^VaBtt ^*<rLr * * * '
By the same author:
BASES AND EMPIRE:
A Chart of American Expansion
THE "FREE PRESS":
Portrait of a Monopoly
From the collection of the
San Francisco, California
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.
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
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
Who provoked whom? Don't you think you'd better read my
report from the record before you form an opinion?
An American Crossroads
by GEORGE MARION
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.
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
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
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
Book One: Witness Number Eight
"Thou shalt not bear false witness against thy neighbor."
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.
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
"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 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
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?
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!
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
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-
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
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-
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
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-
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
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
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
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
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!
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-
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
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?
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
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
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
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
MEDINA: Is this the record of the judgment?
SACHER: Yes, your Honor, it is. It is a photostat certified
by the court.
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
(From the record)
MEDINA (to witness): . . . you say you pleaded guilty to
GORDON (heading off witness): No, your Honor, he said
he pleaded guilty to illegal possession, and that is all he re-
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
(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
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
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
MEDINA: Yes, and I understood this was the judgment of
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
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.
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
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
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
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
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
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-
(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
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?
SACHER: Did you tell Mr. Jones that you had been arrested
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
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
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-
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
Sacher now persisted, despite frequent adverse rulings,
in bringing out the second date the witness so firmly disre-
(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
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
SACHER: I object to that as assuming a state of facts not
MEDINA: Not in evidence that they found him not guilty?
SACHER: No, they sentenced him to pay costs, I say to your
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
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
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?
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
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
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.
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-
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-
It is a world unknown to the Judge at Foley Square. The
Court and prosecution there operate on a high moral plane.
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-
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
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
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
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
"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
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
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.
Til Constitution you right over the head with this club,"
the indignant policeman told me. "Now shut up and get out
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
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
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-
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
"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
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?
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
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
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
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
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
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.
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
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
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
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.
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
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-
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
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
"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?"
"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
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
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
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
"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.
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
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.
The Law in Wonderland 71
MEDINA: You better go right over there and point to him.
NOWELL (preceding toward defendant Stachel): This is
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
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
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
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
"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-
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
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
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
"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
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
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
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
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)
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
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
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
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
"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
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/'
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-
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-
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-
MEDINA: No, you are arguing, and you are again con-
* * 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
"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.
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
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-
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
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
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
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
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-
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-
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-
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
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-
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-
Book Three; The Reptile Tribe
"And slimy things did crawl with legs,
Upon a slimy sea."
Rime of the Ancient Mariner.
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.
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
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.
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.
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
BUDENZ: No, sir. I should be glad to do so, if it were neces-
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
(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
(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-
GLADSTEIN: And you knew you were leaving the Commu-
nist Party and the Daily Worker about the 10th of October,
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.
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?
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?
GLADSTEIN: Did you receive any money for doing any
work for Congressman J. Parnell Thomas along the lines of
your testimony here?
GLADSTEIN: During the years you were in the Communist
MEDINA ( interrupting ) : How does it affect a man's credi-
bility, that he gave the same testimony on a number of other
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
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.
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
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
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
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
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-
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
HERBERT A. PHILBRICK: Informer, "planted" in the Com-
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
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
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
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-
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
"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
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"
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.
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
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
BLANC: The subscription to the Worker was also paid for
* * *
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
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
(From the record)
GLADSTEIN: Your Honor, may I state the grounds of objec-
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
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
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
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
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!
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
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
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
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-
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
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
"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
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
"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
"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
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,
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
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
"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
"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-
"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.
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,
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
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
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-
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?"
"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,
"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
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.
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
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
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
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
"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
"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
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
"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-
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-
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-
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.
'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
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
'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-
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
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
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
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
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-
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
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
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
(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.
(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
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,
"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."
WHO'S EXPANDING? WHO THREATENS WHOM?
You'll find the answers in
BASES & EMPIRE
By GEORGE MARION
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PI RE (just as it won't
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munist Trial: An Amer-
"If leading American dailies have refused advertising space to this book, it is
further evidence that it packs dynamite. The book cannot be laughed off. It
contains much cogent information not otherwise available to the American reader."
Dr. Harry Elmer Barnes, in the Annals of the authoritative and ultra-conservative
American Academy of Political and Social Science.
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