written books and testified. He has uttered hundreds of thousands of words, voluntary testimony, not under questioning, before Congress committees, where he bared his chest to tell all.
Not a single word about true democracy being the dictatorship of the proletariat. Not a single word about true democracy or democratically elected government being the government of the Soviet Union.
And then this question was asked by me of Mr. Hiadun:
Tell us the piece of literature or the pieces of literature, give us the names of the literature in which this doctrine referring to true democracy means the dictatorship of the proletariat. . . [in which] this doctrine that you allege existed, is exemplified .... is stated.
Not one place, not a single piece of literature referred to, where it is stated.
Yes, and I challenge the prosecutor; he read here all this mumbo-jumbo from Lenin, Stalin, and all this stuff about 1858 and 1907, and 1918, and 1930, but I tell you, ladies and gentlemen of the jury, if he could have found in any of those books the fact that the terms, the words, that true democracy means dictatorship of the proletariat, oh, he would have read it to you. He would have read it to you.
I would have, if I would have been the prosecutor, and you would have if you had been the prosecutor. But he could not find it. They can't find it in the literature anywhere, and nowhere in any of the writings, and nowhere in any of the testimony given by any of these witnesses heretofore, anything about you can't resign, or anything about democratically elected government being a Soviet government, or anything about true democracy being the dictatorship of the proletariat.
There is a complete absence of it. It was invented. It was invented for this trial. They had no evidence. They needed a tailor-made suit to fit this defendant and so they invented it.
They invented the proposition that these terms meant the dictatorship of the proletariat because never before did they mention it, and if it were true that true democracy meant dictatorship of the proletariat to the Communists, and it was such an important doctrine, certainly it would have been published somewhere before, wouldn't it?
Certainly Stalin would have mentioned it, wouldn't he? Certainly Lenin would have mentioned it, wouldn't he?
Certainly Budenz would have mentioned it, wouldn't he? Somewhere or somehow?
Certainly Lautner would have mentioned it somewhere or somehow; and certainly the other trained seals would have mentioned it somewhere.
But nowhere! and so having no case, they substitute for evidence, based on your membership in the Communist Party, "what does true democracy mean? The dictatorship of the proletariat."
What does democratically elected government mean, Mr. Lautner, and Mr. Budenz, and Mr. Other Trained Seals? The Soviet Government.
The prosecutor accuses. The prosecutor's agents, the prosecutor's trained seals, testify.
"I looked and beheld the pale horse, and his name that sat on him was Death."
And there they were, exemplifying death. Death to the truth.
Oh, you can lie about a political party. After all, in the final analysis, a political party, ladies and gentlemen, will be tested by time and events and decision of the people.
But to lie about an individual, to invent a theory, to put trained seals in a witness chair to sustain that theory with lies, where the liberty of an individual is at stake, that is going too far. That is going too far.
Now, under these theories that are given us, anybody could be found guilty, you and I could be found guilty; and anybody could be picked up on the street and take the stand and say he belonged to your club, and that in his opinion, the fact that you played pinochle and drank beer, in his opinion as an expert, it constituted some kind of an unlawful act. No evidence of the commission of the act. Just the opinion,... [of a] witness in the employ of the same department for which the prosecutor speaks here.
Oh, coming back to true democracy and democratically elected government, did this defendant use these terms? Did he use it .... to tell the Communists that he wasn't quitting?
Of course not, because he used those terms time and time and time again.
I read to you all the way back to 1944. Is he [the prosecutor] going to say that he [the defendant] used them in 1950 because he knew he was going to be indicted in 1953? Well, all right, let us take that.
Is he going to say he used them in 1948 because he knew he was going to resign in 1950? Let us take that one.
Is he going to say he used them in 1947 because he knew that the Taft-Hartley law was going to be declared, by a divided Court, constitutional? All right, let us take that one.
But how about the use in 1945? How about the use of them before the Taft-Hartley law passed? How about the use of them before 1944?
The fact of the matter is that the words are simple words, words that trade union leaders use. They talk about democracy because their struggle is part of the democratic struggle of our country, of all people, a part of the democratic struggle of all people, people who work for a living in this country.
Is it Aesopian language when he said true democracy is what Lincoln said it meant, government of the people, by the people and for the people, and I read that to you, or are you going to take the opinion-evidence of these trained seals who invented this idea, as against the practice of years and years and years of using plain English. True democracy means government of the people, by the people and for the people. It means the right of minorities to speak up.
Then, as against all that, let us look at the affirmative side. Mr. Gold resigned. The only thing he [the prosecutor] could do with that letter was [to say] he [Mr. Gold] had used the word "fraternally." Of course, you should have the word "fraternally." I explained that to you.
He wasn't breaking with the Communist Party in the sense he was going to fight them politically. He was conforming with what the law required, to get out of the Party, that is all.
No fight, no belligerency. Bear that in mind in your deliberations. The law does not require him to fight. The law requires him to quit, and he quit, and he sent the salutation to an organization which he had belonged to for years.
What does he [the prosecutor] want him to do? Did he want him to put condemnatory words in that letter?
What does he want him to do? Curse them out in that letter? He signed the letter as one who had been a member of the Communist Party for 30 years -- fraternally, goodbye. You go your way and I go mine.
So that there is no contradiction as to the resignation. That letter is there. It is a physical fact, and the prosecutor cannot get around it.
Mr. Marcantonio: If it please your Honor, and again, ladies and gentlemen of the jury:
I was talking when we adjourned about Mr. Gold's resignation. I described the letter. I showed how the use of the words, "fraternally yours," was part of his conduct, of an honest conduct, the conduct of a man who belonged to an organization for some years, and resigned, not at enmity but just resigned, and that is the big distinction here, and that is all the law requires, that we part company, and not become enemies. That is the salient feature of the whole case, so far as the Government's own theory is concerned.
In connection with that resignation, may I say to you that even how it came about was open and aboveboard ... this union in 1948 didn't have resignations in mind.
To the contrary, instead of resignations, it reaffirmed its position of not complying.
Not complying means no resignations and it means no affidavits.
So when the trained seals were talking about fake resignations, this union went solemnly on record in open Conventions as a result of deliberations, as a result of resolutions .... taken by every delegate of that Convention, not to comply, not to resign, not to have any affidavits.
So that shoots all of that testimony of these trained seals to pieces.
Then 1950 comes along.
The Courts, by a very divided opinion, said the law was constitutional. Mr. Gold addressed the Convention. He said, This union must comply to save itself. What I am going to do is a personal matter for me.
The members asked him to resign from the Communist Party. He said, he is going to think it over. It was an important decision for a man to make, for rightly or wrongly, this man had been a member of a political party for thirty years. It was a very big decision to make in one's life, as to whether or not he was to quit that political party.
And so he says, I will make my decision, but the union must comply. We must save the union. I will wait. I will think it over.
A delegation calls on him. This delegation pleads with him to resign. They want him as the leader. This is the man who has built this union.
What does he do? He said, I will think it over, and I will make a public announcement.
He finally made the decision. He had to choose. He chose. He had to choose between the union and his party. He chose his union. He made a public resignation, public announcement; and I am not going to go over again the wordings of that resignation.
Do you remember they tried to get Gitlow to say that when defendant Gold said in that statement that he was still opposed to the Taft-Hartley law, that it was a slave labor act, .. . he was still talking doubletalk? Do you remember that?
And we showed you only yesterday the statement of the A.F. of L., the C.I.O., characterizing the Taft-Hartley law as a slave labor act, showing that what Gold was saying was not the language of a Communist or a Republican or a Democrat. He was using the language of a trade unionist opposed to the Taft-Hartley law irrespective of his political affiliation, be it Republican, Democratic, Communist, Socialist -- it was the language of the trade unionist who was opposed to the Taft-Hartley law.
And still they try to work up this theory of bringing in double talk by the use of the words "slave labor act."
So the resignation is in; and all of the government theories fall. They fall one by one.
His past activity falls. They can't do anything with that.
"He can't resign" business. That falls.
The use of the words "true democracy," that falls.
So then they say, Now we will get him. Here is the big thing. We will prove to you, ladies and gentlemen of the jury, that he went to the May Day parade.
You know this prosecutor has been spending more time proving things that we have admitted than (in] any other case that you or I have ever heard of. We have never denied that Mr. Gold went to the May Day parade.
He wants to prove to you that Mr. Gold was Chairman of the Potash Committee. We never denied that. Here again, spending all this time cross-examining witnesses, showing them bank accounts, as though it was a very suspicious circumstance.
What name is this on there?
You think it was something suspicious.
Who killed Cock Robin?
A big mystery.
No mystery there. Right along we admitted that Mr. Gold was Chairman of the Potash Committee. Right along we admitted Mr. Gold attended the May Day parade. What significance has this?
First of all, there has not been a bit of evidence here as to who ran the May Day parade in 1951.
Oh, they will tell you what Lautner said about the May Day parade in 1948, 1949, but has anybody here, and we are entitled to be convicted on evidence, did anybody mention here who ran the May Day parade in 1951 or 1952?
He wants you to assume that because one of the trained seals said that the May Day parade of 1949 was run by Communists, therefore be says the May Day parade of 1951 and 1952 was run by Communists. That is conjecture. That is guess work. We don't try men and women in America on conjecture and guesswork.
Not yet in America.
We don't want that kind of a day in this country.
But what is the truth about this May Day situation? You have heard it. These trade unionists have been marching on May Day year in and year out; whether the Communists march or whether the Communists didn't march was immaterial.
That witness Dobrin who was there on the stand. You got a laugh out of him. He sort of relieved the situation. The man who had the diploma from the Democratic Party. He told the truth. He made a very significant statement. He said if only Communists marched in that May Day parade it would be only a handful, and that is true; and that is true. On the basis of J. Edgar Hoover's figures, the Communists all over the United States amounted to almost nothing at all. If they came in planes and trucks from all over the United States it wouldn't compare to the hundreds of thousands who participate in the May Day parade.
Are there Communist leaders?
Of course there are Communist leaders in the May Day parade.
Do they share the platform with others?
Of course they do. The May Day parade in New York has been traditionally what is called a left-wing parade. All kinds of people march in it. People who are opposed to each other march in the May Day parade.
Why, even Manning Johnson had to admit that Socialists march in the May Day parade.
Even Sascha Zimmerman, an expelled Communist, marched in the May Day parade. Anybody who wants to, marches.
This parade, as far as this union was concerned, it was not a Communist Party activity, it was a union activity. The Fur Workers Union would march in the May Day parade even if the Republicans ran it. It was a union activity. The union was invited to participate in this parade.
Local May Day committees are formed in the union. They get up their slogans and they march. But what is the important factor about that parade?...
The physical facts again. The physical facts are, in these parades you had non-Communists. Reverend Mother Stokes was on that platform. What could they point out? They showed you pictures. They couldn't point out more than six or seven Communists out of hundreds of thousands of people.
Were they all Communists?
Forty or fifty people in the platform; all they could point out was five or six Communists. What is the evidence about the others being Communists?
Let me tell you, they had their fingermen and they were watching that parade. They were trying to get Mr. Gold for a long time, weren't they? Taking down his speeches while a man was publicly speaking.
And here the prosecutor said, I am going to prove and he proves what? What we admit. A public, honest to God open appearance.
Now, if this defendant had filed a phony affidavit and a phony resignation, and he wanted to conceal his Communist Party membership, would he have gone to the May Day parade, leading his union, if he considered that as an action in support of the objectives of the Communists .... would he have gone to that parade?
If this was a sneak play, would he be openly marching down Eighth Avenue at the head of his union?
Would he be openly on that platform?
You know the remarkable thing about this case? The Government charges a sneak play on the part of this defendant and yet everything that is proven is what the defendant has done in the open, and which we have admitted.
The Potash Committee.
Oh, he [the prosecutor] tried very hard. He tried to tie up the Potash Committee with the defense of the other ten Communists.
Ever since Gold resigned from the Communist Party his sole activity, and there is no evidence to the contrary here, his sole activity was what? Defend Potash, try to get him out of jail.
Wouldn't you try to get a friend of yours out of jail, whether he is a Communist, or whatever he is? A fellow union member?
Wasn't it union activity? Wasn't it adopted at the Convention?
I have tried to show that.
Is so and so a Communist?
The answer was no, and no, and no. He [the prosecutor] hasn't been able to show even a half-dozen Communists in this Fur Workers Union. But by innuendo he was trying to make you believe that he was finding a big number of Communists and Communist control. To the contrary, Mr. Mendel [a defense witness] told you the story, openly arrived at at the Convention.
Defend Potash, amnesty for Potash. We want to do it as a union proposition.
Did they contribute to the other ten defendants?
Was any appeal made for the other ten defendants?
I submit to you our witnesses were honest. He [the prosecutor] couldn't break them down. He couldn't twist them. They were plain, ordinary people. They weren't trained seals. There wasn't a single individual among them who had turned in a friend of his who had joined the Communist Party out of respect for him, such as you had in the case of Harper; and you didn't have one who said he would lie when the F.B.I. would want him to lie, such as in the case of Johnson; and you didn't have any of our witnesses here who took the stand and told you that what he had written was just cowboy and Indian stuff when it was purveyed publicly to the people as an honest account of his visit to Russia.
Those were the kind of witnesses you had here against us. But our witnesses told the truth. They were not contradicted. They told the truth.
About what? About open public conduct of a union activity, marching in the May Day parade.
Why, it is even written in some of the contracts that they have with some of the employers that May Day is a holiday, that the workers are off. If they want to march they can march. Written into the contract. Mendel gave you that testimony.
May Day, in which the union participated for years, long before ... a Communist Party existed in the United States. So if there are any Communists there, nobody denies it. But it is open and aboveboard. There are Communists and non-Communists and you can't make anything Communist where there are non-communists in it. That is common sense.
It is open and aboveboard, with Gold there open and aboveboard, with other membership there open and aboveboard, with the Potash Committee open and aboveboard, with Gold's name down at the bank signed as Chairman, with the Convention taking action, unanimously.
And so the conduct of Mr. Gold with respect to his resignation and with respect to his activities after his resignation, were open activities inconsistent with the circumstantial evidence theory of guilt.
The Judge will charge you, ladies and gentlemen, that if circumstantial evidence points two ways, if it points to innocence and it points to guilt, you must find the defendant innocent.
His Honor will tell you that.
Here I say it doesn't point two ways. It is inconsistent with the conduct of a sneak. It is inconsistent with the conduct of crookedness, with the conduct of lies. Open and aboveboard action.
Public resignation, public appearance at the May Day Committee, public chairmanship of the Potash Committee, all union activity, nothing inconsistent with innocence, everything inconsistent with guilt. It points only one way. But even if it should point two ways in your mind, if circumstantial evidence should point in the direction of guilt or in the direction of innocence, you are bound to choose in the direction of innocence as a matter of law.
But here it points only one way, in the direction of innocence.
Now, ladies and gentlemen of the jury, it is said time and time again these days, as we approach the celebration of His Resurrection, "Blessed are they which are persecuted for righteousness' sake."
This defendant has committed no crime. He has given his life to this union. He is not a racketeer. He is not a racket labor leader. He is not a mobster.
[He makes] $135.00 a week, with his union members making $150.00, $135.00, $151.00. An industry in which he started as a youngster at the age of fourteen or fifteen or sixteen, I don't remember which, miserable wages, down in the sweatshops in New York. You ought to know what those sweatshops were. I have been in them. I have fought against them.
Yes, call him a Communist for thirty years, but you have got to admit that he took these workers and he led them to a better day in these great United States of ours, didn't he? He led them to high wages, and he led them to a 40 hour week and to a 35 hour week, and he cleaned out that union of the mobsters and the racketeers, didn't he?
Yes, and he got them security, insurance, benefits unheard of in those days, and yes, unheard of even today.
Is that the conduct of a liar? Is that the conduct of a sneak?
Dr. W.E.B. DuBois, an intellectual giant of these United States: Could he have testified for a liar or a sneak, or did he testify for the man who broke down discrimination in the trade union movement, for the man who brought a better day to the men and women who work for a living in the fur industry?
Yes, and even the manufacturers, men who have fought him on the other side of the bargaining table, men who have fought him when there was a strike, yet even they had to admit that this man does nobly, that his word is good.
The whole conduct here, a whole life consistent with what? Consistent with phony resignation; consistent with a fake resignation; consistent with a living lie or consistent with open and aboveboard conduct?
Open and aboveboard activity, consistent with the betterment of the welfare of the people of his union.
I say that that conduct is not consistent with guilt, but that conduct is consistent with innocence.
That reputation reputation in the community, reputation in the industry, reputation among his workers, reputation among employers, reputation among intellectual giants the size of Dr. W.E.B. DuBois -- that reputation all leads to the theory of innocence, [is] consistent with innocence, and completely disproves any attempt at establishing guilt or double-dealing or deceit or lies on the part of this defendant.
And now, ladies and gentlemen, I have shown you how the Government's case has fallen. Lacking the real goods, they have brought phony goods ....
Has anybody shown you that Mr. Gold was a secret member or that he supported, secretly supported, the Communist Party or affiliated?
The rest is surmise.
We have exploded, "You can't resign." We have exploded that, "You can't get favorable mention" business. We have exploded the business that you are denounced if you resign. We have exploded this whole business about true democracy meaning the dictatorship of the proletariat.
We have exploded this whole business about democratically-elected government, meaning the Government of Russia.
Yes, we have exploded any business about any so-called policy in the Communist Party back in 1948 of phony resignations by showing that this [Union's] Convention was on record against resigning.
We have exploded every single theory advanced here by the Government: Phony theories, conjectures, guesses. Innuendoes, no evidence, no evidence.
And so at this time I ask you to bear in mind just one proposition, again and again and again, not a single word from any witness connecting Gold with the Communist Party after August 30th .
Why, as a matter of fact, let's take them one by one:
Hiadun, 1931; Gitlow, 1929; Johnson, 1940; Lautner, 1948; Harper never saw Gold; Budenz never even mentioned him.
We are the only ones who brought Gold up to August 24th . We brought in his letter of resignation. Throughout the whole trial we told you he was a member of the Communist Party up to August 24th when he resigned, and so not a bit of evidence against this man but all you have here is this theory.
To hate the Communist Party is your privilege. Time and events will pass judgment on a political party. But today or tomorrow when you retire you are to pass judgment on this defendant, not the Communist Party, but this defendant. And let the prosecutor rave and rail and tell you about the Lenin School and so on, and what is in these books. I say it is the defendant's conduct that counts.
And let him rail and rave against the Communist Party but I say it is Mr. Gold who is the defendant.
But I know in these days, days of hysteria, the same kind of hysteria by which lynchings are brought about, all you have got to do is wave some kind of an inflammatory doctrine, use a word here and there, raise a bogey, scare people, and justice is forgotten, and the base passions of men are let loose. Hysteria reigns. The innocent become guilty.
It is not the first time when hysteria has been used in our country against free men and innocent men.
Ninety-eight years ago the greatest American who ever lived, Abraham Lincoln, said:
"These are sad times, and seem out of joint. All seems dead, dead, dead; but the age is not dead; it liveth as surely as our Maker liveth."
And today, ninety-eight years later, the son of an Italian immigrant, I repeat his words, and reaffirm in my conscience the faith that he then enunciated in that period of hysteria. I say that the age is not dead. I say it liveth. It liveth as surely as our Maker liveth, because I have faith in men, I have faith in mankind, and I do not believe that you as an integral part of the living flesh and blood of our citizenry will find a man guilty on suspicion, will find a man guilty on opinion.
I do not believe that you will cast a guilty ballot against one on the mere opinion-evidence of trained seals.
That is all that there is here, and nothing else.
I do not believe that you will discard the time-honored cornerstone of American justice that a man is innocent until he is proven guilty.
I do not believe that you will substitute for that American doctrine, that American principle by which men have lived and for which Americans have died. I do not believe that you will substitute for that doctrine of justice the word of the informer, the paid informer, and of the stoolpigeon; not the word, but the opinion of the informer, the paid informer, and of the stoolpigeon, not as to facts, if you please, but as to their opinion.
Yes, the age is not dead. It liveth as surely as our Maker liveth.
Yes, that age, our age will live, so that justice will live in these United States, and I have faith, in keeping with Lincoln's words, that you will perform it by giving to my client his good name back and his freedom which is today in jeopardy.
Hearing of the Subversive Activities Control Board Against The Communist Party
[On September 23, 1950, Congress enacted the Internal Security Act of 1950 generally known as the McCarran Act. (See page 364.)
Under this statute hearings began on April 23, 1951, before a panel of the Subversive Activities Control Board, in a proceeding against the Communist Party of the United States of America.
Vito Marcantonio, John J. Abt and Joseph Forer were the attorneys for the Communist Party in this proceeding.
The hearings concluded on July 2, 1952. On April 20, 1953, the Subversive Activities Control Board confirmed the findings and recommendations of its panel, and ordered the Communist Party to register under the Internal Security Act.
Shortly before his death Vito Marcantonio, with his associate counsel, prepared a brief which was submitted to the United States Court of Appeals in January, 1954. In its "Preliminary Statement" the brief declares that the MeCarran Act is invalid for three reasons.
"A. The Act Is Invalid Because It Outlaws a Political Party, Suppresses Peaceable Political Advocacy and Association.
B. The Act Is Invalid Because It Imposes a Prior Restraint on First Amendment Rights.
C. The Act Is Invalid Because Its Sanctions Are Imposed on the Basis of Protected Advocacy, Expression, and Association.
Thus the Act creates the strangest and most virulent of all heresies 'non-deviation,' including 'non-deviation from the truth."
The concluding statement of the brief is given in full below.
The Court of Appeals affirmed the order of the Subversive Activities Control Board on December 23, 1954. A further appeal was made to the United States Supreme Court. On April 30, 1956, the Supreme Court sent the case back to the Subversive Activities Control Board for reappraisal of the testimony of three Government witnesses accused of perjury.
CONCLUSION: The Act [Internal Security Act of 1950], on Its Face and As Applied, Is a Clear and Present Danger to the National Security.
Our examination of the Act has revealed that it is pervaded by constitutional infirmities to an extent unequalled even by the Alien and Sedition laws of 1798 or by the most extreme wartime legislation. The Act flouts the most fundamental principles of the Constitution and of a self-governing society. Freedom of speech, press, and assembly, the doctrine that guilt is personal, the rule that guilt may not be legislated by fiat, the rudiments of fair procedure, the protection against coerced confessions all of these are ruthlessly violated by the Act. In applying the legislation, the [Subversive Activities Control] Board multiplied its vices and corrupted the administrative process.
The Act advances a now-familiar justification for its suppression of democratic liberties. The legislation is necessary, according to section 2, to preserve the national security from the "clear and present danger" of Communism. This justification is false. It is a supreme illustration of Mr. Justice Jackson's aphorism: "Security is like liberty, in that many are the crimes committed in its name." Knauft v. Shaughnessy, 338 U. S. 537, 551.
The Act does not promote, it undermines, the national security. For it annuls the fundamental liberties which are the basis of our security and the very things to be secured. The President, no less concerned with the national security than the legislature, and better informed on the subject, exposed this aspect of the Act when he vetoed the bill. In his veto message he stated:
"I am taking this action only after the most serious study and reflection and after consultation with the security and intelligence agencies of the Government. The Department of Justice, the Department of Defense, the Central Intelligence Agency, and the Department of States have all advised me that the bill would seriously damage the security and the intelligence operations for which they are responsible. They have strongly expressed the hope that the bill would not become law." (H.R. Doc. No. 708, supra, p. 1.)
"Unfortunately, these (registration) provisions are not merely ineffective and unworkable. They represent a clear and present danger to our institutions." (Id., p. 5.)
"Earlier this month, we launched a great crusade for freedom designed, in the words of General Eisenhower, to fight the big lie with the big truth. I can think of no better way to make a mockery of that crusade and of the deep American belief in human freedom and dignity which underlie it than to put the provisions of HR. 9490 on our statute books." (Id., p. 10.)
It is because the Act endangers the liberty of all Americans, destroys freedoms basic to our security, and mocks our claim to moral leadership in world affairs, that its enactment was vigorously opposed by scores of organizations and individuals representing broad and diverse sections of American public opinion. (Supra, pp. 34.)
The Act and the proceeding before the Board are not isolated phenomena. They are a product and a part of an environment that in the name of anti-Communism has spawned a host of governmental and extra governmental measures alien to the American tradition. These are making deep inroads in our freedom and, as many Americans realize, are carrying us down the road to a police state. Thus the General Council of the Presbyterian Churches stated in its letter to Presbyterians, supra:
"Under the plea that the structure of American society is in eminent peril of being shattered by a satanic conspiracy, dangerous developments are taking place today in our national life. Favored by an atmosphere of intense disquiet and suspicion, a subtle but potent assault upon basic human rights is now in progress .... Treason and dissent are being confused. The shrine of conscience and private judgment, which God alone has a right to enter, is being invaded .... A great many people, within and without our government, approach the problem of Communism in a purely negative way. Communism, which is at bottom a secular religious faith of great vitality, is thus being dealt with as an exclusively police problem .... In the case of a national crisis this emptiness could in the high-sounding name of security, be occupied with ease by a fascist tyranny."
This "assault upon basic human rights" was initiated on the premise that it was necessary to protect the nation from Communism by making Communists special objects for repression. Events have fully demonstrated, however, that repression cannot be contained. The "exceptional" measures first applied to Communists have, as their proponents intended, been increasingly employed to abridge the liberties of non-communists Through the application of the pernicious doctrine of guilt by association, the assault has been steadily widened, so that it now envelopes every aspect of our national life and strikes at individuals and groups of all shades of opinion short of extreme reaction.1
As Professor Henry Steel Commager recently wrote:
"We are all of us members of many societies, and we may say with John Donne when the principle of association is attacked we ask not for whom the bell tolls, it tolls for us.
"Just as each new party that came to power during the French Revolution thought it essential to send its predecessors to the guillotine for the lack of true zeal, so the hate-mongers of our day are spreading their nets wider and wider until in the end hardly anyone can escape." (Guilt -- or Innocence -- by Association, N.Y. Times Magazine, Nov. 3, 1951)
The nets of the "hate-mongers" have swept government service, education, literature, the arts, the stage, the movies, radio and television, the bar, voluntary associations, the trade union movement, the clergy, and, most recently, the Democratic Party. They have snared thousands of nonCommunists who, because of their thoughts, opinions or associations, have been dismissed from their jobs, blacklisted, ostracized, subjected to vigilanteism, barred from public platforms, deported, denied the right to travel abroad or (if foreigners) to visit this country. More alarming than the victimization of this growing number of individuals are the pervasive restraint upon the expression of opinion, the burning of books, and the creation of what a prominent American has called "the ministry of fear in our country."2 This deterioration of democratic values is so far advanced that it has aroused the concern and apprehension of virtually every thoughtful observer of the American scene.3 The frightening trend toward totalitarianism in America has made a profound impact on world opinion. Mr. Justice Douglas has observed that it has already cost us moral leadership in world affairs:
"America, seen from abroad, seems alarmed, confused and intolerant. The reasons are manifold. One important cause is a growing tendency in the interests of security to take short cuts, to disregard the rights of the individual, to sponsor the cause of intolerance, and to adopt more and more the tactics of the world forces we oppose. These practices and attitudes may go unnoticed here; but they make headlines in Asia. They are a powerful Voice of America, more powerful indeed than any program we can produce for radio broadcast. They have helped lose for America the commanding position of moral leadership which we had at the end of World War II." (Address to the American Law Institute, New Republic, Nov. 16, 1953.)
Similarly, Senator Lehman, on returning from a recent trip to Europe, stated that Europeans "believe that the American people have completely succumbed to fear, panic and hysteria ... many are convinced that we have lost our love of peace and our devotion to individual justice."4
At home and abroad, thoughtful men and women agree with Arthur Hays Sulzberger:
"One begins to wonder whether this is still the Land of the Free and the Home of the Brave, about which we sing so wholeheartedly. There has been dropped upon utterance and ideas a smokescreen of intimidation that dims essential talk and essential thought. Nor is it the super-zealots that bother me so much in all of this -- it is the lack of plain old-fashioned guts on the part of those who capitulate before them." (Have We the Courage to be Free?, N.Y. Times Magazine, Feb. 15, 1953.)
No single step can arrest the erosion of American freedom and return us to the firm ground of the Bill of Rights. But no return will be possible unless the Act is held unconstitutional and the order of the Board set aside.
The passage of the Act in 1950 accelerated the process which is sapping our democratic heritage. Even before its implementation, the Act gave Congressional approval to the prevailing pattern of repression, set a precedent for parallel enactments by state and local governments,5 and provided a powerful impetus to the growing fear which is inhibiting all forms of association and expression. The Board's order and Report represent a further stage in this process, which has been intensified by the initiation of proceedings against twelve alleged "Communist-front" organizations and the introduction of bills in Congress to make the procedures of the Act specifically applicable to trade unions.6
If the Act and the Board's order are sustained by the Court, the deterioration of American freedom will move into a new and even more dangerously advanced stage. Judicial approval will have been given to an act which is the statutory codification of "McCarthyism," defined by former President Truman (nationwide address, supra) as:
corruption of truth, the abandonment of our historical devotion to fair play. It is abandonment of the due process of law. It is the use of the big lie and the unfounded accusation against any citizen in the name of Americanism and security. It is the rise to power of the demagogue who lives on untruth; it is the spread of fear and the destruction of faith, in every level of our society."
The Act makes these evils the policies of government. It arms "McCarthyism" with an arsenal of legal sanctions for application on a mass scale. As a penetrating commentator on the Act has recently described its function:
"We are moving from political trials of individuals to political trials of groups and movements. Repression is tooling up for mass production." (Frantz, Tooling up for Mass Repression, supra.)
The fact is that a decision sustaining the Act and the Board's order would mean that enabling legislation for a police state is not inconsistent with the Constitution.
On the other hand, a decision invalidating the Act and the Board's order would mark the beginning of our return as a nation to the principles on which the true national security rests. As Lincoln stated (Collected Works, supra, v. 3, p. 95):
"What constitutes the bulwark of our liberty and independence? It is not our frowning battlements, our bristling seacoasts, our army and our navy.
These are not our reliance against tyranny. All of those may be turned against us without making us weaker for the struggle. Our reliance is in the Love of Liberty which God has planted in us. Our defense is in the spirit which prized liberty as the heritage of all men, in all lands everywhere. Destroy this spirit and you have planted the seeds of despotism at your doors. Familiarize yourselves with the chains of bondage, and you prepare your own limbs to wear them. Accustomed to trample on the rights of others, you have lost the genius of your own independence and become the fit subjects of the first cunning tyrant who rises among you."
The order of the Board should be set aside.
JOHN J. ABT
Attorneys for Petitioners.
1Guilt by association "appeared in our law only in 1940; since then it has grown and spread until this cloud, no larger than a man's hand, covers the whole horizon." Civil Liberties Tinder Attack, (A Symposium) (Univ. of Pa., Press, 1951), p. 17. The doctrine is not confined to physical or organizational association. It has been extended to include what may be termed guilt by association of ideas. As we have shown, the Act uses both forms of guilt by association as levers to outlaw the Communist Party, punish its members, and extend the statutory proscriptions to all those who "deviate" from the Act's standards of political orthodoxy.
2Averell Harriman, quoted in N.Y. Post, May 5, 1953.
3E.g., Biddle, The Fear of Freedom (1951); Barth, The Loyalty of Free Men (1951); Civil Liberties Under Attack, supra; O'Brian, New Encroachments on Freedom, supra; William O. Douglas, The Black Silence of Fear, N.Y. Times Magazine, Jan. 13, 1952; Cominager, Guilt --- or Innocence -- by Association, supra; Arthur Hays Sulzberger, Have We the Courage to be Free?, N.Y. Times Magazine, Feb. 15, 1953; Fine, Creeping Paralysis in Our Schools, N.Y. Times, May 10, 1953; Albert Einstein, letter to a New York School Teacher, N.Y. Times, June 12, 1953; Letter of the General Council of the Presbyterian Church, supra; Resolution of Central Conference of Rabbis, N.Y. Times, Mar. 16, 1953; Resolution of American Library Association, N.Y. Times, June 26, 1953; Resolution of the National Education Association, N.Y. Times, July 1, 1953; Harry S. Truman, in a nationwide address, N.Y. Times, Nov. 18, 1953; Adlai Stevenson, in a nationwide address, N.Y. Times, Sept. 16, 1953; Senator Herbert H. Lehman, before the National Community Relations Advisory Council, N.Y. Times, October 11, 1953; Gov. Theodore R. McKeldm, in an address to the Maryland State Teachers Association, N.Y. Times, Oct. 19, 1951; Paul G. Hoffman, in an address to Indianapolis Bankers Association, N.Y. Times, Oct. 19, 1951; Willard Thorp, in a commencement address at Mount Holyoke College, N.Y. Times, June 7, 1953; Learned Hand, in an address at the University of the State of New York, Syracuse, Oct. 24, 1952; Walter Reuther, in keynote address to C.I.O. Convention, Nov. 16, 1953; George Meany, in the American Federation1st, June, 1953; Very Rev. James A. Pike and other clergymen, N.Y. Times, July 6, 1953.
4Address to the National Community Relations Advisory Council, N.Y. Times, Oct. 11, 1953. For similar firsthand reports from other Americans, see Adlai Stevenson, nationwide address, supra; Drew Middleton, N.Y. Times, Nov. 21, 1953; Joseph Alsop, N.Y. Herald Tribune, June 11, 1953; Report of Council on Student Travel to the U.S. National Commission for UNESCO, N.Y. Times, Sept. 18, 1953. World opinion of developments in America is epitomized, ironically enough, in the title of an article in an independent Hamburg, Germany, newspaper: "Goebbel's Descendants in America." See N.Y. Times, July 2, 1953.
5E.g., the so-called Trucks Act, No. 117, Mich. Pub. Acts, 1952. See also ordinances of McKeesport, Pa., Cumberland, Md., New Rochelle, N.Y., and Birmingham, Ala., referred to in Biddle, The Fear of Freedom, supra, pp. 312.
6S. 1606 (Butler bill), and S. 1254 and HR. 3393 (Goldwater-Rhodes bill). The Butler bill has been accurately described as providing that "any union charged with being 'substantially directed, dominated or controlled' by Communists, ex-Communists, or persons who worked with Communists shall be summarily stripped of its bargaining rights and then placed on trial before the Subversive Activities Control Board to determine whether those rights should be restored." Frantz, H-Bomb for Unions, The Nation, Nov. 28, 1953.
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