Michael Lewis, a member of Princeton University’s Class of 1982 and author of such successful books as Moneyball and Boomerang, gave the 2012 Baccalaureate speech at his alma mater.
He said, “Life’s outcomes, while not entirely random, have a huge amount of luck baked into them. Above all, recognize that if you have had success, you have also had luck — and with luck comes obligation. You owe a debt, and not just to your Gods. You owe a debt to the unlucky.” The text of the speech is available, as is a YouTube video.
I made a similar point in my post, Gratitude III, where I said,“Malcolm Gladwell’s Outliers emphasizes the importance of an individual’s family and place and date of birth as determinants of success. Warren Buffett, the great investor from Omaha, frequently says how fortunate he is to have won the ovarian lottery by having been born in the U.S. in the 1920′s. They remind me to be grateful for having been born in the U.S.A. It is indeed a great country and provided me with opportunity after opportunity.”
Every one of us owes so much to so many people who helped us along the way. Our successes are not ours alone. Be grateful. Help others as you have been helped.
Joseph Welch’s participation in the televised Army-McCarthy hearings in 1954 brought him national prominence. We have seen a summary of those hearings and his performance as the U.S. Army’s lawyer.
As a result, Welch became a celebrity. His career expanded to do new things.
Welch appeared on various national television programs, most notably talking about the U.S. Constitution on the Omnibus program. A book of those commentaries was published.
In 1959 Welch provided commentary during intermissions of several televised concerts by the New York Philharmonic Orchestra, then under the baton of Leonard Bernstein. After Bernstein apparently had called Welch a “great American,” Welch responded, “I suspect you are a better judge of good music than you are of what could truly be called great Americans. Do not think for a moment, however, that it is not music to me to have you say of me what you do.” Welch added that for him to accept money for being on a Christmas concert with Bernstein and soprano Marian Anderson was “just barely distinguishable from cheating.”
Correspondent with Groucho Marx
Welch’s television appearances had an impact on comedian Groucho Marx. In a serious article in TV Digest about the status of television programming, he said, “[I]t speaks very well of television and its audience that the man so constantly in demand for more TV appearances after the Army-McCarthy Hearings was not Senator McCarthy, but Joseph Welch.”
This article came to Welch’s attention, and he wrote to Groucho on his law firm’s letterhead that listed the names of all the 40 or so lawyers in the firm. Welch said that it had not been necessary to hire extra help “to hold at bay swarms of people anxious to get me to appear on television or in the movies.” He then expressed admiration for Groucho’s work and said it “must be wonderful to be (a) Rich, (b) Intelligent, and (c) Funny. I trust I list them in their correct order.”
Groucho responded that he was not rich, but “rich enough . . . to know that inflation is knocking hell out of what I have.” He also said he was a “little frightened” by the imposing list of 40 lawyers on Welch’s law firm’s letterhead. Groucho said he had been sued over the years on most of the “minor charges—rape, larceny, embezzlement and parking in front of a fire plug,” but those law firms never had more than four lawyers. Groucho then asked a series of questions about life in such a large law firm.
Welch could not let this Marx missive go unnoticed. Welch told Groucho that he had misunderstood the letterhead: “All the names below the first line are the name of our professional witnesses. They hang around street corners and turn up unexpectedly as witnesses in all the automobile cases we try.” Welch then answered Groucho’s questions about the firm:
“Q: How do you get along in the office?
A: By leaning on each other heavily and on our secretaries.
Q: Do you trust each other?
A: In every area except money, property and women.
Q: Does each one have a separate safe for his money?
A: Yes, except I have so much money I have two safes.
Q: Isn’t there some danger that you and one of your partners could both be in a courtroom, representing opposing clients?
A: Damned if there isn’t and every now and then somebody takes in a case where the client is against the client of another guy in this office and there is hell to pay and no foolin’.
Q: Do you have one community storage room for your briefcases? Or does each one sit on his own case?
A: I do not understand this question. I sit on what you sit on only I do more of it than you do.”
While Welch said he hoped that Groucho would visit him in Boston, Welch advised him to keep it quiet because “a highly numerous and vocal collection of people in Boston thought and still think that hanging is too good for me.”
Welch indeed matched wits with Groucho.
In 1959 Welch became a movie actor when Director Otto Preminger picked him to play Judge Weaver, a Michigan trial-court judge, in the film, Anatomy of a Murder, which is still an entertaining movie.
The basic plot concerns an Army Lieutenant, Frederick Manion (played by Ben Gazarra), who is accused of murdering a man, Barney Quill, for allegedly raping his beautiful wife, Laura Manion (played by Lee Remick). Manion’s lawyer, Paul Biegler (played by Jimmy Stewart), is assisted by his friend, Parnell McCarthy (played by Paul O’Connell), an alcoholic lawyer. They oppose the district attorney, Mitch Lodwick, and a state assistant attorney general, Claude Dancer (played by George C. Scott). Judge Weaver (Joseph Welch) presides over the trial. Several interesting issues of legal ethics are posed by the trial, which is a subject for another day.
Filmed in a small, apparently all white, county seat in the Upper Peninsula of Michigan, the movie has an enjoyable digression. Duke Ellington, the great jazz musician, appears in one scene as Pie-Eye, a musician playing the piano with a black jazz band, at a roadhouse. Joining him on the piano is the defense attorney (Jimmy Stewart), who is a jazz aficionado.
The movie received many Oscar nominations, but lost “Best Picture” to Ben-Hur while Stewart lost “Best Actor” to Charlton Heston in the latter movie.
During the filming, Welch became a good friend of John Voelker, the author of the film script and of the novel of the same title and a fellow attorney and a former member of the Michigan Supreme Court. They discussed the possibility of Voelker’s assisting Welch in writing an autobiography, but that never happened. In their extensive correspondence over the last 18 months of Welch’s life, Welch compared his wordsmithing as “counterfeit” coins to Voelker’s “complete access to, if not ownership of, the First National Bank of Words.”
Law Firm Partner
Welch’s graciousness, so evident in the Army-McCarthy hearings, also was present in Welch as a law firm partner.
In 1952 the Hale and Dorr law firm was faced with an issue of whether it should make a claim on the estate of a deceased partner who had paid himself more than he was entitled to, i.e., who had embezzled law firm funds. The firm adopted Welch’s proposal to make a claim for one-half the amount. Said Welch, “Let him pay for his choice of life style. But because of the nature of the partnership and because we truly liked him at his best, let us forgive a half.”
In addition, presumably in the late1950’s Welch wrote a letter to his partners at Hale and Dorr, “This is like my will to you. I have lived a successful, rewarding and happy life. I believe that I owe the firm money rather than visa-versa. In any event, since my second wife does not need any money, any moneys owing to me by the firm upon my death should be paid to you [the partners], not to my family.”
Welch also prepared what he called an “office will:” It stated, “All the rest and residue and remainder of me as a lawyer I leave to all those in Hale and Dorr that I have loved. To a very large degree they . . . have made me what I am. Such success as I have attained I owe largely to them. I have lived my whole professional life in an office free from grief, envy, and jealousy. Few lawyers have been so blessed in their associations continually all through life. For the serenely happy life I have had with all of you, I say a simple and inadequate thank you.” Welch concluded: “this is my office will and is undated. The identity of the typist is to remain a secret. It is not witnessed. But even so—no fooling. Joseph N. Welch.”
The author in his years as a practicing lawyer in large law firms has never heard of anything like these gracious comments from a partner to his or her fellow partners.
Welch’s first wife, Judith Lyndon Welch, died in 1956, and he was remarried to Agnes Rodgers Brown Welch.
Welch died on October 6, 1960, just weeks before his 70th birthday.
Prior posts have examined the substance of the Army-McCarthy hearings of 1954, the performance of Joseph Welch, the Army’s lawyer, in the hearings, and the Army’s hiring of Welch for this purpose. Now we look at the role of President Dwight D. Eisenhower in these events.
During the hearings, President Eisenhower maintained his public distance from the battle between Senator Joseph McCarthy and the Army. The President believed that any public criticism of McCarthy by the President would merely enhance the Senator’s publicity value without achieving any positive purpose and that it was the Senate’s constitutional responsibility, not the President’s, to curb the Senator.
Eisenhower did so despite having an intense dislike of McCarthy and his methods. This stemmed from the Senator’s past attacks on George C. Marshall, who was Eisenhower’s friend and Army colleague and who was the former Secretary of State in the Truman Administration. The dislike was exacerbated by McCarthy’s attacks on several of Eisenhower’s top-level nominees in 1953, the first year of the Eisenhower Administration, and by McCarthy’s investigation of the Army starting in 1953. Eisenhower said privately, “I just won’t get into a pissing contest with that skunk.”
We now know, however, that the President was active behind the scenes to fight McCarthy.
Though his Chief of Staff, Sherman Adams, Eisenhower selected Welch as the Army’s attorney. Before and during the hearings, privately within the White House, Eisenhower expressed his extreme displeasure with McCarthy and was active in various ways regarding the hearings.
Moreover, Eisenhower wanted to give McCarthy enough rope to hang himself even though the Army would suffer in the short run. When the initial hearings went badly for McCarthy, the Senator suggested that there be no more television coverage. Army Secretary Robert Stevens discussed this proposal with the President, who rejected the idea, saying, “Now we have the bastard right where we want him!” The proposal was rejected. Television coverage continued. McCarthy destroyed himself.
As another example of the “hidden hand” of the Eisenhower presidency, the President invited television-journalist, Edward R. Murrow, to the White House to congratulate him for his television program’s exposure of McCarthy’s methodology.
When the hearings were over, the Army’s lawyers, Joseph Welch and James St. Clair, had a private meeting at the White House with the President. The President congratulated them on their presentation of the Army’s case and agreed with Welch that the main effect of the hearings had been to expose McCarthy’s disgraceful tactics before a national audience and that this exposure would ultimately benefit the country.1
 Subsequent posts will review Welch’s activities after the hearings and his background. I interviewed Fred Fisher and James St. Clair in 1986 and have reviewed many source materials that document the assertions in this post. If anyone wants to see the bibliography of these sources, I will do so in another post at the conclusion of this series. Just make such a request in a comment to this or the other posts in this series. By the way, after the hearings, Welch and St. Clair also had a private meeting with Supreme Court Justice Felix Frankfurter, who had been one of Welch’s law school professors at Harvard.
On June 5th the ICC’s Prosecutor, Luis Moreno-Ocampo, gave his semi-annual report to the U.N. Security Council.
He said the Court had “fulfilled its judicial mandate.The evidence collected uncovered the functioning of the State apparatus used to commit genocide, crimes against humanity and war crimes. Those who bear the greatest responsibility have been indicted [Sudanese President al-Bashir, its defense minister, former interior minister and a leader of the Janjaweed militia]. The current challenge is their arrest.”
The Prosecutor added, “President Al Bashir is taking advantage of his position of power to continue with his strategy and to ensure his own impunity and the impunity of those who follow his instructions.” That strategy, the Prosecutor stated, includes:
“threats to the international community to commit new crimes in other areas of the Sudan;
denial of his own crimes, denial of the rapes in the villages and in the camps; attributing the killings to banditry, sporadic clashes between rebel groups, or reducing its relevance through statistic comparisons; and attributing conditions in the camps to other factors like drought, lack of proper seeds or inability to access farming land;
forcing the international community into a never-ending negotiation in order to gain access to those displaced;
a permanent promise of a peace negotiation. The international community chases promises of peace agreements that are systematically ignored while President Bashir’s forces commits more attack and creates the conditions for new promises of peace agreements;
announcements of justice initiatives followed only by new announcements, not by action. After more than seven years of instituting judicial mechanisms, the . . . [government] has conducted no proceedings relevant to the crimes committed in Darfur; and
the open defiance of the Security Council’s authority including public announcement that its resolutions will not be implemented.”
The Prosecutor, therefore, suggested that the Council request all 193 U.N. member states or regional organizations to take action to enforce the arrest warrants.
The Council’s record of the meeting indicates that the Prosecutor’s report was supported by the representatives of the U.S., the U.K., France, Germany Portugal, Colombia, Guatemala and Togo. More qualified support with emphasis on assisting negotiation of peace accords to end the fighting in Sudan/Darfur was expressed by Morocco, South Africa, Pakistan, Azerbaijan, Russia, India and China.
The session ended with a heated exchange between Moreno-Ocampo and the Sudanese Ambassador after earlier he had rejected the Prosecutor’s assertions as “fallacious.”
The Prosecutor said that he was advising the Council and putting the Ambassador on notice that his denial of crimes in Darfur “could be considered part of those crimes” and that the Prosecutor’s office had “an obligation to investigate anyone responsible for the commission of crimes.” Therefore, his office would investigate whether this denial “could be considered a contribution to a group of perpetrators acting with a common purpose” and would take appropriate action if the evidence supports such a contention.
The Sudanese Ambassador responded in Arabic (and translated into English) that this statement was “a violation of all political and diplomatic norms. It is a threat that should be rejected . . . and a statement of a terrorist who is trying to silence the voice of justice and [a statement] of a politician who does not recognize the political and diplomatic rules and norms that give us the right to defend ourselves and make our voices heard by the Council.” The Ambassador added that the Prosecutor “has tackled all of these issues–in a totally illegal, immoral and illogical manner, to the extent of intimidation and terrorization.”
Earlier posts have discussed various aspects of the ICC’s investigation of the Sudan/Darfur situation, including the Security Council’s referral of the Sudan/Darfur situation to the ICC in March 2005 during the George W. Bush Administration and the Prosecutor’s report to the Council in June 2011 with a comment to the latter about the December 2011 report to the Council.
The Army had many lawyers of its own, and it had a call on lawyers from the Department of Justice. Why then did the Army decide to hire a private attorney? The answer has not been discovered. One reason could be that the Army’s chief legal Counsel, John G. Adams, was included in the charges of improper conduct by McCarthy, and this presented a conflict of interest that prevented his representing the Army and other officials.
In any event, the Army did search for a private attorney. Its first choice, an unnamed prominent Washington, D.C. lawyer, declined the request because he had been associated with a person who might be vulnerable to a McCarthy smear.
Welch apparently was number two on the Army’s list. He was retained, pro bono publico (without fee), for the Army by Sherman Adams, President Eisenhower’s Chief of Staff, upon the recommendation of two Wall Street lawyers: Thomas E. Dewey, the former Republican Governor of New York and the Party’s presidential nominee in 1944 and 1948, and Bruce Bromley, a former New York State judge (appointed by Governor Dewey) and a senior litigation partner in the law firm of Cravath, Swaine & Moore.[i]
Bromley knew Welch and his reputation as an exceptional trial lawyer with the eminent Boston law firm of Hale and Dorr (now WilmerHale), where since 1919 he had been handling all kinds of commercial civil litigation in courts in New England. Bromley introduced Welch to Dewey, who after an interview joined in a joint recommendation of Welch. But Welch had no experience with national security or political matters, and like almost all lawyers of the time no experience in congressional hearings, especially those on national television. These facts, however, did not disqualify him and indeed may have been seen as qualifying characteristics.
Perhaps one reason for Welch’s selection was his being from Boston as was the first outside lawyer for the Committee, Samuel Sears, who immediately withdrew because of public comments he had made in favor of McCarthy. Before Sears’ withdrawal, however, Welch told him, “I want to talk with complete frankness. You and I can’t afford to have any holding out on the other. I want your confidence, and I want you to have my confidence, and I want to come out of this with each of us the friend of each other.”
Bromley’s recommendation of Welch suggests another possible connection between the two men. At the time, Bromley and his firm had been retained by the CBS television network to help it prepare for the anticipated counterattack by Senator McCarthy in response to programs attacking the Senator by Edward R. Murrow. Given how practicing lawyers operate, based upon personal experience, Bromley and Welch probably exchanged information and suggestions about doing battle against the Senator.
By the way, Murrow’s programs about McCarthy were at the center of the recent film, Good Night, and Good Luck. The film has a scene of Murrow (played by David Strathairn)and his show’s producer , Fred Friendly (played by George Clooney), watching a video clip of the famous 1954 clash between Senator McCarthy and Welch.
Before Welch accepted the offer to be counsel for the Army, he told his law firm partners that he had been asked “to undertake a grueling assignment. It will be long drawn out. I shall have to stay in Washington and I must take two of our best Juniors with me. In exchange, the Army will pay no fee and will not even pay travel and hotel expenses. Also, it is a dangerous assignment. Senator McCarthy is a powerful antagonist. If we have any skeletons in our closets let us say ‘No’ at once.” The partners then unanimously voted to accept the case. One partner ironically observed that another partner, Reginald Heber Smith, who was a national leader for legal aid, had “talked Legal Aid all his life, and now he has a Legal Aid client in the person of the Army of the United States.”
Although I have not found information as to why the Army apparently insisted on a private attorney’s undertaking this representation on a pro bono basis, the Army (and the Eisenhower Administration) may have wanted to avoid criticism by the public and Senator McCarthy of large fees being charged by a private law firm.
In any event, Hale and Dorr accepted the pro bono status. The firm regarded the matter as important for the public, but undoubtedly did not expect the hearings to last as long as they did. Their length obviously increased the cost to the firm; it had to have been a major drag on the firm’s finances for 1954. As Reginald Heber Smith later observed, “The cost was very heavy.” This engagement, however, subsequently added to the firm’s professional luster and undoubtedly helped in its recruitment of new lawyers and perhaps its retention by some clients.
Another reason for the firm’s pro bono role was not wanting to get sued by a McCarthy supporter in Boston over any fees it would have received if it were fee-for-service. After all, McCarthy was an Irish Catholic, and there were many of those in Boston, including the patriarch of the Kennedy clan (Joseph Kennedy), who was a McCarthy supporter, and his son, Robert F. Kennedy, was a lawyer for the Democratic members of the McCarthy committee.
Hale and Dorr thus entered the fray as a matter of public service. Reginald Heber Smith said at the time to Welch: “This is your most important case in your professional life; it is the most important case entrusted to the firm . . . . You were exactly right to accept it without pay. . . . Your opening statement to the press was perfect. Get the facts without fear or favor, present them in that same spirit. The American people are not frightened by mistakes because we all make them; but they are dismayed by what looks like lack of candor and double talk. You can remove this fog of miasma and doubt. Let the fresh wind of truth come in and do not be disturbed if it blows hard. After that the sun will shine.”
[i] From 1966 through early 1970, the author was a law clerk and associate attorney at the Cravath firm and worked with Judge Bromley. But I was unaware of the Bromley-Welch connection and thus never interviewed Bromley about his recommending Welch for this important engagement.
Attorney Joseph Welch’s legal representation of the Army in the Army-McCarthy hearings was a very difficult assignment. It was not a trial in a court with established procedural and evidentiary rules to resolve a dispute under known substantive legal principles before an independent judge or jury. That is where Welch had many years of experience. Instead it was a congressional hearing without such rules or substantive law and without an independent trier of fact under the lights of television cameras before a jury of millions of fellow citizens. That is something for which Welch had no experience. Nor did any other lawyer at the time. As a result, it is difficult to evaluate Welch’s performance as a lawyer in the hearings.
As we have seen in a prior post, Welch ultimately was successful in showing the nation the bad side of McCarthy’s personality and tactics and in helping to undermine the Senator’s influence and power. Welch’s folksy,understated manner played an important part in this TV drama. In that most important test of performance, Welch was successful. 
During the first weeks of the hearings, however, Life Magazine said, “many television viewers felt sorry for [Welch]—and even sorrier for anyone who was relying on his advice and assistance. He simply sat there, looking terribly tired and half asleep, and when he did speak up it was in a mild and apologetic tone of voice that seemed pathetically inadequate.”
Moreover, one of Welch’s clients, John G. Adams, who as an Army attorney had been personally attacked by McCarthy, thought that Welch was not doing a good job in defending him before the committee. Adams was being excluded from the daily meetings to prepare for the hearings, and Welch allegedly was making deals with committee counsel without Adams’ approval. In addition, Adams thought Welch was too much of a gentleman to conduct a rigorous cross-examination of McCarthy’s female secretary.
As a result, during the hearings Adams met with attorney Edward B. Burling of the eminent Covington & Burling law firm to see if it could represent Adams. Burling had Adams meet with one of the firm’s other partners, who said that Adams probably not want the firm to represent him because it was subject to potential smearing by McCarthy. One of its partners (Donald Hiss) was the brother of Alger Hiss, who had been convicted in 1950 for providing classified government documents to an admitted Communist, Whitaker Chambers.
After the hearings were over, Welch thought that he had made many mistakes and that the Army had not proved its case in the hearings. He privately said to fellow attorney Bruce Bromley, who had recommended him for this assignment, “Don’t think for a moment that I didn’t make bad mistakes because I did. Don’t think for a moment that I didn’t have gigantic anxieties that you were not aware of.” Edward Bennett Williams, the noted trial attorney and legal counsel for McCarthy, opined that the Army did not put forth a convincing case on the evidence.
In addition, in an October 1954 speech, Welch publicly admitted, “There were many times when I sat stunned and speechless, and [the public] said, ‘What patience the man has.’ When I sat in an agony of indecision, [the public] said, ‘How wise he is. . . .’ Sometimes I was so weary my mind was almost blank, and then some of [the public] would say, ‘How witty he is!’”
Welch also said after the hearings that he had been hampered by the setting: the palpable fear and hate in the room, the crowded hearing room, the TV cameras, being forced to be seated and being far from the witness. For one watching the videotape of the hearings today, it is difficult to appreciate the fear and the hate that were present in the country and in the hearing room.
It is also difficult today to grasp the importance of the hearings because the issues that were being debated seem trivial: whether McCarthy tried to pressure the Army to give special favors to David Schine; whether a photograph of Shine and the Secretary of the Army had been cropped and by whom; and whether a purported letter from the FBI was authentic. Welch’s notes of levity in the hearings makes one wonder whether this was his way of signaling to the public that these issues were not really that important.
At one of the hearings, Welch was questioning a McCarthy investigator on how a photograph of Schine had been cropped to show only Schine and Army Secretary Stevens. Welch asked the investigator, “Do you think this came from a pixie?” McCarthy interrupted to ask Welch what a “pixie” was. Welch retorted: a “pixie is a close relative of a fairy.”
At the time this was seen as an example of Welch’s clever wit. But it really was a double-entendre warning that McCarthy did not catch. Welch really was hinting that Cohn was a homosexual who was having an affair with Schine or maybe even with Senator McCarthy himself. (In the more recent Mike Nichols’ production of Tony Kushner’s Angels in America, Al Pacino plays Roy Cohn as a closeted homosexual dying of AIDS.)
Welch closed the hearings with these remarks: “I, alone, came into this room from deep obscurity. I, alone, will retire to obscurity. As it folds about me softly, as I hope it does quickly, the lady who listened and is called Judith Lyndon Welch [his wife] will hear from me a long sigh of relief. . . . I can say, as I have already indicated, that I could do with a little serenity. I will allow myself to hope that soon there will come a day when there will, in this lovely land of ours, be more simple laughter.”
Thereafter Welch wrote the Subcommittee’s lawyer, Roy Jenkins, “I think I cherish most the few words at the end of the hearing when you and I agreed that we had never had any really difficult moment. We did not always agree completely, but we seldom seriously disagreed and we never fought. To achieve that result in a room full of tensions required graciousness and good will; and while I would like to think my contribution approached half, I would be quick to say yours exceeded half.” (In response, Jenkins said, “I am going to write the lexicographers . . . so that the word ‘Welchian’ be incorporated as another synonym for the word ‘graciousness.’”)
Welch also wrote after the close of the hearings to Senator Karl Mundt of South Dakota, who chaired the subcommittee. Welch said Mundt “had an incredibly difficult assignment and there was no hope that you would please everyone. I do not claim I was always happy with what you did, but I do claim I was happy with every personal contact and proud to have the feeling that you and I are really good friends. I could not bear to have it any other way.”
During and immediately after the hearings Welch was always circumspect in what he said about McCarthy.
In 1959, however, Welch said that McCarthy was “the most completely fraudulent man I ever knew…. But for the life of me I never could figure out what he was up to. He seemed to me just a planless adventurer who seemed to me to get some sort of an adolescent joy out of thrashing around, making a loud noise, wounding people, and embarrassing the hell out of highly placed individuals. He seemed to me to take a sort of maniacal delight in selecting some highly honorable and dignified person in some high position, and at the lowest just scaring the hell out of him, and at the highest or at the worst destroying him.”
And in a 1957 speech Welch spoke out about the fear engendered by McCarthy and the appropriate remedy for same. “Eccentric conduct,” Welch said, “which ought only to produce a tolerant smile has instead provoked fear. Thoughts and words not in conformity with those of the great majority of our people have often brought a dissenter into hatred, ridicule, and contempt, or worse dangers.” Welch continued, “Fear is a painful and contagious disease. It is also a cumulative disease. A society beset by fear develops no immunity to fear. Instead it becomes more and more vulnerable, and fresh waves of fear sweep over the enfeebled patient, whose resistance to disease diminishes with each new attack.” Welch finished, “The cure for the malady of fear is found only in the sweet medicine of reason. And reason at its finest social form is law.”
 Subsequent posts will review President Eisenhower’s participation in the hearings, the Army’s hiring of Welch as its attorney, Welch’s activities after the hearings and his background. I interviewed Fred Fisher and James St. Clair in 1986 and have reviewed many source materials that document the assertions in this post. If anyone wants to see the bibliography of these sources, I will do so in another post at the conclusion of this series. Just make such a request in a comment to this or the other posts in this series.
In 1953 U.S. Senator Joseph McCarthy, Republican of Wisconsin, targeted Langston Hughes, a black writer, over his alleged communism.
Later that same year, McCarthy’s attention shifted to the U.S. Army when the Senator’s Senate Permanent Subcommittee on Investigations began an investigation focused on an alleged spy ring at the Army Signal Corps laboratory at Fort Monmouth, New Jersey. Those accusations, however, were not sustained, so McCarthy went after the left-wing affiliations of an Army dentist, Irving Peress, who had declined to answer McCarthy’s questions and who had been promoted to Major. After his commanding officer, Brigadier General Ralph Zwicker, a World War II hero, had given Peress an honorable discharge, McCarthy attacked Zwicker, but he refused to answer some of McCarthy’s questions, and the Senator verbally abused the General at the hearing. Army Secretary Robert Stevens then ordered Zwicker not to return to McCarthy’s hearing for further questioning. In an attempt to mediate this dispute, a group of Republican Senators, including McCarthy, met with the Secretary, who capitulated to virtually all of McCarthy’s demands. Afterwards the Secretary was a subject of public ridicule.
In early 1954 the battle between the Army and McCarthy continued when the Army accused McCarthy and his chief counsel, Roy Cohn, of improperly attempting to pressure the Army to give favorable treatment to G. David Schine, a former aide to McCarthy and a friend of Cohn’s and who was then serving in the Army as a private. McCarthy claimed that the accusation was made in bad faith, in retaliation for his questioning of Zwicker. The Senate Permanent Subcommittee on Investigations was given the task of adjudicating these conflicting charges. Republican Senator Karl Mundt, Republican of South Dakota, was appointed to chair the committee for this purpose, and what were known as the Army-McCarthy hearings convened on April 22, 1954.
This is when Boston attorney Joseph Welch entered the drama as the lead attorney for the Army and ultimately proved to be the Senator’s nemesis.
The hearings lasted for 36 days and were broadcast on live television by two networks to an estimated 20 million viewers. After hearing 32 witnesses and two million words of testimony, the committee concluded that McCarthy himself had not exercised any improper influence on Schine’s behalf, but that Cohn had engaged in “unduly persistent or aggressive efforts” in that regard. The committee also concluded that Army Secretary Stevens and Army Counsel John Adams “made efforts to terminate or influence the investigation and hearings at Fort Monmouth”, and that Adams “made vigorous and diligent efforts” to block subpoenas for members of the Army Loyalty and Screening Board “by means of personal appeal to certain members of the [McCarthy] committee.”
Of far greater importance to McCarthy than the committee’s inconclusive final report was the negative effect that the extensive exposure had on his popularity. Many in the audience saw him as bullying, reckless, and dishonest, and the daily newspaper summaries of the hearings were also frequently unfavorable.
The most famous incident in the hearings was an exchange between McCarthy and Welch on June 9, the 30th day of the hearings. Welch was cross examining Roy Cohn and challenging him to provide the U.S. Attorney General with McCarthy’s list of alleged Communists or subversives in defense plants “before the sun goes down.” McCarthy interrupted to say that if Welch was so concerned about persons aiding the Communist Party, he should check on a man in his Boston law office named Fred Fisher, who had once belonged to the National Lawyers Guild, which the Attorney General had called “the legal mouthpiece of the Communist Party.”
In an impassioned defense of Fisher, Welch immediately responded, “Until this moment, Senator, I think I never really gauged your cruelty or your recklessness …” When McCarthy resumed his attack, Welch interrupted him: “Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?” When McCarthy once again persisted, Welch cut him off and demanded the chairman “call the next witness.” At that point, the gallery erupted in applause and a recess was called.
The issue of Fisher’s membership in the National Lawyers Guild was not a surprise to Welch.
When Welch went to Washington, D.C. to start his work for the Army in April 1954, he took along two young associate attorneys, Fisher and James St. Clair. At an initial press conference, Welch unexpectedly mentioned their names while announcing that Welch himself was “a registered Republican and a trial lawyer. I am just for facts.”
That night over dinner, Welch asked Fisher and St. Clair if there was anything in their past that could embarrass them if they were to be involved in the matter. St. Clair had nothing to be concerned about. Fisher, however, told Welch that he had been a member of the National Lawyers’ Guild while in law school and that the group had been criticized for alleged links to communists. Welch immediately was worried and called President Eisenhower’s Press Secretary, James Hagerty, to alert him to the issue. Later that night, Welch and St. Clair met with Hagerty at a home in Georgetown, and they all concluded that Fisher should not be a member of the team. As a result, Fisher ceased work on the matter and returned to Boston. (Before the decision was made that Fisher should leave the team, Welch and others discussed the possibility of Fisher’s remaining on the team and if McCarthy attacked Fisher, Welch’s becoming outraged and turning the attack on McCarthy.)
Thereafter, St. Clair was essentially Welch’s only assistant. (St. Clair later became a leading partner at the same law firm and represented President Nixon in the litigation over the White House tapes.)
The next day Welch made a public announcement that Fisher was no longer involved and the reason for his withdrawal in an attempted preemption of any attack by McCarthy on Fisher and Welch. The New York Times reported this statement.
Soon thereafter, Senator McCarthy included the Fisher issue in the Senator’s “indictment” about the Army. It stated, “a law partner of Mr. Welch has, in recent years, belonged to an organization found by the House Un-American Activities Committee to be the ‘legal bulwark’ of the Communist party, and referred to by the Attorney General as the ‘legal mouthpiece’ of the Communists. This same law partner was selected by Mr. Welch to act as his aide in this matter, and was discharged only when his Communist-front connection became publicly known.” The Senator also let it be known that he planned to attack Fisher at the hearings. Thus, the issue did not die.
During the course of the hearings, Welch and St. Clair apparently had discussions with McCarthy’s representatives about McCarthy’s not mentioning the Fisher issue in exchange for Welch’s not discussing the non-existent military record of McCarthy’s aide, Roy Cohn. Welch and St. Clair say there was no agreement to such effect while Cohn and the Army’s regular attorney (John Adams) said there was. At least, it seems to me, there was an informal understanding between the two sides that there might be adverse consequences to the party that first raised one of these issues.
In any event, the night before the cross-examination of Cohn, Welch and St. Clair considered going into the issue of Cohn’s military record, but decided against it because it would be similar to McCarthy’s personal attacks. The next morning, before the hearing started, Welch or St. Clair told Cohn that he would not be examined about his military record.
Later that morning during Welch’s cross-examination of Cohn, McCarthy interrupted to raise the Fisher issue. Cohn apparently tried to signal McCarthy to stop talking about Fisher. Even though McCarthy persisted, Welch did not retaliate by going into Cohn’s military record. He did not do so, St. Clair says, because they did not want to stoop to McCarthy’s level and tactics. Instead, as previously mentioned, Welch made a vigorous defense of Fisher.
Welch maintained that he was surprised by the McCarthy attack on Fisher and that Welch had not prepared his response. However, given the prominence of the Fisher issue and the bullying tactics of McCarthy, Welch must have thought that such an attack was possible. Moreover, during the course of the hearings before the actual attack on Fisher, Welch and St. Clair called Fisher from time to time to say that McCarthy had said he would tell “the Fisher story” and that Fisher should be prepared for same.
Any competent lawyer in that situation would have contingency plans at least in the lawyer’s own mind about what to do if the attack came. The videotape of this famous exchange shows an unperturbed Welch delivering his oft-quoted remarks without apparent emotion, supporting the notion, in my judgment, that Welch was not surprised and had prepared his remarks.
Indeed, some of the participants thought that Welch’s questioning of Cohn was designed to goad McCarthy into talking about Fisher and that Welch had rehearsed his defense of Fisher. For example, Roy Cohn said Welch’s conduct that day was “an act from start to finish.” It started with Welch’s “sarcastic, sneering, coaxing, taunting” insistence that Cohn and McCarthy rush to find communists “before the sun goes down.” McCarthy’s raising the Fisher issue, Cohn insisted, “played squarely into Joe Welch’s hands.” And one of Welch’s clients, John Adams, agreed: “Welch was a master actor. He was . . . conducting a theatrical performance.” Immediately after the hearing that day, Welch was overheard saying to another lawyer, “How did it go?”
Later that same day, Welch was observed crying outside the hearing room. Some thought it was provoked by the attack on Fisher. Cohn thought it was an act to engender sympathy for Fisher and the Army. I wonder whether they were genuine tears of anguish for Welch’s possibly baiting McCarthy to tell “the Fisher story,” i.e., for using Fisher to make a point for the client. There is no evidence to support any of these interpretations.
Soon after this encounter, Welch wrote to Fisher, “I have an agony of apprehension that I did less for you than should have been done. [But] I did all in my power. I allow myself to hope [the attack] did you little, if any harm. It could even be that it will do you good. I pray it does.”
Fisher subsequently issued a public statement acknowledging his membership in the National Lawyers’ Guild from 1947 through February 1950, when he resigned because of disagreement with its activities. He also expressed his concern over the possible effect of the attack on his reputation and his ability to make a living for himself and his family. (In fact, the attack toughened Fisher, and he went on to a distinguished legal career at the same law firm, eventually specializing in bankruptcy law. He was active in the American and Massachusetts bar associations, serving the latter as president in 1973, and in the Republican party.)
Near the end of that same year, the Senate passed a resolution condemning the Senator’s conduct, and Welch often was credited with hastening the downfall of McCarthyism.
Subsequent posts will review other aspects of Welch’s representation of the Army in the hearings, President Eisenhower’s participation in the hearings, the Army’s hiring of Welch as its attorney, Welch’s activities after the hearings and his background.
 I interviewed Fred Fisher and James St. Clair in 1986 and have reviewed many source materials that document the assertions in this post. If anyone wants to see the bibliography of these sources, I will do so in another post at the conclusion of this series. Just make such a request in a comment to this or the other posts in this series.