On The Right - Alger Hiss case; U.S. apology to China; John McCain's presidential candidacy - Column

National Review, June 28, 1999 by William F. Buckley, Jr.

More Yet on Alger Hiss

NEW YORK, MAY 14

There was hubbub on Thursday when Judge Peter Leisure of the U.S. District Court acceded to petitions by a consortium of scholars and journalists (I was one) asking for the release of the grand-jury testimony in the great Hiss-Chambers case of 1948-50. What was the motive of the petitioners? Historical curiosity, primarily. The people who maintain that Hiss was really innocent are a dwindling band of personal sentimentalists and ideological die-hards. The son of Alger Hiss is a journalist who has written a book about his family life in which he simply proceeds on the assumption that his father was innocent-which is the best way to proceed. If one assumes the burden of arguing the innocence of Hiss, the burden is overwhelming. On the ideological front, the editors of The Nation are most prominently associated with the Hiss-is-innocent school of history, which can be likened to the school of history that says the Nazis didn't really kill all that many Jews.

But the action of the court bespeaks continuing curiosity about the case. One lawyer/historian argued that the judge opens up the possibility, whether intentionally or not, that the minutes should be disclosed leading to the trial of Aaron Burr for treason (he was found not guilty). There is persistent curiosity about historical trials, whether because they affected history or because they caught the public interest. Alfred Dreyfus was convicted of treason in 1894 and in a few years, his case having torn France apart, was conclusively exonerated on a showing that his accusers and the tribunal were moved by anti- Semitism. But if a great-grandson were tomorrow to present a publisher with a previously unread journal by one of the accusers or judges, it would be snapped up for publication. At about the time the Hiss trial was held, a professor at my college was writing an essay to the effect that Socrates was really guilty as charged.

Several questions were raised in Judge Leisure's 60-page opinion. One of them, which rated most of the publicity, was the question: Ought grand-jury testimony to be held confidential for all time, or are there reasonable limits to be placed on the confidentiality? As recently as during the Starr proceedings against Bill Clinton the question was raised: Does the rule of confidentiality protect a client even after his death? The point then was to question a lawyer about information given to him by the late James McDougal. The ruling came down that the bond survives the death of the client, so we will never know what he told his own lawyer, and in this instance it is likely that nobody will much care.

A second point raised in the Hiss case has to do with the behavior of Richard Nixon, at that time an upwardly mobile congressman and de facto, if not de jure, the most prominent prosecutor on the scene. But it is critically important, in judicial procedure, to stress the difference between 1) Nixon a leading expert on the Hiss-Chambers case in virtue of his role as a member of the House Committee on Un-American Activities that had conducted the investigation, and 2) Nixon as simply one of several witnesses appearing before the grand jury. It is hard exactly to figure out what Judge Leisure was thinking about when he wondered out loud in his opinion whether Nixon had trespassed over the line that separates the legislative and the judicial, unbalancing the separation of powers. To reach for a hypothetical offense, incredible though it would be, suppose that Nixon had threatened the jury with an investigation by the House Committee on Un-American Activities if it failed to bring in an indictment against Hiss. But even if such an inconceivability were turned up, you would be left with only one more delinquency to add to the anti-Nixon ledger. That would make for a historical footnote, but its bearing on the guilt or innocence of Hiss would be nugatory. To establish that Nixon was guilty of an impropriety is not the equivalent of establishing that Hiss was innocent.

Third, there is the matter of the evidence available to the grand jury when it ruled that Hiss should stand trial. The jurors knew a great deal, but not nearly as much as subsequent scholarship revealed. Professor Allen Weinstein, in his book Perjury, and Sam Tanenhaus, in his biography, Whittaker Chambers, considerably extended the case against Hiss by original scholarship. The point being that whatever now transpires that the grand jurors heard before voting to indict Hiss, it cannot be persuasively argued that if they had known more they'd have acted differently.

There is a final argument in favor of the release of the documents. It is that, desperate for sustaining evidence, the Hiss people could point darkly at a still-hidden trove in which the truth lay lonely and unobserved. Once again, it is hard to come up with a hypothetically exonerative document-but as long as anything remains hidden, the lost tribes of Hiss have a little peyote to chew on. Judge Leisure greatly depleted this reserve.