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THE 

COMMUNIST 
TRIAL 



^VaBtt ^*<rLr * * * ' 

erican Crossroads 



by 

George Marion 




By the same author: 

BASES AND EMPIRE: 

A Chart of American Expansion 

THE "FREE PRESS": 
Portrait of a Monopoly 



From the collection of the 
2 n 

z m 

o PreTinger 

i a 

AJibrary 

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San Francisco, California 
2006 



ERRATUM : 

Two remarks by District Judge Vincent L. Leibell are incorrectly 
Abated on page 63 to Judge Medina. The same quotations are 
,roduced in "Why This Book" preceding the title page. 



The Communist Trial 



WHY THIS BOOK? 

The answer is in a letter by the author to a Protestant 
minister in Gilbertsville, New York. 
REVEREND SIR: 

Thank you for your obviously sincere letter, and permit me 
to reply with equal directness. You say: "It is my opinion that 
Judge Medina has bent over backward to give the defendants 
in the current conspiracy trial the fairest sort of treatment." 
What else could you think? You have been told the defend- 
ants and their lawyers behaved abominably and only the 
"saintly patience" of the Judge kept the trial going. But you 
have not been told the shoe is on the other foot. 

Let me cite from the very beginning of the pre-trial record 
going back to the summer of 1948 proof of the gross preju- 
dice with which Judge Medina entered this case and refused 
to leave it. 

MEDINA: "That is the way we conduct our judicial proceed- 
ings in this country." You have to bend over backward indeed 
to miss the inference that the defendants are agents of a for- 
eign country Russia. And again: "You'll get an American 
trial." Pages 20-22. 

MEDINA: "If the difficulty has to do with this idea of over- 
throwing the government by force, public policy might require 
that the matter be given prompt attention. There may be 
some more of these fellows up to that sort of thing." Page 126. 

MEDINA: "Not involving weasel words that they used, if you 
interpret them to mean the overthrow of the government by 
violence, and they say they do not, isn't there just some play 
on words there?" Pages 130-132. 

When pre-trial defense attorney Unger said: "There is 
not a word in the indictment alleging any acts committed 
by the defendants or by the Communist Party," page 139 
shows: 

MEDINA: "No, they want to wait until they get everything 
set and then the acts will come." 

All this was before Judge Medina had been named trial 
judge. This was before any misconduct could have occurred: 
it was before any of trial counsel for the defense had even been 
retained! 

Who provoked whom? Don't you think you'd better read my 
report from the record before you form an opinion? 



THE 

COMMUNIST 

TRIAL 



An American Crossroads 



by GEORGE MARION 



'AIRPLAY PUBLISHERS 
25 West 44th Street 
New York 18, N. Y. 



Copyright 1949 by George Marion 
All rights reserved 



ANNE J. WILSON 

714 North Mentor Avenue 

PASADENA 6, CALIFORNIA 

The People in This Book 



PRESIDING JUDGE: Harold R. Medina. 

DEFENDANTS: 

Eugene Dennis, John B. Williamson, Jacob Stachel, Robert 
G. Thompson, Benjamin J. Davis, Jr., Henry Winston, John 
Gates, Irving Potash, Gilbert Green, Carl Winter and Gus 
Hall. 

PROSECUTORS : 

John F. X. McGohey, United States Attorney for the South- 
ern District of New York. 

Frank H. Gordon and Irving Shapiro, Special Assistants to 
the U.S. Attorney for the Southern District of New York. 

Edward C. Wallace, Special Assistant to the Attorney-Gen- 
eral of the United States. 

Lawrence K. Bailey, Attorney, Department of Justice. 

TRIAL COUNSEL FOR THE DEFENSE: 

George W. Crockett, Richard Gladstein, Abraham J. Isser- 
man, Louis F. McCabe, Harry Sacher and Eugene Dennis, 
who acted as own attorney. 

Unger, Freedman and Fleischer: represented all the defend- 
ants in the preliminary stages of the trial; did not appear 
as trial counsel after above attorneys were retained. Briefs 
were filed in the case, at various times, by the American 
Civil Liberties Union, American Labor Party, National Law- 



yers Guild and other organizations, as "friends of the court" 
interested in constitutional aspects of the case; they were 
represented, of course, by their own attorneys. 

WITNESSES (for the prosecution): 

Louis Francis Budenz, Herbert A. Philbrick, Frank S. Meyer, 
Eugene H. Stewart, Fred Cook, William O'Dell Nowell, 
Charles W. Nicodemus, Garfield Herron, Angela Calomiris, 
Thomas Aaron Younglove, William Cummings, John Victor 
Blanc, Balmes Hidalgo. ( Other persons placed on the stand 
briefly for such technical purposes as authentication of a 
document. ) 



Contents 



Book One: Witness Number Eight 

Chapter 1 THE PITTSBURGH INCIDENT 9 

2 THE WOMAN IN THE CASE 17 

3 FOLEY SQUARE 29 

4 THE 'FIX' 43 



Book Two: Aesop's Fables 

Chapter 5 SKID ROW 50 

6 FOR IMBECILES ONLY 55 

7 HAROLD IN WONDERLAND 62 

8 THE LAW IN WONDERLAND 70 

9 GOOD MORNING, JOE 80 
10 LOUIS FRANCIS AESOP 93 

Book Three: The Reptile Tribe 

Chapter 11 APOSTLES OF JUDAS 107 

12 HYSTERIA 119 

13 THE EXPENDABLES 131 

14 THE USES OF PERVERSITY 142 

Book Four: Force and Violence 

Chapter 15 PROSTITUTES AND PIGEONS 151 

16 LAW AND ORDER 157 

17 THE SECRET OF SECRECY 168 

18 'COMMUNIST' MEANS YOU 180 
Documentary Appendix 



Book One: Witness Number Eight 



"Thou shalt not bear false witness against thy neighbor." 

-Exodus, 20:16. 



Chapter 1 
THE PITTSBURGH INCIDENT 



On January 10, 1948 a stockily-built man of 36 and a red- 
headed woman ten years younger were picked up by detec- 
tives on a street in downtown Pittsburgh. They said they had 
come to Pittsburgh two or three days earlier and were shar- 
ing a room in a local hotel. He gave his home as Cumberland, 
Maryland, and she said she lived not far from there in a 
community called Westernport. In her purse, the detectives 
found a nickel-plated .22-calibre pistol and, searching the 
hotel room thereafter, they uncovered an automatic revolver 
a German Luger in the man's suitcase. 

Two indictments were thereupon returned by the local 
equivalent of a grand jury the Alleghany County Inquest. 
The first indictment charged Charles W. Nicodemus and 
Louise Trail with carrying concealed weapons. The second 
said they carried the weapons "with intent unlawfully and 
maliciously to do injury" to some person unknown to the In- 
quest. The indictments said nothing more. 

9 



10 Witness Number Eight 

The newspapers manifested little interest in the matter. 
The published accounts show that the story received small 
space and the reporting was singularly inadequate. Our news- 
papers are not noted for their indifference to adultery, yet no 
Pittsburgh paper seems to have inquired whether Louise Trail 
was Miss or Mrs. or whether Nicodemus was married. No 
published account of the arrest contains any fact explaining 
the second indictment, that is, why the police believed that 
the weapons they carried were designed to do injury to some 
one rather than designed to enable them to stage a holdup, 
for instance. For that matter, there is no clue to the arrest 
itself; nothing indicates that attention was drawn to them 
by unusual conduct, an altercation or an accident. The papers 
seem to have been satisfied with a story all loose ends! 

Available accounts do show these facts: 1. that in the course 
of routine procedure, Nicodemus and Miss or Mrs. Trail were 
photographed and questioned. 2. that the Trail woman said 
she was carrying a pistol because she was often out late at 
night. 3. that Nicodemus at first declined to comment but, 
on second thought, said he was a trade union (C.I.O.) or- 
ganizer who had been "fighting the Communists/' 4. that both 
were released after posting bail. 

There is no further public record of this case until late 
May. On May 21, 1948, Pittsburgh papers recorded that Nico- 
demus and Louise Trail had been tried the preceding day. 
The brief account said they were "held not guilty but or- 
dered to pay costs," an unusual combination which the papers 
do not explain. The five-paragraph news story indicates pretty 
clearly that the two were let off not because of any doubt 
about their guilt, but because Nicodemus was considered use- 
ful as an anti-Communist. The first paragraph sums up the 
idea thus: 

"The claim by Charles Nicodemus, 36, of Cumberland, 
Md., that he carried a pistol because of threats from Com- 
munists won his acquittal late yesterday." 

An anti-Communist is above the law. Nicodemus did not 



The Pittsburgh Incident 11 

and could not deny the charges, but as an anti-Communist 
he was excused from paying die full penalty for an acknowl- 
edged crime. There is more to this, however, than mere 
general sympathy of a magistrate for a professed anti-Com- 
munist. Right now anti-Communists are a dime a dozen. 
They do not receive rewards or exemptions for their mental 
attitudes alone. They must give something for something. 
The news story goes on to explain what Nicodemus had to 
offer in the police bazaar where he bargained for his liberty. 
He "had cooperated with the FBI," detectives told the po- 
lice magistrate, "while making investigations of 'Red* infiltra- 
tions in the plant" where he was employed (in Cumberland). 
In sum, the guilty couple escaped because the Federal Bu- 
reau of Investigation interceded for Nicodemus. 

The case ends thus with Nicodemus under pressing obli- 
gation to the FBI for his freedom and eleven months pass. 
On Tuesday, April 19, 1949 at 4:10 p.m., a witness steps down 
from the stand in Room 110 of the Federal Courthouse at 
Foley Square in New York City. Though there are but twenty 
minutes left of the Court day, the next witness is called. He 
is a man wearing glasses so thick as to give him a sinister, Dr. 
Caligari-like air. Though we have never seen him in glasses, 
we easily recognize this solidly-built man with the thick crop 
of black hair as the same man shown in two photographs- 
front and profile in the files of the Pittsburgh police over 
the "rogue's gallery" identification tag "53417, January 10, 
1948." He is, of course, our old acquaintance, Charles W. 
Nicodemus. 

Nicodemus is the eighth witness to mount the stand for 
the prosecution in the trial of eleven principal leaders of the 
Communist Party of the United States. They are charged with 
conspiring to "teach and advocate the duty and necessity of 
overthrowing and destroying the Government of the United 
States by force and violence." The reader will pardon me if 
I postpone further discussion of the origins of the trial or of 
the witnesses preceding Nicodemus. It is a question of pur- 



12 Witness Number Eight 

pose: it is not my purpose to provide an index to the massive 
trial record with its tens of thousands of pages and millions 
of words of testimony and argument. I propose rather to 
keep myself and the reader from drowning in this sea of 
evidence by steadfastly clinging to the meaning of the trial. 
It is my belief that we will make more progress by following 
the path of one witness, than by pursuing a simple chrono- 
logical record of the case. Let us, therefore, stick stubbornly 
to Charles W. Nicodemus for the time being. 

Having sworn to tell the truth, the whole truth and noth- 
ing but the truth so help him God, Nicodemus testified for 
the remainder of the day. At the next court session, Friday, 
April 22> he resumed his testimony and later that day was 
turned over to the defense for cross-examination followed 
by re-direct examination. This consumed almost the entire 
day before he was dismissed, bringing his total time on the 
stand to one full day. 

In the course of direct examination by Assistant United 
States Attorney Frank H. Gordon, Nicodemus testified that 
he had been a member of the Communist Party and had been 
especially active in the party from mid- 1944 to January 1946. 
He was invited and permitted to relate alleged incidents that 
made sensational newspaper copy. There was one story of 
how, in 1945, when the work of the plant included war re- 
search, the Cumberland organizer of the Communist Party 
"ordered" members working in the Amcelle plant to make 
a detailed map of the plant showing entrances, exits and so 
on. Nicodemus did not claim he ever saw anyone making such 
a map or ever saw anyone giving the organizer such a map. 
Why shouldn't an organizer who has the power to give "or- 
ders" to party members, have the power to demand compli- 
ance or at least demand an explanation of non-compliance? 
(If, indeed, Communists give and take such orders, which is 
the impression this testimony is designed to convey.) Nico- 
demus was never asked about the map and never heard any- 
one else talk about it. 



The Pittsburgh Incident 13 

This testimony, moreover, casts dark suspicion on the Com- 
munist Party in general, but does not even purport to incrimi- 
nate any defendant. Judge Medina admitted it into evidence 
on the ground that he "supposed" the prosecution would later 
show a "connection" with the defendants. Later, no connec- 
tion having been shown, he ordered the story stricken from 
the record. With a straight face, he then instructed the jury 
to wipe the story from its collective mind. How a juror erases 
prejudice from his mind at the command of a judge, no 
lawyer has ever been able to explain to a layman. And aside 
from the jury, there is the public. It was Tuesday, April 19, 
when Nicodemus told the map tale. It was Friday, April 22, 
that the Court struck it out. And before he did so, the witness 
had already begun to relate a second lurid story of plotting 
and sabotage so that the jury could hardly have noticed the 
"elimination" of the first story. The newspapers certainly 
didn't notice it! 

( Four months and ten thousand pages later, when defense 
lawyers introduced a rebuttal witness, Judge Medina would 
not permit them to ask the witness if he was ever asked to 
draw a map. The Judge correctly pointed out that he had 
stricken the map testimony from the record. But he put it this 
way: "I thought it was not properly connected and / struck 
it out at once"!) 

The new and better story remained in the record and thus 
constituted Nicodemus' only contribution to the case. Just 
before Christmas, 1945, he said, Al Lannon, a Communist 
leader but not one of the defendants, attended a Communist 
meeting in Cumberland. Asked how a revolution to establish 
Socialism could hope to be successful in the United States, 
Lannon replied, according to Nicodemus, that the Red Army 
would intervene. He was very specific about it: the Red Army 
would strike via Alaska and Canada, destroying Detroit. He 
was not talking about bombing, but about mass invasion, 
Nicodemus swore. But let the record speak for itself on this 
major testimony of a minor witness. 



14 Witness Number Eight 

(From the record) 

NICODEMUS: It was pointed out that a revolution wouldn't 
be successful in the country without the help of the Red Army, 
and until the Soviet Union had consolidated its position in 
Europe that the hope of that couldn't be held very high. 

GORDON: All right, did you say anything? 

NICODEMUS: Yes, I did. I had a question in my mind and 
I asked Lannon how the Soviet Union could possibly ever 
invade the United States without a navy and Lannon pointed 
out to me as had been pointed out before that the Red Army 
in Siberia numbered some hundreds of thousands and was 
a strong force and that the Russians were constantly building 
it up and they had a good air force, they were building air 
strips, whenever the time come with air support the Russians 
could invade Alaska down through Canada and they could 
even destroy Detroit. 

DEFENSE COUNSEL RICHARD GLADSTEIN: What was that? 

JUDGE HAROLD R. MEDINA: They could even destroy De- 
troit, as I understood it. Did you say that? 

NICODEMUS: That is what I said. 

MEDINA: Why all of the defendants are smiling broadly. 

DEFENDANT JOHN GATES: Why certainly we are. 

DEFENDANT IRVING POTASH: Certainly we are. 

MEDINA: We are getting back to that country club atmos- 
phere again. Well, there isn't going to be any country club 
atmosphere in my court. 

GLADSTEIN: When a man hears something that is ludicrous 
and absurd to the extreme I suppose he is permitted the 
human reaction of a smile of contempt. 

MEDINA: That to me is the same line as some of the com- 
ments we have had in the past. It may seem very funny to the 
defendants. They seem to enjoy it, but I don't think it is, and 
their laughing is not going to have any effect. 

GLADSTEIN: This is the Federal Court. I had expected a 
serious and sober effort on the part of the government, if it 
could, to prove the charges that have been made that a 



The Pittsburgh Incident 15 

political doctrine advocates the overthrow of the United 
States. But instead of that we are being treated to one after 
another of these witnesses, persons giving the same type of 
story we have heard from Congressman Rankin and J. Parnell 
Thomas. 

e 

You and I, in the calm of our homes, might find equal 
reason within Nicodemus' story, to dismiss it as nonsense. 
Two or three points capable of influencing even a steady 
reader of the Hearst press, rise to the very surface. First, it 
is generally understood by informed people even informed 
anti-Communists that Communist leadership is adult. The 
many documents introduced into evidence by the prosecution 
at Foley Square, show a group of men who study history, 
economics, and world affairs intensively; they draw up pro- 
grams and plans on the basis of detailed even tedious analy- 
sis and discussion. How then can they be capable of the 
strategic idiocy Nicodemus describes? 

Observe that Nicodemus or whoever wrote his lines for 
him is not indifferent to strategic questions: he takes note 
at the start that the Soviet Union has no navy for an invasion. 
Now if we are going to discuss strategy, we should note that 
no American military man of any responsibility believes that 
the Red Army can march to Detroit via Alaska or Canada, 
or carry out an airborne invasion of the United States in force. 
A Reuters dispatch from Fort Churchill, in Canada's Far 
North, to the New York Times of May 10, 1949, sums up the 
general American-British-Canadian understanding of the lim- 
ited nature of Arctic military action. 

"On the strategic side/' it says, "the conviction is now fully 
established that large-scale warfare in the Canadian Arctic 
is an impossibility. . . . The military planners appear to have 
abandoned any thought of a full-scale invasion of North 
America across the Polar Region. On the basis of experience 
at Fort Churchill and elsewhere, they just do not think it 
could be done." 



16 Witness Number Eight 

It must be remembered that the Russians have had much 
more experience of the Arctic than we have and have long 
known the limitations more recently verified by the United 
States. At any rate, no serious military student thinks the 
Red Army thinks it can stage a trans-Arctic invasion. Why 
then should anyone believe American Communists think so? 
Two of the defendants, for example, have fought in two wars 
-Spain and World War II. Both John Gates and Robert 
Thompson, at the age of twenty attained the rank of battalion 
commander in Spain; Gates was a parachutist in War II and 
Thompson, decorated for bravery in New Guinea, was rec- 
ommended for the commission of captain. Others of the 
defendants are veterans of War II. There is no reason they 
should be considered capable of believing in the invasion 
that other soldiers reject. 

Still, let us suppose this impossible invasion to be possible. 
Let us suppose the men in the Kremlin believe the Red Army 
can invade America; suppose, further, that they plan such 
an invasion. What follows? It follows that no one in the 
world but the men in the Kremlin would know it. The ability 
of Soviet leaders to keep a secret is pretty well established. 
Yet Nicodemus would have us believe that they shared this 
secret with several score leaders (Lannon was a member of 
a leading committee with, at various times, fifty to a hundred 
or more members) of the American Communist Party. And 
the thing doesn't end there. The leaders of this party, which 
is pictured by the prosecution and by this very witness as 
conspiratorial to a Hollywood extreme, are now said to have 
relayed this same top-secret military plan to every rank-and- 
file Communist in the United States. Not in code, mind you, 
but in casual direct reply to a casual direct question! And 
these rank-and-file Communists, veterans of lifelong indus- 
trial warfare, many of them veterans of World War II and 
even War I, are supposed to be such simpletons as to swallow 
this! Is it any wonder the defendants burst into laughter? 



Chapter 2 
THE WOMAN IN THE CASE 



The laughter of the defendants was distinctly not music 
to the ears of Judge Harold R. Medina. He complained of 
the "country club atmosphere" but it was not really the dig- 
nity of his courtroom that he wished to maintain. By various 
comments he let it be understood that he did not want the 
jurors to see the defendants as ordinary human beings who 
laugh and, perhaps, on occasion even weep. That would 
endanger something other than his judicial dignity, namely, 
the horned-devil concept of Communism on which this trial 
depended. On one occasion, when defense counsel provoked 
laughter, Medina remarked with unconcealed bitterness: 

"It would be just wonderful for the defense if we could 
get everybody laughing and giggling here and forget the 
seriousness of the charges that these men stand indicted for." 

Well, we can agree with the learned Judge that Nico- 
demus' testimony, though nonsensical, is no laughing matter. 
We have weighed the words of the witness in the quiet of 
our homes, but a certain jury, hearing the same words in the 
unquiet of a certain courtroom, will not so readily dismiss it 
for the fable it is. How can they? Have they not been reading 
the headlines everyone else reads? And in the headlines, as 
in the reports of the House Un-American Activities Committee 
and the ukases of the Attorney General of the United States, 
the Communists have been repeatedly "convicted" before 
they set foot in court. In fact, they have been convicted of 
crimes far more serious than any they are charged with here! 

17 



18 Witness Number Eight 

No less a person than the President of the United States pub- 
licly referred to them as "traitors/' Not long before the case 
was scheduled to go to the jury, Attorney General Tom Clark 
(then already confirmed by the Senate for appointment to the 
Supreme Court) boasted in a magazine article that the trial 
was part of the Department of Justice's "successful" drive 
against "avowed enemies of the country." And before the 
trial began, the defendants had been charged repeatedly, in 
open hearings where they had no opportunity to testify or to 
cross-examine the witnesses, with the crime of espionage. 
In such an atmosphere, even the testimony of a Nicodemus 
will not fall of its own weight. In anti-Communist trials any- 
thing goes; any stick to beat a dog. 

The defense must, therefore, be conducted just as though 
Nicodemus' testimony were serious evidence. A serious at- 
tempt must be made to refute it. How? An obvious approach 
is to attack what the lawyers call the "credibility" of the wit- 
ness, by exposing his relations with the FBI. In non-legal 
terms, the point is to show how the circumstances indicate 
that Nicodemus was likely to have been influenced by the 
FBI to give the testimony desired by the FBI rather than to 
describe events as the witness had actually experienced them. 

Two newspaper clippings that tell conflicting stories give 
us a starting point. The previously quoted Pittsburgh news 
account suggested that Nicodemus had been cooperating with 
the FBI before his arrest. But while Nicodemus was still on 
the witness stand at Foley Square, a Cumberland newspaper, 
reporting his testimony, added a meaningful background fact 
it had gathered locally. The paper's story said: 

"It was learned here today from reliable sources that 
Nicodemus had been working with the government since an 
incident in Pittsburgh." (Cumberland Evening Times, April 
20, 1949.) 

This is a significant difference. If Nicodemus did no favors 
for the FBI before his arrest, his release was no reward for 
past services. For what then? Why not in return for the 



The Woman in the Case 19 

promise to render some future service to the FBI or the De- 
partment of Justice (to which the FBI is attached)? You will 
see that this question might have decisive importance for a 
juror who must decide whether or not to believe the testimony 
of Charles Nicodemus. 

Now suppose you were of counsel for the defense. You 
would wish to explore this question for the benefit of the 
jury. To that end, you would wish to put in evidence every 
fact that would suggest, to an American of ordinary ac- 
quaintance with the facts of American life, a "deal" between 
Nicodemus and the FBI. You would have to bring that evi- 
dence in, largely by way of cross-examination. And in order 
to be able to cross-examine Nicodemus, you would want to 
be fully briefed on his past. That would mean talking to 
everyone who knew Nicodemus in his home life, at work, in 
his trade union and at play. It would mean going to Cumber- 
land, Maryland, where Charles Nicodemus lives with his 
second wife, the former Louise Trail. 

Everything in Cumberland this will be the first thing we 
learn turns on the giant Amcelle plant of the Celanese Cor- 
poration of America. Even the incidents related by Nicodemus 
at the trial revolve about the low-lying buildings occupying 
forty-odd acres of the nearly eight hundred acres fenced in 
by Celanese. To understand the life and testimony of Charles 
Nicodemus, we must feel the power of the great corporation 
as Nicodemus felt it in August 1933 when he first went to 
work there. At that time there was no union at Amcelle, and 
Nicodemus learned, the hard way, what it means for each 
worker to make his own "wage bargain" with a giant cor- 
poration. 

Celanese is a little too much of an opponent for one 
worker. A typical Wall Street corporation, it has spread over 
the entire continent since Christmas Day, 1924, when the 
Cumberland plant produced its first cellulose thread for mak- 
ing rayon. Celanese now produces its own chemicals near 
Bishop, Texas, and carries rayon-making from acetic acid to 



20 Witness Number Eight 

finished cloth in a dozen or more plants of its own in the 
United States plus two in Mexico and two in Canada, aided 
by three research laboratories. The 1,000 employes of Cela- 
nese's first year grew to 23,000 in 1949 and the size of its 
business is indicated by the 1948 sales total of over $230,- 
000,000. Its New York headquarters are not in Wall Street 
but in 1945 the J. P. Morgan investment affiliate and the firm 
of Dillon, Read and Company (which are definitely Wall 
Street) marketed a $40,000,000 stock issue for Celanese and 
recently $20,000,000 worth of bonds were sold in Canada 
to finance the building of a pulp plant there. The war helped 
fatten Celanese to Wall Street size: profits of the war years 
averaged over $7,000,000 a year. But the loot of the shooting 
war was as nothing to the booty of the cold war: in 1946 
profits more than doubled the best war year! In two more 
years, the 1946 profit of over $16,000,000 had more than 
doubled again to $39,484,000-more than five times the peak 
war-year! 

Of course our American mythology forbids us to say that 
this represents exploitation. Profits are supposed to be a ther- 
mometer of national health. Yet even if great profits garnered 
by a few industrial and financial giants somehow seeped 
down through the whole social structure, that wouldn't alter 
the basic problem of the industrial worker. The individual 
company's day-to-day struggle for profits spoils the individ- 
ual worker's day-to-day life. It makes it did as a matter of 
fact makeCharles Nicodemus the bitter enemy of Amcelle. 

Take a simple instance. Sunday work was abolished ten 
years ago in the not-far-distant Meadeville plant of the Ameri- 
can Viscose Corporation, itself no small concern. But there 
is still no Sabbath at Amcelle. In a recent strike where Sunday 
work was an issue, a strike bulletin put it this way: why 
should Celanese stop Sunday work when "it doesn't cost them 
any extra to disrupt your family and community life?" 

More serious is the fact that the great plant, largest of 
Celanese properties, is operated with the objective of giving 



The Woman in the Case 21 

management the greatest flexibility in maintaining low costs 
and high profits. This happens to entail laying off 3,000 
workers on six holidays a year, including Christmas, without 
pay. The workers say: "Just when you need more pay, you 
get less!" It also entails total disregard for the continuity of 
the job on which all these workers depend for their very 
lives. As a company booklet informs the employes: business 
conditions or shortage of materials may necessitate "fur- 
loughs" at any time. (So many were the furloughs at the 
very time of the trial that the county sent out an S.O.S. for 
State and Federal aid!) 

It won't be necessary to explain that Nicodemus and 
other Amcelle workers longed for a union. When the New 
Deal established a favorable climate, they set up a unit- 
Local 1874-of the CIO Textile Workers of America. Then 
they had to fight for recognition. The law said they had the 
right to organize, but they soon discovered that law or no 
law, the company was employing spies, "spotters," to weed 
out the active union fighters before they could get organized. 
The company also set up a company or fake union in oppo- 
sition to the workers' own organization. Not until they went 
on strike in November 1936, under the guidance of men who 
did not rely on legal guarantees but showed them how to 
fight for their rights, did the workers force the company to 
bargain with them collectively through Local 1874. 

The victory, and the changed conditions it brought, gave 
the union organizers great prestige. Nicodemus says those 
leaders he named Arthur Schusterman and Boyd Coleman 
specifically are Communists. He so testified at the trial of 
the eleven Communist leaders. In that case, the prestige of 
the common victory would have attached to the Communist 
Party and its leaders. That would explain why Nicodemus 
wanted to join the party. 

Shortly after the strike, he swore on the witness stand, 
Schusterman asked him if he would like to become a member 
of the Communist Party and he replied that he would. By 



22 Witness Number Eight 

February or March 1937, he was an active member and con- 
tinued to be active until "around 1940." Some time in the 
spring of 1944, he declares he again became active and con- 
tinued in the party until January 1946. 

From the time Nicodemus joined the Communist Party 
of Cumberland until he left and afterward, too, no doubt- 
he found the energies of the organization necessarily devoted 
largely to battles on the Amcelle front. There were Celanese 
strikes in 1939, 1940 and again in 1947, and incessant griev- 
ance engagements between strikes. The writing and distribu- 
tion of leaflets; the day-to-day grievance procedures; the 
organization of picket lines and the constant fight to main- 
tain them against police and court interference (so readily 
exerted at the request of big corporations); the building of 
strike-funds and the provision of relief for the children and 
wives of strikers; all the tedious routine that goes into the 
daily skirmishes in the endless war between owner and 
worker, between capital and labor, was the concern of the 
Communist group Nicodemus joined. 

These local activities were supplemented by discussions, 
study, much emphasis on the necessity to master "theory." 
Such discussions tended to turn, at that time, on the distant 
battles in Spain as the center of the complex of world affairs. 
Nor were the discussions mere talk; they entailed activities 
fund-raising for Spain, for instance. Perhaps the Cumber- 
land Communists even provided a volunteer or two for the 
Abraham Lincoln Brigade that helped defend Madrid! 

When Nicodemus testified later at the Communist trial, 
he was unable to remember any of this. As a newspaperman 
in Spain, I saw four to five thousand Americans, largely 
Communist Party members including the defendants Gates 
and Thompson, fighting in the ranks of the International 
Brigades. But Nicodemus does not remember Spain. Ordi- 
nary Amcelle workers saw known Communists fighting for 
them at Amcelle and acknowledged these services by electing 
to union office, year after year, die men Nicodemus identified 



The Woman in the Case 23 

as Communists. Schusterman was president of the union in 
1938 and held other offices in the Local; Coleman was presi- 
dent in 1946 and 1947. But Nicodemus cannot remember. 

The life of Cumberland Communists, in the testimony of 
Nicodemus, is all of a piece with his story of the "invasion." 
The humdrum daily work finds no echo in it. It is all sensa- 
tion, all melodrama about the Communist Party in Cumber- 
land and, by inference, the Communist Party in general. Only 
thus, only obliquely, does it strike at the defendants them- 
selves. 

I have checked the testimony of Charles W. Nicodemus, 
word for word, against the recollections of many of his fellow- 
workers and neighbors and even relatives. What they have to 
say does more than contradict his testimony: it explains it. 
It fills in the gaps we had occasion to note earlier in the news- 
paper accounts of the "Pittsburgh incident." And as the story 
of Nicodemus' private and political life emerges, we see that 
his stories of Communist violence fit the pattern of his own 
life better than that of the organization he now hates. 

From the time he says he joined the Communist Party 
until the day he was expelled, Nicodemus was the subject of 
much criticism and complaint. The general character of the 
criticism was that he was a man of undisciplined violence. 
It was said that his lone-wolf, tough-guy attitude tended to 
endanger the party and discredit the union. He liked to show 
visitors a knife, saying it was "just the thing to knock off those 
capitalist stooges." In 1938, at the Maryland-District of Colum- 
bia Industrial Union Council Convention, held in the State 
Armory at Cumberland, he brought an arms catalog with him. 
He had a trick of pulling out the catalog during the speeches 
and pointing out to his neighbors the price of certain machine- 
guns, by way of saying that a machine-gun should be used 
instead of all that talk. In 1939, he was bitterly opposed to 
settling the Celanese strike on the terms accepted and favored 
by the union and party. During the war he never reconciled 
himself to the no-strike pledge. Publicly he denounced it as a 



24 Witness Number Eight 

fraud on the workers and privately he gave leadership to an 
underground movement against it. Some workers say mem- 
bers of the Nicodemus group damaged machinery in protest 
against "speedup." His mood is indicated by his own testi- 
mony that during this period he was "inactive" in the Com- 
munist Party which firmly upheld the no-strike pledge. 

On his return to the party, he took no part in the fight to 
force the company, for the first time, to hire Negroes. The 
company's "patriotic" interest in high war production did not 
go so far as to induce it to fill up the gaps in its force by 
voluntary hiring of Negroes. It opposed this step and so did 
Nicodemus. 

Women workers were just as little to Nicodemus' liking. 
Non-Communist women in the plant came to known Com- 
munists to ask help. They said Nicodemus had organized a 
group in his department the "downtrist" to terrorize 
women workers by "accidentally" dropping crates on them. 
Filthy signs and lewd pictures were posted, they said. Called 
to account, Nicodemus maintained his position against both 
Communist Party leadership and trade union leadership. 
What that position was is interesting as showing the real 
content of a worker's life Communist or non-Communist 
as opposed to the melodramatic sketch furnished by Nico- 
demus. 

Before 1937, the twisting operation that is part of the 
making of rayon yarn, was done on a machine called the "up- 
twist," apparently because the yarn travelled from the bottom 
of the machine to the top in the course of the operation. In 
1937, an improved machine was tried; whatever its other 
characteristics, it reversed the course of the yarn and was 
therefore called "downtwist." This was the origin of the 
downtwist department. 

Whenever a change of any kind takes place, union men 
know they have to watch out lest the company take advan- 
tage of the chance to divide the workers. That happened in 
this case. Men were transferred from uptwist to downtwist 



The Woman in the Case 25 

as the new machines gradually replaced the old and the up- 
twist department became smaller and smaller; women were 
dropped it. It was argued that women couldn't lift the fifteen 
or sixteen pounds of yarn to the top of the machine. This was 
an appeal to the selfishness of the male workers, an invitation 
to them to fight for job security at the expense of the women. 
Later, under war conditions, not enough men being available, 
some women were drawn from the vanishing uptwist depart- 
ment to the downtwist, and the weight of the yarn proved 
no problem to them. Nevertheless, some of the "boys," as 
male hands in the department were called, under Nicodemus' 
leadership, set a date beyond which any woman coming from 
uptwist to downtwist would start without seniority, that is, 
as a new employe, though she might have worked side by side 
with the same men now in downtwist, for ten or fifteen years 
in the old department. In a layoff, she would thus be the first 
dropped. 

A meeting was called. Nicodemus testified it was a party 
meeting; Schusterman and Coleman later testified it was an 
informal group of union leaders. According to testimony of all 
three, Coleman and Schusterman ripped into Nicodemus for 
this selfish, shortsighted stand which could split the union, 
make all the women of the community hostile to the union, 
and play into the company's hands. Nicodemus walked out on 
the meeting. At this point he was in bad with the men who 
had built the union and on the verge of expulsion from the 
Communist Party for violation of basic principles of conduct 
toward women workers and Negroes. 

Nicodemus' private life was no better than his political 
life. His conduct toward his mother and toward his then wife, 
Irma, was a scandal to the neighbors. Irma was subject to a 
major chronic infirmity; during dangerous attacks of her 
illness, Nicodemus would walk out of the house, abandoning 
her. His own mother feared him and feared for him. She told 
friends about a gun and knife in his car and asked them to 
persuade him to discard the weapons. There were sugges- 



26 Witness Number Eight 

tions in 1944 that Nicodemus needed weapons because he 
was making outside money in connection with an illicit en- 
terprise, but in reality there was a more serious reason for 
his fear: Nicodemus was afraid of the return of a soldier 
with whose wife he had begun an unsavory affair. 

The soldier was, of course, the husband of Louise Trail. 
When Irma and Louise were fired by Celanese after they had 
a fight in the Amcelle plant, the matter could hardly remain 
a secret. His sordid romance, and the fear of retribution, be- 
came the dominant elements of Nicodemus' life. Had he 
encountered the wronged husband in the street by some 
mischance, Nicodemus might have killed him out of fear and 
guilt. And his state of nerves aflFected his relations with 
everyone about him. 

As might be expected, he quarreled even more bitterly 
with his comrades. The parting of the ways came on the 
question of jobs for Negroes. With V-E Day, "furloughs" be- 
came more frequent and the newest workers, according to 
union "seniority" principles, would go first. But now the Com- 
munists said and this appears in Nicodemus' testimony 
that there is a higher principle than seniority: the right of 
Negroes to keep the jobs denied them by discrimination 
until wartime. Nicodemus refused to support this policy; 
he fought it openly and viciously. During a union meeting 
later, he screamed that "no black bastard" would work in his 
department. Summoned to a disciplinary showdown at the 
home of some comrade, he says, he refused to go and there- 
after never attended a Communist meeting. 

The man who has wronged another must hate his victim. 
Nicodemus sought revenge on the Communists. In the flame 
of the cold war he found his opportunity: he became an 
active anti-Communist. By naming and denouncing Commu- 
nists in a region and under conditions that amounted to 
"putting the finger" on them, he assisted a company-favored 
anti-Communist grouping to capture control of the union. 
In the process, the builders of the union were ousted from 



The Woman in the Case 27 

office, though Schusterman, long an officer of the union, con- 
tinued to be elected chairman of his department the finished 
fabrics examination department without opposition. Nico- 
demus fared better; he was rewarded with the post of auditor 
in the Local and made subchairman of his department. Some- 
thing less than thirty pieces of silver, but a reward of the 
same kind. 

Louise Trail's husband was home from the war, however, 
so Nicodemus and Louise now lived a guilty, furtive life 
despite his new "honors." They went armed like hunted 
things. That is why, when they made their trip to Pittsburgh 
in January 1948, she had a pistol in her purse and he had a 
Luger in his suitcase. And now at last we know that the 
"unknown" person threatened (according to the second in- 
dictment) with bodily harm, was the betrayed husbandl 

This will help us to understand why Judge Medina moved 
heaven and earth later, to keep the name of Louise Trail out 
of the record. When Arthur Schusterman testified for the 
defense on August 30, he was not permitted to answer ques- 
tions about her. Boyd Coleman followed Schusterman to the 
stand, and when asked who was present at a January 1946 
meeting the one Nicodemus described as the last Communist 
meeting he attended Coleman named Schusterman, Nico- 
demus and "Nicodemus' girl friend, Louise Trail" 

(From the record) 

McGoHEY: I object to the characterization, your Honor. 

MEDINA: I don't know what I am going to do with these 
people, I swear. What on earth possessed you to bring that 
in, will you tell me? 

COLEMAN: The question was who was there, your Honor. 

MEDINA: Did some one of these lawyers tell you to put 
that in? 

COLEMAN: No, they did not, sir. 

MEDINA: Well, I will strike it out. This description of that 
woman as Nicodemus' girl friend was absolutely a gratuitous 



28 Witness Number Eight 

thing brought in by the witness without any occasion at all. 
I won't have that sort of thing. 

* * 

The lawyers protested the inference and Medina replied: 
"It is ... only a few moments ago that I sustained objec- 
tions about that woman that has just been named, and I won't 
have my ruling circumvented in that way." Later, still furious, 
he referred again to "characterization" by the witness and 
said if he "keeps doing it he may be sorry." The jury never 
did find out the real role of Louise Trail in this case. 

Nicodemus' attempt to explain his gun to the Cumber- 
land newspapers a few days after his arrest is rather sad. He 
said he "had expected trouble" with the Communists during 
the last negotiations with Celanese, had acquired a gun at 
that time, and simply forgot he had it. We need not waste 
time with this explanation. We know what we need to know: 
tangled in the web of his own crimes and immoralities, his 
personal and political indecencies, Charles Nicodemus had 
lost his freedom. He had become a prisoner of the FBI. He 
wishes us to believe his testimony is his own. "I am a volun- 
tary informer," he argues, in effect. But volunteer or no, he 
was in no position to argue with the FBI. He was in no posi- 
tion to decide what he would or would not put in the state- 
ments he gave the FBI. 

This, it is easy to understand, is what the defense must 
get across to the jury. It must help the average juror, the aver- 
age American with his characteristic prejudices and illusions, 
to grasp the meaning of the facts we have presented about this 
one witness. Fair play demands an answer to the question: 
is Charles Nicodemus telling his own story or one dictated to 
him by the FBI? In the courtroom at Foley Square, the de- 
fense will try to get that answer. But it will try in vain. For, 
as we shall see, the Court will not even permit it to ask the 
question! Yet that, too, is an answer! 



Chapter 3 
FOLEY SQUARE 



It is late in the morning of April 22, 1949. Attorney Harry 
Sacher is cross-examining prosecution witness Charles W. 
Nicodemus. The questions for some time have been directed 
toward Nicodemus' attitude with respect to Negro workers. 
This is the issue, Nicodemus concedes, on which he was 
expelled from the Communist Party. The proceedings begin 
to drag as Assistant Prosecutor Gordon objects to each ques- 
tion and his objections are monotonously sustained by Judge 
Medina. Without warning, Sacher abandons this matter and 
plunges into the "Pittsburgh incident" and its FBI sequel. 

(From the record) 

SACHER: Did you at any time have any conversation with 
an agent of the FBI in regard to the matters which you have 
testified to here today? 

NICODEMUS: Yes, I have. 

SACHER: When for the first time did you have such a con- 
versation? 

NICODEMUS: The first time was in about January January 
of forty let's see when was it. I want to get that clear. 1947 
in January. About 1947 somewhere in January. 



Now this sounds like an honest attempt to be as precise 
as the witness* memory will permit him to be. But the year 
is crucial. Was it 1947-before the Pittsburgh incident? Sacher 

29 



30 Witness Number Eight 

naturally pursued the matter further, definitely without en- 
couragement from the Court. 

(From the record) 

SACHER: But do you know in what year it was? 

NICODEMUS: Yes. 

MEDINA: He said 1947. 

SACHER: Are you sure it was 1947? 

NICODEMUS: I beg your pardon, it is 1948. 

SACHER: Yeah! ... In what city did you talk to the FBI 
man? 

NICODEMUS: In Cumberland. 

SACHER: How far is Pittsburgh from Cumberland? 

NICODEMUS: Around 160 miles I imagine. 

SACHER: Do you remember making a trip to Pittsburgh in 
January 1948? 

NICODEMUS: Yes. 

SACHER: Did your conversation with this FBI man occur 
before you went to Pittsburgh or after you went to Pittsburgh? 

NICODEMUS: With the FBI man, it occurred after. 

SACHER: Yes. As a matter of fact, before you saw the FBI 
man you had pleaded guilty to an indictment in Pittsburgh 
for carrying concealed weapons, had you not? 

GORDON: First we will let the witness answer and then 
I would like to make a statement on this subject. 

MEDINA: Well, I think it is perfectly permissible to show 
a conviction of crime, if such be the fact. I will hear his testi- 
mony. Did you plead guilty to such a charge? 

NICODEMUS: I did plead guilty. 

SACHER: Did you also plead guilty to an indictment accus- 
ing you of carrying a revolver, an automatic pistol and other 
deadly weapons concealed on your person with intent there- 
with unlawfully and maliciously to do injury to another 
person? 

NICODEMUS: I did not. 

SACHER: I show you what purports to be a certified copy 



Foley Square 31 

of the indictment charging you with carrying a revolver, an 
automatic pistol on your person with intent unlawfully and 
maliciously to do injury to another person, and show you the 
reverse side of the indictment, and ask you whether this is 
a photostatic copy of a plea of guilty signed by you on May 
20, 1948? 

MEDINA: Is this the record of the judgment? 

SACHER: Yes, your Honor, it is. It is a photostat certified 
by the court. 

000 

Sacher pointed out the guilty plea on the paper and asked 
the witness to read it, but Nicodemus said he couldn't make 
it out. The prosecution, backed by the Court, rushed to his 
aid to save the witness from acknowledging a fact obviously 
well known to him: that he had pleaded guilty to both in- 
dictments. This fact appeared on the court documents offered 
in both cases by the defense; so also did the fact that on May 
20 he was permitted to withdraw his plea to both charges, 
was acquitted in both cases, was sentenced to pay costs in 
both cases. All of these facts, in their proper order, were es- 
sential to the defense objective, namely, to show that Nico- 
demus had been rescued from prison by the FBI in return 
for commitments to the FBI. But prosecution objections in- 
terrupted this presentation and the Court deliberately gave 
the jury to understand that the defense was trying to conceal 
the fact of acquittal. An unmistakable team-play by Judge 
and Prosecutor takes the edge off the cross-examination as the 
record continues: 

(From the record) 

MEDINA (to witness): . . . you say you pleaded guilty to 
that one? 

GORDON (heading off witness): No, your Honor, he said 
he pleaded guilty to illegal possession, and that is all he re- 
members. 



32 Witness Number Eight 

Medina tried again, and again Gordon prevented the 
witness from speaking. 

(From the record) 

GORDON: Maybe somebody stuck it in front of him and he 
signed it, but he says he pleaded guilty to illegal possession. 

SACHER: Maybe there were two other guys there. 

* * 

Having succeeded, at length, in getting the witness to 
identify his signature on the document in question, Sacher 
offered it in evidence. Before it was accepted by the Court, 
Gordon called the Court's attention to "an endorsement on 
here-" 

(From the record) 

SACHER: Just a moment. 

GORDON ( going right on ) : and now 

SACHER: I object. 

GORDON: the plea is allowed to be withdrawn and a find- 
ing of not guilty is entered 

SACHER (protesting): Now, if it please the Court 

MEDINA ( ignoring Sacher ) : I didn't see that at all. 

SACHER: If it please the Court, there is signed there a plea 
of guilty by this witness, and that is why I want to offer in 
evidence 

MEDINA: You offered the whole paper. Do you object to it? 

SACHER: ... I asked him only whether his signature ap- 
peared under the plea of guilty, and that is what I am offer- 
ing in evidence. 

MEDINA: I can tell you right now that if in part of it he 
said he pleaded guilty and then the other part he says he 
withdrew the plea and he was adjudged not guilty, it is all 

going in. 

* o 

When Sacher offered no objection to introduction of the 
whole document, Gordon nevertheless prolonged the argu- 
ment in the presence of the jury. 



Foley Square 3& 

(From the record) 

GORDON: I object to his having brought the subject up in 
the first place. ... As I understand the law, if a man has been 
convicted of a crime, you may show that as bearing upon 
his credibility 

MEDINA: Yes, and I understood this was the judgment of 
a conviction. 

GORDON (continuing): but if some subsequent action 
of the Court wipes that out, then it has always been my 
understanding of the law that that is not admissible; and to 
bring up the first part without the second part leaves me in 
a position where I can do nothing but say, we must now have 
the whole thing in. 

MEDINA: All right. 

GLADSTEIN: May I say something, in view of the statement 
Mr. Gordon made? 

GORDON: Mr. Gladstein has no part of this, your Honor. 

GLADSTEIN: Well, I have. 

MEDINA: Mr. Gordon, you know, you get so excited. If you 
would only be calm, we could sit here and hear all this out. 
Go ahead, Mr. Gladstein. . . . Do you say this is a judgment 
of conviction or that this adjudges him not guilty? 

GLADSTEIN: I say this, that the thing that affects this wit- 
ness' credibility is that he went into court and pleaded guilty 
to the accusation contained in the document, and the fact that 
later on, as you, your Honor, know and lawyers know, for one 
reason or another arrangements were made to withdraw the 
plea of guilty, is immaterial to the plea of guilt. 

MEDINA: Well, I will tell you what happens before me if 
a man pleads guilty and then I am convinced he is not 
guilty. I let him withdraw his plea and let him plead not 
guilty. That is the way it is done. This business of "making 
arrangements," where do you get that from? 

GLADSTEIN: Why, if your Honor please, it is well known, 
and it happens all the time, that people are given opportuni- 
ties on probation or otherwise to withdraw a plea of guilty 



34 Witness Number Eight 

after they have pleaded guilty in fact and have been guilty in 
fact. 

MEDINA: Well, it seems to me that it is a pity this subject 
was brought up at all, but now that it is here, in fairness to 
the witness the whole story is going to come out. 

GLADSTEIN: That is exactly what we want. 

000 

The document was thereupon admitted in evidence and 
Gladstein asked permission to put a question to the Court. 

(From the record) 

MEDINA: You look so innocent, Mr. Gladstein, how can 
I refuse? 

GLADSTEIN: . . . when a man pleads guilty in your court 
and you later feel he is not guilty, do you ever require him to 
pay the costs of the proceeding, if he is innocent? 

MEDINA: Well, I never heard of that cost business here 
but they do have that in a good many parts of the country. 

GLADSTEIN: But your Honor, they do that when a man is 
guilty. 

MEDINA (furious): Well, I don't know about that. But 
I know when a judgment is a judgment of guilty, and when it 
is a judgment of not guilty, and I am going to look at this for 
a minute or two and I am going to tell the jury which one it 
is. You men can argue your heads off to the contrary but it is 

going to be just the way I say. 

o o * 

The proceedings continued in this spirit. After the Court 
had told the defense to read to the jury such parts of the 
document as it wished, and the prosecution any further parts 
it might desire, Sacher said he would read it all, if that was 
the Court's desire. 

(From the record) 

MEDINA: It seems to me there was a grave injustice done. 
SACHER: There was no injustice done. 



Foley Square 35 

MEDINA: And there isn't going to be any while I am here. 

SACHER: And there won't be any while we are here, be- 
cause we are going to bring out all the facts 

MEDINA: You think you are. 

SACHER: If the Court permits it. 

MEDINA: If you think you are going to spend a few days 
going into seeing what he did and what he didn't do, you 
are mistaken. 

000 

Sacher thereupon read the document, beginning with the 
full text of the first indictment charging Nicodemus and 
Louise Trail with illegal possession of a revolver and an 
automatic pistol, continuing to the reverse side where under 
date of May 20, 1948 "appear the words, 1 or we plead guilty 
to indictment as returned/ bearing the signatures of Louise 
Trail and Charles Nicodemus." Under the same date and 
immediately beneath the guilty plea, appears the informa- 
tion that the plea is "allowed to be withdrawn by the Court," 
and next under that, "the defendants adjudged not guilty and 
pay costs by the Court," and finally all bearing the same 
date "Defendants sentenced to pay the costs of prosecution 
by the Court." 

Judge Medina, misreading the cost figure as the trivial 
sum of $3.10, here sought to render the defense ridiculous by 
reading the sum before Sacher could. "And the costs are 
$3.10," he announced triumphantly, inviting the jury to feel 
that neither Nicodemus nor the judge in the case would be 
much concerned about the disposition of a cost-claim of that 
amount. This is a glaring instance of the Judge in the role of 
Prosecutor and what makes it stand out is that the Judge 
was wrong! 

He had tripped over a projecting fact: that the costs on 
this one charge were not the wholly insignificant figure of 
$3.10. They came to the substantial sum of $43.26. As it de- 
veloped later, when the second document had been read 
after an equally tedious argument, costs on that charge were 



36 Witness Number Eight 

shown to be $77.97. Thus Nicodemus and Louise Trail had 
been found "not guilty" but fined $121.23! 

Page after dreary page of the transcript records Judge 
Medina's effort to belittle the effect of the evidence and to 
turn it against the defense before the defense was allowed 
to introduce it. When Sacher came to the second indictment, 
the prosecution returned to the argument that it was not 
admissible because the witness had been found not guilty. 
Once again, the Judge's remark that he was permitting it 
only "in fairness to the witness," provoked a colloquy. 

(From the record) 

GLADSTEIN: May it be made clear that in fairness to the 
defendants, in order to impeach the witness, that the whole 
story be brought out? 

MEDINA: Mr. Gladstein, I think it is unfair to make it ap- 
pear that the man was found guilty when he was not found 
guilty. 

GLADSTEIN: Now if your Honor please 

MEDINA: Maybe that sounds absolutely bad to you, and it 
is probably some more judicial misconduct. 

SACHER: Well, the point is 

MEDINA: When the record shows that the man was found 
not guilty, the least it seems to me that could have been made 
plain right from the beginning is that he was found not guilty. 

GLADSTEIN: If your Honor please 


But the defense was not permitted to speak. The prosecu- 
tion quickly moved for the noon recess and the Court re- 
cessed leaving the jury with nothing more on its mind than 
the Court's strong and repeated defense of the witness! The 
noon recess failed to improve the atmosphere in Judge 
Medina's courtroom. After the defense had read the second 
document to the jury, every attempt to explore the relation- 
ship between the Pittsburgh arrest and Nicodemus' subse- 



Foley Square 37 

quent appearance at the trial, only set the legal merry-go- 
round spinning. 

(From the record) 

SACHER: You testified that you saw an agent of the FBI 
in Cumberland after your visit to Pittsburgh, is that right? 

NICODEMUS: That is right. 

SACHER: You visited Pittsburgh from January 8 to Janu- 
ary 10, 1948, is that right, is it? 

NICODEMUS: No, wait, just a minute. I am trying to figure 
out here now when I did go back. I can't answer you right 

off. That is a long time ago. A lot of things happened. 



Sacher tried to break through this stalling by recalling to 
the witness that the indictments recently shown him, said 
that he came to Pittsburgh on January 8 and was arrested 
on January 10. But the prosecution objected. 

(From the record) 

MEDINA: Sustained. You will ask no further questions about 
that incident. The record shows the man was found not guilty. 
If you think you are going to retry that case, you are making 
a mistake. 

SACHER: I am not going to retry it. The record also shows 
he was sentenced to pay costs after he had already interposed 
a plea of guilty. 

MEDINA: I will sustain the objection. 

GLADSTEIN: Excuse me. Your Honor, I move that you 
strike the remark you have just made for the third time 
about what the record shows. 

MEDINA: I deny the motion. 

SACHER: Do you recall the date when for the first time you 
saw this agent of the FBI? 

NICODEMUS: No, I don't recall the date, not the exact date. 

SACHER: Was it in January or in February 1948? 

NICODEMUS: Well, it was either in the latter part of Janu- 
ary or the first part of February. 



88 Witness Number Eight 

SACHER: Whom did you see in the FBI? What was the 
name of the agent you saw? 

NICODEMUS: The name was Jones. 

SACHER: What was his first name? 

NICODEMUS: Raymond. 

SACHER: Did you tell Mr. Jones that you had been arrested 
in Pittsburgh? 

GORDON: Objection. 

MEDINA: Sustained. 

SACHER: Now, if it please the Court, I wish to show that 
it was pursuant to arrangement between this witness and 
the FBI that what happened on this exhibit took place. That 
is what I am directing my question to now. 

GORDON: And I deny that the United States Government 
entered into any agreement with any Judge in Pittsburgh 

SACHER: Now if your Honor please 

GORDON ( continuing ) : to get this man out of any charge. 

SACHER: I object to this. 

GORDON: And I object to any further question . . . along 
this line. 

MEDINA: I will sustain the objection to this particular 
question. I will pass on the others as they arise. 

SACHER: How many times did you see Mr. Jones after this 
first occasion in the latter part of January or the early part 
of February? 

NICODEMUS: Well, I imagine I seen Mr. Jones about three 
times, approximately, three or four times. 

SACHER: When was the last time that you saw Mr. Jones? 

NICODEMUS: The last time? You mean between the time 
that I was arrested and the time that I went back to Pitts- 
burgh? 

SACHER: When did you last see Mr. Jones, please? 

NICODEMUS: Well, I have seen Mr. Jones, if you want to 
know how recently I have seen Mr. Jones 

MEDINA: That is what he is asking you. 

NICODEMUS: All right. I have seen Mr. Jones a week ago. 



Foley Square 39 

For another half hour, Nicodemus twisted and dodged in 
an attempt to avoid specifying the dates of his meetings with 
the FBI agent. He acknowledged that he gave the agent two 
statements, a first, one-page statement in his own handwrit- 
ing and a second, longer, typewritten one. For perhaps thirty 
minutes he maintained that one of them was delivered in 
1949 or not earlier than September 1948, but at last made his 
first major admission: that he signed or initialled his first 
statement to the FBI some time in January 1948 after the 
Pittsburgh incident. This was two full years after he had 
been expelled from the Communist Party and shows that he 
did not "volunteer" his services to the FBI until he was in 
trouble. 

Sacher now persisted, despite frequent adverse rulings, 
in bringing out the second date the witness so firmly disre- 
membered. 

(From the record) 

SACHER: Now those were the only two statements that you 
made to him, is that correct? 

NICODEMUS: Those are the only two. 

SACHER: Now isn't it a fact that the second statement 
which you gave him was given to him prior to May 20, 1948, 
when you appeared in the Court of Quarter Sessions in 
Pittsburgh, isn't that right? 

NICODEMUS: Before May, yes. 



So it was that the defense extracted from Nicodemus, 
like a stubborn tooth, the admission that he made two state- 
ments to the FBI between the time of his arrest and the time 
of his release. His very effort to fix the dates first earlier and 
then later than May 20, exposes the guilty significance of the 
real dates: the statements were the price of his release. They 
committed him to tell on the witness stand those stories the 
FBI desired him to tell and that he had in fact told on direct 



40 Witness Number Eight 

examination. The sequence of events is damning. Sacher 
therefore made Nicodemus repeat his admission. 

(From the record) 

NICODEMUS: I just told you that I gave Mr. Jones two 
statements that I can recall. One statement I gave him after 
I had been arrested in Pittsburgh, and the next statement I 
gave him some time after, prior to the time I had went to 
Pittsburgh to stand trial. 

# * * 

It had taken a whole day to wring from this witness a 
simple sequence of events that must, by the nature of the 
events, have made so deep an impression upon him that he 
could never forget it. 1. He had been arrested and faced 
serious charges. 2. An FBI man came to his home. 3. He next 
went to the FBI man's office where he made or delivered a 
statement. 4. He made another visit to the same office and 
delivered a further statement. 5. Only after that was he per- 
mitted by a Pittsburgh court to withdraw a guilty plea to 
two charges and get off with costs amounting to a moderate 
fine. 6. A week before he took the stand at the Communist 
trial, he had again seen the same FBI man. 

To anyone with experience in criminal practice, it is all 
too clear: the witness was in the power of the FBI and, im- 
mediately preceding the present trial, was given a last re- 
hearsal of the story he was ordered to tell. But as the cross- 
examination ended and redirect examination began, the 
Court once more refused to permit this to go to the jury for 
its consideration. The acquittal of Nicodemus in Pittsburgh 
was all the jury need know, said Medina in a last and 
furious colloquy about this issue. Over defense objection, he 
permitted the prosecution to ask questions he had specifically 
refused to let the defense put to the witness: 

(From the record) 

GORDON: Did Special Agent Jones of the FBI make any 



Foley Square 41 

representation to you that he would get you out of this 
Pittsburgh charge? 

NICODEMUS: No, sir, he didn't. 

GORDON: Did you give him these statements in return for 
any suggestion of that kind? 

NICODEMUS: No, I did not. 

GORDON: When was the first time that you talked to me 
about being a witness in this case? 

NICODEMUS: That was around Thanksgiving of 1948. 

GORDON: That was after the case in Pittsburgh had been 
dismissed? 

SACHER: I object to that as assuming a state of facts not 
in evidence. 

MEDINA: Not in evidence that they found him not guilty? 

SACHER: No, they sentenced him to pay costs, I say to your 
Honor. 

MEDINA: You know, Mr. Sacher, you can go on saying 
that till Kingdom comes, and every time you say he was 
sentenced to pay costs, I will say to the jury he was found 
not guilty. 

SACHER ( pointing to document in his hand ) : It says here 
he was sentenced to pay costs. 

MEDINA: It says he was found not guilty. 

SACHER: It says that he was sentenced to pay costs. 

MEDINA: And it says that he was found not guilty. 

SACHER: It doesn't say that. 



Other lawyers on both sides joined in this nursery round 
and Medina poured visible hatred on the defense counsel 
who had dared to stand up against his interpretation. 

(From the record) 

MEDINA: Maybe the jury will forget what I tell them and 
maybe you will induce them to disregard the instructions of 
the Court, but not while I still have breath in me. 



42 Witness Number Eight 

GLADSTEIN: I want to assign that, your Honor, as judicial 
misconduct. 

MEDINA: That is fine, fine, fine. 

GLADSTEIN: And also, in connection with your Honor's 
statements that you will continue to tell the jury that the 
case in which Mr. Nicodemus was involved turned out as not 
guilty, would you be good enough to add, if you tell the jury 
that, that it was no doubt because Mr. Nicodemus was inno- 
cent that the Court imposed a sentence of $140? 

a * 

You and I are not lawyers. We cannot say from our own 
experience where the truth lies in this controversy concerning 
the legal proprieties. But as laymen we are perfectly compe- 
tent to judge the real issue. The Court says it doesn't know 
anything about "this business of 'making arrangements/" It 
will not admit the possibility that Nicodemus was brought to 
court by the FBI in return for a little service rendered him in 
Pittsburgh. 

Well, well, well! It is inspiring to know that Harold R. 
Medina who not only practiced law for many years before 
President Truman appointed him to the bench in 1947, but 
taught practice to thousands of students at $35 each, has not 
so much as heard of a "deal." It is nice to know that even 
now, rounding out forty years of practice, he has never heard 
of a "fix." He has kept his very, very pure ideals through all 
these years of very, very prosperous practice. Bravo, Judge 
Medina! 

We cannot, however, give Judge Medina what teachers 
call "alertness credit." For he was practicing law in New York 
city during Judge Seabury's investigation of the Magistrates' 
Courts there, and he was in practice when the Wickersham 
Commission published the results of its nationwide inquiry. 
Yet he never heard of a "fix." The Wickersham Commission 
did; Judge Seabury did. Perhaps we had better take time out 
right now to tell this very, very pure young man how very, 
very impure a court can be. 



Chapter 4 
THE "FIX" 



The police court is "the underworld of the law." It is the 
habitat of various forms of insect life including "the shyster 
lawyer, the stoolpigeon, the bailbond shark, and the official 
grafter who accepts a split of the lawyer's fee or the bonds- 
man's fee." 

So says Ernest Jerome Hopkins we will identify him in 
a minute from long and nationwide experience. Stand "in 
the corridor of any typical police-court building from eight 
to ten o'clock any morning in the year," he suggests. "You 
may learn to identify the various 'runners' and 'fixers,' trace 
the transactions between shysters and bond agents and certain 
policemen and court attaches. . . . You will feel without a doubt 
that you are in the 'underworld'. ... It is not merely because 
police courts are housed in buildings almost invariably old 
and dirty; I have seen police courts and police jails trans- 
ferred to new and spotless buildings, and within a week, by 
some peculiar magic, they looked as pediculous as of old. 
Social agencies have thrown up their hands at the problem. 
. . . Normal citzens avoid these places. The Halls of Justice 
are left to the police, the 'runners' and the 'fixers.' " So much 
so that the only outsiders habitually present are a queer kind 
of neurotic known to reporters as "carrion crows." This is the 
Pittsburgh police court, the New York police court, the 
American police court. This is the "police-fostered under- 
world." 

It is a world unknown to the Judge at Foley Square. The 
Court and prosecution there operate on a high moral plane. 

43 



44 Witness Number Eight 

From the mountaintop of pure legal theory, they deny the 
possibility of a "deal" between the FBI and a criminal, fol- 
lowed by a "deal" between the FBI and a police court. They 
gasp in horror at the defense suggestion of a "fix." They will 
not let the sins of the real world mar the sainthood of the 
FBI or explain the presence in the courtroom of the wit- 
ness Nicodemus. 

The atmosphere up here is so thin that we had better get 
down to earth before we go back to Foley Square. The 
Wickersham Commission did not operate in that sinless, 
saintly world inhabited by Medina and Gordon. Fully as re- 
spectable as Judge Medina it was appointed by then Presi- 
dent Herbert Hoover and headed by George W. Wickersham, 
Wall Street law partner of another Republican President, the 
late William Howard Taft it got right down to the dirt and 
lice of the police court. Ernest Jerome Hopkins, a veteran 
police reporter and Wickersham investigator, sums up its 
many-volumed findings and reports in a valuable book, Our 
Lawless Police. That is the source of the above quotations. 

But Hopkins has much more to say about the "fix." In the 
average police court, he says, it is customary for the prisoner 
to be relieved of all he has in return for a suspended sentence 
or other form of release. The Wickersham Commission veri- 
fied this throughout the United States. Testimony taken be- 
fore Judge Seabury in a famous public investigation in New 
York City while Harold R. Medina was practicing law there 
brought it out in ugly detail. From that investigation, Hop- 
kins cites examples: a man arrested had just been denied bail 
by a judge when ( in the victim's own words ) "a short, stocky, 
dark fellow came in and said: 'You get me $70 and I will 
take you out on bail/" He scraped up $60 and "the judge 
obligingly reversed himself and granted bail. ... An entirely 
innocent woman paid $500 for bail. From one girl, repeatedly 
arrested, an attorney refused $300, saying he had to pay the 
judge and that the arresting offcer wanted too much money. 
On her next arrest the same lawyer wanted $400. Later, $300 



The 'Fix' 45 

was asked by still another attorney, with the statement that 
$100 was for the policeman and $100 for the judge/' Only the 
fact that this system is standard would explain the fortunes 
amassed by certain New York policemen. Judge Seabury 
learned that one cop and his mother had deposited $185,000 
in five years! And the Wickersham Commission found that 
this, far from being peculiar to New York, was a nationwide 
condition. 

But there is still another kind of "fix" that fits our case even 
more closely. Our witness, Nicodemus, has reluctantly ac- 
knowledged under cross-examination that he made "state- 
ments" to the FBI man who was his "contact." He is, in 
short, an informer, or, in the uglier police terminology, a 
stoolpigeon. Some stoolpigeons get paid in cash: several of 
Nicodemus' fellow-witnesses testified they received monthly 
fees (usually not very impressive in size) plus expenses. But 
the usual payment of the informer is immunity a "fix" for 
some crime he has committed or protection in some racket 
he conducts. Hopkins describes it as "the indirect compensa- 
tion of police protection, or immunity" from the legal con- 
sequences of "indulgence in some form of degeneracy or 
crime." He says, "That is the compensation usually extended/' 

Captain Michael Fiaschetti affirms Hopkins' statement in 
his own barroom English. Head of the brutal New York 
Italian Squad until he got tough with a politically-protected 
lawyer, Fiaschetti has told his story in a book, made mildly 
literate by police reporter Prosper Buranelli, You Gotta Be 
Rough. Describing the exact type of "fix" evident in Nico- 
demus' case, he tells how he caught a young fellow who, 
in the summer of 1921, tried to hold up an East Side drug- 
gist. The lad was desperately broke, he had no gun, but "it 
was serious enough to mean about ten years. ... I made a 
dicker with him. . . . Freedom for information . . . that was 
the bargain. It's been done before and it will be done a few 
times more before the world has gone straight. . . . 

"Valuable merchandise, freedom. There's an idea around 



46 Witness "Number Eight 

that stoolpigeons get cash. That's mostly rot. I've never heard 
of a case where a squeal got anything like real dough from the 
police. . . . For the most part you do your bargaining with 
that precious commodity freedom. . . . Sharp practice, you 
might call it. I've never read any moral or improving book 
on the ethics of trading freedom for information." 

Thanks, Captain Fiaschetti. There's the odor of degeneracy 
about your explanation, but at least it is not mixed with the 
smell of hypocrisy that haunts Foley Square. It is not hard 
to understand Judge Medina's reluctance to let the facts of life 
into his courtroom. He is trying a case that smells of Fias- 
chetti-morality; ten thousand Fiaschetti's prepared this case. It 
is not just Nicodemus who must be shielded from the rays of 
reality. Of thirteen witnesses placed on the stand by the 
government, two were FBI Special Agents that is, regular 
FBI employees; seven, in addition to Nicodemus, were 
FBI "plants" who, unlike Nicodemus, were boldly pre- 
sented as "undercover agents" or informers for the FBI; 
even the three remaining witnesses bear the stoolpigeon 
stamp: they were paid in the American police equivalent of 
thirty pieces of silver jobs and immunities. 

The FBI itself talks publicly of these things, making it 
still harder for Judge Medina to keep the jury in that never- 
never world of his own creation. In an inspired article in 
the July 8, 1949 issue of the weekly U.S. News and World Re- 
port, the FBI admits that it deals with and employs crimi- 
nals not only on occasion but systematically. It concedes that 
it furnished "underworld" characters as witnesses for the 
prosecution in this case and it says FBI Chief J. Edgar Hoover 
is frankly worried that exposure will frighten his pigeons away. 
"It [the FBI] finds that it is winning its lawsuits at the 
expense of its underworld contacts," said the article. "It sac- 
rificed seven of its agents inside the Communist Party when 
it brought them to the witness stand in the trial of eleven 
Communists in New York. And it is losing more as a result 
of showing its files in the Coplon case." 



The 'Fix 47 

Judge Medina refused defense demands to produce FBI 
reports admittedly submitted by Nicodemus and other inform- 
ers. But in the Hiss and Coplon cases, the Court declined to 
cover for the agency. And so, as the article plaintively ob- 
serves, "much of the mystery has been stripped from the 
FBI. A public illusion that the agency depended solely upon 
science to solve crimes, has been shattered/' Aside from its 
bad effect on the general public, the lifting of the mystery 
has a fatal effect on the underworld. The live stoolpigeon is 
a dead duck the minute he is brought into the daylight. His 
business is dirty and secrecy is indispensable to it. The cur- 
rent trials have penetrated the FBI's secret places. "No one 
knows when a court will order the FBI files opened again to 
public inspection." So, since the trials, "one after another, 
FBI undercover agents have been dropping away." The FBI 
no doubt exaggerates; it probably has a stranglehold on many 
of its informers. But it is certainly worried, for there is one 
undeniable truth in this complaint: the FBI would be helpless 
without underworld agents. Largely engaged in political po- 
licingthought control it employs ordinary police techniques 
and police ethics in its work. Above all, it has borrowed 
from the Police Department the very basis of its work: the 
secret stoolpigeon system. And now the system is withering 
in the light of publicity. 

"It takes years to develop new contacts inside underworld 
agencies," yet many of these are being "sheared off overnight," 
the article says. "Many of those whose identities were re- 
vealed have quit. At least one is said to have vanished." It 
all adds up to a serious situation: the FBI "is losing its under- 
world contacts, and no detective agency can work without 
them." 

There at least is an absolute truth. At any rate, no detec- 
tive agency does work without them. Ask Fiaschetti. In a 
chapter entitled, How the Detective Really Gets His Man, 
or, To Hell With Sherlock Holmes, the policeman confirms 
the FBI view: 



48 Witness Number Eight 

"Why don't somebody write a detective story with a stool- 
pigeon in it? Why didn't Conan Doyle tell about Sherlock 
Holmes' stoolpigeons? Holmes had stoolpigeons. Of course 
he did. How could he break a case if he didn't? In the honest- 
to-God story of how the detective gets his man, stoolpigeon's 
the word. . . . Take away information, the tip, the secret whis- 
per of the stoolpigeon, and the detection of crimes would be 
paralyzed. The police organization of every city of the 
country, and of the world as well, would stand helpless and 
gaping." 

Fiaschetti is quite sincere. The FBI is quite sincere. Judge 
Medina is quite sincere. The police-mind does not understand 
how you can keep order if you let people invoke Constitu- 
tional rights. The police-mind does not understand how you 
can enforce law without breaking the law. To the police-mind^ 
every citizen exists only as a potential lawbreaker and you 
must have spies to watch him all the time. To the police- 
mind, the stoolpigeon system is a part of life itself, unpleasant 
perhaps, but like excrement, inevitable. 

Starting from this fatalism about it, Fiaschetti does not 
hesitate to reveal things that would turn an honest man's 
stomach. He demonstrates that the stoolpigeon system is in- 
separably part of the "frameup," the blackmail and extortion, 
the "fix" and the "deal" of the police court. No wonder Judge 
Medina will not let the defense look behind the police record 
of the "Pittsburgh incident" with its curious "not guilty and 
sentenced to pay costs." If the jurors are permitted to see the 
stoolpigeon system in all its viciousness, they might quit listen- 
ing to the prosecution witnesses! They might say with Cir- 
cuit Judge Norval Harris of Indiana: 

"The Communist trial is a farce . , . and the whole in- 
dictment should be thrown out. The prosecution's case is based 
on vile evidence of stoolpigeons and informers. That kind 
of evidence I would not permit in my court. I detest stool- 
pigeons and informers. So do the American people." 

Yes we do. So much so that, despite Judge Medina, the 



The 'Fix 49 

Government was very much on the defensive about its case. 
Just before the conclusion of the Communist trial, there was 
argument in a Federal Court in San Francisco over a date for 
the trial of labor leader Harry Bridges. When defense counsel 
predicted that this trial would see "another" parade of wit- 
nesses "dragged from the gutter," F. Joseph Donohue, Special 
Assistant to the Attorney General of the United States, arose 
to enter a denial. As reported by the New York Times of 
September 23: 

"Mr. Donohue pledged himself not to offer a witness 'for 
whose credibility I would not personally vouch/ He would 
not present 'stoolpigeons' and labor spies/ he said." 

In the Federal Court at Foley Square, stoolpigeons are 
presented as patriots admired by the American people; in the 
Federal Court at San Francisco, the same Department of Jus- 
tice admits that the American people despise and distrust these 
perjured sneaks. 

Yes we do. And that is why I chose to put off reciting the 
legal and political history of this trial, and other background 
facts, until we had caught the scent of the government's case, 
the foul smell of the stoolpigeon and the dank odor of the 
underworld slime from which the informer emerges. Later we 
shall have to dig deeper into this filth for the source of the 
"vile evidence of stoolpigeons and informers" with which 
the record is replete. But right now it is time to turn back 
and see what kind of trial, what kind of charge, what land 
of case, required the testimony exclusively of informers and 
"underworld contacts." 



Book Two; Aesop's Fables 



"It would be a mistake to imagine that it is enough to 
adopt the Communist formulae and conclusions of Com- 
munist science without mastering the sum total of different 
branches of knowledge, the final outcome of which is Com- 
munism. Communism becomes a mere phrase, an empty 
facade, and the Communist a mere bluffer, if he has not 
worked over in his consciousness the whole inheritance of 
human knowledge." V. I. Lenin. 



Chapter 5 
SKID ROW 



Til Constitution you right over the head with this club," 
the indignant policeman told me. "Now shut up and get out 
of here." 

If ever I saw a wronged man, it was that uniformed offi- 
cer. Cops just don't like people who "answer back." They 
aren't used to it. In America, I mean; for the unlimited power 
of the policeman is not taken for granted in the same way 
anywhere else in the world. 

Don't take my word for it. The Wickersham Commission 
said it emphatically after the most exhaustive study of law 
enforcement ever made in the United States. 

But I didn't know that at the time. I only knew that ac- 
cording to the Constitution, "it can't happen here." That 

50 



Skid Row 51 

policeman gave me my first lesson in Applied Constitutional 
Law the Bill of Rights in daily practice. There are no les- 
sons but those you learn on your own hide: I can't remember 
a thing about the theory of Constitutional Law as taught 
me in a law school not long before that incident; on the 
other hand I've never forgotten what the policeman taught me. 

Forgive me for talking about myself. My excuse is that 
this book aims to give you the direct, human sense of the 
trial as I experienced it. I want to show not the surface 
events at the trial, but what the trial means to you and to me 
personally, to ordinary everyday Americans in terms of or- 
dinary everyday experience. And the incident I am relating 
is, unfortunately, one of the most ordinary experiences of 
everyday life in every part of the United States to the work- 
ingmen who make up the largest part of the population of 
our country. 

It happened at Third and Howard Streets in San Fran- 
cisco. I was young and romantic and had set out to work 
my way around the world. On the West Coast I found some- 
thing as rewarding and as exotic, to me as the Taj Mahal 
of India, the Aztec villages in Mexico, the twisted, medieval 
"Arab" half of Tetuan in Spanish Morocco. That thing so 
moving to me was called the Skid Row. The name, borrowed 
from the great lumber camps of the Northwest, is applied, 
in every city of the Coast, to the street favored by the migra- 
tory workers. 

What excited me about the Skid Row was the talk of the 
workers. They loved ideas: philosophy, politics, world affairs, 
class struggle. It thrilled me to find Americans of all national 
origins who earned their living by the hardest kind of labor 
imaginable, but had not been stupefied and brutalized by it. 
It never ceased to amaze me that they were so passionately 
intellectual. I was too green to understand that theirs was 
no eagerness for ideas in the empty abstract; I only hazily 
felt that their intellectual interests were rooted (more solidly 
than my own) in the unromantic bread-and-butter problems 



52 Aesop's Fables 

of their daily life. Yet that was the case. Their talk was, in 
large part, directed toward ways of correcting the conditions 
that kept them working to exhaustion several months of the 
year and then turned them into bums for the winter. Their 
talk was radical talk. 

I knew nothing of working class radicalism and little of 
the realities of trade unionism, but this did not interfere with 
my appreciation of the Skid Row. Even without full under- 
standing of the violent social conflicts behind the ideas these 
men discussed, I considered the very range of their talk 
and the whole restless movement of the Skid Row, with its 
people so real and alive and unlike the wax mannequins of 
the movies a demonstration of democracy beyond anything 
I had ever dreamed. On arrival at any Coast town, I turned 
automatically toward the Skid Row. 

On this particular summer evening, the Skid Row was 
its normal self. There was the usual flow of dungareed hu- 
manity, there were the customary knots of talkers; here the 
Salvation Army corner, there the succession of soapbox speak- 
ers in the spot habitually set aside for them. The Skid Row 
was normal, but something abnormal was to happen. There 
was a sudden, chilling wail and before I could make up my 
mind whether it was an ambulance siren, a fire-engine or a 
harbor disaster-signal, a big car screeched to an instant halt 
at the curb nearest the soapbox gathering. 

The car was a Marmon, then manufactured by the Nor- 
dyke and Marmon Company in my hometown of Indianapolis 
where there was no Skid Row, where the Ku Klux Klan 
under D. C. Stephenson was all powerful, where as a boy 
I delivered telegrams to the officers of the American Federa- 
tion of Labor and the United Mine Workers and other con- 
servative labor leaders who looked, talked and thought like 
business executives and rode in Marmons. But now the name 
Marmon always reminds me of six or eight of the biggest po- 
licemen I had ever seen, piling out of a car on the San Fran- 
cisco Skid Row in a fraction of a second. 



Skid Row 53 

They scattered that peaceful gathering, as well as all the 
little knots of talkers further down the Row, displaying that 
fine discrimination and delicate regard for human rights so 
characteristic of our policemen. Then they filled a patrol- 
wagon with men who were wanted on no charge, men who 
had not even resisted their violence, random victims of an 
unwarranted raid, selected for routine false arrest, routine 
stationhouse beating, routine release. 

It was old stuff to them but I was shocked and resentful. 
Poor naive little me with my unsullied schoolboy faith in the 
inviolability of Constitutional rights! In the Indianapolis 
schools, I had learned what textbooks teach on this subject all 
over the United States. Moreover, my first three years in school 
were spent in Springfield, Illinois, where Abe Lincoln's home 
was still a shrine and his views still a tradition. I really be- 
lieved what I was taught about the basic guarantees of 
American democracy. I 'Icnew my rights," as the saying goes, 
the rights of every American citizen, so it didn't even occur 
to me to run when the police sluggers started "enforcing" the 
Constitution in the way peculiar to the preservers of law 
and order. I just stood right where I was, too outraged to be- 
lieve what I saw. When a be-badged and duly licensed and 
uniformed officer of the law told me to "move on," I talked 
back. 

"I've got a right to be here," I flared, in all my righteous 
ignorance of the laws of power and the power of The Law. 
'We've all got a right to be here. Didn't you ever hear of the 
Constitution?" 

That did it. People don't talk back to American cops. It's 
a kind of lese majeste. Above all, never mention the Constitu- 
tion to an officer of the law. He regards that document as a 
personal affront. I think the cop turned red, only you couldn't 
tell because his face had a head start. 

"Ill Constitution you right over the goddam head," he 
said. "I'll Constitution your goddam face." He also men- 
tioned other parts of my goddam anatomy. No doubt he raged 



54 Aesop's Fables 

at me, instead of hitting right out, only because I was so 
obviously young and unduly innocent-looking. 

I have taken up your time with this story because it was, 
in effect, the story of the trial. Which is to say, there was no 
trial; the government just Constitutioned the defendants right 
over the head. Only this time it was not done with a club. It 
was done with a sedition law, with headline hysteria, with a 
charge based on a desk sergeant's theory of Communism, and 
finally with witnesses and evidence dredged up by our secret 
political police from the bottom of the political underworld. 

Only the mind of a policeman could have devised this trial. 
That is the key to the otherwise utterly mysterious record of 
this proceeding. Everything in the trial stems from the be- 
wilderment of the cop who has a problem that cannot be 
solved by bringing down a nightstick on the head of some 
citizen who has talked out of turn. The cop has been forced 
by circumstances to bring the citizen into court. He is still 
determined to keep him from talking back, from citing the 
Constitution, but how can he do it? How shall he transfer 
to the courtroom, the power he wields on the Skid Row? 



Chapter 6 
FOR IMBECILES ONLY 



The Queen of Hearts had a similar problem. She solved 
it. Alice thought it all quite silly, but it must be admitted 
that the Queen's solution was considered worth borrowing 
by the government in the Communist conspiracy case. At 
any rate, her formula "sentence first, trial afterwards" was 
vigorously applied by Judge Harold R. Medina. 

In some ways this case is madder than the one conceived 
by Lewis Carroll. Suppose the Government were to charge 
eleven men with conspiring to walk on the grass in Central 
Park and you were attending the trial. You would expect to 
hear witnesses who had overheard the defendants plotting 
to commit that offense, would you not? If, instead, the Govern- 
ment put witnesses on the stand who testified that an associate 
of one defendant was a Bluebeard, that he killed seven wives 
and hid their bodies in a closet, wouldn't you decide that 
you were in Wonderland and would soon wake up? I hope to 
show you in the following pages how wild this trial really 
is, and why it got that way. 

The Government played the Queen of Hearts by bringing 
into court a ready-made theory of Communism and then refus- 
ing to admit any evidence that contradicted it or that failed 
to fit it. It is therefore logical for us to begin by comparing 
the theory on which the Communists were tried, with the 
undisputed surface facts about Communism. I believe the 
following points can be accepted (by anyone but a policeman) 
as statements of fact about Communism, alike for the purpose 

55 



56 Aesop's Fables 

of attacking the Communist Party or of defending it. They 
are elementary facts, but facts. 

First, Karl Marx openly enunciated the main principles 
of Communism in The Communist Manifesto just over one 
hundred years ago. 

Second, for the past century Marxist parties bearing vari- 
ous names have openly taught and acted upon those prin- 
ciples wherever democratic processes gave them the right to 
operate as legal political parties. Where such rights were 
denied, they did and do propagate and advance Marxist- 
Leninist principles by underground methods. 

Third, from the very proclamation of The Communist 
Manifesto, governments and ruling classes have tried to out- 
law the Communists. (In fact, the Manifesto was itself is- 
sued in 1848 to meet a wave of redbaiting then sweeping 
Europe. ) 

Fourth, from the two prosecutions of Marx himself in 
1849 to the American Communist conspiracy case just a hun- 
dred years later, the attempts to find something criminal 
about Communism have failed to overcome one major ob- 
stacle: that Communist doctrine specifically repudiates vio- 
lence in the sense of minority adventures, individual acts of 
terror and other magic formulae for revolution. Marxist writ- 
ings and teachings sharply differentiate (as the United States 
Supreme Court has noted ) between the broad historic process 
called "social revolution," and the violent coup d'etat or "pal- 
ace revolution/' The latter is emphatically frowned upon by 
the Communists. 

Fifth, the Communists have won hundreds of millions of 
adherents over the face of the earth. The Communist move- 
ment today governs perhaps a third of the globe and its inhabi- 
tants. Even the State Department's recent anti-Communist 
White Paper on China does not deny that the Communist re- 
gime there enjoys popular support. And certainly the mil- 
lions who have joined the Communist Party in Italy, France 
and other countries where anti-Communist governments and 



For Imbeciles Only 57 

classes are in power, have joined it voluntarily. One may argue 
that they are deceived, if he wishes, but not that they are 
subject to compulsion. 

Sixth, in the course of the past century, the Communists 
have elaborated the principles first stated pamphleteer-fashion 
in The Communist Manifesto, into an enormous body of the- 
ory. As the record of this trial reveals, they call that ency- 
clopedic body of literature, "the classics of Marxism-Lenin- 
ism," and describe its principles as "scientific Socialism." 

Enough of this work was introduced in evidence at the 
trial to fill thousands of pages of the record. From those pages, 
it is evident that no desk sergeant is competent to explain 
Marxist theory. I myself have read and studied all the works 
cited at the trial, yet I do not regard myself as competent to 
expound the principles of Communism, and where I can I 
shall rely upon direct quotation of official sources. 

Judge Medina professed to find Marxist theory bewilder- 
ing and said it seemed to employ a "special jargon." There 
is indeed a technical terminology in any of the social sciences 
for the use of Communists and non-Communists alike; if one 
wishes to deride it, he may call it a "jargon." The Marxist 
works produced at the trial are sometimes relatively popular 
in style, but many of them digest and generalize the experi- 
ence of past societies and the lessons of past revolutions. 
They are necessarily more or less difficult and technical. One 
has only to think of the three heavy tomes constituting Karl 
Marx's classic study, Das Kapitalihe very foundation of the 
modern Communist movement to realize that no honest man 
could attempt to characterize Communism without extensive 
study. After such study, he would have to describe it in sci- 
entific terms, with cautious qualification, and at great length. 

To sum up the elementary facts: Communism today is a 
complex doctrine guiding an established world-movement 
of vast scope. Compare this reality with the government 
theory on which the American Communists were tried. The 
government theory, if we may dignify it with that name, is 



58 Aesop s Fables 

that Communism teaches how a small band of armed men may 
seize power in a national emergency by ordinary cutthroat 
methods. I am not exaggerating the kindergarten character 
of the government case. Let me cite a few lines of a typical 
report on the trial by Russell Porter, who repeated the same 
approved formulation of the prosecution case day after day 
in the New York Times, for instance this, on June 4, 1949: 

"Government witnesses have testified the defendants set 
up a secret, nationwide organization to train professional 
revolutionaries in the tactics of the Russian Revolution of 
1917. Among other objectives, according to the evidence, party 
members were taught how to infiltrate the armed forces, get 
possession of soldiers' and sailors' uniforms, and use force and 
violence with the aid of the Red Army, when the time is 
ripe, to set up a Soviet America dictatorship to destroy the 
United States Constitution and its guarantees of freedom and 
democracy." 

This is the ultimate in simplification; it is the pre-school 
version of the theory of Communism. Or perhaps it would be 
fairer to call it the imbecile's own guide to Marxism. True, 
as Porter says, government witnesses did testify to these pre- 
posterous "facts." And they do, indeed, correspond to what 
we have been taught by the House Un-American Activities 
Committee, newspaper headlines, radio commentators, writers 
of "I Was a Communist" books and articles, and all the rest 
of the elements that make up the machine for the manufac- 
ture of public opinion. But the repetition of childish non- 
sense for however long a period by however many persons 
will not make sense of nonsense. And the bogey-man theory 
of Communism is nonsense by a decisive test: it does not ex- 
plain current events. The Communists all over the world 
would not be achieving the successes that so alarm the anti- 
Communists, if they were the simpletons villains, but still 
simpletons-portrayed in the government "theory." Poll- 
parrots cannot lead men in battle or rule great nations in 
time of peace. 



For Imbeciles Only 59 

Proceeding to trial on such a basis, the government could 
only stumble from absurdity to monstrosity. The indictment 
applies the government "theory" of Communism to the period 
from "on or about" April 1, 1945 to July 20, 1948, but the "evi- 
dence" admitted in the trial goes back to 1848! The prosecu- 
tion set out to show that Communists, even before the Rus- 
sian Revolution, were robots who slavishly applied Marxist 
doctrine to every situation in every country in identical fash- 
ion, and that since the Bolshevik Revolution they quite liter- 
ally get "orders" from Moscow for every move. The choice of 
a certain period of three years for the actual indictment, was 
determined by the following facts: 

During the period of American-Soviet wartime harmony, 
particularly following the Teheran Conference (October 
1943), the then leader of the American Communists, Earl 
Browder, engineered a radical alteration of the Communist 
movement here. He proposed to take the Communist Party 
out of American political life and leave it only as a kind of 
educational society. He argued that the wartime honeymoon 
of the United States and the Soviet Union would continue in 
time of peace and that it would be accompanied by a like 
honeymoon of capital and labor within the country. His pro- 
posals and his supporting arguments were strongly opposed by 
William Z. Foster, who said in a letter to the fifty-odd top 
American Communists, that the major capitalists, grown fat 
on war profits, would be more aggressive than ever after the 
war, both at home and abroad. Foster obtained only one 
supporting vote, however, and Browder's proposals were 
adopted by the Communists in 1944. Foster's letter was not 
made public at the time, so the general membership of the 
Communist Party did not then know his views. In early 1945 
there were many indications that powerful American interests 
did not plan to continue friendly relations with Russia. The 
beginnings of the cold war ( or the resumption of the basically 
anti-Soviet policy followed since 1917) were reflected in do- 
mestic policies. Inside the Communist Political Association, 



60 Aesop's Fables 

which had replaced the Communist Party, these signs were 
noted, and various doubts were voiced as to the wisdom of 
the change made in 1944. But no one said outright that Foster 
had been right and a basic error had been made in following 
Browder. 

In the spring of 1945, Jacques Duclos, a French Commu- 
nist leader regarded with great respect by Communists in 
other lands, published an article primarily aimed at certain 
tendencies in his own party. The article, however, strongly 
criticized the American Communists and reproduced the letter 
written by Foster in 1944. The New Yorfc World-Telegram 
published a story about this article on May 22, 1945 and two 
days later the full text, in translation, together with the 1944 
letter by Foster, appeared in the Daily Worker. Publication 
of this material caused an explosion within the Communist 
Party. A general discussion was opened and for some weeks 
the Daily Worker was largely devoted to the discussion. The 
upshot of the affair was that the party reversed itself, declared 
that it had made a bad mistake in listening to Browder, and 
adopted substantially the program of Foster. Browder lost in- 
fluence and was later expelled. 

These events are recited in the indictment in unrecogniz- 
able form. They are distorted to fit the government "theory" 
of Communism. They are repeated at the trial in opening ar- 
gument and in the testimony of prosecution witnesses, as 
twisted to fit the "orders from Moscow" assumption. The 
prosecution case stuck rigidly to the theory of Communism as 
a plot to seize power by the use of little bands of armed men 
in troubled times. It followed, in short, a theory in direct con- 
flict with the known facts about the scope and content of 
Communist theory as exemplified by the Communist move- 
ment in the world today. 

This led to a line of "proof that so glaringly contradicted 
reality as to give rise to a doubt: the prosecution might be 
considered as not really making a serious attempt to obtain 
a conviction. The atmosphere in the courtroom will quickly 



For Imbeciles Only 61 

dispel any doubt; the political climate throughout the United 
States forbids such a thought. It is a grimly earnest trial 
and what is more the defendants were convicted before they 
ever entered the courtroom. 

But the result is a puzzle: the government's "proof" proves 
only that it holds a fantastic theory of Communism; it is con- 
tradicted at every turn by indisputable facts. What happens, 
then, in such a trial? The answer to that is the whole essence 
of the case: the policeman takes over! Not just the United 
States Marshals who were instructed by the Court to use 
force on counsel for the defense; not just the jailers who hand- 
cuffed three defendants remanded to jail in the course of the 
trial, and two more sentenced to thirty days for contempt of 
court; not these but the political police took over! 

And that is why the story of this trial is every American's 
business. As a trial, it was no trial at all; as "due process," 
it was a farce. But as a political portent, it was and is deadly 
serious. That is why I am writing. The fact that I am writing 
about a trial of Communists, should not mislead you as to this 
book's purpose. It is not a plea for Communism. It is not 
even a plea for the particular Communists named as defend- 
ants. It is a warning that you are in danger if police lawless- 
ness, hysteria, prejudice and panic are permitted to replace 
the Bill of Rights in certain cases. Toleration of lynch justice 
only with respect to Communism, will end up as toleration of 
lynch justice, period. We are not dealing with a new wrinkle 
in jurisprudence; what we have here is a familiar and perilous 
political principle. That principle was already in operation 
in Judge Medina's courtroom when the Communist conspir- 
acy case began. 






Chapter 7 
HAROLD IN WONDERLAND 



We are in the Federal Court for the Southern District of 
New York at Foley Square in New York City. It is the begin- 
ning of the trial proper and we intend to stay through open- 
ing argument and the full testimony of the government's first 
and chief witness ex-Communist Louis Francis Budenz. Even 
thus early, however, the trial has a history. 

1. The defendants were indicted July 20, 1948. The in- 
dictment, that we have mentioned and will have occasion to 
deal with again from other points of view, may be here sum- 
marized from one angle. It accuses the defendants of con- 
spiring to "teach and advocate the overthrow and destruction 
of the government of the United States by force and violence/' 
not directly but in these several indirect ways: a. by organiz- 
ing the Communist Party; b. by arranging to "publish and cir- 
culate, and cause to be published and circulated, books, ar- 
ticles, magazines, and newspapers advocating the principles 
of Marxism-Leninism"; c. by arranging to "conduct and cause 
to be conducted, schools and classes for the study of the prin- 
ciples of Marxism-Leninism, in which would be taught and 
advocated the duty and necessity of overthrowing and de- 
stroying the government of the United States by force and 
violence." 

2. The defense immediately moved to quash the indict- 
ment on two main grounds: I. that the Grand Jury which re- 
turned the indictment was a handpicked rich-man's jury in 
violation of the Constitution; II. that the Smith Act on which 

62 



Harold in Wonderland 63 

the indictment was based, and the charge under it, are un- 
constitutional; they violate such basic rights of individuals 
as freedom of speech and the press. 

3. Federal Judge George M. Hulbert ruled that the de- 
fendants must stand trial. In effect, this leaves the Constitu- 
tional questions for possible ultimate decision by the Supreme 
Court. He declined to decide the Grand Jury question, hold- 
ing that it might be raised if and when the case came to 
trial. 

Even in the earliest stages of the case, the defense en- 
countered crude prejudice. We have been told many times that 
Judge Medina "leaned over backward" to be fair he often 
said so! But start at the very first pages of the stenographic 
transcript during preliminary motions, arraignment and so on. 
Here on page 20: 

(From the record) 

MEDINA: That is the way we conduct our judicial proceed- 
ings in this country. 

000 

One must indeed lean over backward to miss the inference 
that Communists represent a foreign country Russia. Two 
pages more and we get it again: 

(From the record) 

MEDINA: All right, they will have an American trial. 

* o a 

4. It came to trial the 17th day of January, 1949. The de- 
fense immediately raised the Grand Jury question and for 
many weeks presented evidence in support of its charges. 
This pre-trial "challenge round" of the proceedings lasted un- 
til March 4, when Judge Medina denied the defense motion 
to quash the indictment and ordered the trial proper to begin 
March 7. 

5. Beginning March 7, time was consumed with such pre- 
liminaries as selecting twelve jurors and four alternates, so 



64 . Aesop's Fables 

that presentation of opening argument was delayed until 
March 21 and March 22. 

That is where we enter the courtroom. Having heard the 
opening arguments, we return on March 23 when the prose- 
cution places Budenz on the stand. We remain here until 
late in the morning of April 6 when the first witness finally 
leaves the stand. This represents ten days of actual testi- 
mony, ten days of court. During that period, every problem 
inherent in such a trial comes to the surface; every argument 
has to be made or renewed. Thus we obtain a fair sample 
of the actual courtroom conduct of such a trial. 

The sample shows that Judge Medina tried the case ac- 
cording to the policeman's theory of Communism devised for 
this specific trial. During opening argument he laid down his 
line for the conduct of the trial. The prosecution had ex- 
plained its "cutthroat bands" theory of Communism and the 
defense proposed to refute that description of Communist 
principles by showing what the defendants actually taught 
and did every minute of the period during which they were 
alleged to have been engaged in such melodramatic shenani- 
gans. But even while Eugene Dennis, Secretary of the Com- 
munist Party, acting as his own counsel, was formulating this 
projected defense, Judge Medina interrupted to say: 

"I don't see how, Mr. Dennis, to disprove a charge of con- 
spiring to teach and advocate the overthrow of the United 
States government by force and violence, it is going to be 
relevant for the defendants to show what very good boys 
they were in some other respects." 

One need not be a lawyer to know that Judge Medina 
has here made a very improper comment in the presence of 
the jury. And without being a lawyer, one may safely say 
that the learned Judge has embodied some very bad law, as 
lawyers put it, in his comment. For it is the very a-b-c of com- 
mon justice, that a defendant does not have to disprove 
charges; the burden of proof is on the prosecution. It is true 
that Dennis is offering to prove something, but he is not ac- 



Harold in Wonderland 65 

cepting any obligation to disprove the charge. Judge Medina 
is no novice; he is well aware that he is giving the jury a 
misleading impression of Dennis* offer. 

This is the real point: the prosecution, in order to prove 
the charges, has indicated what kind of evidence it plans to 
offer cloak-and-dagger stuff. Now the defense states that 
it proposes to discredit that evidence, to discredit the kind of 
case offered by the government, by showing that Communist 
principles and practices have nothing in common with cloak- 
and-dagger conspiracy. Surely that is relevant! Surely that is 
not at all the same as undertaking to disprove the charge! 

Dennis told the jury that the defendants would show that 
their lifelong activities, teachings, and whole way of life had 
and could have in full context only one meaning: to show 
the American people that the Communist way was the right 
way. It was not a matter of winning the sympathies of the 
jury for Communist theory, but of proving that die defendants 
had sought only to persuade the people of the United States 
that they the majority should correct certain fundamental 
evils (war, economic crises, Jim Crow) which Communist 
theory attributes to capitalism itself and contends can only 
be eliminated by the adoption of Socialism. 

In sum, the defendants say they wish to offer proof that 
they sought only to convince the American people by fair 
argument. That would seem an entirely reasonable way of 
defending themselves against the accusation of planning to 
coerce the American people. It would seem the only logical 
way of answering the accusation that they planned to force 
the people into Communism with the help of the Red Army. 

But Medina said "No!" and "No!" again. Breaking into 
Dennis* outline of the defense proposal to describe actual 
Communist work, he remarked with heavy sarcasm: "I don't 
think you'll get around to that/' And he made it his business 
to see that they did not "get around to that" without fighting 
every inch of the way. Thus he assured a trial fantastic be- 
yond precedent. 



66 Aesop's Fables 

The moment the actual taking of testimony started, the 
Alice in Wonderland character of this conduct came to the 
surface. For the government witnesses, starting with Num- 
ber One, were permitted to picture activities in the Commu- 
nist Party to suit the needs of the prosecution, but the defense 
was not permitted to reply at all I Budenz, for example, spent 
five full days and a part of a sixth under direct examination. 
Having been in the Communist Party for years, he described 
his life and activities there a la Russell Porter and the FBI. 
He testified, specifically, that as editor of the more or less 
official party newspaper, the Daily Worker, he had taught and 
advocated the violent and forcible overthrow of the United 
States Government in the course of his editorial work. Now 
watch what happens when the defense tries to refute this. 

The defense proposed to prove that Budenz was a common 
Bar, or perhaps an uncommon perjurer. To this end, it pre- 
sented the articles Budenz had himself written for the Daily 
Worker during his years in the party. Seeking to force his ad- 
mission that not one article, not one sentence, not one phrase 
counselled coercion of the American people force and vio- 
lencethe defense offered the articles in evidence. But the 
Court said these articles a series on Socialism, by the way- 
were irrelevant precisely because they contained nothing 
about force and violence! They were inadmissible, Medina 
held, because they were exclusively concerned with labor 
problems, Jim Crow, the fight for peace, and other legitimate 
political activities. 

Why, yes! That is exactly the point. The chief government 
wftness is unable to show a single line that appeared in the 
Daily Worker while he was its editor, representing something 
other than legitimate political activity. But Medina says this 
is inadmissible. To evade the real point, and to make it ap- 
pear that the defense is offering only certain carefully se- 
lected parts of the paper, he put these rhetorical questions to 
the witness: 

"I suppose, Mr. Budenz, that in any one of these periods 



Harold in Wonderland 67 

it was not the fact that every article in the Daily Worker 
from page one to the end had something about overthrowing 
the State by force and violence?" 

"No, sir." 

"There must be plenty of parts of the Daily Worker that 
had nothing to do with these issues?" 

This is infamous! The record is inescapable: it is not true 
that the defense selected parts of the Daily Worker f parts 
suitable for its purpose. In question after question, the defense 
gave Budenz the whole range of the paper during his editor- 
ship. Why did the Court permit Budenz to testify that he 
advocated force and violence in the pages of tne Daily Work- 
er? SureJy, if he did so, the best and only trustworthy evidence 
would have been the guilty articles themselves. Had any such 
article existed, the government would certainly have produced 
it in evidence. The Court, in all fairness, should have required 
the introduction of such articles before permitting the prosecu- 
tion to question Budenz on this subject. But the Court did 
not limit the prosecution or the witness in any way. 

So now it is up to the defense to show the inherent dis- 
honesty of this procedure. The lawyers therefore invite Bu- 
denz to cite any example he pleases of the advocacy of force 
and violence, in any part of any issue of the Daily Worker. 
His memory fails; his replies are vague and evasive. So the 
defense next proposes to introduce Budenz' writings, one by 
one, but here the Court interposes barriers. The lawyers fight 
for their rights, however, producing the Budenz' series on 
Socialism. They wish to give him a chance to look at each 
one and show which, if any, constitutes or contains the advo- 
cacy of force and violence to which he has testified. How else 
is the jury to decide whether it agrees with this witness' 
judgment of what constitutes the advocacy of force and vio- 
lence? How else is the jury to decide whether he is an honest 
man or a barefaced liar? How else is the jury to fulfill its 
sworn duty, a duty it cannot delegate to the witness or to the 



68 Aesop's Fables 

Court, a duty that belongs to the jury alone: the duty of 
judging the facts in the case? 

Yet now the Court rules that the articles are inadmissible. 
It forbids the jury to read them! It refuses to let the defense 
confront the witness with his own writings that contradict 
his testimony. And not content with that, Judge Medina 
brazenly misrepresents to the jury the nature of the defense 
offer! 

Judge Medina did not stop there. He elaborated an argu- 
ment that had this effect: if, in fact, there were not one word 
ever written or published by the defendants to sustain the 
charges made by the government witnesses, then nothing the 
defendants wrote or published was admissible in their own 
defense! If, in fact, every word ever written or published 
or spoken by the defendants, appears in the context of lawful 
critcism of existing evils; if the defendants dealt only with 
the oppression of labor, the subversion of democracy by Wall 
Street, the race discrimination imbedded in our national life, 
then their words were doubly inadmissible! 

"As I read those articles," the Judge explained, "it again 
occurred to me you were going to seek to take the offensive, 
and the offensive in this case is by the prosecution. Now 
if you think this or that or the other American practice, or a 
thing that is done here or there, is going to be pilloried, and 
that the defendants and their counsel are going to take the 
offensive, you might just as well know now that that isn't going 
to happen." 

Surely this, too, is borrowed from Lewis Carroll. "Ill be 
judge, 111 be jury. ... Ill try the whole case and condemn 
you to death!" But Medina denied vehemently that there 
was any unfairness about it. He was perfectly willing to admit 
articles that were "relevant and competent," he said. The 
only kind of article he wouldn't admit is the kind that actually 
appears in Communist publications! He explained why he 
couldn't do that: 

"When you have literature by this witness which covers 



Harold in Wonderland 69 

everything under the sun that may be deemed a grievance 
by anybody, of young people because they were not given 
positions of responsibility, women because they cannot be 
given positions of men, colored people because they are ex- 
cluded from this or that in certain parts of the country, the 
Jews because they are not treated, in their opinion, the same 
as other people, I am going to make the same ruling that I 
have made here, you see, that that has no bearing on what 
this witness has testified to at all, and I am going to rule 
it out." 

Medina never relented. He stubbornly maintained that 
he was only insisting on "a prosecution of these defendants, 
not of America as a whole/' He would admit competent 
documents. Every document offered, however, was rejected 
until defense attorney Richard Gladstein announced that un- 
der the Court's rules there was nothing further the defense 
could submit. 

"Of course," he said, "if the only article I can show you 
is one which shows force and violence, I will never produce 
such an article because none was written." 

And so a conviction in this remarkable case was assured. 
War and Fascism are out of the case. Jim Crow is out. The 
jury is not to hear what Communists speak, write, or think. 
It is to hear nothing other than cloak-and-dagger stuff as pre- 
sented by the government. It is to hear what prosecution 
witnesses say Communists speak, write and think. 

But there is no stopping here. Once you take this path, 
there is no halt short of shock treatments this side of the 
madhouse. To be consistent, therefore, the government now 
supplied a legal "theory" to justify the procedure adopted, a 
"theory" worthy of the institution in which this trial seems 
bound to end. 



Chapter 8 
THE LAW IN WONDERLAND 



The Queen of Hearts was always screaming, "Off with their 
heads !" But to do Wonderland justice, it must be noted that 
Alice never saw anyone executed. Not quite so optimistic a 
report can be delivered from Foley Square. No actual de- 
capitation took place there, but when judicial sandbagging 
was ordered, sandbagging followed. That was Judge Medina's 
department, and he managed it in a very "legal" way, with a 
very simple formula: "This is an ordinary criminal case/* 
Now that is so brazen it is subtle! Its implications do not at 
once leap to the mind. So observe what follows in this little 
incident with a later witness, recorded at page 3382 of the 
record (which does not, unfortunately, record gestures and 
intonations ) : 

(From the record) 

JUDGE MEDINA (to witness): Now do you see Stachel 
here? 

DEFENSE ATTORNEY SACHER: May I respectfully request 
that the defendants be referred to as "Mister"? 

PROSECUTOR McGoHEY: I have no objection. 

MEDINA: You may request it but I may leave the "Mister" 
off occasionally. (To witness): Now do you see Stachel here? 

WITNESS NOWELL: Yes, your Honor, I do. 

MEDINA: Now go down there and point him out. 

(Witness goes to edge of defense counsel table.) 

NOWELL: The gentleman sitting there next to the aisleway. 

70 



The Law in Wonderland 71 

MEDINA: You better go right over there and point to him. 
NOWELL (preceding toward defendant Stachel): This is 
Mr. Stachel. 

o o 

What the witness has done under the Court's direction, is 
known to the underworld as "putting the finger" on a victim. 
Transfer of this technique to that other underworld, the police 
court, can be justified in only one situation: when the very 
essence of the proof is the ability of a witness to identify a 
man charged with a specific criminal act. In the Communist 
conspiracy case, there is no element of this situation. The 
identity of the defendants is not at issue; their position of lead- 
ership in the Communist Party is not denied; and, what is 
more, they are not charged with any act. Identification can- 
not, therefore, be a material element of the proof in this case. 
No, the sole purpose of the "fingering" is to tell the jury that, 
in the eyes of the Court, these men are no better than com- 
mon gangsters, or at least that they are charged with some- 
thing on a par with the crimes of an Al Capone. 

Eventually, Medina said so. When the defense protested 
against this "fingering" technique, and protested each time 
it was repeated, Medina replied that this was an ordinary 
criminal trial. "We will follow the same procedure here that 
we do in other criminal cases," he said. The charge was to be 
proved, he said, as you might prove, say, a burglary charge. 

"You are not dealing with a criminal who has committed a 
robbery," Gladstein protested. "These are political leaders of 
a political party." 

Medina refused to consider this argument. It was essential 
to a whole series of rulings on which the government case 
rested, that he maintain his position. As Russell Porter sum- 
marized the Judge's comments during later argument follow- 
ing the close of the government's case the charge in this case 
is compared not merely to vulgar crimes but to violent ones. 

"The Judge reinforced his decision that the government 
had made out a prima facie case by comparing the position 



72 Aesop's Fables 

of a man charged with first degree murder and shown to have 
held a grudge against his victim, gone to a store and bought 
the gun with ammunition, hidden in the man's house and 
waited till he came home to shoot him. 

"He upheld his decision to accept the testimony of the 
FBI agents by comparing them with similar police agents who 
join a gang of bank robbers and learn the details of their 
conspiracy in order to report them to the authorities/' 

An "ordinary" criminal trial! A "common" criminal case! 
A prosecution for burglary! But look at the record. If the 
government, in good faith, thought this a common criminal 
case, why did it introduce into evidence, beginning with its 
very first witness, scores of books and pamphlets by Marx, 
Engels, Lenin, Stalin and others? In what kind of "ordinary" 
criminal trial does the prosecutor read to the jury from The 
Communist Manifesto, Foundations of Leninism, and so on? 
What kind of case fills thousands of pages of its record with 
extracts from printed works, openly published by the Commu- 
nist Party and admittedly circulated by it as widely as pos- 
sible? What kind of "common' crime can be proved by 
books? 

Counsel for the defense repeatedly asked that question. 
It provoked disputes, colloquies, that took up many hours 
of the trial. It was never answered but we may as well an- 
swer it right now: no crime, common or uncommon, ordi- 
nary or extraordinary, can be proved with such evidence. No 
criminal trial has such a record. This is not, therefore, a crimi- 
nal trial; it is a political trial. That is the heart of the matter 
and that is why the Court steadfastly declined to answer the 
question or to acknowledge the true character of the case. 

Judge Medina's attempts to show why the case should be 
treated as a burglary case, produce some of the most startling 
dialogue in the record, and his use of the burglary-theory 
produces the most fantastic procedures. On March 30, during 
the direct examination of Budenz, the prosecution offered in 
evidence a book known as The History of the Communist 



The Law in Wonderland 73 

Party of the Soviet Union, one of the youngest of the "Marxist 
classics." Defense Attorney Richard Gladstein rose to say: 

"I have no objection to the contents of the book, but I will 
make this objection: I submit that it is not proper in a court 
of law to try men upon the fact that they recommended for 
study any book/' 

Another defense attorney, Abraham Isserman, added that 
introduction of the book was, in effect, to put books on trial, 
to try history. 

Medina summarily dismissed the defense point of view: 
It is trying those persons who used the book and other means 
to allegedly commit a crime, and that is part of the parapher- 
nalia of the charge, it seems to me. I will allow it." 

Paraphernalia! But a book raises somewhat different prob- 
lems than a burglar's tools, the defense caustically submitted. 

"Is the jury to read and study this book before it renders 
its verdict?" Isserman asked. And how would this be ar- 
ranged? "Is the Court going to do it? Or shall we read it to 
the jury word for word and then bring in people to explain 
it?" 

For all reply, Medina reiterated his burglary theory: "This 
book is, as I understand it, part of the paraphernalia, one of 
the implements that are alleged to have been used by the de- 
fendants in forming the conspiracy that is alleged in the com- 
plaint or in the indictment." 

There is something about political trials that leads them 
inevitably toward book-burning. Was it not a famous Nazi who 
said: "When I hear the word 'Culture/ I reach for my gun"? 
Judge Medina, having compared the defendants to burglars, 
has no retreat: he must compare the only tools they used- 
books to a burglar's jimmy. There is the smell not only of 
bonfires but the gas-chamber in this vicious sophistry. 

"To call these books 'paraphernalia' and 'apparatus' is to 
reduce books to the level of tools of thieves," Sacher declared 
on another occasion. "I tell you the culture of the world will 
not long survive with that approach to books." 



74 Aesop 's Fables 

Of course, if the prosecution could show that the defen- 
dants threw Marxist classics at the head of the witness, in- 
tending thereby to make Marxist-Leninist principles penetrate 
his mind, the Court might reasonably speak of the books as 
"implements" of the crime. But there is no evidence that these 
principles ever made any impression on the mind of Louis 
Budenz. In the actual circumstances, the comparison shows a 
profound contempt for ideas, whereas the Founding Fathers 
or their constituents thought the free circulation of ideas 
was so important that they protected that freedom in a Bill 
of Rights tacked on to the Constitution. 

An accusation against ideas must be met by defense of 
ideas. All Medina's freely invoked powers could not put the 
burglary case together again. Though he threatened the de- 
fendants and their lawyers almost from the first day of the 
trial, though before the trial was over he did indeed remand 
several defendants to jail for the "duration" and set United 
States Marshals to keep the lawyers in their seats, he could 
not put down the defense challenge. The defense dared not 
relent. It had pointed out before the trial began that the de- 
fendants were charged with "wrong" ideas, whereas the Con- 
stitution protects ideas from the scrutiny of policemen and 
politicians. Once this right had been violated and the de- 
fendants' ideas placed on trial, the defense could only insist 
upon demonstrating at every juncture that it had not misstated 
the nature of the case. The prosecution in which we must 
include Judge Medina, or rather, in which Judge Medina 
included himself not being free to turn back, could only 
attempt to cry down the defense. 

This it was that gave the trial its bitter flavor of personal 
combat between a judge and a group of lawyers. Virtually all 
that the public obtained from press reports of the trial, was the 
fact of the combat. The impression, the only impression left 
with the public, was of a poor, patient judge martyrized by 
rascally Communist lawyers who used "Communist tactics 
of jumping up and down" to wear out this very incarnation of 



The Law in Wonderland 75 

even-handed justice. The Judge frequently furthered this im- 
pression by charging that the defendants were trying to pro- 
voke him into some action which would cause a mistrial. In 
this way, he sought to account for the unusual character of the 
trial. 

But that explanation was unnecessary. How could a trial 
full of books have been other than strange? If you offer a 
burglar's jimmy in evidence, why there's an end of it. But 
once you admit a book into evidence, you have to ask what 
the book was used for. A jimmy? Why that pries open a 
window. But a book? Ah, that's a question of the contents 
of the book, the meaning of the book, the life and character of 
the writer and the reader. When only parts of each book, 
pages or even sentences, are offered in evidence, nothing but 
a trick answer can result. The very quotations read by the 
prosecution into the record, warned against doing what the 
prosecution was thereby doing. Prosecutor McGohey, reading 
an article by Eugene Dennis in Political Affairs, Communist 
monthly, seemed unaware that he was telling the jury it could 
not understand Marxism-Leninism by taking extracts out of 
context: 

"Stalin counselled the Bolsheviks to study Lenin," Dennis 
wrote, " 'to study Lenin not from isolated quotations but from 
the substance of his work, to study him seriously and thought- 
fully/" 

Medina nevertheless permitted the prosecution to read 
such isolated quotations throughout the trial. To give the 
appearance of fair play, he would invite the defense to find 
other extracts if it could be argued that they contradicted the 
prosecution offering. But he would not hear the real defense 
reply that in the context of the whole book and the whole 
theory of Marxism-Leninism, the extracts did not mean what 
prosecution witnesses were allowed to say they meant. 

The Judge and prosecutor not only depended upon out-of- 
context quotations, but frankly feared books in context. The 
History of the Communist Party of the Soviet Union played 



76 Aesop's Fables 

so large a part in the government's case, that the question 
arose of giving each member of the jury a copy so that he 
might follow the various readings. Then it was suggested that 
it would be even better to give each juror a copy to retain. 
But here the government and the defense divided: 

(From the record) 

McGoHEY: Not overnight. 

MEDINA: No, not overnight. 

McGoHEY: Oh, we would have them here every day. We 
will bring them into the courtroom so that the jurors can have 
them each day. 

CROCKETT: May I suggest that there is nothing inappro- 
priate for the jury to keep the books. There is no very great 
expense attached to it. This is the cheapest issue. 

MEDINA: No, no, I don't go along with this business of 
taking them home. 

SACHER: When will they read them? 

MEDINA: We have recesses. 

SACHER: Recesses? We would like them to smoke during 
the recesses. 

MEDINA: You would like them to take them home? 

SACHER: Yes, I think it is a good idea. 

MEDINA: Well, I don't. 



Judge Medina was forced to elaborate his "common 
crime" theory of the trial to explain why extracts are admis- 
sible but whole books are not. This required him to drop the 
burglary hypothesis and substitute arson! It was April 4, 
near the end of the cross-examination of Budenz. Defense 
attorneys were pressing their point. Not only whole books, 
but additional expert testimony would be necessary to explain 
the extracts already admitted, they said, because "we are 
getting into a big field of political ideas and philosophical 
ideas." 



The Law in Wonderland 77 

"If your views have any substance," said the Judge, "we 
will be here a good many years." 

"Well, your Honor," attorney Isserman retorted, "the 
government is bringing in these documents, not the defend- 
ants. They are bringing in volume after volume and book 
after book with regard to a philosophy that took a hundred 
years to develop, and that is really what is on trial." 

Why, now, come, said Medina. Suppose A, B, and C are 
charged with conspiracy, and suppose "they got up certain 
papers" that described their conspiracy "in the most une- 
quivocal language." Nothing was missing. "They had every- 
thing down there, how they were going to get to the Presi- 
dent's house and blow up the house" and so on. And suppose, 
said the Judge, that there was a lot more of this document, 750 
pages more of it, that had nothing to do with the details of the 
plot "but spoke in the most extravagant terms of how good 
all these people were." What would be the use of admitting 
the 750 irrelevant pages? 

This is nonsense-with-a-purpose. Of course no such docu- 
ment ever existed or could exist. Gangsters plotting an un- 
mistakable crime that requires writing down the plan of 
action, don't add 750 pages of whitewash. If they fear the 
guilty documents may fall into the wrong hands, they may 
employ cryptic language; but then they would not defeat 
the purpose of the cryptic language by putting down in "une- 
quivocal language," somewhere else in the same communica- 
tion, their whole plan "to burn down the President's house." 
Men who plan tangible acts either don't put them down on 
paper or don't add pages of vague self-praise. 

And therein lies the secret of Judge Medina's maneuver. 
He is deliberately concealing from the jury the difference be- 
tween acts and ideasthe very essence of the Communist con- 
spiracy trial. Communist books, written up to one hundred 
years ago, certainly cannot contain unequivocal plots to burn 
down anything in the United States from on or about April 
1, 1945 to July 20, 1948. Nor can the writings of American 



78 Aesop's Fables 

Communists before or during the period covered by the indict- 
ment speak in "unequivocal language" of some criminal act 
covered by this indictment. Why not? For the very good reason 
that this indictment does not charge them with any criminal 
act whatsoever! The defendants are not charged with an act; 
they are charged with something called "teaching and advocat- 
ing." Nor are they charged with teaching and advocating any 
act, criminal or otherwise, least of all a clear and specific of- 
fense such as burning down the President's house. 

There is the gimmick. Sedition trials, political trials, trials 
of ideas, always have some such dodge. The defendants are 
charged with no act. They are charged only with teaching 
and advocating certain ideas known to Communists as "the 
principles of Marxism-Leninism." It is these ideas, this com- 
plex system of ideas as a whole, that the government is attack- 
ing. The government says that "the principles of Marxism- 
Leninism" require the overthrow of the government of the 
United States by force and violence and therefore, the de- 
fendants, who teach those principles, should be put under 
lock and key. That is the Communist conspiracy case. 

"I ask you ladies and gentlemen to remember that phrase, 
'Marxism-Leninism/" Prosecutor McGohey said to the jury 
in his opening argument. "You will hear it frequently, through- 
out this trial. We propose, we say that we will establish that 
it is fundamental in the principles of Marxism-Leninism: 

"1. That Socialism cannot be established by peaceful 
evolution but, on the contrary, can be established only by 
violent revolution, by smashing the machinery of government 
and setting up in its stead a dictatorship, a dictatorship of the 
proletariat. 

"2. That this smashing of the machinery of government and 
setting up the dictatorship of the proletariat can be accom- 
plished only by the violent and forceful seizure of power by 
the proletariat under the leadership of the Communist Party." 

But this is in itself an admission that the prosecution case 



The Law in Wonderland 79 

does not rest on any document or documents admitting in 
"unequivocal language" an intent to perform specific criminal 
acts. It does not modify this admission that McGohey goes on 
to outline the cloak-and-dagger features of the government 
case. Following the principles of Marxism-Leninism, he said, 
the defendants in schools and publications taught and teach 
"that the classic model for forceful and violent overthrow 
of the government of the United States is the Russian Revolu- 
tion of October 1917" and so on through the kindergarten- 
theory of Communism. But all he is saying is that he, Tom 
Clark, and perhaps Judge Medina, so interpret the multiform 
doctrine called "Marxism-Leninism." He is conceding that 
there is not and cannot be evidence that the defendants plan- 
ned, so to speak, to burn down the President's house. Nor can 
there be any document advocating the commission of any 
given act of violence at a given time and place. There are no 
admissions; there is only interpretation. 

Now the cat is out of the bag. In the context of today's 
events, Medina's hypothesis about burning down the 
President's house, is evidence of a frame of mind that may 
well lead to burning up the Bill of Rights. There has 
been only one case in history of a government trying to outlaw 
Communism on so shabby a pretext. That was the trial of the 
late Georgi Dimitrov and the leaders of the German Commu- 
nist Party at the instigation of Hermann Goering and Paul 
Joseph Goebbels. Appropriately enough, the charge against 
Dimitrov and his co-defendants was arson! Is there no pres- 
ent day symbolism in the fact that the very men who cried 
"Arson!" had themselves set fire to the Reichstag, subsequently 
ordered the burning of books loved by all the world, and 
finally started that mighty blaze known as the Second World 
War? 



Chapter 9 
GOOD MORNING, JOE 



Now here is a pretty pickle! Mr. McGohey has an Alfred 
Hitchcock scenario on his' hands but the light is bad. He 
plans to present (and does present) a simple Hollywood 
cloak-and-dagger plot. All his evidence is of that character 
and his witnesses would be miscast in any other kind of story. 
But those confounded books have got into the picture! It is a 
very serious conflict for the prosecution. Since this is not Hol- 
lywood, the scenario could not be "shot" with the absolute 
freedom the prosecutor might prefer. Certain concessions to 
reality had to be made. Even in presenting his kindergarten 
version of Communism, the prosecutor was forced to use the 
language of actual Communism, that is, to read from the vast 
library of Communist theoretical works, the Marxist "classics." 
The melodrama gets lost in the lecture-hall: now it is the 
prosecutor who reads extracts from a variety of books and 
pamphlets, after which the defense reads counter-extracts 
from the same books; then it is the turn of the defense to read 
extracts and of the prosecution to counter. Our thriller 
threatens to end up as a documentary for classroom use. 

This is no imaginary problem for the prosecution. It is 
very real. The Communists must be presented as simple 
cutthroats who seriously believe they can "seize" power by 
armed force in an economic crisis or upon the outbreak of 
war. But how can you make a jury see them that way if day 
after day they are shown as studious men poring over scien- 
tific books? The books create the wrong atmosphere. They 

80 



Good Morning, Joe 81 

emphasize the complexity of Communist theory and the 
seriousness with which Communists use it as a guide in their 
daily work. They suggest that Communists just don't fit the 
description supplied by the prosecution. If they don't, what 
becomes of the whole prosecution theory of the case? Plainly, 
the prosecutor is in trouble. 

Now comes Louis Francis Budenz, a slightly soiled hero, to 
the rescue. His membership in the Communist Party from 
mid- 1935 to late 1945, during which period he occupied prom- 
inent positions and came into contact with the defendants, 
lends a certain authority to his testimony. His abandonment 
of the party for the ostensible purpose of returning to the 
Catholic Church, makes him a safe witness and one certain 
to be very hostile to the defendants: vindictiveness goes with 
renegacy. Moreover, as a witness, Budenz was not an untried 
quantity. He had told his story to a number of governmental 
bodies: the House Un-American Activities Committee and 
comparable bodies in various states; he had even published 
a book with substantially the same bias.* 

The prosecutor has assigned to Budenz the admittedly 
difficult task of reconciling the complicated and known facts 
about Communism, with the government's nightmare-in-the- 
kindergarten theory. This is a double job: first, to fit the 
actions of the American Communists into the "orders from 
Moscow" pattern; second, to water down Communist theory 
to the same level. Budenz tackled the first part of the assign- 
ment in the afternoon of March 24. 

The specific questions-and-answers purported to "explain" 
events within the Communist Party from May 1945 through 
the years covered by the indictment (the revolt against 
Browder, previously described). The prosecutor first showed 

* While the defendants were under indictment but before trial, 
Budenz testified before the Un-American Committee that Eugene Den- 
nis had headed a wartime spy-ring! Needless to say, Dennis was not 
indicted for espionage and the government's chief witness at Foley 
Square said nothing about spying. 



82 Aesop's Fables 

that Budenz had held leading editorial positions on the Daily 
Worker during the period in question; then the witness was 
asked about the paper's news of the San Francisco Conference 
to organize the United Nations. Budenz identified Joseph 
Starobin and Frederick Vanderbilt Field as the reporters who 
"covered" the conference for the Daily Worker. The direct 
examination then continued: 

(From the record) 

GORDON: While Mr. Starobin and Mr. Field were in San 
Francisco, did you receive any communication from either 
of them? 

BUDENZ: Yes, sir. I received several communications but 
one specifically from Mr. Starobin. 

GORDON: Can you recall when it was that you received it? 

BUDENZ: It was was in between the time that D. Z. Manuil- 

sky of the Ukrainian Delegation arrived in San Francisco 

oaa 

Defense Attorney Sacher interrupted the witness here to 
ask the Court to direct him to state the time in terms of day, 
date, month or year. This is normal procedure; throughout the 
trial Judge Medina required that "the time and place be fixed" 
by the calendar. But on this particular occasion, he did not 
choose to overthrow the obviously rehearsed testimony by 
such a requirement. Gordon made only a perfunctory show of 
asking for the date: 

(From the record) 

GORDON: Well 

BUDENZ: It was in May of that year. 

GORDON: Do you remember the date? 

BUDENZ: Not the specific date. It lay between the arrival 
of D. Z. Manuilsky of the Ukrainian Delegation in San Fran- 
cisco and the publication of the Jacques Duclos article attack- 
ing Earl Browder. 

* * 

Medina not only overruled a defense motion to strike this 



Good Morning, Joe 83 

testimony from the record, but himself prodded Budenz with 
questions designed to further identify Ukrainian Premier 
Manuilsky as the former secretary of the Communist Interna- 
tional. The date of his arrival in San Francisco was established 
(by reference to news dispatches) as May 6, and the publica- 
tion in the World-Telegram of the story about the Duclos 
article was given as May 22. Accordingly, the whole point 
of Budenz's testimony here, is to connect Manuilsky with the 
events that followed publication of the Duclos article. 

To this end, Budenz further related that he opened Staro- 
bin's letter and started to read it, but before he finished it 
the letter was taken away by defendant Jack Stachel and he 
never saw it again. But he had seen enough, he said, to show 
that Manuilsky had talked to Starobin about precisely this 
matter. According to Budenz, Manuilsky said "that the French 
comrades had been given the commission to instruct the Amer- 
ican comrades as to how to act in these matters." Following 
this lead, Gordon constantly phrased his questions so as to 
exploit the "international network" implication of Budenz' 
story. He persistently put into his subsequent questions the 
expressions, "the French comrades," and "the American com- 
rades." Thus, referring to the Daily Worker of May 24 in 
which the Duclos article was first printed, Gordon asked: 

"And in that issue is there published anything by a French 
comrade?" 

In this manner, the prosecution "established" that the 
subsequent events happened on "orders from Moscow." But 
the whole record of the trial contradicts this tale. It shows that 
the American Communists made their own decisions to such 
an extent that they could fall, unchecked, into what they 
themselves later characterized as a completely wrong policy. 
The "secret" communication of "orders" by Manuilsky to the 
American Communists between May 6 and May 22 (by the 
"safe" medium, incidentally, of an ordinary, uncoded letter) 
is a fabrication that fails to explain two facts: 1. Why Duclos' 
criticism of the American Communists was not secretly com- 



84 Aesop's Fables 

municated; 2. that it was openly published well before May 6 
in the April issue of the magazine Cahiers de Communisme. 

The prosecutor, however, is satisfied. He has explained 
the 1945 reorganization in terms of the government's arbitrary 
description of Communism. This description is distinctly old 
hat. So much so, that many years ago a well-known comedian 
laughed it out of fashion by doing a pantomine take-off on it. 
The comedian, Zero Mostel, did an elaborate silent routine of 
an American Communist getting up in the morning, going 
through the waking-up process and getting dressed, then 
going immediately to the telephone. There he is heard calling 
long distance; he asks long distance for Moscow and the 
Moscow operator for the Kremlin. When he gets the Kremlin, 
he asks for "Joe." And after all that build-up, he says, "Good 
morning, Joe! What do I do today?" 

At any rate, for what it is worth, Budenz has now per- 
formed the first part of his assignment: to describe the 1945- 
1948 actions of the American Communists in terms of the 
"orders from Moscow" theory. There remains the second and 
harder task: to whittle down the involved and extensive body 
of Communist theory to the level of a Skid Row policeman's 
mind. The method chosen by the prosecutor to steer Budenz 
through this part of his assignment, was dictated by the nature 
and form of the indictment, which we have only briefly noted 
in earlier pages. 

The indictment contains ten numbered paragraphs. These 
describe, one by one, the steps taken by the Communists to 
effect the reconversion of the Communist Political Association 
into the Communist Party of the United States in the spring 
and summer of 1945. The steps cited in the indictment include 
the calling of various meetings and conventions; the adoption 
of a preliminary resolution and a subsequent new party Con- 
stitution; the adoption of a program calling for party and non- 
party schools in which Marxism-Leninism would be taught 
and for books, articles, magazines and newspapers in which 
the same principles would be propagated. 



Good Morning, Joe 85 

Now here is the first extraordinary thing about the indict- 
ment: no one disputes the facts it cites! The defense merely 
denies that the cited facts constitute a crime. And this points 
to the second extraordinary thing about the indictment: you 
cannot lay your finger on the charge! In any indictment you 
expect to find a charge that certain clearly unlawful acts were 
performed at a stated time in a given place. A conspiracy in- 
dictment charges a number of persons with plotting to per- 
form some similarly unlawful act or acts. In either case, every- 
one knows what the charge is and what will or won't serve 
as a defense. If a man is charged with breaking into and 
entering a house at 444 East 44th Street on the night of May 
24, 1945, for the purpose of stealing jewels therein, you do not 
need a lawyer to tell you that the act charged is in itself 
unlawful. If eleven men are charged with conspiring to burn 
down the President's house, any layman can see that the plot 
is unlawful and the act plotted is unlawful. But this indictment 
is different: it charges only lawful acts! 

In this indictment, eleven men (twelve in fact, but the 
case of William Z. Foster was "severed" because of illness) 
are charged with "conspiring" to organize meetings, news- 
papers and schools that they have every right to organize or 
agree to organize. These things they "conspired" to do are 
not only lawful acts, but acts the Constitution specifically 
forbids Congress ever to declare unlawful. No other specific 
acts are charged in the indictment. The defendants do not, 
it is obvious, deny the acts charged. And this leads to the third 
extraordinary aspect of the case: you cannot find an issue! 

The indictment fails to allege a criminal act. The govern- 
ment is content to recite certain actions and say that each 
forms part of a continuous conspiracy to teach and advocate 
the overthrow of the Government of the United States by 
force and violence. The defense replies that this is not only 
poppycock but an attack on the Bill of Rights, an attack on 
freedom of speech and of the press and all the other freedoms 



86 Aesop's Fables 

cited in the first eight Amendments to the Constitution of the 
United States. 

What the indictment really says, is this: let's call the open, 
public activities of the Communist Party, a "conspiracy." Then 
let's put the Communists in jail for these activities. But one 
could hardly expect the government to give the game away 
by language of that kind. So the indictment uses some of the 
most involved sentences (the first sentence, paragraph one, 
of the indictment, contains 187 words) and curious language 
imaginable. It says that the defendants performed the various 
acts already described, "for the purpose of organizing the 
Communist Party of the United States of America, a society, 
group and assembly of persons dedicated to the Marxist- 
Leninist principles of the overthrow and destruction of the 
Government of the United States by force and violence/' 

"Marxism-Leninism" that's the prosecution's secret 
weapon in this case! The indictment uses the phrase again and 
again. The defendants, it says, caused the Communist Party 
to adopt a Constitution based on "the principles of Marxism- 
Leninism." They planned to "publish and circulate . . . 
books, articles, magazines and newspapers advocating the 
principles of Marxism-Leninism." It was likewise "a part of 
said conspiracy that said defendants would conduct, and 
cause to be conducted, schools and classes for the study of 
the principles of Marxism-Leninism, in which would be taught 
and advocated the duty and necessity of overthrowing the 
Government of the United States by force and violence." 

In the last sentence, particularly, "Marxism-Leninism" be- 
comes the equivalent of advocating the violent overthrow of 
the government. Thus, by mere indirection, obliquely, the 
charge of conspiracy is propped up and the appearance of a 
case is maintained in the indictment. These sinister references 
to "Marxism-Leninism," also indicate how the prosecution 
must "prove" its case. It must persuade the jury that to teach 
"the principles of Marxism-Leninism" is to teach and advo- 
cate "the overthrow of the government." 



Good Morning, Joe 87 

But precisely here lies the quicksand. How shall the prose- 
cutor venture on that ground? He dare not submit the whole 
mass of Communist theory, the library of Marxist literature, 
to the jury and say: "Here, now, study all this and decide that 
it adds up to unlawful advocacy." In the first place, the jury 
wouldn't know where to start. But beyond the practical dif- 
ficulty of such a method, lies the political difficulty: to rest 
the case frankly on books and books alone would be a confes- 
sion that the defendants are on trial for political heresy, not 
for plotting to burn down the President's house (as in 
Medina's hypothesis ) or to take over the government by sud- 
den armed assault (as the prosecution quite seriously alleges). 
To admit that it is a political trial would be fatal. It would 
follow that, under the Constitution, the government had no 
right to try the case in the first place. It is not proper to bring 
men before the bar of American justice because they believe, 
teach and publish a doctrine that condemns capitalism and 
advocates its replacement by Socialism. 

This is the dilemma of the prosecutor. That is why he must 
somehow counter the effect created by introducing books into 
the case. That is why he puts his faith in Budenz. He uses 
Budenz for all he is worth no, that is a dubious formulation. 
He used Budenz for many days; his testimony fills pages 1338 
through 2614 of the stenographic record. Almost 1300 pages- 
say five books this size! 

Yet the real mission of Louis Budenz is fulfilled when he 
has uttered one sentence! He is called upon to pronounce a 
one-sentence interpretation of the phrase "Marxism-Leninism." 
One sentence carefully wrapped up in 1277 pages of testimony! 
And in smuggling that one sentence into the record, the Court 
and prosecutor and witness combined to perpetrate as ugly 
a legal swindle as this country has ever seen. 

What was the content of that sentence? Budenz was asked 
to state and did state, his opinion as to the meaning of Marx- 
ism-Leninism. Thus there went into the record as evidence, 
that which was not and could not be evidence a mere con- 






88 Aesop's Fables 

elusion, Louis Budenz' interpretation of the meaning of Marx- 
ism-Leninism. The opinion and conclusion of Louis Budenz 
as to the meaning of the whole vast library of Communist 
writings embodying the principles of Marxism-Leninism, by 
some strange coincidence, exactly corresponded to the opinion 
and conclusion of John F. X. McGohey, United State Attorney 
for the Southern District of New York. It likewise exactly 
followed the characterization of Marxism-Leninism repeatedly 
made in the indictment. Here is Budenz' magic sentence as 
recorded at page 1809 of the stenographic minutes of the trial: 

"In the United States this would mean that the Communist 
Party of the United States is basically committed to the over- 
throw of the Government of the United States as set up by the 
Constitution of the United States/' 

By admitting this sentence into evidence, Judge Medina 
ended the trial for all serious purposes. What a marvellous 
trick this is! It avoids the necessity for evidence and for a 
jury as well. The "proof" of the defendants' guilt is "estab- 
lished" by the mere say-so of Louis Budenz! This one sentence 
is not only the substance of the testimony of Budenz, but it is 
the whole substance of the government's case from beginning 
to end. All the rest of the testimony is pure atmosphere. The 
indictment and the prosecution case alike, rest on a difficult 
question: what is the meaning of Marxism-Leninism? The 
long and complex readings suggest how hard it will be to get 
a definite answer to that question, to find one interpretation 
that will exclude all others and convince a jury beyond a 
reasonable doubt. But now this central problem of the trial 
has been wrenched from the hands of the jury. It has been 
turned over to a prosecution witness and he has been permit- 
ted to say, as a matter of evidence, "Yes, Mr. Prosecutor, your 
interpretation is the right one; the interpretation of Marxism- 
Leninism in the indictment is correct." The trial continues, 
but the issue has been foreclosed. 

Let us turn now to the courtroom to see this swindle 
transacted. The prosecutor opens a series of questions on the 



Good Morning, Joe 89 

Constitution adopted by the reorganized Communist Party 
in 1945. The first sentence of the preamble is read; it says: 

"The Communist Party of the United States is the political 
party of the American working class, basing itself upon the 
principles of scientific Socialism, Marxism-Leninism." 

The prosecutor asks Budenz what that means. Defense 
Attorney Gladstein is on his feet at once. To ask the witness 
what it means, he says, "amounts to an invasion of the province 
of the jury. It is for the jury to decide." 

"How will they know what Marxism-Leninism is referred 
to there unless somebody tells them?" replied Judge Medina. 

In the continuing argument, Attorney Isserman elaborated 
the defense objection. "The record already indicates," he said, 
"that Marxism-Leninism, or scientific Socialism is a body of 
ideas of vast scope and extent. That is indicated already by 
the documents that have been put into evidence by the govern- 
ment and from the quotations read to the jury and the balance 
of the articles not read to the jury. There is no evidence that 
this witness is qualified to testify on the meaning of a body 
of ideas such as Marxism is composed of. 

"Moreover, any definition of that meaning would be one 
that would take a person qualified over a considerable period 
of time to explain with reference to the vast body of writings 
which compose Marxism-Leninism." 

Judge Medina overruled all defense objections and, taking 
the matter out of the hands of the faltering prosecutor, forced 
the pace himself. "In the context we now have in evidence 
here," he said, "there is no reason whatever why this witness 
may not explain to us what was the common understanding 
between him and his fellow-Communists of this sentence." 

Sacher objected even more heatedly to the Court's com- 
ment than to the question itself. He protested that the defend- 
ants were not charged "with such interpretations and meanings 
as this witness may give to Marxism-Leninism or anything else. 
Nor are they charged with conversations and closet interpre- 
tations between Mr. Budenz and anybody else," an obvious 



90 Aesop s Fables 

reference to pre-trial preparation of the testimony by Budenz 
and McGohey. 

Medina pressed on. "Mr. Budenz, what did you, in con- 
nection with the other Communists that you were working 
with there, understand that to mean?" Further emphatic pro- 
test by the defense blocked an answer until after the noon 
recess on March 29, when Budenz at last succeeded in execut- 
ing his mission by putting the following answer into the 
record: 

"This sentence, as is historically meant throughout the 
Communist movement, is that the Communist Party bases 
itself upon the theory and practice of so-called scientific 
Socialism as appears in the writings of Marx, Engels, Lenin 
and Stalin . . . who have specifically interpreted scientific 
Socialism to mean that Socialism can only be attained by the 
violent shattering of the capitalist state, and the setting up of 
a dictatorship of the proletariat by force and violence in place 
of that state. In the United States this would mean that the 
Communist Party of the United States is basically committed 
to the overthrow of the Government of the United States 
as set up by the Constitution of the United States." 

Now let us see where we stand. We have already heard the 
defense barred from showing what it holds Marxism-Leninism 
to be the actual activities, writings and speeches of the de- 
fendants. Judge Medina frequently asserted that he had per- 
mitted a good deal of this, had been very generous, in fact, in 
allowing defense testimony and cross-questioning on such 
matters as Jim Crow, the labor movement and other things in 
connection with which the defendants had been "good boys." 
But always he allowed this as a kind of favor with the express 
statement that these were "collateral" or "peripheral" issues. 
But there's the rub! No side question but the heart issue is 
involved here; the real meaning of Marxism-Leninism is ex- 
pressed in a vast body of literature inextricably interwoven 
with day-to-day activities in a hundred fields of workaday 
struggle. All this the witness has been allowed to exclude 



Good Morning, Joe 91 

from the jury's contemplation by his simple assertion that 
Marxism-Leninism is nothing but the violent overthrow of the 
government. 

The defense, in a motion to strike out Budenz' definition, 
makes that point. The definition has no place in the record 
because "it is invading the province of the jury in deciding 
the ultimate issue in this case in prejudging that decision/' 
Denied. 

The Budenz definition was given in March and the key 
lines appear on page 1809 of the stenographic record. Approxi- 
mately five months later, defendant Robert Thompson took 
the stand. He was asked the same question put to Budenz, 
and the following took place, as recorded on pages 11,818 
and 11,819 of the record: 
(From the record) 

GLADSTEIN: Will you state to this jury what is Marxism- 
Leninism? 

McGoHEY: Objection. 

MEDINA: Sustained. 

GLADSTEIN: May I call your Honor's attention to the state 
of the record 

MEDINA: No, I don't want to hear any argument about it. 

GLADSTEIN: But, your Honor 

MEDINA: I will hear what this witness directed to be taught, 
resolutions that he voted for setting up the schools and what 
was to be taught in the schools, and when the time comes, 
if it does, for him to testify what he taught and in particular 
schools, within certain limitations I will permit. I do not con- 
ceive the question before us to be one which makes that ques- 
tion relevant. 

GLADSTEIN: Would your Honor notice that in the record 
your Honor permitted the witness Budenz to be asked pre- 
cisely that question and to give an answer to it? 

MEDINA: You know, I just told you I didn't desire to hear 
argument but you wanted to get that point in and so again 
you have become contemptuous. Go ahead. 



92 Aesop's Fables 

GLADSTEIN: May I ask the witness the very same question 
that Mr. McGohey asked, your Honor? 

MEDINA: I tell you, Mr. Gladstein, again, I do not desire 
to hear argument. 

GLADSTEIN: I do not want to argue but I am asking per- 
mission 

MEDINA: No, you are arguing, and you are again con- 
temptuous. 

* * a 

A lavish cross-section of Marxist-Leninist theory may be 
found in the trial record. There it stands for the jury to con- 
sider. In the Federal courts, the judges have the right not only 
to expound the law but to comment on the evidence. They do 
not, however, have the power to delegate that right to a wit- 
ness. That is exactly what Judge Medina has done: he has 
permitted Louis Budenz not only to comment on the evidence 
but to sum up the case. And worse: his summary has been 
offered and accepted as evidence submitted by an authoritative 
witness. 

"Who would know," Judge Medina argued in the presence 
of the jury, if not this man "who was right up there" working 
with the defendants? 

A man who was working with the defendants would know, 
but a man who is a defendant either wouldn't or it won't do 
him any good; Judge Medina isn't going to let him tell. 

Well, the case is in the bag. And so, too, is the Bill of Rights 
if the Supreme Court or the people of the United States 
permit this legal lynching to go unchallenged. 



Chapter 10 
LOUIS FRANCIS AESOP 



Anything "went" in the Communist conspiracy trial. The 
star witness was even permitted to relate one of Aesop's 
fables in modern anti-Communist dress. The purpose of his 
fable, and of the government in bringing it into "evidence," 
was to support Budenz' previous definition of Marxism-Len- 
inism. The prosecution definition was well tailored to fit the 
indictment, but it hung very loosely on the evidence. For the 
evidence included Communist books and documents which 
forbid Communists, in the most explicit terms, from engaging 
in any of the cloak-and-dagger nonsense alleged by the prose- 
cution. There are several such clear disavowals in the 1945 
Constitution of the Communist Party of the United States. 

It was Budenz' job to talk his way out of that language, 
and he called Aesop to his aid. History is so full of such at- 
tempts to twist the clear meaning of written words, that I can 
also borrow a reply to the Budenz fable from a book on my 
shelf. It is a single sentence inscribed as the motto of a 
miniature edition of Dante's The Divine Comedy: Dov 
piana la lettera non fare oscura glosa where the words are 
clear as sunlight, don't conjure up clouds of mysterious in- 
terpretation. For it was precisely the prosecution's purpose 
to drown the plain meaning of certain Marxist passages, in 
a sea of obscure commentary. It's a pity the witness was not 
acquainted with the work of Juan Ruiz, the archpriest of 
Hita, who told the classic story of an ignorant man turning 
meaning upside down. 

In his fourteenth century book of verse, El Libra de 

93 



94 Aesop's Fables 

Buen Amor, the Spanish priest relates a fabulous history of 
how Rome obtained its culture. The rude Romans went to 
the civilized Greeks to ask for their code of laws. The Greeks 
replied that the ignorant Romans didn't deserve the law be- 
cause they were incapable of understanding it. But under pres- 
sure they agreed to a test: a debate by signs. The Romans 
didn't know where to turn for a representative capable of fac- 
ing the Greek philosophers, so they decided to choose the most 
bumptious yokel they could find and thus put the issue in 
the hands of God. They dressed the bumpkin in the rich 
garments of a Doctor of Philosophy and he took his place 
on the stand puffing fire: "Bring on the Greeks; 111 show 'em." 

Came the learned choice of Greece and, with both nations 
watching breathlessly, he opened the debate with quiet con- 
fidence. He held up one finger the one next to the thumb 
and sat down. The yokel got up, all bluster, and pointed his 
thumb and two fingers, harpoon-like, at his adversary, then 
sat down drooling self-satisfaction. The Greek, for his second 
sign, extended his flat palm. The bumpkin replied with a 
clenched fist, his face the picture of uncomprehending stub- 
bornness. 

This ended the debate. The Greek wise-man turned to 
his countrymen and said, "The Romans deserve the law; I 
will not deny them their due." Asked what he had said and 
what the Roman had replied, the Greek gave this explanation : 
"I said there is one God. The Roman replied that He was 
One in three persons. I said everything is in the hand of God 
and he agreed that all is in His power. As soon as I saw that 
the Romans understood and believed in the Trinity, I knew 
they deserved the security of the law." 

Those who asked the yokel, got quite a different and Bu- 
denz-like answer: "He said to me that he'd gouge out an eye 
with his finger and that got under my skin, made me boiling 
mad, I can tell you. So I answered him in his teeth (that's 
the way you have to talk to those fellows) that right in front 
of everybody, I'd poke out both his eyes with my two fingers 



Louis Francis Aesop 95 

and break his teeth with my thumb. Then he said he'd slap 
me so hard my ears would ring in the New Year, and I an- 
swered I'd give him the kind of punch in the nose that he 
wouldn't forget all the New Years of his life. Well, when he 
saw he couldn't scare me and that I was too tough a customer 
for him, he decided he might as well quit threatening and 
he gave up/' 

Juan Ruiz sums it up as well for the Communist conspiracy 
case as for the censor who might misread his book: "There 
is no evil word here unless it be ill taken/' It was precisely 
Budenz' assignment to misread those passages of the 1945 
Communist Constitution that refuted his "definition" of Marx- 
ism-Leninism. Immediately, therefore, after the Court re- 
fused to strike that definition from the record, Gordon asked 
Budenz a curiously-worded question that only a well-re- 
hearsed witness could have understood. Does the expression, 
"basing itself upon the principles of scientific Socialism, 
Marxism-Leninism," as it appears in the 1945 Constitution, 
have "any particular meaning with respect to other language 
which may appear and does appear throughout the Consti- 
tution?" Gordon asked. 

"Yes, sir," Budenz replied without hesitation. "It implies 
that those portions of this Constitution which are in conflict 
with Marxism-Leninism are null in effect. They are merely 
window-dressing asserted for protective purposes, the Aesop- 
ian language of V. I. Lenin." 

This passage not only has a rehearsed character, but the 
way had been opened for it by Judge Medina in one of his 
earlier, prejudicial remarks so frequently encountered in the 
record. He had said: "I also notice what strikes me as a 
curious way of expressing themselves in these articles and 
resolutions. It isn't always clear to me. I suppose somebody 
is going to explain that before we get much further in the 
case, because there are a lot of words that don't mean much 
to me. It seems to me like a special jargon that, maybe, is 
used in this particular subject." 



96 Aesop's Fables 

The prosecutor seized on this invitation to let Budenz de- 
fine such technical terms as tailism, revisionism, renegade (a 
word that should have made him blush), exceptionalism, 
and, as we have seen, Marxism-Leninism itself. Budenz' "defi- 
nitions," even on their face, are not definitions; they are 
political attacks on the defendants in the familiar language 
of the lowest grade anti-Communism. The true meaning of 
the terms is a matter of the internal history of the Socialist 
and Communist movements for the past seventy-five or one 
hundred years. And it is recorded history but Budenz has 
never read the records! Under cross-examination, he admitted 
that he had given the "Communist understanding" of "revi- 
sionism" and of the "renegade Kautsky," although he had 
never read the basic work, Marxism and Revisionism, a col- 
lection of articles by Lenin and Stalin used as a standard text 
on the subject by Communists. 

Similarly armed with ignorance, he was able to extend his 
essay on "Aesopian language," defining it as "roundabout 
protective language based on the well-known writer of fables, 
Aesop." The first use of the term was ascribed to Lenin in his 
preface to his book, Imperialism. The preface explains that 
the book was written while Lenin was in foreign exile before 
the Revolution. To get the Czarist censors to admit the book 
to Russia, Lenin explained, he avoided certain terms and 
subjects. For instance, his study of imperialism deals largely 
with its economic side, whereas he would have wished to show 
pointedly how economic domination leads to capitalist-impe- 
rialist domination of political life at home and in the eco- 
nomic subject-countries. Moreover, he would have wished to 
give his illustrations in terms of the Czarist empire, but to get 
by the censor he had to say "Japan" when he meant Russia. 
In sum, said Lenin, he had to employ that "cursed Aesopian 
language" imposed by the censor. 

Now what has all this to do with the American Communist 
documents under attack in this court? Those documents say 
"American imperialism" when they mean American impe- 



Louis Francis Aesop 97 

rialism. They discuss not only the economics but the poli- 
tics of American imperialism and do not disguise their hostility 
to it. Having no formal censorship to face, American Com- 
munists in 1945 availed themselves of the possibility of saying 
outright just those things Lenin could not say because of the 
censor. Under the prevailing conditions, they had no need of 
the "protective" and censor-evading "Aesopian-language of 
V. I. Lenin," and employed none. 

If you read the record, you will find that Budenz 
reveals himself as a political mountebank. He simply labels 
every American Communist declaration of legitimate politi- 
cal purpose, "Aesopian language" and "window-dressing." 
But the record shows that identical or similar declarations are 
to be found in those very Marxist-Leninist classics, beginning 
with The Communist Manifesto of 1848, which were written 
beyond the reach of the censor. They contain the most ex- 
plicit avowals of Communist revolutionary aims side by side 
with an outline of legitimate methods by which these aims 
are to be achieved. The Communist Manifesto and the 1945 
Constitution of the Communist Party of the United States 
alike publicly announce that the Communists work for the 
absolute elimination of capitalism and its replacement by So- 
cialism (which later develops into Communism). Both docu- 
ments state that this can be achieved only by day to day strug- 
gles to improve the condition of the working-class, and by 
day to day education. Indeed, they insist that the struggle 
for democratic rights even as understood by capitalist ideolo- 
gists, is an important part of the advance toward Socialism. 

Curiously enough, the Manifesto not only explains this, 
but does so in language designed to give the lie to the Louis 
Budenzes of 1848 and to their Aesopian fables! "The spectre 
of Communism" haunting Europe, according to the very first 
sentence of the Manifesto, was a reference to what we call 
the "Red Menace" or "Communist bogey" today; that is, the 
policeman's-eye-view of Communism in a time of hysteria. 

"Where is the party in opposition that has not been decried 



98 Aesop's Fables 

as communistic by its opponents in power?" asks the second 
paragraph of the Manifesto. And it notes that the opposition 
tries to out-redbait its tormentors by hurling "back the brand- 
ing reproach of Communism" with the utter recklessness we 
see even today. For in 1848, each party, says the Manifesto, 
redbaits the parties not only to the Left of it but even to the 
Right even as the Republicans and Democrats of today. Pre- 
cisely because of this redbaiting, Marx and Engels were com- 
missioned to write the Manifesto. As that document puts it: 
"It is high time that Communists should openly, in the sight 
of the whole world, publish their views, their aims, their ten- 
dencies, and meet this nursery tale of the spectre of Com- 
munism with a manifesto of the party itself." 

It is perfectly true that the Manifesto is the revolutionary 
program of a revolutionary party. It concludes with an avow- 
al: "The Communists disdain to conceal their views and aims. 
They openly declare that their ends can be attained only 
by the forcible overthrow of all existing social conditions. 
Let the ruling classes tremble at a Communist revolution. 
The proletarians have nothing to lose but their chains. . . . 
Workers of the world, unitel" 

That is the conclusion; all that goes before, the whole of 
the Manifesto, explains what Marx meant by "Communist 
revolution" and "the overthrow of all existing social condi- 
tions." In terms of Poland, Austria, Germany, France, Switz- 
erland and the United States of that time, he specifically 
outlined the kind of legitimate political activities and educa- 
tion appropriate to Communist parties. His suggestions in 
the Manifesto add up to a campaign to win majorities by es- 
tablishing "the union and agreement of the democratic parties 
of all countries." In the years that followed, Marx, Engels, 
Lenin and Stalin many times had occasion to repudiate the 
real Aesopian fable that their theory contemplated hand- 
made revolutions. Every Communist document of importance 
contains this repudiation. 

The repudiation is explained in the greatest detail by 



Louis Francis Aesop 99 

Lenin in a pamphlet called Left-Wing Communism, an Infan- 
tile Disorder. The major purpose of the pamphlet was to 
denounce flirtations with adventurist violence by certain 
groups of Dutch and other Communists. He said there could 
be no revolution until the people as a whole have reached 
the limit of their power to endure suffering from the evils of 
the old system. Even that, he said, was not in itself enough 
to permit a revolution. 

"It is not sufficient for revolution that the exploited and 
oppressed masses understand the impossibility of living in the 
old way and demand changes." It is also necessary that con- 
ditions be so critical the ruling classes "cannot continue in the 
old way," or that there be "a national crisis, affecting both the 
exploited and the exploiters." Here indeed is the reference 
to a "crisis" on which the government makes much of its 
case. But the next sentence shows that the crisis contemplated 
is one in which a majority desires to and can overthrow a 
government. "For revolution it is essential, first, that a ma- 
jority of the workers (or at least a majority of the class- 
conscious, thinking, politically active workers) should fully 
understand the necessity for revolution, and be ready to 
sacrifice their lives for it. . . ." The sense of the word "ma- 
jority" is qualified here, but go on to the next words and it 
becomes clear that, as Lenin understands it, this limited 
majority the majority of the more active workers, could not 
if it would, carry out a revolution against the will of the 
actual majority of the population or even in the face of ma- 
jority apathy. For the sentence above concludes: ". . . sec- 
ondly, the . . . ruling classes [must] be in a state of govern- 
mental crisis, which draws even the most backward masses 
into politics" Only when the crisis stirs the normally inac- 
tive masses into action against the government can the ad- 
vance guard of class-conscious workers lead a revolution.* 

In a series of lectures published as Foundations of Lenin- 

* On this point, see Appendix, The Schneiderman Case. 



100 Aesop s Fables 

ism and duly introduced by the prosecution in this trial, Stalin: 
quoted, approved of and enlarged upon these ideas. As ex- 
pressed above, the evidence shows, they were taught in Com- 
munist schools here and quoted in Communist speeches and 
publications. They reflect an elementary truth of history 
understood by serious students of history from Thomas Jef- 
ferson to J. V. Stalin: that you cannot "make" a revolution; 
you cannot tell a revolution when to happen. Jefferson wrote 
the basic thought into the Declaration of Independence which 
affirms the right of revolution. The Declaration says that 
a government rests on the consent of the governed and the aim 
of government is to protect certain "inalienable rights" of the 
individual, rights that add up to "life, liberty and the pursuit 
of happiness." Now, in the words of the Declaration: 

"Whenever any form of Government becomes destructive 
of these ends, it is the Right of the People to alter or abolish 
it and to institute new Government, laying its foundation 
on such principles, and organizing its powers in such form, 
as to them shall seem most likely to effect their safety and 
happiness." 

In short, the people have the right to overthrow any gov- 
ernment and replace it with a government of their own revo- 
lutionary choosing. Abraham Lincoln said it so forcefully 
it should be remembered for all time: 

"Whenever they shall grow weary of the existing govern- 
ment, they can exercise their Constitutional right of amending 
it, or their revolutionary right to dismember and overthrow it!" 

To get the people to exercise that right is another matter; 
they are slow to kindle, or as the Declaration puts it: 

"Prudence, indeed, will dictate that governments longj 
established should not be changed for light and transient 
causes; and accordingly all experience hath shewn that man- 1 
kind are more disposed to suffer, while evils are sufferable, 
than to right themselves by abolishing the forms to which they 
are accustomed." 

And that is why only the ignorant could counsel a revolu- 



ouis Francis Aesop 101 

ionary party to rely on adventurous "risings" or armed forays 
cutthroat bands. Relying on history, the Communists have 

^ jut away such childish toys and they forbid any Communist 
o play with them. Budenz labels the Communist words of 
earning, "window-dressing." But there is no reason to look 
or some mysterious meaning in them or find in them any 
contradiction with the avowed revolutionary aims of the 

e Uommunists. They merely express the belief common to 

k Thomas Jefferson, Karl Marx and serious political scientists 
)f our day, that a revolutionary party cannot make revolu- 
ions but can prepare for the coming of revolution by non- 
riolent everyday work and education. 

Another "political scientist" who held that Marxism em- 

loyed an Aesopian language, was Adolf Hitler! On page 25 

>f the Houghton-Mifflin 1937 edition of Mein Kampf in Eng- 

k ish, Hitler describes how his conversion to anti-Semitism 
nabled him to see the "realities" of Marxism behind "the 
heoretic claims of the first apostles of Social Democracy." In 
he Budenzian language of Hitler: "It had taught me to under- 
stand the verbal methods of the Jewish people, whose aim is 
hide or at least to cloak their ideas; their real objective is 
lot to be read on the lines, but is tucked away well concealed 
Between them." 

The Court and prosecutor took a certain risk in borrowing 
from Hitler, for the latter bases his hatred of Marxism on its 
imdamental concern for democracy, its refusal to tolerate 
minority coercion of the majority. The page quoted above 
goes on: "The Jewish doctrine of Marxism rejects the aristo- 
cratic principle of Nature, and in place of the eternal privilege 

| of force and strength sets up the mass and dead weight of 
.umbers." How one professional anti-Communist persists in 
contradicting another! 

Judge Medina nevertheless prodded Budenz to interpret 
away every passage of the 1945 Constitution that disavowed 
minority violence. Article 9, Section 1 and 2 of that docu- 
ment say: 



102 Aesop 's Fables 

"Conduct or action detrimental to the working class and 
the nation, as well as to the interests of the Party, violation 
of decisions of its leading committees or of this Constitu- 
tion, financial irregularities, or other conduct unbecoming 
a member of the Party, may be punished by censure, removal 
from posts of leadership, or by expulsion from membership. 
. . . Adherence to or participation in the activities of any 
clique, group, circle, faction or party which conspires or acts 
to subvert, undermine, weaken or overthrow any or all insti- 
tutions of American democracy, whereby the majority of the 
American people can maintain their right to determine their 
destinies in any degree, shall be punished by immediate ex- 
pulsion." 

Of course the defense protested against permitting Bu- 
denz to take away from the jury the task of interpreting this 
(as he had already done with other and vital matters). But 
once again Medina took over the prosecutor's role and gave 
Budenz the chance to say that those passages are "purely 
Aesopian language for protective purposes to protect the 
Party in its activities before courts of law in America while 
it could continue the theory and practice of Marxism-Lenin- 
ism/* 

This is not and cannot be evidence. It is nothing but anti- 
Communist agitation. Budenz was not asked to and did not 
testify that he ever heard the defendants discussing this pas- 
sage during the process of drafting the Constitution. He did 
not testify that they said it should be put in for protective 
purposes. He merely asserted, on his own, that it is "window- 
dressing." And Medina calls that "evidence!" The Judge does 
feel, however, the necessity of explaining why he admitted 
these outrageous "interpretations," but his explanation is 
merely additional anti-Communist agitation. He says that it 
was necessary to admit Budenz' "testimony" because the lan- 
guage of the Communist Constitution "looked a little peculiar 
to me." 

In this general atmosphere of complete hostility to the j 



Louis Francis Aesop 103 

defense, Budenz is permitted to stretch his "Aesopian" fable 
beyond the limits of sanity. During cross-examination, when 
he was asked to show how (as he testified earlier) he had 
preached force and violence in his Daily Worker articles, he 
offered the shadow of a shadow of a shadow. Pointing to an 
article that appeared April 12, 1945, he said that "since Aesop- 
ian language has to be used," he recommended in the article 
the reading of an article in the monthly magazine, Political 
Affairs. That is Shadow No. 1. The article, by defendant John 
Williamson, in turn urged the reading of The History of the 
Communist Party of the Soviet Union ( Shadow No. 2. ) "And 
every Communist knows," said Budenz, supplying Shadow No. 
3, "that when you begin to read The History of the Communist 
Party of the Soviet Union, you begin to commit yourself to 
the Leninist line." 

According to this gibberish from the anti-Communist 
madhouse, if you urge a person, in unequivocal language, to 
read Marxist classics with the avowed aim of inducing him 
to become a Communist, you are using "Aesopian language." 
If you urge reading the Bill of Rights upon which the de- 
fense relies strongly in this case you are using "Aesopian 
language." And Budenz continued in this vein, unchecked 
by the Court. Asked if there was anything about force and 
violence in the discussion between June 1945 when the Com- 
munist policy-change began and October 10, 1945 when Bu- 
denz left the party, this transpired: 

(From the record) 

BUDENZ: There was no specific reference to the overthrow 
of the government by force and violence but the whole dis- 
cussion in the Daily Worker was over that question. 

GLADSTEIN: Was over what question? 

BUDENZ: Over the question of adopting the Marxist-Lenin- 
ist position, the Leninist line, which is the overthrow of the 
Government of the United States by force and violence. 
GLADSTEIN: Did it say anywhere in the Daily Worker that 



104 Aesop s Fables 

the Marxist-Leninist line is the overthrow of the government 
by force and violence? 

BUDENZ: Of that I cannot be sure but every Communist 
knows what the Marxist-Leninist line is. 



If there were any logic in the conduct of this trial, Budenz 
and the prosecution would have been held to have overreached 
themselves at this point. For as cross-examination continued, 
Budenz similarly identified the language of certain 1944 elec- 
tion articles in the Daily Worker as "Aesopian/' But that is the 
period when, according to the prosecution theory of the case, 
the Communists had abandoned the Marxist-Leninist or "vio- 
lent" line and therefore had no need for "protective" language 
or "window-dressing." The defendants are indicted on the 
charge that later, in 1945, they reorganized the Communist 
Party and returned to the Marxist-Leninist line. Yet Budenz 
says Browder's language in 1944 is just as "Aesopian" as Fos- 
ter's in 1945. There is no reason for this to trouble the Court. 
Having swallowed the Aesopian camel, why should Judge 
Medina strain at an FBI gnat? 

Indeed, this courtroom has no place for logic. We have 
seen the prosecution case begin as a melodrama, slow down to 
the pace of a documentary, recover, then turn into a farce. 
Now we shall see the testimony of Louis Budenz on "Aesop- 
ian language" degenerate into burlesque. In the last hours 
of cross-examination, defense attorneys read to the witness 
selections from the letter written by Foster to the Communist 
leaders in 1944. The letter was already in the trial record, 
and Attorney Sacher was asking the questions. The witness 
would not give direct answers and the defense objected to 
replies that were long anti-Communist essays in the guise 
of "explanation." Judge Medina defended the witness: 

The way it is Aesopian is what he wants to explain," said 
the Judge. "But you don't want the explanation. That is all 
right. It can be brought out on redirect." 

This prodding gave the jury the impression the defense 



Louis Francis Aesop 105 

had something to hide, so a little later Sacher decided to let 
Budenz "explain." The attorney had just read a long passage 
in which Foster said the Roosevelt Administration was an anti- 
monopoly coalition and big capital hated it. Sacher asked 
Budenz if that was "Aesopian." 

(From the record) 

BUDENZ: Yes, sir. May I explain? . . . That this was hanging 
on to the Roosevelt Administration in Aesopian language be- 
cause the very same organization had condemned Roosevelt 
strongly when it served Soviet policies to do so and Commu- 
nist principles to do so. Therefore, their standing behind 
Roosevelt at this time was not merely part of that effort to 
influence people to adopting Roosevelt, since they had con- 
demned Roosevelt specifically as being against trade unions, 
as destroying social security, and as bringing about Hitlerism 
during the period of the Hitler-Stalin Pact; there could be 
more explanation of that but, beyond that, through this ef- 
fort, the idea of the force on force concept, which Duclos 

brings forward as essential, is being brought forward." 



If this means anything and though I have read the Duclos 
article I cannot understand the last reference it means that 
Budenz considers the Communists were dishonest opportunists 
when they backed Roosevelt because they didn't always back 
him. But what in the world has that to do with "Aesopian 
language?" If the Communists appealed to the American peo- 
ple to support Roosevelt at a time when their real purpose was 
to get the people to oppose Roosevelt, their language might 
legitimately be calld "Aesopian." But the witness does not 
pretend that was the case; he charges only that sometimes 
they did support Roosevelt and sometimes they didn't. When 
they did, they said so; when they didn't, they said that, too. 

It goes on and on like that. Another passage was read and 
Budenz said it was "Aesopian" and again explained. "It is 
Aesopian because there isn't a thing said about the expansion 



106 Aesop s Fables 

of Soviet imperialism. ... To read this, one would imagine 
that only American imperialism were expanded/' Sacher 
read another sentence about American imperialism and Bu- 
denz said it, too, was "Aesopian" "because it says nothing 
about the Soviet imperialism appetite being whetted, which is 
never criticized in any Communist document and, there- 
fore w 

Sacher cut him off to ask if he did not wish to modify his 
definition of "Aesopian language" so as "to cover anything 
which is less than complete in your mind." The witness did 
not answer, but that does not matter. It is clear that he has 
engaged in vulgar verbal trickery. His original "definition" 
of "Aesopian language" said it was phraseology intended to 
mean one thing to the initiate and another to the novice a 
surface meaning for the general public and a secret meaning 
for the full-fledged Communist. He has so far shifted his 
ground that, in the end, anything a Communist says is styled 
"Aesopian language." But this is nothing better than name- 
calling! 



Book Three; The Reptile Tribe 



"And slimy things did crawl with legs, 
Upon a slimy sea." 

Rime of the Ancient Mariner. 



Chapter 11 
APOSTLES OF JUDAS 



Calling names doesn't require much character. Therefore 
Louis Budenz was well equipped for the job. Under cross- 
examination he revealed that he had never had a conviction 
so strong that he obeyed it before making sure which side 
his bread was buttered on. He did not leave the Communist 
Party for all the supposed fervor of his reconversion to Ca- 
tholicismuntil he had obtained the guarantee of a job as a 
professor at Notre Dame University. He also took everything 
he could get from the party between the time he made up his 
mind to leave and the time of his actual leaving. And since 
his departure he has made a very good thing of his status 
as an ex-Communist. On all this, I shall let the record speak. 

It is necessary, however, to explain why this tarnished 
hero's personal traits should be worth our time. There is only 
one reason: that they are not personal! The renegade, an 
inevitable figure in the political trial, has certain charac- 
teristics; it is the mark of the renegade, not the life of Louis 
Budenz, that interests us here. 

107 



108 The Reptile Tribe 

The appearance of the renegade on the witness stand 
is a national danger-sign. First, it warns that hysteria has so 
far lowered the public moral standard as to endanger normal 
standards of fair play. Second, it is the signal that sedition 
laws are eating away "due process" and therefore removing 
all democratic safeguards against abuse of power by the men 
in power. After World War I, during a nationwide wave of 
anti-radical violence and judicial lynching, California pro- 
vided a memorable illustration of the place of the renegade 
in the political heresy trial. 

The Industrial Workers of the World, the IWW, was the 
principal target in California. Under its 1919 Criminal Syndi- 
<2alism Act, the state made 504 arrests in five years, held 
every arrested person in $15,000 bail and actually brought 264 
of them to trial. One trial was used to bring another: the 
court would not accept a non-member as an expert witness, 
so other members would be called to testify and arrested 
as they left the courtroom. (There is history behind the tac- 
tics of Prosecutor McGohey and Judge Medina in demanding 
that defense witnesses, under cross-examination, name fellow- 
Communists. There is history behind the witnesses' stubborn 
refusal to do so.) The witch-hunting forces in California 
found even these wholesale arrests too slow, so the state At- 
torney General obtained a "temporary" injunction which, in 
effect, ordered the IWW to cease functioning pending hearing. 

And on what basis did the court suppress the IWW in ad- 
vance of trial? On the affidavits of three renegades who, of 
course, had not yet been subject to cross-examination. They 
were not only renegades, but professional witnesses renegades 
turned professional informer. In his Free Speech in the United 
States, Zechariah Chafee, Jr., a noted Professor of Law at 
Harvard University, dismisses one of the affidavits as having 
no bearing on the case and says: 

"The other two affidavits were by two former members 
of the IWW, whom the state used to trot out in almost every 
IWW prosecution. Of these two renegades, the California 



Apostles of Judas 109 

Court of Appeal said, in a case the following year, that their 
testimony had been received in every case reviewed by that 
court in the past three or four years, and that they went over 
practically the same ground as in previous trials. One of these 
witnesses is mentioned in ten appellate opinions as the chief 
witness for the state as to the criminal activities of the IWW, 
and the other in eight such opinions." 

The testimony of these renegade-informers bears the char- 
acter-stamp of the testimony in the Communist conspiracy 
trial where the witnesses are also renegades or informers 
so far as concerns Budenz, renegade and informer like the 
IWW witnesses. Chafee, writing in 1941, could not have been 
commenting on the testimony of Budenz and his colleagues 
but he might as well have been: 

"I do not recall any appellate opinion in which a single 
prisoner was charged by witnesses with himself committing 
or participating in the destruction of property or personal 
injuries, or even with directly inciting such acts by speeches. 
... It is always some other members of the IWW who are said 
to have committed or incited destructive acts, and not the 
prisoners at the bar." 

And as Chafee continues, note that the use of the Aesop's 
fable trick was not new in the Communist conspiracy case: 

"Even the wording of the documents became milder after 
the statute was passed, but the state met this by evidence 
that members of the IWW had said this was camouflage." 

Everything Chafee has to say about the California rene- 
gade-informers' testimony, applies to this trial: 

"Aside from the suspicion which must always rest upon 
such professional witnesses . . . almost everything they said 
related to acts [before passage of the law under which the 
defendants were tried], none of them committed by the pres- 
ent defendants, and the contents of IWW pamphlets which 
had been long in circulation." 

Even the renegades offered little to suggest need for the 
emergency procedure followed. Of the three affidavits one 



110 The Reptile Tribe 

contained a single paragraph offering the pretext; the witness 
said that in 1922 he had been a member of an "Inner Circle" 
of the IWW, whose members were designated to murder jur- 
ists and prosecutors. Of the character of the witness who as- 
serts this, Chafee says the following: 

"One of these two renegades, a Los Angeles policeman 
and thrice a former member of the IWW . . . stated on the wit- 
ness stand [in another IWW case] that he liad never told 
the truth before in his life/ 'admitted participation in num- 
berless atrocious offenses/ and was judicially characterized 
as showing himself to have been 'one of the most repre- 
hensible characters thinkable/" 

One does not have to go back to the 1920's for examples 
of the kind. During the progress of the Communist trial, in 
the very building where it was held, a similar admission was 
made by a renegade-informer witness in the Alger Hiss case. 
The witness, Whittaker Chambers, confessed to systematic 
lying during his alleged career as a "Communist espionage 
courier." But this was represented as proof that lying is an 
accepted part of Communist activity, not as an inescapable 
fault of the witness* character. Under cross-examination, how- 
ever, Chambers was forced to confess a series of perjuries 
after he left the Communist Party and became an active anti- 
Communist, and even to admit that he committed perjury be- 
fore the Grand Jury that indicted Hiss on the strength of 
his perjuries! 

Unlike the cross-examination of Chambers, that of Budenz 
was severely curtailed by the Court. We shall have to take it 
for what it yields. To begin with, Budenz admitted that he 
had fully decided by May or June of 1945 that he must, on 
principle, leave the Communist Party and the Daily Worker. 
But he did not leave until October, continuing to draw his 
wages from the movement he presumably now despised. 

(From the record) 

GLADSTEIN: During the time you were working there and 









Apostles of Judas 111 

pretending to be a loyal Communist, although you had al- 
ready made up your mind to leave the Communist Party, did 
you borrow money from them? 

BUDENZ: No, sir. 

GLADSTETN: You did not? 

BUDENZ: No, sir. 

GLADSTEIN: Why isn't it a fact that you did? 

BUDENZ: Borrow money from them? No, sir. 

GLADSTEIN: Yes. At that time you were indebted to the 
Communist Party, weren't you? 

BUDENZ: I wasn't indebted to the Communist Party. I had 
perhaps this was covered by expenses. 

GLADSTEIN: Were you in debt to the Daily Worker? 

BUDENZ: Not that I can recall, no. 

GLADSTEIN: Did you borrow money from the Daily Worker 
after you decided to leave the Communist Party? 

BUDENZ: That I cannot recall. 

GLADSTEIN: Isn't it a fact that you did? 

BUDENZ: I say, I can't recall that. 

GLADSTEIN: Isn't it a fact you were in debt over $800 to 
the Daily Worker at that time? 

BUDENZ: I can't recall that, no, sir. 

GLADSTEIN: Can you recall, isn't it a fact you were in debt 
regardless of whether you can recall the amount? 

BUDENZ: This was against there was an amount, I don't 
know what the amount was, but it was against expenses that I 
had incurred and things of that character. 

GLADSTEIN: Isn't it a fact you did borrow money and you 
were paying back on the loan from time to time? 

BUDENZ: May have been. 

GLADSTEIN: Yes! 

MEDINA: Well, when you decided to leave, and you were 
there without telling them, did you go ahead and borrow 
money from them, after you decided to leave? 

BUDENZ: I don't recall that, no, your Honor. 

GLADSTEIN: There is no question at all, is there, sir, that 



112 The Reptile Tribe 

you had decided to leave the Communist Party long before 
August 4, 1945? That is clear, isn't it? 

BUDENZ: Yes, sir. 

* o 

Gladstein thereupon introduced into evidence a check 
and Budenz after stalling as long as possible, acknowledged 
his signature as endorser. The check was dated August 4, 
1945. It was made out to Budenz by the Freedom of the Press 
Co., Inc., publishers of the Daily Worker, and specifically 
stated on its face that it was for the purposes of a loan. 

(From the record) 

GLADSTEIN: Isn't it true that when you left the Daily 
Worker you owed them $899.94? 

BUDENZ: I am not certain of that, counselor, no, sir. 

GLADSTEIN: You don't know the amount, that is what you 
are uncertain about? 

BUDENZ: That is right. 

GLADSTEIN: Have you ever paid back the amount you 
owed them? 

BUDENZ: No, sir. I should be glad to do so, if it were neces- 
sary. 



At the next opportunity Budenz again vaguely inserted a 
reference to some part of this money being "against expenses," 
and when Gladstein insisted on separating the two matters, the 
Judge intervened in an obvious effort to rescue Budenz. Me- 
dina remarked that Gladstein's repetition, in his questions, of 
the word "loan," against the witness' reference to "expenses," 
couldn't change the witness' testimony. But this was a rescue 
that failed: several questions later, the evasive witness was 
forced to admit that when he got a loan, his checks showed 
it as a loan. Medina asked the stenographer to reread that 
admission, and then he asked Budenz if that was the case. 



Apostles of Judas 113 

(From the record) 
BUDENZ: Yes, sir. 
MEDINA: Every time? 
BUDENZ: Well, I can't say every time. 
MEDINA: That is what you are saying. 

BUDENZ: Well, I mean to say so far as I can recall. 


Ultimately, all efforts to rescue Budenz were wasted. He 
tried to follow the Court's hint, and in further answers sug- 
gested that loans and expenses might not always be differ- 
entiated. But this wouldn't stick. The defense produced 
another check. This one was dated October 5, 1945 and was 
in payment of Budenz' wages. On the back of the check, above 
the endorsement identified by Budenz as his, were a series of 
accounting entries. One of the entries specified $3.00 de- 
ducted from his wages toward repayment of a loan. Budenz 
was now beyond salvation and the Judge was himself in 
deep water. 

(From the record) 

MEDINA: Will you let me have that check? 

GLADSTEIN: Yes, your Honor, I will do that. 

MEDINA: Who put that word 'loan" on there, on this Ex- 
hibit P, Mr. Budenz? Do you recognize the handwriting? 

BUDENZ: No, I don't, your Honor. 

MEDINA: Did you borrow the money? 

BUDENZ: That I am not certain of, your Honor. 

MEDINA: Even with the check right there and your signa- 
ture on it? 

BUDENZ: Well, it may have been that I borrowed it but 
this is in regard to 

MEDINA: Well, it certainly looks like it. 


The following day, the defense again pursued the issue 
of the loan versus the alibi of "expenses." It was established 
that the accounting entries on the October 5 check specifically 



114 The Reptile Tribe 

showed an addition to Budenz' wages of $15 for "expenses," 
as well as a separate small plus-payment for a book review, 
aside from the $3.00 deduction shown as loan-repayment. 
Thus the documents recalled what Budenz could not or would 
not remember: that he had borrowed money from the Daily 
Worker at a time when he was planning to leave and would 
not be able to repay it from his wages. The cross-examination 
continued: 

(From the record) 

GLADSTEIN: Now, Mr. Budenz, this check, Exhibit Q, is 
dated October 5, 1945, and it shows that it was made in pay- 
ment of your wages up to and including October 11. You 
asked for your salary in advance that week, didn't you? 

BUDENZ: Yes, sir. 

GLADSTEIN: And you didn't go down to the office of the 
Daily Worker that last week, did you? 

BUDENZ: Not from Monday on. I was ill. I mean Tues- 
day. 

GLADSTEIN: And you knew you were leaving the Commu- 
nist Party and the Daily Worker about the 10th of October, 
didn't you? 

BUDENZ: Yes, sir. 

# 

For many days Budenz had been an aggressive, contentious 
witness. His manner had been that of a witness who has the 
offensive. But he now underwent a change. He seemed to be 
trying to disappear through the back of the witness stand; 
his voice became inaudible and it was the prosecutor who had 
to say sharply, "Keep your voice up, please, Mr. Budenz." 
The witness, however, continued to have voice trouble as 
other checks were introduced showing that, aside from getting 
his last salary-check in advance for a week of work he did 
not do he had, on October 4, telephoned to get an addi- 
tional check for expenses and medical aid. This a further 
favor sought as a comrade from his comrades took place 



Apostles of Judas 115 

during the week already set by Budenz' new mentors for the 
triumphant announcement that he had withdrawn from the 
Communist Party and returned to the Catholic Church. 

The attorneys next directed their questions toward an- 
other aspect of the relationship of the renegade-informer to 
his new job of professional witness: the material rewards or 
job-insurance, the "price" of the informer. Budenz was as 
evasive as ever and, as ever, the Court permitted his non- 
responsive and argumentative answers to stand. When Glad- 
stein, so handicapped, nevertheless pressed for a "Yes" or 
"No" answer to a yes-or-no question, Medina rebuked him 
for "emotional excitement and pressing people and talking 
fast and all of that." That did not, however, induce the de- 
fense to abandon the pursuit of the elusive answer: 

(From the record) 

GLADSTEIN: You arranged, however, for a job before you 
left the Communist Party? 

BUDENZ: Oh yes. I had a family to take care of. 

000 

The job was identified as a professorship at Notre Dame, 
but questions to show that he did not have the educational 
and other qualifications of a professor were barred. His 
whole history, however, reveals no such qualifications, a fur- 
ther indication that the job was a bribe, a payment to the 
informer for his desertion of the party and his subsequent 
services as a professional witness against it. The Court sus- 
tained all objections to questions about articles Budenz wrote 
for commercial magazines, that is, other income derived from 
his new profession of "saying many of the things you have 
testified to here." The same barricade was raised against 
questions designed to show that Budenz, like the witnesses in 
the California IWW cases, was a paid professional witness. 

(From the record) 

GLADSTEIN: Have you gone out to Seattle, Washington, 



116 The Reptile Tribe 

to give testimony, the same kind of testimony that you have 
given here for which you received a fee? 

McGoHEY: Objection. 

MEDINA: Sustained. <r 

GLADSTEIN: Have you gone out to Honolulu in the Hawai- 
ian Islands to give the same story you have given here for 
which you received a fee? 

McGoHEY: Objection. 

MEDINA: Sustained. 

GLADSTEIN: Did you receive any money for doing any 
work for Congressman J. Parnell Thomas along the lines of 
your testimony here? 

McGoHEY: Objection. 

MEDINA: Sustained. 

GLADSTEIN: During the years you were in the Communist 
Party 

MEDINA ( interrupting ) : How does it affect a man's credi- 
bility, that he gave the same testimony on a number of other 

occasions? 



This is characteristic of the Court's conduct in this case. 
Observe that Judge Medina's comment has the effect of mis- 
representing the aim of the questions: it leaves out the key 
element the fee, the money, the reward which is part of the 
informer's motive for giving the testimony his direct or indi- 
rect employer wants. It is part of the price of perjury. 

Is that irrelevant? The professional, paid witness, earning 
direct fees or gaining payment through jobs, articles and 
books, was simply crawling through the woodwork of the 
forty-eight states in trial after trial and hearing after hearing 
at that very time. Some months after the Budenz affair, but 
still in the course of the trial, Alexander Bittelman, a Commu- 
nist leader who was not a defendant, was summoned to a 
hearing on deportation charges. The New York Times of 
August 2, 1949, in a brief story about the hearing, said: 

"The only witness yesterday was Charles Baxter, former 






Apostles of Judas 117 

minor party functionary from Cleveland, who left the party 
in 1945. He testified that he attended the Lenin School in 
Moscow and that the ultimate aim of the party was the 'revo- 
lutionary overthrow by force of capitalistic states/ On cross- 
examination, Mr. Baxter admitted that he received a tempo- 
rary job as clerk in the Cleveland Immigration Service before 
he testified in ten deportation cases involving alien party mem- 
bers. As an expert government witness, he said he received 
$25 a day/' 

In a criminal wire-tapping case in New York only a few 
days later, the Court remanded defendant John G. Broady to 
prison for the duration of the trial because he offered a prose- 
cution witness a job before the witness returned to the stand 
for the last time. Yet here we have the government shame- 
lessly giving people jobs just before they appear as govern- 
ment witnesses, and the courts find nothing wrong with that! 
One of the witnesses in the Communist trial, William O. 
Nowell, admitted that he was given a job in the Immigration 
Service just a few weeks before the trial; the Immigration Ser- 
vice is part of the Department of Justice which is prosecuting 
the case! 

Medina's reluctance to permit questioning on the subject 
of renegade-informers and professional witnesses, will easily 
be understood by anyone who knows how ugly their story 
is. It will equally be understood that the defense cannot sim- 
ply accept the Court's ban on so vital an issue. For while 
Budenz soon completed his testimony and left the stand, 
twelve little Budenzes followed! 

And that was inevitable. It had to be and it is important 
to know why. We do not need to know the life history of each 
of these sordid creatures, but we must understand what they 
are, where they come from and why they behave as they do. 
They are the symptoms of a serious sickness of the body 
politic. It is an old ailment, but more dangerous in these times 
than ever before. Long ago in 1798 Edward Livingston, a 



118 The Reptile Tribe 

friend and follower of Thomas Jefferson, described the disease 
while denouncing the Alien and Sedition Acts, then about to 
be enacted by the Federalist Administration of President 
John Adams. Livingston was relating what he believed would 
happen after passage of those laws: 

"The country will swarm with informers, spies, delators, 
and all the odious reptile tribe that breed in the sunshine 
of domestic power. . . . The hours of the most unsuspected 
confidence, the intimacies of friendship, or the recesses of 
domestic retirement afford no security. The companion whom 
you must trust, the friend in whom you must confide, the do- 
mestic who waits in your chamber, are all tempted to betray 
your imprudent or unguarded follies; to misrepresent your 
words; to convey them, distorted by calumny, to the secret 
tribunal where jealousy presides, where fear officiates as ac- 
cuser, and suspicion is the only evidence that is heard." 

And as Livingston foretold, so did it happen. 



Chapter 12 
HYSTERIA 



So it happened, and so it is happening again. Snooping, 
systematic informing, loyalty inquisitions, wiretapping, have 
become an accepted norm of what we still smugly call "the 
American way of life." On a day when the Communist trial, 
the Alger Hiss trial and the Judith Coplon trials were in simul- 
taneous session like a three-ring circus or a witches' Sabbath, 
an advertisement in the New Yorfc Times brought home to me 
more forcefully than the trials themselves, the present spy- 
ridden state of affairs. The ad offered for sale an electronic 
device know as the Teletap. With this remarkable product of 
our remarkable technology, said the ad, a businessman can tell 
whether his telephone conversation is tapped at either end. 

Yes, with the Teletap you are protected from the growing 
menace of the "snoop," the enterprising Teletap manufacturer 
assured his fellow free-enterprisers. But that is small comfort 
to the rest of us. We cannot afford expensive instruments to 
test whether we still have some small remnant of the privacy 
guaranteed to us by the Constitution of the United States. 
And tests are certainly needed. In the aftermath of the Hiss 
trial, it was learned that the FBI had been spying on the fore- 
man of the Hiss jury all through that trial. One FBI report 
detailed a conversation between the foreman and his wife. 
If you think about it awhile, it will dawn on you that this must 
have been obtained by tapping the couple's bedroom wall! 

That is the tone of the trials and that is the character of 
the evidence. In all these heresy trials, as in the Communist 

119 



120 The Reptile Tribe 

trial itself, the spy comes into his own. The kind of chit-chat, 
malice, innuendo, supposition, and uncomprehended scraps 
of accurate information from public documents that are 
scrambled together in the FBI reports exposed in the Coplon 
case, are the spy's eternal stock-in-trade. The reports reek of 
perjury, blackmail and murder. The month of June 1949 was 
particularly rich in FBIism. One Morton E. Kent, a former 
State Department employe, was hounded from his private 
job and thereupon committed suicide. It accidentally made 
news. It appears that the FBI reports on Kent had dragged 
in the name of Emilie Condon, wife of Edward U. Condon, 
head of the National Bureau of Standards and long an out-of- 
reach target of the House Un-American Activities Committee. 
When Condon hit back, the public learned how the FBI had 
ruined Kent. 

First, by irresponsible and illiterate pieces of information, 
insufficient for open action against Kent, the FBI had "con- 
nected" him with "subversive" organizations or persons. An 
FBI agent thereupon "suggested" to Kent's employer that he 
wouldn't want to have a man on his payroll if the FBI re- 
garded the man as subversive, would he? The employer needed 
export licenses from another government agency in his busi- 
ness, so he fired Kent. Kent, seeing no end of this process 
killed himself. 

A signed editorial in the Daily Compass (June 13) by 
publisher Theodore O. Thackrey called this by its right name 
a "secret police system, outside the law since it is the law, 
spying upon ordinary citizens, hounding them to death on 
suspicion of political heresy ... a secret political police sys- 
tem [established] in this country by the perversion of the 
FBI from the law-enforcement functions for which it was 
originally intended into a keyhole peeping, wiretapping snoop 
and pry group, keeping its appropriations fat by feeding the 
witch-burning flames of political intolerance." 

Kent was not the first. Harry Dexter White, former Assist- 
ant Secretary of the Treasury, died of a heart-attack August 



lysteria 121 

948 after denying the charges of Elizabeth Bentley, who 
shared with Whittaker Chambers the star dressing-room of 
the summer, pre-election, "spy" hearings. W. Marvin Smith, 
a government employe, plunged to death down a stairwell of 
the Justice Department Building, after he was named as the 
notary who witnessed automobile-sale papers mentioned in 
Chambers' testimony about Hiss. Laurence Duggan, former 
State Department aid, was killed in a fall from the window of 
his sixteenth floor office in New York City in December 1948. 
Duggan's case underscores the irresponsibility of an ugly 
system that has many other hideous features. A man of con- 
servative social background and New Deal inclinations, he was 
named by Isaac Don Levine, State Department-connected 
ghostwriter of many sensational anti-Soviet books, in secret 
hearings before the Un-American Committee. Levine testi- 
fied to hearsay twice removed: he said the self-confessed per- 
jurer, Chambers, had told him in 1937 that Duggan was one 
of his (Chambers') inside-the-government sources of infor- 
mation. After Duggan's death, Chambers denied he had ever 
told Levine that, and the FBI hastened to report that it had 
found Duggan "a loyal employe of the United States Govern- 
ment." But that won't bring him to life. 

With just such irresponsible stuff the FBI has been able to 
compile dossiers on more than one million Americans. All to 
protect us from the encroachments of the Communist police- 
state! In the Coplon case, the reports showed all the familiar 
trickery of the police agent: the role of agent provocateur; 
the "planted" papers; the "decoy" papers falsely naming an 
employe of Amtorg (corporation buying and selling for the 
Soviet Government), as an American government agent; a 
report reversing that: it said Amtorg employes had spied for 
the Soviet government. Another document is even worse; it is 
a hash of spy "tips" thrown together to make a file on the noted 
film star, Fredric March. It tells how "Confidential Informant 
ND 402" carried a message from March to complain of being 
criticized in the Daily Worker and how "the subject had tears 



122 The Reptile Tribe 

in his eyes when he sent the message"; how "on November 27, 
1945, Confidential Informant ED 324 advised that he had 
observed a throw-away advertising a meeting to be held in 
Madison Square Garden on December 4, 1945 at 8 p.m." and 
how later, "Confidential Informant ND 336" did attend that 
dread meeting (very secret, seating capacity 20,000) and did 
hear speakers Julian Huxley, noted British scientist and Henry 
Wallace, discourse on the menace of the A-bomb, and that 
Fredric March did there read a poem by the well-known 
radio-writer, Norman Corwin, captioned: "Set Your Clock at 
U-235." The hash includes similar sizzling secrets contributed 
by Confidential Informants T-3, 305, 336, T-6, T-8, T-7, ND 
342, ND 359, ND 384, ND 388, ND 400, ND 403. 

On the basis of similar information in the same month, 
Gordon R. Clapp, head of the Tennessee Valley Authority 
(TVA), was labelled "unemployable" by the Army. It turned 
out that Military Government authorities in Germany had 
sent to Washington seven names from which to choose one 
for a ninety-day assignment in Germany. A Major May, going 
to a file, found Clapp's name linked with certain others and 
recommended investigation. This was then passed on to a 
Major Morrison, who rather than bother with investigating 
one unknown person when he had six clear names, cabled 
Germany that Clapp who hadn't asked for a job and didn't 
know he was wanted was "unemployable," though Morrison 
knew that term implied suspicion of disloyalty. In public in- 
quiry, Morrison revealed that he, a supposedly responsible 
officer "evaluating" intelligence reports did not know what 
names were connected with Clapp's, nor why, nor even that 
Clapp held the enormously responsible post of head of TVA, 
by an appointment the Senate confirmed only after public 
hearings not long before. 

This is the foul mess resulting from our toleration of poli- 
tical police in a cold-war hysteria. The evidence and witnesses 
in the Communist conspiracy case come from this same cess- 



Hysteria 123- 

pool and smell of it. Thirteen in number, in the order of their 
appearance on the stand they are : 

Louis FRANCIS BUDENZ: Renegade, informer, professional 
anti-Communist witness. 

HERBERT A. PHILBRICK: Informer, "planted" in the Com- 
munist Party. 

FRANK S. MEYER: Renegade. 

EUGENE H. STEWART: Special Agent of the FBI. 

FRED COOK: Special Agent of the FBI. 

WILLIAM O'DELL NOWELL: Renegade, informer, long-time 
professional anti-Communist witness and labor spy; given 
job by government just before trial. 

CHARLES W. NICODEMUS: Renegade, informer, rescued 
from prison by the FBI. 

GARFIELD HERRON: Informer, "planted" in the party. 

ANGELA CALOMIRIS: Informer, "planted" in the party. 

THOMAS AARON YOUNGLOVE: Informer, "planted" in the 
party. 

WILLIAMS CUMMTNGS: Began as labor spy; subsequently 
"planted" in party. 

JOHN VICTOR BLANC: "Planted"; became active in party 
only after becoming informer for FBI. 

BALMES HIDALGO: Informer "planted" in party; the busy- 
body volunteer-informer type who supplies particularly worth- 
less information for want of understanding on his part. 

A case supplied with a roster of rogues no more trust- 
worthy than these, needs help. The government tried to per- 
fume these witnesses with patriotic incense. More than once, 
during their testimony, the FBI issued statements lauding 
these informers as worthy citizens who had performed a 
"patriotic service" by "undercover" spying inside the party. 
Russell Porter outdid the FBI. While witness Herbert A. Phil- 
brick, for nine years a spy in the Boston area, was under cross- 
examination that revealed all the little chicaneries inherent in 
the trade, Porter wrote (Times, April 12): 



124 The Reptile Tribe 

'Wearing a red, white and blue tie and sitting under the 
Great Seal of the United States with its outstretched wings 
of the American eagle on the wall of a Federal courtroom, the 
witness said he joined the Communist Party to inform the 
FBI of its activities, as a patriotic duty/' 

That's pretty fancy writing and those are pretty fancy 
stage props but all the purple prose in Christendom won't 
change the spelling of the word "betray." The spy of high or 
low degree is a betrayer. Judas betrayed his dear teacher, a 
leader of a small and intimate band in a persecuted cause. It 
was an inside job for money, and we hate his name. For ma- 
terial rewards, for cash, for jobs, or for immunities, or for 
the satisfaction of petty passions, these thirteen heirs of Judas 
followed in his path. We hate Judases because all that is hu- 
man in a man rots away from the leprosy of betrayal. 

Think what it means to be an informer: you learn how to 
win the confidence of certain fellow humans; you share their 
griefs and joys; you take a place in their hearts. Then, when 
you know them well, as they are in the bosom of their 
families, in work and play, in anger and compassion, you tell 
tales of them to men who do not know them in all the round- 
ness of their lives and therefore could not truly comprehend 
the partial facts or fantasies you relate if they wished to. Since 
your reports are, at best, facts out of context, they are lies; and 
so, as your employer shows himself impatient for just certain 
facts which suit his purpose, you find it easy to slip into falsi- 
fying completely what is already a lie in its heart. Only in this 
way can you be a successful informer. 

All of the government witnesses are renegades or informers 
or both. Seven of the thirteen are full-scale inside betrayers of 
the kind described above. They are presented with the boast 
that they were "planted" in the Communist Party, by way of 
giving authority to their testimony. The prosecution even 
made a point of having them remain active up to the moment 
of taking the stand, hoping the theatrical coup would conceal 
the taint of the informer. But when all is said and done, they 



Hysteria 125 

are such sorry witnesses to make a "case," that one wonders 
why the government stooped to use them. 

A great many people have asked that question. As a matter 
of fact, when the government closed its case on May 19 with 
the weakest of the seven "plants," there was general surprise. 
Porter says the prosecution "caught the defense by surprise in 
resting its case at the end of the cross-examination of Balmes 
Hidalgo Jr.," and I believe that is true but I know it is only a 
half-truth. Reporters covering the trial, newspapermen out- 
side, lawyers observing it, and others with whom I talked, had 
agreed that the prosecution's last witness (or some witness 
before it rested its case) would be "an atom-bomb," as one 
man expressed it, that is, a witness of stature, offering testi- 
mony of a grade far above that characterizing the trial there- 
tofore. They expected a witness capable of understanding 
Marxist theory and interpreting the line and activity of the 
defendants. After a mess of small fry, a big fish was expected. 
But none appeared, and a little thought will reveal the 
error in the thinking behind this false expectation. What use 
would a man of better understanding be to the prosecution? 
The prosecutor is busy reducing Communism to tales of sabo- 
tage and plots to bring the Red Army down through Canada to 
Detroit. He needs witnesses who will say that Marxist theory 
means armed forays by cutthroat bands. A higher-grade wit- 
ness would defeat the prosecutor's purpose. He would be ex- 
pected to discuss Marxist theory on the level that it has been 
discussed and interpreted by many non-Marxist and anti- 
Marxist but sober writers for the past century. That was in 
less hysterical times, but the shelves of public libraries still 
contain many such works which treat serious ideas in a serious 
way and have nothing in common with the claptrap presented 
by Louis Budenz and twelve other informers in Judge Me- 
dina's courtroom. No, assuredly, Prosecutor McGohey could 
not have used witnesses other than the kind he used. 

The prosecution needed informers, but one wonders why 
the FBI supplied them. It is a prime principle of police work 



126 The Reptile Tribe 

to protect your informers. They may lead you to evidence or 
they may cheat you by manufacturing it, but they must not 
be betrayed; they must not be put on the witness stand where 
they lose further usefulness and cast a cloud over your case. 
If the government, and the FBI in particular, here violated 
that principle, it is precisely because these informers are of 
such low grade that no real sacrifice was entailed. The thirteen 
witnesses are considered suitable to the kind of reckless and 
irresponsible case now prosecuted, but they are not considered 
as having any real value to the FBI. They know nothing that 
cannot be read in Communist publications available on the 
newsstands. They do not understand even that much. They 
are, in short, expendables. 

Even knowing the character of Louis Budenz and his 
twelve disciples, it is hard to read the record and believe such 
testimony as theirs was given and permitted in the year 1949. 
It is hard to admit that a Federal Court tolerated the con- 
cocted, self-contradictory web of inventions called "proof" in 
this case. It can be understood only by bearing in mind the 
hysteria of the times, the actual terror of dangerous thoughts 
that prevailed in the fifth year of the cold war. On June 12, 
1949, when the University of California adopted a require- 
ment that faculty members take an anti-Communist oath, Dr. 
George Pettitt, assistant to the university's president, offered 
a revealing explanation: 

"We don't like the idea of oaths nobody does. But in the 
face of the cold-war hysteria we are now experiencing, some- 
thing had to be done." 

Dr. Pettitt neglected only to say that the hysteria was not a 
spontaneous thing but was part of a carefully cultivated mood. 
With respect to the Communist trial, there is documentary 
evidence of a meaner and uglier purpose within the general 
framework of the cold war. Anti-Communism had become a 
football of domestic politics. This is what happened: 

In the summer of 1948, the Republicans and anti-Admin- 
istration Southern Democrats grabbed the anti-Communist 



Hysteria 127 

ball. The "spy" hearings not only fed the war-on-Russia hys- 
teria and the anti-Communist fever, but also turned anti- 
Communism into a partisan weapon for use against the Demo- 
cratic Party. The hearings became an attack on the Adminis- 
tration for alleged laxity in hounding Communists and Com- 
munist sympathizers. (Carried one semantic step farther by 
local witch-hunters, the formula later reached its broadest in 
California where the Tenney Committee issued blacklists of 
persons and organizations not even charged with kind feelings 
for Communism, but guilty of "appeasing" the Communists 
in some respect! He that is not with me is against me: failure 
to turn informer and redbaiter, to hunt with the pack, means 
that you must join the hunted!) The political advisers of 
President Truman understood this very well. The Administra- 
tion aided and abetted the hysteria-mongers, but it knew that 
was not enough; it must also capture the political credit for 
"saving the country from Communism." 

The strategy adopted called for the outlawing of the Com- 
munist Party and the jailing of Communists all over the coun- 
try, by methods just short of open illegality or storm-trooping. 
The first move was the indictment of the Communist leaders; 
that was carried out on July 20, just in time to affect the found- 
ing convention of the Progressive Party two days later. The 
main drive, however, was saved for the last weeks of the cam- 
paign. Insiders tipped off reporters in September to the coming 
events. In a syndicated column from Washington on Septem- 
ber 16, Hearst writer George Dixon told the story under the 
heading, "Stealing the Show from the GOP." It ran as follows: 

"The Democrats, through Attorney General Tom Clark, 
plan a sensational attempt to take the anti-Communist play 
away from the Republicans in the next few weeks. The De- 
partment will seek indictments against well-known Commu- 
nists in key cities all over the country. The Department will go 
before Grand Juries with evidence gathered by its own agents. 
. . . Clark is sending many cases in the FBI files to Grand 
Juries all over the country." 



128 The Reptile Tribe 

A month later, with only weeks to ballot-day, the drive 
opened wide. An advance announcement of its Constitution- 
evading purpose, appeared in an article on October 21 by 
Scripps-Howard syndicated. writer, Tony Smith. It was headed 
"Nationwide Drive on Reds is Given Pre-Election Timing." 

"A nationwide crackdown on the 'open' Communist Party 
leadership began gathering steam today ... in at least five 
American cities. Listed are New York, Philadelphia, Cleveland, 
Denver and Los Angeles. . . . One expert for the House un- 
American Activities Committee concedes that the proceedings 
in Denver and Cleveland indicate that federal officials finally 
have found a way to jail any Communist official they regard 
as a security danger. He explained that the trick is to sub- 
poena the Communist, ask him questions he can't answer, 
and then cite him for contempt when he refuses." 

Well, that's it! A "trick" to jail Communists! In a Justice 
Department bulletin of June 15, 1949, later expanded into an 
article by Tom Clark in Look magazine (already cited), the 
Administration boasts that it has carried out this plan. It has 
hounded aliens who could not be deported, out of the coun- 
try; it has loyalty-investigated men out of their jobs; it has 
put thirty-four "alleged Communists" the term is Clark's 
in jail on contempt charges in Washington, twenty-five more 
in Los Angeles and seven in Denver; it has used passport vio- 
lations and perjury charges where these "have been the only 
cases provable"; and it has brought eleven "topflight Commu- 
nists to trial in New York." All of this in the Department's 
avowed effort "to stamp out Communism," whether or not 
Communist activity is within the Constitution! This latter 
problem is on Clark's mind, for he asks that laws be passed 
to give the drive more leeway, and he proposes sanctions 
against lawyers who defend the civil rights of Communists. 
In Clark's language, the right to practice should be denied 
not only to Communists, but to "lawyers who are not prob- 
ably card-carrying Communists, but who act like Commu- 



Hysteria 129 

nists and carry out Communist missions in offensives against 
the dignity and order of our courts." 

This is the man who, when that avowal appeared, had 
been elevated to the bench of the Supreme Court of the 
United States by the President and Senate of the United 
States! Is it any wonder that half the county prosecutors and 
Justices of the Peace of these United States now think they 
have been empowered to use any "trick" to jail any person 
they choose to regard as a "security danger"? 

Only in this climate of moral degradation is it possible to 
comprehend the testimony of Prosecutor McGohey's thirteen 
expendables. The whole sorry business is more deserving 
of contempt than of indignation. The humorist, Frank Sulli- 
van, in a piece in the New Yorker magazine of July 2, 1949, 
poured the withering acid of ridicule on it. The record 
would not be complete without quotation from Sullivan's 
article, called: These Are the Trials That Try Men's Souls. 

"It is not as difficult as it first seems," he gravely assures 
us, "to get the judges, the defendants, the complainants, the 
attorneys, and the charges in these various causes celebres 
straightened out in one's mind if one devotes a portion of each 
day say, half to a careful scrutiny of the newspapers." 

He then proceeds to scramble all the cases, casts and facts 
beyond disentanglement: 

"To begin with, Judge Medina is the Federal magistrate 
who is presiding over the trial of the eleven Communists 
accused of advocating the overthrow of the government by 
force. We all know Judge Medina by this time, as his trial 
is now in its twenty-third year, so there is little likelihood 
of our confusing him with Judge Hickenlooper, who is 
prosecuting David E. Lilienthal for allowing Gerald Eisler 
to escape on the U-235." 

After more delicious confusion, in which Senator Wherry 
met Judith Coplon in upper Manhattan and "snatched her 
purse which was full of microfilm showing Hollywood actors 
and actresses engaged in Communist activities," Sullivan 



130 The Reptile Tribe 

gets down to the political motives behind the trials. And here, 
for all the innocent merriment, there are teeth in his smiles. 

"Now, what is behind this whole series of trials?" he asks. 
"It is important for us to understand that. Well, some think 
that it is all because Lloyd Paul Stryker wants to get control 
of the atomic bomb out of the hands of Judith Coplon, in 
order to embarrass the Democrats in the Congressional elec- 
tions a year from next fall. How? How can you embarrass 
a Democrat? Many thinking people are asking themselves 
that question in these troubled times." 

Yes, how can you embarrass a Democrat? Or a Republi- 
can? Or a bipartisan regime so blind-drunk with the wine of 
anti-Communism that it can put the scales of justice in the 
hands of a Tom Clark? Or a ruling class so frightened that 
it tries to legalize many previous lawless acts of "war on 
Communism" by convicting eleven Communist leaders of 
secret conspiracy on the patently false testimony of thirteen 
degenerate informers? 



Chapter 13 
THE EXPENDABLES 



What scabrous souls the informer's trade produces! From 
the witness stand, William Cummings related how he had 
recruited an in-law and two cousins for the Communist Party 
only to turn their names over to the FBI. But no sooner 
do you rate one witness the worst of the thirteen, than another 
witness turns up who proves you have not hit bottom. John 
Victor Blanc confessed that he had similarly recruited a 
brother-in-law, but this time without the knowledge of the 
relative involved! Blanc simply forged his brother-in-law's 
signature to an application blank, and then collected from 
the FBI for "expenses" incurred for this and other "patriotic" 
services rendered. 

From March 23 through May 19, none but renegades and 
informers took the stand, with the exception of two Special 
Agents of the FBI. For two months, they unwittingly bared 
their souls on direct examination, or reluctantly confessed 
their sins under cross-examination. The accidental reader of 
the record from page 1338, where the testimony of Louis 
Budenz begins, through page 6025 where the thirteenth and 
last government witness ends his testimony, will find a re- 
volting document revealing to him an unsuspected under- 
world below the last layer of Hell. All thirteen witnesses, he 
will find, practiced betrayal as a profession over a period of 
years. All received money for it, in the form of monthly al- 
lowances, expenses, jobs, or other opportunities for gain. 

131 



132 The Reptile Tribe 

All thirteen made it their business not just to be present at 
Communist meetings but to be bosom buddies of their fellow- 
Communists. At social gatherings and in private homes, many 
of them generously took pictures of their comrades and sent 
copies to the FBI. They worked to win confidence, to have 
entre to homes and knowledge of their associates' personal 
affairs; they went out with them socially, played with their 
children, were part of their lives all to gain positions which 
gave them access to membership lists and permitted them to 
influence policy-making. Then they were able to include in 
their reports not only the names they had gathered, but cop- 
ies of Communist leaflets which they themselves had written, 
and descriptions of Communist acts which they themselves 
had performed. 

They spied on trade unions, womens* groups, youth organi- 
zations and non-Communist minority political parties, too. 
The witness Angela Calomiris joined an AFL union and a 
CIO union, the American Labor Party, the Progressive Party, 
the International Workers Order, the Congress of American 
Women, Greeks for Democratic Action, the Joint Anti-Fascist 
Committee, "and at least five others," she remembered com- 
placently. She sent reports to the FBI on all of them, and 
what the FBI wants, above everything, is names. The witness 
Herbert Philbrick, who boasted that he had been an in- 
former for the FBI the full nine years of his membership in the 
Communist Party, was also a joiner. He joined the Progressive 
Party, the Civil Rights Congress, the CIO United Office and 
Professional Workers, and American Youth for Democracy. 
When first questioned about his work, he acknowledged re- 
porting to the FBI on all of them. After overnight coaching, 
he qualified this: his reports were only on "Communist activi- 
ties" in these other organizations, he said. But ordinary work- 
ing people don't believe that labor spies and political police 
agents are or can be so discriminating. When John V. Blanc of 
Cleveland gave similar testimony in the Communist trial, his 
local Council of the CIO United Auto Workers, though many 



The Expendables 133 

of its members are very actively anti-Communist, voted unani- 
mously to drop Blanc from Council membership. 

The testimony of the thirteen not only reveals them as low 
fellows, but as low-quality craftsmen in their chosen trade 
of informer. They were men and women capable of gathering 
names, of acting as agents provocateurs, but nothing more. 
Their task of winning posts inside the Communist Party re- 
quired little ability, for, as their own evidence shows, Ameri- 
can Communists were more trusting than the politically wiser 
workers of the rest of the world. They were not so familiar 
with the police agent "plant" as Communists elsewhere are; 
moreover, they were constantly engaged in trying to compel 
their persecutors to give them, in practice, the legality which 
Communists enjoyed and still enjoy in theory only. They 
practiced so the testimony of these very witnesses shows 
barely enough "security," or not enough, to protect some of 
their members from loss of private jobs to which, law or no 
law, they would be instantly exposed if they became known 
as Communists. When the witnesses describe their rise within 

\ the Communist Party, therefore, the stories are of easy success 

i in gaining control of membership lists and funds. But their 
testimony simultaneously reveals that they never understood, 
never tried to understand, what the subjects of their espionage 
were doing, saying and studying during those many long years 
they wrote reports about them. 

Here are spies not only sent to work among the Com- 

! munists, but brought to the witness stand to testify on how 
these Communists understood and taught the theory of Com- 

1 munism or scientific Socialism. But watch them on the stand! 

, They do not testify from knowledge; they testify from recent 

1 re-reading of the reports they sent to the FBI over the years, 
and from recent coaching on their testimony by the FBI. 
The witness Blanc will do as an example. He took the stand 
briefly on May 13, continued all day May 16 and concluded 
only after another full day, May 17. Under cross-examination, 

! he acknowledged that he had never made the least attempt to 



134 The Reptile Tribe 

understand what his comrades were talking about; even for 
the purpose of pretending to be a Communist, he used an- 
other device. Yet after each meeting he went home and 
wrote, from memory, a report on the evening's events and 
discussion, just as if he knew what it had all been about. 
Almost at the end of the examination, he was asked a ques- 
tion about Das Kapital, or Capital, the major work of Karl 
Marx, and it would have been no surprise to learn that he 
had never opened it. But it turned out that up to the moment 
he was asked that question, he had never heard of the work 
at all! And this man employed as a spy inside the Commu- 
nist Party from 1944 to 1949, did his work to the satisfaction 
of the FBI without reading American Communist publica- 
tions, either. Asked about an article in Political Affairs, the 
monthly theoretical magazine of the Communist Party of the 
United States, Blanc said: "I never read a Political Affairs 
in my life." 

Ignorance was no handicap to the informer-witnesses. Em- 
ployed as a betrayer, Blanc won confidence by trickery, falsi- 
fication and by betraying even his employer, the FBI. Fake 
recruiting was his specialty; his success in recruiting, achieved 
by inventing recruits, established his credit. On direct ex- 
amination, he describes how "I formed my own club in the 
Park Drop Forge Company" plant where he was employed. 
There had been a strike in the plant from January to April 
1947. A Communist official had suggested that when the work- 
ers returned to the job, the best and most militant of them 
should be invited to join the party, and they should be mem- 
bers of a club or unit in the plant itself. The record says: 

(From the record) 

BLANC: I spoke to several workers who had been closely 
contacted [connected] with a grievance I had taken up in 
front of management for them and asked them as a favor 
to me to join the Communist Party. 

QUESTION: Did they join? 






The Expendables 135 

BLANC: Well, after I told them further that it wouldn't 
take up much of their time and it wouldn't cost them anything, 
a few of them joined. 

QUESTION: Did they pay dues? 

BLANC: They did not. 

QUESTION: Who paid their dues? 

BLANC: I paid their dues. 

QUESTION: Did they subscribe to the Worker or the Daily 
Worker? 

BLANC: The subscription to the Worker was also paid for 

by me. 

* * * 

Witnesses like Blanc usually tried to conceal the ugliness 
of this kind of work, the work of the police provocateur, by 
denying that they turned over to the FBI the names of their 
own recruits. But subsequent questions trip them. In ac- 
knowledging that they report all meetings fully, they admit 
that on occasion they sent even the names of their own re- 
cruits to the FBI. This recruiting story has another interesting 
aspect. It shows that the informer gave a very different pic- 
ture of the Communist Party to his proposed recruit, than he 
now draws in court. In fact, the party as he presented it to 
his recruit, is the party as the defendants now describe it! He 
won the confidence of the men he sought to recruit by de- 
fending their interests in ordinary daily quarrels with the 
plant management. And it is this militancy in unmelodramatic 
activity, incidentally, that caused the Communists to recruit 
Blanc in the first place and it is this militancy which main- 
tains his credit later. 

Still another aspect of the story illustrates the meaning 
of the word "provocateur." Blanc asked his fellow-workers 
to join the Communist Party as a personal favor. He is in the 
party to obtain evidence that will enable the government to 
prosecute the Communists, but he gets other men to put them- 
selves in peril of prosecution as a personal favor to him and 
without suggesting that the Communist Party does unlawful 



136 The Reptile Tribe 

things. And now he mounts the witness stand to swear that 
it does. If he is believed, not only these defendants but Blanc's 
recruits become subject to imprisonment. That is what is 
meant by police agent, or agent provocateur. 

In testifying against the defendants, Blanc tells tales of 
how this Communist or that Communist talked in unmistak- 
ably violent terms of the Socialist Revolution. He is very glib, 
and on cross-examination he reveals why: he spent a solid 
week with FBI Agent David Weible, in December 1948, pre- 
paring his testimony. This came out when, in questions about 
a report he made in 1945, he said he could recall the details 
because he saw the report not long ago. 

(From the record) 

BLANC: They were given to me to review. 

QUESTION: "They," you mean your reports? 

BLANC: That is right. 

QUESTION: All of them? 

BLANC: No, sir. 

QUESTION: How many? 

BLANC: Only the reports that I would be able to testify on 
this trial. 



It developed that there were "forty or fifty" of these. After 
a week of coaching on his testimony, in other words after he 
had definitely been given a role in the prosecution cast, he 
continued to recruit people who would thereby become sub- 
ject to criminal action if the trial should end in conviction! 
He recruited only "imaginary people," he says, in March and 
April 1949, but he "may have" recruited some real people 
between December and March, he admitted. I find this on the 
sickening side, but when Blanc told how he had "recruited" 
his brother-in-law without telling the latter, Judge Medina 
who so thoroughly disapproved of laughter by the defend- 
ants himself laughed aloud. It would be interesting to see 



The Expendables 137 

how the thirty-five to fifty persons recruited by Blanc from 
1945 to 1948, look at this joke. 

All, all the prosecution witnesses come from this secret, 
slimy swamp that breeds the reptile tribe, the professional 
betrayer. Is it not ironic that the prosecution should have 
called on a dozen secret betrayers to prove that the Commu- 
nists are conspirators secretly plotting to betray their coun- 
try? That is precisely what they are supposed to prove. Is it 
any wonder that the case is one of the shabbiest in the history 
of political heresy trials or witch-hunts in the United States? 

One of the features of the "proof," is that it is rarely about 
the defendants. The most sensational things the seven FBI 
"plants" have to tell, were said or done by other persons than 
the defendants (just as in the IWW trials). The witnesses 
often knew or met one or more of the defendants, heard them 
speak at meetings or lecture in schools. But when something 
really "hot" occurred, when some Communist preached wild 
force and violence, it turns out that the witnesses are not 
quoting a defendant but somebody else. 

The witness Blanc came down from the stand several times 
to "finger" various defendants. He had been recruited into 
the party in 1944 by defendant Gus Hall. He had heard de- 
fendant John Williamson speak in Ohio in July 1945. He had 
attended a meeting early in 1946 where defendants Jack 
Stachel and Carl Winter were present and had things to say. 
He had attended a school in the summer of 1946 where de- 
fendant Gil Green delivered one lecture. But having "fin- 
gered" these defendants after the fashion of the gunman's 
cowardly accomplice, he went on to relate damaging state- 
ments made by other people. He swears that at a school he 
attended, an Ohio Communist official, Hymer Lumers, "also 
known as Lewis," taught that you couldn't vote the Commu- 
nist Party into office; you'd have to overthrow capitalism to 
get Socialism, and "when that time came, we could always rely 
on the Soviet Union as our ally." 

This is the pattern of all the prosecution testimony. We 



138 The Reptile Tribe 

have already seen how Nicodemus performed this same chore 
of linking Communist plans for violent revolution with "inva- 
sion" of the United States by the Red Army. In his case, too, 
it was not a defendant who said these things. So with all the 
other witnesses. The witness Philbrick relates how a group 
to which he belonged met at the homes of its members and 
whoever was host or hostess for the evening, acted as chair- 
man. Once it came the turn of a girl named Martha, and 
Martha (Philbrick says he took pains to find out the last 
names of all these members, but here it sounds more conspira- 
torial just to say "Martha"), said: "We must arm the workers 
for the struggle against the capitalists." This is admitted as 
evidence against the defendants! How roundabout are the 
roads to Rome! 

To get this shoddy material into the fabric of the case, it 
was necessary, as usual, to avoid facing defense objections. 
This was done in the customary way: Judge Medina gave a 
display of weary tolerance of those argumentative lawyers, 
scolded them for arguing and ignored the substance of their 
argument. 

(From the record) 

GLADSTEIN: Your Honor, may I state the grounds of objec- 
tion? 

MEDINA: I rather suspect it is what I have already heard 
but you may do so. 

GLADSTEIN: Your Honor, I object because this calls for 
statements not made by a defendant but statements supposed 
to have been made by some other person, the theory of its 
being offered against the defendants being that the defendant 
happened to be in the same room same room in a public 
meeting. 

MEDINA: At a Communist meeting. 

GLADSTEIN: Any meeting, and didn't get up afterwards and 
say anything by way of disagreement or otherwise, the theory 
is it is admissible against the defendant. 






The Expendables 139' 

MEDINA: That is what you say the theory is. 

GLADSTEIN: May I know then the theory upon which it is 
received? 

MEDINA: You see, it is the same old story. You get up to 
state grounds of an objection and argue, argue, argue. You 
ask me questions and then you begin to ask Mr. Gordon, and 
then we forget all about what we are doing and we have to 
start all over again. 

GLADSTEIN: No, my point is that it converts the charge from 
one of supposed advocacy by a defendant into something that 
somebody else said. 

MEDINA: It is the old story. You want to get up and argue 
to the jury, and perhaps others, when all you do is object and 
you continually insist that you are stating grounds of an objec- 
tion when all you are doing is just making a little speech 
which you should reserve for your summation. The witness; 

may answer the question. 



The witness Calomiris attended a school where defendant 
Gil Green once spoke, but her testimony "convicts" not Green 
but lecturer Francis Franklin of criminal advocacy. He told 
them, she said, that "it would be necessary to violently over- 
throw the existing government/' The same things happened 
in St. Louis, according to witness Thomas Younglove. At a 
class organized by his party club in the winter of 1945-1946, 
a St. Louis lawyer named Douglas MacLeod allegedly "said 
the ballot-box was not the answer to bring about Socialism but 
it would have to come about by violent action." Now no one 
knows who MacLeod is, but everybody knows Joseph Stalin, 
so Younglove brings Stalin to St. Louis by remote control. At 
the concluding session of a six-week course in October 1946, 
he says, Ralph J. Shaw, Missouri Chairman of the Party, re- 
ported he had just come from a meeting of the National Com- 
mittee. Shaw said, according to Younglove, that a "personal 
representative" of Premier Stalin had addressed the National 
Committee meeting, saying that war was near and might come 



140 The Reptile Tribe 

at almost any time and if it did "we" must be prepared to go 
underground. Shaw's own comment, according to Younglove, 
was that "if war does come, we, the party workers, will do 
all we can to sabotage the war effort." 

The more contemptible the witness (if this is not splitting 
liairs ) the more far-fetched the stories he consents to tell. Wil- 
liam Cummings, who recruited his in-law Nathan Thomas, and 
his cousins, Ed and Ellen Payson, in order to betray them to 
the FBI, swears that at a meeting in Toledo in 1945, two Com- 
munist officials even set an approximate date for the coming 
American revolution! Mrs. Adeline Kohl and Paul Prosser, 
Tie says, agreed that a first estimate of ten years (1955) was 
too conservative! "Due to world conditions," including Com- 
munist work in the United States, "it was much closer." And 
to add some "color" to his story he relates that during a two- 
week course he took in the winter of 1945-1946, during which 
defendants John Williamson and Gilbert Green lectured, some- 
body else someone who is not a defendant warned that the 
streets of America "would run red with blood" as they had in 
Russia in 1917. 

Patience, reader. One more of these proud "plants" of the 
FBI and we shall go on to other matters. The seventh "plant" 
and last prosecution witness, Balmes Hidalgo, really touches 
Txrttom. His morals are on a par with the others but due to his 
superior ignorance and incomprehension, he succeeds in bur- 
lesquing their performances. In his club, the Tom Paine Club 
in New York City, in the spring of 1947, he said, "a girl named 
Betty" stated that American Communists know violent revo- 
lution is the only way but "she told them if anybody ever ac- 
cuses us of this, our answer is, 'No. We just predict it/ " That's 
the beauty of testimony like this: try and prove that no girl 
named Betty ever said that! 

When you are all through with the trash these witnesses 
drag into the Federal Court of the Southern District of New 
York in the name of "evidence," you have nothing that an hon- 

prosecutor or newspaperman could touch with a ten-foot 






The Expendables 141 

pole. Yet the prosecution relied on this stuff and this stuff 
only, and the big commercial newspapers went for it eagerly. 

If the testimony of the prosecution witnesses was far re- 
moved from the persons of the defendants, it was also remote, 
in point of time, from the period of the indictment. Of the 
testimony of William Nowel], for example, the Times (April 
19) could say: "The witness extended the pattern of such ac- 
tivities, previously traced between 1935 and the present, back 
to 1929." The alleged activities took place "as much as twenty 
years ago." 

If they testify only about other people and other times, of 
what use are these moral lepers to the prosecution? They can- 
not be there as character witnesses, having none themselves. 
Nowell, who was expelled from the Communist Party some 
thirteen years ago, has since been repeatedly identified by 
non-Communist workers, on various jobs, as a labor spy. In 
connection with a job he had in 1944 at the Ford works in De- 
troit, he said the workers dropped "things out of cranes on me, 
and pushed things off stockpiles on me." To tell the truth, 
they forced the company to fire him, but he solemnly says 
that he was fired because of collusion between the Commu- 
nists and the violently anti-Communist (and anti-labor) Ford 
Motor Company! 

No, you can't deodorize these witnesses. It is certainly not 
for their fine scent that the prosecution chose them. If we 
want to understand what they were chosen for, we must face 
the problem as the prosecutor saw it. His job is to convince 
the jury that Communists preach force and violence, but he has 
no evidence that the defendants, during the period of the in- 
dictment, taught or advocated anything that will support his 
cloak-and-dagger case. He knows that the testimony of his 
several informers as to what other Communists said and did 
in other times, will not permit conviction of these defendants. 
How then shall he persuade the jury to silence these men 
and outlaw their books? His answer is secrecy! 






Chapter 14 
THE USES OF PERVERSITY 



Secrecy! When the High Priest made up his mind to 
throw Jesus to the Roman wolves as a pre-Munich appease- 
ment sacrifice, he invoked the same charge of dark and secret 
ways. As XVIII Johns, 19-23 relates: 

"Jesus answered him, I spake openly to the world; I ever 
taught in the synagogue, and in the temple, whither the Jews 
always resort; and in secret have I said nothing. 

"Why askest thou me? ask them which heard me, what 
I have said unto them: behold, they know what I said. 

"And when he had thus spoken, one of the officers which 
stood by struck Jesus with the palm of his hand, saying, 
Answerest thou the High Priest so? 

"Jesus answered him, if I have spoken evil, bear witness 
of evil; but if well, why smitest thou me?" 

The High Priests of anti-Communism are no better than 
the earliest guardians of orthodoxy. They brought on not one 
but thirteen Judases to create the impression that the Com- 
munists taught in secrecy. It was not enough that witness 
after witness should relate how Joe Doakes told him Marxism 
means force and violence. It was necessary to describe Com- 
munists as cunning conspirators operating in an atmosphere 
of sinister secrecy. More important than Joe Doakes' alleged 
words of incitement, is the irrelevant, manufactured or dis- 
torted detail that the witness smuggles into his testimony. It 
is the scenery of secrecy that counts, not the plot of the play. 

Louis Budenz, for instance, in describing meetings of the 
National Committee of the Communist Party, was not required 

142 



The Uses of Perversity 143 

to relate incidents and leave it to the jury to decide whether 
they showed something secret and conspiratorial. He was 
permitted to characterize the meetings, to call them "secretive 
or semi-secretive." When the defense objected, the Court 
did not order this stricken, but turned to Budenz and asked 
what he meant; did he mean admission was by card only? 
Budenz gave an evasive answer, but Judge Medina blandly 
remarked that perhaps the witness meant "extra-secretive." 
Upon protest by the defense, he withdrew this remark but 
in a manner that indicated he personally attached great im- 
portance to Budenz' testimony: "Just pay attention to what 
the witness said happened," he instructed the jury. 

Subsequent witnesses follow the same pattern. The meet- 
ings they attended were "secret." The decisions taken by the 
Communists, though openly published for proclaimed pur- 
poses, become evidence of secret preparation for violent revo- 
lution. Witness Philbrick and many other witnesses related 
how the Communist Party fixed tasks, usually that of in- 
creasing their membership in the main industries of a given 
state or locality, as key tasks or "concentration" tasks. By 
choosing words to get the "secrecy" emphasis desired, Phil- 
brick turns this into a tale of how they "colonized" a Gen- 
eral Electric plant at Lynn, where jet airplane-engines are 
manufactured. His own testimony shows that there were 
meetings, discussions, printed documents, calling for energetic 
efforts to win adherents among the workers in every industry 
represented in Massachusetts. But a touch of secrecy, coupled 
with a reference to jet-planes, will convert Communist plans, 
openly published, into a secret decision with sinister ends. 
"Concentration" thereby becomes a code-word meaning prepa- 
ration for ultimate invasion of America by the Red Army. 

The remoteness of the testimony from the charges in the in- 
dictment, the shallowness of the proof, must be buried in mys- 
tery. The party secretly taught violence and publicly preached 
peace and democracy, Philbrick testified. He himself, he says, 
helped prepare material for both public and secret purposes. 



144 The Reptile Tribe 

Copies of leaflets and other material he prepared were sent to 
the FBI with his reports, and these copies are now submitted 
in evidence. Not one document advocates force and violence! 
How is this? Philbrick explains that it is because material for 
public consumption did not contain advocacy of force and 
violence. But where, then, is the material you yourself pre- 
pared for secret use? The witness has no answer. The prose- 
cution has no answer. The Court has no answer. 

There can be no answer for there is no such material. 
The testimony of this very witness contradicts the testimony 
about "secret material." The story of "Aesopian language" 
contradicts it. In supporting Budenz' fable, Philbrick shows 
that the prosecution is not relying on things said and done 
in secret. It is relying on interpretation of openly published 
documents of the Communist Party. Elaborating the Budenz 
story, Philbrick said that Communists taught violence by use 
of semantic devices, that is, by their special use of words. 
They used words containing a hidden meaning recognized 
only by Communists, he said. With such devices, he testified, 
the party could prepare the minds of its members for war 
while calling for "peace." They could rally members to sup- 
port of "totalitarian" Russia by calling them to defend "de- 
mocracy." They could arouse them against the United States 
by attacking "Fascism" and "Imperialism," he said. In all seri- 
ousness, this witness and other witnesses testified that the 
Communists have such a code. But in all seriousness, if one 
may speak seriously of nonsense, the existence of such a code 
would make unnecessary any secret documents. If there is 
a code, the "secret material" is an invention; if the secret 
material exists, the "code" is pure perjury. In truth, both 
are false. The secret documents and the code are alike in- 
ventions that are worthy only of these corrupt spies. 

Angela Calomiris, like all the other "plants," attended 
"secret" schools and takes up much time with testimony that 
Communists use only first names, and that there are no re- 
cording secretaries at meetings and that no minutes were 



The Uses of Perversity 145 

taken after the 1945 reorganization. Yet one of the "secret" 
schools she attended was held in the building at 35 East 12th 
Street that housed the national state and county offices of the 
party, as well as the Daily Worker. Surely it was always under 
observation and always known to be under observation. And 
her diploma from this school, the witness says, she sent to 
the FBI to be photographed. Now what kind of "secret" school 
gives diplomas? 

William Cummings says he attended a "secret" school 
held in rooms over "the Russian cooperative restaurant." One 
touch of borscht should be enough to make this school sus- 
pect. But is it not a grim joke that this witness to the hor- 
rendous secrecy of the Communist Party was a secret police 
agent who had first entered FBI service on a labor espionage 
assignment? And he testifies that when the secret school was 
over, he secretly reported to the FBI! Russell Porter relates, 
without a trace of irony: "He said he always met the agents 
at night." 

Secrecy, secrecy, secrecy! That's the prosecution's "con- 
spiracy" case! Judge Medina frankly told the defendants that 
he attached as much importance to this matter as the prose- 
cution did. "He stressed the importance of the secrecy attrib- 
uted to Communist activities in the testimony," Porter noted 
in his account of argument after the prosecution rested its 
case (Times, May 21). In fact, the role of secrecy in the 
prosecution case was fully revealed in the course of the argu- 
ment. The defense had moved to dismiss the indictments for 
want of valid evidence; the argument turned on a legal point, 
one easily understood by a layman. It was a question of the 
Supreme Court doctrine that there must be a "clear and 
present danger" to the country before the government may 
attempt to curb speech. 

Justice Oliver Wendell Holmes, Jr. formulated the doc- 
trine in 1919, when he was virtually alone in retaining his 
senses at a time of German spy-scares and witch-hunts for 
"agents of Russian Bolshevism." Holmes said: 



148 The Reptile Tribe 

"The question in every case is whether the words used 
are used in such circumstances and are of such a nature as to 
create a clear and present danger that they will bring about 
the substantive evils that Congress has a right to prevent. It 
is a question of proximity and degree/' 

In 1941, the Supreme Court remarked, in an opinion on 
an appeal by the noted labor leader, Harry Bridges, that "the 
substantive evil must be extremely serious and the degree of 
imminence extremely high before utterances can be punished." 

In other words, the fact that the teaching of Marxism 
may, by some process, prove the decisive element in some 
future revolution at an unpredictable date, is not enough to 
permit the government to outlaw the teaching of Marxism 
today. There is no "clear and present danger." Holmes' dis- 
senting opinion of 1919 became the majority opinion, the 
view of the Supreme Court, when the hysteria following 
World War I died away. In 1943 the Court could say: 

"It is now a commonplace that censorship or suppression 
of expression of opinion is tolerated by our Constitution only 
when the expression presents a clear and present danger of 
action of a kind the State is empowered to prevent and pun- 
ish." 

The prosecution seized on the word "action." Many, many 
times during the trial, it brought up the agreed fact that Com- 
munists teach Marxism as a "guide to action." But what of 
that? What idea was ever worth teaching except with the 
design to put it in practice? The Supreme Court said in 1945: 

"The First Amendment is a charter for government, not 
[a charter for] an institution of learning. 'Free trade in ideas' 
means free trade in the opportunity to persuade to action, 
not merely to describe facts." 

Indeed, the Court had elaborated this point in 1940, say- 
ing: "Every expression of opinion on matters that are impor- 
tant has the potentiality of inducing action in the interests 
of one rather than another group in society. But the group in 
power at any moment may not impose penal sanctions on 



The Uses of Perversity 147 

peaceful and truthful discussion of matters of public inter- 
est merely on a showing that others may thereby be per- 
suaded to take action inconsistent with its interests. Abridg- 
ment of the liberty of such discussion can be justified only 
where the clear danger of substantive evil arises under cir- 
cumstances affording no opportunity to test the merits of 
ideas by competition for acceptance in the market of public 
opinion." 

Now the prosecution had no testimony to overcome this 
doctrine, no evidence that would show a very "proximate" 
danger or a very "imminent" evil. If, as its witnesses show, 
the Communists taught the same doctrine in 1929 that they 
teach today, and this teaching has not yet produced an at- 
tempted overthrow of the United States Government, where 
is the fire today? The prosecution was reduced to the argu- 
ment that times have changed, the world has changed, and 
that in view of the cold war the "clear and present danger" 
doctrine has become a luxury we can no longer afford. The 
prosecutor made that point even before the trial. In a brief 
or memorandum in October 1948, opposing the defense motion 
to quash the indictment, McGohey said: 

"Assuming, arguendo, that the 'clear and present danger' 
doctrine is applicable to this prosecution ... we submit that 
it is impossible to conclude that the allegations of these indict- 
ments . . . viewed in the context of world events, do not 
charge a clear and present danger to the Government of the 
United States." 

"The context of world events" . . . that's another way of 
spelling "cold war." And now, when the government has 
rested its case, and the defense again raises the "clear and 
present danger" doctrine in a motion to dismiss, Judge Medina 
and Prosecutor McGohey alike reveal that they just don't 
like the doctrine. Here is the substance of days of argument: 

(From the record) 

MEDINA: So the clear and present danger you are talking 
about is the immediate overthrow of the government? 



148 The Reptile Tribe 

ISSERMAN: That is correct. 

MEDINA: Well, that being so, it seems to me it reduces 
itself to an absurdity, because on that theory you couldn't 
punish anybody for such a conspiracy unless the government 
was just about to be overthrown, and then it would be too 
late. Isn't that so? 

ISSERMAN: That is throwing the "clear and present danger" 

doctrine out of the window. 

* 

McGohey picked up the ball and ran through the opening 
made by the Court. Justice Holmes, he said, "was talking from 
the background of a life and an experience where there was 
the freest possible discussion, in the town meetings of New 
England" and the like. "He was not talking about the kind of 
propaganda speakeasy that we heard about in this case, where 
persons went to school under assumed names, coming through 
a doctor's or dentist's office into rooms some place else. This 
is not the kind of freedom of speech Holmes said could be 
protected. In no event did Holmes in any of his decisions 
say that where you have an organized group, nationwide 
with a system such as has been shown in this case, that kind 
of teaching cannot be reached." 

All that McGohey is saying, is that he and the men who 
initiated this case don't like the Communist Party and don't 
think it should enjoy the protection of the Constitution under 
the "clear and present danger" doctrine. That determines 
the testimony of the thirteen renegade-informers placed on 
the witness stand by the government: they must describe the 
teaching of Marxist-Leninist principles in the United States 
in terms of a "propaganda speakeasy." They must invest Com- 
munist schools with secrecy and make a dark mystery of the 
very openness and scope of Marxist work in the world today. 
They must do that to get McGohey around the barrier of the 
Supreme Court. 

Without some new device, McGohey has no case. The 



The Uses of Perversity 149 

Supreme Court has said that you can't stop people from 
advocating doctrines just because you don't like them and 
you happen to be in power. But McGohey says this is differ- 
ent. This is dangerous. This is a far-reaching organization in 
a cold- war world. And for want of evidence that the defend- 
ants are spies, Soviet agents, traitors (as the headlines have 
it), for want for credible evidence that the Communist Party 
is indeed engaged in a plot to overthrow the United States 
Government with the aid of the Red Army, he must substi- 
tute mystery, secrecy, dark innuendo. What we do not know, 
it is implied, we cannot prove only because these men are so 
dangerously conspiratorial, so secretive in their work. If we 
wait for evidence, it will be too late. 

Once again we must call on Alice in Wonderland for a 
parallel. If you remember, the trial of the Knave of Hearts 
was about to break up when the White Rabbit found a piece 
of paper on which someone had written "a set of verses." 

"Are they in the prisoner's handwriting?" a juror asked. 

"No, they're not," said the White Rabbit, "and that's the 
queerest thing about it." 

"He must have imitated someone else's hand," said the 
King. 

"Please, your Majesty," said the Knave, "I didn't write it, 
and they can't prove that I did: there's no name signed at 
the end." 

"If you didn't sign it," said the King, "that only makes the 
matter worse. You must have meant some mischief, or else 
you'd have signed your name like an honest man." 

Communist "secrecy" was similarly established. The ab- 
sence of evidence of guilt proved it. McGohey had already 
outlined that approach to the case in his opening argument. 
He would prove, he said, that everything the Communists 
did had a secret purpose. Communist clubs, or branches, from 
World War I to the summer of 1948, were not political clubs 
or educational societies, but "classes for the indoctrination of 
their members with the theory and practice of Marxist-Leninist 



150 The Reptile Tribe 

principles for the overthrow of the United States Govern- 
ment." Of course all passages in Communist documents ex- 
pressly forbidding such an approach to Marxism, are there for 
"legal purposes" only; they are "mere talk," they are "empty 
words." In this context, the fact that Communists conducted 
schools and publications becomes evidence that they secretly 
taught force and violence. But what they taught in the schools 
becomes irrelevant! 

Witness Garfield Herron testified that he attended a 
"secret" leadership school in Chicago. But when the defense 
sought to cross-examine him in such a way as to show that 
the teachers in this "secret" school taught exactly the theory 
contained in the published documents already in the record, 
Judge Medina barred the questions. No, he said, that would 
only lead to "trying the war in Spain, Jim Crow, whether 
trade unionism is a good thing or a bad thing, how about 
wage raises, how about all the things that are done to the 
Negroes in the South, and of course the whole trial will get 
off on something that is not an issue." 

Secrecy! There is nothing more cynical about this case 
than the fact that the prosecution and the FBI chose to use 
spies to prove the secret, conspiratorial character of the Com- 
munist Party. For where do informers come from? What do 
you know about the stoolpigeon system of ordinary police 
practice which gives rise to the labor spy and the political 
informer? You probably know very little, for it is not publi- 
cized by the forces of 'law and order." It is an ugly, secret, 
shameful thing and until you have become acquainted with 
it, you cannot feel the full horror of this terrible trial. 



Book Four: Force and Violence 



"The poor have no laws. The laws are made by the rich, 
and, of course, for the rich" Address by the Association 
of Working People of New Castle County, Delaware, 
October 1829. 



Chapter 15 
PROSTITUTES AND PIGEONS 



Meet Chile Acuna. Many an innocent person did meet 
him and wound up in prison on "framed" charges. Chile Acuna 
was a stoolpigeon the word is his for the New York City 
Vice Squad. His career ended (so far as I know) when he was 
forced to tell his whole hideous story on the witness stand 
during the Seabury Inquiry. He counted 150 prostitution 
cases on which he "worked," and acknowledged that forty of 
them were "frameups." 

Acuna described how he entrapped prostitutes and 
"framed" innocent women. The officers he worked with, 
would wait near the apartment Acuna was to enter; after 
ten or fifteen minutes they would break in. Now Acuna would, 
in his own words, "play the comedy" regularly performed 
on these occasions, a performance intended to conceal his 
connection with the police. He would be taken into the next 
room where he at first was heard to deny any wrongdoing 
and then, after he was "beaten" into confession (the officers 

151 



152 Force and Violence 

slapped the wall hard and he began to groan and weep), he 
would implicate the women. Then he would leave it was an 
"escape" in the comedy while the victims were placed under 
arrest. If he were alone, he said, he would go to the station- 
house and wait for his police confederates and for the $5 to 
$10 per person (some of the arrests were mass arrests) which 
brought his earnings up to $150 a week. 

Acuna worked for hire, but during the Communist trial 
when attorney George Crockett tried to find out how much 
informer William Cummings was promised for his work as a 
stoolpigeon by the FBI official who hired him, Medina turned 
that to ridicule. The Judge asked the witness: "He didn't say, 
'Now, you stoolpigeon, you're going to get so much, did he?' " 
But observe, in the next lines, that Acuna unhesitatingly refers 
to himself as a "stool." Stoolpigeons are not as dainty as 
Medina pretends. 

"If there was another stool with me," Acuna testified, 
speaking of his "escape" following arrest, "he would go to the 
telephone and call up the bondsman or lawyer that was his 
favorite and notify them of the arrest that had been made just 
now so that in many cases when the officers arrived with the 
people that had been arrested at the station-house, the bonds- 
man was there already waiting." 

The waiting victims, including a dancing teacher, a phy- 
siotherapist, physicians' nurses and others who had committed 
no offense whatsoever, would be turned over to the gentle 
care of the shyster and bondsman. The whole sequence is so 
common that Ernest Jerome Hopkins sums it up in one pro- 
vocative paragraph of his Our Lawless Police: 

"Imagine the attitude toward the law of an individual who 
has gone through the whole series of experiences: he was 
arrested falsely on lying stoolpigeon information; he was phy- 
sically maltreated upon and after arrest; he was approached 
by a shyster lawyer, who has obviously been 'tipped off' by 
some policeman or jailer, and told that a payment to 'square' 
the judge and the arresting policeman would effect his re- 



Prostitutes and Pigeons 153 

lease; he has raised that money by hook or crook, and has 
been dismissed or discharged in the end, though tagged with 
a 'police record/ Even the rightful dismissal, under such cir- 
cumstances, appears to the victim a plain act of crookedness." 

This, then, is the stoolpigeon system. It consists not just of 
the stoolpigeon and his job, but the whole police process. And 
that process, like the pigeon himself, is rooted in the cor- 
ruption surrounding organized vice. The Wickersham Com- 
mission found that the stoolpigeon system is worse here than 
in other countries, and that its character is determined by 
police exploitation of organized vice. Specifically, our laws on 
prostitution, gambling, drug peddling and the like the sump- 
tuary laws start the process. The stoolpigeon may go on to 
the field of more important crimes, but he is indispensable 
to the police in the field of prostitution. Hopkins says: 

"In enforcing the sumptuary laws especially, stoolpigeons 
as agents provocateurs seem a real necessity. . . . The stool- 
pigeon is a criminal, or an associate of criminals, who 'snitches' 
to the police. . . . These underworld sneaks are more numer- 
ous in our country because of our peculiar sumptuary laws, 
such laws being seldom enforceable without the use of go- 
betweens who masquerade as purchasers and buy the out- 
lawed commodity. The stoolpigeon himself may be a drug 
addict, a 'fence/ an underworld hanger-on of any other kind." 

The rotten stoolpigeon system makes for the frameup at 
least as easily as for law-enforcement. The informer is utterly 
indifferent to truth or falsity, guilt or innocence. The shame- 
ful story of the New York Vice Squad and its stoolpigeons 
made front pages some years ago, but Harold R. Medina 
didn't notice. The record is there, just the same; Hopkins 
analyzes it: 

"In sumptuary cases, when the *buy' is made, the detectives 
make the arrest. The stoolpigeon 'escapes/ The evidence in 
such cases may be the marked money that was passed by the 
agent provocateur. But the temptation to 'frame* a case is as 
great as the opportunity/' 



154 Force and Violence 

That is an understatement. The "frameup" is not just a 
matter of temptation and opportunity; it is inherent in the 
stoolpigeon system. The stoolpigeon is an agent provocateur, 
an entrapper, a man who incites the commission of the spe- 
cific act of prostitution or drug sale for which the victim is 
then arrested. But the stoolpigeon himself, more often than 
not, became a police agent because he was entrapped. Police 
Captain Michael Fiaschetti (Yow Gotta Be Rough), has a 
whole chapter cynically entitled, The Making of a Stool 
Pigeon. He boasts that he had a private network that was 
"one of the biggest stoolpigeon organizations on record," but 
he was always eagerly working on new prospects. 

"The one I wanted to get most of all was Whitey Anderson. 
I wanted to give him a chance to choose between taking 
a stretch or tipping me off to the big boys of his smart set. 
I grabbed Whitey and locked him up in the Tombs." 

Putting Whitey in the lineup on a false charge of holdup, 
Fiaschetti had a friend come in from outside. " Tick out the 
one as you go in/ I instructed him, 'the little fat guy with the 
brown suit and spats/ You should have seen the change in 
Whitey 's face when the supposed victim of the stickup came 
in, glanced at the lineup, stepped instantly to Whitey, touched 
his shoulder, and said: 'This is the man who robbed me/" 

In the face of this "frameup," Whitey "turned stool." And 
it is not just in the vice and common-crime fields that entrap- 
ment is used to make stoolpigeons. The very terminology of 
labor espionage suggests it: the recruiter of labor spies is 
called a "hooker." Clinch Calkins, in Spy Overhead, explains 
the necessity for the hooking process. The company that 
needs spies, or the detective agency that supplies them, re- 
quires "bona-fide employes in the plant." Even though suf- 
ficiently corrupt to accept a bribe, they would not necessarily 
be ready to face the full implications of a Judas-role. "There- 
fore the potential traitor must lose his innocence by degrees. 
Not until he is caught in the trap beyond self -extrication must 
he be allowed to learn what he is really doing." 



Prostitutes and Pigeons 155 

This, too, is one of the secret facts of American life neces- 
sary to an understanding of the record of the Communist 
trial. The hooker who performs the "tender operation of get- 
ting a worker on the line," plays him skilfully and soon makes 
a full-fledged professional labor spy of him. If exposed in the 
plant where he is spying on his fellow-workers, the hooked 
spy may be transferred to another plant or himself become a 
professional hooker. Anyone who wants an authentic, detailed 
account of this dirty business, should read the account given 
by Red Kuhl in the record of the LaFollette Hearings ( U.S. 
Senate ) 1936-1937. Kuhl was a hooker of twenty years' experi- 
ence who finally turned upon himself in disgust and became a 
kind of free-lance agent aiding unions to uncover spies and 
undo the damage they cause. 

Such an awakening of conscience is extraordinary. More 
often, all moral sense perishes in the stoolpigeon system at 
either end of it. Fiaschetti describes a triple-cross he prac- 
ticed, with no indication that he is ashamed. He wanted to 
get a girl named Marjory to "squeal" on her lover, Bill. He 
decided to entice Bill with a pretty girl and let Marjory catch 
him in the act. The girl Fiaschetti wanted for a decoy "didn't 
want to do the job," but the policeman didn't hesitate to 
blackmail her. "She was keeping out of the way of a rough 
and exceedingly angry husband. She had left him and was 
living with the other chap. Anybody situated like that seeks 
to oblige, especially if you hint you might possibly say some- 
thing to the husband." So she agreed, and the trap was set 
for Bill. For all Fiaschetti knew, Bill was "faithful devotion 
itself" to his girl, but "he was only human" and fell into the 
trap. Marjory duly "squealed" and was thereafter in no posi- 
tion to refuse any dirty assignment Fiaschetti might hand her. 

We have not begun to touch bottom. All this filth not only 
proceeds from the underworld as even the FBI concedes 
but is possible only because the police protect and foster an 
underworld. It is not just the informer who gets immunity; it 
is the underworld itself. Police departments rather openly 



156 Force and Violence 

argue that it would break up their law-enforcement systems 
if they closed down dives, houses of prostitution, and known 
nests of crime. Fiaschetti states this with his customary bru- 
tality: 

"In any big city there are many people who run rack- 
ets, gambling, policy games, disorderly and rowdy resorts, 
bootlegging . . . and so on. I knew of hundreds of such. ... I 
was not supposed to go around squelching minor law breakers. 
Nevertheless, I could easily have had any of these petty of- 
fenders raided, closed up, and locked up. Instead, having 
something on them, I made them give me information/' 

Fiaschetti is a powerful witness precisely because he is 
not moralizing when he observes: "Here you have the real 
backbone of the stoolpigeon system. The great number of 
doubtful characters on the fringe of the underworld who 
engage in business more or less illegal live in constant fear of 
the police, and the detectives are often able to use them as 
stoolpigeons. They are allowed to take their large profits, and 
in return they squeal." 

This tale of the underworld is a reminder that we have so 
far had ^only the barest glimpse of the whole complex system 
of lawless law-enforcement in which the stoolpigeon system 
is a cog. Fiaschetti did not decide to give the underworld 
immunity in return for services rendered; that was decided be- 
fore he was born. City, state, and national political machines 
protect organized crime and vice, and are so closely integrated 
with the underworld as to be inseparable. And the corrup- 
tion of these political parties and personal machines is per- 
mitted, tolerated and necessary, because still more powerful 
interests have need of their services. Just as the politicians 
and police give the petty underworld protection, so the hand- 
ful of powerful industrial-financial interests that rule our 
country, protect and encourage the dishonest political ma- 
chines and police departments. That is the class reality be- 
hind the curious trial at Foley Square. 



Chapter 16 
LAW AND ORDER 



"But who decides when the majority wants to overthrow 
the government?" This question, in many forms, was put to 
the defense by Judge Medina. Court, prosecution and press 
asserted that the defense never answered the question; jury 
and public were supposed to draw the proper conclusions 
from the alleged failure to answer. When the defense put 
Anthony Krchmarek of Cleveland on the stand to refute the 
testimony of informer William Cummings, Russell Porter 
wrote in the Times of July 27: 

"The witness testified that George Siskind . . . said Social- 
ism will come in the United States when the majority 'wants' 
it., . . . Mr. Siskind said the small group that now controls the 
wealth of the country will inevitably obstruct such a change,' 
the witness went on. 'Therefore, if that does happen there 
will come a time when it will be necessary to carry out the 
will of the majority and that is the dictatorship of the pro- 
letariat. He said this would be the first time the majority 
would come into its own and operate the wealth of the nation 
for the whole people, not the few/ " 

But Porter found a gap in this testimony. "The witness did 
not quote Mr. Siskind as to who would determine what the 
majority 'wants/ " he observed. 

Of course the witness didn't quote anyone on that point 
and of course the Communists had no "answer" to the ques- 
tion. The defense always replied, in effect, that the question 
was one for history to answer. The government, however, 

157 



158 Force and Violence 

relying upon the man-in-the-street's superficial knowledge of 
history, treated this as an evasion, as one more example of the 
concealment of "secret" and "conspiratorial" meanings. Porter 
went on, in the account cited above, to say that the prosecu- 
tion had "introduced evidence" that Communist "professional 
revolutionists" were taught that the National Board, the top 
leadership of the Communist Party, would do the deciding. 
The board would hand down a " 'decision' on what the major- 
ity of the American people wants when the board decides the 
time is ripe for force and violence. . . ." 

Defense witnesses ridiculed this idea. They denied they 
had ever attempted to foresee the unforeseeable. They said 
they had taught only general revolutionary principles: that 
modern conditions leave open the possibility of a peaceful 
establishment of Socialism, but history shows that no ruling 
class ever bowed to the will of a majority without first attempt- 
ing to thwart the will of the majority. If the people say, "We 
are tired of your rule. Go away, we want to abolish the existing 
form of government and set up a new one," it is silly to think 
the old rulers will walk away. The Communists said they 
taught that the minority would oppose change by force and 
that the majority must prepare to meet violence with violence. 

The reason for asking the defense the question about "who 
decides?" is to "establish" that the Communists plan to make 
an undemocratic decision when the time of revolution arrives. 
But what is a "democratic" solution? Who determined the will 
of the majority of the inhabitants of the thirteen colonies on 
the day the Founding Fathers signed the Declaration of In- 
dependence? There was certainly no referendum. And there 
was certainly active, even violent, opposition to a revolutionary 
break with Britain. The number of Loyalists was greater than 
is generally suggested by school textbooks, and the violence 
inflicted on the Loyalists by the revolutionaries is a reminder 
that omelettes are not made without breaking eggs. Was it 
"democratic" for the Founding Fathers to "hand down a deci- 
sion" that the majority of the American people wanted inde- 



Law and Order 159 

pendence and a new government? Even today, one can an- 
swer that only by judging the record of history in the light 
of events that followed the Declaration of Independence. And 
so judging, we may say that the Founding Fathers correctly 
interpreted that most difficult of all things to assess the will 
of the majority. 

Before the event, who could have predicted how it would 
happen? Even among the ardent advocates of independence, 
who could have foretold the sequence of events that would 
produce the precise machinery the fateful Congress influ- 
enced by the Boston Massacre for launching and conducting 
the American Revolution? How much more fantastic it is 
to suppose the Communists have blueprinted the machinery 
that history will create at some unknown future time when 
a revolutionary crisis of unknown form shall arise. Some 
Marxist teachings may fairly be interpreted as denying that 
the time for decisive action in a revolution is determined by a 
referendum. Is that undemocratic? Would history have for- 
given the Founding Fathers if they had held up the Declara- 
tion of Independence until it had been approved by a popular 
referendum and the British had hanged all the leaders and 
suppressed the Revolution? The proof of the pudding is in 
the eating, and the proof of majority will is in the stubborn- 
ness with which the people prosecute that bitterest of all 
wars a revolutionary war. 

So much for force and violence by majorities or minorities 
in time of revolution. But one cannot hope to understand 
the whys and wherefores of the Communist trial unless he 
first confronts the problem of everyday violence in the society 
we live in. The force and violence I first encountered on the 
Skid Row was not an isolated or exceptional case. On the 
contrary, it was and is the rule; systematic violence against 
law-abiding men is the established and nationwide practice of 
law-enforcement authorities in the United States. I say this 
on the strength of the mountains of evidence piled up by the 
authoritative Wickersham Commission, whose findings I have 



160 Force and Violence 

quoted earlier in this book. On that very Skid Row, the Com- 
mission learned, San Francisco police had stationed two de- 
tectives. They were former pugilists, and their express assign- 
ment was to spend the day beating up migratory workers or 
"floaters." 

Reckless beating is by no means peculiar to San Francisco; 
it is a nationwide characteristic of American police, the Com- 
mission found. Everyone takes it for granted. In Dr. Fredric 
Wertham's recent study of murder, The Show of Violence, the 
noted psychiatrist tells how he was called to New York police 
headquarters one night by top police brass, to confer with 
Robert Irwin, a former patient wanted for murder. Irwin told 
Wertham the police had been surprisingly nice to him. 

"They didn't even beat me up," he confided. 

"High police officials never beat people up," Wertham 
replied. "They have cops for that." 

Yes, they have cops for that and that's what they have 
cops for. The Wickersham Commission established that the 
norm of our daily life is the policeman who is above the law 
and the norm of his daily life is lawless beating, reckless 
seizure of citizens against whom he can neither prove nor 
charge any crime kidnaping, to give it its right name fol- 
lowed by unlawful imprisonment "on suspicion," forced con- 
fession, actual murder. All this in a climate that denies any 
rights to Negroes, the foreign-born, the poor, the workingman, 
the radical or suspected radical. The end is sadism, degen- 
eracy, medieval torture and modern corruption. 

As Hopkins sums it up: "Lawlessness in the enforcement 
of law is persistent enough to be called an American institu- 
tion." So American that "it is news to most Americans that 
police work need not be, and in other countries relatively 
speaking is not, a violent profession." Not in England, not in 
France, not in Germany. No, and for all the millions of words 
about the "police state," least of all in Soviet Russia! It may 
go against the grain to admit it, but the true story of police- 
statism begins at home. Let Hopkins tell it: 



Law and Order 161 

"The facts, in summary, amount to this: that we only think 
we are living, have but the illusion we are living, under the 
form of criminal justice taught to every schoolchild and clearly 
laid down in the Constitution. . . . Individuals who are consti- 
tutionally guaranteed against violence are beaten, clubbed, 
slugged or shot by officers of the law, either upon arrest, or 
without even the pretext of arrest. Persons considered guilty 
of crime only in the arbitrary judgment of constables are 
subjected to equally arbitrary punishment, and that often of 
the 'cruel and unusual' sort forbidden by law. Persons en- 
titled to liberty are deprived of that liberty with fantastic 
frequency, by false and unreasonable arrest. Arrested persons 
are further subjected to unlawful periods of incommunicado 
imprisonment in police jails, either, again, as punishment for 
assumed offenses, or while inquiry is being made as to their 
possible guilt; that such guilt often does not exist is shown by 
the extremely high percentage of releases without formal ac- 
cusation of crime. The inquiry itself quite commonly takes the 
form of the secret trial-by-ordeal, directed to the forbidden 
purposes of making a lawlessly captured person incriminate 
himself. At times, the ordeal may reach the condition of actual 
torture. Finally, both to conceal the previous unlawful treat- 
ment, and to decide and sway the action of the courts of law, 
police commit positive or negative perjury." 

Hopkins is talking about the United States of America in 
the twentieth century! About what is happening in every city 
of the United States right this minute! Let's take these things 
one by one, beginning with beating. Any child playing police- 
man will tell you by his actions that a cop is somebody who 
beats people. A policeman will agree; at least, he will ask why 
they gave him a club and a gun if they didn't want him to 
use them. And he uses them. 

The treasury of violence amassed by the Wickersham Com- 
mission is particularly rich in stories of torture to extract con- 
fessions. Hopkins compresses untold human suffering into 
one paragraph: "In various cases which occurred between 



162 Force and Violence 

1920 and 1930, the Wickersham Commission found that sus- 
pected persons had been starved, kept awake many days and 
nights, confined in pitch-dark and airless cells; had been 
beaten with fists, clubs, blackjacks, rubber hose, telephone 
books, straps, whips; beaten on the shins, under the knee 
cap (at the point of the patellar reflex), across the abdomen, 
the throat, the face, the head, the shoulders, above the kid- 
neys, on the buttocks and legs; kicked on the shins, the torso 
and in the crotch; had had their arms twisted, their testicles 
twisted and squeezed; had been given tear-gas, scopolamin 
injections and chloroform; had been made to touch corpses 
and hold the hands of murdered persons in morgues; that 
women had been lifted by the hair; in one case, a man had 
been laid flat upon the floor and lifted repeatedly by his 
organs of sex. This in modern America between 1920 and 
1930, in the fifteenth decade of the Constitution, and for the 
purpose of obtaining a Voluntary* confession of guilt." 

Reckless arrest, police kidnaping, is just as common as 
beating. It is so taken for granted that no one had done any 
statistical studies on it, so Hopkins compiled figures for the 
first three months of 1930 in Dallas, Texas. He found there 
had been 1823 "on suspicion" arrests, which are completely 
unlawful. Sixteen of the kidnapees were held more than forty- 
eight hours and four of them more than five days. The 1823 
averaged twenty-two hours apiece 40,106 hours or almost 
five years stolen from them by the Dallas kidnapers. And now 
for the climax: not one in twenty of the victims was, in the 
end, charged with any offense at all! 

In 1949, a less "respectable" authority made a similar 
count in Detroit with a similar result. The weekly, Michigan 
Worker, found the Detroit police force had made 20,169 un- 
lawful arrests "for investigation" in the preceding year. It will 
be the same this year, in San Francisco, Dallas, Detroit or 
New York. 

Justice can only wither where the law is poisoned at the 
root and in the flower. Criminal conduct by the police up to 



Law and Order 163 

the door of the courtroom, must be followed by new crimes 
in the courtroom itself. There "we come to the final manifesta- 
tion of police lawlessness perjury, committed by the police 
in the courts of law, or caused by them to be committed by 
other witnesses." Aside from the outright frameup, "it seems 
almost a part of law enforcement to give each judge what he 
requires; the policeman feels the man is guilty, the judge re- 
ceives the evidence and convicts." But the "evidence" has been 
"routine perjury," the shading and distortion of facts, the 
withholding of facts, the pitiful lapse of memory under cross- 
examination. This is so matter-of-course that you may "as 
well put the average prosecuting attorney on the witness stand 
as the average patrolman who has worked on a case," Hop- 
kins says. 

It is done, however, every day in every court, under the fic- 
tion that the policeman is neutral. Yet no informed person 
will believe the statement of a policeman on a stack of bibles. 
In 1931, an official inquiry revealed that five New York magis- 
trates had a ten-year average of about one conviction out of 
every four cases (27.2 per cent). Four of the five must have 
had a very low average, for the fifth, -Mrs. Jean Norris, had 
found almost nine out of ten persons haled before her, 
"Guilty!" Asked why she had a record of 86 per cent convic- 
tions, she said it was because she always took a policeman's 
word! They are sworn officers of the law, she explained. Such 
is public opinion of policemen, that she immediately became 
the butt of newspaper and magazine ridicule; not one daily, 
not one weekly defended her. And clearly, the sworn word of 
sworn officers of the law carried very little weight with the 
other four magistrates. 

The prosecutor and policeman who will stoop to perjury, 
will certainly not shy away from employment of perjurers, 
or "routine subornation of perjury." Hopkins calls it "the pro- 
cess by which the stories of witnesses are gone over, often 
with repeated and severe grilling, and *built up* to suit the 
case of the prosecution. Both detectives and prosecuting 



164 Force and Violence 

attorneys participate in this, which is virtually third-degreeing 
the witnesses." When he has once been bludgeoned into mak- 
ing the statements planned by the police or the prosecutor, 
"there is the ever-ready threat of a perjury charge to hold the 
witness in line." 

All, all, the government testimony in the Communist con- 
spiracy case is of this rehearsed character, so that even the 
incontestable facts related by the witnesses become threads 
in a fabric of lies. On a lower, routine police-level, a recent 
novel by David Alman, World Full of Strangers, gives an 
authentic picture of this perjury-coaching. Detective McCarthy 
and two other officers enter a hotel-room, without warrant 
naturally, to make an arrest that will help their record. They 
want the man in the room to testify that the girl is a prostitute. 

"All right, Miller, where'd you meet her?" 

"Movies." 

"She came over to you?" 

"No. I just asked her if she wanted a cigarette." 

"Don't give me that," McCarthy said angrily. "She sat 
down next to you and asked if you wanted to get fixed up, 
that right?" 

"No, I just told you-" 

"God damn," McCarthy shouted, "you heard me!" 

"What's this?" Miller frowned. "A murder trial?" 

McCarthy slapped him. 

"She asked you if you wanted to get fixed up, right?" 

Miller looked up. "I got nothing against the girl. What do 
you want?" 

McCarthy slapped him again. 

"Why're you doing that?" Miller asked, tears in his eyes. 
"Jesus, what did I do?" 

McCarthy struck him in the chest with his closed fist. ... 

"You can save yourself a lot of trouble," McCarthy said. 
"All I want you to tell the judge is that she gave you a hustle, 
that's all. . . ." 

In the end, the detective had his way. Even a strong man 



Law and Order 165 

knows he is in a trap: it is practically impossible to obtain 
redress for abuse by lawless policemen. Where some big pub- 
lic scandal forces action, the punishment of policemen is 
usually immoderately moderate. It has to be, for otherwise 
the police would abandon their lawless violence, and that is 
not what the men above them desire. 

Police apologists generally justify their violence by the 
"war on crime" theory. The criminal is a dangerous enemy and 
the police are eternally at war with him, the theory runs. War 
is no place for nice courtesy and fine restraint. But the "war 
on crime" theory will not stand a moment's comparison with 
police practice, for the first thing that stands out about police 
violence, is that it is not exercised against the Legs Diamonds 
and the Al Capones. They are handled with kid gloves. Police 
violence "is visited, in exceedingly numerous instances, upon 
mere indigents and morons and vagrants and unemployed 
men and migratories and drug addicts and immigrants and 
illiterates, an appallingly numerous class in this country, cases 
for the hospitals and the social agencies and the educational 
system and the employment bureaus, but regarded every- 
where by the police as their prey." 

Hopkins risks confusing us by mixing the law-abiding 
workers and unemployed with the habitual small offenders. 
The latter may indeed come largely from what the social 
worker calls the "under-privileged classes," but they should 
not be confused with the class itself. It is not because they are 
lawbreakers that the police abuse Negroes, the unemployed, 
immigrants and workers in general; it is because they are 
Negroes, unemployed, immigrants and workers. 

This form of police violence is no accident and the raid I 
witnessed on the Skid Row is its most typical form. There is 
nothing our Constitution-breaking authorities dislike so much 
as workingmen who assemble peaceably and discuss their 
problems. In today's cold- war jitters, the police are not re- 
quired to, and do not, tolerate politics in the lower depths. 
They strike out with fist and club. And not just at the Com- 



166 Force and Violence 

munists; not just at persons and parties opposed to the capi- 
talist system, but at all dissenters from the present bipartisan 
foreign policy of the Truman Administration, notably Henry 
Wallace. Wallace is no Communist; he is a Rooseveltian New 
Dealer, a firm believer in and defender of an anti-monopoly 
type of capitalism. But he is an open and bold dissenter from 
the golden-calf-worship of the postwar years, and his public 
opposition to the cold war abroad and Department of Justice 
tyranny at home, has encouraged other dissenters. Dissent is 
back-talk, just what the policeman can't stand. 

Of course the policeman doesn't think all that out. He 
doesn't know that the people he beats up on the Skid Row are 
"dissenters." He doesn't think at all; he acts. But he acts 
against those he has been taught to abuse, the classes of Ameri- 
cans who can be abused with impunity: the poor, the humble 
workingman, the Negro, the radical. He has learned by experi- 
ence that he can beat them, kidnap them ( arrest them without 
warrant and hold them indefinitely without charge), and even 
murder them, without consequences to himself. 

The Wickersham Commission found there was (and is) a 
special form of police sluggery Hopkins calls it "the street 
beating for 'crime prevention' purposes" employed against 
the poor ( who are the majority of Americans, too ) . Police just 
descend upon certain districts, especially during "crime 
drives," and with fist, blackjack and club, try to put the fear 
of God into the whole population. Needless to say, they do not 
do this on Park Avenue, but in Harlem; not in the Silk Stock- 
ing district but on the lower East Side, the areas in every city 
peopled by the workingman, the Negro, the Puerto Rican, 
the poor and the unprotected. 

Casual street murder of a Negro in Harlem by a policeman 
is so common that it isn't even "news." Harlem has no rights. 
When Chile Acuna was testifying before Commissioner Sea- 
bury, he explained certain raids in that area. The police 
officers he worked with, he said, were liable to be sent back 
to pound a beat if they didn't keep up their record of arrests. 



Law and Order 167 

So when they were "short of arrests in their average, they used 
to go to Harlem and in Harlem they go to any colored house 
or colored apartment and they make any arrests at all, just be- 
cause they thought colored people had less chance in court." 
Yes, colored people have less chance in court. No chance, 
more often than not. And the white victim of unequal oppor- 
tunity is not much better off. The very fact that he has been 
wronged is turned against him; his joblessness stamps him a 
"vagrant" or "floater"; his poverty, as much as his resentment, 
brands him "subversive" or "criminal." And the more it be- 
comes apparent that the gorge of the peoples of the world is 
rising against this monstrous system of perpetual violence and 
perpetual oppression, the more brutal, sadistic and violent 
become the attempts of the ruling minority to maintain the 
status quo. Policemen are no longer equal to the task. The 
masses must be moved to violence. The stormtroopers of 
Hitler and the native Fascist hoodlums of Peekskill are prod- 
ucts of the same causes and are employed for the same ends. 
The "legal" violence imposed on the Communists at Foley 
Square is of the same stamp. Violence! If you wish to under- 
stand it you must face squarely the fact of class in the United 
States, and the class basis of the terror in which we live today. 



Chapter 17 
THE SECRET OF SECRECY 



Violence against the majority! Systematic, oppressive, 
sadistic violence! All other violence is born here. Even the 
murders committed by a psychopath who runs amok, are pos- 
sible only against the background of social violence. No 
doubt mental disorder was the immediate reason for the 
rampage of Howard Unruh, the veteran who killed thirteen 
men, women and children in Camden, New Jersey, early in 
September 1949. But what caused that disorder to find 
that particular expression? In The Show of Violence, Dr. 
Wertham concludes that murder in our society is ultimately 
explained by a class system that rests on contempt for human 
life the life, that is, of the underdog. 

"The individual act of murder/' he writes, "exists against 
a background of victimization of many people. The problem 
of homicide is only part of the general problem of preventable 
deaths." Calling attention to a study issued by the Metro- 
politan Life Insurance Company, in which a "subtle and 
highly complex" relationship between "economic considera- 
tions" and homicide is acknowledged, Dr. Wertham cites some 
not so subtle examples: "A German insecticide company had 
a monopoly on producing the gas approved for gas-chambers. 
One pound of this gas could kill 125 persons. The financial 
profits on producing the gas were 200 per cent." The gas- 
chamber is new, but how different is it from murder by 
starvation in India? From 1770 to 1900, a total of 31,500,000 
people died of starvation in that tortured land. Much of that 

168 



The Secret of Secrecy 169 

time, exactly "forty persons owned all the shares of the East 
India Company and received dividends of 22 per cent per 
year," Dr. Wertham grimly notes. 

What can be proved, he asks, by elaborate studies of the 
quirks in the minds of certain supposedly psychopathic mur- 
derers, in a society where presumably sane and definitely 
highly-educated men encourage or perpetrate such class- 
murders as that of Sacco and Vanzetti? And where they tol- 
erate and justify a system of production that demands delib- 
erate blindness to human suffering in the name of "free enter- 
prise"? The poet Thomas Hood, sums it up: "O God! that 
bread should be so dear, and flesh and blood so cheap!" 

You don't have to go abroad to look for mass murder by 
indifference. Each year in the United States, 325,000 people 
die for want of medical care. In 1947, 17,000 Americans were 
killed on their jobs in industrial accidents and one of those 
accidents was the Centralia mine disaster which occurred 
just five years after one of the miners had written to the 
Governor of Illinois: "Please save our lives." The politically 
and economically and socially powerful never waste time or 
money to prevent deaths that cost them nothing, so 111 men 
died needlessly in that mine collapse. 

Violence by indifference is one side of the coin; deliberate 
violence by the police against the majority is the other. A so- 
ciety that exposes the majority to wanton violence cannot safe- 
guard even the ruling minority from its effects. The case of 
James Forrestal ought to have given pause to the ruling minor- 
ity. Here was one of sixty or six hundred men who rule the 
United States. I refer not so much to his high place in public 
life, as to his social and economic status in private life. Presi- 
dent of the banking empire of Dillon, Read and Company, he 
was Wall Street incarnate before he became Secretary of the 
Navy. Subsequently he moved into the still mightier post of 
Secretary of the National Military Establishment the com- 
bined armed services. He thus united in his person a great 
public and a great private power. That power was used to 



170 Force and Violence 

create a hysteria that would carry us unresisting down the 
road to World War III. "The Russians are coming!" he 
screamed at us daily in black and red headlines. 

Under the awful pressure he had himself created, his mind 
snapped. The bogey of his own manufacture became a reality 
to him. He leaped from his bed one night a paranoiac Paul 
Revere to run down the street in his pyjamas, screaming once 
more: "The Russians are coming!" 

They put him in a hospital for treatment. He had all the 
comfort and seclusion that his public position and his private 
fortune could procure. But there was no refuge. The frenzy 
of violence he had loosed at the Russians, the Communists, 
and the common people of all the world overtook him. He 
plunged from a tower-window to violent death in the dark 
abyss he had prepared for the victims of his madness! He died 
in a trap set by the few for the many. 

Is it possible that all this violence, running through our 
American way of life like a virus multiplying in the blood- 
stream, is a secret unknown to the average American? Is he 
equally unaware of the violence of indifference and the vio- 
lence of the club? Why that cannot be so; he must know at 
least the fact that lawlessness is the norm of police conduct. 
It is the meaning that he misses. Knowing the fact of violence, 
he continues to think that the Constitution with its Bill of 
Rights is a description of life in our country; he knows as little 
about the policeman on the Skid Row as I knew when I first 
went there. Nor is his innocence accidental: all the powers 
that be have combined to conceal the truth from him and 
teach him falsehood in our public schools, in our newspapers, 
in churches and meetings of the American Legion, Chambers 
of Commerce and, sad to say, all too many union halls. 

This is the real conspiracy, the conspiracy of the Big Lie. 
The conspirators cannot deny the violence all about us and the 
suffering it produces, but they can and do explain it away by 
systematic falsehood. And it is remarkable how persistent 
repetition of a falsehood can confuse even those who have in 



The Secret of Secrecy 171 

their grasp the facts from which the truth might be deduced. 
The Wickersham Commission and its interpreter, Hopkins, 
provide the perfect illustration. They not only see the extent 
of violence in our life, but know that it contradicts all that we 
are taught about "the American way of life." 

"The lawlessness within law enforcement, by its results, 
might reasonably be considered the most fundamentally sub- 
versive of all forms of lawbreaking," Hopkins writes. It sub- 
verts "the very basis of government" respect for law and 
mocks our professed standards of "Americanism" and "justice." 
"A word as to those standards. Every schoolchild, every candi- 
date for citizenship, learns them by simply reading the Consti- 
tution and takes pride in the fact that this nation was the first 
to promulgate them in written form upon earth." And yet, says; 
Hopkins, "if there were a general conspiracy to frustrate the 
working-out of those principles and do away with them at last, 
action to that end could be little more effectual than it is in 
many cities today." 

Exactly! Yet Hopkins never dreams there is such a con- 
spiracy! He sees the evidence of it and notes that there is no 
other logical conclusion, but he cannot imagine that it is so! 
Today, after Peekskill, when violence is becoming more and 
more political, when more and more openly it tends toward 
conscious Fascism, there is the same blindness in the face of 
fact. Or, more exactly, the same failure to recognize the truth 
because all the shapers of public opinion are busy day and 
night telling us it isn't so. How close a man can come to inde- 
pendent discovery of the truth, only to be browbeaten out of it 
by "respectable" authority to the contrary! Hopkins, describ- 
ing the extent to which the police have instituted trial-by- 
beating, trial-by-kidnapping, trial-by-third-degree, for lawful 
court procedure, again comes within an inch of seeing the 
conspiracy: "The police must have secrecy or the game is up. 
Not only must what goes on in the sweating session be kept 
secret, but if possible the existence of the practice itself." Why 
then can't Hopkins accept the evidence of his own eyes, that 



172 Force and Violence 

there is a nationwide conspiracy by the minority to bamboozle 
the majority? 

Any attempt to answer that question, to open a discussion 
of the underlying issue, proceeds under an enormous handicap. 
It takes place in the framework of our peculiarly American 
mythology. In that mythology there is no ruling class because 
this is a democracy. Therefore, no matter how great the evi- 
dence that a minority controls the machinery of state and 
uses it to keep the majority in its "place," the fact is never 
acknowledged. No matter how great the evidence that the 
myth itself is a decisive factor in maintaining the privileges of 
the privileged and the complacency of the majority, the myth 
continues to pass for fact. To break down the inertia of habit, 
<only a word is needed, only a phrase. Why doesn't Hopkins 
understand his own facts? Because to understand them, one 
must first ask what kind of struggle is responsible for that sub- 
version he has described. And what kind of struggle safe- 
guards our human rights and democratic liberties from the 
truly subversive? The answer is class struggle; and those are 
forbidden words. 

Our American mythology, refusing to acknowledge that 
democracy is a class system, cannot concede that the United 
States Constitution is itself a product of class interests set in 
a framework of class conflict. To say out loud that American 
-society is a class society, is to invite violence. The myth 
enjoys more than the force of law in the United States; it is 
enforced by lawless violence. It is a secret law that insists 
upon discussion of domestic politics and world affairs in terms 
of resounding "moral" concepts instead of hard material reali- 
ties. And anyone daring to go beyond those arbitrary boun- 
daries of thought or advocacy, is automatically excluded from 
"respectable" society. He is a Communist, a Marxist, a heretic. 

The late Charles A. Beard found that out. When he first 
published his "An Economic Interpretation of the Constitu- 
tion," he was assailed as a "Marxist" by older, more orthodox 
historians. That, incidentally, was 1913, before the Russian 



The Secret of Secrecy 173 

Revolution provided the now conventional "national security" 
pretext for redbaiting. Beard's simple acknowledgment of the 
class basis of the Constitution was his crime. He very prop- 
erly insisted that he was no more a Communist than were his 
critics. In an introduction to the 1935 edition of his book, 
Beard points out that the Communists were not the first to 
speak of the class struggle and hence it is silly to shout "Marx- 
ist" at everyone who escapes the myth of classlessness. He 
wrote: 

"The germinal idea of class and group conflicts in history 
appeared in the writings of Aristotle, long before the Christian 
era, and was known to great writers on politics during the 
middle ages and modern times. It was expounded by James 
Madison, in Number X of The Federalist, written in defense 
of the Constitution of the United States, long before Karl 
Marx was born. Marx seized upon the idea, applied it with 
vigor, and based predictions upon it, but he did not originate 
it. Fathers of the American Constitution were well aware of 
the idea, operated on the hypothesis that it had at least a con- 
siderable validity, and expressed it in numerous writings." 

Beard had done nothing more than to expound the politi- 
cal philosophy of Madison, the father of the Constitution. Of 
course, if it is a crime simply to read the powerful works of 
Karl Marx as it may well be if the present case is not other- 
wise decided in the high court of American public opinion- 
then Beard, too, was a criminal conspirator. For "at the time 
this volume was written/' he explained, "I was, in common 
with all students who professed even a modest competence 
in modern history, conversant with the theories and writings 
of Marx. Having read extensively among the writings of the 
Fathers of the Constitution of the United States and studied 
Aristotle, Machiavelli, Locke and other political philosophers, 
I became all the more interested in Marx when I discovered 
in his works the ideas which had been cogently expressed in 
the preceding centuries. That interest was deepened when I 
learned from an inquiry into his student life that he himself 



174 Force and Violence 

had been acquainted with the works of Aristotle, Montes- 
quieu, and other writers of the positive bent before he began 
to work out his own historical hypothesis/' 

Beard had followed not Marx but Madison. Philosophi- 
cally, the difference between the two men is profound, for 
Madison supposes wealth and poverty to be the result of dif- 
ferences in men's abilities; Marx explains the unequal dis- 
tribution of wealth by tracing its history. Madison's theory 
is, in effect, a justification of privileged classes, while Marx 
intends his theory as a weapon in the hands of the working 
class to end class privilege forever. But here we are not con- 
cerned with the intent of either. All that is relevant to our pur- 
pose is that Madison sees conflicting class interests as the 
great reality with which the Constitution must deal. He wrote 
in The Federalist: 

"From the protection of different and unequal faculties of 
acquiring property, the possession of different degrees and 
kinds of property immediately results; and from the influence 
of these on the sentiments and views of the respective pro- 
prietors, ensues a division of society into different interests 
and parties. . . . The most common and durable source of fac- 
tions has been the various and unequal distribution of prop- 
erty. Those who hold and those who are without property 
have ever formed distinct interests in society." 

Yes, in the United States as in all other countries, the prop- 
ertied and the propertyless are locked in class struggle. Madi- 
son continues, describing other economic interests: "Those 
who are creditors, and those who are debtors, fall under a 
like discrimination. A landed interest, a manufacturing inter- 
est, a moneyed interest, with many lesser interests, grew up of 
necessity in civilized nations and divided them into different 
classes actuated by different sentiments and views. The regu- 
lation of these various and interfering interests forms the 
principal task of modern legislation, and involves the spirit 
of party and faction in the necessary and ordinary operations 
of the government." 



The Secret of Secrecy 175 

Beard's summary of the whole Madisonian concept under- 
lying our Constitution, emphatically establishes the class basis 
of American democracy: "Party doctrines and 'principles' 
originate in the sentiments and views which the possession 
of various kinds of property creates in the minds of the pos- 
sessors; class and group divisions based on property lie at the 
basis of modern government; and politics and constitutional 
law are inevitably a reflex of these contending interests." 

Beard calls his system, "economic determinism"; Commu- 
nists employ "dialectical materialism" and "historical material- 
ism." We need not define or explore these terms further than 
to note that by virtue of these different approaches, Commu- 
nists profess to find a meaning in history, whereas Beard spe- 
cifically declines to look for any. He writes: "It may be that 
some larger world-process is working through each series of 
historical events; but ultimate causes lie beyond our horizon." 
This would lead to a fatalistic acceptance of all the evils we 
meet, including the class violence we have encountered; yet 
Beard, without suggesting a remedy, does provide us with a 
clue to that violence and to the Communist conspiracy trial 
itself: 

"The whole theory of the economic interpretation of his- 
tory rests upon the concept that social progress in general is 
the result of contending interests in society some favorable, 
others opposed, to change." 

That is precisely the origin of the policeman's violence 
on the Skid Row and judicial violence in the courtroom at 
Foley Square. The defenders of the status quo, employing 
daily violence against the majority in defense of the privileges 
of the minority, must go beyond that to punish advocacy of 
change itself. A special form of violence must be invented for 
use against those who hold and teach dangerous ideas, ideas 
in conflict with the official mythology. The minority, the rul- 
ing class, is frightened by the rapidity of change in the world 
today. It resorts more and more to violence. While professing, 
in great hollow waves of propaganda from the advertising 



176 Force and Violence 

agencies employed by the National Association of Manufac- 
turers, to believe that capitalist ideology would triumph in 
any peaceful joust with Marxist ideology, our ruling class has 
been careful to pass laws making it unlawful to advocate 
Marxism. 

A law specifically invented for that purpose and em- 
ployed to prevent peaceful submission of any non-conformist 
theory to the judgment of the American people, must ob- 
serve the pretense of respect for democracy. The trick in 
our time, therefore, is to cry, "Stop thief!" That is, the ruling 
class, practicing violence against the majority, declares that 
advocates of fundamental change must be suppressed be- 
cause they plan to attain their ends by force. Here is how the 
argument runs: 

"I am of the opinion that the manifesto and program of 
the Communist Party, together with other exhibits in this case, 
are of such character as to easily lead a reasonable man to 
conclude that the purpose of the Communist Party is to ac- 
complish its end, namely, the capture and destruction of 
the state, as now constituted, by force and violence. . . . 

"If those who support the Communist Party in its pres- 
ent declaration of principles hope for success and I must as- 
sume that they have such hope I cannot do otherwise than 
conclude that they must contemplate the employment of force 
and violence. In other words, I am unable to perceive how 
the expropriation of private property can be accomplished 
without the employment of forbidden instrumentalities. I 
say this because of the fact that up to the time of the capture 
and destruction of the present government its officers will be, 
as they now are, charged with the protection of property 
rights, and I cannot imagine that such officers and those 
whose property the Communists will take, will meekly capitu- 
late the moment the Communists demand a transference to 
them of all such rights. Should such a transfer be demanded 
and refused, could it for a moment be supposed that the Com- 
munists, if they considered their strength sufficient, would! 



The Secret of Secrecy 177 

hesitate and seek peaceful means of persuasion? It seems to 
me that they would unquestionably exert whatever coercion 
and employ whatever force and violence was necessary to the 
achievement of their success." 

That was the opinion of Judge John C. Knox, now Senior 
Judge of the Federal Court of the Southern District of New 
York, in a case decided in 1920. It was the opinion of many 
other apologists for the ruling class and defenders of the 
status quo. They worked tirelessly to make that opinion the 
law of the land, which would, of course, repeal the Bill of 
Rights. And in 1940 they finally succeeded in placing on 
the statute books of the United States, a law under which 
they could outlaw dangerous thoughts while maintaining the 
appearance of "due process." That law was the Alien Regis- 
tration Act, otherwise known as the Smith Act, under which 
the defendants in this case were indicted in July 1948. 

The Smith Act was sneaked past the public by parlia- 
mentary trickery, concealed by hysteria. Even Zechariah 
Chafee, Jr., outstanding authority on legislative and judicial 
attempts to curb freedom of speech and the press, thought it 
was just a measure for fingerprinting aliens. In his 1942 book, 
Free Speech in the United States, Chafee says of its quiet pas- 
sage: "Not until months later did I, for one, realize that this 
statute contains the most drastic restrictions on freedom of 
speech ever enacted in the United States during peace." 

Chafee relates how it was done. First, a bill purporting 
to strike only at radical aliens was introduced by Representa- 
tive Howard Smith of Virginia. With legislators in a mood 
to pass any anti-alien measure without debate, a section apply- 
ing to citizens was inserted but only, everyone was assured, 
for the limited purpose of preventing tampering with the 
armed forces. Now the stage is set, and a thought-control 
amendment is tacked on and the bill is passed almost with- 
out debate. 

It was Smith himself who offered the thought-control 
amendment to the Smith Act, the words that would later 



178 Force and Violence 

cover the indictment of the Communist leaders. We have 
curbed aliens, he said, "but do you know that there is noth- 
ing in the world to prevent a treasonable American citizen 
from doing" the very things we forbid aliens to do. "He can 
advocate revolution, the overthrow of the government by 
force, anarchy, and everything else, and there is nothing in 
the law to stop it/' 

"The mood of the House is such," declared Representative 
T. F. Ford of California on July 28, 1939 in debate on Smith's 
bill, "that if you brought in the Ten Commandments here to- 
day and asked for their repeal and attached that request to 
an alien law, you could get it." So no one looked into the con- 
tent of the bill, the press virtually ignored it, and it became 
law on June 28, 1940. 

"Here at last," wrote Professor Chafee in 1942, "is the 
Federal peacetime sedition law which A. Mitchell Palmer 
and his associated patrioteers tried to scare the country into 
passing twenty years ago without success. Not a spark of 
evidence was introduced in committee or in Congress to show 
any more need for such a Federal statute now than in 1920. 
. . . The plain reason for it is, that the persons and organiza- 
tions who have been hankering for such a measure during the 
last two decades took advantage of the passion against immi- 
grants to write into an anti-alien statute the first Federal peace- 
time restrictions on speaking and writing by American citizens 
since the ill-fated Sedition Act of 1798." 

History warns that there is no limit to the powers that 
can be exercised under such sedition laws, or speech-restric- 
tion measures. Under the Espionage Act and various state 
measures of World War I, the United States experienced sev- 
eral years of thought control. The illegal mass raids ordered 
by Attorney-General Palmer and carried out by his assistant, 
J. Edgar Hoover, were accompanied by shameful court deci- 
sions permitting their reign of political terror. Those deci- 
sions were certain, as Chafee noted, to "serve as precedents 



The Secret of Secrecy 179 

for the construction" of Section II* of the Smith Act. For 
"The truth is that the precise language of a sedition law is 
like the inscription on a sword. What matters is the exist- 
ence of the weapon. Once the sword is placed in the hands 
of the people in power, then, whatever it says, they will be 
able to reach and slash at almost any unpopular person who 
is speaking or writing anything that they consider objection- 
able criticism of their policies." 

All pretense of restraint is abandoned in the use of the 
sword of sedition. Look how the reckless blade has cut 
away the principles of due process in the Communist con- 
spiracy case: 

First, an Attorney-General, a Cabinet officer of the United 
States Government, having previously sworn to uphold the 
Constitution, "declared war on Communism" and set out to 
find a way of jailing the Communists in spite of the Consti- 
tution. 

Second, for this purpose he impanelled a Special Grand 
Jury, in an atmosphere created beforehand that would ren- 
der calm consideration of evidence highly improbable. To 
make assurance doubly sure, Grand Juries were hand-picked 
in that district. A restrictive class-system of selection had 
been deliberately instituted in 1937 or 1938 by that same 
Judge Knox who had found Communism illegal in 1920. 

Third, that same Judge Knox now had and exercised the 
power to choose an "impartial" judge to try a case about 
which he, Knox, was not in the least impartial. 

Fourth, he chose Judge Medina, who had been appointed 
to the bench in 1947 by President Truman on the recommenda- 
tion of Attorney-General Tom Clark! 

* See Appendix for these sections as renumbered in U.S. Code. 



Chapter 18 
'COMMUNIST MEANS YOU 



And so the verdict of "Guilty," formally delivered just 
about noon of October 14, 1949 and immediately followed 
by contempt sentences against all the defense lawyers was, 
in effect, determined before ever the trial began. And before 
ever the trial began, the historic consequences of such a ver- 
dict were clear to men who had studied history or seen it 
enacted in our time. Certainly the verdict and its consequences 
were foreseeable one year before the event, in October 1948, 
when the telephone rang in the Detroit home of George W. 
Crockett, a Negro lawyer. 

It was Maurice Sugar, Mr. Crockett's associate, calling 
from New York. The call caught Mr. Crockett, paint-brush in 
hand, on a ladder in his living-room. As he came down to 
answer the phone, his mind was on other jobs that needed 
doing around the house. He not only was not thinking about 
the Communist trial, but had not thought about it. Yet against 
his own background he could recognize the dangerous prin- 
ciples of thought-control and political oppression when he 
saw them. That telephone call was therefore destined to 
change the whole course of his life, for Mr. Sugar had called 
to invite him to join the defense in the Communist conspiracy 
case! 

Mr. Crockett said, "No," politely. He had never opened a 
Marxist book in his life; he doubted his competence; he named 
several other Negro lawyers more suitable, in his opinion. But 
he agreed to give it some thought before making his negative 
final. Ninety minutes of thought and discussion brought him 

180 



'Communist' Means You 181 

back to the telephone. To understand those ninety minutes, 
we must look at Mr. Crockett's background. 

Having entered practice in Jacksonville, Florida, in 1934, 
he had gone to Washington in 1939 to serve first in the De- 
partment of Labor and later on the President's Fair Employ- 
ment Practices Committee (FEPC). Some of his work at- 
tracted national interest. In 1943, when the Philadelphia 
Traction Company was refusing, despite the manpower short- 
age, to employ Negroes above the rank of porter, Crockett 
prosecuted the case before the FEPC. His suggested findings 
became the ultimate court order in the case, an order Presi- 
dent Roosevelt later sent the Army to enforce. Articles Crock- 
ett wrote in law journals were picked up by courts in Georgia 
and Louisiana the empire of white supremacy which did 
not know they were borrowing the arguments of a Negro! As 
a result of his reputation and his own thinking, he moved 
on from government service to the labor field in 1944. He 
founded the Fair Practices Committee of the CIO United 
Auto Workers and was its executive director from 1944 to 
1946; in 1947 he became administrative assistant to the inter- 
national secretary of the union. 

Crockett's private life was as solid and conservative as his 
professional life. He was devoted to his three children and 
proud of his wife, Ethelene, who had completed her study 
and taken the degree of Doctor of Medicine after the birth 
of their third child. His favorite occupation was to putter 
around the house. And he found time to write a weekly labor 
column for the Detroit Negro weekly, the Michigan Chronicle. 

To enter the Communist case was to risk all this. Friends, 
dropping in soon after the call from New York, pointed that 
out. A friend with a strong anti-Communist bias, while not 
challenging the right of Communists to competent counsel, or 
of non-Communist lawyers to defend Communists without fear 
of reprisal, argued that, in effect, there would be reprisal. 

"This is an opportunity, it's true," he told Crockett, "for 
you to practice the kind of law you're prepared to practice. 



182 Force and Violence 

But I'd hate to see you go into it. Considering the present 
temper of the UAW, your usefulness would be impaired and 
that would be a loss to the UAW and to the whole trade- 
union movement." 

This argument convinced Crockett in the opposite sense! 
As he told the jury in summation a year later, he had read 
about the indictment in the papers. "And where you rely on 
newspaper comment to tell you about the Communist Party, 
you are likely to be misled." From the papers he had got the 
idea that the defendants were charged with conspiring to 
overthrow the government. But now, studying the actual in- 
dictment, discovering that "nowhere does it allege a single 
act done by these defendants in pursuance of their alleged 
conspiracy," learning that, in effect, it indicted the 60,000 to 
80,000 American Communists and would go on from there to 
make "co-conspirators" of all who failed to meet the anti- 
Communist standards of the witch-hunters, he at once under- 
stood the dangerous potential of the case. No acts being 
charged, the indictment necessarily pursues thoughts, beliefs, 
teachings, he explained to his friend. 

"If this case is lost," he reasoned aloud, "the UAW soon 
won't need me or anybody else. There won't be any UAW!" 

He convinced his friend, and in the process convinced 
himself. So it was that ninety minutes after the first call, he 
was at the telephone again, informing Maurice Sugar that he 
would join trial counsel. He became attorney for Carl Winter, 
Detroit Communist leader with whom he had publicly de- 
bated political differences just three months earlier. Near the 
close of the case, I asked him, in an interview, if he had ever 
had occasion to regret his decision. 

"Absolutely not," he replied. "I am proud to be associated 
with the case." 

Proud because he was defending something more than 
eleven men, he held. He showed me a letter he had written 
to the Detroit News stating "that this indictment and trial of 
the Communist Party and its leaders is a step a cleverly con- 



'Communist' Means You 183 

cealed step which if unchecked now can and will lead our 
country to Fascism and war." The newspaper, which had ac- 
cused defense counsel of obstructing justice, did not, it goes 
without saying, publish Crockett's reply, that being the way 
of our "free press." And this one-sided treatment of the case 
by the press was so nearly uniform that it has determined the 
state of public opinion about the issues in the case. 

Following the verdict and its accompanying contempt 
sentences for the lawyers, the bulk of the press hailed the con- 
viction and published not a word about the real political sig- 
nificance of the case. It reported with approval Judge Medina's 
charges of a conspiracy by the lawyers; it credited the Judge 
with "saintly patience"; it found his charge to the jury a 
miracle of even-handed justice and the whole trial an inspiring 
example of American fair play. Let us give this press clamor 
and the trial behind it, the name they deserve: fraud! 

A foul fraud; a double fraud. It is a fraud to present the 
trial as fair in any respect; to say that the defendants ever 
had a chance, that their lawyers were ever permitted to 
perform their duties or exercise their rights. But it is a worse 
fraud to pretend that this trial and verdict affect only the 
eleven defendants. It takes sheer brass to deny that the intent 
is to outlaw the Communist Party and thereby to reach mil- 
lions of people who are not Communists. It is fraud to deny 
that this trial lessens your stature and threatens the very foun- 
dations of the Republic. 

Neither the role of the press nor the role of the courts is 
wholly new to me. I have been a newspaperman too long to 
have any illusions about the press. For the rest, I was in Hit- 
ler's Germany for a short time, and I have been in the Clerical- 
Fascist Spain of Gil Robles and Lerroux (1933-1936) and in 
Portugal of the Fascist Novo Estado. The things happening 
here are shocking not because they are new but because they 
are Fascist; they are sickening because they come enveloped 
in a sticky wrapper of hypocrisy that makes them even more 
unclean than they were in Europe. 



184 Force and Violence 

Consider the fraud of the "fair trial." I have tried to show 
the peculiar nature of the case, making for combat in the 
courtroom. But I have hardly touched the long preliminary 
proceedings that bear on this issue. The pre-trial record run- 
ning to almost five thousand pages, is completely independent 
of the sixteen-thousand page record of the trial itself. Most 
of that pre-trial record consists of the evidence and argument 
submitted by the defense in support of its charge that the 
jury system in the Federal Court in New York is a class system. 
The record even that early shows Judge Medina treating the 
defense lawyers roughly, charging them with bad faith, im- 
plying a virtual lawyers' conspiracy against him. 

The fact is that the defense charges against the Grand 
Jury system not only were proved to the hilt but did not re- 
quire proof! The picking and packing of the district juries and 
Grand Juries by order of Judge Knox is a matter of record, 
confirmed by Judge Knox even when called as a witness by 
the defense in the challenge proceeding. The record shows 
and he does not deny that he picked a jury commissioner for 
his "good business and social connections" and a Deputy Jury 
Clerk with "thorough practical knowledge of the social, racial, 
and economic groups of New York City and their geographic 
distribution." The record shows they then proceeded to build 
up a list of "qualified" jurors by eliminating the "social, racial 
and economic groups" they didn't like, and concentrating on 
Yale, Harvard, Princeton graduates, residents of the silk-stock- 
ing district and so on. They didn't like the unemployed and 
housewives, for instance. A 1941 United States Government 
study of Knox's methods, openly described a quota system as 
follows: "About 2 per cent of the names in the wheel are of 
the unemployed or retired, 88 per cent are business or profes- 
sional men, and ten per cent are women." At the trial, in 
answer to a question by Judge Medina, Judge Knox said that 
after he had allowed relief workers to serve on juries during 
the depression, "I had two or three experiences in cases that 
were tried before me where I felt that their feelings towards 



'Communist' Means You 185 

the government as a whole and towards wealth as a whole 
and towards society as a whole was not good, and so I then 
asked that a number of them be eliminated." 

In short, Judge Knox ordered the poor eliminated in favor 
of "men of substance/' men with a bias toward wealth and 
privilege. The record shows he got them. Yet at the end of 
the challenge, Medina was not ashamed to say: "Not only 
have the defendants failed to prove this charge [of wilful, 
deliberate exclusion] but the evidence, largely adduced by 
them, conclusively refutes it." Later he called the whole chal- 
lenge "a colossal bluff"! And this was the mood in which the 
trial proper began! 

From the pre-trial record, it clearly appears that Judge 
Medina was already convinced that the defendants and their 
lawyers were misbehaving according to plan. In the later 
language of his contempt decree, he found that they had 
entered into an agreement "in a cold and calculating manner" 
to cause "such delay and confusion as to make it impossible to 
go on with the trial"; to provoke incidents in the hope of 
forcing a mistrial, and even to try to impair the health of the 
Judge "so that the trial could not continue." Now I recall a 
typical day in court when Judge Medina whipped himself up 
into a fury against defendant Benjamin Davis and the de- 
fense in general, without the slightest provocation. A little 
later, he used patronizing language to Mr. Davis calculated 
to provoke the defendant, a Harvard law graduate and 
New York City Councilman, into a sharp reply ("Now be a 
good boy," he said, shaking a finger at the Negro leader; "I 
will not be a good boy," thundered Davis, resentful of the 
"Uncle Tom" role assigned him by the Court). And this is the 
kind of thing relied upon by Medina in his whole contempt 
finding; he cited it (as if it reflected credit upon himself) in 
denying Davis the right to make his own summation, and on 
this basis he described Davis as of "violent disposition" pub- 
licly, on the very eve of the verdict. 

But let us assume that the defense was at fault in every 



186 Force and Violence 

instance. Assume that Judge Medina's constant rebukes and 
prejudicial rulings were forced by the conduct of the defense, 
and that he had reluctantly come to the conclusion that the 
defense was misbehaving by deliberate plan. Yet having come 
to this conclusion before the trial itself began, before selection 
of a jury began, why did he insist upon remaining in the 
case? How could the defense receive a fair trial from a judge 
who felt himself constrained to curtail the rights of defense 
counsel from the very beginning of the trial proper, on the 
basis of their alleged misconduct before the trial? I will 
answer my own questions: from the record, it is apparent that 
Judge Medina no more intended the defendants to have a fair 
trial than Judge Webster Thayer intended Sacco and Van- 
zetti to have a fair trial. The case against the lawyers is a 
monstrous fraud built up by months of play-acting, with the 
powerful assistance of the press. 

Far more dangerous is the second fraud: the pretense that 
this is a conviction of just eleven defendants as individuals. 
Hitler hasn't been dead long enough to make that stick. The 
trial of leading Communists in Germany on a charge of burn- 
ing down the Reichstag was the pretext not just for hunting 
down Communists but for liquidating the Weimar Republic. 
The International Military Tribunal that tried the Nazi war 
criminals at Nuremberg, said this: 

"On the 28th February, 1933, the Reichstag building in 
Berlin was set on fire. This fire was used by Hitler and his 
Cabinet as a pretext for passing on the same day a decree 
suspending the constitutional guarantees of freedom." (Nazi 
Conspiracy and Aggression, 1947. ) 

Is it possible to believe that this time it will be different, 
this time only the Communists will suffer? No witch-hunt is 
confined to witches; there being no witches, witches have to 
be invented. In the context of today's events, "Communist" 
means you. I heard a recording last night of the riot-incited 
hoodlums of Peekskill, screaming, "Go back to Russia you 



'Communist' Means You 187 

white niggers! You Jew bastards" Do you really think you 
are safe when gangsters are officially turned loose? 

I live in Sunnyside, a New York City community. Defend- 
ant Robert Thompson lives a few blocks away and his small 
daughter and my son attended the same nursery school a few 
years ago. On the night of November 20, 1948, a shady char- 
acter named Robert Burke, recently employed as a labor-spy 
on the waterfront, forced his way into Thompson's home and 
tried to attack Thompson's daughter. Arrested, Burke admitted 
to police that he went to Thompson's home to make trouble, 
but he was not tried for breaking into his home or for at- 
tempted rape. He was convicted of a misdemeanor. The case 
was then reopened on motion of the prosecutor, and Burke 
went scot-free. 

These are no casual incidents. In the Germany of rising 
Nazidom, any Communist brought before a court was guilty, 
while no tool of the Fascists could be convicted of a crime. 
Fascism deliberately turns a whole nation over to hoodlums, 
sex maniacs, sadists, perverts who collect lampshades made of 
the skins of concentration-camp inmates selected for their in- 
teresting tattoo-marks. Why should you think your own skin 
is safe? 

And so I conclude. I have tried to tell you truthfully what 
happened at Foley Square, but that does not mean I have 
tried to be "objective/* i.e., indifferent to this conflict that in- 
volves my freedom and yours, my life and yours. No, I have 
not tried to tell a story without a purpose. I apologize for the 
shortcomings of a necessarily hasty attempt to squeeze the 
essence of a huge and baffling record into these few pages. I 
apologize for my inadequate showing of the meaning of the 
trial in the context of history. But I do not apologize for trying 
to "incite" you to "overthrow" this verdict. 

What the American people do now will determine whether 
or not we are to pass through the Hell of Fascism. There are r 
there no doubt always will be, Americans who think it can't 
happen here. And certainly there are great differences between 



188 Force and Violence 

German Fascism and our native brand: the Nazis at least felt 
it necessary to have a burning building as a pretext for sus- 
pending the Constitution. Our cold warmongers manufactured 
an occasion out of thin air. No one tried to burn down the 
White House in the spring and summer of 1945. A discussion, 
published in newspapers and magazines, took place within the 
Communist Party of the United States; a meeting was held at 
Madison Square Garden. That is all the force and violence 
the government ever proved in the trial at Foley Square. That 
is all the justification offered for this dangerous decision. 

Will the Supreme Court overthrow it? This is not a moving 
picture: we cannot sit back and wait with the assurance of a 
happy ending. We have the power to guide and instruct the 
Supreme Court. We have the power to determine what must 
now happen in the intensified struggle between Fascism and 
Democracy in these United States. Silence can be a political 
act, too. Silence in the face of this decision would be an invi- 
tation to Fascism. The verdict at Foley Square is not the pri- 
vate affair of the Communists; it is the business of every man 
on earth. It is, above all, your responsibility and mine: we are 
at an American crossroads. 

ANNE J. WILSON 

714 North Mentor Avenue 

PASADENA 6, CALIFORNIA 



APPENDIX 

I. THE CONSPIRACY INDICTMENT 

The Grand Jury charges: 

1. That from on or about April 1, 1945, and continuously thereafter 
up to and including the date of the filing of this indictment, in the 
Southern District of New York, and elsewhere, WILLIAM Z. FOSTER, 
EUGENE DENNIS, also known as Francis X. Waldron, Jr., JOHN B. 
WILLIAMSON, JACOB STACHEL, ROBERT G. THOMPSON, 
BENJAMIN J. DAVIS, JR., HENRY WINSTON, JOHN GATES, also 
known as Israel Regenstreif, IRVING POTASH, GILBERT GREEN, 
CARL WINTER, and GUS HALL, also known as Arno Gust Halberg, 
the defendants herein, unlawfully, wilfully and knowingly, did con- 
spire with each other, and with divers other persons to the Grand 
Jury unknown, to organize as the Communist Party of the United States 
of America a society, group, and assembly of persons who teach and 
advocate the overthrow and destruction of the Government of the United 
States by force and violence, and knowingly and wilfully to advocate and 
teach the duty and necessity of overthrowing and destroying the Govern- 
ment of the United States by force and violence, which said acts are 
prohibited by Section 2 of the Act of June 28, 1940 ( Section 10, Title 18, 
United States Code), commonly known as the Smith Act. 

2. It was part of said conspiracy that said defendants would convene, 
in the Southern District of New York, a meeting of the National Board 
of the Communist Political Association on or about June 2, 1945, to 
adopt a draft resolution for the purpose of bringing about the dissolution 
of the Communist Political Association, and for the purpose of organiz- 
ing as the Communist Party of the United States of America a society, 
group, and assembly of persons dedicated to the Marxist-Leninist prin- 
ciples of the overthrow and destruction of the Government of the United 
States by force and violence. 

3. It was further a part of said conspiracy that said defendants would 
thereafter convene, in the Southern District of New York, a meeting of 
the National Committee of the Communist Political Association on or 
about June 18, 1945, to amend and adopt said draft resolution. 

4. It was further a part of said conspiracy that said defendants 
would thereafter cause to be convened, in the Southern District of New 

189 



York, a special National Convention of the Communist Political Associa- 
tion on or about July 26, 1945, for the purpose of considering and acting 
upon said resolution as amended. 

5. It was further a part of said conspiracy that said defendants 
would induce the delegates to said National Convention to dissolve the 
Communist Political Association. 

6. It was further a part of said conspiracy that said defendants 
would bring about the organization of the Communist Party of the 
United States of America as a society, group, and assembly of persons 
to teach and advocate the overthrow and destruction of the Govern- 
ment of the United States by force and violence, and would cause said 
Convention to adopt a Constitution basing said Party upon the prin- 
ciples of Marxism-Leninism. 

7. It was further a part of said conspiracy that said defendants would 
bring about the election of officers and the election of a National Com- 
mittee of said Party, and would become members of said Party, and 
be elected as officers and as members of said National Committee and 
the National Board of said Committee, and in such capacities said de- 
fendants would assume leadership of said Party and responsibility for 
its policies and activities, and would meet from time to time to formulate, 
supervise, and carry out the policies and activities of said Party. 

8. It was further a part of said conspiracy that said defendants 
would cause to be organize Clubs, and District and State units of said 
Party, and would recruit and encourage the recruitment of members 
of said Party. 

9. It was further a part of said conspiracy that said defendants would 
publish and circulate, and cause to be published and circulated, books, 
articles, magazines, and newspapers advocating the principles of Marx- 
ism-Leninism. 

10. It was further a part of said conspiracy that said defendants 
would conduct, and cause to be conducted, schools and classes for the 
study of the principles of Marxism-Leninism, in which would be taught 
and advocated the duty and necessity of overthrowing and destroying 
the Government of the United States by force and violence. 

In violation of Sections 3 and 5 of the Act of June 28, 1940 (Sections 
11 and 13, Title 18, United States Code), commonly known as the Smith 
Act. 



190 



II. THE MEMBERSHIP INDICTMENT 

The Grand Jury charges: 

1. That from on or about July 26, 1945, and continuously thereafter 
up to and including the date of the filing of this indictment, the Com- 
munist Party of the United States of America has been a society, group, 
and assembly of persons who teach and advocate the overthrow and 
destruction of the Government of the United States by force and 
violence. 

2. That from on or about July 26, 1945, and continuously thereafter 
up to and including the date of the filing of this indictment, in the 
Southern District of New York, BENJAMIN J. DAVIS, JR.,* the de- 
fendant herein, has been a member of said Communist Party of the 
United States of America, the defendant well knowing during all said 
period that said Communist Party of the United States of America was 
and is a society, group, and assembly of persons who teach and advocate 
the overthrow and destruction of the Government of the United States 
by force and violence. 

In violation of Sections 10 and 13, Title 18, United States Code. 

III. EXCERPTS FROM THE SMITH ACT 

(These are the section numbers in the U.S. Code as revised in 1948.) 

Sec. 10. [Subversive activities]: advocating overthrow of government 
by force. 

(a) It shall be unlawful for any person- 

(1) to knowingly or wilfully advocate, abet, advise, or teach the 
duty, necessity, desirability, or propriety of overthrowing or destroying 
any government in the United States by force or violence, or by the 
assassination of any officer of any such government; 

(2) with the intent to cause the overthrow or destruction of any 
government in the United States, to print, publish, edit, issue, circulate, 
sell, distribute, or publicly display any written or printed matter ad- 
vocating, advising, or teaching the duty, necessity, desirability, or 
propriety of overthrowing or destroying any government in the United 
States by force or violence; 

* Each of the eleven defendants is similarly indicted individually. 

191 



(3) to organize or help to organize any society, group, or assembly 
of persons who teach, advocate, or encourage the overthrow or destruc- 
tion of any government in the United States by force or violence; or 
to be or become a member of, or affiliated with, any such society, group, 
or assembly of persons, knowing the purposes thereof. 

(b) For the purposes of this section, the term "government in the 
United States" means the Government of the United States, the govern- 
ment of any State, Territory, or possession of the United States, the 
government of the District of Columbia, or the government of any 
political subdivision of any of them. June 28, 1940. c. 439, Title 12, 
54 Stat. 671. 

Sec. 11. Attempting or conspiring to commit [the above] prohibited 
acts. 

It shall be unlawful for any person to attempt to commit, or to con- 
spire to commit, any of the acts prohibited by the provisions [above]. 

Sec. 13. Any person who violates any of the provisions [above] shall, 
upon conviction thereof, be fined not more than $10,000 or imprisoned 
for not more than ten years, or both. 

IV. THE SCHNEIDERMAN CASE 

Excerpts from the 1943 Supreme Court opinion in the case of 
William Schneiderman (320 U.S. 118). 

". . . Political writings are often over-exaggerated polemics bearing 
the imprint of the period and the place in which written. Philosophies 
cannot generally be studied in vacuo. Meaning may be wholly distorted 
by lifting sentences out of context, instead of construing them as part 
of an organic whole." 

The Court then considered The Communist Manifesto, State and 
Revolution, and Foundations of Leninism (under its earlier title, The 
Theory and Practice of Leninism), all introduced by the government, 
and said: 

"A tenable conclusion from the foregoing is that the Party in 
1927 desired to achieve its purpose by peaceful and democratic means, 
and as a theoretical matter justified the use of force and violence only 
as a method of preventing an attempted forcible counter-overthrow 
once the Party had obtained control in a peaceful manner, or as a 
method of last resort to enforce the majority will if at some indefinite 
future time because of peculiar circumstances constitutional or peaceful 
channels were no longer open." 



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