by Curt Gentry
One report, which neither Winchell nor Pearson used, maintained that Lindbergh had a German mistress, the implication being that she served as conduit to the Nazi high command.
Encouraged by Hoover’s enthusiasm, Roosevelt made a number of even more sensitive requests. On July 2, 1940, Interior Secretary Harold Ickes—obviously acting on the president’s behalf—asked Hoover to conduct a background investigation of Roosevelt’s Republican opponent, Wendell Willkie. There was a rumor that Willkie had changed his name from Wulkje; if true, this could be used to alienate not only Polish-American voters but all those Americans still reacting to the fall of Poland.9
Acting on the advice of Ed Tamm that it would be “a serious mistake” for the Justice Department to conduct political investigations, Hoover denied the request.10
In the case of Willkie, Roosevelt didn’t need Hoover’s help. In the fall of 1940 the president, using equipment borrowed from David Sarnoff, the head of RCA, had a secret taping system installed in the Oval Office. A microphone, concealed on the president’s desk, was connected to a recording device in the basement. But the equipment was primitive; often it picked up the president’s distinctive voice but no others; and after a few months Roosevelt abandoned it and instead relied on a hidden stenographer to transcribe those conversations he deemed important.
In one of the few tapes that survives, apparently made in August 1940, Roosevelt, on learning that Willkie was allegedly having an affair with the New York book review editor Irita Van Doren, instructed an aide:
“Spread it as a word-of-mouth thing, or by some people way, way down the line. We can’t have any of our principal speakers refer to it, but the people down the line can get it out. I mean the Congress speakers, and state speakers, and so forth. They can use the raw material. Now, now, if they want to play dirty politics in the end, we’ve got our own people.”11
Hoover also declined a request—this one from the president himself—that he put a telephone tap on Postmaster General James Farley. Though Roosevelt’s campaign manager in 1932 and 1936, Farley, hoping to get the Democratic nomination himself, had come out against the president’s third-term bid, and Roosevelt, suspecting him of giving derogatory information to the anti-New Deal editor Ray Tucker, wanted to catch him in the act.
Hoover had no love for Farley, one of the men who had tried to replace him as director in 1933. Yet, according to Tamm, who was present at the White House when the president made the request, Hoover responded, “I cannot do that. I will not do that, because of the possibility of a leak. If there was ever any publicity that you had a telephone tap placed on one of your Cabinet members the damage to you would be irrevocable. I cannot do it. I will not do it.” As Tamm recalls the incident, “the president was a little piqued, but he saw the logic of the reason and he deferred to it.”*12
There is another version of this same conversation, in which Hoover refused to tap Farley but added, to FDR’s delight, “However, I will tap Ray Tucker’s wire.”15 If true, this must have given Hoover special satisfaction, for this was the same Ray Tucker who, in the 1933 Collier’s magazine article, ridiculed the FBI director and described him as walking with a “mincing step.”
Though declining to tap Farley, the director found nothing wrong with sending the president purely political intelligence about him. On March 3, 1940, Hoover sent Roosevelt a confidential memo to the effect that Farley was having trouble with the income tax people and that it was reportedly serious enough to preclude his becoming a candidate.
Moreover, after Roosevelt had safely won reelection, Hoover sent the president a number of confidential reports on Willkie’s private remarks and personal involvements, leading one to suspect that in refusing Roosevelt’s earlier request the FBI director was only protecting himself in the unlikely event that the Republican candidate won.
Nor did Hoover have any compunction about investigating the two men he often claimed were responsible for his being named director: former president Herbert Hoover and his longtime aide Lawrence Richey. On July 2, 1940—twelve days after the surrender of France—Adolf Berle informed Tamm that the president had heard, from the journalist Marquis Childs, that the ex-president and his aide had sent telegrams to the former French premier Pierre Laval, hoping to persuade him to reveal that Roosevelt had secretly promised to send American troops to aid the French. However, when the New York field office checked the records of the telegraph companies, it was unable to find any such messages.
Knowing Roosevelt had an ongoing interest in the activities of his predecessor, the FBI director continued to monitor them. On February 4, 1941, the former president had a private lunch with Lord Halifax, the British ambassador, at the British embassy. Hoover informed Roosevelt, via Watson, of the details of their conversation, which he said he obtained from a source which he had “heretofore found reliable,” a euphemism Hoover often used when the source was in reality a bug or a tap.16 Ally or not—Halifax himself was strongly pro-appeasement—it’s possible Hoover had even the British embassy bugged. He was—by this time or shortly after—tapping and/or bugging the Germans, the Italians, the Japanese, and the Russians, as well as the embassies and/or consulates of such “neutral” nations as Vichy France, Spain, Portugal, and Switzerland.*
By this time Hoover was also conducting still other, even more secret investigations. In Adolf Berle’s much edited diary entry of March 21, 1940, one glimpses the shadows: “Lunch with J. Edgar Hoover and Mr. Tamm, anent the affairs of the FBI. For an hour and a half we discussed a variety of matters, largely connected with the seamy side of the New Deal…There were a number of matters which J. Edgar Hoover has had to handle and handle quietly at the direct request of a number of people.”†17
Although Robert Jackson blamed Frank Murphy, rather than J. Edgar Hoover, for pushing through the Spanish Loyalist indictments, the attorney general and the director soon clashed on a number of other issues.
On learning of the Custodial Detention program, Jackson tried to put it under Justice Department supervision. Claiming he feared that “the identity of confidential informants now used by the Bureau would become known,” Hoover fiercely resisted, for five months, at which point Jackson finally ordered him to make available the “dossiers” of those on the list. Perhaps Jackson saw this as a victory. If so, he was deceived, for by giving the Justice Department unit “dossiers” (or summaries), rather than access to raw reports, Hoover was able to disguise some of his sources (which undoubtedly included wiretaps and bugs), as well as select what information the unit would be allowed to see.19
That the trick worked once did not mean it would work again. Faced for the first time with a hostile attorney general who demanded access to the files, Hoover on April 11, 1940, secretly inaugurated a new filing system.
Rather, it was a “do not file” system. Memorandums for the director on especially sensitive subjects were to be prepared on blue paper rather than on white.* Bearing no classification or serial numbers, they were not referred to in the General Indices. Unnumbered, they could be destroyed without leaving a telltale gap. Since only single copies were prepared, the director alone would decide whether to retain, destroy, or return them.
Thus a supervisor could report to the director that certain evidence was the result of a burglary, without fear that this information would later surface in court. Or a SAC could request, and obtain, authorization for adding a name to the mail-opening lists, then eliminate the incriminating paperwork.
Many of the items in the Official/Confidential files, which Hoover established a year later, were “do not file” memorandums. No attorney general, from Jackson on, was ever told that the FBI was keeping a dual system of records.
Hoover’s most heated conflict with Jackson was over the issue of wiretapping.
When Attorney General Stone banned wiretapping in 1924, Hoover himself had declared the practice “unethical.” He’d also promised the ACLU’s Roger Baldwin that it was “a thing of the past.” There is evidenc
e, however, that by 1928 at least some BI agents were tapping telephones, with or without the director’s consent.22
In 1930, when the Prohibition Bureau was transferred to the Justice Department, the attorney general, William Mitchell, found himself with a problem: one of his units, Prohibition, used wiretaps, while another, the Bureau of Investigation, did not. Mitchell resolved the dichotomy by permitting both to tap. By 1932 the BI was again tapping telephones, although Hoover supposedly restricted their use to kidnapping and white-slave investigations and cases “in which the national security was involved.”23
However, in 1934 Congress passed the Federal Communications Act, Section 605 of which stated that “no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purpose, effect, or meaning of such intercepted communications to any person.”24
The FBI simply ignored the ban, first arguing that it did not apply to federal agents or their law enforcement activities, then, when the U.S. Supreme Court ruled otherwise, adopting the argument that while the divulging of tapped conversations might be prohibited, the use of evidence obtained from them was not. In December 1939 the Supreme Court rejected this argument too, ruling that Section 605 prohibited not only divulgence of “the exact words heard through forbidden interception” but also “derivative use” of evidence so obtained, which it characterized as “fruit of the poisonous tree.”25
Citing the Supreme Court decision, Attorney General Jackson on March 15, 1940, issued an order prohibiting any wiretapping by the Federal Bureau of Investigation. Publicly, Hoover went along with his boss, declaring with righteous indignation, “I do not wish to be the head of an organization of potential blackmailers.”26
Privately, he fought to overthrow Jackson’s ban. It took him less than three months. Rather than going directly to FDR, and risking the displeasure of his new superior, Hoover waged his fight behind the scenes. To favored journalists he leaked scare stories of how Jackson’s edict had hampered FBI investigations. Drew Pearson, for example, reported that FBI agents had overheard German agents plotting to blow up the Queen Mary but, because of Jackson’s prohibition, had to stop listening in on the plot. More important, Hoover encouraged other departments—including State, War, Navy, and Treasury—to pressure the president to overrule his attorney general. He was most successful with Treasury Secretary Henry Morgenthau, who, as previously noted, had an assistant monitor and transcribe all of his own conversations. Morgenthau’s diary entry for 4:20 P.M. on May 20, 1940, reads:
“I spoke to J. Edgar Hoover and asked him whether he was able to listen in on [Nazi] spies by tapping the wires and he said no; that the order given him by Bob Jackson stopping him had not been revoked. I said I would go to work at once. He said he needed it desperately.
“He said there were four Nazi spies working in Buffalo across the Canadian borders and the Royal Mounted Police had asked for his assistance and he had been unable to give it.
“I called up General Watson [secretary to the president] and said this should be done and he said, ‘I don’t think it is legal.’ I said ‘What if it is illegal?’ He called me back in five minutes and said he told the President and the President said, ‘Tell Bob Jackson to send for J. Edgar Hoover and order him to do it and a written memorandum will follow.’ ”27
It must have been a very discomfiting meeting—for Attorney General Robert Jackson.
The next day the president sent the attorney general a confidential memo in which he stated that while he agreed with the Supreme Court decision, he was sure the Court never intended its decision to apply “to grave matters involving the defense of the nation.” He went on:
“You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigative agencies that they are at liberty to secure information by listening devices…of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens. FDR.”28
That the president had sided with his subordinate apparently upset the attorney general less than his realization that Roosevelt’s memorandum “opened the door pretty wide to wiretapping of anyone suspected of subversive activities,” a term that still remained undefined.29
Distressed, Jackson tried to wash his hands of the whole matter, letting the FBI director decide whom he wanted to tap. According to Francis Biddle, who was then solicitor general, “Bob [Jackson] did not like it, and not liking it, turned it over to Edgar Hoover without himself passing on each case.”30
Jackson didn’t even want to know who was being tapped. In a memorandum for the files, Hoover wrote, “The Attorney General decided that he would have no detailed record kept concerning the cases in which wiretapping was utilized. It was agreeable to him that I maintain a memorandum book in my immediate office, listing the time, places and cases in which this procedure is to be utilized.”31
Forced by the president to reverse himself, Jackson now wrote the House Judiciary Committee that he interpreted Section 605 to mean that it was illegal only to intercept and divulge a communication. Thus the FBI could continue to tap telephones and use any information or investigative leads so obtained, as long as it didn’t divulge such information in court.
Although it “required the exegetic skill of a Talmudist,” as the historian Frank Donner put it, Attorney General Jackson’s interpretation “was used to justify wiretapping in one form or another by all of his successors until the late 1960s.”32
According to a friend and associate, Robert Jackson hated Hoover and often stated, in later years, that “he was sorry he hadn’t fired him.” Whether he could have is open to question, as is whether he dared.33
Shortly before his death in 1954, Robert Jackson strongly, albeit obliquely, attacked the FBI, writing, “I cannot say that our country could have no central police without becoming totalitarian, but I can say with great conviction that it cannot become totalitarian without a centralized national police…All that is necessary is to have a national police competent to investigate all manner of offenses, and then, in the parlance of the streets, it will have enough on enough people, even if it does not elect to prosecute them, so that it will find no opposition to its policies. Even those who are supposed to supervise it are likely to fear it. I believe that the safeguard of our liberty lies in limiting any national policing or investigative organization, first of all to a small number of strictly federal offenses, and second to nonpolitical ones.”
Brave words—yet, even though he was a much esteemed associate justice of the U.S. Supreme Court, Jackson didn’t dare criticize Hoover himself. To the above he had to add, “The fact that we may have confidence in the administration of a federal investigative agency under its existing head does not mean that it may not again revert to the days when the Department of Justice was headed by men to whom the investigative power was a weapon to be used for their own purposes.”34
Hoover, as usual, had the last word. When the associate justice died, in the apartment of one of his female secretaries, Hoover, through Crime Records, leaked the “inside story” to the press.*
Among those most enraged by the criticism of Hoover was Morris L. Ernst. “Morris Ernst telephoned from New York,” Adolf Berle noted in his diary entry for March 22, 1940. “He is very angry with the press attack on J. Edgar Hoover. As he points out, J. Edgar Hoover has run a secret police with a minimum of collision with civil liberties, and that is about all you can expect of any chief of secret police.”36
Considering that Ernst on occasion served as Hoover’s personal attorney, and was often seen with the director and associate director at Winchell’s table in the Stork Club’s Cub Room, his defense of the FBI director was perhaps understandable.†
But Morris Ernst was far more than J. Edgar Ho
over’s attorney and friend. He was also one of the giants of civil liberties—a battler against censorship, the defender of James Joyce’s Ulysses, and a much respected attorney in many landmark court cases. Moreover, for twenty-four years, between 1930 and 1954, he was general counsel of the American Civil Liberties Union.
Roger Baldwin had been Hoover’s original ACLU contact; he’d even helped the BI director retain his job. Then Hoover and Ernst met. Almost overnight, Baldwin recalled, “Ernst developed a rather personal relationship with Hoover and, at the time, we thought that best served our purposes.”39
But Morris Ernst was not merely an unofficial liaison between the two organizations. He became an almost fanatic champion of the Federal Bureau of Investigation and its director.
Besides defending the Bureau in dozens of speeches and articles (such as “Why I No Longer Fear the FBI,” which Crime Records persuaded the Reader’s Digest to publish in December 1950), he barraged Hoover, Tolson, and Nichols with letters asking—sometimes almost begging—to be allowed to offer his support.
To Lou Nichols: “After my discussion with you yesterday, it occurred to me that maybe I could be of help to the Senate or the House Committee with respect to any inquiries as to the Lawyers Guild.”40
To Clyde Tolson: “Can I do anything to help you and Edgar on this stinking series of articles appearing in the Star?”41
And, especially, to “My dear Edgar”: “You are a grand guy and I am in your army.”42
“…a lot of people think I am just a stooge for you which I take as a high compliment. There are few people I would rather publicly support.”43
“I was flattered to be associated with you.”44
“I am fast becoming known as the person to pick a fight [with] in relation to the FBI.”45