I had rather judge a Witch to be an honest woman, than judge an honest woman as a Witch.
— Increase Mather
The fall of Richard Nixon accelerated a process that had begun for me four years earlier. I had taught an under-graduate seminar on American autobiographies in 1970, and in order to consider at least one book that makes a central issue of its own veracity I had assigned Whittaker Chambers’s Witness. That assignment had drawn me back into the world of the Hiss case—the Case, Chambers calls it—an irresistible accumulation of baffling personalities, mysterious evidence both sworn and circumstantial, questions of civil liberty, major issues of congressional power and ethics, and (for my generation) major problems of symbolic allegiance. To teach Witness, one could not simply read Chambers. One had also to read Hiss’s In the Court of Public Opinion, Nixon’s Su Crises and transcripts from the Case.
I have begun autobiographically because a statement of past prejudices and current preferences will clarify my argument about Hiss’s book. I was a Harvard graduate student, a Democrat and a civil libertarian when the accusations against Hiss were made public in 1948, and I was disgusted by the tactics of the House Committee on Un-American Activities (hereafter HUAC or the Committee), especially by its attacks upon private citizens through quasi-judicial proceedings and lurid publicity, Because of those tactics and general sneers against his Harvard background and his liberal sponsors (among them Felix Frankfurter and Oliver Wendell Holmes), Alger Hiss became for me what his most vehement detractors wanted to make of him: a representative of liberal education and liberal politics. His detractors wanted to show that that image masked at first a smug dupe and then a traitor; I wanted him to be a hero of reasonable humanity. I wanted his vindication to be a triumph of decency. Following the Case as well as one can ever follow a trial in the daily press, I felt sure that Hiss’s conviction after a second trial (the first jury having failed to agree on a verdict) was unjust.
The jury decided that Hiss had twice perjured himself before a grand jury: when he had denied giving State Department documents to Whittaker Chambers and when he had declared that he had not seen Chambers after Jan, 1, 1937. The indictment on these charges in December 1948 had followed nearly five months of secret and public testimony in which Chambers, under subpoena from HUAC, had first accused Hiss and others of membership in a Communist underground group whose goal was not to spy but to “mess up policy.” Hiss had appeared voluntarily under oath to deny the charges, and in the first weeks of sensational publicity during August 1948 one major controversy had turned on whether Hiss had ever known Chambers at all, and whether Chambers had been an intimate friend of the Hisses before he had broken with the Communist Party at the end of 1937. Once Chambers was actually presented to Hiss without the aliases that he had admittedly used during his years in the underground, Hiss admitted having known him for a time as George Crosley, an impecunious journalist to whom Hiss had lent some money, lent or given an old Ford and sublet an apartment for two or three months, but whose failure to repay any of the loans had led to a complete break in 1936. Hiss had dared Chambers to repeat his 1948 charges outside Congress so that a libel suit might test their validity, and Chambers had done so at the end of August, whereupon Hiss had sued for libel. In November, with attorneys for both sides requesting evidence, Chambers had suddenly produced typewritten copies of some State Department documents and had accused Hiss of espionage after all. A few weeks later Chambers had revealed the so-called pumpkin papers, microfilm of some other State Department documents. Chambers had then confessed that his earlier testimony had been perjured, and for a time the public debate had focused on the prospective indictment not only of Hiss but also of Chambers. Since the statute of limitations prohibited indictments for espionage, the question was one of perjury. Richard Nixon and HUAC worked openly to persuade the grand jury to indict Hiss but not Chambers, and the grand jury (by a majority of one) did indict Hiss on Dec. 15, 1948. The indictment and eventual conviction of this former State Department official, one of the chief men responsible for American policy in the United Nations, had an immeasurable effect on the movement that came to be known as McCarthyism.
By the time Hiss published In the Court of Public Opinionin 1957, I was too busy to read his book. I read the reviews, of course, regretted that they were not more conclusively favorable and wavered slightly in my confidence that Hiss had been falsely accused. I had seen no new evidence. I had merely grown accustomed (more easily, no doubt, than Hiss) to the jail term that Hiss had served and to the lack of any major national effort to continue insisting on his innocence. Then an essay by Herbert Packer made me suspect that I had ignored genuine evidence against Hiss, and I gradually came to accept a cliché: if Hiss hadn’t been guilty of the specific charges, he nonetheless had had a deeper intimacy with Chambers and with Communism than he had acknowledged; and although he may have been protecting someone else throughout his ordeal, there had been just too much circumstantial evidence that he had never succeeded in explaining away. Until 1970, then, the Case was filed uncomfortably in my memory as closed.
Reading Witness and In the Court of Public Opinion shocked me. When I read for the first time what the two antagonists themselves had to say about the evidence, I saw that I had been credulous and inaccurate in my recollection of the trial even while advocating Hiss’s exoneration. Although a partisan defender, I had come to believe, for example, that Hiss had begun by denying he had ever known Chambers, and I had even failed to see how completely and how early the burden of proof had been shifted from prosecution to defense.
Six Crises deepened my perplexity and introduced new questions of veracity, which provoke new interest in 1976. A familiar kind of evasion or prevarication occurs, for example, in the first chapter. To explain why he suddenly called an extraordinary executive session of the HUAC subcommittee to meet in a New York hotel on Aug. 17, 1948, so that Hiss might be confronted by Chambers for the first time, Nixon declares that he decided late on the night of the 16th to avoid giving Hiss time to “make his story fit the facts” in the eight days before the next scheduled hearing; Hiss and Chambers must be brought together on the 17th, because “only the man who was not telling the truth would gain by having additional time to build his case.” Before Nixon wrote his narrative, however, both Chambers (1952) and Hiss (1957) had suggested in their respective books a relationship between the sudden decision to hold this surprise hearing and the death of Harry Dexter White, a former Treasury Department official, on August 16th. Nixon says that the subcommittee read the news of White’s death during their train ride from Washington to New York on the afternoon of the 17th. Then he denies the “plausible” but “completely untrue” allegation that the subcommittee had arranged the Hiss-Chambers meeting for that afternoon “in order to divert attention from White’s death.”
Chambers’s own strange account of that day must arouse the suspicion of any reader who sets it beside Nixon’s, because the two reports differ on the telling detail of the newspaper story. En route from his Maryland farm to his office in New York, Chambers has suddenly felt “a curious need to go [to Washington] to see the Committee, as if its members were the only people left in the world with whom I could communicate.” He buys a ticket to New York but goes to Washington instead, only to learn that the subcommittee has been “frantically trying to reach me.” They will not tell him why they want him, but instead, “As we rolled to Union Station, Appell [an investigator on the staff] wrestled a newspaper out of his pocket and pointed to a headline: Harry Dexter White had died of a heart attack.”
Nixon claims that the subcommittee learned of White’s death during the train ride to New York, but Chambers, with the same rhetorical skill that was so deadly to Hiss, gives us the memorable picture of Appell graphically answering Chambers’s question on the way to Union Station, before Chambers even learns that their destination is New York. In the rest of the paragraph Chambers supplies adequate reason for the subcommittee’s dramatic response to White’s death: White had made a “gallant” and celebrated defense in his public hearing before the Committee. But neither Chambers nor Nixon lists a third relevant fact about the relationship between White’s fate and the sudden confrontation of Hiss and Chambers. Of our three autobiographical narrators, only Hiss points out that White’s heart condition had become an issue during the hearing itself, and that Congressman Thomas had jeered at White’s request (as a medical precaution) for a brief recess every hour. White had testified on Friday the 13th, had been stricken almost immediately after his return to New Hampshire that night, and had died at 5:45 p. m. on the 16th. I suspect (as Chambers implies) that before Richard Nixon ordered the surprise hearing he had learned of White’s death.
Neither Nixon nor Chambers mentions here the way that Hiss was actually called to that hearing. Hiss was not “summoned,” as Nixon’s narrative suggests. Instead he was told that Congressman McDowell was coming to New York that afternoon and would like to speak to him for a few minutes. Then, just before the appointed time, Hiss was telephoned again and invited to stroll over to the Commodore Hotel for his brief chat with McDowell and—it was now revealed—two or three others. When he arrived, the subcommittee was declared to be in session and he was questioned under oath. Both Nixon and Chambers, moreover, neglect to mention Hiss’s request at the very first hearing on August 5th to be allowed to confront Chambers as soon as possible, and both ignore the Committee’s concurrence in Hiss’s persistent request on the 16th that the confrontation scheduled for the 25th be held in public session. Both therefore leave the reader without any preparation (besides a consciousness of guilt and danger) for the anger and wariness that all three narratives agree Hiss displayed through most of this climactic hearing. Commentators as disparate as Nixon, Hiss and Leslie Fiedler agree that (in the public mind, at least) this hearing broke the Case—remember Hiss’s demand to examine Chambers’s teeth—and a recent article by a Cornell University Law professor who believes Hiss was guilty quotes more extensively from this transcript than from any other evidence before the testimony at the actual trials.
What I hope to demonstrate here and throughout the essay is the value of historical criticism in both the understanding of factual books and the evaluation of a baffling case. Close comparative reading of the texts and some of the transcripts should help us to understand the books—among which Hiss’s has been the most widely misunderstood—and perhaps the issue that unites them. The evidence that we have already considered requires us to remember that all three books are to some extent self-serving, apologetic. Before we agree with Nixon that only the false witness would have been aided by having a week to “make his story fit the facts,” we ought to reflect that, as Hiss’s narrative plainly demonstrates, a truthful witness might have benefited from having the time to look up the records concerning the sale of his 1929 Ford twelve years earlier—if the Committee had not removed those documents from the Department of Motor Vehicles.
Nor is Hiss the only person with whom Chambers disagrees about the facts. Chambers sometimes remembers quite differently from Nixon, even when Nixon’s prudently selective memory has the opportunity to check Witness before committing itself to print. Both Chambers and Nixon, moreover, set up the meeting of August 17 in their narratives as a way of forestalling the charge of collusion between them. Both seem to agree with Hiss that Chambers and the Committee needed one another. Chambers’s “curious need” to visit the Committee seems as strange to the reader as it does to Chambers. Why would Chambers feel, so early in the Case, before the Committee had accepted his story, “as if its members were the only people left in the world with whom I could communicate”? Remember that Chambers has set out for New York from his Maryland farm but has suddenly decided to go to Washington instead. So remarkable is his encounter with the subcommittee members as they leave the House Office Building by “an entrance that I had never used before” that he himself highlights the coincidence. Robert Stripling, he says, “fixed me with a somewhat birdlike stare and said darkly, “I believe he must be psychic. ” I sensed that he felt that among so many complicating factors that was one too many.”
The world of this case abounds in complicating factors, selective remembering and special pleading, even in books written long after the trials. The issue is not between a truth-teller and a liar, but between two sides trying equally hard to persuade us. Nixon’s repeated and flagrant lies during the Watergate investigation, Chambers’s admitted espionage and his admitted perjury during the early part of the Hiss investigation and Hiss’s conviction on two counts of perjury mean that any reviewer of the Case in 1976 must find his way among the testimony of three writers, all of whom now stand impeached of falsehoods. The behavior on both sides includes some actions or circumstances so strange that the advantage in any argument will often lie with the adversary who can ask his antagonist to answer the rhetorical question: Why would anybody have done that? Chambers, Nixon and the Committee can ask tellingly, Why would Chambers want to risk his own career for petty revenge, and why would he want to ruin Hiss? The burden of answering such questions was put on Hiss throughout the ordeal, and even after he had served his term in prison. It is that burden that I mean to question in my discussion of In the Court of Public Opinion, but here we must notice that Hiss and the defense had a number of telling questions which they could ask: Why would a guilty man seek out and turn over to the court an incriminating typewriter? Why would a traitor in the State Department, working with a Communist Party member whose last name he didn’t even know, meet that agent regularly in his own home, give him official notes in his own handwriting, photograph confidential documents bearing his own initials, and have his wife transcribe others on her own typewriter? Since the transfer of documents from Julian Wadleigh, the one government employee who actually admitted giving documents to Chambers, had been accomplished with all the precautions of the most secretive espionage—seemingly casual exchanges on street corners, etc.—Hiss and his attorneys argued in their appeal that Chambers’s story of weekly deliveries and typing sessions in Hiss’s own home was preposterous. To believe Chambers, one must believe that these spies took better precautions to disguise their transfer of a rug and a Model A Ford than to disguise the espionage itself.
Another of Hiss’s unanswered rhetorical questions leads us to consider recent revelations about the FBI. Why, when Hiss was already in prison, did FBI agents follow his attorney and other investigators who sought factual evidence about the incriminating typewriter, and why did FBI agents forewarn prospective witnesses concerning affidavits about the manufacture and sale of that typewriter, forewarn them against cooperating with the Hiss attorneys’ inquiries? Imputations of FBI skulduggery have followed the Case ever since Chambers met regularly with FBI agents and interrogated prospective defense witnesses during the weeks before the trial. The defense claimed that the FBI was coaching Chambers about Hiss’s earlier life, and Hiss recounts in his book some dubious conduct by FBI agents who interviewed one of his former servants and another witness. Richard Nixon, while of course praising the FBI, gives especial credit to Justice Department employees in “the lower echelons” for keeping the Committee informed of confidential Justice Department plans concerning the Case. He even declares—along with a surprisingly large number of other writers on the Case—that it was FBI agents, rather than Hiss’s investigators, who found the missing typewriter in 1948. Today, however, we don’t need the accusations of antagonists or the praise of former allies on the Committee, The FBI itself has now admitted not only entrapment but forgery—most notoriously in an effort to set the Mafia and the Communist Party against one another—in its aggressive program to confound the Left.
My interpretation of Hiss’s book asks the reader to assume for the sake of argument that Hiss was not guilty. We must seem to beg the question in order to be prepared to consider the narrator’s experience. Many reviewers, some of them sympathetic to Hiss, criticized his restrained tone, and some even used that dispassionate quality as evidence of his guilt: surely a man who had been so unjustly treated would have written a more volatile prose. Surely, moreover, he had erred in writing his book as if it were a lawyer’s brief, for now that he was appealing to the court of public opinion it wasn’t enough to show that he had not been proved guilty. To convince the public (and the reviewers in question), he was obliged to prove his innocence. If I am correct, the mistake of those readers was to beg the question in the opposite way from the one that I temporarily propose. Knowing of his conviction and his prison term, and knowing much of the evidence, they seem to be looking for revelations that will positively exonerate Hiss. Wherever the burden of proof ought to have rested during the trial, they understandably believe that it now belongs to Hiss. And so, I believe, they misread his book.
In the Court of Public Opinion is both the record of an experience and a demonstration of principle. It teaches in a way that neither Witness nor Six Crises, both heavily and explicitly didactic, can approach. Chambers begins Witnesswith an impassioned letter to his children about the importance of the Case to their generation and to history, and he draws attention throughout the book to his feelings of anger, misery, loneliness, fright, remorse, compassion as he played his part in a “tragedy of history.” Nixon later borrows in his first chapter a version of Chambers’s device, narrating the Hiss case in response to a question about it from his daughter and then considering the historical significance of the Case and its political and personal meaning to himself. His Introduction announces several hypotheses about successful behavior in crises, and his account of the Case emphasizes the narrator’s responses and resources during critical moments of stress and triumph.
In the Court of Public Opinion, however, begins flatly with no preface at all:
This is a reserved book. Here we find no autobiographical emphasis beyond the Case, none on the narrator’s family, none on the lessons of the Case for American democracy, none on how to endure disgrace and misery. The narrator takes us methodically through his intellectual experience of the Case. He does, of course, arrange the record to support his case, but he concentrates for his effect upon the record, including Witness, counting on the contrast between Chambers’s past and his own public service to return the burden of proof to the accusers. This narrator has served nearly four years in prison. He has seen his once respected name become a byword. He will show us how he fell from the position described in his first paragraph, and how he fought to defend himself. Only at the very end of his book will he write three brief, restrained paragraphs of what he calls “personal comments.”
In August 1948 I was living in New York City. For the preceding year and a half I had been president or the Carnegie Endowment for International Peace. To accept that position I had resigned from the State Department, where I was director of the office responsible for proposing and carrying out our policies in the United Nations.
Whatever its deeper psychological significance, I call this quality a demonstration of principle because the style, the form, the tone of the book reinforce the central declaration of a defendant’s rights in criminal cases, that he must be presumed innocent until he has been proven guilty. If I am correct, the very form of this book rebukes the reviewers who have declared that Hiss must now “prove his innocence.” Even some of the most sympathetic commentators on Hiss’s book warn the reader to distinguish between concluding that Hiss had not been proven guilty and concluding that he has been vindicated. Hiss, I believe, was perfectly aware of that distinction when he wrote his book, and we must explicitly recognize it here. But I believe the form and the extent of his argument are limited by more than the difficulty of proving a negative, more than the reserved habits of a legal and diplomatic career.
Our legal principle has an ethical basis which demands more than the negative act of refusing to jail those who have not been proved guilty. Hiss, I believe, calls us by his very restraint to honor principles of charity and trust, to see that in the republic an official ought to be judged according to his public record. Hiss challenges our magnanimity by assuming that if we see how his ruin came about we will understand his premise.Ifhe was not guilty, then he chose the most appropriate form and tone for his book. Discrediting the case against him would mean restoring to him the assumption to which not only our legal traditions but his known public and private life had entitled him before the nightmare began. Cruelly presumptuous are the well-meaning and the skeptical observers who would tell the innocent victim of such horrors not only that he must disclose more of his personal feelings—portray himself as more “human”—but also that he must explain both the motives of his accusers and their partially discredited evidence. If he was innocent, he owes us nothing. If he was innocent, we owe him an unlimited debt.
Middle-aged readers, of course, cannot erase their memory of the incriminating evidence or their human interest in the general mystery rather than the narrower question of whether Hiss ought to have been convicted or later granted a new trial. Yet before judging his book we ought to respect the premises, the order and the shape of his narrative and argument as he develops them. Although aware that the narrator may be a guilty man trying to hoodwink me, I shall proceed on the assumption implicit in his opening paragraph: the President of the Carnegie Endowment, who has distinguished himself in public service, returns to New York from his summer vacation and learns that he has been named as a Communist Party member who worked in an underground “cell” while serving in the federal government eleven to 14 years earlier. How did he reply to the charges? What happened to him?
Hiss’s title, as Mark Howe perceived, does more than appeal to the court of public opinion. It suggests that he was tried there. Procedural and chronological questions have great significance throughout his account and especially in the beginning. He first learns of the 1948 charges not from the Committee but from a newspaperman, who telephones him at home the night before Chambers’s testimony. Hiss immediately volunteers to appear before the Committee so that he may deny the allegations. The name of Whittaker Chambers, he explains to us, was unknown to him except as that of a person about whom two FBI agents had asked him in 1947. J. Parnell Thomas, the Committee’s chairman, later said that the Republican presidential campaign leaders had asked him to “set up the spy hearings,. . .to stay in Washington in August in order to put the heat on Harry Truman.” Yet Hiss represents himself as “convinced,” despite his mistrust of the Committee, that he could exonerate himself. “I had nothing to hide and, I thought, nothing to fear. A simple statement of facts would surely clear up the whole business.”
Vestiges of that faith reappear throughout the book. At the end of the first trial Hiss is astonished to learn that eight of the twelve jurors voted for conviction. Even after his conviction in 1950, he is “confident of obtaining a new trial.” When the judge invites him to make a statement before being sentenced, Hiss remains “confident that in the future the full facts of how Whittaker Chambers was able to carry out forgery by typewriter will be disclosed.” And in his personal statement at the end of the book, Hiss reaffirms “the democratic ideals which motivated me in government service.”
But in the narrative of In The Court of Public Opinion the protagonist never has a chance to make “a simple statement of facts.” Hiss becomes involved at once in an adversary proceeding which screens his adversary from him. The main conflict sets a believer in traditional procedures against a congressional committee and a mysterious accuser who seem determined to ruin him. Hiss expects to be confronted with Chambers at his first, voluntary appearance before the Committee, but instead he is shown a picture taken—from an odd angle, he says—twelve years after his last admitted meeting with the man he later comes to identify as Chambers. A subcommittee interviews Chambers secretly two days after Hiss’s first testimony, and the congressmen, who confide some of Chambers’s accusations to the press, do not tell Hiss or the reporters that Chambers himself has positively denied Hiss ever knew him by his real name. Nor do they seem to notice that Hiss has immediately asked to see Chambers in order to determine whether he once knew him. They question Hiss about details of Chambers’s secret testimony, but without letting him see the transcripts before replying under oath. Thus Hiss not only risks damaging errors in testifying about events more than a decade in the past, but he is also denied access to the demonstrably false portions of Chambers’s testimony. Committee members tell Hiss in his second hearing (August 16) that Chambers has testified in “dazzling” detail about Hiss’s personal life in the 1930’s, but Hiss has access to those details only through their questions. When they ask him about bird-watching, therefore, and he replies in response to a further question that he once saw a prothonotary warbler, the seeming corroboration of Chambers’s testimony has much more impact, both on the congressmen and on newspaper readers, than if Hiss were able to corroborate that accurate detail in the context of all the misinformation that Chambers also supplied. Hiss uses the early part of his book to establish that context.
The most damaging evidence against Chambers in this part of Hiss’s book is Hiss’s refutation of gratuitous details which Chambers must have volunteered either maliciously or self-deceptively. We see Chambers, for example, swear that Hiss regularly paid him dues for the Communist Party, and that Hiss transferred his stepson to a less expensive private school so that the tuition money sent by the boy’s father could be used for both the new school and the Party dues. Hiss is able, belatedly, to show that the father himself had paid the tuition directly to the schools, and that the new school was not less but more expensive than the preceding one (so that Hiss himself had to add to the father’s payments). Chambers says that Hiss walks with a slight mince “if you watch him from behind”; Hiss not only denies that quirk but shows that Chambers used a virtually identical description in a novel he translated before he had met Hiss—a novel about forgery and perjury used by one man to convict his innocent friend of a crime. Chambers testifies that Hiss “is deaf in one ear”—probably, Hiss suggests, because a newspaper photograph depicted Hiss cupping one ear during interrogation. Hiss later has his hearing checked at Columbia Medical Center, where it is certified as normal.
Almost equally telling at this point is Hiss’s list of facts that Chambers did not know, facts that Hiss says any intimate friend in 1937 must have known. In a decade a casual acquaintance might forget—but would an intimate friend forget?—a tall man’s stature. Chambers testified that Hiss was five feet, eight or nine inches tall, whereas Hiss, in 1937 and 1948, was six feet tall. Timothy, Hiss’s stepson, was nearly killed by an automobile in 1937, and then “was bed-ridden and cast-bound for months in the small house to which we had moved in July 1936,” but Chambers does not remember that dominant fact of the household during his own professed intimacy there. Chambers says that Hiss’s sister and mother lived at their home in Baltimore during the alleged friendship, Although listed in the telephone directory, which Chambers might easily have consulted twelve years later, Hiss’s mother did not live at her Baltimore home during the alleged friendship, and the sister, a professor of Physical Education, had already been living in Austin, Texas for some years. (When the Committee asked Chambers if he knew the occupation of Hiss’s sister, he twice replied, “I don’t think she did anything.” Even after a congressman asked whether Hiss had ever mentioned that the sister “was interested in athletics,” Chambers could not come up with the right answer. ) Chambers can remember nothing about Hiss’s library except that it was “very nondescript,” but he claims to have spent as much as a week at a time in the household and to have done much reading there. He does not know that the reason the Hisses suddenly moved in the spring of 1936 was that the heating system in their house had collapsed while Hiss was recovering from pneumonia. Intimate friends, Hiss insists, would have remembered that because of the illness the Hisses had moved to a hotel for two weeks while the new house was being renovated.
From Chambers’s errors and ignorance Hiss moves to the Committee’s decided lack of interest in investigating them. Committee investigators never asked the landlady of the apartment that Chambers had sublet from Hiss whether she remembered any tenant whose name had been unknown to her and to her other tenants. (Chambers contended that Hiss had known him only as “Carl,” with no last name. ) Nor, in considering whether Hiss had paid one-tenth of his salary as Communist dues, did the Committee look into Hiss’s withdrawals from his bank account (into which his salary was deposited by the State Department) or the tuition fees of the two schools about which Chambers was so insistent. The Committee did not even challenge Chambers’s self-contradictory testimony about the Party dues; he had denied on August 3 that he had collected individual dues from Party members, but on August 7 he swore that Hiss had “piously” given the monthly tithe to Chambers himself and that Chambers himself had collected all the individual members’ dues.
By far the strongest example of the Committee’s attitude toward Chambers’s errors is the Ford roadster that came to dominate the public hearing of August 25, and Hiss saves that troubling subject for his final illustration. In the first months of the Case the car was probably the most damaging evidence against Hiss. Even now it remains the most mysterious of the early obstacles to Hiss’s vindication. At the hearing of August 16, Hiss volunteered the surprising information that in 1935 he had given or sold George Crosley a 1929 Ford roadster, then worth about $25, as part of a sublet transaction. Chambers denied that Hiss had given or lent him the Ford. He testified that in 1936 Hiss had insisted on giving the car to “some poor [Communist] organizer in the West or somewhere,” and that a small service station or used car lot owned by a Communist had served as intermediary. When the official records revealed that Hiss’s apparent signature on the certificate of transfer had been notarized by a Justice Department attorney in 1936 and had transferred title to the largest Ford agency in Washington, the Committee ignored the large inaccuracies in Chambers’s account and concentrated instead on Hiss’s errors.
The records indicated that Hiss’s purchase of a new Plymouth (which would have made the Ford expendable) did not coincide with the sublease of the apartment, and the transfer of title, dated a year later than Hiss’s unaided memory had acknowledged, included a resale of the Ford on the same day to a former Communist named William Rosen. The mystery of that transaction remains so inconclusive that the Committee eventually abandoned the issue, but only after great damage had been done to Hiss. A separate article would be necessary to describe the unresolved mystery. Rosen, for example, insisted on invoking the Fifth Amendment when asked about the Ford, even though he was later able to prove that the signature on the document was not his and although there was no other evidence that he had ever owned a Ford, Neither of the notaries involved in the two sales, moreover, had any recollection or record of the transaction; and the Justice Department attorney, who never did get to see the original document but saw only the photocopy that the Committee showed him, would not positively swear that he had notarized Hiss’s signature or that he would have refused to notarize it in Hiss’s absence. What matters here, however, for both Hiss’s narrative and our analysis, is the Committee’s failure to investigate Chambers’s story with the rigor that it applied to Hiss.
The Committee never asked why, if Hiss had not given or sold the car to Chambers, he would have volunteered the false story on August 16, as soon as he was asked whether George Crosley had owned a car and before he had any indication that Chambers had mentioned the Ford. (A guilty, canny man who had conspired to use a large agency as a cover would presumably have waited to be asked about his own car, and would then have testified that he had sold it to that agency, not that he had given or sold it directly to a member of the Communist underground. ) Nor did the Committee cross-examine Chambers on his false testimony about the car. Chambers, after all, had sworn that Hiss had delivered the car to a small service station or used car lot owned by a Communist. Neither the Ford agency nor Rosen could be used to corroborate that story, nor did the Committee find any evidence that Hiss himself had delivered the car. The interrogation of Chambers is consistently gentle, even when he hedges. Sometimes the Committee allows him to go “off the record,” even when testifying secretly under oath.
Hiss succeeds in demonstrating, then, that in both the congressional investigation and the trials “Chambers was not requested to prove his assertions. I was expected to disprove them.” At the second trial, long after the Committee had ceased trying to show a connection between Hiss and Rosen or to corroborate Chambers’s version, the prosecutor called Rosen to the stand. When Rosen predictably invoked the Fifth Amendment again, the prosecutor treated his silence as the Committee had treated the absence of other evidence in the matter, as if it were evidence against Hiss. Having made this point in his book, Hiss has the satisfaction of reporting that Robert Stripling, in his own narrative of the Case, abandoned the claim that Chambers’s story about the Ford had been corroborated by the evidence.
The lesson for us readers, if we have maintained our hypothetical conjecture that Hiss was not guilty, must be to distinguish between mysteries and positively incriminating evidence. Congressmen reminded Hiss of the rule that courts ought to be skeptical of further testimony by a witness who has testified inaccurately about a material matter. Both Witness and In the Court of Public Opinion quote Congressman Mundt’s declaration about evaluating the testimony of Chambers and Hiss:
The Committee did persistently act on a modified version of Mundt’s simple axiom. It applied his first sentence to Chambers and his second to Hiss.
We proceed on the conclusion that if either one of you is telling the truth on the verifiable data, that you are telling the truth on all of it. And if either one of you is concealing the truth from the committee on verifiable data, it points out that you are concealing from us the truth on obviously the points that we cannot prove.
With the evidence about the car we arrive at the chief horror in Hiss’s nightmare. Just as the absence of evidence concerning the Ford was treated as incriminating evidence, so the logic of conspiracy led Hiss’s accuser and the Committee to treat positively favorable evidence about Hiss as if that, too, were irrelevant or incriminating. The Committee, Chambers and the prosecutor applied conspiratorial logic to the entire record of Hiss’s 15 years in government service. At his first interrogation, one or two Committee members did ask what position Hiss had taken on issues affecting the USSR—offering her virtually three votes in the United Nations, for example—and Hiss’s answers had led Congressman Mundt (no friend to Hiss even in that first hearing) to congratulate him for his opposition to Soviet interests. But as the logic of conspiracy takes over, Hiss loses the support that his record ought to give him. At the televised hearing on August 25, he is forbidden to read a statement concerning his record until after a damaging and protracted interrogation (chiefly about the Ford), and when he does ask that his conduct under the supervision of many statesmen and jurists be studied for evidence of disloyalty and that those associates be asked about his conduct, he is rebuked in two ways. Committee members accuse him of trying to shield himself with eminent names and reputations. (In Witness Chambers calls this tactic “drawing the toga of his official career about him.” ) And when Hiss insists that he means to appeal to his actual conduct, the basis for the confidence those men have had in him, he is rebuffed with pronouncements which close the logical circle. Congressman Mundt concedes that the committee never believed it could “prove definitely that you were a Communist because, . . .we have found that those who are guilty, refused to admit it.” Congressman Hebert’s argument a little later was so effective at the time that Richard Nixon gives it a prominent place in the first chapter of Six Crises: If you, Mr. Hiss, cannot tell whether the people about whom we have asked you are Communists, how can all these eminent men who trusted you know whether you were a Communist?
Hiss does not fail to point out, when his narrative reaches these exchanges, the close resemblance between the congressmen’s logic and that of the prosecutors in 17th-century witchcraft trials. Irving Younger’s article on the Case praises the prosecutor for urging the jury at the second trial to ignore all character witnesses because Benedict Arnold and Satan, respectively, could have received excellent references from George Washington and God. “There is no answer to this [argument],” Younger declares. But there is an answer, and Hiss might have found it, had he known the literature of the witchcraft trials, in a statement published belatedly by the ministers of Boston after 20 men and women had been executed in Salem in 1692. The ministers condemned as “very dangerous and unjustifiable” the argument that “a less clear evidence ought to pass in” the obscure crime of witchcraft than in other cases. God, they declared,
never intended that all persons guilty of Capital Crimes should be discovered and punished by men in this Life, though they be never so curious in searching after Iniquity. It is therefore exceeding necessary that in such a day as this, men may be informed what is Evidence and what is not. It concerns men in point of Charity; for though the most shining Professor [i. e. , apparent believer] may be secretly a most abominable Sinner, yet till he be detected, our Charity is bound to judge according to what appears: and notwithstanding that a clear evidence must determine a case, yet presumptions must be weighed against presumptions, and Charity is not to be foregone as long as it has the most preponderating on its side.
The irony of Hiss’s futile appeal to his record reaches its sad conclusion in his surprisingly gentle treatment of John Foster Dulles’s testimony for the prosecution during the second trial. Dulles was presumably summoned to counteract the effect of Supreme Court justices and other character witnesses. Richard Challener has recently shown that, during the presidential campaign of 1948 and consistently thereafter, Dulles understated both his former commitment to Hiss and his own part in recruiting Hiss as a person “ideally” qualified for the presidency of the Carnegie Endowment. At the second trial, then, while some men who had testified truthfully in the first trial about Hiss’s fine record were dissuaded from testifying again, Dulles now testified falsely as a prosecution witness whose chief function was to impeach Hiss’s credibility! Using Dulles’s recently discovered correspondence in the Princeton University library, Challener proves that Hiss testified truthfully about his recruitment by Dulles, If Hiss had had the Dulles letters as well as one of his own to corroborate his testimony when he wrote his book, he might have expressed more indignation toward Dulles.
Like Hiss’s narrative, my discussion has necessarily gone ahead of the chronological account, following into the public hearing of August 25 (and beyond) kinds of argument that had been used by August 16. The extraordinary confrontation of Chambers in the Commodore Hotel on August 17 can be considered more briefly here, now that we have examined the character of Hiss’s narrative and the key issues in the first month of the Case. Having volunteered to answer the Committee’s questions and to confront Chambers publicly, and having been told that the public confrontation would occur on August 25, Hiss is angry to discover on the 17th that the meeting has been arranged deceptively and that it will be held in secret at the Commodore Hotel. Not until his arrival does he learn that the meeting he has been requested to attend is a hearing. He is angered too by newspaper accounts not only of Harry Dexter White’s death but also about Priscilla Hiss, for Congressman Nixon has promised that she will be interviewed without any publicity. Now, with Chambers at last present, and with committee members insisting that Hiss has positively denied knowing him, the confrontation is even more rancorous than one might expect it to be. Nixon’s account stresses Hiss’s evasive and angry testimony: “From the beginning, Hiss dropped all previous pretensions of injured innocence. He was on the defensive—edgy, delaying, belligerent, fighting every inch of the way.”
The reader of Hiss’s book can see why Hiss had become more indignant and more wary, and that his indignation and defensiveness need not indicate guilt. Hiss’s narrative focuses on the Committee’s prejudicial behavior before and during the hearing. In both the Hiss and Nixon accounts, as in the commentaries that persuaded me for a time of Hiss’s evasiveness, Hiss insists on examining Chambers’s teeth—a detail that prompts Congressman Nixon to ask whether Hiss never saw Crosley with his mouth shut. As Hiss insists, however, both in his testimony and in his book, he has made Crosley’s teeth a major point of identification in his previous testimony, and both friendly and hostile reports concerning Chambers in the 1930’s describe his poor teeth, which have since been replaced. (As late as 1975, Lionel Trilling, who still believed Hiss was guilty, remarked on Chambers’s extraordinarily bad teeth. ) At the end of the August 17 hearing, Hiss cannot find out whether the Committee plans to publicize the transcript or whether he is obliged to maintain silence about the secret hearing. Only at midnight, after Nixon has told a press conference that Hiss has retracted his alleged denial of knowing Chambers, does Hiss learn (from reporters) that he, too, is free to speak to the press. Nixon, moreover, seems no longer interested in interviewing Mrs. Hiss, who at the Committee’s request has already come all the way from northern Vermont to New York on a local train. Nixon alone interviews her for ten minutes the next day. (In Six Crises, Nixon regrets his cursory interrogation of Mrs. Hiss as a missed opportunity, missed because of the “letdown” that occurs after one has successfully met a crisis.)
Again at the televised hearing on August 25, Hiss finds himself caught in a wrangle over the Committee’s insistence that he has previously denied knowing Chambers and over his testimony about the Ford. Still unable to see all of Chambers’s testimony or his own records for the Ford and various leases during the period in question, Hiss finds himself at a great disadvantage, and in the narrative he admits that his testimony was deliberately much more guarded than at his first two hearings. Near the end of this long session, at which Chambers repeats some of his charges without any hostile questioning from the Committee, three congressmen sum up the case against Hiss’s veracity and loyalty, with no evidence of any actions directly indicating Communist allegiance. Only then does Hiss have a chance to reply to what he has read in the newspapers of Chambers’s secret testimony and at last to read the statement with which he had hoped to open his testimony. Curiously, although Chambers printed virtually the entire statement in Witness,Hiss does not print here that eloquent version of the premise for his entire book: the value of his public record in contrast to Chambers’s criminal past and Chambers’s admitted and newly discovered false statements; the implausibility of supposing that the men with whom Hiss has worked during 15 years in government service would have failed to notice at least some sign of his alleged disloyalty.
But in that statement Hiss also poses a number of questions that he wants the Committee to ask Chambers, including one about Chambers’s mental health and medical history. Congressman Nixon immediately puts Hiss on the defensive once again, demanding that Hiss substantiate his “charge,” and Hiss is caught up in an argument over whether he has indeed made such a charge.
One of the most extraordinary qualities in all three of the autobiographical books about the Case is the certainty with which each of the authors considers himself to have been on the defensive. Chambers writes in Witness that the hearing of August 25 ruined his life by turning the power of liberals and Communists publicly against him, and Nixon focuses on the “smears” against both Chambers and himself. Although both Chambers and Nixon provoked much hostile criticism, no reader of the three books will deny that in this final hearing and thereafter Hiss was made the defendant in a special way. The hearing ended, indeed, as Hiss points out, with a declaration by Mundt that Hiss might “just as well” be the 135th Communist in a State Department that (Mundt claims) has already harbored 134. Throughout the rest of the narrative the Committee continues to pursue Hiss both by the release of selected testimony and through the grand jury system.
Whatever Chambers’s fantasies, he, too, is really on the defensive, both in the actual world of 1948 and in all three of the books. With help from the Committee and the FBI, all three books agree, it is Chambers’s self-defense that ruins Hiss. At the August 25 hearing Hiss challenges him to repeat his allegations outside congressional hearing rooms. A few days later Chambers does repeat the central charges on a radio program, and within a month Hiss sues him for libel. Hiss describes his relief at having the issue at last in the courts, where the rules of evidence apply and attorneys respect them. As the attorneys take depositions, both sides quickly begin to press Chambers for more evidence, for even Chambers’s own counsel sees that the case against Hiss is extremely weak. President Harry Truman is reelected in November despite his remark that the Committee’s “spy hearings” are a red herring, and in the same election two members of the Committee are defeated. The chairman of the Committee is indicted for accepting “kickbacks.” Cross-examination persuades Chambers that he, too, may be ruined by the $75, 000 libel suit. His knowledge of Hiss looks less impressive under the criticism of Hiss’s attorneys than it seemed when the question was whether Chambers had known Hiss at all.
In November, therefore, Chambers brings forth what he later called “a life preserver,” a set of documents which he says he had given to a nephew upon breaking with the Communist Party ten or eleven years earlier. Hiss’s attorneys immediately give these documents to the Justice Department, but Chambers, like the Committee, suspects the Truman Justice Department of partiality to Hiss, and so he retains some additional documents for the revelation of early December: the notorious pumpkin papers, microfilm which Chambers conceals in a hollowed pumpkin on his farm and which Richard Nixon, summoned dramatically from a Caribbean cruise early in December, comes home to receive, sequester and manage during a campaign to get Hiss—and not Chambers—indicted for perjury.
That campaign is astonishingly brief. Here again Hiss finds himself nearly overwhelmed by unknown and extremely complex evidence before he can plan a defense, and here again the Committee’s methods include brilliant publicity, threats against the Justice Department and an extraordinarily protective attitude toward Chambers. Only twelve days after the revelation of Chambers’s pumpkin, the federal grand jury votes to indict Hiss on two counts of perjury. Hiss calls this chapter of his book “Indictment by Committee,” citing not only the prejudicial reports of August and press releases thereafter, but also the aggressive attempts of congressmen to intimidate the Justice Department and influence the grand jury. Congressman Nixon goes beyond insisting that the grand jury let him testify about the microfilm that he has pointedly refused to turn over to the Justice Department. He also demands publicly that Chambers not be indicted. He concedes that Chambers may be guilty of “technical violations of law, particularly technical perjury.” Then he declares that if the United States attorneys seek Chambers’s indictment they will both ruin the case against Hiss and give “the greatest encouragement to the Communist conspiracy in this country.”
The “technical perjury” that Nixon concedes in the speech reverses Chambers’s testimony on a subject so important that even the Committee cannot ignore the contradiction. Chambers has insisted that Hiss and the others committed no espionage. The Committee, nonetheless, has continued to tell witnesses that their testimony is needed for the inquiry into “espionage activities” during 1936. Hiss begins his chapter on “Indictment by Committee” with a reminder of that language and of Nixon’s private exhortation of Chambers late in August. Hiss reminds us that Witness says Chambers told Nixon he “could not go through another public hearing,” whereupon Nixon insisted:
“It is for your own sake [Chambers, Hiss says, “purports to quote” Nixon here] that the Committee is holding a public hearing. The Department of Justice is all set to move in on you in order to save Hiss. They are planning to indict you at once. The only way to head them off is to let the public judge for itself which one of you is telling the truth . . . .
”If there is anything else that you have not told us about Hiss, now is the time to tell us. Think hard about it. If there is anything else, for your own sake, tell us now.”
Hiss thus establishes what he calls “the classic elements of motivation for false witness,” and he builds his narrative in this chapter to the point at which Chambers at last feels sufficiently endangered to “assume this further extension of the role which the Committee so evidently pressed upon him.” Even during the radio broadcast on which the libel suit was based, Hiss shows, Chambers denies that the alleged group planned espionage; its purpose was merely to influence “government policy by getting Communists in key places.” Under pressure from the reporters Chambers at last concedes that he has no knowledge of any pro-Communist influence attempted or achieved by Hiss in the State Department.
Although we need not consider the new evidence in detail, we should remember that the relevant material Chambers produced in November and December consists of three kinds: (1) four small slips of note paper in Hiss’s own handwriting; (2) 65 typewritten pages which Hiss says he has “consistently denounced as ingenious forgeries”; and (3) microfilm copies of eight State Department documents. Hiss reviews here the conflicting stories that Chambers has told about those documents at various times since 1939. Neither the journalist nor the State Department officer to whom Chambers first told his story in 1939 had been shown the documents then. The journalist had not been told at all about the typewritten documents, and the State Department official testified in 1948 that in 1939 Chambers had explicitly denied knowledge of espionage and had pointedly refrained from claiming that any member of the alleged “study group” had belonged to the Communist Party. Hiss is also able to report here the later testimony of Malcolm Cowley, who swore during Hiss’s trial that in 1940 Chambers had accused not Hiss but Assistant Secretary of State Francis B. Sayre of serving as “the head of a Communist apparatus in the State Department.” Cowley testifies, moreover, that Hiss was not among the others named in Chambers’s fantastic accusation, an accusation so extraordinary that Cowley immediately wrote an account of it in 1940. Perhaps, Hiss suggests, Sayre was originally the victim against whom Chambers planned to use the materials he had secreted, for Sayre was Hiss’s superior and all the microfilmed State Department documents “had some actual or apparent connection with Mr, Sayre’s office.” It is hard (but necessary) to remember in 1976 that Chambers did not single out Alger Hiss for unique significance in his accusations until after Hiss had publicly challenged his veracity.
Even in Witness, Hiss reports, Chambers contends that he had completely forgotten about the typed documents and about everything but “two or three scraps of Alger Hiss’s handwriting and perhaps something of Harry White’s.” Yet Isaac Don Levine, the journalist to whom Chambers had first brought his story in 1939, testified in 1948 that Chambers had emphatically mentioned microfilm to him. Since Chambers insisted throughout Hiss’s trials that Hiss had brought him official documents every week or ten days, Hiss finds it inconceivable that Chambers would not have mentioned both the weekly schedule and those documents, to Levine in 1939—unless the “forgotten” typewritten documents or the story of their regular delivery had not been “concocted” until the fall of 1948.
In Chambers’s own book, moreover, Hiss finds evidence of the mental instability that Congressman Nixon scorned as an outrageous imputation when Hiss proposed to ask questions about Chambers’s medical history. Before delivering the “forgotten” documents to his attorneys in mid-November, Chambers considers shooting himself, and later he buys some cyanide. Then, when the microfilm appears temporarily to be of a kind that was not manufactured until years after 1938, he is so distressed by Nixon’s anger that he feels “whipped to torment” by an “organic revulsion,” a “self-revulsion,” and he does use cyanide. He survives, he says in Witness, only because he misread the directions on the container. (When Six Crises reports this incident, Nixon does not consider its relationship to mental stability but only the close call, his own error in underestimating the effect of his rebuke upon Chambers and of course the dramatic though momentary threat to the Case and the Committee, )
Before reporting the indictment, Hiss quotes speeches made by congressmen and by Isaac Don Levine at a public hearing on December 8. It is here that Committee members most vociferously oppose the prospective indictment of Chambers, and on December 14, the day before the grand jury’s term expires, Congressman Mundt declares that “the crime involved here is definitely a capital crime. It is either treason in wartime or treason in peacetime.” The Committee then issues a long statement calling for indictment of “all guilty parties” except Chambers. Empaneled 18 months earlier to investigate espionage, the grand jury has indicted nobody for that crime and has been criticized for its weak record. Now, Hiss points out, it is persuaded not to indict the one admitted spy who has appeared before it. It only charges Hiss with two counts of perjury: first when he denied giving Chambers any State Department documents, and then when he denied having seen Chambers after Jan. 1, 1937.
In the trials themselves it is chiefly the typewriter and the documents that account for Hiss’s jeopardy and his eventual conviction. As his narrative proceeds, Hiss does report a surprising number of new moves by the Committee, new contradictions in Chambers’s testimony and that of Mrs. Chambers and new witnesses to controvert Chambers. The Committee publishes several State Department documents and a new espionage report, and it declares explicitly before the first trial what it has implied for some time: that the burden of proof has been shifted from the prosecution to Hiss. It reports erroneously that only Hiss and three other people could have had access to the documents in question, and (also erroneously) that those documents enabled the Russians—and perhaps the Nazis—to break the U. S. State Department’s code. These allegations gain force, Hiss notes, from the coincidental criminal trials in the same building of Judith Coplon, convicted of espionage, and several leaders of the Communist Party, convicted of advocating violent revolution.
To refute the Chambers story, Hiss’s defense finds Claudia Catlett, a former servant, who testifies that when the FBI brought her together with Chambers for a private conference she told him he had never slept overnight in the Hiss house and that he had never come to dinner, either. Where would you have slept, she asks Chambers, for the house had only two bedrooms and two beds, one for the parents and one for Timothy. Hiss’s defense also proves (as Chambers himself later conceded in Witness) that on the date Chambers specified, Chambers and the Hisses could not possibly have stayed in the lodgings Chambers swore they had occupied during an alleged trip to Peterborough, N. H. But that evidence and further refutations of that kind need not concern us any longer, so long as we notice that Richard Nixon’s denunciation of the judge who presided at the first trial preceded the assignment of a different judge, who ruled more favorably for the prosecution, to try the second. What remains to be discussed is the most powerful evidence against Hiss.
Although I have come to believe in Hiss’s innocence, I cannot presume to refute all the documentary evidence, I wish only to show that Hiss’s book consistently throws enough doubt on the strongest evidence to overturn the case against him by returning the burden of proof to his accusers. If Hiss had been able to prove that the typewritten documents were forged, he would have done so. He believes that it was chiefly the denial of a new trial that prevented that achievement after his attorney had found new evidence. Hiss does show that those documents could have been forged and that Chambers and a confessed collaborator could have had access without Hiss’s aid to the hand-written notes in Hiss’s office and the microfilmed documents. Hiss also shows that Chambers had to change his story in December 1948 in order to fit the new evidence he then revealed.
The only evidence that comes close to establishing a positive connection between Hiss and the delivery of the documents is the 65 typewritten pages. These, an FBI expert testifies, were typed on the same machine as the “Hiss standards,” letters which Mrs. Hiss had typed on the Woodstock machine that her father, Thomas Pansier, had given her after it had been used for some years in his insurance office. The mystery of that machine has never been solved. As I have already remarked, Hiss’s submission of the typewriter to the court argues in his favor, for he would hardly have submitted it if he had believed that it would incriminate him. Although Nixon and others have said that the FBI found the typewriter, Hiss reports that the defense was led to the typewriter by the son of Claudia Catlett, the servant to whom the Hisses had apparently given the machine. During both trials, Hiss points out, the defense accepted the widely held but inaccurate belief that a typewriter is as unique as a fingerprint, that it cannot be counterfeited. Richard Nixon continued to assert that disproven belief as fact in Six Crises,five years after Hiss published In the Court of Public Opinion,but Hiss’s attorneys found an expert who succeeded in fabricating a typewriter that produced documents indistinguishable from those under dispute. Had the defense called independent experts during the trial instead of relying on the FBI expert who said that the two sets of documents had been typed on the same machine, some doubt might have been established then.
Hiss’s appeal to the court of public opinion, like his attorney’s appeal for a new trial, casts doubt, too, on the machine that was introduced at the trials. After Hiss was already in jail, his attorney found strong reason to suspect that the Woodstock typewriter rediscovered in April 1949 was not the one that Mrs. Hiss’s father had bought in 1929 and had later given to Mrs. Hiss. Chester Lane, the attorney, was able to show that the Hiss typewriter had been used in Fansler’s Philadelphia office on July 8, 1929, whereas the serial number on the Woodstock introduced as evidence could not have been dated (in Woodstock, Illinois) before July 3, 1929 and was probably not produced until August. Chambers, moreover, had testified that Priscilla Hiss had typed all the 65 pages, and neither the defense nor the prosecution had offered expert testimony on the idiosyncracies of the typist or typists. Now Lane had expert testimony that the 65 pages had been typed by at least two different people and that Priscilla Hiss (whose letters were available for comparison) had not typed any of them. Lane also had elicited expert judgments that the type face on Mr. Fansler’s letters written in 1929 belonged to a model of Woodstock that had not been manufactured after the first few months of that year, and that the typefaces on the Woodstock introduced at the trial had been deliberately altered to produce certain peculiarities (presumably those found in the 65 pages and the letters by Mrs. Hiss).
Any of these discoveries alone might raise some question about the justice of Hiss’s conviction. As Herbert Packer conceded even while he rejected Hiss’s defense, the combination of these and other discoveries seems too strange to be explained by coincidence. The climax of Hiss’s long narrative and argument comes in his lucid concluding chapter, “The New Evidence of Fraud and Forgery.” There he merges the brilliant arguments, and much of the clearer prose, of Chester Lane with some of the strangest inconsistencies and coincidences in the prosecution’s behavior during and even after the trials.
Most notorious of the inconsistencies is the conflict between the dates on the State Department documents and the date that Chambers had invariably used throughout a decade of narrating his escape from the Communist underground. During the trials the defense denounced the blatant convenience of his revising the old date (1937) in order to be able to claim that he had still been a spy when the documents had been written and allegedly copied, from January through April 1, 1938. Hiss found evidence during the trial to suggest strongly, though he could not prove, that the Fansler typewriter had been given away before January 1938 and before the end of March—and that therefore Mrs. Hiss could not have typed all the documents, as Chambers swore she had done. (Hiss himself did not know how to type.) Only after Hiss was in prison did the defense find a letter and other proof that Chambers had begun translating a book for Oxford University Press before April 1 and that he must have been already hiding from Communist agents by April 4, the first date on which he could possibly have received the last typewritten document. A Vice-President of Oxford University Press then swore that “at the very end of 1937 or the beginning of 1938” Chambers had come to New York to discuss the translation and had “expressed violently anticommunist views and explained to me that he was in fear of his life as he was being hunted by the G.P.U. He gave me the impression of being hysterical and suffering from persecution mania.”
Hiss’s attorneys, moreover, had been repeatedly thwarted by questionable FBI and Justice Department behavior during their search for new evidence after the trial. The most sensational coincidences obstructed Lane’s effort to establish the date on which the Fansler typewriter and (if there were indeed two machines) Woodstock #N230099 had been manufactured and sold. Lane and Hiss tell a true detective story. Officials of the Woodstock company and its successor give helpful information to the defense, but then refuse to sign affidavits. Even the midwestern attorney who has interviewed them refuses to authenticate in an affidavit of his own the draft affidavit that he has prepared for those reluctant witnesses to sign—because he says he fears retribution if he should sign an affidavit related to the Hiss case. Other experts offer opinions but retract them after a visit from FBI agents. A branch manager of the Woodstock agency in Philadelphia says that when the FBI took away all his records for that period (promising to return them) he cannot even approximate the date on which #N230099 would have been sold. FBI agents now come to see this manager again to ask what the defense agents were looking for. Lane summarizes his difficulties in two fine paragraphs which Hiss quotes in full. Only if a new trial were granted, Lane concludes, could the defense acquire the subpoena power necessary to give “the jury in evidentiary form much of the information which has necessarily been reflected in this affidavit as hearsay—however reliable.”
Twenty-four years after the court refused to grant a new trial or to compel reluctant witnesses to testify “in the interest of justice,” at least two efforts to open up government files on the Hiss case are going on. In the summer of 1975 Hiss himself and a writer named William Reuben won permission to look at the “pumpkin” microfilms that were withheld from the defense during and after the trial. Only a week later Allen Weinstein, a historian seeking the FBI’s Hiss files under the recent Freedom of Information act, found himself answered by FBI representatives who urged the court to deny his request on the ground that even their sources of 1948, and the families of those sources, deserve the anonymity that the FBI presumably guaranteed to its confidential witnesses 28 years ago. But now a federal court has ordered the FBI to release more of the documents.
My review of the issues has not covered all the evidence that Hiss cites. I have skipped past evidence that the jurors who voted for acquittal at his first trial were physically threatened, and evidence that the prosecuting attorney and the judge at the second trial behaved improperly. Those instances are all part of Hiss’s argument and of his experience, and I don’t mean to deny their importance to his narrative. Surely the prosecutor’s reservation of a surprise witness until rebuttal, when once again the defense had inadequate time to prepare an answer until after the trial had ended, did considerable damage, and Hiss at least has the satisfaction of impeaching that belated testimony in his book. Surely, evidence—instructions much more lenient than those laid down in the first trial—strengthened the prosecution’s case. But the central issue on which critics have challenged Hiss’s book is the issue of the typewriter and the 65 typewritten pages.
The most powerful challenge to the defense claim of forgery by typewriter was written by my former Stanford colleague, the late Herbert L. Packer, in a review of Hiss’s book called “A Tale of Two Typewriters.” Impressed and troubled by the mysterious conduct of the FBI, by the extraordinary frustrations that defense attorneys suffered in their search for factual evidence concerning the typewriter(s), and by the serial number of #N230099, Packer argues nonetheless that the claim of forgery raises as many problems for the defense as it solves. Chambers could hardly have performed the forgery alone in 1948, when he was no longer friendly with the Communist underground (presumably the source of the requisite technical skills), and what other help was available? Some people might reply in 1976, “The FBI,” but on this question I stand with Hiss and Lane in refusing the obligation to explain the mystery, for it is sufficient to show that someone else could have done the stealing and the typing. The verdict was unquestionably based on the assumption that a typewriter cannot be forged. Whatever the propriety of the judge’s refusal to grant a new trial, we no longer have a jury but a group of readers, bound only by what we hope is a commitment to fairness. In the court of historical criticism, where a young historian has as much interest as the aging defendant in calling for the documents, we cannot believe that Hiss’s conviction was just if we have serious doubts about the authenticity of the typewriter. Packer himself says that Hiss would have to be acquitted if a jury are not satisfied that he had committed espionage.
But on the larger charge—”Communist involvement” and “Communist activity”—Packer contends that the forged typewriter offers Hiss little help. Assuming that for some reason the forger had no access to the original typewriter of Mr. Fansler—for why would a forger create a new machine if he had the original?—Packer argues that if Chambers knew Hiss well enough to know where to have the bogus typewriter “planted” so that the defense would find it, then Chambers must have known Hiss more intimately than Hiss ever conceded. This is by far the most difficult question about the hypothesis of two typewriters, but here again, although the question is not unanswerable, the presumed victim of a conspiracy is implicitly asked to explain the wiles and motivation of his tormentor. Packer does not mention the few details that we know of the typewriter’s discovery in the spring of 1949. Two months before Mike Catlett, son of the Hisses’ former servant, came to tell Hiss’s brother that he had found the typewriter, the FBI Brough Mrs. Catlett herself to the Justice Department to be interviewed by Chambers. Persistent reports, not from the defense but from Richard Nixon, J. Edgar Hoover and HUAC, say that the FBI found the typewriter late in 1948. If the FBI had been helping Chambers in those weeks before the first trial, when 35 agents were reportedly trying to find the typewriter, the most pedestrian investigative skill could have discreetly learned from the Catlett family or neighbors where the typewriter should be planted. Nor, or course, if the original actually was found for the first time through the help of Mike Catlett in April 1949, is it inconceivable that #N230099 was substituted before the close analysis began. The advantage still rests with the person asking the questions. For me it is harder to imagine why Hiss, if guilty, would have introduced the rediscovered typewriter as evidence than it is to imagine that a forger would have learned only in April 1949 where to plant the counterfeit machine.
But Packer insists that “the other incriminating evidence in the case” will allow doubts about the typewriter—if supported by further investigation—to exonerate Hiss only in “the narrowest and most technical sense.” Packer and many others believe that the main issue in the Case is whether Hiss lied about how well he had known Chambers and whether Hiss had been “involved in Communist activity during his years of government service.” Packer, like others, complains that “Hiss’s books sheds little light on this larger aspect of the problem,” and that is why “his book is so unsatisfactory. Even if one accepts most of the very cogent case he builds against Chambers’s veracity, the root question of his own complicity still remains.”
Here, as in his study of other ex-Communist witnesses, Packer seeks ways in which further investigation might answer the “larger” question, and he makes some persuasive suggestions for solving some of the remaining mysteries about disputed evidence that I have not discussed: the apparently conflicting testimony of two admitted members of the so-called Ware group, both of whom testified before the Committee after Hiss was already in jail; the origin and date of a rug which Hiss admitted having received from Chambers in the spring of 1936 but which Chambers said was a gift from the Soviet government a year later; the recollection of Timothy Hobson, Hiss’s stepson, who was never called to testify; and the testimony of a man who might have settled a conflict between the Hisses and the Chamberses over whether the former had visited the latter during a summer vacation. Yet by treating these questions as perfectly open Packer neglects the premise that I have tried to define as the basis for Hiss’s book. Although he declares pointedly that it was the prosecutor who bore the greater responsibility for calling witnesses whom neither side questioned about the disputed rug and the summer vacation, Packer silently dismisses the testimony of the Hisses’ maid corroborating Hiss’s testimony about both the rug and the allegedly close friendship that Chambers claimed. Packer and others tend to regard the “larger” question as an equal contest in which we the spectators much give equal attention to both sides.
Now Herbert Packer, who died in 1972, was my friend. I am grateful to him for much kindness, and I have learned much from him about the law and about the testimony of Chambers and other ex-Communist witnesses. But I believe that the kind of evenhandedness that he proposes is strongly prejudicial to a defendant in Hiss’s position, to a sound reading of Hiss’s book, and to civil liberties. If we accept the “very cogent case that Hiss builds against Chambers’s veracity,” then the entire case against Hiss collapses. If Hiss’s book throws grave doubt on Chambers’s veracity, then it cannot be unsatisfactory, for then we are forced back to Hiss’s public record, against which not one piece of evidence besides the espionage charges was presented to either the Committee or the courts. We must not regard exoneration as a gift that we are free to bestow or deny, a favor for which this man comes pleading after our government has destroyed his reputation and career and imprisoned him for a crime of which he was “technically” not guilty. No, he was technically guilty, so the courts have ruled. But he has shown us in his very cogent and very moving book not only why we ought to reject his conviction, but also why we ought belatedly to accept his record as a public servant. By refusing to give us a confessional book or to show us the “whole human being” that one sympathetic reviewer demanded, Hiss has remained faithful to the dignified principle that I have tried to delineate as the basis for his book. Who are we to demand to know him better? By making his case with such restraint, he challenges us to remember the best qualities in the legal tradition that has done him such terrible damage. If at 71 he is a durable confidence man after all, he has at least done us the favor of writing an excellent fiction that shows how a fine character can be assassinated. But I choose to believe him, and I believe that he book deserves much more serious notice that it received when it was reissued in 1972.