Chapter 16: The Grand Jury

04/19/23 • 16 min

A Pumpkin Patch, a Typewriter, and Richard Nixon: The Hiss-Chambers Espionage Case

Picture: Library of Congress With this Podcast, we leave Washington and the political boxing ring and move to New York City and the courts. There’s still drama and tension, but no more pumpkin patches on dark and frigid nights, no more rescues of Congressmen from the high seas. The process is more deliberate and the consequences are greater. Starting now, Hiss and Chambers are each looking at being the defendant in a criminal trial and going to prison — punishments that no newspaper or Congressional committee can inflict. Both men and their wives testify to a Grand Jury. Chambers has to explain his recent denial to this same Grand Jury that any espionage was committed. See if you accept his explanation for the 180 degree change in his testimony. Nixon refuses to turn over the Pumpkin Papers to the Grand Jury, and they threaten him with prison! Nixon says, “Go ahead, make my day” and a compromise is agreed to. An FBI expert testifies that the typed spy documents that Chambers had produced were typed on the same typewriter as some letters that the FBI had obtained and that were definitely typed on the Hisses’ family typewriter. That means that the spy documents were typed on the Hiss family typewriter. Hiss tries to explain how, if he wasn’t a spy, 65 pages of documents, obviously prepared for spying, got typed on his home typewriter; and how, if he got Chambers/Crosley out of his life by 1936, Chambers has all this paper from Hiss (and don’t forget the four handwritten notes) dated 1938. See if you accept his explanation. In the last hours of its life, the Grand Jury votes to indict Hiss for perjury. Chambers and Mrs. Hiss are not indicted. Alger Hiss loses another round, but he is far from defeated. REFERENCES for further research and QUESTIONS Episode 16: The Grand Jury proceedings (and related hallway fights and shouting matches between Nixon, the FBI, the Justice Department, and Hiss) are discussed in Weinstein at 293-324, Hiss’s memoir at 190-98, and in Chambers’ ‘Witness’ at 723-27, 761-64, and 780-84. The only comprehensive review of the Grand Jury transcript was written by me (pardon my immodesty) and is available at https://www.tandfonline.com/doi/abs/10.1080/14743890802121878. If you would like a copy, send me an e-mail at [email protected]. Grand Jury transcripts are kept secret for good reasons (explained briefly in the Podcast). What got this Grand Jury transcript published was a precedent-setting lawsuit by the American Historical Association in which I played a small part. AHA convinced the court that the historical significance of the event overcame the usual rule of secrecy. In addition, all the principals were dead and many of their family members and friends supported publication. The transcript is a (to me) fascinating glimpse into the thought processes of members of the Grand Jury and the government attorneys. Chambers, for his earlier denial of any espionage, is roasted, fried, broiled, and fricasseed. But, in the end, they accept his explanation. Then, slowly, they refocus their anger on Hiss as the evidence against him accumulates and their patience with his clever wording wears out. Hiss’s Exculpatory Theory #1 — that Chambers broke into the Hiss home and typed up the spy documents himself when no one was looking and then hid them and even denied their existence under oath for ten years — finally snaps the endurance of everyone else in the room. Questions:Do you accept Chambers’ explanation for his recent perjury to the Grand Jury? Do you accept Hiss’s Exculpatory Theory #1?(He had two more in his back pocket, which he used in later years.). What do you think Nixon was trying to accomplish by bringing the rolls of Pumpkin Paper film into the Grand Jury room and holding them up in the air, but refusing to hand them over? Was he maybe hoping to get arrested and be on every front page again? If you had been on the Grand Jury, would you have voted to indict Hiss? Mrs. Hiss (the alleged typist)? Chambers? All of them?

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Chapter 15: Cue the Marx Brothers

Certainly, this Case was painful for Chambers — bringing him close to prison for perjury, ending the quiet and lucrative life he had enjoyed for years and costing him the only decent and decently paying job he had ever had. All the same, Chambers loved melodrama, and can you imagine any more satisfying melodrama than, on a dark and freezing night, leading two government investigators to a pumpkin vine behind your farmhouse and presenting them with five rolls of camera film containing proof of espionage and treason by the man who personifies the governing class of the country?

Further Research:

The dramatic, and sometimes almost comic, events of the first week of December 1948 are recounted in 191-207 and 287-93 of Weinstein’s “Perjury,” still the definitive history of this Case.

The memoirs of the major participants tell what happened, each somewhat differently from all the others: Bert Andrews’ “A Tragedy of History” at 174-91, Chambers’ “Witness” at 751-60, Nixon’s “Six Crises” at 46-56 and his “RN” at 67-69, and Stripling’s “The Red Plot Against America” at 141-51.

The most fascinating discrepancy in the accounts concerns the auto trip that Nixon, Stripling, Bert Andrews and the stenographer Rose Purdy took from Washington to Chambers’ Maryland farm on the afternoon of December 1 to find out ‘what the hell’ had caused Hiss’s lawsuit against Chambers to blow up. Chambers, at 751 of Witness, says that Stripling came to see him — strongly implying that Stripling made the tip alone. Nixon adds himself to the trip. (“Six Crises” at 47, “RN” at 67.) Bert Andrews adds himself as the third member of the trip (at 175). Stripling mentions only himself and Nixon (at 143-44). Why would Chambers want to give the impression that only Stripling came to see him? Why would Chambers want to leave Nixon out of the scene? I don’t see how that would help him or his side. I doubt he would have forgotten about all the others.

If you go to YouTube and search for “Pumpkin Papers,” you will find a group of film clips, starting with Nixon’s and Stripling’s press conference and including excerpts from the prior HUAC hearings and later films taken on the courthouse steps during Hiss’s trials. You can find other newsreels (which were shown in movie theaters and were the only form of moving image news before TV) about this case by searching on YouTube for “Alger Hiss” or “Whittaker Chambers.” The same search requests, made on CSPAN’s web page, will yield more newsreels, lengthy films of the August 25 hearing, as well as many interviews and much commentary on this Case. I suspect that this Case, and Chambers in particular, were favorites of Brian Lamb.

Questions: Who do you think is the most likely leaker of Chambers’ first bombshell to the Washington Post? Personally, I have no idea; no evidence, no rumors, not even a theory.

Do you feel sorry for Pat (“Here we go again!”) Nixon?

Do you sympathize with Nixon’s rage at Chambers for not telling him, during the HUAC hearings, that he had proof that Hiss was not only a Communist, but a spy? Can you think of one or more reasons Chambers held back that fact (if it’s a fact)? Chambers gave several reasons, which he gave to the Grand Jury. For them, you will have to listen to the next Podcast.

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Chapter 17: You be the Lawyer. How strong is your case?

Pic: Library of Congress Alger Hiss is going on trial for perjury. This Podcast is a survey, at 23,000 feet, of the possible arguments for The Prosecution and for The Hiss Defense. Of each side’s possible arguments, which are strong and which are weak? This may be of special interest to real trial lawyers, or to the inner Perry Mason who lurks within each of us. If you were The Prosecution, what would you emphasize to the jury? What are Chambers’ strengths as a witness? What are his weaknesses? You also have all the documents Chambers produced, of course. Do you have anything else — any other witnesses you would call? When you cross-examine Hiss, is there anything you would like him to admit to? Suppose you were The Hiss Defense and you decided to mount a fighting defense (not resting on the presumption of innocence that is the right of every criminal defendant). Would you concentrate on attacking Chambers (who is a target-rich environment)? Or would you emphasize building up Hiss’ sterling past acts and glowing character references? Can you give Chambers a plausible motive for lying about Hiss? Can you explain Chambers’ possession of documents by Hiss and his wife, obviously prepared for espionage in 1938, that Chambers produced in 1948? The Grand Jury didn’t buy Hiss’s Exculpatory Theory #1. What is your Exculpatory Theory #2? Further Research: This Podcast is about the arguments for The Prosecution, and the arguments for The Hiss Defense, in the upcoming trial of Alger Hiss for perjury. Suppose you were The Prosecution. Two crucial points to bear in mind: first, you must prove BEYOND A REASONABLE DOUBT that Hiss lied when he denied passing government documents to Chambers in 1937 and 1938. The jury must be left with no doubt, based in reason, that Hiss did that. Also, something called The Federal Perjury Rule says that the testimony of one witness — Chambers, obviously — is not enough. The Prosecution must have two witnesses, or one witness plus independent corroboration. Assuming Chambers is your only witness, what is your independent corroboration? How do you make Chambers credible, overcoming his strangeness, his being a confessed traitor, his possibly disreputable ratting out of his best friend, and his past denials under oath that any spying took place? Is there some way you can make Hiss look worse than Chambers? How would you prove that the handwritten documents were in Hiss’s handwriting and that the typed documents were typed on the Hiss home typewriter? There is almost no record of what The Prosecution was thinking about these matters. Much about the FBI’s factual investigations, of which there are extensive (and sometimes hilarious) records, is described in a much later Podcast, #37, about what did not come out at the trials. Suppose you were The Hiss Defense? You need do absolutely nothing — The Prosecution has the burden of proof and Hiss is innocent until proven guilty. But suppose you want to mount a fighting defense. How can you weaken The Prosecution’s Case? Other than Chambers’ weaknesses that were just described, would you dredge up his past strange behavior and try to make him seem insane, or mentally ill, or at least not believable BEYOND A REASONABLE DOUBT? Would you introduce evidence that Chambers was a homosexual? (Remember this is 1948, not today.). How do you explain Chambers’ possession in 1948 of documents, obviously prepared for spying, in Hiss’s handwriting and typed on the Hiss home typewriter? Hiss’s Exculpatory Theory #1 didn’t work before The Grand Jury. What’s your Theory #2? Might Chambers be concealing a real Soviet spy in the State Department, someone who had access to the papers in Alger’s office? Would you, like The Prosecution, search for the Hiss home typewriter? The limited history of the internal strategic deliberations of The Hiss Defense is in Marbury’s above-cited 1981 law review article beginning at page 85, in Smith’s book at 272-90, and in Weinstein’s book at 399-424. It’s fascinating reading for any lawyer who has ever planned or carried out strategy in a complicated high-profile case in which both sides have great strengths and great weaknesses. One fact that makes the thinking of Hiss’s counsel relatively available is that they were in different cities. In the 1940s, long distance telephone calls were expensive and conference calls were a minor nightmare to arrange. So, many opinions that would normally be spoken over coffee were, in Hiss’s case, committed to paper.