By KEN ACKERMAN
EDGAR BOARDED THE OVERNIGHT TRAIN on Tuesday, April 6, 1920, carrying a suitcase with a few notes and a change of clothes. It took ten hours to reach Boston from Washington, and he used the time sitting alone to read, think, and steal a few hours’ sleep. The next morning, he stepped out on the platform at South Station and found Boston’s two top federal prosecutors waiting there to meet him: United States Attorney Thomas J. Boynton and his assistant Louis Goldberg. They took him to breakfast and showed him the Wednesday morning newspapers.
Edgar must have grinned ear to ear at what he saw. Every single one featured a story about him, one more glowing than the next. EXPERT ON REDS COMING HERE, shouted
the Boston American on its front page. “John E. Hoover is the man, it was disclosed, who had direct charge of the Red raids all over the United States early
in January.” The Boston Post called him the one who “directed all the activities of the United States government against radicals during the past two years.”
So too the Boston Evening Globe: MAN HERE WHO DIRECTED
NATIONWIDE RAIDS, read its headline.
Edgar had left Washington a frustrated government bureaucrat. He arrived in Boston a law enforcement star.
He couldn’t enjoy himself for long, though. They had work to do. As Edgar sipped coffee and nibbled his egg, Boynton and Goldberg briefed him on the problem facing them in court that day. The trial in the habeas corpus case, the one brought for the prisoners on Deer Island, had gone wildly off course. On the first day of testimony, lawyers for the prisoners had embarrassed the government and threatened to blow the case wide open.
First, they got an immigration official named James Sullivan to admit that he jailed over a hundred suspects at Deer Island before having a single warrant for any of them, and that he hadn’t even bothered to apply for any warrants by telegraph until five days later—meaning he’d had no legal authority to hold them during this period. The judge himself, George W. Anderson, had confronted Sullivan over the $10,000 bail he charged certain prisoners, far more than they could afford to pay. “You knew these people were all wage-earners?”
Judge Anderson had asked from the bench. “Well, didn’t it occur to you that $10,000 might be the equivalent to a denial of liberty?”
“No, Your Honor,” Sullivan had mumbled sheepishly, denying the obvious.
But an even worse blow-up came in the afternoon when lawyers for the prisoners called as a witness George Kelleher, the Justice Department’s bureau chief in Boston, and squeezed him to disclose agency secrets. Tensions reached the breaking point when Judge Anderson interrupted to ask Kelleher how many of his Boston-based Justice Department agents actually had taken part in the raids, and Kelleher refused to answer.
“You will answer that question,” Judge Anderson had demanded.
“I decline,” Kelleher had said.
Judge Anderson, not used to being defied by government witnesses in his courtroom, threatened Kelleher with a contempt citation, but Kelleher just nodded. “I decline to state the number of men,” he repeated.
After a brief recess, Louis Goldberg, the assistant U.S. Attorney, had tried to smooth things over by suggesting that they wait until he could consult with his superiors at the Justice Department in Washington, but this idea only made the judge angrier.
“Do you mean to infer that a chief in Washington can rule in this court?” he asked. They recessed again, then Boynton himself stood up. “In view of the information desired I should like to ask the leniency of the court … in order that I have the opportunity to communicate with the Department of Justice in Washington.” Anderson finally relented, and so the urgent telegram went out to Washington for Mitchell Palmer to send his top radical expert, Mr. Hoover, to come help. The message was clear:
Either give Kelleher permission to answer the question, or be prepared to take the heat for refusing.
Edgar, hearing this story, admired the sheer brass of his bureau chief George Kelleher for standing up to the judge and saying No to his face. Kelleher was no fool; he was a graduate of Brown University, Georgetown University Law School, and a former federal prosecutor. Best of all, he knew how to keep secrets. Edgar liked this man Kelleher; he decided he deserved his help.
But that wasn’t all. There was another problem. How had the lawyers for the prisoners suddenly gotten to be so smart that they could seize control of the trial and run the government in circles?
To answer this, Boynton and Goldberg now had to give Edgar an introduction to the secret world of Boston back-room politics. Goldberg explained how he happened to belong to a
small, exclusive group called the Harvard Liberal Club that included many of Boston’s top lawyers. Goldberg had attended the Club’s meeting a few weeks earlier on the night that Judge Anderson himself, now presiding over this habeas corpus case, had given a speech blasting Mitchell Palmer and his Red
Raids as “hysterical” and “appalling.”
Since then, tensions had grown worse.
Henry J. Skeffington, Boston’s tough-talking federal immigration commissioner who operated the Deer Island prison, gave a speech to the Massachusetts Press Association where he shook his finger at the Harvard crowd directly: “I’ll take great pleasure in getting some of these Harvard Liberal Clubs
myself,” Skeffington had said. “Some of the Harvard Liberal Clubs which have been raising so much Cain around here—well, if I have a warrant in my pocket I’ll take pleasure in getting them.”
What exactly he meant by “getting” them, Skeffington didn’t say, but when Liberal Club members read his speech in the newspapers, they took it as a threat. They demanded that Skeffington be fired. “He has lost his head, has proved incompetent and has brought your administration into disrepute,” club president William P. Everts charged in a letter to Labor Secretary William Wilson.
Now, at the habeas corpus trial, Skeffington sat technically as the defendant, Anderson the presiding judge, and the fallout from the argument could be seen in the line-up of faces at the lawyers’ tables. Representing the prisoners, in addition to two local attorneys they’d hired originally, sat two wellknown professors from Harvard University Law School, the real brains behind the habeas team. They appeared as amici curiae, “friends of the court,” serving without pay at the request of their real-life Liberal Club friend Judge Anderson. One was Zechariah Chaffee, a first amendment scholar, and at his side sat the popular, politically-connected friend of leftists and Supreme Court justices, Felix Frankfurter. Everyone in court knew that, more than anyone, it was Felix Frankfurter calling the shots.
Reaching Boston’s federal courthouse that morning, Edgar must have marveled at the crowd of people clamoring to get into Judge Anderson’s chambers. The presence of two celebrities, himself and Frankfurter, made this trial a hot ticket for hundreds of curiosity seekers: newsmen, academics, prisoners’ families, and even a group of Harvard law students who came to watch Boston 237their professors. They packed the seats and jammed the lobby waiting for space to open up in the courtroom. One of those waiting to get in that morning was Mrs. Jesse Wilson Sayre, the glamorous blue-eyed blonde daughter of President Woodrow Wilson himself. Sayre, beyond being the president’s daughter, was also the wife of Francis B. Sayre, a Harvard Law School professor. She stood in line like everyone else, wearing a dark coat with gray fur trim and a pretty blue straw hat. She waited for half an hour before a guard recognized her and cleared a seat for her. “I am very much interested in these cases,” she told the handful of newsmen who buttonholed her during a recess.
“I believe it is the duty of everyone to inform one’s self on such matters. I am especially interested in deportation cases and wanted to hear the testimony.”
Besides, she said, she knew Felix Frankfurter, her husband’s friend, just as everyone else around Harvard knew the friendly, outgoing Felix.
Asked if she held “liberal views,” she just laughed.
Once inside the courtroom, Edgar noticed eyes on him from all around the chamber: “Considerable comment has been made by lawyers and others in attendance … on the appearance of extreme youth of John E. Hoover,” a Boston Post reporter noted. “Despite his boyish looks, however, I am informed
that Mr. Hoover is regarded as one of the ablest men connected with the department in Washington. He has been kept very busy since his arrival explaining that he is not a relative of the former food controller,” future president Herbert Hoover, who had held the post of Federal Food Administrator during the World War.
But “boyish looks” or not, Edgar soon made it clear who gave the orders at the government lawyers’ table. On the very first question of the day, resolving the prior day’s argument over Kelleher’s refusal to answer Judge Anderson’s question on the number of agents involved in the January raid, Edgar gave his signal and peace was restored. “I wanted to say that no disrespect was intended for the court yesterday,” lawyer Thomas Boynton announced, rising from his seat to do the talking.
He offered to have Kelleher answer Judge Anderson’s question privately in the judge’s chambers, and Judge Anderson agreed. Once this was done, they moved ahead. Edgar never rose to speak formally himself but instead sat and whispered to the other lawyers.
Still, several observers noted how his presence affected the quality of the government’s strategy “whose wits were reinforced for the first time by the presence of John E. Hoover, special assistant to the Attorney general, who engineered the ‘Red’ raids,” said the Boston Globe.
Judge Anderson now turned to the next potential bombshell. Somehow, the prisoners’ lawyers had managed to get their hands on a copy of a private letter from Justice Department officials in Washington, D.C., to Boston bureau chief Kelleher giving him instructions for the January raids. Frankfurter offered it into evidence and Judge Anderson directed that a clerk read it out loud. Louis Goldberg, the assistant U.S. Attorney, objected, but Anderson overruled him. Edgar, sitting at the government lawyers’ table, cringed at the spectacle. He had written these instructions himself a few weeks earlier, and here they were being read aloud in this roomful of strangers, leaking the government’s secret tactics to the enemy. Had he no right to privacy? Worst of all was hearing his own name mentioned in it: “On the evening of the arrests… I desire that you communicate by long distance to Mr. Hoover on matters of vital importance,” the clerk read from the letter, and again, “I desire that the morning following the arrests you should forward [reports] marked ‘Attention of Mr. Hoover’…”
After the clerk finished reading the letter and Boston bureau chief George Kelleher took the witness chair again, Edgar watched as Felix Frankfurter rose to start his cross-examination.
Edgar had never met Felix Frankfurter before this day and knew only vaguely of his reputation. Watching him, Edgar might have been struck by Frankfurter’s owlish face and his small, five-foot-five-inch frame, or the faint echo of a foreign accent in his voice. But what Edgar mostly saw was an articulate, composed, experienced litigator, much smarter, more polished and better prepared than others he’d faced in courtrooms or debates—perhaps the kind of lawyer Edgar himself aspired to become in the future. Today, though, Frankfurter was the enemy.
“How many men were in your arresting force?” Frankfurter stood like the law professor he was grilling a first-year student, his words clear and precise.
Kelleher answered matter-of-factly: between three hundred and five hundred, including federal agents and police. “Were they the only ones? Were there any volunteers?” For transportation purposes only, Kelleher admitted, private citizens who drove automobiles for them. “And the agents searched those arrested?” Yes, Kelleher said. “How many men were released that night for want of evidence?”
“That is impossible to tell. Each agent had a weeding out process of his own; that is, weeding out the aliens from the citizens, and so forth.”
“Why did you pick up any citizens?” Frankfurter asked.
“Well, it was done by mistake, if at all.” No one missed the point. In a few brief, almost casual exchanges, Frankfurter had led Kelleher to admit an eyepopping list of illegalities: warrantless arrests, warrantless searches, unauthorized use of non-deputized agents, and he had barely gotten started. As Frankfurter laid it out, Edgar saw the newspaper reporters scribble it all down word for word.
Felix Frankfurter had gotten the urgent telephone call from Judge Anderson on this case just a few weeks earlier. “I went [to Anderson’s office] and he told me, ‘Important habeas corpus cases are before me [and] the lawyer who represents them is plainly inadequate,’” he wrote later. “’He’s doubtless a conscientious fellow, but not equal to the problems presented in the cases.’” Anderson wanted Frankfurter to appear free of charge. “Would you do that?” he asked. Frankfurter hesitated, but not for want of a fee. Lawyers who defended Reds these days routinely found themselves being smeared along with their clients, and Frankfurter had twice already barely escaped losing his job in the past few months over these types of run-ins. Even the prestigious New York Law Journal , in talking about a recent I.W.W. case, had cautioned attorneys against defending suspects whom it considered traitors. “Lawyers especially may well consider most seriously whether they should give legal aid to such dangerous adversaries to our government and of our fundamental rights and liberties,” it warned in an editorial.
Still, Anderson pressed him to take the case. The stakes were high. Not only did fifty-three suspects still sit behind bars on Deer Island in late March 1920 as most of those freed on bail still faced deportation, but a bigger contest was under way in the country as well over the Raids. Felix Frankfurter understood this. If Mitchell Palmer could get away with his mass arrests and brutal treatment of people—citizens and immigrants alike—based on nothing more than guilt by association with vaguely-defined “communists,” then civil liberties had a bleak future in America. Certainly, this fight was just as important as any of the others he had risked his job over during the past year.
Yes, he told Anderson, he would do it, but only so long as he could bring along his Harvard colleague Zechariah Chafee as his expert on the First Amendment.
Now, he stood in Anderson’s courtroom making his stand. Critics would call him a Red one more time, but let them. He had survived these storms before. In fact, one reporter noticed how Frankfurter even made a point to wear a pinkish-red necktie that morning.
“As a matter of fact, there was a considerable proportion of United States citizens [among those arrested], wasn’t there?” Kelleher tried to deny it but, before he could speak, Frankfurter pulled out a newspaper clipping from Lynn, Massachusetts, reporting that thirty-eight out of the thirty-nine prisoners taken there had been freed almost immediately, almost half because they were citizens, and none had even been Communist Party members.
Kelleher said he had only a “very general” awareness of the situation there.
“What authority had you in your pocket for those arrests?”
“The instructions from the Department at Washington that warrants awaited some and that Communists could be held and warrants obtained by telegraph,” Kelleher said.
Arresting citizens without warrants? Arresting anyone without warrants? Again, he had made his point. Kelleher had no authority to make the arrests, and had not even made a theoretical case for the constitutionally-required “probable cause.” All he had was a note from a bureaucrat in Washington telling him to go ahead.
Frankfurter’s purpose in these questions went far beyond winning freedom for the Deer Island prisoners. He knew that Americans had no sympathy for immigrant Reds, and he wasn’t likely to change their minds. But however much they might hate radicals, Frankfurter still believed that most Americans valued the rule of law, or at least they resented it when government officials appeared too power hungry. If he could show that the Justice Department had repeatedly broken the law in conducting these raids, the people might listen. To Frankfurter’s mind, the chief victims were not the Reds themselves but, instead, the law and the Constitution. If an aggressive Attorney General like Palmer could ignore it whenever he had a wave of public passion on his side, the law meant nothing.
“Weren’t prisoners searched without warrants?”
“That is true, according to our instructions.” Kelleher answered. It wasone more violation to add to the list.
“And in those original instructions, it was left to the discretion of the officer as to a warrant?”
“That is true.”
“Did you find any instruments of violence on the people, such as bombs, guns, and what not?”
“Nothing in particular, excepting a knife-gun, an ingenious device designed, by the release of a blade, to propel a bullet from the end of a knife.”
“Were prisoners brought in in chains?” Frankfurter knew that everyone in Boston had seen the newspaper photos of Red prisoners being marched through the streets in shackles and handcuffs en route to Deer Island. Kelleher could not deny it nor even try to justify it.
“I have no knowledge of such a thing. But I know precautions were necessary in bringing in larger numbers over great distances,” he said.
Frankfurter then turned to what had been the most explosive part of the instruction letter from Washington that the clerk read a few minutes earlier, the part dealing with secret spies: “If possible you should arrange with your under-cover informants to have meetings of the COMMUNIST PARTY and the COMMUNIST LABOR PARTY held on the night set [for the raids],” the letter had read, suggesting that Justice Department agent provocateurs actually ran the Communist organizations.
“As a matter of fact, you had reason to know that these meetings of the Communist parties would be called
for the night of January 2, didn’t you?…. You even stimulated the calling of these meetings, didn’t you?”
“That is a possibility, but I can’t say personally,” Kelleher said, damning himself once more with an off-handed admission.
Judge Anderson now interrupted from the bench. “Do you know when government participation in these parties began?” he asked. “Have you any personal knowledge of the extent of Government participation in this district?” No, Kelleher said.
How many undercover agents did he have working under him? “They are a floating population, Your Honor,” Kelleher went on. “For instance, if I wanted a Russian worker for any special purpose, we might get him from New York for that case…. I have made it a point to get men who have not been connected with any private detective agency. Many of our men are lawyers and university graduates.” Their goal was to observe, he insisted, not to make trouble.
“Well,” Judge Anderson replied, “in these times of hysteria, I wonder no witches have been hung during the last six months.” An eerie silence hung over the courtroom for a moment as every reporter jotted down what Anderson had just said. His remark would appear in newspapers across the county, a federal judge comparing Palmer’s Red Raids with the Salem witchcraft trials.
Felix Frankfurter finished his questioning of Kelleher after a few more questions and then sat down. He would take turns with his fellow professor, Zechariah Chaffee, questioning other officials the rest of the day. But the damage had already been done.
Edgar watched in silence, sitting at the government table and whispering occasionally to the other lawyers, as Kelleher, his best bureau chief and a man who knew how to keep secrets, fell into trap after trap. Edgar could not help but notice how chummy things were between Judge Anderson and his two
Harvard Liberal Club friends, Frankfurter and Chafee, the judge taking turns with the lawyers mocking Edgar’s operation. He saw how Frankfurter flitted about the room, sharing private jokes and asides with the lawyers, charming even Edgar’s own federal prosecutors Boynton and Goldberg. To his eye, this was no fair courtroom. It was a joke, a setup from start to finish, a stacked deck, and the judge’s wisecrack about hanging witches was sheer grandstanding. By Friday, Edgar had seen enough. He went home to Washington.
Goldberg contacted him the next week and asked him to come back to Boston and testify in the case. Edgar refused.
There was nothing else he could do in Boston in that kangaroo court. Felix Frankfurter might have won today’s battle, but Edgar would not let him win the whole war.
Besides, he had another fight to finish. On the same day as he watched Frankfurter skewering his bureau chief Kelleher on the witness stand, Edgar had gotten word that Louis Post had thrown one more fistful of sand in the government’s gears, canceling a deportation order in a test case. If this stood, it meant that a thousand others would be thrown out with it. This too must not stand. For Edgar, it was a confusing and frustrating moment, attacked on all sides, betrayed and mocked. But he remained confident. He could always count on Mitchell Palmer. Palmer would know what to do.