Karl Mundt – dwkcommentaries

Attorney Joseph Welch’s Performance at the Army-McCarthy Hearings

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.”

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.”

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.

U.S. Senator Joseph McCarthy’s Nemesis: Attorney Joseph Welch

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.

Joseph Welch and Senator McCarthy

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.[1]

[1] 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.