How the 5th Amendment was Subverted to Protect Treason

LEASE forgive me for telling a story in which I played a part which has never been fully told before. I told a small part of that story to the Senate Internal Security Committee of the Judiciary, which it published as a part of its Hearings on February 25, 1958, on Senate Bill 2646, Part II, page 107. I told another small part of that story in a letter dated February 27, 1958, addressed to the same committee, which was published on page 356 of Part II of those Hearings.

The story begins when I was a student at the University of Georgia from 1919 until 1922. Clark Howell Foreman, whose mother was a member of the powerful Clark Howell family which then owned the Atlanta Constitution, was at the University at the same time.

Later I studied law at Columbia University in New York. I discovered in my course on evidence that no one had ever written or knew the history of the privilege against self-incrimination in America so I chose that subject in a graduate seminar and wrote a thesis on the subject which I later revised and submitted to the Editors of the Virginia Law Review. It was published in the May 1935 issue of that publication (Vol. 21, p. 763). I was flattered to discover later that Professor Wigmore quoted approvingly excerpts from it in Section 2250 of his great ten volume work on Evidence. Thereafter my History of the Privilege Against Self-Incrimination was frequently cited in opinions of the Supreme Court of the United States. For several years "Pittman" was "modern authority" for the Supreme Court on the privilege against self-incrimination. But my history stopped with the Constitutional Convention of 1787 and did not cover the 5th Amendment which was adopted in 1791.

The June 1954 issue of the American Bar Association Journal carried a speech made by Dean Erwin N. Griswold of Harvard entitled The Fifth Amendment. Upon reading that speech I recognized immediately that much of it was a rewrite of my article in the Virginia Law Review. I was complimented that he should copy from my writings and I wrote him on June 8th to inform him that I was still living and recognized the source of much of the materials he had used in his speech. Recognizing that speeches are not usually weighted down with citations I did not consider that Dean Griswold had violated any code of ethics in using my materials in a speech, without mentioning his source. I went so far as to call his attention to some materials relating to Anne Hutchison and Wheelwright, not embodied in my article. I told him where he might find those additional materials.

Under date of June 16, 1954 Dean Griswold courteously replied to my letter which I read to you:

A few months after this correspondence Mr. Clark Foreman of New York City called me at my home in Dalton, Georgia, early one evening. He told me, as I remember, that someone had called his attention to my History of the Privilege Against Self-Incrimination in the Virginia Law Review and that he understood that that was the only authentic history of the privilege against self-incrimination that had been written up to that time and that members of the Supreme Court had cited it as authoritative. He said that some friend of his had a problem and needed help. Without calling any names, he stated certain facts, in which the person claiming the privilege against self-incrimination might be questioned before a non-judicial body such as a school board or some administrative agency or before some Committee of Congress, not necessarily connected with "any criminal case." He wanted me to write another article bringing my old one up to date in which I should show that the 5th Amendment privilege against self-incrimination relates to any proceeding and particularly to such as he mentioned.

As I recall, I told Mr. Foreman that it had been so many years since I had done any research in that particular field that I was not inclined to go back over the ground; that I was doing research on George Mason, the author of the Bill of Rights including a book on Mason and that if I should write an article on the 5th Amendment I could not then predict what conclusions I might reach on the questions he was interested in, but I felt sure that I could not write anything worthy of publication. He then told me that he would not expect me to write the article for nothing; that I would be well paid and the article would be published and widely distributed. I think I told Mr. Foreman about Dean Griswold's speech in which he had used some of my materials and I believe Mr. Foreman said that he wanted a documented article that could be used by the Courts to support a finding that the 5th Amendment applies in any proceeding. I begged off and our conversation ended.

Whether Mr. Foreman got in touch with Dean Erwin N. Griswold or not I do not know, but I do know that later someone sent me a little paperback book published in 1955 by the Harvard University Press, and by "the President and Fellows at Harvard College" entitled The Fifth Amendment Today consisting of 82 pages, containing three speeches by Dean Griswold. Since Dean Griswold had indicated in his letter of June 16, 1954, that my article should have been cited and was not cited because it was first written as a speech, I naturally assumed that if Mr. Griswold used the same materials again in a booklet he would cite my article, but I was shocked to find that instead of citing my article he cited the same sources that I cited in 1935, without mentioning my article. He also used the materials about Anne Hutchinson and Wheelwright to which I had called his attention in my letter, but citing the original sources from which Professor Mark Howe of Harvard had extracted the materials for use in one of his courses and without even crediting Professor Mark Howe. The only footnotes contained in his 82 pages are those he took from my article and those he took from Prof. Mark Howe's book to which I called his attention. Of course, I was disappointed and chagrined. Reading this booklet on page 54 I came across something that had the Clark Foreman ring. Here is a part:

The constitutional provision in the Fifth Amendment says that no person shall be required to testify against himself 'in any criminal case'. Is it not clear that a legislative investigation is not a 'criminal case'? What application, then, does the constitutional provision have in such proceedings -- or in civil trials, or elsewhere, where persons may be subjected to questioning?

Dean Griswold then argues and pleads, without citing authority therefor, that the privilege against self-incrimination should not be literally applied but should be applied in such a way that it would afford an umbrella to anyone wherever the person interrogated might be. He then said:

For this reason, courts long ago concluded that if the privilege is to be effective at all it must be given a comprehensive application, and thus must prevent compulsory self-incrimination in any proceeding. This is, indeed, a broad construction of the constitutional language, but it is a construction which has seemed to be required if the basic objective of that language is to be realized.

The booklet continues on in the same vein, arguing that though the 5th Amendment says that it is applicable only in "any criminal case" it does not mean what it says but it means the same thing as if the words in "any criminal case" had never been inserted in the clause.

I do not know what induced Dean Griswold to write what he wrote, but I do know that he wrote almost exactly what Clark Foreman tried to hire me to write. I knew that the Griswold article was wholly at variance with history and both a travesty and a tragedy.

After reading The Fifth Amendment Today I learned that the Ford Foundation had paid Harvard University for its publication and distribution throughout the nation, sending free copies to libraries, federal judges and others in sensitive positions. It is my understanding that at least 30,000 copies were thus distributed at the expense of the Ford Foundation. With that background my curiosity got the best of me. I turned to late decisions of the Supreme Court, decided after Griswold's book came out. Sure enough, Mr. Justice Clark used Griswold's The Fifth Amendment Today (1955) in the case of Harry Slochower v. Board of Education of New York, 350 U.S. 551, 76 S. Ct. 637. The facts reported in the case show that Prof. Slochower invoked the privilege against self-incrimination under the Fifth Amendment -- not in "any criminal case," -- but before an investigating committee of the United States Senate. Before the Senate Committee Professor Slochower had refused to answer any questions concerning his membership in the Communist Party or his associations with communists prior to 1941, at which time it had been testified that he was a communist, by a witness before a Committee of the New York Legislature. Shortly after Slochower claimed his privilege before the Senate Committee the Board of Faculty of Brooklyn College suspended him and three days later discharged him pursuant to New York law, which the Supreme Court of New York of Kings County concluded had been violated by Slochower. The facts in that case sounded familiar. They sounded much like facts I had heard over the telephone from Mr. Foreman. The Supreme Court cited Griswold's booklet. On the authority of Dean Griswold, Professor Slochower won his case and was restored to his job and salary.

In arriving at its conclusion in the Slochower case the Court cited the case of Ullman v. United States, 350 U.S. 422. I looked back a few pages at that case. Sure enough, there it was! On page 426 of the opinion, Justice Frankfurter cited "Griswold, The Fifth Amendment Today, (1955), 7." As Justice Frankfurter was preparing his opinion he must have had a terrific "fist and skull fight" with his conscience or his better self in which the latter was on top for a brief moment, because on page 428 he said:

William Ludwig Ullman had been identified as a communist by Elizabeth Bentley on July 31, 1948 in an open session of the House Committee on un-American Activities. The Bentley-Whittaker Chambers testimony placed Ullman in the famous Perle Cell. The story of Ullman's communist activities is partially told in The Web of Subversion by James Burnham, (1954) on numerous pages beginning with 34 and ending with 172. Nevertheless his constitutional right to subvert our government was fully explored and respected on the authority of Dean Griswold.

The Slochower case also cites Quinn v. United States, 340 U.S. 155, decided on May 23, 1955. I turned back to that decision written by Chief Justice Warren. It was the fountain head of the now "law of the land" designed to shield and to coddle communists. Sure enough, there it was! In that case Thomas Quinn had been convicted of contempt of Congress in the District Court of the District of Columbia for refusing to answer any question about his communist affiliations. When he was before the Committee on un-American Activities on August 11, 1949, Quinn refused to answer questions without even making any reference whatever to the privilege against self-incrimination. He simply refused to answer "on the grounds of the First and Fifth Amendments," without hinting what he had in mind, but surely he must have known his judges. Quinn won his case before the Supreme Court. On page 161 Mr. Chief Justice Warren delivered himself of this pronouncement:

As authority for that statement he cited Griswold, The Fifth Amendment Today, 2-7.

Mr. Quinn's attorney was Frank J. Donner of New York City, who was identified as a communist as long as 20 years ago in sworn testimony. Wherever Clark Foreman's tracks are traced, there we find Donner's also. See Communist Legal Subversion, H.U.A.C. February, 16, 1959, House Report #41, pp. 21, 35. An interesting thing was that Mr. Ullman's attorney was Leonard B. Boudin of New York City, Mr. Foreman's Emergency Civil Liberties Committee General Counsel.

At the same term of court, immediately after Dean Griswold's little booklet was so widely and so generously distributed by the Ford Foundation in 1955, the Supreme Court not only released identified communists involved in cases I have cited but on the authority of Griswold they began to unlock the doors to jails all over America that identified communists might go free.

In rapid succession the Court reversed the New Hampshire Supreme Court and said that the Attorney General of New Hampshire had no authority to question Professor Sweezy concerning a pro-communist lecture he had delivered at the State University.

In the case of Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232 (1957), the Court reversed the decision of New Mexico's Board of Bar Examiners and the Supreme Court of New Mexico which had held that membership in the Communist Party disqualified him for admission to the Bar of New Mexico, the Supreme Court holding that previous membership in the Communist Party did not disqualify an applicant for admission to the Bar of New Mexico.

In the case of Konigsberg v. State Bar of California, 366 U.S. 36 (1961), the California Bar Examiners and California Supreme Court were reversed because they declined a license to practice law to Mr. Konigsberg who refused to answer the simple question: "Are you a communist?"

In Jencks v. United States, 353 U.S. 657 (1957), the Court reversed two Federal courts and held that Jencks, charged with filing a false non-communist affidavit, must be permitted to see all FBI reports relating to his communist activities upon the trial of his case.

In Watkins v. United States, 354 U.S. 178 (1957), the Supreme Court reversed the Federal District Court and the Court of Appeals of the District of Columbia, and held that the House Un-American Activities Committee could not require Mr. Watkins, who admitted that he cooperated with the Communist Party, to name his Communist associates, even though Mr. Watkins did not invoke the Fifth Amendment. The Supreme Court invoked it for him. He had "A friend in the court."

In Raley, Stern and Brown v. The State of Ohio, 360 U.S. 423 (1959), the Court reversed the Ohio Supreme Court and its lower courts and set aside the conviction of three men who had refused to answer any questions about their communist activities, put to them by the Ohio Un-American Activities Commission.

In Flaxer v. United States, 358 U.S. 147 (1958), the Supreme Court reversed two Federal courts and set aside the conviction of Flaxer for refusing to produce records of alleged communist activities subpoenaed by the Senate Internal Security Committee.

In Sacher v. United States, 356 U.S. 576 (1958), the Court reversed two Federal courts and set aside the conviction of Sacher for contempt for refusing to tell the Senate Permanent Investigations Subcommittee whether he was or ever had been a communist.

A thermofax of that letter is attached for the names it contains at its head and side. Not even then had my mind fully comprehended the significance of Mr. Foreman's call to me and his letters. I had reasons not to comply with Mr. Foreman's second request. I had not studied the decisions of the Supreme Court releasing communists until after October 1955. Successive decisions of the Supreme Court of the United States in which droves of communists were being freed to continue their subversive activities became so alarming that press comments were beginning to be made.

Those decisions not only showed that they were grounded upon the Dean Erwin Griswold booklet but they revealed also that many of the attorneys for the communists in those cases were attorneys listed on the letterhead of the Emergency Civil Liberties Committee. By reason of the deluge I took time to do what I had told Mr. Foreman I did not have time to do. I resumed research, wrote an article telling the history of the 5th Amendment as it passed through the First Congress, and the reason for a change -- a fundamental change in its language. It was published in the June 1956 issue of the American Bar Association Journal. Here is a brief resume: As the amendment was originally proposed by James Madison on June 8, 1789 in the First Congress of the United States it had provided:

If that language had not been changed the privilege against self-incrimination would have clothed every person with a privilege against federal compulsion to testify to truth wherever he might be. However, during the debates on the proposed Bill of Rights in the Committee of the Whole on August 17, 1789, Mr. Lawrence, a member of the First Congress from New York, stated that he thought that the privilege against self-incrimination

Prior to 1955 no one had found a specific reason for the proposed amendment by Mr. Lawrence. Since the Supreme Court had done the very thing that Justice Frankfurter said could not be done and had removed from the 5th Amendment the phrase, "in any criminal case," so as to make the privilege apply to any proceeding, whether a criminal case or not, I began to try to find the reason for Mr. Lawrence's amendment and I finally came upon it in early newspapers published during the American Revolution. That story was fully told by me in the ABA Journal article which the Editors of the Journal did me the honor to make the "lead article" in the June 1956 issue.

America had its traitors during the Revolution as it has had in all of the wars we have participated in in this century and just as it has today, except the ones back then were not so many nor, perhaps, so great. We remember Benedict Arnold as a traitor. He was not alone. We remember Silas Deane as a hero. Silas Deane was commissioned with Benjamin Franklin and Arthur Lee to go to France and with all the money we could rake and scrape up to buy arms, ammunition and supplies for our revolutionary army. Arthur Lee became suspicious of Silas Deane in Paris. Lee was what some people might call today a "super-patriot" or an "extreme right winger." He reported his suspicions to two of his brothers who were in the Continental Congress in 1778 while the Revolution was raging and they in turn whispered those suspicions to their associates. Silas Deane was called back from France to testify before the Continental Congress. As soon as the Congress asked him about his associations in Paris, with the famous British spy, Dr. Bancroft, and his misappropriation of American money "he prayed that he might not be bound to answer questions tending to accuse himself." (Freeman's Journal, June 14, 1781.)

On January 2, 1779 the Pennsylvania Packet carried an article by Tom Paine, Secretary of Foreign Affairs at that time. Tom Paine said:

The Congress granted him the privilege he asked for and also granted him the privilege to return to Paris to get his records so he might come back and answer the charges. By that ruse he escaped to Europe and never returned. Therefore when Congressman Lawrence of New York proposed an amendment to the 5th Amendment that would authorize legislative bodies, and others not in "any criminal case," to deny the privilege against self-incrimination to one accused, the First Congress of the United States voted "unanimously" to adopt such an amendment. I refer you to my article in the American Bar Association Journal for further details.

Immediately after my article was published I received carbon copies of letters written by lawyers in various parts of the United States to the Ford Foundation for the Republic to reprint and distribute my article as it had the Dean Griswold booklet. On August 9th I wrote a letter to the Fund for the Republic giving my consent for the publication and distribution of my article in pamphlet form. I sent copies to members of the Ford family. A copy of that letter follows:

Since Dean Erwin N. Griswold was a trustee for The Fund for the Republic, Inc., I feared that my letter would never be answered. That is why I sent a copy to members of the Ford family in care of the Ford Motor Company in Detroit. They made no reply.

Apparently the officers of The Fund for the Republic were of the opinion that time heals all wounds so they waited nearly six weeks to reply to my letter, giving as an excuse their inability to obtain a copy of the American Bar Association Journal, which was in the office of every member of the American Bar Association in New York and in every law library in New York. Here is their reply.

What I have said thus far should be enough to demonstrate how communists and communist fronts by careful planning and the expenditure of money and effort make treason and subversion about the safest activity known in America. By such methods the Communist Party, its various fronts and fellow-travelers have robbed the American people of their right to know the difference between a traitor and a patriot. The only investigative agency left is the Federal Bureau of Investigation and its files are wholly within the control of the Attorney General who is under the control of the President. These files may not be seen by those who represent the American people in the Congress of the United States.

I hate to quit without suggesting a line of thought to the people who care. Is it possible that anything may be done to turn the tide? It may be possible but it is most unlikely. Some of the many things that may be done are:

Create a permanent Legislative Investigation Commission;

let the Senators and Representatives from appropriate geographical areas elect independent and fearless directors from such areas to serve for staggered terms of say ten years each and let the Chairman receive the same pay as the Chief Justice of the Supreme Court;

let this Commission have power to investigate any and everything that Congress and the American people may be interested to know;

empower it to remove wasteful, disloyal and incompetent persons from government service after due notice and hearing;

deprive the Supreme Court of all appellate jurisdiction relating directly or indirectly to the investigative powers of the Congress and confer upon such permanent Legislative Investigation Commission all of the appellate powers now claimed by the Supreme Court with regard to legislative investigations and make its decisions final and non-appealable;

authorize such commission to grant immunity from criminal prosecutions to witnesses for what they may reveal;

make it a felony for any person to accept or continue in the employment of the United States government or any agency or contractor with it, who is or has ever been a communist, or has associated with persons knowing them to be communists, unless he or she has filed a statement with such Permanent Investigation Commission revealing the details of such affiliations;

let such commission be required to make a report of facts in its custody in any matter concerning which the Congress of the United States or any department of the government of the United States has asserted or assumed any jurisdiction whatsoever upon the request of any member of Congress;

let this commission make a full and complete report to every member of the Senate as to every person nominated by the President as to whom advice and consent of the Senate is required, before appointment.

If the Commission should determine that any information should not be furnished, in the interest of the internal security of the United States and their people, let the Commission be overruled and required to furnish such information only upon the demand of a stated number of the members of Congress. Other rules would perhaps be more appropriate. These are merely to stimulate thinking.

Another suggestion would be to immediately pass an act taking the Federal judiciary out of control by the President and his Attorney General; let the United States District Attorneys be selected in such a way as to free them from the despotic commands of the President and his Attorney General.

The July and August 1951 issues of the American Bar Association Journal published a lead article by me entitled The Emancipated Judiciary in America: Its Colonial and Constitutional History. In the year 1954 the same Journal published another article by me entitled Judicial Supremacy in America: Its Colonial and Constitutional History. I researched, studied and wrote on those subjects because I had learned what the framers of the Constitution knew from the bitter lessons of history -- that there can be no such thing as liberty in a government whose judiciary is not emancipated from control by any other agency or department of government except the people themselves acting at the ballot box or through fundamental constitutional controls. Judges who are not completely free from control by the President or by the Congress will always follow the lead string that pulls the hardest. It has been demonstrated that conscience is no match for "pull." Non-precarious tenure and pay was set up for judges in the Constitution itself -- not to make them fat and sassy, but to keep America free.

The most dangerous agency in all the history of tyranny is a judiciary that can be controlled by executive power. Hundreds of years ago Tacitus, the great historian said:

If I were America's Caesar and wanted to rule as a despot I wouldn't swap Earl Warren and his "modern authority" for 40 divisions with modern weapons.

In recent years the Attorney General of the United States has assumed control of the U.S. District and Circuit Court Judges. He rides herd over many of them in all matters of policy, as has been done by tools of executive power in every despotism known to history. A district judge who doesn't conform may have his docket taken from him. If he accepts dictation from the Attorney General and thereby earns and becomes the recipient of the profound contempt of the upright citizens where he lives, he is rewarded by elevation to a higher paying job on some circuit court where local senators have no right to advise and consent. A climate has been created in which judges fall over each other to please the Attorney General in the hope that he will recommend them for elevation to the Supreme Court. They have set up a seniority system, unknown and forbidden by the Constitution, so that orders from Washington may be executed more efficiently. On some judges he uses sugar. On others he uses a lash. When a communist front can manipulate Supreme Court Judges so as to manufacture law and amend constitutions, the time for some new plan is here. It is said that liberty lost is lost forever, but we can try something! The members of the present Supreme Court can't complain if we follow "modern authority" and refuse to "turn back the clock" to 1787, while seeking to avoid the consequences of judicial depravity.

The judicial oath which was once unsullied in America has now become the tarnished finery of prostitutes and many of our people would like to start anew with Sir Edward Coke's prayer, uttered in 1628, while urging before the Parliament that Charles I has no power to use the English judiciary to effect his will:

Between 1773 and 1776 as clouds of revolution were gathering in America, George III began to exercise control over the American colonial judges in a manner similar to that now asserted over the judiciary by the Justice Department under the President. Tory organizations were busy indoctrinating those colonial judges whose daily bread depended upon the smiles of George III. Those judges who held offices at the pleasure of kings and royal governors were usually willing to rule any way consistent with their own welfare. For many then, as now, their gods were their bellies. Those few who held with the people were removed from their offices. Suddenly the Sons of Liberty began to meet and organize under cover of darkness and began to spread the watchword "To Your Tents, Oh Israel!" (See, The Emancipated Judiciary, 37 ABA Journal 587). Soon they drove servile judges to a haven in His Majesty's ships.

Those who rest in unmarked graves from Lexington to Yorktown were fighting to decide whether or not their children should be forced to live under a government wherein the stream of justice was polluted. The framers of our Constitution did the best they could to create an emancipated judiciary to stand at the last barricades on the road that despots travel, but the very institutions they erected to preserve liberty have been subverted and used to destroy liberty. Now we must emulate the Sons of Liberty and again find a way to disrobe servile judges. Again let our watchword be "To Your Tents, Oh Israel!" That was the watchword of revolt of the ten tribes of Jerusalem, when they separated from Rehoboam. It was the watchword in the Puritan Revolution, becoming such when a man by the name of Walker threw a pamphlet so entitled into the carriage of Charles I, as he drove through a cold and muttering crowd on his way from Whitehall to Guildhall to try to effect the arrest of Hamden, Pym, Holles, Strode and Haslerig, the leaders of the Parliament. Their crime was that the questioned in Parliament the prerogative of a king to rule despotically through the instrumentality of servile judges. (Guizot, History of the English Revolution of 1640, p. 134). Let us revive that watchword so that even Supreme Court Judges may see and hear and understand.