# Appendix — United States ex rel. Eichenlaub v. Shaughnessy > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0380%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1949 - **Citation:** 338 U.S. 883 ## Text ee era ee Se, ee eee - 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 - il 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 :HROUSH-PQOR COPY 29 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 26 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? 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. 32 PO EEE) oom BLEED THROU 3H=POOR COPY | 33 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. 34 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 35 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 7 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. 36 BLEED THROU 3H= POOR COPY 37 118 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 38 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 39 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- 40 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 41 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 42 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. BLEED THROU SH- POOR COPY 43 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 } — 45 ‘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. 46 131 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 — 47 **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. 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 an 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 — 63 ‘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 2 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 — 65 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; OY 66 ‘*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 am 67 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, 68 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. 69 70 ‘*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 71 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 72 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 . 73 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 74 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 75 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 :) a 76 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 _ 77 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- s 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 78 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? ae 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 80 eroeen wie ewi ow. coAne Ae _ 81 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? 82 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 83 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. a 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. 84 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. — 85 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. BLEED THROUGH-POOR CoPy 86 209 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 — 87 211 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. ae 88 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 The Court: Have you seen it? © BLEED THR OU 3H=- POOR COPY — su 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 90 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— BLEED THROUGH POOR COPY 91 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— oo 92 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. BLEED THROUGH POOR COPY 93 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 94 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. ) e 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.’’ BLEED THROUGH POOR COPY . 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 Gerhart Eisler arrived in this country in June, 1941, as an alien in transit to Mexico. The Court: Very weil, that is excluded as immaterial and irrelevant. 95 By Mr. Isserman: (). Mr. MeInerney, I] now ask you whether or not De- fendant Gerhart Eisler from his arrival in the United States in June, 1941, applied for any change of status from hiw status as to being here-on a transit visa, up to 228 and including February 4, 1947? Mr. Hitz: I object. The Court: Objection sustained. Mr. Isserman: I offer to prove that this witness, if allowed to answer, would state that the defendant Gerhart Kisler never applied for change in status. The Court: Well, you mean you expect him to say no. That is the offer of proof. Mr. Isserman: No. The Court: Because your question calls for a yes or no answer, r Mr. Isserman: May I have the question read, please? The Court: No, you may proceed. Mr, Isserman: Well, Your Honor, I would like to— The Court: You ought to know how to make an offer of proof. Mr. Isserman: I am asking the stenographer to tell me what I asked. I want to make sure the defendant’s point is covered, The Court: You may do it this time but don’t do it again. You ought to know your own question. Mr. Isserman: May I object to the Court’s remark? I think it is improper and I ask that it be stricken out. 96 The Court: The Court never strikes its own remarks, You may object to the Court’s remarks, but the 229 Court never strikes its own remarks. Mr. Isserman: I ask to have the Court’s remark eliminated from the record. Would you read the question? (Pending question read by the reporter.) The Court: You see, that calls for a yes or no answer, Mr. Isserman: No, it doesn’t, it calls for it in the alter. native, and I would like to state an offer to prove. The Court: State it. Mr. Isserman: I offer to prove that this witness, if allowed to answer, would answer that the defendant, Ger- hart Eisler, did not apply for a change in status from the status of an alien in transit to Mexico from the time of his entry in the United States in June, 1941, up to and including February 6, 1947. The Court: I still say the question calls for a yes or no answer. I think you are wasting time unnecessarily and I sustain the objection. Mr. Isserman: I am constrained to enter another objec- tion to Your Honor’s statement. The Court: Very well, you have the privilege of doing so. By Mr. Isserman: Q. I ask you, Mr. McInerney, whether it isn’t a fact that from and after June 14, 1941, until May 8, 1945, that 230 the defendant was a continuous applicant to gov- ernmental authority for permission to leave for Mexico to carry out his intention which he had when he entered the United States? Mr. Hitz: I object. The Court: Objection sustained. Mr. Isserman: I offer to prove, Your Honor, that this witness would answer this question in the affirmative. The Court: Very well. BLEED THROUGH POOR COPY o o e o o . 266 Mr. Isserman: At this time we should like to ask the Court, on behalf of the defendant, to take judi- cial notice of the statements made on the floor of the House of Representatives and reported in the Congressional Ree- ord on February 18, 1947, of members of the House Com- mittee on Un-American Activities in connection with the resolution which they had presented to the floor of Con- vress to cite the defendant in this case for contempt. The Court: I decline to do so, because that is not a proper matter for the judicial notice of the Court. BLEED THROUGH POOR COPY 1 Mr. Isserman: May I state an offer of proof in respect to that? The Court: No; you may not make an offer of proof as to the judicial notice. I decline to take judicial notice. You may identify these matters and hand them to the reporter. Mr. Isserman: I should like to identify the matters as statements made by Representatives Nixon, Thomas, Ran- kin, Bonner, Mundt, and Vail, contained in the Congres- sional Record for February 18, 1947, at pages 1178 to 1187. Mr. Hitz: The Government objects. 267 Mr. Isserman: I ask that these statements be put into the record. The Court: The Government objects, and I decline to take judicial notice of them. Mr. Isserman: At this time— The Court: Counsel must rise when addressing the Court. You may examine witnesses while sitting down. Mr. Isserman: The Court is correct. I was in error in sitting down. 105 (The statements of Representatives Nixon, Thomas, Rankin, Bonner, Mundt, and Vail, just referred to by Mr. Ixserman, are identified as appearing at pages 1178-1187 of the Congressional Record for February 18, 1947.) 268 Robert E. Stripling Direct Examination By Mr. Isserman: Q. Mr. Stripling, how long have you been secretary of the House Committee on Un-American Activities? A. I was the secretary and chief investigator of the Special Committee on Un-American Activities from 1938 until] Jan- nary 3, 1945, at which time I entered the Army. I returned with the standing Committee on Un-American Activities on January 22, 1947. a Q. In the course of your experience as secretary of the committee, you have attended a great many sessions of the committee, have you not ? A. I have. Q. Have you made yourself familiar with the procedure of the committee from January, 1945, to January, 269 1947, when you were not secretary of it? Are you familiar with the procedure then? A. I am not. Q. Now, in the course of your being secretary for the committee— Mr. Isserman: I withdraw that. By Mr. Isserman: 106 (. For how many years were you secretary of the House Committee on Un-American Activities? The Court: He has already answered the question. Mr. Isserman: I would like to get the number of years, your Honor. The Witness: Do you mean the House Committee on Un- American Activities or the Special Committee? By Mr. Isserman: Q. The first House Committee, which preceded the pres- ent standing committee. A. Well, the Special Committee on Un-American Activities—I was with it from 1938 until . January 3, 1945. Q. Now, in the course of your experience with that com- mittee, had you become familiar with the procedure of the committee with respect to witnesses, Mr. Stripling? A. Yes. (). Has it been customary on all occasions to allow coun- sel to be present when a witness is called? 270 Mr. Hitz: I object. The Court: Objection sustained. Mr. Isserman: I should like to make an offer of proof. The Court: No; I exclude this as irrelevant; therefore, an offer is not necessary. Mr. Isserman: I should like to state— BLEED THROUGH POOR COPY a The Court: No. Proceed with the next question. I do not think an offer of proof is necessary unless the admis- sibility of the testimony depends upon the nature off the answer. But when a subject matter is irrelevant, | do not think counsel needs the protection of an offer of proof. Mr. Isserman: The offer would indicate relevancy. 107 By Mr. Isserman: Q. Now, Mr. Stripling, you have been present before the House Committee on Un-American Activities on occasions when witnesses were attended by counsel? A. I have. Q. From your experience with the committee and from your observations, you have knowledge of the practice of that committee in respect to the permission given to coun- sel—in respect to a witness who comes with counsel’? A. I have. The Court: I think that this is irrelevant, Mr. Isserman. What was done in this particular case is, of course, rele- vant and admissible; but what was done in other cases is not, 271 Mr. Isserman: If the Court please, I am trying to establish a practice of the committee in respect to its procedure. The Court: My ruling is that the practice is not rele- vant. The question is what was done in this case, and not what was the general practice. Mr. Isserman: I would like to make an offer at this time to show through this witness that the practice of the com- mittee when counsel was present with a witness before the committee was to allow the witness to speak; but counsel only to confer with the witness. The Court: I am going to rule that out as irrelevant on the ground that the only matter that concerns us here is what was done in this case, not what might have been done in other cases, 108 273 Charles M. Rothstein . * . . . oe o . * e Direct Examination By Mr. Isserman: (). May we have your full name, please? A. Charles M. Rothstein. Q. What is your occupation, Mr. Rothstein? A. 1 am acting director of the Alien Enemy Control Unit, Depart- ment of Justice. Q. Is that the unit of the Department of Justice which has the supervision and control over enemy aliens arrested under Presidential warrants? A. It is. Q. Will you state whether or not there is any regulation or authorization in the Department of Justice, particularly in the Alien Enemy Control Unit, permitting the 274 +transportation of any person held in custody under Presidential Proclamation 2526, which has been promulgated or issued, except for transportation of such persons for purposes of detention, removal, or release? Mr. Hitz: I object to the question as irrelevant. The Court: The objection is sustained on the ground that the subject matter of the question is irrelevant to any issues in this case. Mr. Isserman: If this witness were permitted— The Court: No; I will not let you make an offer of proof, because that is not necessary. I rule out this subject mat- ter as irrelevant. I will not let you make an offer of proof in open court. By Mr. Isserman: Q. Now, Mr. Rothstein, would you tell us whether or not as a matter of practice prior to the transportation of the defendant Eisler any person in custody under Procla- mation 2526 has ever been involuntarily transported ex- cept for purposes of detention or removal from the United States. BLEED THROUGH POOR COPY a Mr. Hitz: I object; same ground. The Court: Objection sustained. Mr. Isserman: May I make an offer of proof? The Court: No; and you may not make an offer of proof in open court. Moreover, I do not think an offer of proof is necessary when a subject matter is excluded as irrel- 275 evant. An offer of proof is necessary to protect a litigant’s right when the admissibility of the evi- dence depends on the nature of the answer. But when the entire subject matter is irrelevant, you do not need an offer of proof. But under any circumstances we would hear offers of proof at the bench, and not in open court. Proceed. Mr. Isserman: In respect to the last two questions, in view of your Honor’s statement, I should like to approach the bench and make an offer of proof in respect to each of them. The Court: No; in the light of the statement made by defense counsel, I will not allow that. You stated at the last bench conference that you preferred everything done in open court; that your client objected to having things done at the bench that he could not hear. I informed you that the only purpose of a bench conference is to protect the defendant. Now, you may not change back and forth Mr. Isserman: I am not trying to change, if your Hor please, but I believe an offer of proof is necess» y in this ease, and if we cannot make it in open eco” »t, we should like to make it at the bench, although I Leiieve— The Court: Proceed with the next question. In my opinion, an offer of proof is not necessary to protect the defendant’s rights when a line of inquiry is excluded as irrelevant. An offer of proof is necessary when the 276 admissibility of testimony depends on the nature of the answer. 109 By Mr. Isserman: Q. Mr. Rothstein, will you tell us whether or not persons in custody under Presidential Proclamation 2526 were ac- 110 corded the rights guaranteed to prisoners of war by the Geneva Convention? Mr. Hitz: I object. The Court: Objection sustained, because that is a ques- tion of law, as well as because the subject matter of the question is irrelevant. Mr. Isserman: Could I make an offer of proof in respect to this question? I offer to prove— The Court: No, I will not let you make an offer of proof. I have told you that I consider this subject matter irrele- vant. I might add another reason: What was done in the case of other persons is not relevant here. Mr. Isserman: My question is directed to the practice of the Alien Enemy Control Unit. The Court: The practice is not binding on this Court. 277 Brunhilda Eisler Direct Examination By Mr. Isserman: Q. You are the wife of the defendant in this case, Mr. Gerhart Eisler? A. Yes, I am. Q. On or about January 24, 1947, were you present when your husband was subpoenaed to appear before the House Committee on Un-American Activities on February 6, 1947! A. I was. 278 Q. Subsequent to that day, did you assist your husband in making any preparations for the hearing on February 6, 1947? A. Yes, I did. Q. Will you tell us what you did? A. I typed the state- ment and I cut the stencils for the statement that my hus- band—in which my husband wanted to state his case before the Un-American Activities Committee. Q. Do you recall on what day that statement was com- plete? A. I finished my work on this statement on Sun- BLEED THROUGH POOR COPY 111 day, February 2, two days before my husband was ar- rested, (). You are referring to your husband’s arrest on Feb- ruary 4, 1947, are you not? A. That is correct. (). Now, did you make any preparations for the hearing in Washington on February 6, 1947, to which your husband was subpoenaed? A. Yes, I did. On February 3, which was a Monday, I went to Pennsylvania Station, and I bought two round-trip tickets to Washington, one for my husband and one for myself, in order to go to Washington on Feb- ruary 5 for the hearing before the Un-American Activities Committee, (). I show you some railroad tickets and ask you if they wre the tickets you purchased on that day. A. That is right; it says, ‘‘ February 3, 1947.’’ 279 Q. The tickets are both stamped ‘‘February 3, 1947,’’ are they not? A. That is right. Mr. Isserman; Cross-examine. Cross-Examination By Mr. Hitz: (). Was that statement you cut the stencils for to be given by him to the committee or to be spread to the news- paper people at the meeting? Do you know? A. It was to be given to the newspaper people; but, as far as I know, iy husband wanted to use it to state his case before the Un-American Activities Committee. (). So it had those two purposes? A. I think so. (). Do you have a copy of it with you? A. I don’t. (). Do you know how many pages it was? A. It must have been about twenty pages, if I am not wrong. (). You would remember it if you saw it, would you? A. Excuse me? Q. Would you remember it if you saw a copy of it? A. I would. (). I show you Government Exhibit 7 for identification. Is this the statement that you typed or that you cut 280 ~=on stencils? A. I think it is, a Q. Will you look at the end of it? Perhaps that will help too. It has a page number on it at the conclusion? A. Yes. Q. So your answer is that this is the statement? A. That is right. That is the statement I typed and I cut the stencils for. Q. Did you type any other statement for him to deliver at the time of the meeting, whether to the committee or to anyone else? A. No, I didn’t. Q. Did you see whether or not he prepared any other statement to be given to the committee or anyone else at the time? A. I didn’t see a statement that he was to give to anybody at that time, but I know that my husband pre- pared a small statement, or a few remarks, if you want to, which he wanted to make to protest his illegal arrest by the Un-American Activities Committee—instigated by the Un- American Activities Committee. Q. When did he prepare those remarks? A. He told me when I saw him the morning of February 6 at the Immigra- tion and Naturalization office in Washington that he tried to— 112 Q. Just a moment. I asked you when he prepared 281. it. Do you know when he prepared it? A. T just want to answer the question. By the Court: Q. No; answer the question directly. The question calls for a statement of time. A. Will you repeat the question? By Mr. Hitz: Q. Do you know when he made that statement of remarks that he wanted to give? A. I don’t know if he wanted to make a statement of remarks or just if he prepared him- self a few notes for a statement he wanted to make. Q. Were you present when he prepared those notes? A. No, I wasn’t. Q. So all you know about it is what he told you about it; is that so? A. That is right. BLEED THROUGH POOR COPY 113 Q. Was Mrs. King present when the mimeographed state- ment, Government Exhibit 7 for identification, was pre- pared? A. No. Mr. Hitz: No further questions. Redirect Examination By Mr. Isserman: Q. Just one further question: Did you see your husband from February 4, 1947, to the morning of February 6, 1947? A. I saw my husband for a short while, while he was 282 ~~ detained in Ellis Island. Q. Did you have any opportunity to confer with him there about any statement? A. I—we spoke together at the hall in Ellis Island. I don’t remember; he said some- thing about a statement. Q. You did not work on any statement then? A. I didn’t work on any statement, no. {). Did he say something to you about a statement on the morning of February 6, 1947, when you saw him at the office of the Distriet Director of Immigration in Washing- ton, D. C.?) A. Yes; he said. Mr. Hitz: I am sorry; I have to object. I think she has answered the question. The Court: Yes; objection sustained. 283 Gerhart Eisler Direct Examination By Mr. Isserman: (). What is your name, please? A. Gerhart Eisler. (). And you are the defendant in this case? A. Yes. . And what is your occupation? A. Writer and jour- nalist. Q. Mr. Eisler, will you tell us when you came to the United States? A. I came to the United States in June, 1941. 7 114 : | Q. Will you tell us under what circumstances? A. I was a political refugee from concentration oye in France on my way to Mexico. Q. Do you have any papers from the poner Govern- ment, United States Government, authorizing you to land in the United States for the purpose of going to Mexico? A. I had a transit visa. Q. When you say you had a transit visa, that is the au- thority that was given to you by the United States 284 Consul to land in the United States, was it not? A. Right. Q. Did you have any other papers? A. Yes, I had a Mexican substitute passport, because I was invited— The Court: Just a minute, you have answered the ques- tion. You need not go over these details because they are irrelevant. You have shown he was here on a transit visa to Mexico. That is enough. Mr. Isserman: I would like to proceed if I may. The Court: Ask the next question. By Mr. Isserman: Q. I show you a paper and ask you if this is a paper which you had when you landed in the United States in June, 1941? A. Yes. Q. And I call your attention to the stamp on the paper under date of 8-6-41, that is August 6, 1941, which says ‘* Admitted —”’ Mr. Hitz: Just a minute. The Court: Don’t read the contents of the document in front of the jury until it has been admitted in evidence. Mr. Isserman: I am sorry. May I have this marked as Defendant’s Exhibit No. — I think it should be No. 10, De- fendant’s Exhibit No. 10 for identification. 285 (Document dated August 6, 1941, was marked De- fendant’s Exhibit No. 10 for identification.) Mr. Hitz: At this time I would like to say that the Gov- ernment Exhibit No. 7 for identification referred to with BLEED THROUGH POOR COPY 115 the previous witness should be Government’s Exhibit No. 6 for identification. May the record show that change, Your Honor? The Court: Yes, indeed. Mr. Isserman: This is the Defendant’s Exhibit No. 10 for identification and contains a stamp of the American authorities— The Court: Just a minute, you may not interrogate a witness concerning the contents of an exhibit until the ex- hibit has been offered and been admitted in evidence. Mr. Isserman: I am trying, Your Honor, to lay a foun- dation for its admittance, because it does contain an offi- cial stamp. The Court: If it does the document speaks for itself. Mr. Isserman: At this time, if the Court please, I offer in evidence Defendant’s Exhibit No. 10 for identification. Mr. Hitz: I object as irrelevant. The Court: MayI see it? (After inspecting document :) I will sustain the objection. The exhibit is irrelevant. By Mr. Isserman: Q. Mr. Eisler, did you complete your trip to Mex- 286 ~—s ico on the transit visa you had? A. No, I did not. Q. In June, 19417 A. No. (). Did you complete your journey in transit any time subsequent to June, 19417 A. No. (). Do you know why you did not complete it? Mr. Hitz: I object. The Court: We do not need to go into that. I allowed you to ask a few preliminary questions in order to orient the defendant, so to speak. We always allow that in con- nection with a defendant taking the stand, but as to the visa I consider it irrelevant. It has no bearing. Mr. Isserman: I may say we asked the question for a purpose other than argumentation; we would like to make an offer of proof. The Court: No, that was a question that was raised by your motion to dismiss, was it not, and I heard the motion 7 to dismiss and I overruled it, so you have a ruling in that matter already. That is in the record. Mr. Isserman: If the Court please, these are’ factual matters. The Court: Yes, but I ruled that the defense was insuf.- ficient. My ruling was equivalent to what would have been a demurrer under the old procedure and I ruled that 287 _—siit was insufficient on that issue. Mr. Isserman: I understand Your Honor’s ruling to be that no offer of proof will be allowed on this ques- tion? The Court: Yes. By Mr. Isserman: 116 (). From the time you came to this country, Mr. BKisler, in June, 1941, did you make any effort to leave it? A. Yes, repeatedly from time to time. Q. What effort did you make? Mr. Hitz: I object. The Court: Objection sustained. Mr. Isserman: May I make an offer of proof? The Court: No; I consider the subject matter irrelevant. By Mr. Isserman: Q. Did you at any time subsequent to June, 1941, obtain permission from the United States Government to leave the United States? A. Yes. Mr. Hitz: I object as irrelevant. The Court: Objection sustained. Mr. Hitz: May the witness be cautioned? The Court: Yes; do not answer the question until coun- sel has an opportunity to make an objection and the Court has an opportunity to rule on it. Mr. Hitz: May the answer be stricken if it got 288 ~=in the record? The Court: Yes. Mr. Isserman: May I make an offer of proof? The Court: No. BLEED THROUGH POOR COPY 117 By Mr. Isserman: Q. Did you during the period of the last war, Mr. Eisler, while you were in the United States, register as an enemy alien? A. No. Mr. Hitz: I object. The Court: Objection sustained. This matter is en- tirely irrelevant. Mr. Isserman: May I make an offer of proof? The Court: No. By Mr. Isserman: Q. During the war period, recent war period, did you support the war effort of the United States? Mr. Hitz: I object. The Court: Objection sustained. Mr. Isserman; May I make an offer of proof with re- spect to the question? The Court: No. By Mr. Isserman: Q. Of what country are you a citizen, Mr. Eisler? A. From Austria. 280 Q. Of what country are you a native, Mr. Eisler? A. I was born in Germany of Austrian parents; ac- cording to German law— The Court: No, you have answered the question. You are not an expert on law. Mr. Isserman: May I have the answer? The Court: His answer was; ‘I was born in Germany of Austrian parents.’’ By Mr. Isserman: Q. In the war period were you ever called by the United States Government to attend any enemy alien hearings on behalf of yourself? A. I couldn’t get your question; please may I have the question? Mr. Isserman: Read the question. - Se rr amen a ercee i 118 (The pending question was read by the reporter.) Mr. Hitz: I object. The Court: Objection sustained. Mr. Isserman: May I make an offer of proof? The Court: No. By Mr. Isserman: Q. Did you at any time in 1946, Mr. Eisler, obtain an exit permit from the Department of State giving you per- mission to leave the United States? Mr. Hitz: I object. 290 The Court: Objection sustained. Mr. Isserman: I would like to make an offer of proof with respect to what this witness would answer if permitted. The Court: No. By Mr. Isserman: Q. Mr. Kisler, at the time you were subpoenaed by the House Committee on Un-American Activities—I will with- draw that. When was the first time you were subpoenaed by the House Committee on Un-American Activities, Mr. Eisler? A. I think around October 20, 1946. Q. Where did the subpoena direct you should appear? A. To St. Lonis. Q. Was that a subpoena that directed you to appear be- fore the Committee at St. Louis? A. Yes. (. On what date were you to appear there? A. I was supposed to appear on November 23, 1946. Q. Before November 23, 1946, were you served with a second subpoena, Mr. Hisler? A. Yes, sir, I was served with a subpoena which cancelled the first and directed me to appear in Washington before the Committee on Novem- her 22, 1946. (). Did you appear in Washington at the hearing of the House Committee on Un-American Activities? A. 291 + I did. BLEED THROUGH POOR COPY 119 (). On November 22, 1946? A. I did. (). What happened when you appeared there? Mr. Hitz: I object. The Court: Objection sustained. I don’t see any rele- vaney or any connection with what happened prior to the action on February 6, 1947. We are concerned only with what transpired at the hearing on February 6. Mr. Isserman: May I make an offer of proof? The Court: The indictment is directed solely to the de- fault alleged to have taken place on that occasion. Mr. Isserman: May I make an offer of proof in respect to it? The Court: No, but you may state your reason if you wish. I will hear you on that. Mr. Isserman: If the Court please, we believe this tes- timony is relevant on several grounds. The first ground is that the prior dealings of the defendant with the Com- mittee in respect to his— The Court: Well, state briefly what your reason is. Mr. Isserman: I am trying to state it briefly. We be- lieve this information to be elicited from this witness by this question is relevant first, because it goes to the good faith of the defendant in appearing before the Com- 292. mittee on February 6, 1947; secondly, it goes to the motivation of the Committee in subpoenaing him not only on November 22, 1946, but also on February 6, 1947, for motives which were ulterior and not within the scope of any power given to that Committee by the Congress. The Court: I will adhere to my ruling and exclude this evidence because, in my opinion, neither one of the grounds advanced by counsel justify the admissibility of the evi- dence. By Mr. Isserman: Q. On and after November—withdraw that. On and after January 24, 1947, Mr. Eisler, did you have any belief as to the activities of J. Parnell Thomas, Chair- 120 man of the House Committee on Un-American Activities, in preventing your departure for Germany! Mr. Hitz: I object. The Court: Objection sustained, Good faith is not in issue here. The only question is whether there was a de- fault, and whether the default was wilful. Mr. Isserman: I would like to make an offer of proof. The Court: No, I don’t want you to make an offer of proof. Mr. Isserman: Will Your Honor hear me on it? The Court: No, because we have discussed this at vari- out points during the trial, and previously on a motoin to dismiss. My ruling is that proof of good faith is not 293 a defense because wilfulness does not depend on good faith or bad faith. Wilfulness depends on whether the default, if there was such, was deliberate and intentional. It is immaterial whether it was done for a justifiable motive or an unjustifiable motive; whether it arises under a misapprehension of one’s rights, or not, if it was wilful. Mr. Isserman: I believe I should also point out that it goes to due process— The Court: I overrule that also because I hold that the Court has no authority to scrutinize the motive of Con- gress or one of its committees. I have to assume, and I shall assume, that the Committee was making an investi- gation for proper purposes within the power of Congress; moreover I might say, since the default charged against the defendant is not a failure to answer questions but a failure to take the oath, it is immaterial what the subject matter of the inquiry was going to be. You may proceed. By Mr. Isserman: Q. Now, on January 24, 1947, were you served with a subpoena to appear before the House Committee on Un- American Activities on February 6, 19477 A. I was. BLEED THROUGH POOR COPY ) (). Do you know the name of the person who served the subpoena on you? A. Mr. Russell; I don’t know the first name. 204 Was it Mr. Russell? A. Yes, Q. And before Mr. Russell served that subpoena was he in touch with you by telephone? A. Yes, he called me and asked me when I would be home in order to serve the subpoena, (). Did you make any arrangement with him so that he could serve you with the subpoena? A. Yes, I did. Q. And what was that arrangement? A. The arrange- ment Was that I would stay home until he could give me the subpoena, which I did. (). Now, when you were served with a subpoena on Jan- uary 24, 1947, did you have any intention as to your appear- ance before before that committee? A. Yes, sir. Mr. Hitz: I object. The Court: Objection sustained; the defendant’s inten- tion is immaterial. Mr. Hitz: May the answer be stricken if it was gotten by the reporter? The Court: Yes. Mr. Isserman: I didn’t get it? The Court: The answer may be stricken. 121 By Mr. Isserman: 295 Q. Did you make any preparation for appearing before the House Committee on Un-American 7 . * . * 344 Mr. Isserman: If the Court please, the defense rests at this point. Mr. Hitz: I have one rebuttal witness, Mr. Stripling. Robert E. Stripling Direct Examination By Mr. Hitz: \. Mr. Stripiing, inviting your attention to the first part of the hearing before the Un-American Activities Commit- tee on February 6, 1947, and in particular to the first ques- tion that was asked Mr. Eisler by you with reference to taking the stand, which was: ‘‘Mr. Stripling. Mr. Gerhart Eisler, take the stand.” Did you say that to Mr. Eisler? A. I did. Q. Was that the first thing that you had said to Mr. Eisler after the meeting had convened that morning? A. Yes, sir. (. And to that did Mr. Eisler make this reply: ‘‘Mr. Eisler. I am not going to take the stand.’’? A. Yes, sir. BLEED THROUGH POOR COPY a 151 Q. Did you follow that with the question: ‘‘Do you 345 have counsel with you?”’’ The Court: Mr. Hitz, isn’t this already in the ree- ord? Mr. Isserman: It is, if the Court please. Mr. Hitz: Not what I am going to bring out. The Court: I mean these questions and answers are in the record? Mr. Hitz: Yes, these questions and answers are in the record of the Committee. The Court: No, I mean in the record of this trial. Mr. Hitz: They are in the record of this trial. The Court: That being so I was wondering why you are repeating them. Mr. Hitz: I am repeating them because they are the foundation questions to the questions I am leading up to, which is the rebuttal question. The Court: Very well. By Mr. Hitz: (. Did you then ask Mr. Eisler: ‘‘Do you have counsel with you?”’ A. I did. (). Was that your second question to him? A. It was. (). When you asked that question did you cut off the reply Mr. Eisler then made, which was, ‘‘I am not going to 346 ~=to take the stand’’? A. I did not. Mr. Hitz: That, Your Honor, is the rebuttal ques- tion. * 7. > o * * - . eed The Court: Do both sides rest? Mr. Isserman: Both sides rest, if the Court please. Mr. Hitz: We rest. The Court: Are there any prayers for instruction? Mr. Isserman: Yes, sir. The Court: You may hand them up and come to the bench and I will announce my ruling at the bench. (Counsel for both sides approached the bench and the following occurred :) 7 Mr. Isserman: If the Court please, I would like time to prepare one additional instruction. The Court: Give it to me orally. I will take it orally. Mr. Isserman: We request the Court to charge that un- der Title 2, Section 192 of the U. S. Code, a witness before a Co [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0380%3A01. Public record. Not legal advice.