Edward B. Burling, The Federal Government Attorney, 1917-1918

This series about the life of Edward B. Burling commenced with a post about his connections with Katherine Graham, the owner and publisher of the Washington Post, and then retreated in time to a post about his birth and early years in Iowa, 1870-1890, followed by a post about his four years at Harvard University in Cambridge, Massachusetts, 1890-1894 and another about his 22 years as a Chicago attorney, 1895-1917.[1]

The Federal Government Attorney

In 1917, at age 47, Burling finally did manage to leave Chicago to go to Washington, D.C. Though the urging of a law school friend, he became a lawyer for the U.S. Food Administration,  which was an agency for the purchase and sale of foodstuffs and stabilizing the U.S. market price of wheat and which was directed by Herbert Hoover, another native Iowan from the small town of West Branch and, of course, a future U.S. President.

However, the two men did not get along with one another, and Ned immediately left this position to be a lawyer (and then General Counsel) for the U.S. Shipping Board, which was responsible for organizing U.S. shipyards during World War I, a position he held through the end of the war in 1918.

Burling relished the life of a top government lawyer. As he said at the time to his friend Learned Hand, “It’s like expecting a country girl who has spent her entire life milking cows to go back contentedly after she has been to the city–seen the bright lights and been screwed. That’s the way I feel–my first big screw. And I want more of it.”

At the Shipping Board Burling crossed paths with another future Grinnell College luminary, Joseph Welch, then one of its young lawyers.  Welch later observed that in 1918 he was 28 while Burling was 48 and whenever he wrote a letter for Burling’s signature, Ned’s “first act was to seize a pen and sign it. Then you would read it and often suggest a change. But that beautiful gesture of confidence gave me so much happiness,” and Welch thereafter emulated that practice.[1]

Later Connections Between Burling and Joseph Welch

Parenthetically, 36 years later, in 1954, their paths again crossed, albeit indirectly.  One of Welch’s clients in the Army-McCarthy hearings at that time, John G. Adams, thought that Welch was not doing a good job in defending him before the committee. As a result, Adams met with Burling to see if Covington & Burling could represent Adams. Burling’s response: Adams probably would not want the firm to represent him because one of its partners (Donald Hiss) was the brother of Alger Hiss, who had been convicted in 1950 for having provided classified documents to an admitted Communist, Whittaker Chambers. Having Burling’s law firm represent Adams, it was suggested, would leave the firm and Adams open to an attack by McCarthy. As a result, the law firm did not enter the McCarthy arena.

Indeed, the law firm’s connections with Donald and Alger Hiss were deep. In July 1949 Alger Hiss’ federal-court trial for perjury for testimony before the House Un-American Activities Committee ended in a hung jury, splitting 8 to 4 for conviction. Burling and his law partners were upset by the lack of an acquittal, and Burling thought Hiss’ well known attorney had made serious errors in defending the case.[2]

Conclusion

The next installment in this series about Burling will be a summary of his distinguished career as a Washington, D.C. attorney in private practice, 1919-1966.

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[1] Citations to the sources for this post are found in this blogger’s Edward Burnham Burling, The College’s Quiet Benefactor (April 2008)(18-page essay and bibliography; on file in Grinnell College’s Special Collections and Archives).

[2] Posts about Joseph Welch are listed in the “Joseph Welch and Senator Joseph McCarthy” section of List of Posts to dwkcommentaries—Topical: United States (HISTORY).

 

 

 

 

 

 

 

 

 

 

 

 

 

The U.S. Army’s Hiring of Attorney Joseph Welch for the Army-McCarthy Hearings

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.

Sherman Adams
Thomas E. Dewey
Bruce Bromley

 

 

 

 

 

 

 

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.”

Edward R. Murrow

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.

David Stratheim as Murrow
George Clooney as Friendly

 

 

 

 

 

 

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 Performance at the Army-McCarthy Hearings

Joseph Welch

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. [1]

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.”

John G. Adams

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.”[1] 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.”

Al Pacino as Roy Cohn

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.”


[1] 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.