Fighting Joe McCarthy: The Owen Lattimore Case

Arnold & Porter Article

The Owen Lattimore case was the most politically-explosive of all the pro bono efforts of the firm.

It began simply enough. Lattimore was an eminently obscure expert on Asian affairs. He had never held US government office. In late March of 1950, he was laboring in the highlands of Afghanistan on a minor UN mission when Senator Joseph McCarthy denounced him as the "top Communist espionage agent."

Within hours Lattimore's wife was in Abe Fortas' office. Fortas asked one question: Would Owen fight? Eleanor Lattimore said he would. The firm was committed. Fortas hardly suspected what that commitment would mean to the new firm.

Not that there could have been much doubt that Lattimore was in for a vicious struggle. The nation was near hysteria. China, one of the Big Five of the United Nations in World War II, had within a few years of the 1945 victory been "lost" to Communism. The Russians had the bomb, courtesy of the Rosenberg spy ring. Alger Hiss, a senior Treasury official, had been convicted of perjury for denying that he too had been a Soviet agent. McCarthy was riding a wave of national paranoia. His extravagant claims of Communist infiltration struck a responsive chord. Palpably, to Fortas - and to Porter and Arnold who quickly signed on as well - the firm was in for the fight of its young life. But no one foresaw how long that fight would last.

Lattimore returned from Afghanistan posthaste, and, with the furious, icy tenacity which became his hallmark, rose to his own defense. With the firm's help, he publicly denounced McCarthy's accusation in an extended rebuttal which was front page nationwide. Within a month, following the testimony of several former Communists - some of whom claimed Lattimore was indeed an agent; others, enlisted by Fortas, who denied it - Lattimore himself appeared before a Congressional investigative committee chaired by Senator Joseph Tydings.

His testimony, hammered out in the firm's offices, was a triumph - though Lattimore was no model of senatorial decorum; he called his accusers "crackpots, professional informers, hysterics and ex-Communists . . .," and went on to a direct attack on McCarthy and his allies.

"Unlike McCarthy I have never been charged with a violation of the laws of the United States or of the ethics of my profession . . . Unlike Budenz and Utley, I have never been a member of the Communist Party . . . Unlike Budenz, I have never been engaged in a conspiracy to commit murder or espionage . . ."

The Tydings Committee gave Lattimore a clean bill on July 17, 1950.

But not before Kim Il Sung had launched the armies of North Korea across the 49th parallel and head on into Seoul and the US Army. Involvement of American forces in the fighting on the Korean Peninsula intensified the national hysteria and overwhelmed the favorable Tydings Report. Within a year, Lattimore was back before another Congressional committee, this one led by a charter member of the China Lobby, Pat McCarran, again with A&P at his side.

The McCarran Committee, card-carrying anti-Communists to a man, began its inquisition on July 25, 1951. The charges targeted on Lattimore were vicious indeed, all based on the circumstantial testimony of the same former Communists paraded by McCarthy before the Tydings Committee, witnesses that in a rational society, addressing a less controversial issue in a less insane moment, would have been discredited before they opened their mouths. Everyone in the firm was enlisted in the fight, investigating one charge after another, preparing press statements daily, dogging the FBI's madcap efforts to find something to support the accusations of Lattimore's accusers.

He finally got his public opportunity to respond, with Fortas and Arnold at the witness table with him, in what was and remains the longest grilling of an individual by a congressional committee in the history of the Republic - and the most disgraceful. Arnold and Fortas were kept on a short leash by the Chairman, permitted only to counsel the witness but not to object or examine. Lattimore's performance was bravura - and more testy and critical of the Senators than some thought wise.

The Committee, as Thurman Arnold pointed out in his Fair Fights and Foul, was armed with the voluminous files of the Institute of Pacific Relations. The Committee's questioning was not, Arnold said, "to obtain information, but for the purpose of entrapment." And, in spite of Lattimore's prodigious memory, the entrapment worked with respect to a few minor dates and meetings. The July 2, 1952 report of the Committee accused Lattimore of having been a "conscious articulate instrument of Soviet conspiracy," and engineering a change of US policy toward the Communists in China following World War II - and of having lied to the committee to cover his tracks. McCarran recommended perjury charges.

The Department of Justice was ready to comply. In December 1952, Lattimore was indicted for perjury on six counts of memory failures - and of denying that he was a "sympathizer" of communism.

The firm responded to the challenge with the same dedication it had displayed throughout the congressional inquisition. Once again supported by the full resources of the firm, Arnold filed a motion to dismiss, concentrating his fire on the sympathizer charge as unconstitutionally vague. The argument found favor with District Judge Luther Youngdahl; on May 2, 1953 he dismissed four counts of the indictment.

The Department of Justice appealed. The firm's brief in response labeled the prosecution "unique in the history of perjury. It brings into this court a meaningless and trivial residue of a once-sensational espionage charge culled from the transcript of the longest congressional interrogation of one man ever conducted."

The Court of Appeals upheld the dismissal of the vital first count, endorsing the firm's constitutional argument of vagueness. "Sympathizer," it held, could mean anything.

Justice refused to give up. In October of 1954 it secured a second indictment. This time the central charge was that Lattimore had lied when he denied he had followed the "Communist line." Justice this time relied on an encyclopedic FBI exegesis of every word Lattimore had ever published to show that he and Moscow agreed on some issues - for example, the desirability of ending European colonialism in Asia. The firm responded with an equally thorough analysis.

Then Justice dropped another bomb. It accused Youngdahl of bias and asked him to recuse himself. He refused, after bitter briefing and argument.

Arnold then presented the case on the merits. To the consternation of the Lattimores, he regularly confused Mongolia and Manchuria in oral argument, but it diluted the force of his legal analysis not one iota. Once again Youngdahl dismissed, though only after some months of delay during which the firm had no alternative but to prepare the massive case for trial. The effort, however, provided unnecessary. The Court of Appeals affirmed Youngdahl without opinion, 4 to 4, on June 14, 1955. Two and a half years of frenzied, bitter, precedent-making litigation had come to an end.

The firm continued to counsel Lattimore on his tax and estate affairs and his occasional passport difficulties. Embittered by McCarthite America, he went to England to teach, and traveled frequently to his former haunts in Central Asia and China.

An article in the New Republic summed it up:

". . . we cannot afford another Lattimore case. Certainly no other private litigant will be likely to find a law firm like Arnold, Fortas and Porter which will take such a case without fee . . . . But in a broader sense the cost has been too high. The perjury case against Lattimore grew out of a political prosecution. It was forwarded by improper political pressure. Now finally, the attackers seem a little ashamed, as they wipe their eyes and feel the passing of the fever in whose grip they did so much that was ignoble. Luther Youngdahl has won his fight; and so have we, and liberty."

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