Appendix — United States ex rel. Eichenlaub v. Shaughnessy

Supreme Court brief1949

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INDEX TO JOINT APPENDIX.

Page

a SD Sosscciecasubessecduddcerecteeesus 2

Clerk’s Statement of Docket Entries ................ 2

Excerpts from Testimony and Proceedings .......... 3

Witnesses :

so. co noend 6606096 bbe0eens ees 78

ee ou ee 110

et i udiiueavetuds bee ureneees 113

ERS REA nm Spe eee 8 85

i co) csevdnes beeduneee kas soovees 148

ET co cccace oc ceetensceserevess &8

a EE a OE MeO a eB 86

SE RE ARO 108

EERE ES SR ee epee eR 21

SD I obec dewdeees vs véunen 26, 105, 150

Cr es eco cccusabavate cies 12, 37, 99

Opening Statement on behalf of the Defendant..... a7

Argument to the Jury on behalf of the Defendant... 156

(losing Argument on behalf of the Plaintiff........ 163

i Or Cac scpcesdaceuséeucesessoos esse 168

Defendant’s Requests to Charge ................. 178

Argument on Motions in Arrest of Judgment and for

I ee cle ck ir NE oe No 182

es oe ka oe Cau a 205

Statement of Gerhart Eisler before Imposition of

PCS d cree ae eb enews vr ee dene veces woe 209

ee i cs cc ddeesVewcn db cuet 215

ee ee i ee woneersetvee eels 214

Pt. oi iene bes cher s shoes cedaenecno 4. 214

ee ede e eae da cie6 dun Bhe Cu.edeue ns 215

Defendant’s Motion to Dismiss Indictment .......... 216

es ee ee ea Cedi a hk seu se ede an 217

Defendant’s Motion for Bill of Partieulars .......... 221

Motions to Dismiss the Indictment and for Bill of Par-

RELI AE TS AED SS LEED A 221

ca aed b hpedenss sees 222

EERIE IES an ee 226

Motion in Arrest of Judgment ..................... 228

Defendant’s Motion in Arrest of Judgment and Motion

RR a

SG 0 SND noes peesnwscececacesetieees 229

ee OD od ncceuscausencsesuceeuvas 229

i (i .. vi bie og ceehhbdwese elecedueeesses 230

Original Print

Proceedings in United States Court of Appeals

for the District of Columbia 233

Opinion, Clark, J... ..... 233

Dissenting opinion, Pretty man, ice ie as Pee

| A ES a i ne

Petition for rehearing .._.. .. 247

Order denying petition for rehearing 250

Designation of record............ dus <a

SR ee 252

Order extending time for filing petition for writ

I ane le ay a sss cs va elu oo ve 252

RODE BRE AEN YG, OPI SE -

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IN THE

United States Court of Appeals

Districr or CoLuMBIA.

No. 9582.

GERHART EISLER, Appellant,

UNITED STATES OF AMERICA, Appellee.

Appeal from the District Court of the United States for the

District of Columbia

JOINT APPENDIX.

Filed Jun 27 1947

District Court of the United States for the

District of Columbia

Criminal No. 219-47

Unitep Srates or AMERICA

Geruart EISLER

Notice of Appeal

Gerhart Eisler 48-46 47th St., Woodside, Long Island, N. Y.

(Name and address of appellant)

David Rein 1105 K St., Washington, D. C.

(Name and address of appellant’s attorney)

Offense Violation of 2 U. 8. C. 192

Date of judgment June 27, 1947

Brief description of judgment or sentence 12 months im-

prisonment and $100 fine.

Name of prison where now confined, if not on bail

I, the above-named appellant, hereby appeal to the Court

of Appeals of the District of Columbia from the judgment

above-mentioned on the grounds set forth below.

GerHart EIsLter

Appellant.

Davip Rein

Attorney for Appellant.

Date June 27, 1947

B United States Court of Appeals for the District of

Columbia Filed June 27 1947

Form of Clerk’s Statement of Docket Entries to be

Forwarded Under Rule IV

* a * * * * * * a *

1. Indictment for Vio. Sec. 192, Title 2, U. S. Code

filed February 27, 1947

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—

2. Arraignment April 22, 1947

3. Plea to indictment Arraigned, Plea Not Guilty, April

22, 1947

4. Motion to withdraw plea of guilty denied , 19

5. Trial by jury June 4, 1947

6. Verdict or finding of guilt Verdict Guilty as indicted.

June 10, 1947

7. Judgment—(with terms of sentence) One Year and

One Thousand Dollars fine entered June 27, 1947

8. Notice of appeal filed June 27, 1947

Date June 27, 1947

Attest Cuartes E. Stewarr

Clerk.

By: Margaret L. Bosweuu

Deputy Clerk

Excerpts from Testimony and Proceedings

2 PROCEEDINGS

The Deputy Clerk: Case No. 219-47, United States vs.

Gerhart Eisler.

* * * * * 2 * * * 7

The Court: I am going to announce my ruling on the

affidavit of prejudice that has been filed. In view of the fact

that the jury panel is in the courtroom, I thought it only

fair to the defendant, in order that no juror might be preju-

diced against him as a result of this matter, that I

3 should announce my ruling from the bench outside

of the hearing of the jury panel.

I am filing a memorandum striking the affidavit of preju-

dice. I shall read it to counsel, and I shall file the original

memorandum.

‘On May 29, 1947, the defendant filed an affidavit of

prejudice. The disposition of such an affidavit necessarily

involves a delicate task for the judge to whom it relates.

Nevertheless, in the interests of orderly administration of

justice, it is the judge’s duty, unpleasant though it may be,

to strike such an affidavit and proceed with the case if it

fails to comply with the requirements of law (U. S. Code,

title 28, sec. 25).

‘‘The court has reached the conclusion that in this case

the statute has not been complied with and that the affi-

davit should be stricken for the following reasons:

‘*First, the affidavit is filed too late. Motions to dismiss

the indictment were argued on the merits before me on

Friday, May 23, and disposed of on that day. Several days

previously to that, David Rein, attorney of record for the

defendant, called on me in chambers in company with As-

sistant United States Attorney Hitz, and requested a con-

tinuance of the motion and of the trial, which was set for

Monday, May 26. After hearing the application, I denied

the continuance, except to the extent of continuing

4 the trial until May 27. On the afternoon of May 23,

after the motions to dismiss were argued and dis-

posed of, Mr. Rein accompanied by Mr. Isserman, who

stated that he would be trial counsel for the defendant, and

Mr. Hitz called on me in chambers, and Mr. Rein and Mr.

Isserman requested a continuance of the case because Mr.

Isserman had just received word that his brother had died.

After some diseussion, I continued the case until Wednes-

day, June 4, for which it is now set. At none of the con-

ferences or appearances before me, either in court or in

chambers, was there any suggestion made that I should

recuse myself or that I was disqualified. The affidavit of

prejudice, as stated above, was filed on May 29, some days

after the motions to dismiss were heard and disposed of on

the merits and after a continuance had been granted. Un-

der these circumstances, the motion is not made in due time,

and, in the opinion of the court, is not made in good faith

but for dilatory purposes.

‘«Second, the affidavit is insufficient on its face. It is well

settled that an affidavit of prejudice must state facts show-

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ing a personal prejudice on the part of the judge as against

the party individually, or a personal bias or prejudice re-

garding the justiciable matter pending before the judge,

Berger v. United States, 255 U. S. 22, 23; Hurd v. Letts, 80

App. D. C. 233; Price v. Johnston (C. C. A. 9th) 125 F. (2d)

806; Johnson v. United States, 35 F. (2d) 355. In this case

there is no such showing. The affidavit alleges facts

5 showing that the judge is a personal friend of the

Director of the Federal law enforcement agency

which has had oceasion to investigate the defendant, and

that the head of that agency has referred to Communists

in uncomplimentary terms. The defendant states in his

affidavit that he considers himself a member of the German

Communist movement. It is further stated that the judge

was legal adviser to the law enforcement agency prior to

his appointment to the bench. These allegations fail far

from meeting the test required by the authorities which

have construed U. 8. Code, Title 28, Section 25. It might

be said in passing that if friendship with the head of a law

enforcement agency is a ground for disqualifying a judge,

then any judge of this court who happens to be a friend of

the Superintendent of Police could never sit in a criminal

ease. Such a conclusion would be manifestly absurd. More-

over, the allegations relating to Communism are not ger-

mane to this case, since Communism is not an issue. The

indictment involves a charge of willful default in failing to

comply with a subpoena issued by a Congressional com-

mittee. In fact, if opposition to Communism were a ground

for disqualifying a judge, I dare say it would be a baffling

problem to find a Federal Judge who is qualified to sit.

‘‘Third, the certificate attached to the affidavit is not

signed by counsel of record in this case, as required by

statute. Counsel of record in this case is David Rein

6 of Washington, D. C., who is a member of the bar

of this court. The certificate is executed by Carol

King, who, it is understood, is a member of the bar of tho

State of New York, and who is associated with Mr. Rein in

this case. It is important that the certificate be made by

counsel who bears a direct responsibility to this court.

‘‘For the foregoing reasons the affidavit is stricken and

the trial will proceed as set.

‘Having thus disposed of the affidavit, I think it would

be appropriate for me to state that I have no recollection

of ever hearing of the defendant in this case until I saw

his name in the newspapers several months ago.”’

Nt etre pate ho 4 Go

: 17 The Court: I will tell you what I shall do. Iam

: going to deny the questions which I have marked—

and I shall ask the reporter to insert them in the record,

so that the fact will appear that these questions have

18 been propounded by defense counsel, have been sub-

| mitted to the Court, and the Court has declined to

propound them to the prospective jurors.

: (The questions just referred to by the Court are as fol-

4 lows :)

4 To what organizations do you belong?) Community, Fra-

ternal, Patriotic, Veteran?

Has such organization in the last two years passed any

resolution dealing with aliens? Communists?

If so do you support such resolution?

Do you think aliens are entitled to the protection of the

Bill of Rights?

Do you think Communists are entitled to the protection

: of the Bill of Rights?

Do you think alien-Communists are entitled to the pro-

tection of the Bill of Rights.

Do you think aliens are entitled to the same protection

against unlawful police action as citizens?

Do you think Communists are entitled to the same pro-

tection against unlawful police action as anyone else?

| Do you think alien-Communists are entitled to the same

; protection against unlawful police action as anyone else?

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6 Nees

‘

Do you feel that your position with the Government, or

that of any of your relatives, would be endangered if you

voted to acquit Gerhart Eisler?

7 * * al * 7 * 7 . 7

32 The Court: Counsel for the respective parties

have asked me to propound certain additional ques-

tions to you.

Has any juror, or any member of the family of any juror,

or any close friend of any juror, ever been a member of any

one of the following organizations? And if any one of you

answers a question in the affirmative, please rise.

The Communist Party?

(There was no response.)

The Court: The Young Communists League?

(There was no response.)

The Court: The American Youth for Democracy?

3:3 (There was no response.)

The Court: Civil Rights Congress?

(There was no response.)

The Court: Washington Bookshop?

(There was no response.)

The Court: Joint Anti-Fascist Refugee Committee?

(There was no response.)

The Court: National Council of American-Soviet Friend-

ship?

(There was no response. )

The Court: American Russian Institute?

(There was no response.)

The Court: American Committee for the Protection of

the Foreign-born?

filing

2 opened —

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(There was no response.)

The Court: Free Germany Movement?

(There was no response.)

The Court: Has any one of you discussed this case or

any matter involving the defendant, Eisler, with anyone?

(There was no response.)

The Court: Has anyone read the article that appeared

in this morning’s Times-Herald or in this morning’s Wash-

ington Post concerning this case?

30 The Court: Mr. Isserman, in view of the fact that

the jurors, except those who have otherwise an-

swered, have stated, as they have indicated, that they have

not heard anything at all about this defendant, it seems to

me to be inadvisable for me to ask the specific questions

that are on your list.

Mr. Isserman: May we approach the bench on that

question?

The Court: Yes, you may do so.

(Counsel for both sides approached the bench, and the

following occurred :)

36 The Court: If you press the question, I shall ask

it: ‘If you have read anything about Eisler, have

you read anything charging him with being a foreign agent,

an atomic spy, the master mind of the Communists?’

Mr. Isserman: I think we will withdraw that.

The Court: I am suggesting that for the defendant’s

protection.

Mr. Isserman: Your Honor’s point is well taken.

* * @ * e e e@ * o *

37 (Counsel returned to the trial table, and the fol-

lowing occurred :)

ms ty RONNIE Taye a ate

COPY

The Court: Have any of you read anything about this

case in the publication known as the Daily Worker or the

publication known as the New Masses?

(There was no response.)

38 The Court: How many of you are employed by

the Government? Will those of you who are please

rise,

(A number of jurors rose.)

* * * o * a * . * *.

42 The Court: Now, I am asked by defense counsel

to ask you these questions:

Does any one of you have any prejudice against aliens?

(There was no response.)

The Court: Does any one of you have any prejudice

against Communists?

(There was no response.)

The Court: If it develops in this trial that the defendant

is both an alien and a Communist, would that facts

43 prejudice you against him in any way and prevent

you from deciding the issues of this case solely on

the evidence?

(There was no response.)

The Court: I am further asked by defense counsel] to

inquire whether any of you belong to any of the following

organizations;

First, the American Legion.

The Deputy Clerk: Oren A, Prather, juror No, 22, Crim-

inal Court No, 3.

Walter Smith, juror No, 24, Criminal Court No, 3.

George W. Thomas, juror No. 27, Criminal Court No. 3.

Frank Dean, juror No, 6, Criminal Court No. 3.

Jerry R. Cassell, juror No. 11, Criminal Court No. 1.

Raymond L. Bland, juror No. 2, Criminal Court No. 1.

Dudley C. Bosworth, juror No. 5, Criminal Court No. 1.

The Court: 1 am also requested by counsel for the de-

fendant to ask whether any of you have ever been mem-

bers of the Ku Klux Klan.

(There was no response.)

The Court: Or of an organization known as Columbians,

Incorporated.

(There was no response.)

The Court: Or of the Steuben Society.

(There was no response.)

The Court: I am also requested by defense counsel

44 to ask you whether any of you are members of the

Knights of Columbus. Will you please rise?

(There was no response.)

The Court: I am also asked by defense counsel to ask

you whether any of you belong or have belonged to any

organization which engages in anti-alien activities or prop-

aganda.

(There was no response.)

The Court: Does any one of you read a publication

known as Cross and Flag?

(There was no response.)

47 The Court: Counsel for the defendant has asked

48 me to propound certain additional questions to some

of the jurors, and I am doing so at the request of

defense counsel.

Juror number 6, I am requested to ask you whether you

support the program of the American Legion with refer-

ence to the exclusion and deportation of aliens. Just an-

swer ves or no.

)

‘

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Juror No. 6, Frank Dean: Yes.

The Court: You do.

49 The Court: Now, I am asked to repeat again the

question as to whether or not any of you are preju-

diced against aliens; whether any of you are prejudiced

against Communists; whether, if it should appear that the

defendant is an alien and a Communist whether

a0 that would prevent and preclude you from deciding

this case solely on the evidence?

I assume that your silence is a negative answer to my

question.

Mr. Isserman: If the Court please, as to those questions

which were not asked will they be incorporated into the

record in the same manner as the others?

The Court: If you wish them to be incorporated I will

turn them over to the reporter and they will he incorpo-

rated.

(Thereupon the questions referred to by counsel are as

follows :

‘J. Did he believe any portin. vi the article he read?”’

‘*4. What did he believe ‘u the series of articles he read

about February 6 be .cing before Un-American Commit-

tee?’’

“5, What opinion did he form on the basis of what he

read?’

51 Mr. Isserman: Now, at this time we believe one

juror who should be challenged for cause is juror

number 6, who has stated he supports the policies of the

American Legion relative to the exclusion and deportation

of aliens. We believe, in view of the fact that the defendant

in this ease is an alien, that is bound to be important in this

ease because of his support of those principles.

The Court: Does the Government wish to be heard?

Oe ee

Mr. Hitz: I do not think it is sufficient cause for excusing

him for cause.

The Court: I don’t either and I will not excuse him

except by consent. I do not think it is ground for challenge.

Challenge overruled.

o . * *. * * o o * .

j (Covnsel returned to the trial table, and the following

3 occurred :)

Mr. Isserman: Your Honor, at this point we would

52 like to challenge number 6.

The Deputy Clerk: Juror number 6, Frank Dean,

: you are excused. Have a seat in the panel, please.

(Frank Dean was excused and left the jury bex.)

y . . . . ° . . * . *

: Mr. Isserman: At this time, if the Court please, we would

. like to ask that juror number 8 be excused in our behalf.

The Deputy Clerk: Juror number 8, David D. Druskin,

you are excused, and resume your seat in the panel.

(David D. Druskin was excused and left the jury box.)

* e 7 . . + o * * .

03 Mr. Isserman: If the Court please, we ask that

juror number 12 be excused in our behalf.

4 The Deputy Clerk: Juror number 12, Cecil Gordon.

' Juror Gordon: Yes, sir.

: The Deputy Clerk: You are excused. Have a seat in the

y panel.

(Cecil A. Gordon was excused and left the jury box.)

) . . . * * . * * . .

60 John Parnell Thomas

oe * * * * 9 e * e *

Direct Examination

By Mr. Hitz:

Q. Mr. Thomas, will you give your full name? A. John

Parnell Thomas.

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Q. Are you a member of the House of Representatives

from New Jersey? A. I am.

Q. Were you designated the Chairman of the so-called

House Un-American Activities Committee by resolution of

the House of Representatives of the Eightieth Congress?

A. I was.

Q. Was that in January of 1947? A. It was.

Q. Approximately January 3? A. That is correct.

Q. Is that a bipartisan standing Committee, Mr. Thomas?

A. It is.

Q. Did you commence to function as a Committee pur-

suant to that resolution, Mr. Thomas? A. I did.

61 Q. And were you functioning as its Chairman, and

was the entire Committee functioning under the res-

olution in February, 1947? A. It was.

Q. And particularly at the 23rd of January, 1947, was

that Committee functioning pursuant to that resolution?

A. It was.

Q. And you on that date as its Chairman? A. I was.

Q. Did you cause a subpoena to be issued on the 23rd of

January, 1947, for a certain person? A. I did,

Q. Who was that person? A. Gerhart Eisler.

Q. Now, on the 4th, and the 6th, particularly of Febru-

ary, were you again functioning pursuant to the resolution

as a Committee? A. We were.

Q. On the 6th of February, 1947, did Mr. Eisler appear?

A. He did.

(). Did he appear in answer to subpoena, Mr. Thomas?

A. He did.

Q. At that time was he in custody of any authorities?

A. He was.

Q. Mr. Thomas, is your Committee empowered to

62 administer oaths to witnesses? A. We are.

Q. And have you done that in the conduct of Com-

mittee business since you have been Chairman? A. We

have.

Q. Have you done that invariably or have there been

exceptions to the rule at some time? A. I do not recall any

exception.

Q. Now, on February 6, 1947, was a request made of Mr.

Kisler to be sworn and testify? A. There was.

Q. Who made that request of him? A. I do not quite

understand the question.

Q. Who made the request of Mr. Eisler to be sworn to

testify? A. First Mr. Stripling.

’ Q. Do you recall what Mr. Kisler’s reply was?) A. Mr.

; ‘isler replied that he would not testify.

Q. At that time did Mr. Eisler have counsel, Mr. Thomas!

A. He did.

Q. And who was the counsel? A. Carol King.

Q. Mrs. Carol King? A. That is correct.

63 Q. Who appears for him here today? Do you see

her today, by the way, Mr. Thomas’? A. Yes, I do.

(). Was she present in the Committee hearing room on

the morning of February 6? A. She was.

Q. Did there come a time that morning when Mr. Kisler

was again requested to take the oath? A. That is correct.

(). Would you tell us what request was made of him and

what he said? A. I made the request that he stand and

a raise his right hand.

Q. To which what did he say? A. ‘‘No.”’

Q. Was a further request made of him, Mr. Thomas?

A. I do not recall.

Q. Did he make any statement with regard to what he

wanted to do? Just answer ‘‘yes’’ if he did, or ‘‘no’’ if

he didn’t, and then we will go into it. A. No, I would like

to explain it.

Q. Yes, please do. A. He was about to say that in con-

nection with—

Mr. Isserman (interposing): I object, if the Court

please; I do not know how this witness can know

64 what anyone was about to say. It is speculation on

the part of the witness.

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The Court: I do not know until the witness finishes his

answer.

Mr. Isserman: Whatever his answer is, Your Honor, it

cannot be factual.

The Court: You may proceed, and you may note your

objection.

The Witness: I was about to say, based on a subsequent

act, that he would not testify, that he would not be sworn

until he was able to make a statement.

By Mr. Hitz:

{). Did he finally say that, what you have just said? A.

No.

(). Did he testify, Mr. Thomas? A. No.

Q. Did he make any request of the Committee? A. No.

(). Did he have anything in his hand, Mr. Thomas? A.

No.

{). Did he make any request to make a statement of any

sort? A. No.

Q. Would you tell us what it was that he did say

65 to the Committee? A. Well, to me he was very

arrogant.

Mr. Isserman: I object, if the Court please, and ask that

it he stricken out, and that the witness be admonished not

to make such comment.

The Court: I suggest that you direct your answer to the

question,

The Witness: What was the question?

By Mr. Hitz:

(). What did Mr. Eisler say? A. I do not recall any-

thing other than ‘‘no.”’

Q. And do you recall whether he said anything about

making a three-minute statement?

Mr. Isserman: I object to that on the ground that the

witness has already answered and that he has exhausted

his recollection.

The Court: Objection overruled.

at ANS

By Mr. Hitz:

Q. Did Mr. Eisler say anything with reference to mak-

ing a three-minute statement to the Committee? A. I do

not recall that.

Q. Do you recall anything that was said by you to Mr.

Kisler concerning a statement that he might be permitted

to make? A. Yes, sir, I made a short statement to Mr.

Eisler, a copy of which I have in the official document

with me.

66 Q. I am afraid you did not understand my ques-

tion, or perhaps I did not make it clear.

Did you tell Mr. Eisler anything with respect to whether

or not he would be permitted to make a statement? A. To

the best of my recollection I told him that he could make

a statement after he was sworn,

Q. And do you recall what he replied, if anything, to

that? A. No, but it was right along the same line, ‘*No.”’

Mr. Isserman: I ask that the second half of that answer

be stricken. The witness has answered that he did not

recollect anything else, and then made some further remark,

The Court: Motion denied.

By Mr. Hitz:

(). In any event, did he raise his hand to be sworn! A,

Never.

(). Did he testify under oath? A. No,

(). On that date was a quorum present, Mr. Thomas! A,

There was.

Cross Examination

By Mr. Isserman:

67 (). Mr. Thomas, was there a stenographie record

' tuken of the session at which Mr. Kisler appeared

on February 4, 19472 A. There was a stenographie record

kept of his appearance on February 6, 1947.

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Q. I stand corrected. That is the date I had in mind.

Who was the stenographer who took the minutes of that

session? A. The regular House reporter that we use each

time.

(). Do you know his name? A. No, I don’t.

(). Can you ascertain his name, Mr. Thomas? A. T can

eet his name, yes,

Q. Now, on the morning of February 6 was Mr. Eisler

in the hearing room when you called the opening of the

Committee session? A. He was.

(). Was he by himself? A. To the best of my recollec-

tion he was not by himself,

(). Do you know with whom he was in the hearing room?

A. To the best of my recollection he was with his counsel,

Carol King.

Q. And would you say he was with any other persons

that morning except his counsel, Carol King? A. I did not

notice.

68 (). Did you notice in the hearing room while Mr.

Kisler was present, one R. J. Brosman?

Withdraw that question,

Did you notice in the hearing room while Mr. Eisler was

present one R. J. Brosman, security officer of the Depart-

ment of Justice? A. I reeall seeing two United States

marshals. The room was jammed packed with people.

(). You don’t know the names of these two United States

marshals?

The Court: I wonder if that could not be stipulated, be-

cause it was mentioned by Mr. Hitz in ais opening.

Mr. Isserman: If the Court please, this also goes to the

credibility of the witness, from the standpoint of what he

recollects,

The Court: Very well I was only suggesting that it

might be stipulated. However, you may proceed, if you

prefer.

Mr. Isserman: We prefer that.

By Mr. Isserman:

Q. Now, you did notice two United States marshals in the

room, did you not? A. That is correct.

Q. Do you know whether or not, or do you recollect

whether or not Mr. Stripling asked any questions of these

two marshals before Mr. Eisler was taken out? A.

69 No.

Q. You don’t recall that? A. I recall Mr. Strip-

ling saying something but I would not know what it was.

Q. Do you recall asking any question officially at that

hearing as to how Mr. Eisler came to the hearing room!

A. Leouldn’t say one way or the other.

(. Did you see Mr. Eisler leave the hearing room? A.

I did.

(). Did he leave accompanied only by Mrs. Carol King?

A. No, he left accompanied by the two United States

marshals.

Q. One on each side of him when he left? A. I couldn’t

say whether there was one on each side of him.

Q. But you knew he was leaving in the custody of two

United States marshals, did you not? A. I did.

Q. Did you know also, Mr. Thomas, that Mr. Kisler was

brought to the hearing room in the custody of the two

United States marshals you have described? A. I will as-

sume that,

(). Don't you know that to be a fact? A, I would assume

80, Ves.

(. Did Mr. Kisler at any time in the course of the

70 hearing say that he came there voluntarily in re-

sponse of a subpoena? A, I do not recall Mr. Eisler

saying very much of anything except ‘‘No.”’

Q. And you do not recall Mr. Eisler saying anything

about whether he came there voluntarily in response to a

subpoena? A. I do not recall,

Q. On the morning of February 6th, before the hearing,

didn’t you take steps to insure Mr. Kisler’s appearance?

A. On that particular morning?

Mg RSS NPM

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Q. Yes. A. I took no steps.

. Mr. Thomas, do you recall at the opening of the

hearing that you directed Mr. Stripling to call the

first witness that morning? A. That is correct, sir.

Q. Lam referring to the hearing on February 6. A. Yes,

sir.

Q. And do you recall Mr. Stripling saying, ‘‘ Mr, Gerhart

Kisler, take the stand’’?’ A. That is correct.

Q. Do you recall Mr. Kisler saying, ‘‘I am not going to

take the stand until I have made a few remarks’’! A. I

remember Mr, Eisler saying, ‘‘I am not going to take the

stand.’’

Q. And do you recall him saying, ‘‘I am not going to

take the stand until I make a few remarks? A. No.

(). Do you recall Mr. Stripling asking Mr. Eisler

72 if he had counsel with him’ A. That is correct.

(). Do you recall what Mr. Kisler’s answer was!

A. Yes, I do.

«. Now, Mr. Eisler—I mean Mr. Thomas—did you take

any action in respect to admitting counsel for Mr. Eisler?!

A. Yes, I did.

(). And what was done on that occasion? A. I told Mr.

Eisler he could have counsel.

(). And then did you ask Mr, Eisler to take the oath! A,

I did.

Q. And then did Mr, Eisler indicate that he desired to

make a few remarks before he was sworn! A. No, sir.

Q. Isn’t it a fact that Mr. Eisler said on a number of

occasions, ‘‘ You will not swear me in before you hear a few

remarks?’’ <A. He stated, ‘‘You will not swear me in,”’

but I do not think the record shows ‘‘a few remarks.’’

Q. I am now asking you to give us your recollection, not

what the record shows. A. It is my recollection he did not

say what you said.

Q. Do you remember Mr. Fisler saying ‘‘l am ready

to answer all questions, to tell my side,’ in answer to

73 a direct question from you, ‘‘You refuse to be sworn

in? Do you refuse to be sworn in, Mr. Eisler?”

Don’t you recall Mr. Eisler saying that? A. I have the

record here, the same record you have, if His Honor will

let me recall exactly.

The Court: Yes, you may refer to anything that will

refresh your recollection.

By Mr. Isserman:

Q. Mr. Thomas, have you in front of you now a printed

document entitled ‘‘Investigation of Un-American Propa-

eanda Activities in the United States’’?

. * * * ¥ * * * - *

Q. The document is further entitled, “Transcript of

Proceedings, Committee on Un-American Activities, House

of Representatives, Hightieth Congress, First Session,”

and bears date ‘“‘February 6, 1947,’ and the legend,

‘‘Printed for the use of the Committee on Un-American

Activities,’’ and ask you if that is the printed document

which you have before you? A. Except that there is some

additional matter on the face of my document.

74 Q. Yes, but everything I read to you is on that

document, is it not? A. Yes, sir, that is true.

Q. I was simply saving time not to read the rest. A.

That is right.

Q. Now, that was printed for the use of your Commit-

tee, was it not? A. Yes, that is right, and printed for the

use of Congress.

(). And is the document which the Committee uses offi-

cially? A. That is correct.

Q. Now, I ask you to turn to page 2 of that document

and call your attention to the third line from the bottom

in which the following appears:

“The Chairman.’ That is referring to yourself, is it

not, Mr. Thomas? A. That is correct.

Q. ‘You refuse to be sworn in?’ Do you refuse to be

sworn in, Mr. Eisler?’’

il e PTE NL EO ER TS Oy %

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_ acai

And then Mr. Eisler replies: ‘‘I am ready to answer all

questions, to tell my side.’’

Isn't that what Mr. Eisler answered in response to

that question you put, Mr. Thomas? A. That is correct,

but—

75 Q. (Interposing) Now, just a minute—

The Court: Let the witness finish.

Mr. Isserman: Just a minute, if the Court please—

The Court: Let the witness complete his answer.

The Witness: But for one whole page previous to that

he had not only refused, but also said nothing about mak-

ing a statement.

Mr. Isserman: If the Court please, I ask that that be

stricken on the ground that it is a conclusion by this wit-

ness as to what had happened previously.

The Court: Objection overruled.

80 Louis J. Russell

Direct Examination

By Mr. Hitz:

81 Q. Give your full name, Mr. Russell. A. Louis J.

Russell.

Q. What is your occupation? A. I am investigator for

the Un-American Activities Committee.

Q. Were you employed in that way in January and Feb-

ruary, 1947? A. I was.

Q. Under the direction of the Chairman, Mr. Thomas?

A. I was.

Q. I show you Government Exhibit 5 for Identification.

Can you identify it? Answer yes or no. A. Yes.

Q. What is it? A. It is the subpoena calling for the ap-

pearance of one Gerhart Eisler, 48-46 47th Street, Borough

of Queens, New York.

Mr. Hitz: I think you have answered the question.

Your Honor, I offer this subpoena in evidence.

Mr. Isserman: May we examine it, please?

(Mr. Hitz handed a paper to Mr. Isserman.)

Mr. Isserman: No objection.

The Court: It may be admitted.

(Subpoena, Government Exhibit 5 for identification, was

received in evidence. )

By Mr. Hitz:

Q. Mr. Russell, are you familiar with the signature

82 of Mr. Thomas, the Chairman? A. I am.

(). Does it appear on Government Exhibit 5? A.

Yes, that is the signature of J. Parnell Thomas, Chairman

of the Committee on Un-American Activities.

Q. When did you receive that subpoena to Mr. Kisler?

The Court: May I see this?

(Mr. Hitz handed a paper to the Court.)

The Court: You may proceed.

By Mr. Hitz:

Q. When did you receive that subpoena, Mr. Russell? A.

On January 23, 1947.

Q. From whom? A. From the office of Mr. Thomas.

(. At the same time did you also receive a pink copy of

the same document? A. I did.

Q. Did you receive instructions from Mr. Thomas as to

what to do with the pink copy and also with the copy which

is Government Exhibit 5? A. I did.

Q. What did you do as the result of your instructions?

A. Well, I went to New York on January 23, and I con-

ducted some other investigation, and on the morning of

January 24, 1947, at about 8:30, I served Gerhart

83 Eisler with the original of the subpoena and left

with him a pink copy of the original.

SIF EG RT ATION OE IT

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(). Where did you serve Mr. Kisler? A. At his residence,

48-46 47th Street, Borough of Queens, New York City, New

York.

Q. Have you any personal knowledge as to whether or

not at that time he was in custody of any officials? A. No,

he was not.

Q. Did you make a return on Government Exhibit 5 of

the service that you made of the pink copy? A. Yes, I did.

The Court: I suggest that the witness identify the per-

son whom he served.

By Mr. Hitz:

Q). Do you see that person in Court here? A. Yes, I do.

(). Where is he? A. He is sitting by, I believe, Mr. Isser-

man. I believe that is the name.

Mr. Isserman: Indicating Mr. Hisler.

Mr. Hitz: May I read the subpoena at this time, Your

Honor?

The Court: Yes, indeed.

Mr. Hitz: (Reading) ‘‘Original. By authority of the

Ilouse of Representatives of the Congress of the

H4 United States of America.

‘To the Sergeant at Arms, or his Special Mes-

senger :

“You are hereby commanded to summons Gerhard Eisler,

48-46 47th Street, Borough of Queens, New York, New York,

to be and appear before the Un-American Activities Com-

mittee of the House of Representatives of the United

States, of which the Hon. J. Parnell Thomas is Chairman,

in their chamber in the City of Washington, on February 6,

1947, in room 226, old House Office Building, at the hour of

10:00 a.m., then and there to testify touching matters of

inquiry committed to said Committee; and he is not to de-

part without leave of said Committee.

‘‘THerein fail not, and make return of this summons.

‘‘Witness my hand and the seal of the House of Repre-

sentatives of the United States, at the City of Washington,

this 23rd day of January, 1947’’; with some script below

that, stating: ‘‘J. Parnell Thomas’’; and underneath that,

in typewriting, ‘‘Chairman.”’

In thetefttiand corner there appears this: ‘* Attest:

John Andrews, Clerk.’’

By Mr. Hitz:

Q. Is he Clerk of the House of Representatives? A. Yes,

he is.

Mr. Hitz: On the back there are ink notations which I

think it fair to summarize is the return Mr. Russell

85 has stated he made on this particular copy of the ser-

vice of the pink copy in New York.

By Mr. Hitz:

(). Is that correct, Mr. Russell? A. That is true.

Q. Mr. Russell, did you actually leave the pink copy of

the document I have read, which is Government Exhibit 5,

with Mr. Eisler in New York? A. Yes.

Q. Did you again see the pink copy? A. No, I never saw

the pink copy after that until I saw it in the file.

Q. You have served other subpoenas, have you, Mr. Rus-

sell? A. Yes, sir, I have.

Q. Is it the practice that the pink copy is kept by the per-

son who is served? A. That is true.

Mr. Hitz: No further questions, Your Honor.

The Court: You may cross examine.

Cross Examination

By Mr. Isserman:

Q. Mr. Russell, before you served Mr. Eisler, you called

him up, did you not? A. That is true.

86 Q. You told him who you were? A. That is right.

Q. He agreed to have you meet him at 8:30 the

next morning at his house, where he would accept service?

A. No. I called him that morning and asked him if he

would be in. I told him that I wanted to serve him with a

subpoena.

es in ae ree see he a

BLEE> :HROUSH-PQOR COPY

Q. What did he say when you told him that? A. He said

that he would be there. He would wait for me.

Q. You are not connected with—you do not work in—the

office of the Sergeant at Arms of the House of Representa-

tives, do you? A. No.

Q. Nor are you designated in any way as his special mes-

senger, are you? A. Well, according to the literal inter-

pretation of the subpoenas issued by the House, I am.

Q. In other words, you feel you got the designation as

special messenger when Mr. Thomas handed you the sub-

poena? A. That is true. If I can qualify it a little bit, I

have worked for one other committee, and we used the same

procedure in serving subpoenas. I believe all the commit-

tees of the House follow the same practice.

Q. Yes, but you received no authority from the

87 Sergeant at Arms to serve this particular subpoena

on Gerhart Eisler, did you? A. No, I never had any

discussion with the Sergeant at Arms.

Mr. Isserman: That is all.

Redirect Examination

By Mr. Hitz:

Q. But you were designated by the Chairman, Mr.

Thomas? A. That is true.

Mr. Hitz: That is all.

(The witness left the stand.)

Mr. Hitz: Mr. Stripling.

Mr. Isserman: I might note that this witness is under

subpoena. I hope he understands he is not excused.

The Court: Yes; the practice in this Court is for wit-

nesses to remain in attendance unless they are affirmatively

excused.

Mr. Russell: All right.

ee Ger. ae eR MO “* - se en ene — .

wes ? mE YR Soe eh co ne a SR RE

Robert E. Stripling

td o e eo é€ 6 & e ao :

Direct Examination

By Mr. Hitz:

Q. Mr. Stripling, give your full name, please.

88 A. Robert E. Stripling. :

Q. S-t-r-i-p-l-i-n-g, is it? A. That is right, sir.

Q. What is your occupation, Mr. Stripling? A. I am

chief investigator of the Committee on Un-American Activi-

ties, U. S. House of Representatives.

Q. Were you that in January and February of this year,

1947? <A. Yes, sir.

Q. Were you present on February 6, 1947, at the hear-

ing held on that day pursuant to the resolution creating

that committee—the Un-American Activities Committee—

in this city? A. Yes, sir.

Q. Did you see at that time the man on trial, Mr. Eisler,

at the Committee hearing? A. 1 did, sir.

Q. Will you tell us what took place at the hearing, Mr.

Stripling? A. The Committee convened at 10 a.m. I was

asked by the Chair if all witnesses were present.

I explained to the Committee that two of the witnesses

that had been subpoenaed, Mr. Leon Josephson and Mr.

Samuel Liptzen, had not appeared.

The Committee then had a discussion as to what

89 action would be taken relative to their not appearing.

Q. At this point was Mr. Eisler in the room?

By the Court:

Q. Confine yourself to matters relating to this defendant.

A. Mr. Eisler was in the room, yes, sir.

By Mr. Hitz:

Q. Was he represented by counsel at that time? A. He

had not been called to the witness stand at that time.

LNG ELEE LO TO ENO GORA AILS TE AAPL: km

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9 7

Q. Was Mrs. Carol King present in the room at the time?

A. She was, yes.

Q. What took place with reference to Mr. Eisler? A. The

Chairman asked me to call the first witness. I called out

the name of Gerhart Eisler and asked Mr. Hisler to take the

stand.

Mr. Eisler came forward with papers in his hand, and

he said, ‘‘I am not going to take the stand.’’

I stepped down from the—stepped away from the coun-

sel’s table and walked over to the witness stand with Mr.

Hisler.

I said to him, ‘‘Do you have counsel with you?’’ and he

said, ‘‘ Yes.’’

I said to the Chairman, ‘‘] suggest that the witness be

permitted counsel.’’

At the same time I obtained a chair to pull up to

90 the table, in order that counsel to be seated.

The Chairman then asked Mr. Eisler to be sworn—

to raise his right hand and to be sworn.

Mr. Lisler said, ‘‘No,’’ and he would not raise his hand.

I then interrupted the Chairman—sought to interrupt

him—and Mr. Eisler said, ‘‘I have the floor now.”’

I persisted, and the Chair recognized me, and I suggested

to him that he make his preliminary remarks at that time

to the Committee, which is the customary thing for the

Chairman to do in opening the hearing.

Q. Did Mr. Eisler make some repiy to the remarks ad-

dressed to him? A. The only thing that I remember is that

he said, “I have the floor now.”’

After the Chairman had completed his remarks, he then

asked Mr. Hisler to raise his right hand and to be sworn.

Mr. Eisler said, ‘‘ No.’’

Q. Did Mr. Eisler say anything more about it? A. Well,

yes, there was—during the next five minutes, I would say

that the Chairman asked Mr. Eisler some six or seven

times to be sworn. Mr. Eisler refused to be sworn. He

stated that he wanted three minutes in which to read a state-

ment or to make a statement.

Q. Finish your answer. A. Or to make a statement.

Q. Was this the first time he said he wanted to

91 make a statement? A. He made the request to make

a statement—

Mr. Isserman: I object to the question.

The Court: Objection overruled.

Mr. Isserman: I should like to state my ground.

The Court: What is the ground?

Mr. Isserman: My ground is that he says, “ Was this the

first time?’’ and there is no fixing of time.

The Court: Objection overruled.

The Witness: He had been asked twice by the Chairman

to raise his right hand and to be sworn before he mentioned

the statement, as I recall.

By Mr. Hitz:

Q. What did he say about making a statement? A. He

said that he wanted to make a statement. He wanted three

minutes to make a statement.

The Chair explained to him that the Committee did not

permit witnesses to make statements prior to being sworn,

and the Chairman said he would have to be sworn first.

Mr. Eisler, according to my best recollection, said—made

the statement: then there would be no hearing with him if

he was not permitted to make his statement.

Q. Have you told us all you can recall that took

92 place between the Chairman and the witness? A.

Well, Mr. Eisler having refused to take the oath, the

Chairman dismissed him, so to speak, and Mr. Eisler and

his counsel stepped aside, at which juncture his counsel

began to distribute the statement to the press.

Q. Have you told us all you can recall that Mr. Eisler

said to the Chairman? A. Yes. He said more later, but

he did not say it from the witness stand.

Q. I mean up to this point? A. Yes, I have told you all.

Q. Did the Chairman say anything to Mr. Eisler about

being permitted to make a statement after he had been

a ae a a SHES

BLEED THROU SH=POOR COPY

sworn and after he had answered the Committee’s ques-

tions’? A. Yes; he told Mr. Eisler that if he would—after

he took the oath, the Committee would permit him to make

a three-minute statement. He finally agreed to that.

Q. To that, what did Mr. Kisler say? A. As I recall, Mr.

Kisler told the Chairman that he would not take the oath;

that he did not have to do anything; that he was a political

prisoner.

‘‘T don’t have to do nothing,’’ I believe is what he ac-

tually said.

Q. Did Mr. Hisler ever take the oath? A. No, sir.

93 Q. Did he ever take the witness stand? A. He was

at the witness table.

Q. Did he ever take the witness chair? A. I believe he

sat down while the Chairman read the preliminary state-

ment.

Q. Did he sit in the witness chair or not? A. Yes.

Q. In any event, he was never sworn? A. That is right,

sir.

Q. And he was never asked any questions under oath;

is that correct? A. That is right, sir.

Q. Then he left the room, after distributing the papers

he had to the press?

Mr. Isserman: I object to that question. There is no

evidence—

The Court: Will you read the question, please?

(The last question was read by the court reporter.)

The Court: The witvess stated that counsel distributed

the statement to the press, as I understood him.

By Mr. Hitz:

Q. Who distributed those papers, Mr. Stripling. A. The

counsel.

Q. You were about to relate a while ago that Mr. Eisler

then said something more; is that correct? A. Mr.

Eisler and his counsel withdrew from the witness

94 stand, and the Chairman says, “Bring your next

witness.”’

» Be

Then, Congressman Mundt, a member of the Committee,

stated that he thought the Chairman should ask the witness

again if he refused to be sworn, and he was asked again by

the Chairman, He was asked again by the Chairman and

refused to take the oath again.

Q. Where was the witness chair with respect to the Chair-

man? A. It was in the center of the room, directly opposite

the Chairman, just as 1 am facing you. I would be the

Chairman, and you would be in the position of the witness.

Q. Where were the other members seated? A. They were

seated straight across, behind the Committee table.

Q. Where was the Chairman with reference to his mem-

bers? A. He was seated in the middle. On his right were

the Republican members, and on his left were the Demo-

cratic members of the Committee.

(). By ‘‘opposite,’’ do you mean in front of him was the

witness chair? A. That is right, sir.

Q. Counsel table was where with respect to the witness

chair? A. It was on the right of the Chairman and even

with the witness.

9 Mr. Hitz: No further questions, Your Honor.

Cross Examination

98 Mr. Isserman: I would like to suggest the stipu-

lation, Your Honor, that Mr. Gerhart Eisler was

brought to the hearing room on February 6, 1947, in the

custody of two security officers of the Department of Jus-

tice Immigration and Naturalization Service, and that im-

mediately upon his béing dismissed by the Chairman, and

after questioning by the Chairman and secretary of the

Committee, he departed in the custody of the same two

officers.

The Court: What do you say about that?

Mr. Hitz: We stipulate to that.

The Court: Very well; those facts are stipulated. I

suggest that we do not consume any time on further inter-

rogations with regard to his custody.

OREN yy eR IS

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Mr. Isserman: I believe that will save some time.

By Mr. Isserman:

Q. Just before Mr. Mundt made his motion that the wit-

ness be cited for contempt, do you recall the following con-

versation between the Chairman and Mr. Hisler:

“The Chairman: Then you refuse to be sworn?’’

‘*Mr. Eisler: I do not refuse to be sworn, I want only

three minutes. Three minutes to make a statement.’’

‘‘The Chairman: We will give you those three minutes

when you are sworn.’’

“Mr. Eisler: I want to speak before I am sworn.’’

99 Do you recall that conversation? A. Yes, I recall

that.

Q. Wasn’t that the last conversation before the motion

to hold Mr. Kisler in contempt was made by Representative

Mundt? A. I couldn’t be sure about that without examin-

ing the record.

Q. But you do remember that conversation? A. Yes, |

remember that conversation. f

Q. Did you notice what Mr. Eisler had in his hand? You

said he had something in his hand, 1 believe. Wasn’t that

your direct testimony? A. Yes.

Q. What was it?) Wasn’t it some yellow sheets of paper

like this, indicating legal foolsecap? A. I believe Mr. Eisler

had a cigarette in one hand, and in the other hand he had

what appears to me to be white paper.

Q. You did not see that he had a few sheets of this yellow

paper? A. No, I didn’t see that.

Q. You did not examine at any time what was on the

paper which Mr. Eisler had in his hand? A. I did not.

Q. Now, Mr. Eisler at no time before he left the hearing

room distributed anything to any person in the room,

100 did he, as far as you could see? A. No.

Q. The room was rather crowded, wasn’t it, Mr.

Stripling? A. Yes, it was.

AEE ORT, MVP lows ORL OE WORRY QV PET oe ee iY

Q. There were a lot of photographers present? A. There

were quite a few, yes.

Q. Wouldn’t you say there was a good deal of confusion

in the early part of the hearing, while Mr. Eisler was there?

A. There was no confusion while he was on the witness

stand, no, sir.

Q. Photographers were taking photographs in the hear-

ing room? A. They were, yes, sir.

Q. Flash bulbs were going off? A. That is right.

Q. Do you remember Mr. Eisler making this statement:

‘IT have never refused to be sworn in. I came here as a

political prisoner. I want to make a few remarks, only

three minutes, before I be sworn in, and answer your ques-

tions, and make my statement. It is three minutes’’?

Do you remember his saying that? A. Yes, I do.

Q. Do you reember Mr. Eisler saying: ‘‘I am ready to

answer all questions’’ on at least two occasions, Mr.

101 Stripling? A. You mean before or after he refused

to be sworn?

Q. I mean in the course of the hearing. Do you remem-

ber Mr. Eisler saying: ‘‘I am ready to answer all ques-

tions’? A. I think Mr. Eisler made that statement after

he had been dismissed by the Chairman.

Q. You mean after the motion for contempt was made,

or just before that time? A. I believe the Chairman had

asked the Committee what was their pleasure regarding

the matter.

Q. Did not Mr. Mundt make a motion to cite Mr. Eisler

for contempt before the Chairman said anything about what

is the pleasure of the Committee? A. I don’t believe so.

Q. You say that the only time Mr. Eisler said, ‘‘I am

ready to answer all questions,’’ was after he had been dis-

missed by the Chairman? Is that your best recollection?

A. Well, I would like to make it clear that Mr. Eisler left

the stand before Mr. Mundt asked the Chairman to ask him

again to be sworn. He was not at the witness stand at that

moment; he stepped back.

PO EEE) oom

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Q. I am talking now about the period before, you say,

Mr. Eisler was dismissed as a witness and am asking you

whether in the period before he was dismissed he did not

say, ‘1 am ready to answer all questions.’’ A. I don’t re-

call that.

102 The Court: May I make this suggestion? 1 as-

sume you are reading from the transcript of the

hearing?

Mr. Isserman: I am.

The Court: That is available to both sides. It seems to

me that perhaps the quickest and the most efficacious way

to proceed would be to offer the transcript in evidence in-

stead of examining this witness from the transeript.

Mr. Isserman: Counsel in conference have already be-

lieved that in order to save time in the cross examination of

Mr. Thomas we would by tomorrow morning prepare a stip-

ulation which we would submit to the Government and ask

whether or not the Government would join in the stipula-

tion as to just what particular questions and answers were

directed to this witness, and eliminate other matter which is

not material.

The Court: My suggestion is slightly different. My sug-

gestion is that the transeript of proceedings before the

Committee be offered in evidence. That will eliminate a

great deal of the time taken in examination of this witness.

Is there any objection to that?

Mr. Isserman: We could not agree to that at this

moment. We plan to call the stenographer properly to

show that some corrections are required. However, we will

prepare a stipulation which might be satisfactory.

The Court: Very well. Proceed.

By Mr. Isserman:

103 Q. Isn’t it true that Mr. Eisler sat down in the

chair reserved for witnesses at the very beginning

of the hearing? A. I don’t recall that he did, no.

Q. Well, do you have any recollection as to when Mr.

Eisler took the witness stand? A. It is my recollection

Fe LD A RIPE IO PIT OE i? ae” RN

that he sat down when the Chairman made his preliminary

remarks—while he was reading his preliminary remarks.

Q. So that it was shortly after Mr. Eisler stated, accord-

ing to your testimony, ‘‘I am not going to take the stand,”

that he actually sat down in the witness chair; isn’t that

true? A. I don’t recall exactly whether he sat down or

whether he stood.

The Court: I think that is minutiae and is immaterial,

because the charge against the defendant is that he declined

to take the oath. What chair he was sitting in or whether

he was seated or standing is, I think, immaterial. I suggest

to counsel that the interrogation be directed to the charge

in the indictment.

Mr. Isserman: Well—

The Court: Do not argue. I made a suggestion. Pro-

ceed to the next question.

Mr. Isserman: I would like to have an answer to the

question I just put.

104 The Reporter (reading): ‘‘Question: So that it

was shortly after Mr. Eisler stated, according to your

testimony, ‘I am not going to take the stand,’ that he aec-

tually sat down in the witness chair; isn’t that true?”

By the Court:

Q. If you don’t remember, say you don’t remember. A.

I don’t remember.

By Mr. Isserman:

Q. Do you remember that he sat down in the chair at all,

Mr. Stripling? A. I am not positive whether he sat down

or not.

Q. Just a few minutes ago you said Mr. Eisler walked

over to the table and sat down in a chair reserved for wit-

nesses. Now, did he or did he not do that?

The Court: You have the record; do not repeat the same

question.

Mr. Isserman: That is not in the record. This is a mat-

ter outside the record.

RR RNR eH _—

BLEED THROU GH~POOR COPY

The Court: I mean it is already in the record of what

this witness testified this afternoon. You are repeating the

same question.

Mr. Isserman: It is not clear to counsel. The witness

has contradicted himself.

The Court: The question is in the record. Now, proceed

to another question.

105 Mr. Isserman: I would like to resolve the con-

tradiction by continuing questioning on this point.

The Court: Ask a specific question with a view to re-

solving the contradiction, if you wish. You may do that.

By Mr. Isserman:

Q. Isn’t it true, Mr. Stripling, that in this hearing this

afternoon you have testified that Mr. Eisler took the wit-

ness chair? A. I believe in my—early in my testimony I

stated that it was my impression—my opinion—that he had

taken a seat while the Chairman read the statement.

Q. Isn’t that still your recollection of what happened?

A. That is my recollection: that while the Chairman read

his statement, Mr. Eisler was seated.

106 Q. Wasn’t your testimony to the effect that it was

only two or three seconds after Mr. Eisler said, ne

am not going to take the stand,’’ that he actually sat down

in the witness chair? A. No.

Q. How long after Mr. Fisler said, ‘‘I am not going to

take the stand,”’ did he take the stand? A. Mr. Eisler was

called to the witness stand. He said, “I am not going to

take the stand.’ He was standing.

Q. How long after that did he sit down? A. Then the

Chairman asked him to raise his right hand and be sworn,

and he says, ‘‘No.’’

I then asked the Chairman—I asked the Chairman to

recognize me, and Mr. Eisler said, ‘‘I have the floor now.”’

Q. What happened next? A. Then I asked the Chair-

man to read or to make his preliminary remarks to the

committee, which he did. It is my opinion that Mr. Eisler

then sat down while he read the preliminary remarks.

ee YE Be aes Ae er Pe

hy Ser

Q. Now, the time which it had taken the Chairman to

read those remarks, from the time Mr. Eisler said he would

not take the stand, was only a few seconds? A. No, it was

longer than a few seconds.

Q. How long would you say it was? A. I would say it

required a minute to read it.

107 Q. About a minute? A. Yes.

Q. Isn’t it true that what Mr. Eisler really said

the first time was: ‘I am not going to take the stand until

I have made a few remarks’’? Isn’t that what he said, Mr.

Stripling? A. I am not sure about that.

Q. You would not say he did not say that? A. No; I think

the record would show it. I think the record might also

show whether he sat down or not.

Q. But from your own recollection, you are not sure? A.

No.

Mr. Isserman: I think that is all on cross-examination.

Redirect Examination

By Mr. Hitz:

Q. You were asked by counsel if this was not the last

thing that was said by Eisler: ‘I want to speak before |

am sworn’’; and in answering that you said that without

examining the reeord you could not say whether that was

the last thing said by Eisler. I am showing you page 3, a

little bit below the middle of the page, of the official report.

I will ask the same question. Was that the last thing said

by Mr. Eisler?

108 A. Yes. That was the last thing he spoke.

Q. That was the last thing Mr. Kisler said: ‘‘I

want to speak before I am sworn’’? A. That is right, sir.

Q. Was it before or after that that a motion was made

that he be held in contempt? A. It was after that.

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118 Hon. John Parnell Thomas

Cross Examination (Resumed)

By Mr. Isserman:

Q. Mr. Thomas, you testified at yesterday's session on

direct examination that when Mr. Eisler was brought into

the hearing room, he was in the custody of the Federal au-

thorities; isn’t that correct?

The Court; That was stipulated, Mr. Isserman.

Mr. Isserman: It is a preliminary question to my next

question.

The Court: I do not want any time consumed on matters

of stipulation.

Mr. Isserman: I am referring now not to the stipulation

but to the testimony of this witness.

The Court: Very well. Proceed.

The Witness: What was the question?

The Reporter (reading) : ‘Question: Mr. Thomas, you

testified at yesterday’s session on direct examination that

when Mr. Eisler was brought into the hearing room,

119 he was in the custody of the Federal authorities;

isn’t that correct?’’

The Court: That question is excluded, because that mat-

ter has been stipulated. Ask the next question.

By Mr. Isserman:

Q. Mr. Thomas, when you testified yesterday—

Mr. Isserman: I withdraw that.

By Mr. Isserman:

Q. It is true, isn’t it, Mr. Thomas, that you testified yes-

terday that Mr. Kisler appeared before the Committee in

answer to a subpoena? A. That is correct.

Q. Didn't you intend by that merely to state that Mr.

Eisler was present at the hearing in the custody of two

Federal officers? A. Not necessarily.

a —

ie ee

Q. Well, what indication was there by Mr. Eisler that he

had appeared in answer to a subpoena? A. It was to show

that he was there in response to a subpoena.

The Court: Just a moment. It was stipulated yesterday

that the defendant was brought to the Committee hearing

in custody of two officers from the Immigration and Nat-

uralization Service.

Mr. Isserman: That is correct.

The Court: Then, I do not see any reason for con-

120 suming time in cross-examination on that point.

Mr. Isserman: If the Court please, I am cross-ex-

amining on another point. I am cross-examining on the

statement of this witness that Mr. Eisler was there in re-

sponse to a subpoena. I asked him on what facts he based

that statement.

The Court You may ask him the question.

The Witness: What was your question?

Mr. Isserman: I think I had better withdraw the pre-

vious question and repeat it.

The Court: Yes.

By Mr. Isserman:

(). Mr. Thomas, I call your attention to the faet that you

testified yesterday that Mr. Eisler appeared in the hearing

room of the Committee on Un-American Activities on Feb-

ruary 6, 1947, in response to a subpoena. A. That is

correct.

Q. Will you tell us on what facts you based that state-

ment? A. Because, first I signed the subpoena; secondly, I

knew that he had received the subpoena; and thirdly, I

would naturally draw a conclusion that he was there in

reply to the subpoena.

Q. So your conclusion was based upon the fact that you

signed a subpoena, and you knew he had been served;

121 is that correct? A. I knew I had signed the sub-

poena, and I knew he had been served.

OPEL AAT OE NTN DT POON Ie RS tone AE AM ad

BLEED THROU GH=-POOR CoPy

Q. And ther® is another fact upon which you based that

conelusion? A. Your Honor, yesterday I was given per-

mission—

Mr. Isserman: I object, if the Court please.

The Court: No; you asked the witness if there was any

other fact—

Mr. Isserman: Yes, but the witness—

The Court: Just a moment. The Court is speaking.

You asked the witness if there was any other fact besides

the two that have been mentioned which led him to that

conclusion. The witness may state if there is such a fact

or facts; and if so, what the fact or facts are.

Mr. Isserman: Well, the witness was addressing his re-

marks to the Court.

The Court: Now, I have ruled. Do not argue with me

after I have ruled.

By the Court:

Q. You may proceed, Mr. Thomas. A. Yesterday, Your

Honor, I was given permission to refer to the transcript of

the proceedings—

Mr. Isserman: If the Court please, I must object to the

manner in which this witness is answering the question.

The question is simple. I asked him what other fact

exists.

122 The Court: You have noted your objection. The

objection is overruled. If the answer is not respon-

sive, you may move to strike it.

By the Court:

(). You may proceed. A. Yesterday, Your Honor, i was

given permission by the Court to refer to the transcript of

proceedings. I should like to ask Your Honor if I may

again, or continue to, refer to this transeript of proceedings

in order to refresh—

Q. You may continue. If you have no independent recol-

lection ecneerning any matter regarding which you are in-

terrogated, and you feel that your recollection can be re-

freshed by referring to the transcript of the proceedings,

you may refer to them. A. Your Honor, I do feel my recol-

lection ean be refreshed by referring to the proceedings.

Q. You may refer to them; and the pending question is

whether there is any other fact or facts other than those

you have mentioned—other than the two which you have

mentioned—which lead you to the inference or conclusion

that the defendant appeared in response to a subpoena.

Mr. Isserman: May the record indicate that the witness

is referring to a transcript of proceedings?

The Court: No. Do not interrupt the witness’ answer.

Mr. Isserman: If Your Honor please, the witness

123 has some papers in his hand. I think they should be

identified for the record.

The Court: You have a right to ask the witness. The

proper method of procedure is for you to ask the witness

what are the papers he has in his hand; but you may do

that after he answers the pending question, unless you wish

to withdraw the pending question.

Mr. Isserman: I do not wish to withdraw the pending

question.

The Court: The witness will answer the pending ques-

tion; then, if you wish, you may ask him what paper he

was referring to.

Mr. Isserman: Very well. .¢

The Witness: Yes, I was informed by both the chief in-

vestigator and one other investigator of the Committee on

Un-American Activities that a subpoena had been served on

Gerhart Eisler and that he was there in response to that

subpoena.

By Mr. Isserman:

Q. Now, is there any other fact upon which you base your

statement that Mr. Eisler appeared before the Committee

on February 6, 1947, in response to a subpoena? A. I don’t

recall any.

BLEED THROU GH=- POOR COPy

Q. You don’t know of any other fact? A. I don’t recall

any.

124 Mr. Isserman: May I have the reporter read the

answer of the witness previous to the last two?

The Reporter: (Reading) ‘‘Yes, I was informed by both

the chief investigator and one other investigator of the

Committee on Un-American Activities that a subpoena had

been served on Gerhart Eisler and that he was there in re-

sponse to that subpoena.”’

By Mr. Isserman:

Q. Is there anything in the record from which you re-

freshed your recollection, Mr. Thomas, which states that

the investigators informed you that Mr. Eisler had been

served with a subpoena and appeared in response to the

subpoena? A. I don’t see anything in the record,

(). Your last answer was given after you refreshed your

recollection from the record. Will you tell us what part of

the record you referred to? A. No, that was not my an-

swer. My answer was not that I had seen it in the record,

but my answer was that I knew from the fact that the chief

investigator and the investigator had informed me that a

subpoena had been served on Gerhart Eisler and that he

was there in response to that subpoena.

(). What is the name of the Chief investigator who in-

formed you that Mr. Eisler was there in response to

125 asubpoena? A. Robert Stripling.

Q. Who was the assistant investigator who in-

formed you that Mr. Eisler was there in response to a sub-

poena’? A. Louis Russell.

Q. Did either of those two investigators inform you of

the facts upon which they told you that Mr. Eisler was

there in response to a subpoena? A. No additional fact

other than that a subpoena had been served and that he

was there in response to a subpoena.

(. You mean that he was present, brought in by two

guards? A. That he was there in response to a subpoena,

il SENET OCR RAINE NE YE Oe IOC IPE NR BENE

because there was some doubt in my mind whether Gerhart

Kisler would ever show up.

Mr. Isserman: I ask that that remark be stricken as not

being responsive.

The Court: It may be stricken. Just state your motion;

do not argue.

Mr. Isserman: I have not argued; I just stated my

ground.

By Mr. Isserman:

Q. Then, you say the fact which the chief investigator

mentioned to you, that Gerhart Eisler was there in re-

sponse to a subpoena, was because he had been served with

a subpoena. Was there any other fact which the chief in-

vestigator mentioned? A. And because he was present in

the building.

126 The Court: Are you through with this witness!

Mr. Isserman: I am through with this quéstion, if

the Court please.

By Mr. Isserman:

Q. Now, in yesterday’s testimony, Mr. Thomas, didn’t

you testify in response to the question, ‘‘Do you recall

what Mr. Eisler’s reply was?’’—

The Court: What page are you reading from?

Mr. Isserman: Page 62 of the transcript.

By Mr. Isserman:

Q. Iam quoting now: ‘‘‘ Mr. Eisler replied that he would

not testify.’’

That was your testimony yesterday, was it not? A. That

is correct.

Q. Now, will you turn to the transcript of the hearing

of February 6, which is in your hand, and tell me what

statement of Eisler’s is the reply that he would not testify?

The Court: Well, now, that transcript is not yet in evi-

dence. It has been used by the witness only on occasion

to refresh his recollection.

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Mr. Isserman: I am now testing his—

The Court: Are you offering it in evidence?

Mr. Isserman: I am not. I am now testing the witness

as to the statement which he said was given in response to

his request.

By the Court:

127 Q. I will first ask whether that answer was given

by the witness from his recollection or whether he

enve that answer after refreshing his recollection by re-

ferring to the transcript. A. That answer was given, as

I recall, from my recollection. However, your Honor, I

would be very glad to answer the question now, if I may.

Q. Yes, you may. A. On page 1: ‘‘The Chairman. Now,

Mr. Stripling, call your first witness.’’

‘‘Mr. Stripling. Mr. Gerhart Eisler, take the stand.”’

‘*Mr. Kisler. I am not going to take the stand.”’

‘*Mr. Stripling. Do you have counsel with you?’’

‘*Mr. Eisler. Yes.’’

‘*Mr. Stripling. I suggest that the witness be permitted

counsel.”’ ;

Mr. Isserman: If the Court please—

The Witness: ‘‘The Chairman. Mr. Eisler, will you

raise your right hand?

Mr. Isserman: Just a moment, please.

The Court: Just a moment, If there is any admonishing

of the witness to be done, that is the Court’s function.

Mr. Isserman: I do not want to admonish the witness,

but I want an opportunity to state an objection before the

witness continues.

128 The Court: The witness is answering a question,

and the witness will continue.

The Court will inform counsel again that in this court

it is not the practice to note objections in the middle of a

witness’ answer.

Mr. Isserman: If the Court please—

The Court: You may move to strike the answer if it is

not responsive, after the answer is completed. I think,

poe

however, that the answer of the witness is entirely re-

sponsive,

By the Court:

Q. You may proceed.

Mr. Isserman: If the Court please—

The Court: Your exception is noted.

By the Court:

Q. You may proceed.

Mr. Isserman: May I state the grounds of my excep-

tion?

By the Court:

(). Proceed. A. ‘‘The Chairman. Mr. Eisler, will you

raise your right hand?

‘*Mr, Bisler. No. Before I take the oath—’’

‘*Mr. Stripling. Mr. Chairman—”’ ;

‘*Mr. Eisler. I have the floor now.”’

‘‘Mr, Stripling. I think, Mr, Chairman, you should make

your preliminary remarks at this time, before Mr.

129 Bisler makes any statement.’’

‘“‘The Chairman. Sit down, Mr. Eisler.

‘Now, Mr. Eisler, you will be sworn in. Raise your right

hand.”’

‘*Mr, Eisler. No.’’

‘“‘The Chairman. Mr. Eisler, in the first place, you want

to remember that you are a guest of this Nation.’’

‘‘Mr. Kisler. I am not treated as a guest.’’

“The Chairman, This committee—’’

‘‘Mr, BKisler. I am a political prisoner in the United

States.’’

“The Chairman, Just a minute. Will you please be

sworn in?’’

‘‘Mr. Bisler. You will not swear me in before you hear

a few remarks.’’

‘‘The Chairman. No; there will be ho remarks.”’

BLEED THROU SH= POOR COPY

}

—

‘Mr. Eisler. Then there will be no hearing with me.”’

‘‘The Chairman. You refuse to be sworn in? Do you

refuse to be sworn in, Mr. Eisler?’’

‘*Mr. Eisler. I am ready to answer all questions, to tell

my side.’’

‘The Chairman. That is not the question. Do you refuse

to be sworn in?

** All right.’’

‘*Mr. Eisler. I am ready to answer all questions.”’

130 ‘*The Chairman. Mr. Stripling, call the next wit-

ness.”’

‘*The committee will come to order, please.’’

And so on.

By Mr. Isserman:

Q. Does that finish— A. I can continue to read it, if

you want me to.

Mr. Isserman: If the Court please, at this point I move

that the answer of the witness be stricken as being not re-

sponsive.

The Court: Motion denied. It is the view of the Court

that it is precisely responsive to the question. The ques-

tion was, in substance, what there was in the transcript of

the hearing to justify the witness’ answer that the defen-

dant had refused to be sworn. Motion denied.

By Mr. Isserman:

Q. Now, Mr. Thomas, you were reading from a tran-

script of the hearing, were you not? A. That is correct.

Q. Have you read all the questions and answers which

deal with Mr. Eisler’s refusal to be sworn. A. Up to that

point. I shall be glad to continue.

Q. Just a moment; you will get an opportunity to con-

tinue.

The Court: Do not argue with the witness.

Mr. Isserman: Well, the witness was remonstrating with

counsel. I ask that he be admonished to answer the

question.

131 The Court: I suggest to counsel that he proceed

as counsel should.

Mr. Isserman: I wish to make objection to your Honor’s

remark and ask that it be stricken.

The Court: Motion denied, Counsel’s function on cross-

examinaton of a witness is solely to ask questions and not

to remonstrate with the witness.

Now, proceed and ask the next question.

By Mr. Isserman:

Q. Now, you say, Mr. Thomas, that up to this point you

had read all the questions and answers which dealt with

Mr. Eisler’s refusal to be sworn; is that correct? A. It is

my opinion I read them all, yes, with—

Q. Having refreshed your recollection by this reading,

would you say that the questions and answers as read by

you up to the point at which you stopped are a correct tran-

script of all the questions that were asked and answered at

the hearing up to that point? A. I would say they were

very correct.

(). Would you continue, and read any additional ques-

tions and answers which were put to Mr. Eisler in respect

to the charge that he refused to be sworn? A. ‘‘The Chair-

man. What is the pleasure of the committee?’’

‘“Mr. Stripling. Mr. Chairman, I think that the witness

should be silent, or take the stand or be removed

122 from the room, one or the other, until this matter is

determined.”’

‘Mr. Mundt. Mr. Chairman, suppose you ask him again

whether he refuses to be sworn.”’

‘“Mr. Rankin. Not ‘sworn in’, but to be sworn.’’

“The Chairman. Mr. Eisler, do you refuse, again, to be

sworn!’’

‘Mr. Kisler. I have never refused to be sworn in. I

came here as a political prisoner. I want to make a few

remarks, only 3 minutes, before I be sworn in, and answer

your questions, and make my statement. It is 3 minutes. ”’

BLEED THROU GH- POOR COPY

—

**The Chairman. I said that I would permit you to make

your statement when the committee was through asking

questions, After the committee is through asking ques-

tions, and your remarks are pertinent to the investigation,

why, it will be agreeable to the committee. But first you

have to be sworn.’’

‘*Mr. Eisler. That is where you are mistaken. I have to

do nothing. <A political prisoner has to do nothing.’’

**The Chairman. Then you refuse to be sworn!"

‘Mr. Eisler. I do not refuse to be sworn. I want only 3

minutes. Three minutes to make a statement.’

‘*The Chairman. We will give you those 3 minutes when

you are sworn.”’

**Mr. Eisler. I want to speak before I am sworn.”’

‘*Mr. Mundt. Mr. Chairman, I make the motion that the

witness be cited for contempt.’’

133 ‘*Mr. Rankin. I second the motion.”’

‘The Chairman. Any discussion?

‘*All in favor signify by saying ‘ Aye.’

‘*Motion carried.

‘*The witness will be cited for contempt.”’

Mr. Isserman: Now, if the Court please, I ask that the

witness’ answer beginning with the statement by Mr.

Mundt: ‘*Mr. Chairman, I make the motion that the wit-

ness be cited for contempt,’’ be stricken as not being re-

sponsive to the question.

The Court: It may be stricken.

Mr. Isserman: Did the reporter get that?

The Court: You do not have to worry about the re-

porter; he gets my rulings.

Mr. Isserman: He seemed to indicate some doubt.

The Court: He has been reporting here for a good many

months,

Mr. Isserman: So as to be sure, I understand the Court

to rule that the matter will be stricken.

ae ME AS A RY TE WI OS RIPE OO. OS a I

By Mr. Isserman:

Q. Now, Mr. Thomas, have you read all the questions

and answers upon which you charge that Mr. Eisler re-

fused to be sworn and refused to testify? A. Up to that

point?

Q. Yes. A. I read everything in there except a

134 statement by me. Do you care to have me read that

statement?

Q. I have asked you whether you recollect any more

questions by you or any other member of the committee,

and any answers by Mr. Eisler, which bear on your charge

that he refused to be sworn and refused to testify? A. I

don’t know that I skipped any of them.

Q. Isn’t it also true, Mr. Thomas, that in your testimony

of yesterday you were relying upon the facts—upon the

questions and answers which you have read here this morn-

ing? Isn’t that true? A. I was relying on my recollection

of what happened at the hearing.

Q. Now, to the point at which your recollection, as you

testified to it yesterday, differs from the questions and

answers which you read from the transcript this morning—

to the point at which they differ—would you say that the

transcript is correct or that your recollection is correct!

A. I am positive that the transcript is correct.

Q. So that wherever the transcript conflicts with your

recollection of yesterday, the transcript is correct? A. Oh,

1 would much prefer the transcript.

(). Now, as Chairman of the Committee on Un-American

Activities will you describe to us the procedure that you

have to allow a witness to state an objection to a

135 proceeding when he appears before the committee?

A. In the first place, as was stated yesterday, all

witnesses are sworn. That is the first step. Naturally if

we can’t get beyond that, there is no second step.

@. Now— A. And, as in this case, there was no second

step.

BLEED THROUGH-POOR COoPy

—

The Court: Just a moment. I do not think the witness

has finished his answer.

Mr. Isserman: I would be very glad to let him finish.

By the Court:

(). Proceed. A. No, your Honor; I had finished my

answer.

By Mr. Isserman:

(). You have finished? A. I have finished.

Q. Now, if a witness has a legal objection to the com-

mittee’s right to swear him in, what procedure has the

committee established to allow that witness to make the

objection?

Mr. Hitz: Please do not answer until I object.

| do object; it is immaterial in this case.

The Court: I think I am going to let him answer. Ob-

jection overruled.

The Witness: But there was no legal objection in this

case, He just would not be sworn. The question of

136 legality did not enter into it. Even his attorney

didn’t say a word.

Mr. Isserman: If the Court please, I ask that the answer

he stricken as not being responsive.

The Court: Motion denied.

By Mr. Isserman:

(). Mr. Thomas, if a witness wants to object because he

believes he has legal reasons why he should not be sworn,

how does your committee give him that opportunity under

its procedure? A. He should certainly, at least, attempt

to make some statement as to his legal objections; but in

this case there was no statement made as to his legal—

Q. Do you know what remarks Mr. Eisler was going to

make in the three minutes he asked for? A. I found out

you couldn’t make that statement !n three minutes. It was

20 pages long.

— CE OTL GO ven i” Weep ere OLD, AGILE PE GAO ORE EOE GP CTE

Mr. Isserman: Just a moment, please. I ask that thie

answer be stricken as not being responsive.

The Court: Well, ask the question again.

Mr. Isserman: Is there a ruling on my matter?

The Court: Motion denied.

Mr. Isserman: But the question is being asked again?

The Court: You may ask the question again, if you think

the answer is not responsive.

Mr. Isserman: I believe it is not responsive, and I

137 ask that tha answer be stricken.

The Court: Ask the question again.

Mr. Isserman: Will you once more repeat the question,

please?

The Reporter: (Reading) ‘‘Question, Do you know what

remarks Mr. Eisler was going to make in the three minutes

he asked for?

The Witness: When he first asked for the three min-

utes, no; but—

By Mr. Isserman:

Q. You have answered the question, Mr. Congressman.

A. But, your Honor—

Mr. Isserman: I object, your Honor.

The Court: I think that may be brought out on redirect

examination, I think the question has been answered.

By Mr. Isserman:

Q. Now, Mr. Thomas, you say that the attorney for Mr.

Eisler, Mrs. King, who is sitting at counsel table, made no

effort to state any objection; is that your best recollec-

tion? A. There is one sentence in this testimony which

indicates the only time that Mrs. King made any effort to

do anything other than give out a lot of papers.

Q. Just a minute. That sentence was addressed to you

by Mrs. King, was it not?

138 Mr. Hitz: What sentence are you talking about?

Mr. Isserman: The sentence the witness has just

BLEED THR OUGH~ POOR Copy

referred to. He knows what sentence I am talking about.

The Court: Let us not have any colloquy.

Mr. Isserman: Well, I would like to get an answer from

the witness.

The Court: Will counsel come to the bench, please?

(Counsel for both sides approached the bench, and the

following occurred :)

The Court: Mr, Isserman, the Court appreciates the

fact that you are from out of town. I do not know what

the practice is in your jurisdiction, but in this court the

custom is for counsel to be urbane, courteous, and civil, and

not to speak abruptly or opprobriously.

Mr. Isserman: I want to object to your Honor’s remark

and ask that it be stricken from this record, because there

is no basis for it.

The Court: I did you the courtesy of saying this at a

bench conference, so that the jury should not hear my re-

marks; but you do not take them in the spirit in which they

are intended. If you are not going to be urbane and cour-

teous, I shall the next time I have to call attention to the

fact do it in the presence of the jury.

Mr. Isserman: Will your Honor hear me?

The Court: No.

139 Mr. Isserman: I move that your Honor’s remarks

he stricken, as indicating nothing that has happened

in this courtroom. I think counsel should be allowed lee-

way in cross-examination, especially when a witness is

under oath.

The Court: They are allowed leeway, but they must al-

ways be within the bounds of courtesy.

Mr. Isserman: I believe I have observed those bounds.

The Court: No, you have not, particularly in the way

you addressed the Court. Abruptness is not permitted.

No local counsel ever departs from an urbane, courteous

manner to the Court.

Mr. Isserman: I will try to be courteous and urbane in

my remarks.

The Court: I am trying to help counsel, because if you

were a member of this bar and you acted like that, the con-

sequences would be much more severe. However, I know

that perhaps—well, I do not know what the custom is where

you practice, so I want to give you the advantage of a warn-

ing in advance.

Mr. Isserman: I wish to state that I intend, and have

intended, to be courteous and urbane to the Court. At the

same time, the defendant has rights which counsel must

protect.

The Court: Yes. I have very little use for counsel who

do not try to protect their clients’ rights; but that can be

done courteously.

140 Mr. Isserman: It is my intention to be courteous.

The Court: I know you intend that—I am quite

sure you do—but that is not the type of thing that is cus-

tomary in this court.

Mr. Isserman: I will try to conform my manner to the

Court’s conception of courtesy.

The Court: Very well. You may proceed.

(Counsel returned to the trial table, and the following

occurred :)

Mr. Isserman: May I get the last question?

The Reporter: (Reading) ‘‘Question. Now, Mr. Thomas,

yov say that the attorney for Mr. Eisler, Mrs. King, who is

sitting at counsel table, made no effort to state any objec-

tion; is that your best recollection ?’’

By Mr. Isserman:

Q. Now, would you read the question, which still remains

unanswered, please? A. On page 4, top of the page:

‘*Miss Carol King. May I be heard, Mr. Chairman?’

What did you answer, Mr. Chairman?

141 A. I didn’t answer anything.

Q. Well, what did you do after Mrs. King said,

‘*May I be heard?’’ A. Well, prior to that the committee

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-—

had voted to cite this man for contempt. We were dismiss-

ing the witness. Miss King said nothing until we had

decided to dismiss the witness.

Q. What did you answer when Mrs. King said, ‘‘ May I

be heard, Mr. Chairman?’’ A. ‘‘Take the witness out.’’

Q. Did you recognize Mrs. King after she had made that

request to be heard? A. It was too late then—too late.

Q. It was too late? That is why you did not recognize

| her? A. Yes.

) Q. That is why you did not recognize her? A. Yes; it

was too late.

| . * * o o * * * * *

Mr. Hitz: Your Honor, at this time the Government

would like to offer so much of the official Government Print-

ing Office report of the proceedings on the 6th of February,

1947, before the committee that we have been refer-

142 __—srring to, as is contained on page 1 of that report, the

last line thereof, all of page 2, and page 3 down to

the statement that was made by Mr. Mundt, a little below

the middle of the page.

Mr. Isserman: If the Court please, we object to the in-

troduction of the portion of the transcript referred to by

the United States Attorney on the ground that the same is

hearsay and on the further ground that the same contains

irrelevant material, which would be highly prejudicial to

the defendant.

The Court: The fact that something is prejudicial is

not—

Mr. Isserman: I said irrelevant material.

The Court: Oh, yes.

Mr. Isserman: And on the further ground that it con-

tains material which is not within the four corners of the

indictment, and on which the Court previously refused a

bill of particulars; and on the further ground that the wit-

ness now on the stand has testified to all the questions and

answers upon which the charge was made that the witness

refused to be sworn and refused to testify.

LAG DR Vy POEM ip BRAM ON Sed $e We ger te RORY Ng IE nee

Also, if the Court please, as I believe I have stated, on

the ground that it is hearsay and not the best evidence,

and that no foundation has been laid for the introduction

of the document.

143 The Court: Well, I think it is both relevant and

material; but, Mr. Hitz, I am not sure whether it is

technically competent, because this transcript has not been

identified, has it?

Mr. Hitz: It states on the front of it that it is an official

record, I believe, your Honor.

The Court: I know, but I think if an official record is

introduced in a criminal case, if objection is made, the per-

son who took the transcript must be produced to verify it,

or there must be some other means of identifying it.

However, I want to add this: That portion is already in

the record, and is part of the evidence in this case in

another manner, because the witness Mr. Thomas read that

portion in answer to the question propounded on cross-

examination. So I personally think that the objection, even

if sustained, does not amount to anything, because that

portion is already in evidence; it was just read by Mr.

Thomas.

So I will sustain the objection at this time but call your

attention to the fact that it is otherwise in evidence.

Mr. Hitz: I merely wanted to complete the record. Your

Honor suggested yesterday that perhaps it would be bet-

ter to have it in. That was the principal reason.

The Court: I think so too. I think it would be helpful

to have this transeript in evidence; but if objection is made,

I, of course, have to rule on it; and technically, in

144 order to make this document admissible, it would

have to be identified by the reporter. But, as I say,

the material that you referred to has already been referred

to by this witness.

The Government rests.

—

145 Mr. Rein: * * *

* . a * . a . * * oO

I would like to move now for a judgment of acquittal on

the first ground that the indictment does not state an of-

fense under the statute.

* * 7 * * 7 . * * *

148 As our second ground we would like to move for

judgment of acquittal on the ground that the Gov-

ernment has failed to prove in this case that the defendant

refused to be sworn.

149 Mr. Rein: I think the Government has failed to

produce any evidence that the default, if there was a

default, was a wilful default.

« * * . . 7 * .

150 I think the Government has failed to prove, there has

been no proof in the case, and it is our contention

that it has failed to prove that Mr. Eisler was called on a

inatter of inquiry submitted to the Committee by the reso-

lution; there has not been one shred of evidence on that.

& * * * . * . * . *

Mr. Rein: The next point is that on the Government’s

own testimony, as well as the opening statement made by

counsel for the Government, it shows that the defendant

was in custody of officers during the entire time before, dur-

ing the hearing, and after the hearing, and that since he

was in eustody nothing he could do would have been his

voluntary act. He could not have voluntarily appeared in

response to a subpoena.

* * 7 * + . * * * o

151 The Court: The Court does not care to hear Gov-

ernment counsel because these matters they rely upon

have been argued before on a motion to dismiss the indict-

ment. It is the view of this Court that the indictment is suf-

ficient and, therefore, the motion for judgment of acquittal

PL MSTA PS STN Se ST EN ESTEE) CT ty PITS CP

on the alleged ground of insufficiency of the indictment will

be denied.

The question presented by counsel is whether failure to

take the oath after the witness appeared before the Com-

mittee may be a wilful default within the meaning of the

U. S. Code, Title 2, Section 192. The Court holds that it

may be. This section was construed in the case of Town-

send against the United States, 68 Appeals, D. C., 223. In

that case counsel argued, as counsel has in this case, that

the statute was intended to cover only two situations; one,

that the witness who having been summoned failed to ap-

pear at all, or, two, who having appeared refuses to answer

pertinent questions. The Court held that the statute is not

limited to those two situations, and that the term ‘‘ap-

peared’? means, in effect, an effective appearance. Now,

the precise point presented in that case was whether

152 a witness who appears and then walks out of the

hearing may be deemed to be in default under the

statute. The Court answered the question in the affirmative.

The precise point involved here was not involved in the

Townsend case, to be sure, but the Townsend case does hold

as I have indicated, that the statute is not limited to the

two situations to which counsel contends in this case, and

also that the word ‘‘appear’’ should be construed to mean

an effective appearance.

Now, it seems to the Court for a witness to appear physi-

eally and then refuse to take an oath is as much a frustra-

tion of his appearance as it is to walk out of the hearing

after he has physically appeared. On the basis of the

Townsend case I am going to hold that the indictment is suf-

ficient, and the failure to be sworn is a default under the

statute.

The second ground of the motion is directed to the ques-

tion whether the Government has offered sufficient substan-

tial evidence to justify sending the case to the jury. The

Court holds that the Government has offered substantial

evidence. There is proof that the defendant refused to

BLEED THROUSH- POOR COPY

take the oath except on his own condition. Of course, a

witness before a tribunal has no right to prescribe condi-

tions under which he will testify. I think there is enough

evidence from which the jury has a right to infer that the

default was wilful. That is a question of fact for the jury

' to determine, not a question for the Court. Wilful-

153 ness, intent, motive, and all matters of that type can

be inferred only from circumstances because they can

very rarely, if ever, be proven directly. The Court also

holds that the regularity of the Committee proceedings will

be presumed, especially in light of the fact that there has

been competent proof of the creation of the Committee, and

that the Government is under ne obligation to prove what

questions would have been addressed to the witness had he

taken the oath.

I am going to deny the motion.

. * * * * * . - . .

154 Opening Statement on Behalf of the Defendant.

Mr. Isserman: May it please the Court, and ladies and

gentlemen of the jury: The defendant in this case, as you

have been told, is charged with having been summonsed as

a witness hefore the House Committee on Un-American

Activities to appear at its session in the District of Colum-

bia on February 6, 1947.

It is further charged that he did appear before that Com-

mittee, and that when he was there he was directed to be

sworn to testify, aud that he had refused, and that in his

refusal the refusal was wilful, and that he did not intend

to be sworn to testify.

155 On the face of it it would seem like a very simple

case, and there is no question about the fact that on

or about January 24th this defendant was subpoenaed to

appear before the House Committee on Un-American Activ-

ities. In facet, as the testimony shows, he arranged to be

served with subpoena, making it easy for Mr. Russell, who

had the subpoena, to come to his house, and waited for him

to serve the subpoena, and we will show from that time and,

RIB LOK OVE OL MN QOT GS ROLLE AE DESL BCL BOL EE TIEN IOP

in fact, from before that time on, because that was not the

first subpoena the defendant had received, he at all times

intended to appear and intended to answer the questions

which were to be put to him which were pertinent to the

matters under inquiry, because the law says you have only

to answer pertinent questions, that you do not have to an-

swer all questions, and that he was quite willing to testify

on all matters pertinent to the scope of the inquiry of the

Committee; but between January 24 and February 6, 1947,

a number of events took place which changed the whole cir-

cumstance of the appearance of this witness before the

Committee.

On Jannary 31 it will be shown that Mr. Parnell Thomas,

the Chairman of the Committee—

Mr. Hitz: May I interrupt to object to this?

The Court: I want to hear a little more. Proceed.

Mr. Isserman: As I was saying, we will show that on

January 31 Mr. Parnell Thomas, the Chairman of

156 the Committee, sent a letter to the Attorney General

about Mr. Eisler—

The Court: Now, I am not going to permit you to refer

to anything of that kind.

Mr. Isserman: May I state what I intend to show?

The Court: No, you may not state evidence which the

Court believes will probably be excluded because that would

be one way to get incompetent and inadmissible matters

before the jury. We do not do that.

Mr. Isserman: May I state my ground for introducing

the evidence?

The Court: Yes, you will state to the Court when the

Court hears you on the admissibility of the evidence.

Mr. Isserman: If the Court please, the defendant has a

number of separate defenses to this indictment, and each

of these defenses requires the proof of certain facts. As

counsel, I believe—

The Court: I will not hear argument at this time. You

proceed with your opening statement, but the Court ex-

_ bash Qa gi Bre

BLEED THROUSH-POOR COPy

cludes the matter which you were abuut to divulge from

your opening statement.

Mr. Isserman: Now, we will show that as a result of ac-

tions taken by the Chairman of the Committee on Un-

American Activities that Mr. Eisler was arrested on Febru-

ary 4, 1947.

Mr. Hitz: May I interrupt just a minute? I dislike to

interrupg, but I make an objection; I think enough

i57 ~—s has: been said now to indicate that the matter is im-

material.

The Court: Yes, I think it is not material.

Mr. Isserman: May I state my ground?

The Court: Mr. Isserman, I am accustomed to confine

every trial to the issue in the case. The only issue in this

case is that there was a refusal to testify and whether the

default was wilful.

Mr. Isserman: May I state to the Court what I intend

to prove under this statute, and the reasons—

The Court: Not at this time.

Mr. Isserman: I am faced with this problem; I have a

great many questions which I wish to refer to, and if the

Court wishes to hear from me I will state them briefly to

get the wishes of the District Attorney and the ruling of

the Court.

The Court: I do not think it is advisable. It is not the

custom to permit in an opening statement matters which

the Court will exclude. For instance, if Government coun-

sel would do it it would be grounds for a mistrial. Of

course, under our law a mistrial cannot be predicated on

anything said by defense counsel. Nevertheless, defense

counsel are governed by the same rules as to relevancy, and

I will not permit it because I shall probably exclude it.

Mr. Isserman: Of course, the defense counsel is not in

a position to anticipate what the rulings will be.

158 The Court: I understand; I am not finding fault

with you.

— SEER POR EEP A AS ETS EI YY OE SIL PEEING OT BOE SCRE te ON Ur pO

_—

Mr. Hitz: May I make this statement, that I do not

think counsel should be permitted to proceed in this way,

knowing from what he has thus far said what the Court will

say.

The Court: I think I will make the ruling now at the

bench.

Mr. Hitz: That is what I suggest.

(Counsel for both sides approached the bench and the

following occurred :)

The Court: I am not going to permit you to refer to

any correspondence between the Attorney General and

Chairman Thomas as I consider it irrelevant.

Mr. Rein: Your Honor, may we have a brief discussion

at this time as to why we think it is relevant, just briefly?

The Court: What is your point?

Mr. Rein: I have a great many legal contentions, but

just restricting this to one, you said that wilfulness will

depend on all the circumstances themselves, and it seems

to me that if we want to prove that this man’s conduct was

brought about by his arrest and the condition of the arrest,

that is essentially not a wilfulness.

The Court: Now, I will exclude that. I will let you

prove, in fact it is already in evidence, that he was

159 under arrest at the time he was before the Commit-

tee, and you may argue it to the jury in summing up,

if you wish. If you feel that to be desirable you may argue

it to the jury, but events that transpired before that day

had nothing to do with wilfulness, because, as I construe it,

it must be deliberate and intentional and not accidental, and

bearing that in mind I think the events that transpired pre-

vious to the appearance of the witness before the Commit-

tee are too remote.

oe eo eo 4 oe . * . o *

161 Mr. Isserman: If the Court please, may the rec-

ord show what the defense is that we offer?

The Court: No, you can have all these incorporated in

the transcript, if you wish.

PUD AR bo orale er A BS

BLEED THROU3H-POOR COPY

Mr. Isserman: I would like to have them incorporated

in the transcript.

The Court: Very well.

* a e > 6 * . s . @

163 Mr. Isserman: Am I then to understand that the

Court is instructing counsel that in addressing the

jury I refer only to matters which occurred on February

6, 19477

164 The Court: Yes; the Court is not instructing

counsel. The Court does not give counsel any in-

structions, but the Court rules that he may not refer to any

matters in his opening except to matters that transpired

on February 6, the date of the hearing.

Mr. Isserman: At the hearing.

Mr. Hitz: At the hearing.

Mr. Isserman: At the hearing, and all matters that pre-

ceded the hearing that morning?

The Court: Matters that transpired that day.

Mr. Isserman: Does that include, for instance, the in-

struction which the guards got to bring him into the hear-

ing room?

The Court: I beg pardon?

Mr..Isserman: Does that include instructions to the se-

curity officers before they took Mr. Eisler from the room,

I mean the hearing room?

The Court: What were those instructions?

Mr. Isserman: We are going to refer to them.

The Court: What are you going to say in your opening

statement?

Mr. Isserman: We want to show that these persons were

instructed, and who instructed them, and ultimately to show

that the instruction came from Mr. Thomas.

The Court: No, I am not going to permit you to

165 show from whom they were obtained. The only fact

is that the defendant was brought by the officer.

Mr. Hitz: I fail to see the relevancy of the fact that he

was in custody.

Se es aie ee Le hie See aa we Se ee : Y I ATOE SAG APG PP NY IOS

The Court: I am going to rule as a matter of law that

it is not relevant, but I am going to permit him to prove

that. I am going to rule as a matter of law it is not a de-

fense because I hold that a person in custody can be com-

pelled to testify and, as a matter of fact, the fact that he

was in custody is already in the record.

Mr. Isserman: And the fact that he remained in custody

throughout the hearing, and that the officers were instructed

to bring him in and take him back.

The Court: It has already been proven that he came

here in custody and he was taken away in custody.

Mr. Isserman: Will you allow us to allude to the fact

that he was in custody during the hearing, and remained

in custody?

The Court: Well, you may proceed.

. . . . * > . . .

166 Mr. Isserman: It is part of our proof to establish

that the defendant had with him certain documents

which he had previously prepared, and that he intended to

make certain statements which he had arrived at previous

to the date in question. I am not quite clear by Your

Honor’s ruling as to what I may say as to that.

The Court: Yes, you may. That will go to wilfulness.

(The five offers of proof referred to by counsel in the

conference at the bench, and which the Court stated could

be incorporated in the record, are in the words and figures

following, to-wit :)

‘*First Offer of Proof

‘‘The defendant contends, as a defense to the indictment,

that as an alien in transit he was not subject to subpoena

by the House Committee on Un-American Activities and

was not bound to testify before the same Committee. °

‘‘In support of this contention, the defendant offers to

prove the following facts:

BLEED THROUSH=POOR COPY

—

‘ta. That he entered the United States as an alien

167 __—in transit on June 14, 1941, under Section three (3)

of the Immigration Act of 1924;

‘*b. That he never applied for any change of status;

‘*e. That he never applied for or obtained the status of an

immigrant for permanent resident in the United States;

‘*d. That from and after June 14, 1941, until May 8, 1945,

the defendant was a continuous applicant to governmental

authorities for permission to leave for Mexico for which he

entered the United States; and

‘‘e. That from and after the termination of hostilities

with Germany, continuously applied for an exit permit au-

thorizing his departure from the United States.

‘*The applications mentioned in items (d) and (e) were

denied.

**Second Offer of Proof

‘The defendant contends as a defense to the indictment,

that as an interned enemy alien the defendant was entitled

to the rights and privileges accorded prisoners of war by

the Geneva Convention ratified by the United States in

1932 and as such could not be required to testify before

the Un-American Activities Committee, and in support of

this contention the defendant offers to prove the following

facts:

‘fa. That he was arrested on February 4, 1947, as an

enemy alien pursuant to Presidential Proclamation 2526,

promulgated December 8, 1941; and

168 **b. That thereafter he was detained and interned

as an enemy alien in accordance with the terms of

the said proclamation until April 15, 1947.

**Third Offer of Proof

‘*The defendant contends as a defense to the indictment

that he was unlawfully arrested on February 4, 1947, by

federal officers and unlawfully detained from February 4,

1947 to April 15, 1947, and was unlawfully transported to

the Committee on February 5th and 6th and was in unlaw-

ee i ea lil Od dal oR

64 ’

ful custody when he was present before the Committee on

Un-American Activities on February 6, 1947, and that

being in custody he did not appear voluntarily in response

to the subpoena, and in support of this contention the defen-

dant offers to prove the following:

‘‘a. That on January 31, 1947, J. Parnell Thomas, Chair-

man of the House Committee on Un-American Activities

wrote to Attorney General Tom Clark requesting that he

keep under surveillance the defendant, Gerhart Kisler, and

to take all steps necessary to insure Eisler’s appearance

before the same House Committee on Un-American Activi-

ties on February 6, 1947;

‘*b. That as a result of such letter and subsequent phone

conversations between Parnell Thomas and Attorney Gen-

eral Clark or his representatives, it was decided to arrest

the defendant as an enemy alien for the purpose of insur-

ing the appearance of the defendant before the said

169 committee;

‘*e, That the arrest of the defendant was ordered

solely because of the request of Parnell Thomas;

‘«d. That the defendant had been born in Leipzig of Aus-

trian parentage ;

‘‘e, That the defendant never became a German citizen;

“‘f. That under the law of both Germany and Austria,

the defendant was a native of Austria and not a native of

Germany ;

‘‘e, That from June 4, 1941, until February 4, 1947, with

full knowledge of all the facts recognized the defendant’s

status as an Austrian native and citizen in that the govern-

ment did not require him to register as an alien enemy or

apply any restriction applicable to alien enemies.

‘h. That, with the exception of the defendant, no person

had been arrested as an enemy alien from July 20, 1945, to

date;

‘“i, That, subsequent to July 20, 1945, instructions were

issued within the Department of Justice that no more per-

sons should be arrested and interned as enemy aliens, and

eed. nee he a

BLEED THROU GH- POOR COPY

—

that those persons already in custody should either be re-

leased or deported;

‘*j. That the arrest of the defendant was in violation of

these instructions and in violation of the established policy

of the Department of Justice to cease the apprehension and

internment of enemy aliens subsequent to July 20, 1945;

‘tk. That the arrest of the defendant was not be-

170 cause of his alleged status as an enemy alien but

solely because the request of J. Parnell Thomas as

Chairman of the House Committee on Un-American Ac-

tivities ;

‘*l. That he was arrested on February 4 and taken to

Ellis Island;

‘*m. That on February 5, while being questioned at Ellis

Island, two men, Steve Greenman and Arthur J. Brosman,

security officers of the Immigration and Naturalization

Service, Department of Justice, took him into custody and

took him to Washington, D. C.;

‘‘n. That they there placed him in a jail in Washington.

D. C.;

‘fo. That on the morning of the 6th, they took him from

the jail and still in their custody brought him to the hearing

room of the House Committee on Un-American Activities ;

**p. That these two men, Greenman and Brosman, acted

in accordance with instructions received from the office of

the Attorney General in Washington, D. C.;

‘*q. That these instructions were in turn given at the

request of the House Committee on Un-American Activi-

ties; that the Chairman or some other representative of the

House Committee on Un-American Activities requested the

Attorney General of the United States to have the defen-

dant brought down in custody to Washington and to the

hearing room of the said committee;

171 ‘*r, That the Attorney General and his subordi-

nates in bringing the said defendant to Washington,

D. C., and to the hearing room of the said Committee acted

without lawful court process or any other process;

‘*s. That no attempt was made by the Attorney General

or his subordinates to secure any lawful court process or

any other process;

‘*t. That the defendant never requested to go to Wash-

ington, D. C., to attend the hearing of the House Committee

on Un-American Activities ;

‘*y. That the defendant was never asked whether he was

willing to go to Washington or to attend the said hearing;

‘‘y. That the defendant was in fact unwilling, as long as

he was in what he considered to be unlawful custody, to go

to Washington or to attend the hearing, and only submitted

himself to be taken to Washington and the hearing in ree-

ognition of superior force.

‘*Fourth Offer of Proof

‘‘The defendant contends, as a defense, that the alleged

was not wilful and the defendant offers to prove the follow-

ing the facts in support of this contention:

‘a. The defendant was first subpoenaed by the House

Committee on Un-American Activities 79th Congress on or

about November 22, 1946, by subpoena bearing that date

and returnable in St. Louis on November 23, 1946.

172 ‘*h, Subsequently defendant was again subpoen-

aed to appear before the House Committee on Un-

American Activities in Washington on November 22, 1946.

‘‘e, Pursuant to said subpoena defendant appeared at the

committee offices on November 22, 1946.

‘‘d. At said offices the defendant was advised by one

Carrington the then clerk of said committee that he was not

needed in that day and that a telegram had been sent to him

to that effect.

‘*e, Only upon his return to New York defendant found

such telegram.

‘*f. Defendant was on such appearance ready and willing

to testify before the House Committee on Un-American Ac-

tivities.

‘‘e. Defendant received no further communication from

the House Committee on Un-American Activities until he

a —

BLEED THROU GH- POOR COPy

was served on January 24th with a subpoena to appear be-

fore the House Committee on Un-American Activities 80th

Congress on February 6, 1947.

‘th. Defendant facilitated the service of said subpoena

by Louis J. Russel, Committee investigator by arrangement

with said investigator to be available at his home for such

service at a time certain.

‘i. Defendant upon being served with subpoena return-

able February 6, 1947, fully intended to testify be-

173 fore the House Committee on Un-American Activi-

ties.

‘*j. Defendants made the following preparation for ap-

pearing at the hearing scheduled for February 6:

‘‘1. Prepared mimeographed statement to read before

and file with committee after having been sworn said state-

ment being complete in draft by Sunday, February 2, 1947.

‘*2. That said statement on page 18 of the mimeographed

copy contained the following statement:

***T am fully conscious of the fact that I had to speak

under oath and therefore I tried to speak to the best of my

knowledge—’

‘*3. Arranged to meet his attorney, Carol King, in Wash-

ington on February 5.

**4. Arranged on January 30 and February 3, by tele-

gram through his attorney, Carol King, for reservation for

himself and his wife at the Willard Hotel on February 5.

‘*5. Purchased, eoach railroad tickets to Washington for

himself and wife on February 3, 1947, defendant having

tickets so purchased and stamped February 3, 1947 still in

his possession.

‘*k. That defendant believed he could be allowed to read

and file his statement with the Committee and that said be-

lief was based on reasonable ground including the fact that

a witness against him before the House Committee on Un-

American Activities on November 22, 1947 (one

174 Louis Budenz) had been given unlimited time for

making statements and the fact that defendant had

a FP REY Se * ES RE EG OE i IT NEE Y RE EEO type,

been advised by counsel that such statements were gener-

ally permitted on appearance before Congressional Com-

mittees.

‘**1, That defendant was arrested on February 4, 1947 as

a dangerous enemy alien under Presidential warrant issued

by the Attorney General, and was brought to Washington

on February 5, 1947 under guard and to the hearing room

of the House Committee on Un-American Activities on Feb-

ruary 6, 1947,

‘*m. That the defendant believed that his arrest on Feb-

ruary 4, 1947, his detention, transportation to Washington

and compulsory delivery under guard to the hearing room

of the House Committee on Un-American Activities on Feb-

ruary 6, 1947 was illegal.

‘‘n. That defendant’s belief that the actions of the

agents of Department of Justice, in his arrest and subse-

quent steps were illegal was based on the reasonable ground

that he had been advised by counsel to that effect, that coun-

sel bad instituted a court proceeding to obtain his release

and that the Department of Justice had on a number of oc-

casions and over a considerable period recognized his status

as a native and eitizen of Austria not subject to arrest as

an enemy alien and that in fact and law defendant was a

native and citizen of Austria.

‘‘o, Defendant reasonably believed that his arrest,

175 detention, and forced transportation resulted from

the public statements made concerning him by mem-

hers of the House Committee on Un-American Activities,

principally its Chairman, J. Parnell Thomas, (Rep. N. J.)

and from a letter sent by the said J. Parnell Thomas to the

Attorney General under date of January 31, 1947, and re-

leased to the press after defendant’s arrest in which the

said J. Parnell Thomas referred to the summoning of de-

fendant to appear before the House Committee on Un-

American Activities on February 6, 1947, asking that de-

fendant ‘be prohibited from department from the United

States or disappearing or refusing to appear’, stating that

VPRRO EE MET GOT ET Pee te Re OEPee (6

BLEED THROU 3H=POOR Copy

he was ‘reliably informed’ that defendant was taking such

steps and asking that defendant be put ‘under an immedi-

ate 24 hour surveillance in order to insure his appearance’

before the House Committee on Un-American Activities.

‘*p. That the defendant had no intention whatsoever to

depart before testifying before the House Committee on

Un-American Activities in response to subpoena and before

the Exit Permit which had previously been issued to him

and cancelled would be reissued and that the defendant had

no intention to ‘disappear’ or to refuse to ‘appear’ before

the House Committee on Un-American Activities on Feb-

ruary 6, 1947, and that allegations to that effect in the let-

ter dated January 31, 1947, of Parnell Thomas to the At-

torney General were wholly without foundation.

176 ‘*q. Defendant believed that in appearing before

the House Committee on Un-American Activities he

could state any objections he had to proceeding of the

Committee which he believed to be illegal and to any ques-

tions which he believed to be not pertinent to the subject

matter under inquiry and that such objections to be timely,

should be made before the contemplated Committee action

or before answers were given to questions.

‘*r, Defendant’s belief in respect to such objections were

reasonably based on the advice of counsel and on his

knowledge of proceedings generally.

‘*s. That after defendant’s arrest on February 4, 1947,

defendant had determined if forcibly brought before the

House Committee on Un-American Activities to state his

objections to the actions of the committee and J. Parnell

Thomas which he believed led to his arrest and detention

and the illegality of the proceeding which involved his trans-

portation to Washington under guard, which prevented him

from consulting counsel adequately and preparing ade-

quately for his hearing, and to expose the real motive of

the committee in causing him to be subpoenaed and ar-

rested.

‘*t. In preparation for such objections the defendant h

prepared several drafts of a short statement and 01

notes to assist him.

‘*u. That such drafts and notes were in his poss

177 _ sion and in his hand when he took the witness sta

before the House Committee on Un-American Acti

ties on February 6, 1947.

‘*y. That he was prepared to state his objections fr

these drafts and notes within the three minutes which

requested of the committee.

‘‘w. That defendant did not intend, if time to state |

objections had been allowed, to read before being sworn |

long statement which he had previously prepared for 1

before the committee.

**x. That after being allowed three minutes for his «

jections defendant—if the committee still demanded i

was ready to be sworn and to answer pertinent questic

put to him by the committee.

‘ty. That notwithstanding the illegality of his arre

transportation and appearance before the committee tl

the defendant had no intention of making default wilful

otherwise on any obligation imposed upon him by Secti

192, of Title 2, U. S. Code.

‘Fifth Offer of Proof

‘*The defendant contends as a defense to the indictm:

that he was under no obligation to appear ud testify |

cause the Committee was abusing its power ot subpoena |

purposes beyond it power; this Court should not permit

processes and functions to be used in aid thereof, and

support of this contention the defendant offers to prove |

following:

178 ‘ta. That each of the members of the House Co

mittee on Un-American Activities and the Commit

as a whole did not call the defendant before its hearing

February 6th in aid of the legislative process or becat

the committee wished to obtain his testimony, but did,

BLEED THR OUGH=-POOR COPY

—~—

nt had

some

OSses-

stand

Activi-

| from

ich he

ite his

rn the

or use

iis ob-

d it—

‘stions

arrest,

e that

lful or

ection

etment

ify be-

na for

mit its

and in

ve the

. Com-

mittee

ing on

ecause

lid, in

fact, call him before the said hearing for the following rea-

sons:

‘**1. to harrass and punish him for his political beliefs,

**2. to prevent his departure from the United States and

his return to Germany,

**3. to cause the persecution of the defendant by the De-

partment of Justice for alleged perjury and other alleged

crimes, and

‘*4,. to intimidate the defendant and others.

‘*b. That in aid of the Committee’s steps to hound and

prosecute the defendant because of his political beliefs,

the Chairman or other representative of the said Commit-

tee requested and arranged with the Attorney General and

other representatives of the Department of Justice to have

the defendant arrested and kept in custody.

‘*e. That the present proceeding is a result of this Com-

mittee’s campaign to harass and persecute the defendant

hecause of his politica] beliefs.

‘*d. That at no time was the Committee interested in ob-

taining any testimony from the defendant except in-

179 sofar as it might urge, on the basis of such testimony,

the prosecution of the defendant for alleged perjury

or alleged other crimes, or might in other ways harass and

persecute the defendant.’’

180 Mr. Hitz: Your Honor, may we come to the bench

on the last request made by Mr. Isserman?

The Court: Yes, indeed,

(Counsel for both sides approached the bench, and the

following occurred :)

Mr. Hitz: It is my understanding that the Court has

ruled that he may refer to the papers that were brought by

Kisler to the hearing. I assume that one of those papers

will be the so-called 3-minute statement. In view of the

contents of that statement, I wish to object to any refer-

ence being made to its contents.

Ae ee PE YO COIN OM ORE NEON Gage eRe 9 PEG

The Court: Of course, I do not know what the contents

of the statement are.

Mr. Hitz: I do,

The Court: Of course, my practice is not to acquire any

knowledge of the pending case except what is offered in

court. Now that this matter is brought up, I would be

very glad to have you state what is in the 3-minute state-

ment,

Mr. Hitz: I think it is fair to say, since the word has

been used many times before, that it is some more Com-

niunistie propaganda largely devoted to attacking the Un-

Ameriean Activities Committee.

181 The Court: I am going to exclude the statement,

of course.

Mr. Hitz: The fact that he had—

Mr. Isserman: But that is only the District Attorney's

statement.

The Court: If that summary is accurate.

Mr. Isserman: I would like to take issue with his state-

ment and ask him the source of his information.

The Court: No; one counsel may not ask questions of

another counsel. Do you deny that that is an accurate

statement? ‘

Mr. Isserman: I do deny that it is an accurate statement.

Is the Court requesting me to state now what the statement

contains?

The Court: I will be very glad to have you do so.

Mr. Isserman: Does the Court desire me to do so?

The Court: No. I will be glad to have you do so if you

choose; I am not going to require you to do so.

Mr. Isserman: It is our position that whatever he tried

to say in those three minutes goes purely to the question

of his intention and wilfullness. I intend to summarize the

statement before the jury.

The Court: Then, I shall not permit you to summarize it

until you tell me, first, what is in it.

Mr. Isserman: In response to the Court’s request--

Fe ol ee ee ee ene,

BLEED THROU GH= POOR COPY

The Court: | made no request; I made a ruling

182 that I shall not permit you to summarize the state-

ment until you tell me—

Mr. Isserman; Then, may I say in view of the Court's

ruling I wish to say that the defendant, in the J-minute

period, did not have a written statement which he wanted

to read, but he intended to make objections to being sworn

in, based on what he believed to be his unlawful arrest, de-

tention, and transportation to Washington, based on the

fact that he believed that being in custody—as he termed

it, a politieal prisoner, but in fact as an interned enemy

alien—he was not required to be sworn, and that he was

also going to state the political motivation which he be-

lieved was responsible for this illegal activity or activities,

and that he believed that the chairman of the committee

and the committee members had brought him down in this

fashion for ulterior purposes.

The Court: Well, now, I am going to permit you to show

everything up to what you call the political motivation. I

think if what he wanted to do was to object to the legality

of the proceedings, even though his method was ill-advised,

I am going to allow it in as going to the issue of wilfullness.

But when his statement goes to attacking the motives of

the committee or its purposes, that I consider beyond the

scope of the issues.

Mr. Isserman: I should like to call the Court’s

183 attention to the fact that part of the illegality was

what he deemed to be the abuse of process by the

committee chairman.

The Court: 1 shall exclude that, because the courts have

held, as I view the law, that an erroneous view of the law

on the part of a witness, no matter how bona fice, does not

excuse him.

Mr. Isserman; Of course, he was referring to matters

of fact which applied to him, as far as the committee's

treatment of him was concerned.

The Court: No. If good faith was an issue, I would admit

it; but I regard good faith or bad faith as not an issue and

- oT ety, Wye 2” + - Tove - aT) _ oe me

as not comprising the term willfulness. Therefore, I shall

not admit it; but those earlier parts of the statement I

shall admit, because I think they go to willfulness.

However, I am going to instruct the jury that even if

he acted in good faith and under an erroneous view of

his rights, that would be no defense if his action was de-

liberate and intentional. because willfulness I construe as

a deliberate and intentional act, within the meaning of the

statute, even if it is in good faith or through an erroneous

view of the law.

Mr. Isserman: I understand there is no need to object

to any of your Honor’s rulings?

The Court: No. Under the Federal Rules of Criminal

Procedure you do not have to note exceptions, just so long

as you once indicate what it is on which you request

184 the Court to rule.

Mr. Hitz: I have one further thing to say on that.

It is the position of the Government that even if his objec-

tion was going to be to the legality of the proceeding—

which is what the Court has limited his statement to—that

that—

The Court: When I say legality of the proceedings, I

mean legality of the committee proceedings.

Mr. Hitz: Yes, as distinguished perhaps from the reso-

lution or anything else—that that goes to the good faith

rather than to the deliberate and intentional nature.

The Court: I think there is a great deal of merit in your

position, but I think there is just enough doubt in that to

warrant my construing the matter in favor of the defend.

ant and admitting the evidence.

186 Mr. Hitz: The fact is that Eisler never did make

any claim as to the legality of the proceeding other

than that he said he was a political prisoner, for what that

is worth. Now we are about to go into something he in-

tended to say, when the fact is he did not say it, nor did

his counsel say it.

or orn ati

eriecen ne Ai“. eames & Aes

Mr. Isserman: He was not allowed to say it.

Mr. Hitz: Presumably he was permitted to make his

legal objections.

The Court: He said, ‘‘I want to make a 3-minute state-

ment.’’ If he had said, ‘I object to being sworn, and I

want to note my objections,’’ we would be confronted with

a different situation. But I am not ruling on that

187 situation, because that is not here.

Mr. Isserman: If a layman states that he wants

to make a few remarks before he is sworn, it would seem

to me that in any procedure they would at least ask him

and inquire the nature of the remarks he wanted to make.

The Court: The layman had counsel.

Mr. Isserman: Before a Congressional committee a

lawyer is not allowed to talk.

Mr. Hitz: Finally, I think the statement does not amount

to an objection; and since it does not, it is clearly beyond

the matter of good faith—rather the matter of—

The Court: That may be so, but I think I will allow that

narrow bit of evidence in, because I have some doubt

about it; and I think in case of doubt I would rather let

the defendant make his record.

Mr. Isserman: As I understand it, | may ask this ques-

tion, beeause I want to remain within the Court's ruling

to the maximum extent possible; that I may commence

with his arrest on February 5?

The Court: Yes.

Mr. Isserman: And the events which brought him to

Washington?

The Court: Yes, you may do that.

Mr. Isserman: His arrest on February 4, Or does your

Monor mean I must commence with—

188 The Court: You may start with his arrest,

(Counsel returned to the trial table, and the following

occurred :)

Opening Statement on Behalf of the Defendant (Resumed).

Mr. Isserman: Vader the instructions of the Court, my

opening remarks oi what we shall show will be consider-

ably curtailed. 1 shall merely confine myself to these re-

marks, which the Court has permitted me to make.

The defendant in this case was arrested on February 4,

1947, under a Presidential warrant and under that warran!

was interned as an enemy alien at Ellis Island.

On February 5, 1947, while in custody at Ellis Island,

two officers, known as security officers of the Department

of lnmigration, came to the place of the defendant's de-

tention and stated that he was to be taken to Washington.

Late that afternoon he was taken by those two officers to

Washington and that evening was put into the County Jail.

The next morning he was taken by the same two officers

from the County Jail to an office of the Immigration

180 Service, and there he met his counsel, Mrs. King.

He was allowed to confer with Mrs. King for only a

few minutes and in the presence of one of the security

officers of the Department of Immigration.

He was then taken to the hearing room of the Conunittee

on Un-American Activities and was brought into that room

by these two security officers of the Department of Imui-

eration. He was under their custody throughout the pro-

ceedings which occurred in that room; and when the pro-

ceedings, insofar as they affected him personally, were

over, he was taken from that room by the same two seeurity

officers of the Department of Immigration.

Now, the defendant after he received his subpoena on

January 24, and of course before he was arrested, made

certain preparations in connection with his coming down

to Washington to testify. We will show that included in

those preparations were, one, the preparation of a rather

lengthy statement which he had been advised by his coun-

sel he would be allowed to present to the committee.

We wiil show also that in addition to this preparation,

he had reserved—made arrangements for the reservation

BLEED THR OU 3H- POOR COPY

of—hotel rooms in Washington, which reservations were

completed, I believe, by, February 3; and also on that date

he had asked his wife, Mrs. Eisler, to purchase the railroad

tickets which would take them to Washington. We

19) will offer into evidence in this case, the Court per-

mitting, those railroad tickets bearing the date

February 3.

He was all prepared, then, to go to Washington to

appear before the committee on February 6.

Now, when he was arrested, and when he conferred

with his counsel, he was advised by his counsel that his

arrest and detention and transportation to Washington

were against the law, and he was also advised that he could

at the hearing, and before being sworn, object to what he

believed was the unlawful arrest, detention, and transpor-

tation; and he was told also that if he did not object before

he was sworn, he might lose any rights that he had.

When he was called to take the witness stand and he was

asked to be sworn, he asked not for the right to read a

lengthy statement—that is, the long statement which he

had prepared before—but he asked for the right to make a

few remarks, and in those remarks—and he will testify as

to what he intended to say—he was going to say that Ws

arrest and his detention and his transportation to Wash-

ington by guards were not in response to any subpoena

at all but was an unlawful act or series of unlawful acts;

that those unlawful acts were participated in and insti-

gated by the chairman and by members of this Committee

on Un-American Activities; and that, therefore, he was

not appearing in response to a subpoena but because the

committee had caused his arrest.

191 He desired to state those objections, and then he

| wanted to, go further and explain the reasons for

| those objections; but I may not summarize those reasons

here under an instruction from the Court. But the fact

is that all he wanted was to be allowed three minutes to

declare what his rights were and if the committee chair-

man would then have ruled against him and said, ‘‘ We

have heard your remarks, we have heard your objection”

—as we lawyers would call it— ‘‘and we rule against your

objection,’’ then, after that passage of three minutes, the

witness was ready and willing to answer questions that

would be put to him and also to put into the record thie

long statement, about which there has been some discussion

before you.

We will show, not only from his testimony but from the

record which has already been, in part, read to you, that

there was nothing willful about this defendant’s actions,

and that it would have taken a three-minute period to have

cleared up the whole situation and to have allowed the com-

mittee chairman to ask him any questions which under the

law they were allowed to ask and which under the law he

would have been required to answer.

Now, it is our position that upon presentation of these

facts to you, they will clearly indicate that there was

nothing willful at all about the alleged refusal of this de-

fendant to be sworn, as it is charged that he refused to be

sworn, to testify.

192 Arthur J. Brosnan

Direct Examination

By Mr. Isserman:

Q. Mr. Brosnan, what is your occupation? A. I am em-

ployed by the United States Department of Justice as an

Immigration and Naturalization security officer.

193 Q. In your capacity as security officer for the De-

partment of Immigration and Naturalization, were

you given any instructions on or about February 5, 1947, in

respect to one Gerhart Eisler? A. Yes, sir.

The Court: Mr. Isserman, are you trying to prove by

this witness that the defendant was brought to the hearing

BLEED THROU GH= POOR COPy

—— .

in custody? I thought that fact was admitted by stipula-

tion.

Mr. Isserman: I am trying to prove by this witness, and

another witness, that this defendant was brought to the

hearing in illegal custody, and I want to indicate the nature

of the orders under which he was brought to the hearing

room, the cireumstances surrounding his being brought to

the hearing room —

The Court: I am going to exclude that as being irrele-

vant. If you wish to protect the record in that respect, you

may make an offer of proof as to what you expect to prove

by this witness. Our usual custom or practice is to make

offers of proof at the bench.

(Counsel for both sides approached the bench, and the

following occurred :)

The Court: What do you expect to prove by this wit-

ness?

194 Mr. Isserman: If the Court please, does the offer

of proof in this case have to be limited to this wit-

ness?

The Court: Yes.

Mr. Isserman: Just what we would prove by this wit-

ness?

The Court: Yes.

Mr. Isserman: We would prove by this witness, as part

of our proof, that the defendant was unlawfully arrested

on February 4, 1947.

The Court: Tell me what you offer to prove by this wit-

ness.

Mr. Isserman: That this witness had received instruc-

tions from a superior officer to bring the defendant to

Washington, D. C., for this hearing, and that those instruc-

tions were the result of a letter sent on January 31, 1947,

by J. Parnell Thomas, Chairman of the House Committee

on Un-American Activities, to Attorney General Tom

Clark.

The Court: I do not suppose you could prove that by

this witness, could you?

Mr. Isserman: Well, I might be able to prove it by this

witness. Further, we would prove by this witness the

names of the superior officers under whom he received his

instructions.

Mr. Hitz: I think that you are speaking a little loud.

The Court: Not so loud. The purpose of this is to make

your offer of proof out of the hearing of the jury.

Mr. Isserman: The sources of those instructions;

195 and the final conclusion or final evidence that the

defendant was transported to Washington, D. C., by

this witness under no legal order whatsoever.

The Court: Do not argue; tell me what facts you have.

Mr. Isserman: That there was no order for his appear-

ance in Washington, D. C., before the House Committee on

Un-American Activities on February 6, 1947, and that the

instructions the defendant had received he received as a re-

sult of a letter addressed to the Attorney General.

The Court: You have said that once before.

Mr. Isserman: I had not finished; I was interrupted be-

fore I had completed my statement as to that letter.

That as a result of the letter which Mr. Thomas had sent

to the Attorney General, the defendant was arrested as an

enemy alien and held for the purpose of bringing him to

Washington before the Un-American Activities Committee

on February 6.

The Court: As the Court understands it, there has been

a stipulation to the effect that on or about February 4 the

defendant was arrested aud interned by the Immigration

and Naturalization service as an enemy alien, and that he

was brought before the committee in the custody of repre-

sentatives of the Immigration and Naturalization Service.

This being already in the record, any proof of those facts

would be cumulative. _

All of the other matters contained in the offer of

196 proof are irrelevant and will be excluded.

Mr. Isserman: May it please the Court, I do not

recall that there was any stipulation in respect ty the

eroeen wie ewi ow. coAne Ae

method of the defendant’s arrest. I was under the impres-

sion from Mr. Hitz that he was to advise the Court on the

method of arrest.

The Court: What was the stipulation made yesterday!

Mr. Isserman: Merely that he was in custody at the hear-

ing.

The Court: I am sure that counsel will stipulate that.

Will you stipulate that, Mr. Hitz, if you have not already

done so?

Mr. Hitz: That the custody was in the Immigration au-

thorities both before and after the hearings.

The Court: Yes, pursuant to a warrant interning the

defendant as an enemy alien.

Mr. Hitz: I will stipulate that except as to the word ‘‘in-

terned.’’ He did not become interned and never has been,

but he was detained and held.

The Court: Detained.

Mr. Isserman: We cannot agree to the stipulation, be-

cause it is our understanding that he was interned.

The Court: No; ‘‘interned”’ is a legal conclusion. There

was a period of detention before the interning. Anyway,

that is a conclusion of law, and you cannot get it out

197 of this witness, I presume.

I am going to exclude alj other matters except

those that I stipulated.

Mr. Isserman: We will except.

The Court: Irrespective of whether we call it ‘‘detained”’

or ‘‘interned,’’ he was in custody as an enemy alien.

Mr. Hitz: Immediately before and immediately after

or at the time of departure from the hearing.

The Court: Well, I suppose he was in custody at the

hearing.

Mr. Hitz: I am prepared to stipulate that he was in cus-

tody during the hearing as well.

Mr. Isserman: I accept that stipulation; but, of course,

it does not preclude me from asking questions dealing with

the witness on the morning of February 6?

The Court: Of course, any supplemental matter you may

inquire into; but I will not permit you to offer cumulative

evidence on the points already conceded.

Mr. Isserman: There will be no need of doing that if it

is not in controversy.

The Court: But I shall exclude everything in the offer

of proof for the reasons stated.

Mr. Hitz: I do not think the legality of the detention, in-

sofar as this officer knows anything about it, is in

198 issue here. I think the ruling is that—

The Court: I am going to rule that the legality or

illegality of the detention is irrelevant. The fact of the de-

tention is already in the record.

Mr. Isserman: I still am under the duty to present every

fact which we deem goes to the legality.

The Court: You may ask any questions you choose, and

I shall rule on them.

Mr. Isserman: I understand.

(Counsel returned to the trial table, and the following

occurred :)

The Court: Proceed.

By Mr. Isserman:

Q. Mr. Brosnan, when you took—Did you on February 4,

1947, take the defendant, Gerhart Eisler, into custody? A.

That is right.

Q. Who was with you, if anyone, at that time? A. Secur-

ity Officer Stephen Greenman.

199 Q. When you took the defendant into custody, did

you show him any paper of any kind?

The Court: I shall exclude that for the reasons stated at

the bench.

By Mr. Isserman:

Q. What did you do with the defendant when you took

him into custody? A. We left on the 4:30 train leaving

BLEED THROU GH- POOR COPY

Pennsylvania Station and arrived in Washington, and from

‘here we took him to the Washington District Jail here.

Q. Did you stay with him after you took him to the Wash-

ngton District Jail? A. We filed a detainer on the Presi-

jential Order and left him in the custody of the District

Jail here in Washington.

Q. When did you next see the defendant? A. Around

7:30 the following morning.

Q. What did you do with the defendant when you saw

him that morning? A. From there we took him back to

the Immigration station here in Washington, where we met

Mrs. King, and then we proceeded—

Q. When you took him back to the Immigration station in

Washington, what time of the morning was that?

200 +~=A. Around 8:30.

Q. Was Mr. Greenman with you still? A. That is

right.

Q. Did you meet Mrs. King at the Immigration station?

A. Yes, we did.

Q. Did Mrs. King ask you for permission to speak to Mr.

Eisler? A. Yes.

Q. Did you give that permission? A. It was not my au-

thority to give that permission.

Mr. Isserman: May I get that answer?

(The last answer was read by the court reporter.)

By Mr. Isserman:

Q. Did Mrs. King speak to Mr. Eisler in your presence?

A. Yes, she did.

Q. At all times that morning were you presence with

Mr. Bisler wherever he was? A. Yes, I was.

Q. Was Mr. Greenman present with you and Mr. Eisler

at every place and at all times that morning? A. Yes.

Q. When Mrs. King was talking to Mr. Eisler, you and

Mr. Greenman were present, were you not? A. That is

right.

Q. Was that conversation which Mrs. King had

201 with Mr. Eisler in a room in the office of the Depart-

ment of Immigration? A. That is right.

Q. Was it a large room, Mr. —

The Court: What difference does it make whether it was

a small or a large room?

Mr. Isserman: Well, if the Court please, it may make a

difference.

The Court: Let us not go into these minutiae. I am

going to exclude that question.

Mr. Isserman: May I state—The Court has already

ruled?

The Court: Very well; state what difference it makes

whether the room was large or small.

Mr. Isserman: It will show the lack of privacy Mrs.

King had in talking to Mr. Eisler. If that will be stipn-

lated, we will not need to ask him about it.

The Court: Well, is there any dispute over the fact that

the conference between Mrs. Kir. and the defendant was

conducted in the presence of representatives of the Immi-

gration Service?

Mr. Hitz: I have no knowledge of it, nor of the room it

was in. I do not know.

The Court: I do not think it makes any difference what

room it was in.

Mr. Isserman: I did not ask what room; I asked for the

size of the room. Perhaps I can put the question differ-

ently.

202 The Court: Let him answer the question; it will

save time.

The Witness: I don’t know the size of the room.

By Mr. Isserman:

Q. But you were pretty close to Mr. Eisler during this

whole period, were you not? A. About 8 feet away.

Q. Mr. Greenman was about the same distance away? A.

That is right.

—

Q. How long did Mrs. King stay with Mr. Eisler? A. I

would say about an hour.

(. In that entire period, you were there too? A. That is

right.

Q. And so was Mr. Greenman. Now, after Mrs. King left,

what did you do with Mr. Eisler? A. We escorted him

back to the Committee on Un-American Activities.

Q. You took him to the hearing of the Committee on Un-

American Activities, did you not? A. That is right.

Q. In the entire time he was at the hearing, he was in

your custody, was he not? A. That is right.

Q. Now, in the course of the hour which Mrs. King spent

with Mr. Eisler, didn’t you spend a good deal of that

203 hour with Mr. Eisler in taking him where he could

be washed up and put in presentable condition for

the hearing? A. That is right.

Q. That was a substantial part of the hour, was it not?

A. I would say about 15 minutes of it.

Q. And Mrs. King was not there at that time? A. That

is right.

Q. Is that correct? A. That is right.

Steve Greenman

207 Cross-Examination

By Mr. Hitz:

Q. Is your answer that you don’t remember what you

heard said between Mrs. King and Eisler, or that you don’t

remember whether you heard anything? A. I know they

were talking. I could hear them talking, but I just couldn «

remember the words that were spoken.

Q. Did you hear the words at that time? A. No, sir.

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209 Reginald Parker

Direct Examination

By Mr. Isserman;:

* . . . . . o . . .

Q. What is your occupation, Mr. Parker! A. I am assis-

tant—associate professor of law in the Columbus Univer-

sity, of Washington, D. C.

Q. What subjects of law do you teach there? A.

210 I might say the general common law subjects I have

been teaching so far there, like torts, contracts, wills,

equity—-

The Court: I do not think we need to go into those de-

tails.

By Mr. Isserman:

(). Have you any information in a professional sense as

to the law of Germany and the law of Austria pertaining to

nationality?’ A. Yes, by all means, sir. I may add why.

The Court: No, it is not necessary.

Mr. Isserman: Unless the qualifications are admitted, I

should like to ask the witness to state his qualificacions as

an expert in German and Austrian law, particularly on the

law of nationality.

The Court: Is there any question about his qualifica-

tions?

Mr. Hitz: I have never seen this gentleman before. I do

not know of his reputation; I am sure it is good.

The Court: Very well.

By Mr. Isserman:

(). Will you please state your qualifications as an expert

on the German and Austrian law of nationality? A. I will

he very brief. I want to say despite the fact I was born in

New York I spent most of my life in Vienna and practiced

law there for about 8 years. Nationality cases were

—

211 frequent, involving Germans, Austrians, Czecho-

slovaks, and so forth, and many of them came to my

attention and professional care; and I am also now—in this

country I have always tried to be professionally specialized

in international law, but it has time and again led me into

questions of nationality, foreign and American.

Q). What is the German law of —

Mr. Isserman: I withdraw that question.

By Mr. Isserman:

Q. Mr. Parker, are you familiar with the state of the law

of nationality in Germany! A. Yes, sir.

(). Particularly with reference to the year 1897? A.

1897? Yes.

(). Under the German law of nationality in that year,

what was the nationality of a person born in Germany of

parents who were Austrians?

The Court: I should like to know what the relevancy of

that question is to the issues of this case. Tell me in a

sentence or two what is the relevancy of this.

Mr. Isserman: The relevancy of this is to show that the

defendant's arrest on February 4, 1947, under an alleged

Presidential warrant as an enemy alien was unlawful, in

that the defendant never was an enemy alien.

The Court: The testimony will be excluded as ir-

212_—srelevant to the issues of this proceeding.

Mr. Isserman: I should like at this time to make

the following offer of proof.

Mr. Hitz: Which one of your offers is it?

Mr. Isserman: That is item E in my third offer.

The Court: The offer of proof must be limited to what

you expect to elicit by this question.

Mr. Isserman: That is what I expect to do.

The Court: Very well.

Mr. Isserman: That under the law of both Germany and

Austria the defendart was a native of Austria and not a

native of Germany.

, i.

The Court: The question will be excluded.

-Mr. Isserman: Just a minute, please. And also, if the

Court please, the further fact that the defendant was a

citizen of Austria, not a citizen of Germany.

The Court: That also will be excluded.

. . . . . 7 7 . . .

213 James M. McInerney

Direct Examination

By Mr. Isserman:

Q. Mr. McInerney, what is your occupation? A. I am

First Assistant in the Criminal Division in the Department

of Justice.

215 Q. Mr. MeInerney, do you have with you a copy

of the communication, I mean the original communi-

cation sent by J. Parnell Thomas to the Attorney General

dated January 31, 1947, relating to the surveillance of Ger-

hart Eisler and his appearance before the House Commit-

tee on Un-American Activities on February 6, 1947?

216 A. 1 do, sir (witness produces document).

Q. And this letter was officially received by the

Attorney General? A. That is correct.

Mr. Isserman: At this time I would like to offer as ex-

hibit on behalf of the defendant a letter signed by J. Par-

nell Thomas, Chairman of the Committee on Un-American

Activities dated—

Mr. Hitz: You are not going to read it, are you?

Mr. Isserman: Dated January 31, 1947, addressed ‘to

Honorable Tom C. Clark, Attorney General, Department

of Justice, Washington, D. C. 4

BLEED THR OU 3H=- POOR COPY

—

Mr. Hitz: I know the contents of the letter and I object

to it as not material to the case.

The Court: The objection is sustained, The letter is

irrelevant to any of the issues in this case.

Mr. Isserman: May the letter be marked for identifica-

tion?

The Court: Oh, yes.

(Letter dated January 31, 1947, from J. Parnell] Thomas,

Chairman, to the Attorney General of the United States

was marked Defendant’s Exhibit No. 1 for Identification.)

217 (). Mr. MelInerney, do you have with you the Pres-

idential warrant of arrest dated February 4, 1947,

signed by the Attorney General for the arrest of Gerhart

Eisler as an enemy alien? A. I believe that is inelnded

among the documents which Mr. Rothstein is bringing over.

The Court: Now, I may state to save time that I do not

consider that relevant because the fact of the arrest is

stipulated in the record and, therefore, it would be purely

cumulative to offer the warrant.

Mr, Isserman: We believe the terms of the warrant are

important.

The Court: Why?

Mr. Isserman: Because they indicate that the defend-

ant was arrested as an enemy alien.

The Court: I think that is admitted. I understand

218 Mr. Hitz admitted that the defendant was taken into

custody as an enemy alien. Is that correct?

Mr. Hitz: That is correct.

The Court: So you do not need the Presidentia] warrant.

By Mr. Isserman:

Q. Do you have with you, Mr. MeInerney, the record, or

records, of service of said warrant showing the time and

place served, and by whom? A. No, sir, I do not.

The Court: I am going to exclude that for the same

eee 7 ie

Mr. Isserman: If Your Honor please, we would like to

make an offer of proof in respect to that, and other infor-

mation we are asking of this witness.

The Court: The fact that the defendant was arrested

pursuant to a warrant as an enemy alien, and was taken

into custody on that ground is admitted in this case. Now,

what else do you want to bring along that line? I am going

to exclude any evidence which you tender which in any way

questions the legality of the arrest, because that is not in

issue in this case.

Mr. Isserman: If Your Honor rules it out on the second

ground, I would like to state to Your Honor the reason

why we think it is relevant,

The Court: Why?

219 Mr. Isserman: We intend to show that at the time

of the arrest of Mr. Eisler he was not served with

any warrant whatsoever, and the time and place of the

service of the warrant and the record which the Attorney

General has to that effect.

The Court: I am not interested in that. I will exclude it.

The fact of the arrest is admitted. How the arrest was

accomplished is immaterial, and whether it was legai or

illegal is also immaterial. Bear in mind the only issue—

Mr. Isserman, I am calling your attention—bear in mind

that the only issue in this case is whether the defendant

was guilty of default during his appearance before the

Committee, and whether that default was wilful, and

everything else is extraneous.

Mr. Isserman: If the Court please, we understand that

is the Court’s ruling, but we would like to make an offer

of proof of other matters we deem material.

The Court: Proceed; but in order to make the record,

Mr. Isserman, on matters the Court has excluded you do

not have to offer cumulative testimony.

Mr. Isserman: As to that feature of the testimony I

would like to approach the bench and indicate to Your

Honor what we intend to prove under these defenses, and

if Your Honor will rule—

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The Court: Oh, no, I won’t let you do that. I will

220 rule on questions of evidence as we go along.

Mr. Isserman: That is what we are endeavoring

to do.

The Court: I have already ruled on the Presidential

warrant. I have excluded that, and the manner of the

arrest, and whether the warrant was or was not served.

By Mr. Isserman:

Q. Now, Mr. McInerney, I ask you if you have with you

documents and reports showing, or from which it can be

ascertained, the number of names of any and all enemy

aliens arrested on and after January 1, 1947, to date as

‘dangerous to public peace and safety of the public

peace’’ pursuant to Presidential Proclamation No. 2526

dated December 8, 1941? A. I understand there were none

except Mr. Eisler.

Q. Mr. McInerney, I ask you whether you have with you

copies of instructions issued by the Attorney General, or

his subordinate, with reference to the entrance, deporta-

tion and treatment of enemy aliens issued subsequent to

July 20, 1945? A. I do not, sir. That is included among

the material Mr. Rothstein is producing.

Q. I will ask you if you have in your possession record

of the order of release of Mr. Eisler obtained on Presiden-

tial warrant dated on or about April 15, 1947? A. I didn’t

hear the first.

Q. I am sorry, the order of release from custody of

Gerhart Eisler as an enemy alien detained on Presi-

221 dential warrant dated on or about April 15, 1947?

Mr. Hitz: The question is do you have such an

order?

The Witness: I have such an order, yes.

Mr. Isserman: May I see it, please?

(Witness produces document.)

Mr. Isserman: May I have the telegram dated April 12,

1947, addressed to the Honorable John F. McGohey, United

States attorney, U. S. Court House, New York, signed—

The Court: Don’t go into all those details.

Mr. Isserman: I want to identify the telegram.

The Court: Just identify it briefly.

Mr. Isserman: I am going to give the—

The Court: Don’t tell me that, just identify it briefly.

Mr. Isserman: I am trying to do as Your Honor tells me.

The Court: The Court has the last word.

Mr. Isserman: I shall complete the identification by in-

dicating that it is signed by Tom C. Clark, Attorney

General.

The Court: Are you offering it in evidence?

Mr. Isserman: I now offer Defendant’s Exhibit No. 2

for identification, in evidence.

(Telegram dated April 12, 1947, to John F. MeGohey

was marked Defendant’s Exhibit No. 2 for Identification.)

Mr. Hitz: I object to it.

The Court: Objection sustained.

222 Mr. Isserman: I would like to make an offer of

proof, if Your Honor please.

The Court: You don’t need to make an offer of proof

when it is marked for identification; that protects the

record. Proceed.

Mr. Isserman: May I see the exhibit, please?

The Court: I beg your pardon, ask the next question.

Mr. Isserman: I want to examine the exhibit for a

minute, if I may.

By Mr. Isserman:

Q. Mr. McInerney, I now ask you if you have with you

all applications to extend time of temporary stay on Form

1-5390639 executed by Gerhart Eisler between August 6,

1941, to the present date, returned by him to the Immigra-

tion and Naturalization Service, which are in File No.

56088411? A. I have, sir.

Q. May I examine it, please? A. I will have to remove

them from the file.

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Q. Will you do that, Mr. McInerney, please?

223 Q. Mr. McInerney, do you have with you now the

documents I requested just before the recess? A.

I do.

Q. May I have them, please? A. (Witness produces

_ papers.)

Mr. Isserman: At this time I would like to mark for

identification as Defendant’s Exhibit No. 3, Form 1-539,

United States Department of Justice, Immigra-

224 ~tion and Naturalization Service, entitled ‘‘ Applica-

tion to Extend Time of Temporary Stay,’’ District

No. 9—

The Court: You don’t have to identify all that.

Mr. Isserman: There is a great deal of it.

The Court: The exhibit number will be sufficient for

identification.

Mr. Isserman: But there are many with the same ex-

hibit number—oh, I see.

The Court: I mean the Clerk’s exhibit number will be

sufficient.

Mr. Isserman: Correct. I think the date should be men-

tioned, if Your Honor please.

The Court: The exhibit number is sufficient.

(Form 1-539 of the Immigration and Naturalization Ser-

vice was marked Defendant’s Exhibit No. 3 for Identifi-

cation.)

Mr. Isserman: I would like now to offer—

The Court: Just a minute, I have not approved it.

Mr. Isserman: I thought I would mark a series of these

for identification.

The Court: No; are you offering this?

Mr. Isserman: I am offering Defendant’s Exhibit 3 for

identification in evidence.

The Court: Does the Government wish to be heard?

Mr. Hitz: I object as irrelevant.

7 — Sea BaP as a

The Court: Objection sustained. This exhibit is

225 ~_—sirrelevant to any relevant issue in this case.

Now, then, have you any more of these papers

you wish to offer?

Mr. Isserman: I have more of these papers bearing on

different dates and containing other items of information

which we deem material and relevant to the issues in this

case.

The Court: How many of them are there?

Mr. Isserman: There are six, Your Honor.

The Court: They are all excluded and they will be

marked consecutively as Defendant’s Exhibit 4 for iden-

tification, and so on, and the Clerk can mark them at his

convenience and in the meantime you may proceed.

(Documents from the Immigration and Naturalization

Service were marked Defendant’s Exhibits 4, 5, and 6, for

Identification, respectively. )

226 Q. Now, Mr. McInerney, you are familiar with the

status which Mr. Gerhard Eisler had when he came

to the United States in June of 1941? A. I am, sir.

Q. And what status did he come in under?

Mr. Hitz: I object.

The Court: Objection sustained.

Mr. Isserman: May I make an offer of proof, if Your

Honor please?

227 The Court: You may make an offer of proof.

Mr. Isserman: I offer to prove that the defendant

came to the United States—

Mr. Hitz: May I interrupt a moment? If it is to be an

oral offer of proof I suggest it be made at the bench.

The Court: No, just state briefly what the answer is

expected to be.

Mr. Isserman: I would like to make an offer of proof if

I may.

The Court: The way to make an offer of proof with the

witness on the stand is ‘‘I offer to prove that the witness’

answer would be so and so.’’

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. a

Mr. Isserman: That is what I want to do.

The Court: Well, you may.

Mr, Isserman: 1 would like to offer to prove that this

witness, if permitted to answer, would testify that the de-

fendant

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