Such were the facts, as conveyed by Ike’s own assistant, behind the grandiloquent prose of the gag decree and Justice memo, facts that would not only have weakened the Army’s charges but “undercut” the testimony of Stevens (and, one gathers, his agent John Adams), which sounds like a polite way of describing perjury in the hearings. And such was the cover-up acclaimed by the New York Times, Washington Post, and many others as a shining instance of constitutional government at its finest.
Joe McCarthy didn’t think it was such a shining hour for the Constitution, thought it was indeed a cover-up, and said so. Beyond this, in what is generally viewed as one of his more outrageous moments, he said there was no constitutional or legal warrant for suppressing evidence of wrongdoing by federal officials, whatever secrecy orders might be issued. “As far as I am concerned,” he said, “I would like to notify those two million federal employees that I feel it is their duty to give us any information which they have about graft, corruption, communism, treason, and there is no loyalty to a superior officer that can tower above their loyalty to the country.”12
The shocked response to this McCarthy salvo was the flipside of the worshipful view of executive secrecy that greeted Eisenhower’s order. The Wisconsin brawler had now truly committed lèse majesté—pitting his view of the constitutional/legal requirements against the dictate of the White House. So grave was this offense considered that it would be one of the main points alleged against McCarthy in the effort to have him censured. Senators Fulbright, Wayne Morse, and Ralph Flanders, for instance, all made this McCarthy statement a major item in the accusations they proffered to the Senate. As Morse would put it, “The supplying of such information would be illegal and in violation of presidential orders and contrary to the right of the chief executive under the separation of powers doctrine.”13
Similar statements about McCarthy’s incitement to lawbreaking have been made often since. The essence of the charge was, and is, that a presidential secrecy order by Ike or Truman was “the law,” that executive employees were bound by this, and that McCarthy by his audacious statements was urging that the law be broken. Hence in the view of Richard Rovere, and others, he was a rogue, “seditionist,” demagogue, and outlaw. Had America been Imperial Rome, or France under the Old Regime, such notions might have had some standing—as “law” in those systems was held to be whatever the supreme executive said it was, and there was no legislature worthy of the name to counter-mand him.
In the American governing setup, however, we were supposed to have another kind of law (whether we actually did or not being a somewhat different question). This is called “statute law,” meaning enactments passed by the two houses of Congress, and assented to by the President, according to the tenets of the Constitution. This kind of law, indeed, was once thought to be the essence of our system—the main object of Anglo-American constitutional struggles dating back to Magna Carta.
It so happened that, on the subject being addressed by McCarthy, there was some very definite statute law, which had been on the books for decades, most recently reenacted, at the time of the Army hearings, in 1948. This was the Civil Service Act, a law whose terms were quite familiar to McCarthy. In relevant part this statute said: “The right of persons employed in the Civil Service of the United States, either individually or collectively, to petition Congress, or any member thereof, or to furnish information to either House of Congress, or to any committee or members thereof, shall not be denied or interfered with.”14 (Emphasis added.)
On the face of it, this language was both categorical and comprehensive, and would seem to indicate that it was the Ike gag order that was illegal rather than McCarthy’s resistance to it. (This statutory language is conspicuously absent from denunciations of McCarthy appearing in many of our histories.) All of which raises a whole series of further questions that can’t be settled in these pages—the most obvious of which, perhaps, is whether a presidential order can nullify a statute. In our system, the theoretical answer to this is “no,” but the de facto answer at the time was “yes.”
AT THE eye of this constitutional hurricane stood a most interested participant/observer, then–Vice President Richard Nixon. Beginning with his days in Congress and the security battles of that era, Nixon’s brushes with executive secrecy issues were many. His repeated involvements with the topic, across a span of years, would have some instructive linkages to the anti-secrecy efforts of McCarthy.
As a member of the House in 1948, in an episode earlier noted, Nixon had attacked the Truman administration for its refusal to hand over the FBI’s report on Dr. Edward Condon. Congress, Nixon then argued, had not only the right but the duty to canvass this material as essential to its oversight role in protecting the security of the nation. Now, however, he was part of an administration pursuing exactly the opposite course from that he had propounded, and inevitably had to tack with the changing winds of doctrine from the White House.
In his accustomed Janus-like role as mediator between Ike and the right wing in Congress, the Nixon of 1954 had ample opportunity to follow the executive privilege battle and was well acquainted with such active players in the drama as James St. Clair, the assistant to Joe Welch who helped shape the Army’s legal tactics. Nixon would also have had many chances to savor and imbibe the tributes to executive privilege by the Times and Post and other powerful media voices. It would have been a memorable experience. Unfortunately for Nixon, the lessons he learned from it, or thought he did, turned out to be mistaken.
Some twenty years after these events, as is well known, Nixon was himself the nation’s chief executive and the Watergate tide was rising all around him. The merits of that affair don’t concern us here, except to note that key elements in the dispute were tapes of conversations recorded in the Oval Office among Nixon and his staffers. These conversations concerned methods of dealing with the scandal, strategies to be used in trying to contain it, and what exactly to say about it. The Senate Watergate Committee chaired by Sen. Sam Ervin (D-N.C.) and the office of a special prosecutor were seeking the tapes and transcripts of such meetings. Nixon’s defense against these demands was a plea of executive privilege, based on the hallowed separation-of-powers doctrine.
Having lived through the heady days of 1954 when the wonders of executive privilege were being shouted from the rooftops, Nixon—with former Welch assistant James St. Clair as his lead attorney—would have had some reason to suppose the identical claim on his own behalf would be respected. Indeed, as the Oval Office tapes included his personal conversations with his closest aides, the tapes arguably would have been more entitled to protection than a talk between John Adams and Sherman Adams, not to mention the conversations or memos of staffers down in the ranks, all covered by the Eisenhower order.15
If Nixon had such expectations, however, he was in for a rude surprise. It turned out that what had been a sacred constitutional precept when invoked by Ike against Joe McCarthy wasn’t so sacred when invoked by Nixon against Sam Ervin. Most especially, it wasn’t sacred to the New York Times and Washington Post, both of which now turned on the proverbial dime and argued exactly the opposite view from that espoused against McCarthy.
According to the Times, commenting on Nixon’s secrecy claim, the plea of executive privilege was now a cover-up and sham, worthy of no respect whatever. “A…refusal to produce the evidence as it pertains to Watergate,” the Times averred, “would only create other problems for Nixon of a more consuming nature—problems of leadership and credibility which might be fatal to his presidency…There can be no practical justification for failure to make this evidence publicly available…”
The Post turned on the same ten-cent piece, and in the same direction. Nixon’s refusals to deliver up the tapes, it said, “have precipitated a crisis for no good constitutional or legal reason…What is at issue is only to what extent those issues we already know about have corrupted and compromised that high office.”*307 16 As with the earlier onslaught against McCart
hy, these statements upbraiding Nixon were typical of opinion in many media outlets.
Most to the present point, in the midst of all this furor, the distinguished Harvard law professor Raoul Berger brought out a scholarly tract on the subject of executive privilege, said by many to have demolished the doctrine altogether. This book was acclaimed by academic and media spokesmen as the definitive work about the topic, showing executive privilege was a farce and hoax, the opposite of constitutional, thus consigning Nixon’s arguments, and Nixon himself, to the dustbin of discarded causes. That was basically it for Nixon.
This complete reversal of elite opinion on the matter did have, of course, the awkward side effect of seeming to justify ex post facto the position taken two decades before by Joe McCarthy, but this was a risk some opinion makers were willing to take. By 1974, after all, McCarthy was long since discredited, dead and buried; the evil that needed to be stamped out now was Nixon, and if turning backflips on executive privilege was required to do this, there were plenty of intellectual acrobats supple enough to try it, as would be proved in many forums.
For our purposes, the importance of this great reversal isn’t the fate of the unhappy Nixon but the light shed on the original Ike-McCarthy fracas by these later insights. Of surpassing interest were the comments of Raoul Berger concerning the John Adams–Sherman Adams meeting in the office of Brownell. No fan of Joe McCarthy, Berger opined not only that this meeting wasn’t legitimately subject to secrecy claims but that it may have been a legal offense of the most grievous nature. “…if the subject of this meeting is accurately stated,” said Berger, “the discussion was of more serious import than McCarthy suspected. Executive scheming to interfere with the course of a parliamentary investigation would have in all likelihood been viewed as an impeachable encroachment on the prerogative of Parliament, and such offenses were dealt with harshly.”17
It thus appears, on this legal-historical reading, that it wasn’t McCarthy who was encroaching on the executive, but the executive that was encroaching on McCarthy. And, more than this, the high-level secret meeting that was the subject of the allegedly great and glorious plea of executive privilege may well have been an impeachable offense, according to the learned Berger. It was for denouncing this very meeting, and the gag order used to conceal it, that McCarthy was derided at the time, and still is in histories of the conflict.
CHARGES against McCarthy on the executive privilege issue connected up with others, most notably his possession of the two-and-a-quarter-page Monmouth memo that so terrified Joe Welch. The issues crisscrossed in that McCarthy’s incitement to federal workers to supply him information on wrong-doing would presumably have resulted in other documents of this nature being smuggled to him. This, it was charged, would result in a violation, not merely of the Ike gag order, but of espionage and other laws concerning “classified” data, thus injuring the national security. McCarthy, said his critics, was not only violating such laws himself but encouraging others to do so.
McCarthy’s retort to this was that he wasn’t seeking or receiving military secrets or confidential Bureau records, but rather data showing whether laws and regulations pertaining to such matters had been ignored or broken. The Monmouth memo, as he described it, was a good example of the difference: It didn’t contain any security information harmful to the national interest, as all pertinent info as to FBI sources and specifics about the cases had been deleted. What the memo did show, however, was that the FBI had duly warned the Army about Aaron Coleman et al., though apparently little was done to rectify the problem.
Beyond this, there were anomalies in the stance of the administration condemning McCarthy for daring to have, read, and talk about the Monmouth memo. The argument of Joe Welch and others was that divulging information derivative from the FBI—for whatever purpose—was ipso facto a security violation, so much so that Welch, voicing the utmost trepidation, refused even to read an expurgated version. The essence of the position, argued at considerable length, was that any disclosure of such material for any purpose was damaging to security interests and legally verboten.
This appeared, however, to be another instance—like the “doctored” photo or the outing of Fred Fisher—in which something was evil when done by McCarthy but perfectly fine when done by others. In fact, as Joe Welch and all other parties to the conflict knew full well, the administration had itself made public copious security information from the FBI not long before this, in the case of Harry Dexter White. These disclosures were made by Attorney General Brownell in a Chicago speech of November 1953, and thereafter in testimony to the Senate. In addition, FBI Director Hoover had been authorized to follow Brownell to the stand to explain the facts of the case in more detail.
In testifying about the White case, Brownell had gone into many particulars of the FBI investigation of the Bentley suspects, extending well beyond the matter of White himself. In essence, Brownell gave the Senate, and the nation, a pretty good précis of the till-then super-secret data the Bureau had pulled together in the “Gregory” inquest. Quizzed about this in the 1953 Senate probe by a skeptical John McClellan, Brownell blandly said he had decided to declassify these confidential FBI records as a matter of public interest.18
Thus, the Ike administration had made far more extensive revelations of material from the vaults of the FBI than anything done or contemplated by McCarthy, certainly more than the meager helping of data in the brief memo that filled Joe Welch with fear and loathing. The purposes of this Brownell disclosure, moreover, were obviously to a great extent of partisan nature—to refute ex-President Truman’s various denials about the case as well as to show there had been a major security breakdown concerning it, which indeed there had been.
An apparent distinction between the White case and the Monmouth memo was that Brownell as Attorney General was the superior of the FBI, in effect had the White security file in his possession, and could release it if he chose to, the President assenting. McCarthy, on the other hand, had no such authority and was prevented from doing what Brownell could do as a matter of executive discretion. Of course, even if valid, this argument would contravene the Welchian view that release of such material was a security violation on its face, since it apparently wasn’t such when Brownell decided to do it. However, there were plentiful reasons to conclude that the argument wasn’t valid to begin with.
Foremost among these was that McCarthy was not only a member of the U.S. Senate, this obviously bringing him within the ambit of the Civil Service law about receipt of information from federal workers, but chairman of the principal investigating committee of that body charged with sleuthing out malfeasance in executive departments. Receiving information of this nature was integral to the performance of his sworn duties—arguably more so than the public release of FBI data about the Gregory case to refute and embarrass Harry Truman was integral to the duties of Brownell.
Add to this the significant fact that there were strong constitutional arguments countering the pro-secrecy position, and that these had been effectively marshaled by Congress as recently as the Condon dispute in 1948. In that conflict, not only had Nixon and others argued that the Bureau’s Condon report be provided to the House, they had in their possession the Legislative Reference Service survey of relevant data to support their version. As seen, the House then demanded, by a huge bipartisan vote of 300–29, that the report be handed over. In the new era of executive privilege as Holy Writ, this instance of Congress having stood up for its coequal powers was conveniently forgotten.
Finally, there was what might be called the real-world perspective on the matter, known to any member of Congress seriously involved in investigations of subversion. Time and again, the information on which Congress acted had been brought to its attention by executive employees alarmed about some security matter allegedly being mishandled. A good deal of this information, in turn, came either directly or indirectly from the FBI, another fact well known to Hill investigators. A prime example was the
series of hearings in the summer of 1948, conducted by the House Committee on Un-American Activities, culminating in the Hiss-Chambers case. All the numerous suspects dealt with in that inquiry, and much of the initial evidence on them, matched point for point with Bureau records on the cases.
In this connection, as McCarthy observed and Mundt confirmed, a major breakthrough in the Hiss affair had occurred when an employee of the State Department surreptitiously brought the department’s security file on Hiss, containing considerable Bureau data, to Mundt’s attention. This showed that the department had adverse information about Hiss, dating back at least to 1946, that confirmed and reinforced the Chambers allegations. (The employee who did this, as Mundt would one day disclose, was John Peurifoy.*308 ) That was, as Mundt noted, the way things really worked in ferreting out evidence on subversion.
None of this, however, did the slightest good for Joe McCarthy in his battle with Stevens-Adams and the Eisenhower secrecy edict. Nor would McCarthy fare any better in the censure hearings that immediately followed, in which the same gag order would be used to stifle testimony—again—from General Lawton. Throughout, the administration invoked the allegedly sacred precept of executive privilege to conceal information adverse to its position, while readily divulging other data—most notably, pertaining to Dave Schine—seen as harmful to McCarthy. All in all, this tactic of selective secrecy and disclosure served administration interests nicely.
McCarthy would thus end his investigative career very much as he began it—up against a stone wall of denial. Truman had issued his secrecy edict of 1948, affecting all the early McCarthy cases, and Ike his even more stringent gag order of 1954 affecting the conflict with the Army. Truman had squirreled away State Department security records in the White House, and Eisenhower would follow suit with the Army phone transcripts. In both cases, McCarthy clamored for disclosure, but his protests availed him little. The wall of selective silence stood impervious against him.
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