One important public man of that day who felt strongly that the purloined documents were not "innocuous" was Under Secretary of State Joseph C. Grew, the veteran diplomat who was then Acting Secretary in the absence of Secretary Stettinius at the United Nations conference in San Francisco. Grew, who had approved the arrest of Larsen and Service upon receiving assurances from the FBI that the Amerasia evidence was airtight, announced to the press on June 8 that "a comprehensive security program" would be pursued "unrelentingly" in the Department of State in order to "stop completely the illegal and disloyal conveyance of confidential and other secret information to unauthorized persons". Immediately after his release on bail, Jaffe countered Grew's statement with a remark to New York newsmen that "the Red-baiting character of this case is scandalous and often libelous".72 This was the opening shot in a rapid cannonade of adverse press comment on Grew and other anti-Soviet policymakers in the State Department. So heavy was the barrage that nine days after the arrests the Acting Secretary took the unprecedented step of issuing a statement upholding the position of the government:
There isn't any mystery about this at all. We heard somebody in the chicken coop and we went to see who was there, and what we found has been announced publicly. The investigation was requested to determine the facts about a substantial traffic in secret documents affecting the national defense ... Ample grounds were found to cause the arrests and to bring about charges.73
Meanwhile, in New York, Jaffe was demanding a public hearing before a United States Commissioner. By law, of course, each suspect was entitled to such a hearing. But the Department of Justice did not wish to display its case in preliminary hearings because the tremendous task of tracing the documents back to their sources had by no means been completed. Moreover, the Justice Department was disappointed that there had been no incriminating statements made by the suspects when they were arrested. In short, the Department did not want to reveal how little or how much evidence had been gathered against any suspect. To avoid preliminary hearings, therefore, Justice officials decided to present what they had to a grand jury as quickly as possible. This was done on June 21, 1945, when 17 FBI and OSS agents appeared before the grand jury in Washington, D.C., to layout the evidence accumulated in the three months' investigation of Amerasia.
At the same time, as it happened, the lawyers who had been retained by the suspects were communicating to the Justice Department their urgent desire for a conference. Such a meeting took place in the last week of June. Among those present were Assistant Attorney General Tom C. Clark and two of the ranking officials of the Department. They were James M. McInerney of the Criminal Division and Robert M. Hitchcock, the Assistant U.S. Attorney at Buffalo, N.Y., whose competence as a trial lawyer had caused him to be called to Washington in 1943 on security cases and now again to head up the Amerasia prosecution.
In this conference the lawyers of the accused advanced the argument that their clients were guilty of nothing more than the accepted journalistic practice of obtaining background information from government sources. If any Federal agency wished to put a stop to such a practice, they insisted, there ought to be a forewarning of some sort. The lawyers went on to declare that their clients were being victimized because they dared to disagree with the prevailing official policy of the United States Government in the Far East. A great injustice had been done to their clients, they said, by the spectacular arrests and the nationwide publicity that followed; and an even greater injustice would result if the grand jury returned indictments upon which convictions could not be obtained. Finally, the lawyers argued that the so-called "secret" information in most of the documents was actually common knowledge, having already been published in whole or part in many newspapers and magazines. They demanded, therefore, that the Justice Department look into the matter further for the purpose of protecting the innocent.74
When the Washington grand jury received the Amerasia evidence on June 21, its three-month term was nearing expiration. Twelve days later its term was up and no returns had been made. Robert M. Hitchcock, testifying in 1950, recalled the decision made by Justice Department officials on July 2, 1945, the day on which a second grand jury replaced the one which had been weighing the case against the six arrested persons. "We all agreed," Hitchcock told congressional investigators, "we would find out if the first grand jury wanted to sit for another month or six weeks. If they did, we would get an order extending their life for that period. If not, we would withdraw it [the case] from them and present it later." Hitchcock went on to explain that some of the 20 grand jurymen were planning to leave the sweltering city on their vacations, and that others had been away from their businesses so long that they did not wish to be held over. The Amerasia materials were re-presented to a second grand jury, therefore, with the result that bills of indictment were returned on Jaffe (14 to 6), Larsen (14 to 6) and Roth (13 to 7) on the 10th of August. Twelve votes were needed to indict. No bills were returned on Gayn (5 to 15), Mitchell (2 to 18) and Service (0 to 20).75
The no-billing of three of the "Six" was cause for high jubilation on the part of those journalists, and fellow sympathizers, who had raised the hue and cry of civil rights at the time of the arrests two months before—and since that time had been shrill in their denunciation of J. Edgar Hoover of the FBI, Under Secretary Joseph C. Grew, Assistant Secretary Julius C. Holmes of the Department of State and other conspicuous members of the "anti-Communist bloc" in the Federal Government. Grew had become the special target, for it was he who had promised to carry out "unrelentingly" the security program of the State Department.76 Three days after the returns of August 10, the radio commentator J. Raymond Walsh exulted over the clearing of Miss Mitchell. "People who knew her," he said, "were dumbfounded when she was arrested ... It so happens that she had some very powerful connections, which probably led the State Department people to wish they had never heard of her." Walsh may have been referring here to the fact that Miss Mitchell's uncle, a former president of the New York State Bar Association, was closely associated with Colonel Joseph M. Hartfield, a prominent political lawyer who had made several trips from New York that summer to talk with Justice Department officials on her behalf.
On the sweeping exoneration of Service by the grand jury, Walsh was even more explicit: "His arrest brought some exceedingly powerful people within the government to his defense. Again, one can easily infer that those who began this affair wished they hadn't." The broadcaster was predicting a major shakeup in the State Department, and it came within the week. On August 17, 1945, Joseph C. Grew resigned as Under Secretary of State after more than 40 years of governmental service. Joining him in departure were Assistant Secretary Holmes and Eugene Dooman, chairman of the important interdepartmental policy-planning committee on Asian affairs known as SWNCC (State-War-Navy Coordinating Committee). Dean Acheson, returning from private life, was appointed Grew's successor on August 25.77
On August 30 the three indicted persons entered pleas of "Not Guilty" before Judge Schweinhaut of the U.S. District Court in Washington, D.C. Now came the turning point in the Amerasia case, and this was perhaps the most bizarre of all its peculiar features. It was Emmanuel S. Larsen who provided the key. There was no question that little "Jimmy" Larsen, the Chinese-speaking political analyst of the Division of Territorial Studies at the Department of State, had illegal possession of Government documents when arrested by the FBI at his apartment in nearby Arlington, Va. But Larsen was able to establish that FBI agents had been in his apartment before the date of the arrest. He had overheard one agent say that some documents could be found in the middle drawer of a certain cabinet, to which another agent replied, "That is the place." After Larsen had made his $10,000 bail, he went at once to the superintendent of his apartment building, Mr. Seager, to inquire whether the FBI had been in his flat on any earlier occasion. Seager admitted that he had allowed FBI agents to enter Larsen's apartment at least "two or three times" previously. Larsen communicated this information to his lawyer, Arthur J. Hilland, who lost no time in obtaining a sworn statement from Seager.
Hilland, a Washington attorney whose antagonism to the Department of Justice was a matter of well-publicized record, had recently defended the proprietor of the so-called "Little Red House" of R Street, Morris Kaplan, on grounds that the FBI had tapped his client's telephone. Hilland might be expected to employ the same stratagem in behalf of Larsen, and he did so. Curiously, however, the Justice Department seems not to have anticipated the move, which came some weeks later when Hilland filed charges against the Government for illegal searches of Larsen's apartment. James M. McInerney of the Criminal Division, who was in general charge of the prosecution, learned of Hilland's action on September 25 from an FBI agent who said that the case was now "up in the air", and three days later Hilland secured a court order to "quash" the case against Larsen on grounds of "wire tapping and trespass".
According to McInerney's testimony, the Department of Justice was confronted with a ticklish problem when Hilland appeared in court on Friday, September 28, to file Larsen's motion to quash. Even without the documents seized in his Arlington apartment, the government had a strong case against Larsen because his fingerprints, handwriting and initials were on some of the papers which had been recovered in the Amerasia headquarters. The FBI prepared a memorandum of 21 pages on this point for the Justice Department prosecutors, Robert N. Hitchcock and his assistant, Robert B. Anderson. Anderson, for one, felt that Larsen's motion would not stand up in court because the case against him could be substantiated by the evidence obtained at the Amerasia offices;78 the Department might as well, he thought, return to Larsen all the materials taken from his apartment. But Larsen's aggressive lawyer was determined to take his motion into court and litigate it, and McInerney was afraid that the motion would succeed. This, apparently, is what turned the Amerasia case into the farce that it now became. "The only thing that worried us," McInerney told congressional investigators in 1950, "was that if the fountain-head of the evidence, Jaffe's office in New York, should become inaccessible to us by reason of a motion to quash on Jaffe's part, the whole case would have been destroyed ... We knew that if Jaffe learned of such a motion [by Larsen], he would also make a motion to quash, and we would be left high and dry." 79
The only hope, as McInerney saw it, was to squeeze a plea of "guilty" out of Jaffe at once. Accordingly he telephoned the lawyer whom Jaffe had retained in Washington, Albert Arent, to ask if he would like to discuss a possible plea. Neither Jaffe nor his attorney knew of Larsen's motion to quash, and at the moment that the motion was served to McInerney he had Arent waiting in the next room. McInerney quickly called the clerk of the court to ask that Larsen's motion be held "out of the public domain" for a few hours so that Arent would not see it, but was told that this could not be done; moreover, the clerk said, Hilland had walked into the court with three newspaper reporters. "I knew," McInerney explained to the Senators, "that when Jaffe's lawyer went out on the street, when I got finished with him, he would see Larsen's notice of motion in the paper, and that he would make a similar motion, and our whole case ... would be destroyed. So, we were faced with trying to make the best arrangement with him [Jaffe] that we could, and we made the arrangement that we would recommend a substantial fine, if he pleaded guilty."80
It took about four hours of conversation between McInerney and Arent for a satisfactory "arrangement" to be struck. Jaffe and his fellow defendants had been arrested on a charge of conspiring to violate the Espionage Act, but McInerney now agreed to prosecute on the lesser charge of illegal possession of government documents. For his part, Arent made a "firm commitment that he would plead his man guilty, or nolo contendere", and promised that Jaffe would pay what ever fine might be fixed—"whatever it was, two thousand or ten thousand". To a question by Senator Henry Cabot Lodge, Jr. as to why Jaffe's counsel had consented to these terms, McInerney replied: "I think now that Jaffe may have been an espionage agent, which information we did not have at that time." McInerney's explanation, in other words, was that Arent probably thought that the Department of Justice had something worse on Jaffe, whose Communist complexion was "so strong" that McInerney had come to believe that he was "either a secret or open member of the Communist Party". McInerney's colleague in the prosecution, Robert N. Hitchcock, added this statement to the testimony:
Mr. McInerney and I realized that the Amerasia case, as regards to successful prosecution, was collapsing. We concluded that the only thing to do [was] to save what could be saved, which was the result of at least six months' difficult and careful work by the FBI and more than three months' work by the attorneys in the Criminal Division…81
The strange "arrangement" with Arent included a final peculiar piece of business on McInerney's part. According to his own testimony, McInerney was very worried that Arent might change his mind once he got wind of Larsen's motion to quash. Here is how McInerney described the last minutes of his long interview with Arent:
I didn't want to give him a chance ... to change his mind, and I thought maybe the motion to quash might not be in the newspapers until the following day. So I asked him the earliest time at which Jaffe could plead, and he said, "Why, he is in town," or "I could get him, we could plead him tomorrow." I said, "Well, tomorrow is Saturday, and the Judge won't be there, I'm sure; but if I can get a judge, will you have him in?" So I called Judge Proctor, who was sitting, I believe, in the Criminal Branch, and asked him if he would take a plea on Saturday morning, and he protested, and I explained that there were special circumstances, and he agreed to sit on Saturday morning, and he did sit ...82
So it happened that the sensational Amerasia case, which had been in the news for months, came to an abrupt termination in a specially scheduled, remarkably brief session on Saturday morning, September 29, 1945, before Associate Justice James M. Proctor of the U.S. District Court for the District of Columbia. In no real sense was the Amerasia case tried; it was merely heard. The FBI and the Criminal Division of the Department of Justice had given more than half a year of intensive work to this case. When finally printed in 1950, the complete transcript of the hearing before Judge Proctor came to four pages.83
In that hearing the Justice Department prosecutors, McInerney and Hitchcock, lived up to the "arrangement" that had been made the day before. Not one of the hundreds of recovered documents was put into evidence, no reference was made to the fact that many of the documents were highly classified, and no mention of the Communist affiliations of the defendants was heard. The outcome of the session was that Jaffe was fined $2,500 which he paid on the spot to the clerk of the court. It is hardly an overstatement, therefore, to conclude that Criminal Case No. 75457, The United States v. Philip Jacob Jaffe et al, was handled as routinely as a reckless driving charge—and that the annals of American jurisprudence contain few examples of misused legalism as shocking as this one.
It will illustrate, rather than belabor, this conclusion to quote from the salient passages of that transcript. Present in Judge Proctor's chamber at 10:30 that Saturday morning were McInerney, Hitchcock and Robert B. Anderson on behalf of the government, and the defendant Jaffe with Arent and his New York counsel, Arthur Sheinberg. Hitchcock and Arent did all of the talking. Jaffe uttered one word, "Yes," on two occasions-first in response to the clerk's question of whether he now wished to withdraw his earlier plea of "Not Guilty" and enter a plea of "Guilty" to the charge of violation of Section 88, Title XVIII, U.S. Code ("conspiracy to embezzle, steal, and purloin property, records, and valuable things of the record and property of the United States"); and again at the close of the hearing when the judge asked him if he could pay a fine of $2,500. The rest of the time Jaffe had only to stand there and look innocent.
Judge Proctor's opening words suggest that he may have been quite unaware of the implications of the sensational case: "What is there about this matter of Jaffe, gentlemen?" To Arent's request to make "a brief statement just setting forth the situation", the judge replied: "Please make it brief because I do not expect to hold any extended session here this morning."84 After reminding the court that the indictment charged his client "with conspiring to obtain various government papers" which the prosecution did not contend "was used for any disloyal purpose," Arent undertook to describe Jaffe's qualifications as a Far Eastern expert, dropping such names as those of Henry L. Stimson and Professors Lattimore of Johns Hopkins, Peake of Columbia, Reischauer of Princeton and Colegrove of Northwestern as he went. "If Mr. Jaffe has transgressed the law," Arent ventured, "it seems he has done so from an excess of journalistic zeal"—at which point the judge interposed, "There is no doubt but that he has." Arent continued:
We recognize, technically, the violation—and not from any desire to enrich himself ... or any intent to jeopardize the welfare of his country ... In all of his life Mr. Jaffe has had, heretofore, no experience of any kind with the criminal courts—he wants none. He has suffered severe humiliation and hardship from vicious and unjust publicity that stigmatized him with accusations of espionage, whereas the indictment charges a relatively minor violation which arose out of his anxiety to be accurately informed in the field of his scholarly and journalistic interest. For personal and family reasons, such as the very grave illness of his wife, he is reluctant to go through with the ordeal of the trial. He pleads "guilty" in the belief that your Honor, upon acquainting yourself with the facts, will realize he already has suffered far more than his due, and that this court will show consideration and mercy in the sentence it imposes.85
When Arent had finished his soliloquy, Hitchcock immediately addressed the court: "Is your Honor prepared to dispose of the matter today?" Judge Proctor now started talking about handing the case to a probation officer for routine "investigation and report", but Hitchcock interjected his opinion that Jaffe's attorney was hoping to have the case "disposed of today" since "we have the facts pertinent to the subject that perhaps even the probation officer would get not only from the District but would have to go to New York for", He then asked: "Would your Honor be willing to listen to government counsel and consider any suggestion made?" Answering in the affirmative, the judge requested a written statement which Hitchcock did not have. "How long would it take you," the judge then asked, "to make a brief statement of the government's case?" Hitchcock replied that it would take "less than five minutes," to which the judge said: "Well, I think I will sit here. Possibly we can dispose of it today ... I do not like to be in a hurry, but I am the only judge sitting today."
Hitchcock had made a vital first-down by rushing and the goal was in sight. By handling the ball carefully, the case might indeed be "disposed of today". In a few sentences Hitchcock now described how Jaffe, as editor of a magazine that was "a losing proposition financially" had conspired to commit "a certain offense against the United States, particularly taking and removing from government files ... certain documents" to be used, "as I understand it, largely [as] background material" that Jaffe needed "to assist him in publishing articles and preparing arguments that would lend to its weight and perhaps its circulation". That, he concluded, "is substantially what the facts are".
Judge Proctor wanted a little clarification of some vagaries. "Let me ask you this question, please," he said. "Is there any evidence that the use to which these documents were put would be a use whereby injury or embarrassment would come to the Army or the Navy in the conduct of the war?" Hitchcock was ready for the big question. "We have no evidence of that, your Honor," he answered, "and, furthermore, no evidence that they were intended to." Was there anything in the magazine itself that had "that tendency", the judge queried, and did Jaffe pay any compensation to the government employees who secured the documents for him? Hitchcock responded at length to these two questions.
So far as we know, there was nothing in the use put of these documents that had that tendency nor is there anything that we have in our possession that would indicate—in fact, quite to the contrary—that the defendant intended that they should have that tendency. To us, it was largely to the purpose of lending credence or variety to the publication itself, and perhaps to increase its circulation and prestige ... There was no compensation paid to one (Roth). In the case of the other codefendant, there is evidence to the effect that ... the defendant Jaffe did pay to the codefendant Larsen or to his wife small amounts of money over a period of months ... for the transcription and typing of this particular card index, these particular cards, which were the personal property of the codefendant Larsen—they were not the property of any governmental agency ....
Without a pause, Hitchcock moved into scoring position:
The trial in this case, I assume, would involve four months ... Now that the war is over, there is the difficulty of changing personnel, the difficulties of proof, of identifying documents and the sources of documents; those difficulties will all be increased. We recognize that the defendant has no criminal record of any description and, after discussing the matter with counsel, who have been very fair with 'the matter, the government agreed, if the Court would care to consider same, it would like to make a recommendation in the case.86
Judge Proctor apparently was satisfied with Hitchcock's footwork on the questions, and perhaps impressed by the prosecutor's proof that Jaffe had paid Larsen only to prepare a batch of three-by-five index cards. "I will be glad to have your recommendation," he told Hitchcock, who fired back: "Namely, the imposition of no jail sentence but that a substantial fine be imposed . . . The penalty under the statute is a fine not to exceed $10,000 or imprisonment not to exceed two years or both ... Our belief is, the defendant not being criminal in his tendencies, we believe probation would serve no useful purpose in this case." Turning to Jaffe's attorney, the judge asked: "Is that the course you ask the Court to take?" It was, Arent answered, but he wished to offer one argument for making Jaffe's fine perhaps less than what the government may consider substantial. This was that argument:
The publicity in the early stages of this, and before the indictment was returned, did the man so much harm, made such serious accusations, that a very substantial fine would leave in the minds of a great many people the thought that this man was guilty of espionage; something he would spend a lifetime erasing. We think a more modest fine may make the public realize…
When Judge Proctor interposed to ask what the defense would consider a "modest fine", Arent looked at his New York colleague, Sheinberg, before replying:
I see that New York counsel agrees with me: $2,000 would be a modest fine. May I urge, in connection with prompt disposition, this: The defendant's wife was operated on for cancer two months ago. The pendency of these matters is a great strain on her. If the thing were cleared up completely, it would certainly serve the purposes of the defendant very well. I can see no harm to the government flowing from any such action.87
"Well," said Judge Proctor, "I think I understand the matter sufficiently to dispose of it without further delay." Turning to Jaffe, he began:
Well, I regret, Mr. Jaffe, that you in your zeal to carryon your work, which was evidently for a trustworthy purpose, that you were misled to do these things which of course did tend to break down the fidelity of government employees and officials in the performance of their work. I think you realize that. That is one of the reasons why you feel disposed to plead guilty. Looking back on the matter, you see that it is wrong and certainly it is.
The judge had cleansed his mind of any suspicion of espionage. He continued:
I accept without any doubt the assurance of both your counsel and of the government attorneys that there was no thought or act upon your part which was intended or calculated or had a tendency to injure the government or the military forces in the prosecution of the war. It would make quite a difference to me if I did not have that assurance and did not know, confidently, that that was true. Nevertheless, it is serious, as I have indicated, to interfere with or in any way influence in any manner, whether the motives are good or bad, the duties and the fidelity of government employees. I am sure you realize that. I do not want to lecture you and have no intention to. I simply want to indicate briefly, the considerations which lead to this sentence I am about to impose. In view of what counsel has suggested as the course or the nature of the punishment, and the suggestion made by your own counsel with reference to it, I will impose a fine of $2,500. That will be the judgment in the case. Are you prepared to pay that fine now?88
To this question Jaffe responded with his second "Yes", and Judge Proctor trereupon closed the hearing by instructing him to "settle it with the clerk". The fine of $2,500 was paid on the spot, and Hitchcock and Arent both thanked the judge for "coming in and taking care of the matter this morning". Thus, in less than one hour on Saturday, September 29, 1945, the curtain was quietly drawn on the spectacular case of the purloined documents. In the end it had cost Philip J. Jaffe approximately three dollars apiece to look at the wartime secrets of the United States Government which have come to be known as the Amerasia Papers.
Jaffe's co-defendants, Larsen and Roth, got off even easier. The charge against Roth was finally dismissed, and Larsen received a fine of $500. Larsen's case was heard by Judge Proctor in a session even more abbreviated than Jaffe's. In the month which separated the quasi-trials of Jaffe and Larsen, the widely publicized "Espionage Case" or "Case of the Six" had captured the interest of some Congressmen whose constituents could not understand why Jaffe, the obvious ringleader, had not been prosecuted vigorously. Chief among the skeptics was Representative George A. Dondero, a Democrat from Michigan, who was about to make a resolution demanding full investigation of the case by the Committee on the Judiciary. According to an article which Larsen wrote for a magazine the next year in an attempt to explain away his association with Jaffe and thereby affirm his innocence, he went immediately to see Congressman Dondero and told all he knew. Larsen left Dondero's office convinced that he ought to "make some sort of settlement right now, be fore he [Dondero] let go his blast in the House". Consequently he told his lawyer, Arthur J. Hilland, that he was ready to change his plea from "Not Guilty" to nolo contendere, as Jaffe had, and to pay a small fine. Hilland was still "all for fighting the case to the bitter end, even if we had to go to the Supreme Court", but he acceded to his client's wish and so informed the Department of Justice. Larsen was then called in and all the arrangements made.89 The next day Larsen's resignation from the State Department, "for personal reasons," was accepted by Secretary Byrnes and he hurried to New York to ask Jaffe to pay whatever fine might be imposed and to defray the considerable costs of his defense, i.e., Hilland's bill $2,000. Jaffe agreed to do this, the Justice Department was notified that he had and Larsen went before Judge Proctor in the U.S. District Court in Washington, D.C., at noon on Friday, November 2, 1945.90
Once again the case for the government was presented by Robert M. Hitchcock, who had come down from Buffalo to handle the matter. This time Hitchcock was the only Justice Department person to show up. "As I told your Honor in the Jaffe case," he began, "there was no clement of disloyalty involved. ... We feel that Mr. Larsen, together with the defendant Roth, were corrupted by Mr. Jaffe. Of themselves they never would have been involved in these series of violations." Noting that Larsen, unlike Jaffe, was "a man of little means and really no means" except his Civil Service salary, Hitchcock recommended that his fine be "a substantially less sum" than Jaffe's $2,500. "We had the sum of $500 in mind," he added. At this point Larsen's lawyer chimed in to agree with what Hitchcock was saying. "This charge," Hilland declared, "did not arise out of any career of crime." His client was obviously "a man of good character and excellent reputation" who just happened to have had "a hobby of collecting and recording information on Chinese personalities". What had happened, he said, was that the charge "grew out of the pursuit of that hobby". But there was "one matter" that Hilland wanted to "clear up". He did not think that Hitchcock had intended to use the word "corruption" since there was no "corruption about the payment of money or anything of that sort". Quickly interposing to say that he had meant only that Jaffe "corrupted this defendant", Hitchcock assured the Judge that he had "extreme doubt" that there were "any corrupt motives on the part of Mr. Larsen". But Hilland was not quite satisfied; he wanted to cleanse his client of any stigma of wrongdoing:
I think the term should be "misuse" or "abuse" of friendship—misuse of Mr. Jaffe's friendship with Mr. Larsen. The conduct involved ... would not normally result in criminal prosecution, but, as your Honor knows, it was not the charge that we had here originally. Everyone concedes the original charge should never have been brought ...
When Hilland had finished, Judge Proctor asked Larsen to stand. "I have no comment to make about the case," the Judge said, and because the Department of Justice had given it "very serious consideration throughout" he was willing to accept the government's recommendation on the case.
There is not anything I need to say about it. With an intelligent defendant such as this gentleman is, I would be lecturing him and I am not a very good lecturer .... The sentence will be as recommended. I guess we omitted taking the formal plea. I will accept the plea of nolo contendere ...91
So it ended. On November 2, 1945, not quite five months after the spectacular arrests of June 6, the "Case of the Six" was effectively closed with Judge Proctor's imposition of a small fine on Larsen. The charge against the third 'person indicted for espionage, Andrew Roth, was dropped altogether on February 13, 1946, when the Department of Justice entered a nolle prosequis, lacking evidence in that Roth had no documents in his possession when arrested.
When considered in light of the whole case of Amerasia as investigated and prepared by the FBI, the two hearings before Judge Proctor leave some pertinent and thorny questions unanswered. Such questions were posed in different ways, and with varying degrees of intensity, at the time of the congressional probing of the Amerasia affair in 1946 (by the Hobbs subcommittee of the House Committee on the Judiciary) and again in 1950 (by the Tydings subcommittee of the Senate Committee on Foreign Relations). For purposes of the present analysis, these questions can be conveniently reduced to three: (1) Why was no reference made in the Jaffe hearing to the defendant's long list of Communist connections or to the pro-Soviet slant of his magazine? (2) Why was there no presentation of some of the recovered documents as evidence, or at least some indication given of the classified content of the purloined materials? (3) Why did the Department of Justice regard its case as strong enough to go before two grand juries in the summer of 1945, but not strong enough to warrant an aggressive prosecution two months later? When queried on these points in 1946 and again 1950, McInerney and Hitchcock tried to explain. Their replies, viewed in light of all circumstances as now known, seem curiously feeble.
Why was Judge Proctor not told at Jaffe's hearing that the defendant was demonstrably sympathetic to Communism? If the Judge was given any background on the case, either in chambers or off-the-record, neither Hitchcock nor McInerney reported this to congressional investigators. They merely offered the assumption that the Judge must have been well posted on the case because the newspapers were full of it. Yet Judge Proctor's opening words at the hearing ("What is there about this matter of Jaffe, gentlemen?") hardly indicates a depth of knowledge on his part. When asked in 1950 why he had failed to advise the court of Jaffe's close association with Communist activities in the United States, Hitchcock answered by changing the subject. Judge Proctor must have been aware of Jaffe's connections, Hitchcock declared, because he himself was fully aware of such connections:
There is no question but what he knew that Jaffe was very communistic, and there was no doubt in my mind about it. Reports were had from the FBI showing that to my complete satisfaction without any doubt .... Now we discussed this over in the Department [of Justice] about this communistic angle, and we reached the conclusion that as lawyers there was no evidence Jaffe used these documents by delivering them to any foreign government. …We had no evidence whatsoever about it …92
Clearly, Hitchcock was not responsive to the question. He had been asked to explain why the trial judge was not given information on the defendant's "close association" with Communists. His reply instead raised the extraneous issue of whether "this communistic angle", by which he meant some suggestion of actual espionage, would be admissible at a trial. McInerney, when asked the same question, had this to say:
Once we made our decision with Jaffe's lawyer ... we could not ... with our tongues in our cheeks, describe him as a 24-carat thief and spy and everything else, even assuming he was such. ... The judge was not living in a vacuum ....93
In other words, the arrangement with Jaffe's lawyer must have included some agreement that the word "Communism" would not be mentioned at the hearing. What is relevant, therefore, is not whether Judge Proctor knew or did not know of Jaffe's leanings. Rather it is the central point that prosecuting attorneys do not customarily take for granted that judges and juries are acquainted with the facts of an untried case and do not customarily omit these facts on the supposition that judges read newspapers.
McInerney had a further explanation as to why Jaffe's affiliation with Communism, as well as the political coloration of Amerasia, was kept out of the case. To introduce these elements, he hinted, would probably have weakened rather than strengthened the prosecution:
On the day this case came to the Department of Justice on May 29, the Secretary of State, Stettinius, was making a speech before the United Nations in which he was saying that ... Russia and the United States must continue as allies and they must continue their teamwork. We had just concluded giving Russia $11,000,000,000 in lend-lease materials, and all sorts of technical know-how and classified information. Before the indictment was returned [on August 10], the President was at Potsdam with Stalin . … At the time of this plea on September 29 we [the U.S.] were starting our first four-power meeting of the foreign ministers with them to continue our alliances with them, so they were not the people that we regard them to be today, so it was of much less significance then that Jaffe was a Communist.94
When the minority counsel of the Tydings subcommittee, Robert Morris, asked why the "Communist aspect" of the case had not appeared at all in the Justice Department's charges, McInerney answered flatly: "It was no element of the offense. It does not have significance." What evidently did have some significance, though McInerney did not choose to emphasize it, was the fact that the Amerasia arrests happened to coincide in time with the organizational meeting of the United Nations at San Francisco. That meeting had Alger Hiss, chief adviser to Secretary of State Stettinius, as its chairman and secretary-general. When McInerney testified before the Tydings subcommittee, Hiss was already in jail on his conviction of perjury and was believed by many Americans to be guilty of spying for the Soviet Union.95
Why were none of the recovered documents offered in evidence at Jaffe's hearing, and the classified nature of the whole cache left completely undescribed? When it was suggested by Minority Counsel Morris that the documents themselves would have shown that "matters of great gravity" were involved, McInerney replied: "Well, I would like to say that I did not consider the documents of great gravity."96 Hitchcock, on the other hand, seemed fully aware of the importance of the documentary evidence. "I never had the slightest doubt," he declared, "that if we could use these documents and copies in evidence at the trial, we had a better than good case against Jaffe and Larsen".97 But the documents were not used in evidence, and the congressional investigators wanted to know why not. Senator Henry Cabot Lodge Jr., a minority member of the Tydings subcommittee, wondered if the Amerasia defendants were prosecuted under the right law. When the six suspects were arrested, it was for the crime of conspiring to violate the Espionage Act; but the Department of Justice elected to prosecute the three indicted persons for the lesser crime of conspiring to steal government documents. McInerney explained the switch in this strange way: "If you have men stealing documents in which less than 10 per cent are of national defense content, then I say the conspiracy is to steal government documents and not a conspiracy to steal documents relating to the national defense."98 This did not satisfy Senator Lodge. Since the Justice Department attorneys steadfastly refused to admit "any error of judgment in the prosecution", he had to conclude that "the only explanation ... left open to them" must be "their belief that the documentary evidence ... would have been ruled inadmissible at the trials". This excuse he did not find very convincing.99
Why, indeed, did the Criminal Division of the Department of Justice handle the whole case of Amerasia in so timid and apologetic a manner in the fall of 1945 after confidently submitting its evidence to the two grand juries during the summer? Senator Lodge wanted to know what had made the evidence "turn sour" in two months, if the evidence was deemed legally sufficient at the time of the trial. Hitchcock gave the Tydings subcommittee his opinion that Bielaski's raid on the Amerasia offices early in 1945 had the legal effect of "polluting the stream" of evidence because the ass agents had "burglarized" the premises. Senator Lodge thought that this was nonsense, and furthermore he could not understand "why the attorneys of the Criminal Division felt that the case against Jaffe had to stand or fall on the basis of the documentary evidence alone." The Department of Justice, he concluded, "does not appear to have explored aggressively all the possibilities of bringing Jaffe and his associates to justice on other possible charges".100
Speaking from the floor, Senator Homer T. Ferguson set forth six separate arguments supporting the admissibility of the evidence—each of them backed by legal precedent—which would have been available to the government attorneys had they elected to press the prosecution. Senator Ferguson had served 14 years as a judge in Michigan. "The 'tainted evidence rule' is simply not good Jaw in situations of this kind," he observed, since "the protection of the Fourth Amendment is not to be secured by adopting rules of hide and go seek." 101
Senator Ferguson's further remarks on the Amerasia affair are especially pertinent to the concluding analysis of the case as presented here. The Senator from Michigan spoke in response to comment by Senator William F. Knowland of California, whose background had been in the field of journalism. As a layman in the law, Senator Knowland was "rather shocked" to find
a statement which we might expect to be made by defense counsel ... was made by the government attorney… so that the defense counsel had very little to say other than "me, too" in regard to the very pleasant hue which the government attorney had put upon the whole matter—as though it had been something rather inconsequential, something to the effect that, "The boys made a mistake; but, after all, they were in the publication business, and, as you know, newspaper men have to have background material". On the contrary, the fact of the matter is that we do not find on the part of any legitimate publication in the United States any such rifting of secret and top-secret government documents… I say it is a slander and a libel upon the newspaper and publishing industry of America that 1,700 stolen documents would be in the files of a magazine of any kind, particularly a magazine of this kind.102
Addressing himself technically to Knowland but actually to the whole Senate, Ferguson posed these perspicacious questions:
Is the Senator familiar with the ethics of the legal profession, and particularly those respecting the bench, which would prohibit, and in fact would make it a matter of contempt of court, to enter into any such agreement as the one ... where out side the court, an agreement is made with a defendant, in effect telling him what the sentence will be? ... Does the Senator understand that when a defendant is brought before a judge for sentence, it is the judge's duty to ascertain whether any promises have been made by anyone in order to obtain a plea of guilty? ...103
This, Ferguson, said, was "the established rule of all courts in taking pleas of guilty". The prosecuting attorney could not, therefore, "promise that a man will receive only a sentence of a certain kind, or a fine without a jail sentence", for to do so would constitute "a breach of the fundamental ethics of the legal profession and of the bench and bar of America". In the Amerasia case, he continued, the conduct of the Justice Department was simply "unethical" and "a contempt of court". Such procedure "would not be becoming even to those who practice law in the police courts of the great cities of the United States… let alone in the District of Columbia". Ferguson had studied the Hobbs hearings of 1946, recently published, and had been following the Tydings probe very closely. He detected, he said,
the idea of placing upon the Federal Bureau of Investigation, rather than upon the office of the Attorney General, the responsibility for the difficulty in this case, and ... an attempt to make it appear that the bungling of the FBI was the cause of their having no prosecution. . .104
He hoped, therefore, that the Committee on the Judiciary, of which he was a member, might undertake to examine the "procedural phases" of the Amerasia case, "the actual handling of the case by the Department of Justice." His reason was this:
While the ramifications of espionage, disloyalty, and Communism which appear on the surface of the Amerasia case are important, I feel that the questions of proper administration of justice as they appear in the case are equally vital and possibly even more far-reaching. ... If the facts and the law do not bear out the allegation made by representatives of the Justice Department, then the prosecution's timidity in contesting the motion to suppress the evidence [Larsen's motion to quash] and its willingness to enter into a deal with the principal defendant, Jaffe, can mean only that the Department of Justice had a single purpose in mind. What was that purpose? The language of the street has an expression for it. It is known as whitewashing a case.105
No action was taken on Senator Ferguson's request for an investigation of the "procedural phases" of the strange case of Amerasia.
It must be emphasized that Senator Ferguson's vigorous reaction to the Amerasia case arose from his close, hard, legalistic scrutiny of the proceedings of the two congressional inquiries into the affair. Those inquiries, one in 1946 and the other in 1950, need some description here. Not long after the Justice Department had dropped all charges against the third defendant, Andrew Roth, in February of 1946, the Amerasia case was made the subject of a probe in the House of Representatives. Congressman Dondero's resolution demanding "a thorough investigation of all circumstances with respect to the disposition of charges of espionage and possession of documents stolen from Government files" was implemented on May 10, 1946, when Chairman Sam Hobbs, Democrat of Alabama, convened a subcommittee of his Committee on the Judiciary for a series of executive hearings.
At the Hobbs hearings, which extended into June, testimony was taken from such principals as McInerney and Hitchcock of the Department of Justice, Frank B. Bielaski of the OSS (whose middle name, Brooks, was used in the record for his protection), and Larsen himself. Appearing voluntarily, Larsen spoke in great detail regarding his connections with Jaffe and Roth, but neither of his co-defendants was called before the subcommittee. The report of the Democratic majority noted "an astonishing lack of security in some departments or agencies of our government" and "too little care ... in personnel procurement, particularly of those to be placed in positions of trust". The majority members wrote: "we certify that there is no evidence, nor hint, justifying adverse criticism of either grand jury, any prosecuting attorney, FBI, judicial, or other official". But the two Republican members, Frank Fellows of Maine and Raymond S. Springer of Indiana, filed dissenting reports. Congressman Fellows did not question "the motives or the good faith" of the Justice Department, but felt that Department officials had seriously underestimated "the strength of the government's case against Jaffe". Congressman Springer could not concur in the majority report because it failed to "speak strongly upon the matters properly under investigation".106
What Congressman Springer was suggesting by these words was that the Hobbs subcommittee had actually failed to pose the proper questions in its "most painstaking study" of the Amerasia affair. So, as is obvious in retrospect, it certainly had. Also obvious is the fact that in 1946 there was no great pressure on Chairman Hobbs to call attention to the investigation or to dramatize its findings. Not until almost four years later (May 22, 1950) were its closed hearings put into print in the Congressional Record—and only then because the whole case had been thrust again into national headlines by Senator Joseph B. McCarthy. When the details of the Hobbs inquiry were finally made public, the sensational "loyalty investigation" of the State Department employees was under way in Senator Millard E. Tyding's subcommittee of the Senate Foreign Relations Committee. The sessions of the Tydings probe lasted from March 8 to June 28, 1950. Its 1,484 pages of testimony, printed without delay, threw some—but not much—light on the hitherto all-but-forgotten "Case of the Six" which had been so effectively buried in the two brief hearings in Judge 'Proctor's court in the fall of 1945.
Testifying before the Tydings subcommittee were such principals in the Amerasia case as McInerney and Hitchcock, Julius C. Holmes of the State Department, the former ass security officers Bielaski and Van Beuren, and D. Milton Ladd of the FBI. But only three of the six Amerasia suspects—Jaffe, Larsen, and Service-sat for questioning by the Senators. Miss Mitchell was apparently too ill at the time to come to Washington.107 Gayn, according to the Scripps-Howard journalist covering the case, was out of the country and "reported behind the Iron Curtain".108 And Roth, at least according to Larsen's testimony, was then in Indo-China (now Vietnam) with the Communist forces of Ho Chi Minh.109 When Larsen appeared on June 5-6, 1950, he hold substantially the same story that he had given the Hobbs subcommittee four years earlier, labeling Jaffe unmistakably as pro-Communist. Jaffe himself, who heretofore had officially spoken just two words on the case ("Yes" twice before Judge Proctor) took the stand on June 12 only to parrot the fifth amendment on everyone of a hundred questions. It was recommended that he be cited for contempt of court. Then, a week later, John Stewart Service appeared before the Senators in open hearing.
Service, then 41, had been a member of the diplomatic corps of the United States since he was 24. In the five years since his arrest on the charge of conspiring to commit espionage. Service's career had not been seriously impaired by the implications of the Amerasia affair. Cleared by the grand jury's unanimous vote in August, 1945, he was immediately reinstated in rank by Secretary of State Byrnes and rushed to Japan as an administrative officer of the American occupation. The only State Department official on General MacArthur's staff who did not have a Japanese specialty, Service was already in Tokyo when Judge Proctor disposed of the cases of Jaffe and Larsen in the fall of 1945. After a few months in Japan he became ill, and following hospitalization he was transferred to Wellington, New Zealand, late in 1946 as first secretary of the American legation. Two years later he was brought back to Washington and assigned to the Foreign Service Selection Board, the unit of the State Department responsible for the placement and promotion of career diplomats. Service's own promotion and assignment to India as U.S. Consul General had just been approved by the Loyalty Security Board of the State Department when Senator Joseph R. McCarthy, in his speech of February, 1950, named Service as "No., 46" of 81 "security risks" in that department
On March 11, 1950, three days after the Tydings subcommittee of the Foreign Relations Committee launched the "loyalty investigation" of State Department employees, caned for by unanimous Senate resolution on February 22, Service sailed from Seattle for his new post at Calcutta. When Senator McCarthy appeared before the Tydings subcommittee on March 15, he asserted that the Loyalty Review Board of the Civil Service Commission was dissatisfied with the recent State Department evaluation of Service and had returned his file with the recommendation that a new State Department board be convened and Service be called before it Service received a cable to this effect while at sea, and upon his disembarkation at Yokohama on March 23 he returned immediately to the United States by air. Service's file was formally reviewed behind closed doors in the State Department on May 26 and again on June 24. Just before the latter session, Service sat for two days of questioning by the Tydings subcommittee. Confronting the career diplomat were five senators-Tydings of Maryland, Brian McMahon of Connecticut and Theodore Green of Rhode Island as the Democratic majority members, and Bourke B. Hickenlooper of Iowa and Henry Cabot Lodge Jr. of Massachusetts representing the Republican minority.
Cool and composed, Service handled himself well on June 22 and 23, 1950. He requested and received permission to read a long statement into the record, then responded politely to the questions of Senator Tydings and the majority counsel, Edward P. Morgan, as well as to those of the minority members and their specially appointed counsel, Robert Morris. Service's testimony, which finally filled some 195 pages of the printed hearings, was described in the newspapers on June 23 and 24. On June 27 the State Department announced triumphantly that its Loyalty Security Board had cleared Service of any suspicion of disloyalty and had not found him to be a security risk.110 The Tydings subcommittee abruptly concluded its hearings the next day with the announcement that an "interim report" would be issued. On July 27, exactly one month after Service had been cleared by the State Department, the majority members of the Tydings subcommittee delivered their verdict While Service had been "extremely indiscreet" in his dealings with Jaffe and Gayn, the majority found him to be "neither a disloyal person, a pro-Communist nor a bad security risk."111
As it happened, the "interim report" of the Tydings subcommittee became its final statement. No other was issued by the majority. But Senator Lodge, as a minority member of the subcommittee, felt compelled to submit his "Individual Views" for publication. Lodge's statement, which was printed in 34 pages under date of July 20, 1950, was written, as he said, "without knowledge of the contents of the majority report", which came a week later. It commented incisively on the whole investigation. The people of the United States, Lodge declared, were expecting "nothing less than a thorough going elucidation of the entire question of foreign penetration of American policy, whether by espionage or otherwise", and not merely a verdict in a certain case.112 The unanimous Senate resolution of February 22, 1950, had given the Tydings subcommittee "a broad directive covering the whole question of disloyalty", but such an inquiry was actually altogether beyond the "practical capacities" of this or any congressional committee. As it turned out, Lodge said,
All too frequently the tone of the proceedings—which necessarily was set by the majority—was lacking in impartiality. The atmosphere was too often one of trying to hang someone rather than to ascertain the truth.113
Senator Lodge did not specify the identity of the "someone", but it is obvious that he was not referring to Service since the majority members surely had made no effort to "hang" the diplomat. The implication could have been to Jaffe, of course, but more likely it was a veiled reference to the journalistic attacks on "McCarthyism" which had beclouded the Washington atmosphere during the weeks of the hearings.114 On the broad problems of loyalty and security in the Department of State Senator Lodge had a number of recommendations.115 It is not within the scope of this historical review of the Amerasia case to detail these observations here. His conclusions with respect to Amerasia, however, are noteworthy. Of the 11 points which he specified, several of the most important have already been mentioned. Here is the text of No. 6 in the list, one of the most striking of the Senator's remarks:
Putting legal technicalities to the side, it is shocking to learn that the Department of Justice made a "deal" with a man of Jaffe's known affiliations and background in a case which involved the very lives of American military personnel.116
On the question of loyalty of John Stewart Service, Lodge had this to say:
I believe that Service ... was most indiscreet in his associations, which were entered into an apparently rapid, thoughtless and undiscriminating manner ... He should certainly not have associated himself with these people without first having made very sure that such an association would not endanger the United States ... he could, it would seem, at least have sought to ascertain the truth about those whom he was seeing so often during that period. There is no proof of disloyalty and no rumor against his character. . .. But it must be set down that in the Amerasia case he showed himself to be gullible and indiscreet and that he completely failed to understand the human and political realities which he was confronting.117
Given a clean bill of health by a subcommittee of Congress as well as by his superiors at the State Department, John Stewart Service was then restored to duty. In five years he had been cleared five times by departmental boards. In March, 1951, the State Department announced that Service's wife and children had been called home from Japan where they had been waiting for almost a year; it was also announced that his case was still pending before the Loyalty Review Board of the Civil Service Commission.118 Then, on May 1, the State Department released the news that the case had been reopened because of "additional evidence recently received from the Far East".119 Service's name was conspicuously missing from the promotion list of diplomatic officers sent to the Senate for confirmation a few days later, and simultaneously it was announced that the Loyalty Review Board had returned the case to the State Department for consideration of "a new report from China".120
On the last day of July, 1951, the State Department gave Service his sixth clearance. By now, however, the Loyalty Review Board of the Civil Service Commission was thoroughly disenchanted. Its members, all private citizens appointed by the President, were far from satisfied with the handling of security questions by State Department officialdom. "We know darn well," one member had said in a meeting of the board early in 1951, "that [the Loyalty program] is completely ineffective in one of the most important departments of the government... " Chairman Hiram Bingham, a former Senator, could not understand why the loyalty checks in other agencies had turned up, as "worthy of separation from the government", an average of six percent of the employees examined, while in the State Department the score was still "zero".121
What was particularly disturbing to the Loyalty Review Board was the State Department's affirmation of Service in the face of a startling disclosure by the former U.S. Ambassador to China, Patrick J. Hurley, and certain accusations made subsequently by ex-Communist Louis Budenz. On June 21, while testifying before a joint committee of Congress investigating the removal of General MacArthur from command in the Far East, Hurley said that in 1944 Service had actually delivered into the hands of Chinese Communist leaders a copy of one his memoranda to General Stilwell in which Chiang Kai-shek's regime was sharply denounced.122 Then, on August 23, Budenz told the Senate Internal Security Subcommittee that during World War II the American Communist Party had come to "rely on" such State Department men as Service and John Carter Vincent, whom he actually named as a party member, to sway official U.S. policy away from Chiang Kai-shek's National Government and toward the Chinese Coromunists.123
On September 4, 1951, the Service case went back to the Loyalty Review Board, which advised the Secretary of State on October 11 of its intention to probe despite the fact that six clearances had been issued by the Department. Service was ordered to appear with counsel on November 8, and on December 13 the Loyalty Review Board announced its findings. Citing the wiretap evidence of Service's connection with Jaffe, the Board declared:
To say that his course of conduct does not raise a reasonable doubt as to Service's own loyalty would, we are forced to think, stretch the mantle of charity much too far. We are not required to find Service guilty of disloyalty and we do not do so, but for an experienced and trusted representative of our State Department to so far forget his duty as his conduct with Jaffe so clearly indicates, forces us with great regret to conclude that there is reasonable doubt as to his loyalty.124
That same day the State Department announced the removal of Joho Stewart Service from its rolls. On December 14, 1951, Service cleaned out his desk at the Department, collected $10,700 in accumulated leave and retirement funds, and said goodbye to his colleagues. It was the first dismissal from the Department of State on loyalty grounds.125
For the next five years Service was employed by an export company in New York, rising to a place where he was reported to be in line for the presidency of the firm. In 1952, however, he filed suit and began quietly fighting in the Federal courts to have himself reinstated in the government. Resting on technicalities, his case reached the Supreme Court early in 1957. The court had recently ruled, in John P. Peters vs. Olveta Hobby et al. (1955), that the Loyalty Review Board of the Civil Service Commission had no authority to adjudicate cases on its own motion, or to conduct post audits on favorable decisions duly rendered by departmental security boards.126 Between the time of his arrest in 1945 and his discharge from the State Department in 1951, Service had been officially cleared no less than six times by security boards of the Departmen