Part 20

McCarthy didn’t get around to Lamont’s citation for contempt until the following July. In between, he had found bigger game. On January 30th, Major Irving Peress, an army dentist, had refused to answer some questions put to him by the Wisconsin Senator on the ground that his answers “might tend to incriminate me.” Three days later, Peress was given an honorable discharge and became, posthaste, the Fort Sumter of his time. When McCarthy, in a temper tantrum over Peress’ recent promotion to major, told Brigadier General Ralph W. Zwicker, who had distinguished himself at the Battle of the Bulge, that he was “a disgrace to the uniform [and] not fit to be an officer,” the long-simmering conflict between the Senator and the Administration was in the open. On February 21st, Secretary of the Army Robert T. Stevens finally screwed up his courage and condemned what he termed “the humiliating treatment” Zwicker had received, and the White House followed suit on March 3rd when it announced that no officer was required “to submit to any kind of personal humiliation when testifying before Congressional committees or elsewhere.” Indian Charlie’s knee had found its target at last.

A week later, Stevens released a thirty-four-page report which, in effect, accused Frank Carr and Roy M. Cohn, the subcommittee’s chief counsel, of persecuting the Army for its failure to defer or commission G. David Schine. In retaliation, McCarthy asserted that Stevens and his generals were holding Schine as a “hostage” in order to prevent a thorough investigation of the Fort Monmouth personnel. The net result--thirty-six days of testimony, 187 hours of televised proceedings, thirty-two witnesses, and 7424 pages of transcript. The hearings, which were conducted before the temporarily McCarthy-less Permanent Subcommittee, made Joseph Welch famous, established “point of order” as a household phrase, cost both Cohn and Carr their jobs, and started the soybean trader from Appleton on his Retreat from Monmouth. Although the major charges of both sides went largely unsubstantiated, it was clear, as a suddenly fearless Stuart Symington told the two-penny Torquemeda (and a national television audience) that no one was “afraid of anything about you” anymore. Apparently, Joe Welch wasn’t the only one who “had never really gauged your cruelty or your recklessness....” The bubble had, at long last, resoundingly burst.

It was at this ticklish moment in his career that McCarthy urged his fellow Senators to cite Lamont for contempt. On July 16th, four days before Cohn’s resignation, he introduced Resolution 281, which asked the President of the Senate to forward the Lamont case “to the United States Attorney for the Southern District of New York to the end that the said Corliss Lamont may be proceeded against in the manner and form provided by law.” Accompanying the resolution was a carefully edited version of the Lamont testimony, which omitted any reference to the affirmation incident or the discussion of the adjournment date. Apparently, photographs weren’t the only things that could be cropped if one had a talent for that sort of business.

It wasn’t until August 11th that McCarthy’s resolution reached the top of the Senate agenda. Nine days earlier, Senator Ralph E. Flanders’ Resolution 301 to censure his Wisconsin colleague had been referred to a select committee of three Republicans and three Democrats, headed by Utah’s austere Arthur V. Watkins. This didn’t seem to faze McCarthy, who blithely informed his brethren that he had received an opinion from the Attorney General that the matter of Lamont’s recalcitrance “could well be submitted to the grand jury for indictment.” When New York’s Lehman let it be known that he intended to object to any summary treatment of the resolution, McCarthy suddenly remembered that he had left a “number of witnesses” simmering in the committee room, and hurriedly left the chamber.

Because of Lehman’s objections, it was not until August 16th that full debate began on the Lamont citation. The late Senator Langer, with McCarthy baying at his heels, spread on the pages of the Congressional Record the complete story of the adjournment of the September hearing to one o’clock on the afternoon of the following Monday, and the subsequent telegrams which postponed it until further notice. McCarthy’s defense was that Lamont had been “told by telephone that if he wanted to appear and purge himself of contempt, Monday would be the deadline....” It was simply a case of a refusal to take advantage of some misguided but well-intended official benevolence. Besides, why all the furor about this “very wealthy man, not in his own right, but through inheritance,” who had “done more to damage this nation than any other man in the country, with the possible exception of Frederick Field.”

Langer didn’t seem particularly concerned with the size of Lamont’s bank roll. Observing that the only thing in which he was interested was “fair play to the witness,” the Senator from North Dakota hammered home his thesis that McCarthy had been guilty of a gross misstatement when he had announced on September 28th that “Mr. Lamont has not been subpoenaed.” Just read the telegrams of September 25th, he urged his fellows: what could be plainer than the words “You are under continuing subpoena”? Obviously, there was little a body could say about that and the Badger State’s junior Senator slipped out the back of the Senate chamber.

He returned shortly after Langer had yielded the floor to Lehman who decided to explore McCarthy’s insistence that Lamont explain why he chose to affirm rather than take an oath. With a fat tongue in a fat cheek, McCarthy assured the Senators that he was certain that Lehman was “not doing it at all purposely” when he had misinformed them. The real truth of the matter was, he told them, that, while a witness had the right to affirm, he had to state that he had religious scruples against an oath. This was too much for New Mexico’s Chavez whose Jesuit law school training had taught him that there was no difference between swearing and affirming, and that neither had to be explained.

But Lehman’s real argument against the proposed citation had nothing to do with whether a man took an oath or not. He reminded the Senate that another case--_United States v. Emspak_--which involved the extent of Congressional investigating powers, was pending before the Supreme Court. Since he was certain that its decision would be handed down in “a reasonable number of months” (it took eight), he saw no reason for not adjourning the proposed citation for a little while. McCarthy, who had been pleading with Lehman to yield the floor, could restrain himself no longer. Why, this man Lamont, he reminded his friend from New York, has never reformed. “He is the same tool of the Communist conspiracy.” Did the Senator realize that, as late as May of 1954 the witness had had the effrontery to attack “every committee that has ever exposed a Communist from the committee headed by Martin Dies, down to date?” Such a man was totally unworthy of any Senatorial support.

Just as it looked as if Lehman was getting somewhere, pro-citation help arrived from an unexpected quarter. Leverett Saltonstall heaved his lanky bulk out of his chair and persuaded the New Yorker to give him a moment. He had known Lamont since the latter was ten years old. He had nothing but respect for his parents and his brothers but, as for Corliss, he was “different from his brothers,” who were doing very nicely indeed. The difference, as he explained it, seemed to lie in the fact that “he is a man who has very firm opinions.” Naturally, the Senator from Massachusetts thoroughly disagreed with those opinions, notwithstanding their firmness. In fact, on one occasion, he had come to blows with Lamont over his unorthodox views. The best thing the Senate could do “would be to cite him for contempt and let the court decide on the issues and the facts as we have presented them here tonight.” The successor to Sam Adams, John Hancock and James Otis had spoken.

After Wayne Morse had nobly declaimed that “we, as Senators, owe it to our committees to support them when they come to the floor of the Senate and make a prima facie case in support of a contempt citation,” Lehman made his final pitch. He didn’t believe that the record justified Lamont’s citation. “I very much fear,” he said, “that very serious results may ensue if we permit the record to remain unchallenged and merely say that because a committee brings in a resolution of citation for contempt, the Senate should, in the natural course of events, vote in favor of such resolution. I regard it as a very dangerous procedure.”

But, despite a last ditch stand by Langer, Senator Thomas H. Kuchel, who was presiding, finally put the matter to a vote. The result was seventy-one yeas and three nays. Only Messrs. Chavez, Langer and Lehman voted against the citation. On October 14th, a Federal grand jury in New York, in Indictment No. C 145-216, accused Lamont of refusing to answer the twenty-three questions that McCarthy had asked him one year and three weeks before. The next day, the defendant pleaded not guilty and was released on $1000.00 bail. The gauntlet he had thrown down in the same courtroom on a sunny fall day in 1953 had at last been picked up.

But the junior Senator from Wisconsin was hardly in a position to gloat over his triumph. Three weeks before Lamont’s indictment, the Watkins Committee had unanimously recommended that the man from Appleton be censured by his colleagues. In its report, the Select Committee, which had been handpicked by Vice-President Nixon, stated that McCarthy had been guilty of contempt of the Senate and had flagrantly abused General Zwicker. It wasn’t until the beginning of December that the upper house, by vote of 67 to 22, got around to “condemning” rather than “censuring” him, mainly for his attack on the Select Committee itself. Five days later--on the thirteenth anniversary of the Japanese bombing of Pearl Harbor--“Tail Gunner Joe” retaliated by apologizing to the American people for supporting Eisenhower in 1952. A man guilty of such a “shrinking show of weakness” just wasn’t fit to occupy rent-free government quarters at 1600 Pennsylvania Avenue.

On October 29, 1954, Wittenberg moved to dismiss the indictment against his client on fifteen grounds, the most important of which were his claims that no Congressional committee had the constitutional right to interfere with a private citizen’s First Amendment rights, and that the Permanent Subcommittee was not authorized to conduct its investigation of Lamont. Four weeks later, Wittenberg and J. Edward Lumbard, the United States Attorney, took all day to argue their respective points before District Judge Edward Weinfield. Then they sat back and waited for him to make up his mind, a process that was to take two days short of eight months.

While Weinfield’s meditations were in progress, the _Emspak_ case, which Lehman had tried to use as a roadblock the preceding August, was decided by the Supreme Court. In it and a companion case--_Quinn v. United States_--Chief Justice Warren put a brake on the powers of Congressional committees. “The power to investigate,” he said, “... is also subject to recognized limitations. It cannot be used to inquire into private affairs unrelated to a valid legislative purpose.” With what many observers believed was a judicial slap at the suddenly vulnerable gentleman from Wisconsin, Warren let it be known that the Court would accept nothing less than a rigid adherence to what he called “minimal procedural standards” as far as legislative investigating committees were concerned.

On July 27, 1955, Weinfield announced his decision. He agreed with Wittenberg that, since the indictment did not allege that Lamont’s refusal to answer the twenty-three questions was wilful, it was fatally defective. But he refused to rest his opinion on the safe ground of improperly drawn charges. He found that there was no evidence that the Permanent Subcommittee ever had the authority to conduct an inquiry of Lamont--or of other witnesses for that matter. Lastly, even assuming that McCarthy had the power he claimed, the judge wasn’t convinced that the Lamont interrogation was within the scope of that power or that any of the questions were pertinent to an investigation of “Communist Infiltration into the Army.” One week later, Senator Langer, with the pious observation that he hoped that “we shall stand fast in following our conscience and doing what is right, in accordance with the truth, in any matters which may develop, even though such a course may be unpopular,” obtained unanimous consent for Weinfield’s opinion to be printed in the Congressional Record.

But there was still some life left in the prosecution. Paul W. Williams, Lumbard’s successor, decided to appeal to the United States Court of Appeals for the Second Circuit, a redoubtable bench that sat three floors above Weinfield’s courtroom. The arguments were much the same as they had been in the District Court. The Government insisted that “wilfullness” was not an element of Lamont’s crime and that it did not have to allege that the McCarthy subcommittee was “duly empowered” to hold its hearing. Wittenberg, on the other hand, was content to ride along with Judge Weinfeld’s interpretation of the law.

On August 14, 1956, the three judges on the appellate court affirmed the dismissal on the somewhat narrow ground that the Permanent Subcommittee on Investigations did not have the authority to venture down the path along which its chairman had led it. This, they reasoned, made the defendant’s First Amendment objections moot. _Ad quod non fuit responsum._

Williams made no effort to ask the Supreme Court to review the adverse ruling, and, on September 13th, a consent decree was entered, ending the case against Dr. Lamont. Just ten days short of three years since he had refused to answer McCarthy’s twenty-three questions, the taciturn witness was home free. At long last, the rampage was officially over. As the _Hartford Times_ editorialized, “It is all couched in quiet judicial language, of course, but what it really says is that Senator McCarthy and the Committee were asking questions about things that were none of their business.”

When it became clear that the Government had no intention of carrying the case any further, Lamont told the press that “I am very glad that my court battle has resulted in hammering another nail into the political coffin of Senator McCarthy.” But the Lamont case had little to do with what Richard H. Rovere has referred to as the “interior collapse” which had afflicted Timothy and Bridget McCarthy’s fifth child after the Army hearings. For the last two and a half years of his life, he was back where he had been before the Wheeling revelations, a dispirited jackstraw who began to spend more time in the hospital than he did on the floor of the Senate.

On April 28, 1957, he entered the Naval Medical Center at Bethesda, Maryland, with what his wife described as a “knee injury.” Later, his condition was diagnosed by the Navy doctors as “peripheral neuritis.” At 6:02 on the evening of May 2nd, he died of “acute hepatic infection,” which his enemies intimated had been caused by an overabundance of bourbon. After a funeral in the Senate chamber, he was flown back home to Appleton where he was buried in the cemetery of St. Mary’s Church, a rather pretty spot overlooking the meandering Fox River. The golden years were over.

But if Lamont, as an individual, had no more to do with McCarthy’s overnight submergence than did Annie Lee Moss, Irving Peress, Ralph Zwicker, Owen Lattimore, and the others who had to endure his bad manners, churlishness and downright lunacy, he was very much a part of the cumulative evidence against the grand inquisitor. Too many scalps too soon might have been Indian Charlie’s considered verdict. In the last analysis, it was probably the conservatives who defeated McCarthy, but it was only when they became frightened at what might be the logical extension of his maltreatment of those who could hardly be classed as toilers in their vineyards that they finally closed ranks and smoked out the Big Bad Wolf from Shawano County. American populism would have to find some way to get rid of the Lamonts before it found another champion.

10

_Five Against God_

Steven I. Engel, Daniel Lichtenstein, Monroe Lerner, Lenore Lyons and Lawrence Roth

_versus_

The Board of Union Free School District Number Nine, New Hyde Park, N. Y.

In the fall of 1951, the Board of Regents of the University of the State of New York, which included members of the three major religious faiths, unanimously adopted a twenty-two-word non-denominational prayer for use in the public schools. “Almighty God,” it read, “we acknowledge our dependence upon Thee and we beg Thy blessings upon us, our parents, our teachers and our Country.” In recommending the prayer to local school districts, the thirteen Regents suggested that it be recited in conjunction with the pledge of allegiance to the flag. “We are convinced,” they said, “that this fundamental belief and dependence of the American--always a religious--people is the best security against the dangers of these difficult days.”

On July 8, 1958, the five-member Board of Education of the Herricks Union Free School District in New Hyde Park, a Long Island suburban community, some twenty miles due east of New York City, by a vote of four to one, adopted a resolution “that the Regents’ Prayer be said daily in our schools,” and directed District Principal Lester Peck “that this be instituted as a daily procedure to follow the Salute to the Flag.” The board’s action was duly reported in _On Board_, its official bulletin, which was distributed to all taxpayers in the district. Lawrence Roth, a plastics manufacturer who had moved to Long Island from New York City seven years earlier, was one of the issue’s most interested readers.

Roth, a slim, bespectacled man in his middle forties, whose sons, Joseph and Daniel, attended two of the district’s seven schools, was distressed by the board’s action. Although he had been vaguely aware that there was some pressure to introduce the Regents’ Prayer into the district’s schools, he also knew that six previous attempts to do so had failed. The school board’s sudden about-face caught him completely by surprise but, being what his lawyers were later euphemistically to call a “non-believer,” Roth was deeply disturbed by the prayer’s implications. His two sons, who were ten and thirteen years old, shared his religious views, and he was concerned with their spiritual and psychological reaction to the new prayer that was scheduled to start in September.

Roth began to discuss the problem with a Catholic neighbor who shared a seat with him on the commuter train to New York City which left the Long Island Railroad’s Albertson station in Rosalyn Heights at 7:03 each morning. It wasn’t long before the plastics manufacturer realized that his knowledge of the United States Constitution as it affected church-state relationships was extremely limited. When his commuter friend recommended that he contact the New York Civil Liberties Union, Roth called that organization at once and spoke to George Rundquist, its energetic director, who suggested that he drop in for a chat at his earliest convenience.

In early August, Roth, who was now more uneasy than ever about the Regents’ Prayer, arrived at Rundquist’s ninth-floor office on lower Fifth Avenue. Although the latter shared Roth’s doubts about the prayer’s constitutionality, he pointed out that any legal action to invalidate it would almost certainly subject Roth and other parents who might join with him to strong community pressures. “You will be hated and despised by most of your neighbors,” Rundquist told his caller, “and your children will have to face the scorn of many of their classmates. But if you are willing to endure all of this, I’ll query our board of directors.” Roth nodded his head. “I’m willing,” he replied firmly.

On September 4, Rundquist sent a memorandum to the members of his board which detailed several items on the proposed agenda for their regular monthly meeting five days later. Item II read as follows:

Regents’ Prayer For Public Schools

The Situation:

On July 8 the School Board of the Herricks Union Free School District (Nassau County) voted that the school day shall be opened by recitation of the following prayer, recommended by the Board of Regents in November, 1951: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.”

At the time that the proposed prayer was released the NYCLU, along with many civic organizations, expressed its opposition to reciting this prayer in the public schools through a public statement to the press and a letter to the New York City Board of Education (December, 1951). We also requested that the matter be considered at a public meeting so that we might have an opportunity to present our views on the matter.

Because of public reaction to the Regents’ proposal, the New York City Board of Education took no action until January 15, 1953. At that time, it adopted a resolution that students sing the fourth stanza of “America” each school day, following the Pledge of Allegiance: ‘Our fathers’ God, to Thee/Author of Liberty/To Thee I sing/Long may our land be bright/With freedom’s holy light/Protect us by Thy might/Great God, our King.

The Question:

Should the NYCLU adhere to the policy adopted in 1951? If so, shall we implement our position by supporting a group of residents in the Herricks School District who seek to enjoin the School Board from proceeding with the recitation of the prayer?

The 1951 letter to which Mr. Rundquist referred had been sent to Maximilian Moss, the President of the New York City Board of Education. In it, John Paul Jones, then the Union’s chairman, had asked for a public hearing before the Regents’ Prayer was considered. “Our opposition,” Jones had written, “is based in law upon the ruling of the United States Supreme Court that neither a state nor the Federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or proffer one religion over another. The Union believes that the proposed non-denominational prayer falls within the ban of the First Amendment as thus interpreted by the Supreme Court.”

Jones was quick to point out that his organization had no objection to programs devoted to spiritual teaching, but that, since it was impossible to present such programs without interpretation, they would inevitably lead to the expression of sectarian points of view. “Our opposition to the proposal of the Regents is not opposition to the teaching of religion,” he concluded. “But it is the belief of the Union that the teaching of our spiritual heritage, through prayer and special programs, is the function of religious leaders and of parents and not the proper function of public school teachers conducting classes in a public school supported by public funds.”

On September 9, Rundquist reviewed the situation for the Union’s Board of Directors at their regular luncheon meeting at a midtown hotel. While several of his listeners thought that it would be wiser to work through the legislature rather than the courts, the majority voted to assist Roth and his neighbors with legal help. “It was moved and passed,” the minutes of the meeting read, “that we re-affirm our 1951 position in opposition to the prayer and, assuming that we have counsel willing and with time to take over, that we intervene in the case.”