A
Mockery of Justice—The Great Sedition Trial of 1944
By Michael Collins
Piper & Ken Hoop
According to historian Harry Elmer
Barnes—this magazine’s namesake— who was one of FDR’s leading critics
from the academic arena, the purpose of the Great Sedition Trial was to
make the Roosevelt administration “seem opposed to fascism” when, in
fact, the administration was pursuing totalitarian policies. Too few
Americans today know of this travesty, a shameful blot on U.S. history.
Judges and lawyers alike will tell
you the mass sedition trial of World War II will go down in legal
history as one of the blackest marks on the record of American
jurisprudence. In the legal world, none can recall a case where so many
Americans were brought to trial for political persecution and were so
arrogantly denied the rights granted [guaranteed—Ed.] an American
citizen under the Constitution.”1
This is how the Chicago Tribune,
then a voice for America First in a media world already brimming with
internationalism, described the infamous war time “show trial” and its
aftermath.
“The Great Sedition Trial” formally came
to an unexpected halt on November 30, 1944, having been declared a
mistrial upon the death of the presiding judge. Yet, the case continued
to hang in limbo with Justice Department prosecutors angling for a
retrial.
However, on November 22, 1946, Judge
Bolitha Laws of the U.S. District Court for the District of Columbia,
dismissed the charges against the defendants, saying that to allow the
case to continue would be “a travesty on justice.”2
Although the Justice Department
prosecutors appealed the dismissal, the U.S. Circuit Court of Appeals
for the District of Columbia upheld Judge Laws’ ruling and, as a
consequence, the saga of the Great Sedition Trial at long last came to a
close. This brought to an end five years of harassment that the
defendants had suffered, including—for some—periods of imprisonment.
Judge Laws had thus called a halt to this
Soviet-style attack on American liberty. Sanity had prevailed and the
case was shelved forever. The war was over and the one individual who
was the prime mover behind the trial—Franklin D. Roosevelt—was dead.
According to historian Ronald Ra dosh, a
self-styled “progressive” who has written somewhat sympathetically of
the pre-World War II critics of the Roosevelt administration, “FDR had
prodded Attorney General Francis Biddle for months, asking him when he
would indict the seditionists.”3 Biddle himself later pointed
out that FDR “was not much interested . . . in the constitutional right
to criticize the government in wartime.”4
However, as we shall see, there were
powerful forces at work behind the scenes prodding FDR. And they, more
than FDR, played a major role in pushing the actual investigation Biddle
was not enthusiastic to undertake.
Although there was a grand total of 42
people (and one newspaper) indicted—over the course of three separate
indictments, beginning with the first indictment, which was handed down
on July 21, 1942, the number of those who actually went on trial was 30,
and several of them were severed from the trial as it proceeded.
Roosevelt’s biographer, James McGregor
Burns, waggishly called the trial “a grand rally of all the fanatic
Roosevelt haters.”5 But there’s much more to the story than
that.
In fact, there were a handful of
influential figures among the indictees. Among them included:
• Noted German-American poet, essayist
and social critic, George Sylvester Viereck (a well-known foreign
publicist for the German government as far back as World War I);
• Former American diplomat and economist
Lawrence Dennis, an informal behind-the-scenes advisor to some of the
more prominent congressional critics of the Roosevelt administration;
• Mrs. Elizabeth Dilling of Chicago, an
outspoken and highly articulate author and lecturer who was well re
garded and widely known nationally as a leader of the anti-communist
movement and a fierce opponent of the ad ministration;
• Rev. Gerald Winrod of Kansas. With a
national following and wide-ranging connections among Christian
ministers and lay leaders throughout the country, Winrod had emerged as a
force to be reckoned with. In 1938 he ran a strong race for the U.S.
Senate. (One of Winrod’s protégés was none other than evangelist Billy
Graham, who is said to have “learned much but kept quiet publicly about
what he learned privately”6 as a young man traveling with
Winrod.) And:
• William Griffin, a New York-based
publisher with strong connections in the Roman Catholic Church. Many
American Catholics were strongly anti-communist, and Irish-American
Catholics, in particular, were generally skeptical of FDR’s war policies
at a time when, it will be remembered, the government of Ireland
remained neutral in the war being waged against Germany by the United
States and England, Ireland’s traditional enemy.
However, most of those who finally went
to trial were little known and hardly influential on a national level,
other than the few exceptions just noted. Among the defendants were: a
sign painter who was 80 percent deaf, a Detroit factory worker, a waiter
and a maid.
In short, they were at best “average”
Americans, without the means or the opportunity to be able to conduct
the kind of seditious and internationally connected conspiracy that the
government had charged, nor were they in any position to defend
themselves against the unlimited resources of the central government. In
many cases, the defendants were paupers, virtually penniless. Many of
them were “one-man” publishers, reaching small audiences—hardly a threat
to the mighty forces that controlled the New Deal. Several were very
elderly. Few of the indictees even knew each other before the trial,
despite the fact that the indictments charged them with being part of a
grand conspiracy, orchestrated by Adolf Hitler, to undermine the morale
of the American military during wartime.
Lawrence Dennis commented later that:
“One of the most significant features of the trial was the utter
insignificance of the defendants in relation to the great importance
which the government sought to give to the trial by all sorts of
publicity-seeking devices.”7
Unfortunately, in this brief study of the
tangled circumstances surrounding the great sedition trial, we will be
un able to provide all of the defendants the recognition they deserve.
But by virtue of having been targeted for destruction by the Roosevelt
administration and its behind-the-scenes allies for their patriotic
anti-war stand, this handful of otherwise insignificant Americans became
folk heroes.
Thanks to their more vocal compatriots,
such as, perhaps most notably, Lawrence Dennis, we are able to
commemorate the details of their plight today.
According to Dennis, it was the design of
the sedition trial to target not the big-name critics of the Roosevelt
war policies, but instead to use the publicity surrounding the trial to
frighten the vast numbers of potential grass-roots critics of the
intervention in the Eurasian war into silence, essentially showing them
that, they, too, could end up in the dock if they were to dare to speak
out as the defendants had in opposition to the administration’s
policies.
Wrote Dennis:
The crackpots, so-called, or the
agitators, are never intimidated by sedition trials. The blood of the
martyrs is the seed of the church.
The people who are intimidated by
sedition trials are the people who have not enough courage or enough
indiscretion ever to say or do anything that would get them involved in a
sedition trial. And it is mainly for the purpose of intimidating these
more prudent citizens that sedition trials are held . . .
A government seeking to suppress
certain dangerous ideas and tendencies and certain types of feared
opposition will not, if its leaders are smart, indict men like Col.
[Charles] Lindbergh or senators [Burton] Wheeler [D-Mont.], [Robert]
Taft [R-Ohio] and Gerald Nye [R-N.D.], who did far more along the line
of helping the Nazis by opposing Roosevelt’s foreign policy as charged
against the defendants than any of the defendants.
The chances of conviction would be
nil, and the cry of persecution would resound throughout the land.
It is the weak, obscure and indiscreet
who are singled out by an astute politician for a legalized witch-hunt.
The political purpose of intimidating the more cautious and respectable
is best served in this country by picking for a trick indictment and a
propaganda mass trial the most vulnerable rather than the most dangerous
critics; the poorest rather than the richest; the least popular rather
than the most popular; the least rather than the most important and
influential.
This is the smart way to get at the
more influential and the more dangerous. The latter see what is done to
the less influential and less important, and they govern themselves
accordingly. The chances of convicting the weaker are better than of
convicting the stronger . . .”8
One of the defendants—one of
the weaker, less influential and less important, insignificant
Americans targeted by FDR—was Elmer J. Garner of Wichita, Kansas. This
elderly American patriot died three weeks after the trial began.
Sen. William Langer (R-N.D.), an angry
critic of the trial, described the victim in a speech on the floor of
the Senate. Garner, he said, was:
“A little old gentleman of 83, almost
stone deaf, with three great-grandchildren. After he lost the mailing
permit for his little weekly paper, he lived with his aged wife through
small donations, keeping a goat and a few chickens and raising
vegetables on his small home plot.
“Held in the [Washington, D.C.] jail for
several weeks, for lack of bond fees, and finally impoverished by three
indictments and forced trips and stays in Washington, he died alone in a
Washington rooming house early in this trial, with 40 cents in his
pocket. His body was shipped naked in a wooden box to his ailing,
impoverished widow, his two suits and typewriter being held, so that
clothing had to be purchased for his funeral. That is one of the
dangerous men about whom we have been hearing so much.”9
According to attorney Henry Klein, an
American Jew who defied the ADL by boldly serving as defense counsel for
another of the defendants, Garner—who was a first cousin of FDR’s first
vice president (1933-1941), John Nance Garner—died at his typewriter in
a tiny room in a Washington flophouse, typing out his defense.10
Who was it, then, that brought about the
series of events that led to the indictment of Elmer Garner and his both
more distinguished and perhaps even less distinguished fellow
“seditionists”?
It was, of course, Franklin D. Roosevelt
who ordered the Justice Department investigation. Attorney General
Francis Biddle (who opposed this blatantly political prosecution),
followed the president’s orders. And Assistant Attorney General William
Power Maloney handled the day-to-day details of the investigation that
won the indictments before a federal grand jury in Washington. But
behind the scenes there were other forces at work: the power brokers who
dictated the overall grand design of the Roosevelt administration and
its foreign and domestic policies.
In A Trial on Trial, his sharply
written critique of the trial, which is a veritable dissection of the
fraud that the trial represented, Lawrence Dennis and his co-author,
Maximilian St. George (who was Dennis’ counsel during the trial,
although Dennis—not an attorney—did most of the legal work himself),
concluded—based upon very readily available evidence in the public
record—that the three prime movers behind the trial were—in his
words—extreme leftists, organized Jew ish groups, and internationalists
in general, all of whom were loud and persistent advocates of the trial,
editorializing in favor of the investigation and indictments in their
newspapers and through media voices such as radio personality Walter
Winchell.
However, Dennis pointed out, “the
internationalists behind the trial are not as easy to link with definite
agitation for this prosecution as are the leftists and the Jewish
groups.”11 Den nis stated unequivocally: “One of the most
important Jewish organizations behind the sedition trial was the B’nai
B’rith [referring, specifically, to the B’nai B’rith adjunct known as
the Anti-Defamation League or ADL].”12
According to Dennis: “Getting the federal
government to stage such a trial, like getting America into the war,
was a ‘must’ on the agenda of the fighters against isolationism and
anti-Semitism.13
“What the people behind the trial wanted
to have judicially certified to the world was that anti-Semitism is a
Nazi idea and that anyone holding this idea is a Nazi, who is thereby
violating the law—in this instance, by causing insubordination in the
armed forces—through his belief in or advocacy of this idea.”14
This was not just Dennis’s conclusion, by
any means. One of the other defendants, David Baxter, later pointed out
that a United Press report published in 1943 said:
Under pressure from Jewish
organizations, to judge from articles appearing in publications put out
by Jews for Jews, the [indictment] . . . was drawn to include criticisms
of Jews as “sedition.”
It appeared that a main purpose of the
whole procedure, along with outlawing unfavorable comments on the
administration, was to set a legal precedent of judicial interpretations
and severe penalties which would serve to exempt Jews in America from
all public mention except praise, in contrast to the traditional
American viewpoint which holds that all who take part in public affairs
must be ready to accept full free public discussion, either pro or con.15
“In a word,” commented Dennis, “the
sedition trial as politics was smart. It was good politics.”16
Baxter himself determined in later years
that certain Jewish groups, specifically the ADL, had been prime movers
behind the Justice Department investigation that resulted in the
indictments of the defendants in the sedition trial. According to
Baxter, commenting many years later:
I demanded, through the Freedom of
Information Act, that the FBI turn over to me its investigation records
of my activities during the early 1940s leading up to the Sedition
Trial. I learned that the investigation had extended over several years
and covered hundreds of pages . . . The FBI blocked out the names of
those who had given information about me, much of it as false as
anything could be. I was never given a chance to face these people and
make them prove their accusations. Yet everything they said went into
the investigation records.
Oddly enough, in a great many cases,
it wasn’t the FBI that conducted the investigation, but the
Anti-Defamation League, with the FBI merely receiving the reports of the
ADL investigators. One can hard ly tell from the reports whether a
given person was an FBI or an ADL agent. But at the time all this was so
hush-hush that I didn’t even suspect the web-spinning going on around
me. I hadn’t considered myself that important.17
For his own part, commenting on the way
that the FBI had been used by the ADL, for example, Lawrence Dennis
pointed out: “The FBI, like the atomic bomb and so many other useful and
dangerous tools, is an instrument around the use of which new
safeguards against abuse by unscrupulous interests must soon be
created.”18
[To our shame, Americans did not learn
that lesson, in light of FBI intrigue alongside the ADL, later exposed
in the course of such controversies as the holocaust at Waco, the
slaughter of the Wea ver family members at Ruby Ridge, Idaho and the
mysterious Oklahoma City bombing.—Ed.]
Writing in his 1999 book, Mon tana’s
Lost Cause (see review on page 27), a study of Sen. Burton Wheel er
and other members of Mon tana’s congressional delegation who opposed the
Roosevelt administration’s war in Europe, historian Roger Roots also
points out another fascinating cog in the be hind-the-scenes maneuvering
that led to the sedition trial:
The Jewish-owned Washington Post
assisted in the detective work of the Justice Department from the
beginning. Dillard Stokes, the [Post] columnist who was most
conspicuous in his insider reporting of the sedition grand jury
proceedings, actually became part of the Justice Department’s case
against the isolationists when he wrote requests to numerous of the
defendants to send their literature to him under an assumed name. It was
this that allowed defendants to be brought from the farthest reaches of
the country into the jurisdiction of the Federal District Court in
Washington, D.C.19
David Baxter elaborated on the role
played by the Post columnist Stokes, who used the pseudonym
“Jefferson Breem,” in order to obtain some of the allegedly seditious
literature that had been published by some of the defendants:
In order to try us in Washington as a
group, it was necessary to establish that a crime had been committed in
the District of Columbia, thus giving jurisdiction to the federal courts
there. So the grand jury, which was obviously con trolled by the
prosecutor, charged us with the crime of sedition, and then established
District of Columbia jurisdiction to try us on the grounds that a
District of Columbia resident, “Jefferson Breem,” had received the
allegedly seditious literature. Thus was the alleged “crime” committed
in the capital. The defendants were charged with having conspired in the
District of Columbia, despite the fact that I had never been in
Washington in my life until ordered there by the grand jury.20
Kirkpatrick Dilling, now an attorney in
Chicago but then a young man in uniform and the son of one of the more
prominent defendants, Elizabeth Dilling, pointed out in a letter to TBR
publisher Willis Carto that: “My mother was indicted with many others,
most of whom she had never had any contact with whatsoever. For example,
some of such co-indictees were members of the German-American Bund. My
mother said they were included to give the case a ‘sauerkraut flavor.’ ”21
Later, during the trial itself, the afore
mentioned Sen. Langer, scored what he described as: “the idea of
bringing together for one trial in Washington 30 people who never saw
each other, who never wrote to each other, some of whom did not know
that the others existed, with some of them allegedly insane and the
majority of them unable to hire a lawyer.
“And remember,” Langer pointed out, “[the
defendants] were brought to Washington from California and [Illinois]
and other states a long way from Washington, placed in one room and all
tried at the same time, with the 29 sitting idly by while the testimony
against one of them may go on for weeks and weeks and weeks, the
testimony of a man or woman [whom the] other defendants never saw before
in their lives. That is what is taking place in Washington [the
District of Columbia] here today.”22
As mentioned previously, there were
actually three indictments handed down. The first indictment came on
July 21, 1942. The indictments came as a surprise to more than a few
people, including the defendants. As David Baxter said: “Actually, at
that time I was simply a New Deal Democrat interested in what was going
on in the country politically.”23 But as a consequence of the
indictment, he was being accused of sedition by the very regime he had
once supported.
Elizabeth Dilling learned of her
indictment on the radio. The nature of one of the charges against Mrs.
Dilling exposes precisely how trumped up the sedition trial was from the
start. The indictment charged that Mrs. Dilling had committed
“sedition” by reprinting, in the pages of her newsletter, a speech in
Congress by Rep. Clare Hoffman (R-Mich.), an administration critic, in
which the congressman quoted an American soldier in the Philippines who
complained his outfit lacked bombers because the planes had been given
to Britain.24 This ostensibly was dangerous to military
morale.
But Mrs. Dilling’s many supporters around
the country rose to her defense, raising money through dances, dinners
and bake sales. Mrs. Dilling, ever courageous, would not let even a
federal criminal indictment silence her. She still continued to speak
out.
On August 17, 1942 Sen. Robert A. Taft
spoke out against the indictment:25 “I am deeply alarmed by
the growing tendency to smear loyal citizens who are critical of the
national administration and of the conduct of the war . . .
“Something very close to fanaticism
exists in certain circles. I cannot understand it—cannot grasp it. But I
am sure of this: Freedom of speech itself is at stake, unless the
general methods pursued by the Department of Justice are changed.”26
Taft noted that the indictment, in his
words, was “adroitly drawn”27 and said it claimed that groups
such as the Coalition of Patriotic Societies were linked to the accused
conspirators. The coalition, Taft noted, included among its member
organizations such groups as the Descendants of the Signers of the
Declaration of Independence, the General Society of Mayflower
Descendants and the Sons of the American Revolution, among others.
On the basis of the way in which the
indictment was written, Taft said, a considerable number of members of
both the House and the Senate could also be indicted, along with a
considerable number of the nation’s newspaper editors.
The second indictment came on January 4,
1943. Lawrence Dennis summarized the nature of the indictments: “The
first indictment charged conspiracy to violate the seditious propaganda
sections of both the wartime Espionage Act of 1917 and the peacetime
Smith Act of 1940, sometimes called the Alien Registration Act. This
indictment . . . was that the defendants had conspired to spread Nazi
propaganda for the purpose of violating the just mentioned laws. The
government case consisted of showing the similarity between the
propaganda themes of the Nazis and the defendants.”28
However, as Dennis pointed out, for a
conviction on such an indictment to stand under the law, it is necessary
to prove similarity of intent of the persons accused rather than
similarity of content of what they said.
“The weaknesses of these first two
indictments were that they fitted neither the law nor the evidence. The
government’s difficulty was that, to please the people behind the trial,
it had had to indict persons whose only crime was isolationism,
anti-Semitism and anti-communism when there was no law on the statute
books against these ‘isms.’ The two laws chosen for the first two
indictments penalized advocacy of the overthrow of the government by
force and of insubordination in the armed forces.”29
Several new defendants were added with
the second indictment. Among them was Frank Clark. Considering the
charge that Clark (and the others) had been conspiring to undermine the
morale of the American military, it is worth noting that Clark was “a
highly decorated veteran of World War I, who was wounded eight times in
action. Clark had been an organizer of the famous Bonus March of World
War I veterans to Washington in the 1920s. He had lobbied for early
payment of veterans’ bonuses that had been promised to the war’s
veterans, returning home a hero. When arrested, he lacked enough money
to hire a lawyer.”30
All of this, however, meant nothing in
the course of the ongoing effort by the Roosevelt administration to
silence its critics and to prevent more and more Americans from speaking
out.
Throughout this period, the major media
was rife with reports of how a group of Americans, in league with Hitler
and the German National Socialists, were trying to destroy America from
within and how the Roosevelt administration was bravely taking on this
conspiracy. However, the Justice Department had made a misstep and the
second indictment, like the first, was thrown out.
As Roger Roots notes, “The indictment was
unlawful. It was discarded due to the obvious absence of evidence for
conviction, among other flaws. Past Supreme Court decisions clearly
showed that a conviction for advocating the overthrow of the government
by violent force must include some evidence of actual plans to use
violence, not just political literature. Again, the indictment was never
dismissed formally but simply retired.”31
Sen. Burton Wheeler, in particular, was a
harsh critic of the Justice Department and publicly made clear his
intention, as new head of the Senate Judiciary Committee following the
1942 elections, to keep a close watch on the affair as it unfolded. As
far as the legal procedures used in the first two indictments, he
declared: “If it happened in most jurisdictions of this country, the
prosecuting attorneys would be held for contempt of court.”32
Thus, despite all the determined efforts
of the Justice Department and its allies in the Anti-Defamation League
and at The Washington Post, the first two indictments were indeed
thrown out as defective.
On March 5, 1943 Judge Jesse C. Adkins
dismissed the count in the indictment that accused the defendants of
conspiring together “on or about the first day of January 1933, and
continuously thereafter up to and including the date of the filing” of
the indictment since, as the judge held, the law which the defendants
were accused of conspiring to violate had not been enacted until 1940.33
At this juncture, under pressure from Sen. Wheeler, Attorney General
Biddle agreed to remove prosecutor William Power Maloney as the chief
“Nazi-hunter.”
Thus, a new Justice Department prosecutor
entered into the case, O. John Rogge. As defendant David Baxter pointed
out, Rogge was a fitting choice for the administration’s chief point
man in this Soviet-style show trial:
It later turned out that Rogge had
been a good friend of Soviet dictator Josef Stalin, was involved in
numerous communist front groups, and had visited Russia, where he spoke
in the Kremlin and laid a wreath at the grave of American Communist
Party co-founder John Reed in Red Square. His wreath was inscribed: “In
loving memory from grateful Americans.” . . . Rogge was an American
delegate to a world communist “peace conference” in Paris and was a
lawyer for many communists in trouble with the law. He was the attorney
for David Greenglass, the atomic spy who saved his own life by turning
state’s evidence against his sister and brother-in-law, Ethel and Julius
Rosenberg [who] went to the electric chair for turning over U.S. atomic
secrets to the Soviets. [Rogge] was thus eventually exposed for what he
was. No wonder he was so fanatical in his hatred against the Sedition
Trial defendants, all of whom were anti-communists.34
Rogge was an ideal choice for the
Roosevelt administration and its allies, who were determined to pursue
the prosecution, one way or the other. He moved forward relentlessly.
As Roger Roots points out: “Not wishing
to waste momentum, the government reconvened another grand jury,
resubmitted the same pamphlets, publications, and materials that the
previous grand jury had already seen, re-called the same testimony of
the witnesses, and once again pleaded the grand jury to return yet
another indictment.”35
The third (and final) indictment was
handed down on January 3, 1944. In fact, Rogge and his Justice
Department allies had decided to take a new tack and added eight new
names (including Lawrence Dennis, who had not been named in the first
indictments) and dismissed 12 defendants who had been named.
Among those whose names were dismissed
were influential New York Catholic lay leader William Griffin and his
newspaper, The New York Evening Enquirer (the only publication
indicted) former American diplomat Ralph Town send of San Francisco and
Washington, D.C. and Paquita (“Mady”) de Shishmareff, the well-to-do
American-born widow of a former Russian czarist military figure.
Townsend, who had enraged the Roosevelt
administration by opposing its anti-Japanese policies in the Pacific,
had written an explosive book, Ways That Are Dark, highly
critical of imperial China.* But although he was now “free,” he and his
family had been broken financially by the indictment, and, according to
his late wife, Janet, many of their close friends deserted them in this
time of crisis.
“It was a very difficult period in our
lives,” she later recalled. “But it didn’t prevent Ralph from continuing
to speak out.”36 Townsend did continue to speak out, and in
later years he became a friend of Willis A. Carto, publisher of The
Barnes Review, and, today, portions of Townsend’s personal library
are a part of TBR’s archives.
Tony Blizzard, who is now research
director for Liberty Lobby, the Washing ton-based populist institution,
was a protégé in the early 1960s of Paquita de Shishmareff (who wrote as
L. Fry) and he recently commented on the circumstances surrounding the
decision to drop the indictment against her—along with some fascinating,
little-known details about this remarkable woman. In Blizzard’s in
formed estimation:
One of the reasons they dropped the
indictment against Mady was precisely because they knew they were
dealing with a very sharp lady with a great deal of brain power. A woman
of the old school, Mady would never put herself in the forefront, but
she knew how to use the strengths of the men around her. She also was a
woman of some means—unlike most of the other defendants—and was a
formidable opponent.
The government clearly decided that it
was in their best interests to dismiss the case against her. There was
no way they could ever make “Nazis” out of all of these defendants,
whose only real “crime” was exposing Jewish pow er as long as Mady was
on the dock with the rest of them.
The prosecutors knew quite well,
although it was not widely known then nor is it widely known today, that
it was Mady who had supplied Henry Ford virtually all of the
information that Ford had published in his controversial series about
Jewish power in The Dearborn Independent. With her wide-ranging,
high-level connections, Mady was an encyclopedic storehouse of inside in
formation about the power elite.
The last thing the prosecution wanted
was for Mady to take the stand. By releasing her as a defendant, they
eliminated, to them, what was a very frightening possibility.37
But there were 30 others who were not so
lucky as Paquita de Shishmareff, Ralph Townsend and the others who had
been released, and their trial commenced on April 17, 1944 in the U.S.
District Court for the District of Colum bia.
Kirkpatrick Dilling, son of defendant
Elizabeth Dilling, captured the essence of the indictment. According to
Dilling, “The indictment was premised on an alleged ‘conspiracy to
undermine the morale of the armed forces.’ Thus criticizing President
Roosevelt, who was armed forces commander in chief was an alleged overt
act in furtherance of the conspiracy. Denouncing our ally, communist
Soviet Russia, was a further alleged overt act. Opposing communism was
an alleged overt act because our enemy Hitler had also opposed
communists.”38
Ironically, while his mother was on trial
for her alleged participation in this “conspiracy to undermine the
morale of the armed forces,” Kirkpatrick Dilling was promoted from
corporal to second lieutenant in the U.S. Army.39
Other defendants, including George
Sylvester Viereck, George Death er age, Robert Noble and Rev. Gerald
Winrod, also had sons in the U.S. Armed Forces during this period.40
Viereck’s son died in combat while his father was on trial and in
prison (see the memorial poem on these pages).
Presiding as judge at the trial was
ex-Iowa Democratic Congressman Edward C. Eicher, a New Deal stalwart who
had served a brief period as chairman of FDR’s Securities and Exchange
Com mis sion (SEC) after being defeated for re-election to Congress.
After Eicher’s term at the SEC, FDR then appointed Eicher to the
judgeship. And serving as prosecutor was Eicher’s former legal counsel
at the SEC, the aforementioned O. John Rogge. 41
It seemed that the case was “fixed” from
top to bottom.
Albert Dilling, the attorney, who
represented his wife Elizabeth Dilling, called for a congressional
investigation of the trial on the grounds that it was impossible for
such a trial to be fair during wartime.42 But that was not
enough to stop the trial juggernaut.
Although proving “sedition” was the
ostensible purpose of the prosecution, Lawrence Dennis reached other
conclusions about the actual political basis for the trial: “The trial
was conceived and staged as a political instrument of propaganda and
intimidation against certain ideas and tendencies which are popularly
spoken of as isolationism, anti-communism and anti-Semitism. The biggest
single idea of the trial was that of linking Nazism with isolationism,
anti-Semitism and anti-communism.”43 How ever, as Dennis
pointed out:
American isolationism was born with
George Washington’s Farewell Address, not with anything the Nazis ever
penned. As for “anti-Semitism,” it has flourished since the dawn of
Jewish history. It is as old and widespread as the Jews . . . As for
anti-communism, while it was one of Hitler’s two or three biggest ideas,
it is in no way peculiar to Hitler or the Nazis, any more than
anti-capitalism is peculiar to the Russian communists.44
To add shock value to the indictment, the
government—in an accompanying bill of particulars, which was basically a
rehash of the history of the Nazi Party in Germany—named German
Chancellor Adolf Hitler as a “co-conspirator.”
During the trial, the prosecutor, Rogge,
charged that Hitler had picked the defendants to head a Nazi occupation
government in the United States once Germany won the war.45
What the prosecutor was essentially
trying to do, according to Lawrence Dennis, was “to perfect a formula to
convict people for doing what was against no law. It boiled down to
choosing a crime which the Department of Justice would undertake to
prove equaled anti-Semitism, anti-communism and isolationism. The crime
chosen was causing insubordination in the armed forces. The law was the
Smith Act,”46 which had been enacted in 1940.
As Dennis pointed out: “One of the many
ironies of the mass sedition trial was that the defendants were charged
with conspiring to violate a law aimed at the communists and [of using] a
communist tactic—that of trying to undermine the loyalty of the armed
forces. What makes this so ironic is the fact that many of the
defendants, being fanatical anti-communists, had openly supported the
enactment of this law.”48
Defendant David Baxter later re called:
After Hitler and Stalin concluded a
treaty, American communists enthusiastically endorsed those of us who
opposed getting into the European war between Germany and the
British-French alliance. The communists even stomached the Jewish issue
that some of us raised, and many Jewish communists, who wanted the
United States to join the war against Hitler, left their party. All that
changed overnight, however, when war broke out between Germany and
Russia. The communists then turned against us with a vengeance and
eagerly backed FDR and American participation in the war to save the
Soviets.48
Lawrence Dennis’s assessment of the
government’s case is reminiscent of that of Kirkpatrick Dilling: “The
pattern of the prosecution gradually emerged something like this: Our
country is at war; Russia is our ally; the Russian government is
communist; these defendants fight communism; they are therefore
weakening the ties between the two countries; this is interfering with
the war efforts; this in turn is injuring the morale of the armed
forces. The indictees should therefore be sent to prison.”49
Henry H. Klein, an outspoken Jewish
anti-communist, was the attorney who represented defendant Eugene
Sanctuary, and he took issue with the very constitutionality of the
trial.
“This alleged indictment,” thundered
Klein in his opening address to the jury, “is under the peace-time
statute, not under the wartime act, and the writings and speeches of
these defendants were made when this nation was at peace, and under a
Constitution which guarantees free press and free speech at all times,
including during wartime, until the Constitution is suspended, and it
has not yet been suspended. These people believed in the guarantees set
forth in the Constitution, and they criticized various acts of the
administration.”50
About his own client, Klein noted: “He is
73 years old and devoutly religious. He and his wife ran the
Presbyterian foreign mission office in New York City for many years, and
he has written and published several hundred sacred and patriotic
songs.”51 One of those songs, Klein noted, was Uncle Sam
We Are Standing by You and was published in June of 1942, well after
the war had begun—hardly the actions of the dangerous seditionist that
the prosecution and the sympathetic press painted Sanctuary to be.
As far as Lawrence Dennis’s purported
sedition was concerned, “the prosecution had attempted to prove its case
exclusively by placing in evidence seven excerpts from his public
writings, reprinted in the publication of the German-American Bund
rather than as originally published.”52 In other words, the
“evidence” that Dennis had committed sedition was because he had written
something (published and freely available to the public) that was later
reprinted by a group sympathetic to Nazi Germany—not that Dennis
himself had actively done anything to stir dissension among the American
armed forces. According to Dennis:
The government’s prosecution theory
said, in effect: “We postulate a world conspiracy, the members of which
all conspired to Nazify the entire world by using the unlawful means of
undermining the loyalty of the armed forces. We ask the jury to infer
the existence of such a conspiracy from such evidence as we shall submit
about the Nazis. We shall then ask the jury to infer that the
defendants joined this conspiracy from the nature of the things they
said and did. We do not need to show that the defendants ever did or
said anything that directly constituted the crime of impairing the
morale or loyalty of the armed forces. Our thesis is that Nazism was a
world movement, which, by definition, was also a conspiracy to undermine
the loyalty of the armed forces and that the defendants were members of
the Nazi world movement.”53
There was no more reason to bring out
in a charge of conspiracy to cause military insubordination the facts
that most of the defendants were anti-Semites, isolationists or
anti-communists than there would have been in a trial of a group of New
York City contractors on a charge of conspiring to defraud the city to
bring out the facts that the defendants were all Irish or Jews and had
always voted the Democratic ticket.54
Eugene Sanctuary’s attorney, Henry Klein,
pulled no punches when he laid out the defense, declaring:
We will prove that this persecution
and prosecution was undertaken to cover the crimes of
government—remember that.
We will prove that it was undertaken
by order of the president, in spite of the opposition of Attorney
General Biddle.
We will prove that Mr. Rogge was
selected for this job of punishing these defendants because no one else
in the Department of Justice felt that he could find sufficient grounds
in to spell out a crime against these defendants.
We will prove that the communists
control not only our government but our politics, our labor
organizations, our agriculture, our mines, our industries, our war
plants and our armed encampments.
We will prove that the law under which
these defendants are being tried was enacted at the repeated demands of
the heads of our armed forces to prevent communists from destroying the
morale of our soldiers, sailors, marine and air forces [and that this
prosecution] was undertaken to protect communists who were and are
guilty of the very crimes charged against these defendants who are
utterly innocent and have been made the victims of this law.55
Klein minced no words when he told the
jury that Jewish organizations were using the trial for their own ends:
We will prove that this persecution
was instigated by so-called professional Jews who make a business of
preying on other Jews by scaring them into the belief that their lives
and their property are in danger through threatened pogroms in the
United States [and that] anti-Semitism charged in this so-called
indictment, is a racket, that is being run by racketeers for graft
purposes.56
Klein also forcefully made the allegation
that FBI agents had been acting as agents provocateurs,
attempting to stir up acts of sedition:
We will show that the most vicious
written attack on Jews and on the Roosevelt administration emanated from
the office of the FBI by one of its agents, and that the purpose of
this attack was to provoke others to do likewise. We will show that this
agent also drilled his underlings in New York with broom sticks
preparatory to “killing Jews.”57
Klein also put forth a rather interesting
allegation about the source of certain funds purportedly supplied by
Nazi Germany to no less than Franklin D. Roosevelt himself. According to
Klein: “We will show that large sums of Hitler money helped finance Mr.
Roosevelt’s campaign for re-election in 1936 and that right at this
moment, British, American and German capital and industry are
cooperating together in South America and other parts of the world.”58
What Klein alleged about international
collaboration of high-finance capitalism has been part of the lore of
the populist right and the populist left for over a century and is a
theme that has been analyzed in scores of books, monographs and other
literature, but largely ignored in the so-called academic mainstream.
According to Lawrence Reilly’s ac count
of the sedition trial, Klein’s speech was a critical turning point in
the defense: “Klein did much in his brief speech to torpedo Rogge’s case
by bringing to light the hidden agencies responsible for its
existence.”59
However, noted Reilly, even many of the
daily newspapers which opposed the trial editorially were afraid to
discuss this hidden aspect of the case that Klein had dared bring forth
in open court. Reilly said that readers were often left “confused”60
because the papers never touched on the real factors involved. Some of
these “friendly” papers, Reilly noted, insisted on referring to the
defendants as “crackpots.”
But the fact is that, as a direct
consequence of his offensive against the ADL and the other Jewish groups
that had played a part in orchestrating the trial, Klein was targeted,
specifically because he was Jewish, by organized Jewish groups that
resented Klein’s defense of the purported “anti-Semites” and
“seditionists.”
For his own part, Lawrence Dennis stood
up in court to take on his own defense and delivered what even liberal
writer Charles Higham was inclined to acknowledge was “a high-powered ad
dress”61 calling Rogge’s outline of the government case,
“corny, false, fantastic, untrue, unproveable and unsound [and
describing the trial as] a Roosevelt administration fourth-term
conspiracy [and] another Dreyfus case [in which the government was]
trying to write history in the heat of battle.”62 To the loud
applause of his fellow defendants, Dennis declared: “Pearl Harbor did
not suspend the Bill of Rights.”63
A critical juncture in the case came when
one of the defense attorneys, James Laughlin (a public defender
representing Ernest Elmhurst) said in open court that it would be
impossible for the trial to continue unless the private files of the
Anti-Defamation League (ADL) of B’nai B’rith could be impounded and
introduced as evidence.
It was clear that much of the prosecution
was based on the ADL’s “fact finding” and Laughlin concluded that it
would be necessary to determine precisely what the ADL had provided the
government if the defendants would be able to put on an effective
defense.
The judge seemed prepared to ignore
Laughlin’s motion, but the clever attorney had already prepared copies
of his motion in advance and distributed copies of the motion to the
press. As a direct consequence, Washington newspapers reported that the
ADL files had been made an issue in the case. As Reilly summarized the
situation: “Laughlin had placed the spotlight upon the big secret of the
case.”64 This, according to Reilly, was “a bomb, which, some
have said, had more to do with demoralizing [the prosecution’s] case
than any other single [factor].”65
At that point, there seemed to be a
strange turnabout in the way that the press supporting the trial began
looking at the case. Even The Washington Post (which had played a
part in orchestrating the trial by lending the services of its
reporter, Dillard Stokes, to the joint ADL-FBI investigation)
“completely reversed itself,” according to Reilly, “and started
demanding that the case be brought to a quick conclusion.”66
In short, The Post wanted to keep
“the big secret” of the case—behind-the-scenes orchestration of the case
by the ADL—under wraps and now seemed to be calling to bring the trial
to a rapid conclusion before the truth came out.
The Post even commented
editorially that: “We fear that, whatever may be the outcome of this
trial, it will stand as a black mark against American justice for many
years to come.”67 As David Baxter later remarked: “Such were
the remarkable words of the very paper whose own reporter had plotted
with the original prosecutor to entrap the defendants and bring them to
trial in Washington.”69
Despite these concerns, Rogge seemed to
intensify his efforts. There was clearly a great deal of
behind-the-scenes maneuvering by the prosecutor and his backers as to
how to deal with the challenge that had been presented. Since the judge
never ordered the ADL’s files impounded, Rogge was free to move forward.
He was determined to carry the trial through to conclusion, and he had
many more witnesses to present.
Author Roger Roots describes the course
of events as follows:
Day after day, the trial wore on. Page
after page of publications authored by the defendants was introduced
into evidence, giving rise [among] all in attendance to the idea that it
was their writings which were really on trial. The government announced
that it intended to introduce 32,000 exhibits. It became obvious that
what the defendants were really being prosecuted for was “Jew-baiting”
which gave an indication of one principal source of the prosecution’s
support. It became one of the longest and most expensive trials in U.S.
history. In essence, the trial was little more than an assault against
free speech.69
As the trial proceeded, outspoken trial
critic Sen. William Langer visited defendants in jail and defied the
media and its allies in the prosecution by publicly escorting defendant
Elizabeth Dilling in and out of court and around Washington while she
was on bail.70
Said Roots: “The government worked with
unlimited funds, unlimited personnel, and unlimited access to
intelligence information. The defense had to work with mostly
court-appointed lawyers who were unacquainted with the defendants and
the arguments of the case.”71
What is particularly interesting, as
pointed out by liberal historian Glenn Jeansonne, is that: “Many of the
defense attorneys were liberals unsympathetic with the clients’ beliefs.
But they came to see the defendants’ side on a human basis, and instead
of conducting a perfunctory defense, as many observers had expected,
they put up a vigorous de fense.”72
Even Charles Higham, who, writing
retrospectively, was an enthusiastic advocate of the trial, pointed out
that “after two and a half months, neither defendants nor prosecution
had managed to present a satisfactory case,”73 and,
ultimately, “both press and public were beginning to lose interest in
the case.”74
At the same time, according to Paquita de
Shishmareff, the defendants had managed to survive and develop their
own way of dealing with their predicament: “Their physical lives were
made almost impossible. They got little to eat and were hamstrung in
every way possible. But when they got into court, it was such a farce
they really just enjoyed themselves.”75
At one point, when the prosecutor was
solemnly reading off a list of names of individuals—allies of the
Roosevelt administration who had been attacked in some way by the
defendants—defendant Edward James Smythe shouted out, “and Eleanor
Roosevelt,” resulting in laughter from the courtroom.76
Smythe didn’t want Mrs. Roosevelt’s name to go unrecorded in the
pantheon of villainy.
This, by the way, was only one of many
amusing events that took place during this circus. In many respects, the
sedition trial could be the basis for a Hollywood comedy, the serious
and scandalous violation of the rights of the defendants
notwithstanding.
But this is not to suggest that the
sedition trial was all a lot of merriment for the attorneys or for the
defendants. Far from it. Two of the attorneys had a shot fired at them
as they drove in their car. One of those attorneys lost a 12-year law
association. Another was beaten by five thugs and hospitalized for five
days.
Henry Klein was harassed relentlessly,
held in contempt of court for his defense of his client, and, then,
ultimately, driven from the case altogether (although the contempt of
court charges were eventually overturned).
In addition, strenuous efforts were made
to keep the defendants who were out on bail from holding jobs during the
course of the trial, a particular problem for those who were not of
independent means (and that was most of them).
One defendant, Ernest Elmhurst, got a job
as a headwaiter in a Washington hotel in order to make ends meet during
the trial, but the ADL’s leading broadcasting voice, Walter Winchell,
learned of Elmhurst’s employment and agitated on his widely heard radio
show for Elmhurst’s firing, resulting in Elmhurst’s dismissal.77
As the trial dragged on, however, the
government began to realize that its efforts were going nowhere. Roger
Roots points out: “The prosecution had undoubtedly expected one or more
of the defendants to break and testify against the others . . . [Yet]
not one defendant gave any indication of such an inclination. Though
they disagreed and some even disliked each other, they came together as a
cohesive unit.”78
David Baxter had the pleasure to learn
that he was going to be severed from the trial and the charges
dismissed. His increasing deafness made it impossible for Baxter to have
a fair trial. Baxter recalls that Judge Eicher called Baxter into his
chamber, smiled, held out his hand, and said: “Go back to California and
forget about it, Dave.”79
The judge reportedly told Baxter that if
Baxter and his wife wanted to buy a car to return to California, he
would help and handed Baxter a roll of gasoline coupons (which, during
wartime, were severely rationed). Despite everything, it seems, even the
judge realized what a farce the trial really was.
It was something totally unexpected that
brought the trial to a halt: Judge Eicher’s sudden death on November 29,
1944. The judge’s demise came at a point where Rogge was not even
halfway through the prosecution’s case. At this point he had brought 39
witnesses to the stand, and expected to present 67 more. The defense had
not even yet begun.80
Defendant David Baxter later commented
(reflecting on his own friendly personal experience with the judge):
“That trial could have killed any judge with a Christian conscience and
any semblance of fairness. I felt genuinely sorry about Judge Eicher’s
death.”81 Rogge accused the defense of having effectively
killed the judge by having put up such a defense that it made the
judge’s life (and that of the prosecutor) uncomfortable. Under the
circumstances, it was apparent that there was no way that the case could
continue on a fair basis.
As a consequence, after a period of legal
haggling on both sides (with one defendant, Prescott Dennett, actually
asking for the trial to continue, determined to present his defense
after having been tried and convicted in the media), a mistrial was
declared.
Prodded primarily by Jewish groups,
Prosecutor Rogge hoped to be able to keep the case alive and set a new
trial in motion. But by the spring of 1945, the trial’s chief
instigator, President Roos velt, was dead, and the war had come to a
close. Rogge, however, continued to ask for delays in setting a new
trial date. Since Germany had fallen, Rogge claimed, he was confident
that he could find “evidence” in the German archives that the sedition
trial defendants had been Nazi collaborators. However, according to
historian Glen Jeansonne, no friend of the purported seditionists,
“nothing Rogge found proved the existence of a conspiracy”82
between the Ger man government and the defendants.
Undaunted, Rogge launched a na tion wide
lecture tour that was, not surprisingly, conducted under the auspices of
B’nai B’rith. The combative and loquacious Rogge, prodded by his
sponsors, could not contain himself in his enthusiastic recounting of
the events of the trial and of the personalities in volved and, in the
end, was fired by the Justice Department on October 25, 1946, for
leaking information to the press.83 At that time Rogge was
ordered to hand over all Justice Department and FBI documents in his
possession. The Justice Department had apparently decided that Rogge had
outlived his usefulness.
Less than a month later, District Judge
Bolitha Laws dismissed the charges altogether, declaring that the
defendants had not received a speedy trial as guaranteed by the
Constitution. Although the Justice Department ap pealed, the dismissal
was upheld on June 30, 1947 by the U.S. Circuit Court of Appeals. The
“Great Sedition Trial” thus came to a close.
As even defendant Lawrence Dennis was
moved to comment:
Some or all may even have been guilty
of conspiring to undermine the loyalty of the armed forces, but not as
charged by the [government] . . . Nothing in the evidence brought out
during the trial proved or even suggested that any one of the defendants
was ever guilty of any such conspiracy, except on the prosecution
theory. And on that theory, opponents of President Roosevelt’s pre-Pearl
Harbor foreign policy and steps in foreign affairs, such as Col.
Lindbergh, Sen. Taft, Sen. Nye or Sen. Wheeler, and Col. McCormick,
publisher of The Chicago Tribune, would be equally guilty.
Indeed, the prosecution case,
according to the prosecution theory, would have been much stronger
against these prominent isolationists than it ever could be against the
less important defendants in the Sedition Trial.84
Many years later it is grimly amusing to
note that organized Jewish groups and Jewish newspapers attacked the
attorney general, Francis Biddle, for having failed to see the sedition
trial through to the bitter end and achieve the conviction of the
defendants. Lawrence Dennis wryly commented that all of this showed a
great deal of ingratitude on their part.
According to Dennis: “It shows what a
public servant gets for attempting to do dirty work to the satisfaction
of minority pressure groups. Biddle did the best anyone in his position
could do to carry out the wishes of the people behind the trial. They
simply did not appreciate the difficulties of railroading to jail their
political enemies without evidence of any acts in violation of the law.”85
Dennis added a further warning for those
who would allow themselves to be caught up in promoting “show trials”
such as that which was effected in the Great Sedition Trial of 1944:
“What the government does today to a crackpot, so-called,” Dennis said,
“it may do to an elder statesman of the opposition the day after
tomorrow.86
“The trial made history,” Dennis said,
”but not as the government had planned. It made history as a government
experiment, which went wrong. It was a Department of Justice experiment
in imitation of a Moscow political propaganda trial.”87
There are at least five definitive
conclusions which can be drawn about this trial, based upon all that is
in the historical record:
1) The defendants charged were largely on
trial for having expressed views that were either anti-Jewish or
anti-communist or both. The actions of the defendants had little or
nothing to do with encouragement of dissension or insurrection within
the U.S. armed forces. In short, the “sedition” trial was a fraud from
the start.
2) The prime movers behind the
prosecution were private special interest groups representing powerful
Jewish organizations such as the Anti-Defamation League (ADL) of B’nai
B’rith that were closely allied with the Roosevelt regime in power.
3) As a consequence, high-level
politicians (including the U.S. president) and bureaucrats beholden to
those private interests used their influence to ensure that the police
powers of the government were used to advance the demands of those
private pressure groups agitating for the sedition trial.
4) Major media voices (such as The
Washington Post), working with the ADL and allied with the ruling
regime, were prime players in promoting and facilitating the events that
led to the trial.
5) The police powers of government can
easily be abused, and innocent citizens, despite Constitutional
guarantees of protection, can be persecuted under color of law, their
innocence notwithstanding.
About a decade after “The Great Sedition
Trial” had come to a close, the major media in America began devoting
much energy to denouncing so-called anti-communist “witch-hunts” by Sen.
Joseph R. McCarthy and others, the media (not to mention “mainstream”
historians) never drew the obvious parallel with the precedent for such
witch-hunting that had been set by the activities of the ADL and its
allies in the Roosevelt administration who had orchestrated the sedition
trial.
The events of “The Great Sedition Trial”
are a black page of American history (and little known at that). Civil
libertarians should take note: It can happen here, and it did.
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