No CrossRef data available.
Article contents
Advocacy in Constitutional Choice: The Cramer Treason Case, 1942–1945
Published online by Cambridge University Press: 20 November 2018
Abstract
How did advocacy at each level of the federal judiciary help shape the leading decision in American law of treason? This article, adapted from a forthcoming biography of Judge Harold R. Medina, is a case study based on Justice Department archives and the personal papers of Medina, Charles Fahy, and seven Supreme Court Justices. It analyzes the whole case, from the lawyers'standpoint, to illuminate the role of counsel in transforming a minor wartime incident into the first treason case decided on the merits by the Supreme Court and the tribunal's only decision during World War II to limit constitutional war powers. Accenting litigation strategy and the use of history in constitutional interpretation, it is a story also of the struggle by counsel on both sides of the case to uphold high professional standards amid the passions of total war.
- Type
- Articles
- Information
- Copyright
- Copyright © American Bar Foundation, 1986
References
1 United States v. Cramer, 137 F.2d 888 (1943); 325 U.S. 1 (1945).Google Scholar
2 Ex parte Quirin, 317 U.S. 1 (1942) See Mason, Alpheus T., Harlan Fiske Stone: Pillar of the Law 653–66 (New York: Viking Press, 1956); Michal R. Belknap, The Supreme Court Goes to War: The Meaning and Implications of the Nazi Saboteur Case, 89 Mil. L. Rev. 59 (1980); Washington Post, July 20, 1952; summary of trial transcript, Nazi Saboteur Case, 20C, and Memorandum, Warren Olney III to the Attorney General, Feb. 4, 1953, Department of Justice File: 146–7-4219 (hereinafter cited as DJ File).Google Scholar
3 F. F.'s Soliloquy, Ex parte Quirin, Oct. 23, 1942, Box 4, Frank Murphy Papers, Michigan Historical Collections, University of Michigan. For the problem of treason, see infra note 94.Google Scholar
4 Quote, Wendell Berge to E. E. Thompson, Sept. 23, 1942, DJ File. This account draws heavily from Harold R. Medina (hereinafter cited as HRM), An Illustration: The Anthony Cramer Treason Case, in Liberal Arts and the Professions 17 (Ferdinand Phinizy Lectures at the University of Georgia, 1956); also reprinted in HRM, The Anatomy of Freedom 48 (New York: Henry Holt & Co., 1959); interview, Columbia Oral History Collection-HRM at 490–92, 607–38 (hereinafter cited as COH-HRM); interview, the author-HRM at 128–31, 438–41, 516–17, 566–82 (hereinafter cited as JWH-HRM); William M. Kunstler, The Case for Courage 312 (New York: William Morrow & Co., 1962); and a fine paper containing interviews with HRM and Charles Fahy by Jonathan Rusch, Cramer v. United States: A Study in Treason (unpub., University of Virginia, May 6, 1977).Google Scholar
5 HRM to Charles G. Proffitt, Sept. 10, 1942, Harold R. Medina Papers, Princeton University. All correspondence not otherwise cited is from this source.Google Scholar
6 See United States v. Foster, 9 F.R.D. 367 (S.D.N.Y. 1949); Dennis v. United States, 183 F.2d 301 (2d Cir. 1950); 341 U.S. 494 (1951). See also United States v. Sacher, 9 F.R.D. 394 (S.D.N.Y. 1949); 182 F.2d 416 (2d Cir. 1950); 343 U.S. 1 (1952).Google Scholar
7 After a bungled pleading provoked a client's suicide in 1915, he had lost his nerve for trials and concentrated on appeals. He developed into a skilled trial lawyer in the 1930s, having learned what not to do from appeals. See Daniel, Hawthorne, Judge Medina: A Biography 108–9 (New York: Wilfred Funk, Inc., 1952); COH-HRM at 68, 256–60; 509–11; JWH-HRM at 385–87; and HRM to S. A. Mc-Swain, Jan. 7, 1915. His most important writings included: Important Features of Pleading and Practice Under the New York Civil Practice Act (New York: Baker, Voorhis & Co., 1922); Medina's New York Civil Practice Manual (New York: George Grady Press, 1928; 2d ed. 1930; 3d ed. 1932); with Carr & Finn (St. Paul, Minn.: West Publishing Co., 1936–42); and his magnum opus, Cases on New York Pleading and Practice (New York: Callaghan & Co., 1928). At the urging of Dean Harlan F. Stone, he also published one of the earliest casebooks on federal civil procedure, HRM, Cases on Federal Jurisdiction and Procedure (St. Paul, Minn.: West Publishing Co., 1926), later edited by Armistead M. Dobie.Google Scholar
8 Interviews, COH-George W. Alger at 172; JWH-HRM at 413. He was counsel in such important litigation as People v. Marcus, 235 A.D. 397 (1932); 261 N.Y. 268 (1933), involving one of the largest bank failures in U.S. history; and Matter of MacAdams v. Cohen, 236 A.D. 361; 260 N.Y. 559 (1932), a defeat that paved the way for Fiorello H. LaGuardia's election as Mayor of New York City.Google Scholar
9 Douglas, William O., Go East Young Man 147 (New York: Random House, 1974).Google Scholar
10 For Medina's concepts of advocacy, see HRM, How Law Suits Are Won and Lost, 1938 Clev. B.A.J. 61; and The Oral Argument on Appeal, 20 A.B.A.J. 139 (1934).Google Scholar
11 HRM to Rollin B. Sanford, May 20, 1938.Google Scholar
12 Jailers, he recalled, gave him a “helluva time” about interviewing Cramer in private. He had to obtain an order from Judge Knox, who “backed me up to beat the band.” JWH-HRM at 654; Irene Soehren, Lawyers on Trial, Reporter, July 11, 1957, at 31.Google Scholar
13 N.Y. Times, Nov. 17, 1942, at 27, col. 5. HRM, Anthony Cramer, supra note 4, at 18–19; Transcript of Record, Supreme Court of the United States, Oct. Term, 1943, No. 406, Cramer v. United States, HRM, 233 Cases & Points 19, 234, 334, and quote at 239 (1943) (hereinafter cited as Record).Google Scholar
14 Record at 262–64, 133.Google Scholar
15 Id. at 87, 112; HRM, Anthony Cramer, supra note 4, at 20–21.Google Scholar
16 Record at 4–7.Google Scholar
17 HRM, Anthony Cramer, supra note 4, at 21.Google Scholar
18 Standish F. Medina to author, n.d., 1983. HRM, Anthony Cramer, supra note 4, at 26.Google Scholar
19 HRM, Anthony Cramer, supra note 4, at 21; JWH-HRM at 492.Google Scholar
20 HRM, Anthony Cramer, supra note 4, at 22–23.Google Scholar
21 U.S. Const. Art. III, £ 3.Google Scholar
22 COH-Charles Fahy at 164; HRM, Anthony Cramer, supra note 4, at 23; Memorandum, Philip Elman to the Solicitor General, June 7, 1944, Box 34, Charles Fahy Papers, Franklin D. Roosevelt Library, Hyde Park, New York (hereinafter cited as FDR Library). See James Willard Hurst, The Law of Treason in the United States ix-x (Westport, Conn.: Greenwood Publishing Corp., 1971); and Bradley Chapin, The American Law of Treason: Revolutionary and Early National Origins 83 (Seattle: University of Washington Press, 1964).Google Scholar
23 Memorandum, Unsigned, Re Accessories to Axis Sabotage, July 15, 1942; Press release, July 16, 1942; unsigned Memorandum to M. E. Gilford, Aug. 10, 1942, enclosed with M. E. Gilford to Oscar Cox, Aug. 11, 1942; Memoranda, Wendell Berge to the Attorney General, Aug. 10, 1942, & July 3, 1943; and HRM to Chester T. Lane, Feb. 28, 1944, DJ File.Google Scholar
24 Cf. Memoranda, Wendell Berge to the Attorney General, July 6 & Aug. 10, 1942; Memorandum, W. Wallace Kirkpatrick, Melva M. Graney, and Philip R. Monahan to Assistant Attorney General Berge, n.d.; Memorandum, Melva M. Graney to Assistant Attorney General Berge, Aug. 7, 1942; Memorandum, Wallace Kirkpatrick to Wendell Berge, Aug. 5, 1942; and two unsigned Memoranda to Assistant Attorney General Berge, Aug. 4, 1942, DJ File.Google Scholar
25 Memorandum, Wendell Berge to the Attorney General, Aug. 10, 1942; George A. McNulty to Francis Biddle, July 20, 1942, DJ File.Google Scholar
26 Cummings, Walter J., Jr., to Charles Fahy, Mar. 9, 1944; Memorandum, Wendell Berge to the Attorney General, Aug. 10, 1942; Wendell Berge to Mathias F. Correa, Aug. 12 & 26, 1942; Wendell Berge to J. Albert Woll, Aug. 25 & 26, 1942, Sept. 2, 1942, DJ File. N.Y. Times, Aug. 13, 1942, at 6, col. 3. Traditionally, the U.S. Attorney for the Southern District of New York is independent of all agencies except the Attorney General.Google Scholar
27 United States v. Haupt, 136 F.2d 661 (7th Cir. 1943). Burger's testimony solved a nagging technical problem of no witnesses to prove that the aided saboteurs were enemies of the United States. George A. McNulty to Francis Biddle, July 20, 1942, DJ File. The government did not use the other informer, George John Dasch, as a witness because of his “unsatisfactory attitude.” See Wendell Berge to James Mclnerney, Sept. 22, 1942; Wendell Berge to Mathias F. Correa, Oct. 19 & 22, 1942, DJ File. Both men received clemency and were deported to Germany in 1948.Google Scholar
28 Record at 115, 420, 423, 432–33; JWH-HRM at 438–39. New Yorker, Jan. 29, 1947, at 17; Soehren, supra note 12, at 31; and HRM to Christian Gauss, May 7, 1945.Google Scholar
29 HRM, Anthony Cramer, supra note 4, at 23–25; JWH-HRM at 128.Google Scholar
30 JWH-HRM at 570; HRM, Anthony Cramer, supra note 4, at 28; and NY. World-Telegram, Nov. 9, 1942.Google Scholar
31 Record at 17. 38, 45–46, 49, 97–99.Google Scholar
32 Id. at 315; Anthony Cramer to Werner Thiel, Nov. 25, 1941, id., Exhibit 68.Google Scholar
33 Id. at 424, 392; Anthony Cramer to Heinrich Cramer Family, Dec. 3, 1941, id., Exhibit 69.Google Scholar
34 Id. at 344; Anthony Cramer to Herbert [Cramer], Apr. 21, 1941, id., Exhibit 63a.Google Scholar
35 Id. at 329.Google Scholar
36 JWH-HRM at 567–68, 571; COH-HRM at 620.Google Scholar
37 Record at 18–19; COH-HRM at 617, 638; JWH-HRM at 574–75.Google Scholar
38 HRM to Vincent W. Gallagher, May 25, 1944. Also see HRM to Robert H. Pelletreau, Jan. 18, 1960; Record at 24, 374–81; quotes, HRM, Anthony Cramer, supra note 4, at 29.Google Scholar
39 Record at 381, 375, 388, 415.Google Scholar
40 Id. at 402; HRM to Walter K. Urich, Sept. 22, 1947.Google Scholar
41 HRM, Anthony Cramer, supra note 4, at 26.Google Scholar
42 NY. Times, Nov. 17, 1942, at 27 col. 5; Record at 329–31.Google Scholar
43 Record, Exhibit at 55; 304, 310–14, 365–66, & quote at 307.Google Scholar
44 Id. at 305; Rusch, supra note 4, at 8.Google Scholar
45 Record at 367–71, 437; JWH-HRM at 234–35.Google Scholar
46 Record at 373.Google Scholar
47 Id. at 409, 374–75.Google Scholar
48 Id. at 26.Google Scholar
49 Id. at 401.Google Scholar
50 Id. at 402–6, 434, 407–8; JWH-HRM at 567–69.Google Scholar
51 Record at 382–84, 388, 409, 393–94, 381.Google Scholar
52 Id. at 375, 454.Google Scholar
53 Id. at 437.Google Scholar
54 HRM to Anthony Cramer, Jan. 6, 1944; HRM, Anthony Cramer, supra note 4, at 30–31. Quote, JWH-HRM at 128–29. See COH-HRM at 471.Google Scholar
55 Commencement address at St. John's University School of Law, N.Y.L.J., Oct. 6, 1947; HRM, Anthony Cramer, supra note 4, at 31. Interview, JWH-HRM, Dec. 3, 1982.Google Scholar
56 The Supreme Court later repudiated the natural consequences presumption. See Sandstrom v. Montana, 442 U.S. 510, 512 (1979); Connecticut v. Johnson, 460 U.S. 73 (1983); and Francis v. Franklin, 105 S. Ct. 1965 (1985).Google Scholar
57 Record at 437–46, 481. Cf. Memorandum, W. Marvin Smith to the Solicitor General, Mar. 8, 1944, Box 55, Fahy Papers, FDR Library; United States v. Cramer, 137 F.2d 888, 893 (2d Cir. 1943); and Frederick Bernays Wiener, Briefing and Arguing Federal Appeals 152–56 (Washington, DC: Bureau of National Affairs, 1967).Google Scholar
58 HRM to Standish F. Medina, Nov. 19, 1942.Google Scholar
59 Record at 448; JWH-HRM at 567; HRM, Anthony Cramer, supra note 4, at 32; N.Y. Herald-Tribune, Nov. 19, 1942. For a juror's reaction, see Albert E. Hardenbergh to William O. Douglas, Apr. 24, 1945, Box 97, William O. Douglas Papers, Manuscript Division, Library of Congress (hereinafter cited as MS-LC).Google Scholar
60 Record at 449–53.Google Scholar
61 J. Edgar Hoover to HRM, Dec. 5, 1942; John C. Knox to HRM, Nov. 24, 1942.Google Scholar
62 Daniel, supra note 7, at 192; COH-HRM at 624–25. The government was shaken, in turn, when the U.S. Circuit Court of Appeals for the Seventh Circuit reversed treason convictions of the Chicago harborers in the Haupt case for violation of the intervening McNabb standards requiring federal officers to arraign defendants promptly after arrest. United States v. Haupt, 136 F.2d 661 (7th Cir. 1943), not appealed; McNabb v. United States, 318 U.S. 332 (1943). The Solicitor General's Office thereinafter reviewed all government briefs in treason cases, approving Correa's brief in Cramer as “adequate.” Wendell Berge to Mathias F. Correa, Mar. 31, 1943, & May 6, 1943, DJ File.Google Scholar
63 JWH-HRM at 578. See United States v. Cramer, brief for the United States, HRM, 229 Cases & Points 9 n., 21 (1943); and brief for defendant-appellant, id. at 49.Google Scholar
64 United States v. Cramer, brief for defendant-appellant, HRM at 229 Cases & Points (1943). The defense did not raise the question of illegal custody on which the Seventh Circuit reversed the Haupt convictions three weeks after the Cramer appeal was argued in New York. See note 62 supra. The Second Circuit noted but did not pass on this issue. 137 F.2d 888, 892 n.2 (2d Cir. 1943). Medina seemed confused as to when Cramer was arraigned. See HRM to Chester T. Lane, Feb. 28, 1944, DJ File.Google Scholar
65 Rex v. Casement, l K.B. 98 (1917), as quoted in brief for United States, HRM, 229 Cases & Points 23 (1943). See Hurst, supra note 22, at 5–56; Chapin, supra note 22, at 81–97.Google Scholar
66 259 F. 685, 690 (S.D.N.Y. 1919).Google Scholar
67 Id. at 690–94. See Melva M. Graney to Assistant Attorney General Berge, Aug. 7. 1942, DJ File.Google Scholar
68 Hand also suggested that if separate bits of evidence were pieced into an overt act, each bit required direct evidence from two witnesses. Goddard so ruled. Stretching this dictum in Cramer's case, Medina contended that the same two witnesses must swear to each entire overt act. Cramer's second meeting and falsehoods failed to satisfy this standard because they were observed by overlapping pairs of G-men, not the same two. Only the defense took this argument seriously on appeal. Brief for defendant-appellant, HRM, 229 Cases & Points 71–74 (1943); United States v. Cramer, 137 F.2d 888. 896 (2d Cir. 1943); cert, memos, Cramer v. United States, Oct. Term 1943, No. 406 (13), prepared by “EB,” Douglas Papers, Box 97, MS-LC; and Oct. Term 1944, No. 13, Wiley Rutledge Papers. Box 112, MS-LC.Google Scholar
69 137 F.2d 888, 893 (2d Cir. 1943).Google Scholar
70 Rusch, supra note 4, at 10. See petition for writ of certiorari and motion for leave to proceed in forma pauperis, HRM, 233 Cases & Points (1943); and HRM to author, Apr. 28 & May 3, 1983.Google Scholar
71 318 U.S. 332 (1943). See briefs for petitioner, Cramer v. United States, No. 406, HRM, 233 Cases & Points 38 (1944).Google Scholar
72 Brief for the United States, id. See United States v. Leiner, unreported (S.D.N.Y. 1943) in appendix to brief for petitioner, id. at 47–48. Leiner, the alleged Bronx contact, was later sentenced to 18 years' imprisonment for trading with the enemy. United States v. Leiner, 143 F.2d 298 (2d Cir. 1944).Google Scholar
73 Brief for the United States, United States v. Cramer, HRM, 229 Cases & Points 29 (1943). Cert. memo, prepared by “EB,” Box 87; 1943 docket book 455, Box 232; and conference note. Feb. 26, 1944, Box 97, Douglas Papers, MS-LC. Cramer v. United States, 320 U.S. 730 (1943).Google Scholar
74 Rex v. Lord Preston (Trial of Sir Richard Grahme), 12 How. St. Tr. 645, 91 Eng. Rep. 243 (1691). Richard T. Davis to author, Mar. 14, 1984.Google Scholar
75 JWH-HRM at 576; HRM, Anthony Cramer, supra note 4, at 34–35; HRM to Morton H. Fry, Sept. 13, 1944; HRM to Ripley Ropes, Nov. 16, 1943; and note, Harlan F. Stone to HRM. undated.Google Scholar
76 Irons, Peter H., New Deal Lawyers 234–36 (Princeton, N.J.: Princeton University Press, 1982); Robert A. Lovett to Felix Frankfurter, July 11, 1944, Box 9, Charles Fahy Papers, MS-LC; Felix Frankfurter to Charles Fahy, Aug. 7, [1944], Box 7, Fahy Papers, FDR Library; David L. Bazelon & Sherman L. Cohn, In Memoriam Judge Charles Fahy, 68 Geo. L.J. i-vii (1979); quote, Fahy's notes for a talk to Phi Alpha Delta fraternity, George Washington University Law School, Mar. 26, 1965, Box 100, Fahy Papers, MS-LC.Google Scholar
77 Fahy diary, July 17, 1945; Fahy's notes for a lecture, Special Ethical Problems of Counsel for the Government, Columbia Law School, Apr.ll, 1950, at 1, 14–15, Box 100, Fahy Papers, MS-LC; Fahy, Book Review, 3 J. Legal Educ. 471 (1951). Cf. Rex E. Lee in Nat. L.J., May 13, 1985, at 5, 38.Google Scholar
78 Fahy has been accused of withholding vital facts from the Justices in the showdown Japanese relocation case, Korematsu v. United States, 323 U.S. 214 (1944). Cf. Peter Irons, Justice at War viii. 202–12, 314–19 (New York: Oxford University Press, 1983); and Stanley I. (Cutler, At the Bar of History: Japanese Americans Versus the United States (Review Essay), 1985 A.B.F. Res. J. 361. In a companion case, Ex parte Endo, 323 U.S. 283 (1944), Fahy announced that he could defend “with conviction” only certain portions of the government's internment program. Only those portions were upheld. N.Y. Times, Sept. 20, 1979, at A22.Google Scholar
79 Stephan v. United States, 318 U.S. 781 (1943).Google Scholar
80 See handwritten notes for Cramer reargument, Box 56, Fahy Papers, FDR Library; COH-Charles Fahy at 517–60 (1959); Charles Fahy, Memorandum for the President, June 30, 1943, Box 13; and Charles Fahy, The Supreme Court in World War II, address to the Institute of Military Law, May 5, 1957, at 5–6, Box 8, Fahy Papers, MS-LC. Chief Justice Stone and Justice Murphy also interceded on Stephan's behalf. Sidney Fine, Frank Murphy: The Washington Years 406 (Ann Arbor: University of Michigan Press. 1984).Google Scholar
81 N.Y. Times, Sept. 20, 1979, at A22.Google Scholar
82 JWH-HRM at 516–17, 576; brief for petitioner, Cramer v. United States, Oct. Term 1943, No. 406, at 4–5, 9.Google Scholar
83 HRM to Charles Fahy, Mar. 14, 1944, Box 55, Fahy Papers, FDR Library; quote, HRM, Anthony Cramer, supra note 4, at 34; JWH-HRM at 577. Prior to Cramer, Medina had participated in 15 appeals to the U.S. Supreme Court, most of them civil cases. When Medina made his first appearance before the Court at age 34, the Justices unanimously rejected his plea for a high duty of care by railroads to trespassing children. New York, N.H. & H.R. Co. v. Fruchter, 260 U.S. 141 (1922). Cf. 36 Harv. L. Rev. 113, 350 (1923); and Manley O. Hudson, The Turntable Cases in the Federal Courts, id. at 826. Medina also lost an important antitrust case involving state trading by Mexico in United States v. Sisal Sales Corp., 274 U.S. 268 (1927). He thought the Justices asked so many questions about the political question doctrine that they butchered his argument.Google Scholar
84 COH-Fahy at 161–62; JWH-HRM at 130, 575; Lewis Wood to HRM, Oct. 30, 1944; HRM to Robert S. McKellar, Jan. 9, 1945. Quotes, telephone interview, Phil C. Neal-JWH, Dec. 26, 1985; HRM, Anthony Cramer, supra note 4, at 34; and HRM to John G. Buchanan, Mar. 14, 1944. Also see Charles Fahy to HRM, Mar. 17, 1944, Box 34, Fahy Papers, FDR Library.Google Scholar
85 Handwritten notes, Cramer v. United States, Oct. Term 1943, No. 406, Box 108, Wiley Rut-ledge Papers, MS-LC. Quote, JWH-HRM, 577.Google Scholar
86 COH-Chester T. Lane at 718 (1957); COH-Fahy at 163; JWH-HRM at 575.Google Scholar
87 Quote, William O. Douglas, conference notes, Mar. 13, 1944, Box 97, Douglas Papers, MS-LC. See Rutledge, Wiley, conference notes, undated, Box 112, Rutledge Papers, MS-LC; and Frank Murphy, conference notes, Oct. Term 1943, No. 406, Mar. 13, 1944, Murphy Papers, Michigan Historical Collections. Cf. Hurst, supra note 22, at 56.Google Scholar
88 Rutledge conference notes, undated, Box 112, Rutledge Papers, MS-LC; Murphy conference notes, Mar. 13, 1944, Murphy Papers, Michigan Historical Collections; 1943 docket book 455, Douglas Papers, Box 232, MS-LC; and William O. Douglas to Harlan F. Stone, Mar. 15, 1944, Stone Papers, MS-LC.Google Scholar
89 Stone, Harlan F., Memoranda to the Court, Mar. 22, 1944, and n.d. (1944), Stone Papers, MS-LC. See J. Woodford Howard, Jr., On the Fluidity of Judicial Choice, 62 Am. Pol. Sci. Rev. 43 (1968).CrossRefGoogle Scholar
90 William O. Douglas to Harlan F. Stone, Mar. 15, 1943, Stone Papers, MS-LC.Google Scholar
91 Schneiderman v. United States, 320 U.S. 118 (1943). See J. Woodford Howard, Jr., Mr. Justice Murphy: A Political Biography 309–21 (Princeton, N.J.: Princeton University Press, 1968); Fine, supra note 80, at 409–22.Google Scholar
92 Mason, supra note 2, at 608.Google Scholar
93 Harlan F. Stone to William O. Douglas, Mar. 14, 1944, Box 71, Stone Papers, MS-LC.Google Scholar
94 317 U.S. 1, 38 (1942). The problem in Quirin was whether the treason clause required that saboteurs Burger and Haupt, allegedly U.S. citizens, be tried for treason by a civil court rather than a secret military commission. Stone avoided the issue by distinguishing treason from the offense of unlawful entry by a belligerent for a hostile purpose, which violated the laws of war but “may fall short of giving aid and comfort to the enemy.” Mason, supra note 2, at 659. For the problem of diminishing treason by statute in Cramer, see Stone, C.J., Memorandum for the Court, Mar. 22, 1944, Box 71, Stone Papers, MS-LC; Hurst, supra note 22, at 146–52, 161–64, 176 n.56; undated handwritten notes by Jackson, J., on back of memorandum, July 14, 1944, No. 406, Box 129, Robert H. Jackson Papers, MS-LC; and undated cert. memo. Cramer v. United States No. 13, Box 112, Rutledge Papers, MS-LC.Google Scholar
95 Mason, supra note 2, at 659.Google Scholar
96 Felix Frankfurter to Owen J. Roberts, Mar. 22, 1944, Box 96. Cf. Frankfurter to Harlan F. Stone, Mar. 24, 1944, Box 106, Frankfurter Papers, MS-LC.Google Scholar
97 Hugo L. Black to Harlan F. Stone, Mar. 25, 1944, Stone papers, MS-LC.Google Scholar
98 Jackson, J., draft opinion, Oct. Term 1943, No. 406; and Jackson, J., Memorandum for the Conference, Apr. 24, 1944, Box 97, Douglas Papers, MS-LC.Google Scholar
99 Black, J., unpublished dissenting opinion, at 11, Oct. Term 1943, No. 406, Box 97, Douglas Papers, MS-LC.Google Scholar
100 Harlan F. Stone to Robert H. Jackson, Apr. 28, 1944, Box 71, Stone Papers, MS-LC.Google Scholar
101 Jackson, J., Memorandum for the Conference, Apr. 24, 1944, Box 97, Douglas Papers, MS-LC.Google Scholar
102 Felix Frankfurter to Robert H. Jackson, Apr. 27, 1944, Box 69, Frankfurter Papers, MS-LC.Google Scholar
103 Jackson, J., Memorandum for the Conference, May 15, 1944, Stone Papers, MS-LC; quote, brief for the U.S. on reargument, Cramer v. United States, Oct. Term 1944, No. 13, at 1. Rutledge, J., accepted the reargument order but worried presciently whether the most important question—“What constitutes treason?”—might get lost in the overt act discussion. Handwritten notes, Wiley Rutledge to Robert H. Jackson, May 15, 1944, Box 129, Jackson Papers, MS-LC.Google Scholar
104 HRM, Anthony Cramer, supra note 4, at 36; HRM to Vincent W. Gallagher, May 25, 1944; HRM to Robert S. McKellar, Jan. 9, 1945.Google Scholar
105 HRM to John G. Buchanan, Mar. 14, 1944.Google Scholar
106 JWH-HRM at 576. HRM to Claude B. Cross, Feb. 20, 1952. HRM to Hampton Chronicle (Westhampton, N.Y.), Nov. 8, 1944.Google Scholar
107 Wiley Rutledge to Robert H. Jackson, Mar. 5, 1945, Box 112, Rutledge Papers, MS-LC.Google Scholar
108 Elman, Philip, Memorandum to the Solicitor General, June 7, 1944, Box 34, Fahy Papers, FDR Library.Google Scholar
109 COH-Charles Fahy at 162. Charles Fahy to James V. Forrestal, Nov. 7, 1944, DJ File; quote, Charles Fahy to E. P. Cullinan, Aug. 10, 1944, Fahy Papers, Box 56, FDR Library. Elio Gianturco and V. Gsovski of the Law Library of Congress prepared a section of Appendix A dealing with treason in civil law. Stephan G. Kuttner of Catholic University prepared a section of Appendix A dealing with the two-witness rule in canon law. Kuttner, seeing no analogy between overt acts of treason and heresy, advised against searching for analogies that would open the prosecution to charges of imitating methods of the Spanish Inquisition. Foreword, Appendices to Brief for the United States on Reargument, Cramer v. United States, Oct. Term 1944, No. 13, at iii, 43; Stephen G. Kuttner to Charles Fahy, Sept. 4, 1944, DJ File.Google Scholar
110 Stone, Harlan F., Memorandum for the Court, Aug. 27, 1944; HRM to Charles Fahy, Aug. 22, 1944, Box 121, Rutledge Papers, MS-LC.Google Scholar
111 Cramer v. United States, Oct. Term 1944, No. 13, brief for the United States on reargument, iii, App. B, 45–404. Hurst's study was published as Treason in the United States, 58 Harv. L. Rev. 226, 395, 806 (1944—45); and in Hurst, supra note 22, at chs. 3–5. For restrictive policy, see id. at 46–53, 126–33, quote at 126; Willard Hurst to author, Feb. 27, 1984.Google Scholar
112 Government's brief on reargument, App. B, esp. 323–404.Google Scholar
113 Id. at 85; and memorandum for the United States, Nov. 24, 1944. For criticism see Wiener, supra note 57, at 9–14.Google Scholar
114 COH-Fahy at 162.Google Scholar
115 Cramer v. United States. Oct. Term 1944, No. 13, petitioner's brief pursuant to the Court's order for further argument at 5, 38–40. HRM, Anthony Cramer, supra note 4, at 37.Google Scholar
116 HRM, undated handwritten notes for oral argument enclosed in petitioner's brief on reargument at 30.Google Scholar
117 Petitioner's brief on reargument at 14, 6, 38. Cf. Hurst, supra note 22, at 208.Google Scholar
118 Petitioner's brief on reargument at 38–58; government's brief on reargument at 88. See Haupt v. United States, 330 U.S. 631, 643 (1947).Google Scholar
119 Petitioner's reply brief on reargument, Nov. 10, 1944, at 8–10; memorandum for the United States, Nov. 24, 1944, at 3. Hurst recalled that Fahy ordered his staff to furnish the Court with everything uncovered by his search. Willard Hurst to the author, Feb. 27, 1984.Google Scholar
120 Rex v. Lord Preston, 12 How. St. Tr. 645, 91 Eng. Rep. 243 (1691); Richard T. Davis to the author, Feb. 28 & Mar. 14, 1984. In the first round the defense had been intimidated by Lord Preston's Case from arguing that precedents mixing compassing and adhering should not apply to American law. Davis credited the breakthrough to Sir William Holdsworth's 8 History of English Law 317 (2d ed. 1937), which discussed Lord Preston's Case as precedent solely for treason by compassing the death of the king. Cf. Hurst, government's brief on reargument, App. B, at 111, and Hurst, supra note 22, at 51–53.Google Scholar
121 Richard T. Davis to author, Mar. 14, 1984.Google Scholar
122 HRM handwritten comment on margin of the government's brief on reargument at 22.Google Scholar
123 Petitioner's reply on reargument at 1–3.Google Scholar
124 Petitioner's brief on reargument at 2.Google Scholar
125 Id. at 39. See Cramer v. United States, 325 U.S. 2, 20 (1945).Google Scholar
126 Richard T. Davis to the author, Feb. 24, 1984.Google Scholar
127 HRM to Charles Fahy, Sept. 29, 1944, DJ File; Charles Fahy to Charles Elmore Cropley, Oct. 6, 1944, Fahy Papers, Box 34, FDR Library. Day Call, Oct. Term 1944, No. 13, Nov. 6, 1944, Box 45, Fahy Papers, FDR Library.Google Scholar
128 JWH-HRM at 576; HRM, Anthony Cramer, supra note 4, at 38; Rusch, supra note 4, at 15.Google Scholar
129 Undated handwritten notes by Jackson, J., on back of memorandum, July 14, 1944, No. 406, Jackson Papers, MS-LC. Jackson's notes under the hearing “Medina” filled a page; the page entitled “Fahy” was blank.Google Scholar
130 Interview, JWH-Carl McGowan, Sept. 25, 1981; Norman Armour to HRM, Jan. 8, 1945.Google Scholar
131 Korematsu v. United States, 323 U.S. 214 (1944); Ex parte Endo. 323 U.S. 283 (1944).Google Scholar
132 Screws v. United States, 325 U.S. 91 (1945).Google Scholar
133 Cramer v. United States, 325 U.S. 1 (1945).Google Scholar
134 Unsigned memorandum labeled, Propositions which may be established, favorable to the prosecution, Hurst, 9—18—44; handwritten notes, Cramer v. United States, Box 56, Fahy Papers, FDR Library. Willard Hurst to author, Feb. 7, 1984.Google Scholar
135 Handwritten notes, supra note 134, at 4–10; telephone interview, JWH-Philip Elman, Dec. 20, 1985.Google Scholar
136 HRM to Robert S. McKellar, Jan. 9, 1945.Google Scholar
137 JWH-HRM at 441.Google Scholar
138 Conference notes, Nov. 18, 1944, Box 97, Douglas Papers, MS-LC.Google Scholar
139 Stanley Reed to William O. Douglas, Apr. 13, 1945, Box 97, Douglas Papers, MS-LC.Google Scholar
140 Undated conference note, Rutledge Papers, Box 112, MS-LC; conference notes, Nov. 18, 1944, Box 97, Douglas Papers, MS-LC.Google Scholar
141 Wiley Rutledge to Robert H. Jackson, Mar. 5, 1945, Box 112, Rutledge Papers, MS-LC.Google Scholar
142 Felix Frankfurter to Owen J. Roberts, Feb. 25, 1943, Box 96, Frankfurter Papers, MS-LC.Google Scholar
143 Conference notes. Mar. 13, 1944, Murphy Papers, Michigan Historical Collections; Frankfurter memo, No. 13, Cramer v. United States, Nov. 7, 1944, Box 97, Douglas Papers, MS-LC. During the intense debate. Justice Murphy recorded the following colloquy between Frankfurter and the oe-nophile Chief Justice: FF. I suppose we know more than those who drafted the Constitution CJ. I know some things better than those who drafted the Constitution FF. Yes on wine and cheese [uproar] Murphy, J., undated conference notes, Cramer v. United States, Oct. Term 1944, No. 13, Murphy Papers, Michigan Historical Collections.Google Scholar
144 Memorandum, July 12 & 14, 1944, No. 406, Cramer v. United States, Box 129. Jackson Papers, MS-LC.Google Scholar
145 Draft opinion, Dec. 26, 1944, at 7. Oct. Term 1944, No. 13, Box 130 Jackson Papers, MS-LS.Google Scholar
146 Id. at 10–11, 16; and memorandum, July 12, 1944, at 2–3, No. 406, Cramer v. United States, Box 129, Jackson Papers, MS-LC. See Hurst, supra note 22, at 126–45.Google Scholar
147 Handwritten outline attached to memorandum, July 14, 1944, No. 406, Box 129, Jackson Papers, MS-LC.Google Scholar
148 Cf. memorandum by P.C.N. [Phil C. Neal], Cramer v. United States, Jan. 14, 1945, and unsigned memorandum, Re: Cramer, Feb. 22, 1945, Box 130, Jackson Papers, MS-LC.Google Scholar
149 Cf. id.; Jackson's draft opinions, Jan. 17 & 23, 1945, Box 130, Jackson Papers, MS-LC; and Cramer v. United States, 325 U.S. 1, at 35–36. According to Neal, Justice Jackson almost invariably wrote his own opinions from the very first draft. Letter to author, Dec. 23, 1986.Google Scholar
150 Stanley Reed to Robert H. Jackson, Mar. 19, 1945, Box 130, Jackson Papers, MS-LC. 325 U.S. 1 (1945). Wiley Rutledge to Robert H. Jackson, Mar. 5, 1945, Box 112, Rutledge Papers, MS-LC.Google Scholar
151 325 U.S. 1, 20, 34.Google Scholar
152 Id. at 33–35.Google Scholar
153 Id. at 37.Google Scholar
154 Id. at 38.Google Scholar
155 Rutledge comment on slip opinion; Wiley Rutledge to Robert H. Jackson, Mar. 5, 1945, Box 112, Rutledge Papers, MS-LC.Google Scholar
156 See supra note 57. This question remained troublesome. Cf. Wiener, supra note 57, at 152–56; and unsigned memorandum re Haupt v. United States, Oct. Term 1946, No. 119, Feb. 26, 1947, Box 155, Rutledge Papers, MS-LC.Google Scholar
157 325 U.S. 1, 45–48.Google Scholar
158 Handwritten notes, Frank Murphy to Robert H. Jackson, undated; Owen J. Roberts to Robert H. Jackson on memorandum of Mar. 9, 1945, Box 130, Jackson Papers, MS-LC.Google Scholar
159 325 U.S. 1, 48–49, 60. Cf. Harlan F. Stone, undated Memorandum. Cramer v. United States not used, much of which became Rider 9 of Douglas's opinion; and 325 U.S. 1, at 60–61. Cf. Black, J. dissent, Cramer v. United States, Oct. Term 1943, No. 406, at 3, 55. Box 97, Douglas Papers, MS-LC; and 325 U.S. 1.Google Scholar
160 325 U.S. 1, 60–61. The problem of inseparable evidence cut both ways. For Rutledge's worries from the opposite direction, see Wiley Rutledge to Robert H. Jackson, Mar. 5, 1945, Box 112, Rutledge Papers, MS-LC.Google Scholar
161 325 U.S. 1, 59, 65–67.Google Scholar
162 Fine, supra note 80, at 464–65. Cf., e.g., Hirabayashi v. United States, 320 U.S. 81 (1943); Korematsu v. United States, 323 U.S. 214 (1944); Haupt v. United States, 330 U.S. 631, 644–46 (1947); and Dennis v. United States, 341 U.S. 494, 561, 579, 581 (1951). In Dennis, 11 Communist Party leaders were convicted under the Smith Act for conspiracy to advocate overthrow of the U.S. government by force and violence. Medina as presiding judge denied a free-speech challenge to the Smith Act on the basis of specific intent to overthrow the government as speedily as circumstances would permit. 9 F.R.D. 367, 390 (1949). The Supreme Court, including Reed, Frankfurter, and Jackson, sustained the convictions under a clear and probable danger test formulated by Learned Hand in the circuit court. Black and Douglas, dissenting vigorously, contended that the Smith Act was unconstitutional for want of seditious acts or sufficiently dangerous speech. Thus, in both Cramer and Dennis, the government contended that hostile intention confirmed illegal action while the defense challenged the sufficiency of overt acts. Medina, Hand, Clark, Frankfurter, Jackson, Black, and Douglas apparently switched positions, if one assumes that the two crimes were analogous. Douglas assumed so in Dennis, id. at 583. Also see Hurst, supra note 22, at 243, 252 n.19. There is no evidence that Medina considered the analogy in Dennis. Conspiracy had not been charged in Cramer, and he had taken pains to deny any analogy between treason and conspiracy in order to preserve the two-witness requirement. At the time of Dennis, moreover, conspiracy under the Smith Act required no overt act.Google Scholar
163 Anthony Cramer to HRM, Apr. 24, 1945.Google Scholar
164 Rusch, supra note 4, at 23; HRM, supra note 4, at 39. Tom C. Clark to John F. X. McGohey. May 22, 1945 & June 13, 1945; Memorandum, J. M. Mclnerney to Mr. Elilf, Sept. 20. 1945, DJ File. N.Y. Herald Tribune, Sept. 29, 1945; Anthony Cramer to HRM, Mar. 5, 1950, and HRM's reply, Mar. 7, 1950.Google Scholar
165 325 U.S. 91 (1945).Google Scholar
166 325 U.S. 226 (1945).Google Scholar
167 325 U.S. 761 (1945).Google Scholar
168 COH-Fahy at 163; COH-Lane at 723–25.Google Scholar
169 Hurst, supra note 22, at 207, 247, 218.Google Scholar
170 Corwin, Edward S., Total War and the Constitution 126 (New York: Alfred A. Knopf, 1947). Frederick Bernays Wiener also criticized the Court's reading of history in Uses and Abuses of Legal History: A Practitioner's View, Selden Society Lecture 12–13, 30–31 (London: Bernard Quaritch, 1962). The gravamen of historical criticism differed, however. Hurst emphasized precedents, Corwin seminal English statutes, and Wiener the concepts of James Wilson at the Philadelphia convention. Cf. Justice Jackson's belief, prior to reargument, that (1) the Framers at Philadelphia had cut clean “from pre-Revolution interpretations of English statutes by English courts” and (2) rejected Wilson's views by adopting Franklin's. Memorandum, July 12, 1944, 2–4, No. 406, Cramer v. United States, Box 129, Jackson Papers, MS-LC.Google Scholar
171 HRM to Christian Gauss, May 7, 1945. Justice Murphy also believed the Framers wanted to make treason convictions “almost impossible.” Undated, handwritten note, Frank Murphy to Robert H. Jackson, Box 130, Jackson Papers, MS-LCGoogle Scholar
172 Tom C. Clark to John F. X. McGohey, June 7, 1945; Memorandum, Thereon L. Claudle to Assistant Attorney General for the Criminal Division, Jan. 7, 1946, DJ File.Google Scholar
173 Wiener, supra note 170, at 12 n.6; Hurst, supra note 22, at 236–59, 265–67. The poet Ezra Pound was indicted for treason for his radio broadcasts from Italy but not brought to trial by reason of insanity. See E. Fuller Torrey, The Roots of Treason (New York: McGraw-Hill Book Co., 1983). For a lucid self-defense, see Ezra Pound to Francis Biddle, Aug. 4, 1943, as quoted in Charles Norman, Ezra Pound 389–91 (New York: Macmillan, 1960).Google Scholar
174 Haupt v. United States, 330 U.S. 631, 635, 645–46 (1947). See Black's comments on Douglas's slip opinion in Haupt v. United States, Box 283, Hugo L. Black Papers, MS-LC; and William O. Douglas, Memorandum to the Conference, Mar. 14, 1947, Box 155, Rutledge Papers, MS-LC. Also see COH-Fahy at 163; Hurst, supra note 22, at 255 nn.35-36; and Wiener, supra note 170, at 13, and supra note 57, at 152.Google Scholar
175 United States v. Rosenberg, 195 F.2d 583, 611 (2d Cir. 1952), cert, denied, 344 U.S. 838 (1952). See Kutler, Stanley I., The American Inquisition: Justice and Injustice in the Cold War 19–23 (New York: Hill & Wang, 1983); and Hurst, supra note 22, at 239–40, 249.Google Scholar
176 Yates v. United States, 354 U.S. 298, 334 (1957); Hurst, supra note 22, at 252 n. 19, 218. Quote, Cramer v. United States, governments' brief on reargument, 70.Google Scholar
177 COH-HRM at 638; HRM, Guts and Loyalty, Anatomy of Freedom, supra note 4, at 136–37; Whitney North Seymour to HRM, Apr. 24, 1945; and John C. Knox to HRM, Mar. 13, 1950.Google Scholar
178 Wiener, supra note 57, at 12. Also see Wiener, supra note 170, at 31. For Fahy's disagreement with Wiener's criticism, see Fahy, Book Review, supra note 77; and Fahy, The Supreme Court in World War II, at 15–18, Box 9, Fahy Papers, MS-LC.Google Scholar
179 Raymond B. Seymour to HRM, Apr. 24, 1945; George W. Alger to HRM, Apr. 24, 1945.Google Scholar
180 Jaworski, Leon, Popularity Is Not the Lawyer's Special Duty, N.Y. Times, May 7, 1979, at A21; Kuntsler, supra note 4; Claude B. Cross to HRM, Feb. 25, 1952; and HRM to Charles S. Rhyne, Apr. 9, 1958.Google Scholar
181 Harlan F. Stone to HRM, June 20, 1945.Google Scholar
182 Harlan F. Stone to HRM, June 21, 1945.Google Scholar
183 COH-HRM at 380. Fahy, notes for talk to Phi Alpha Delta fraternity, supra note 76.Google Scholar
184 Felix Frankfurter to Learned Hand, Apr. 24, 1951, Box 64, Frankfurter Papers, MS-LC.Google Scholar
185 McNabb v. United States, 318 U.S. 332 (1943).Google Scholar
186 Wiener, supra note 170, at 13. Rebecca West, The Meaning of Treason 59 (New York: Viking Press, 1957).Google Scholar
187 Anthony Cramer to HRM, Dec. 19, 1950.Google Scholar
188 Cramer, Anthony, to HRM, Mar. 5, 1950, & Dec. 19, 1950.Google Scholar
189 John C. Knox to HRM, Mar. 13, 1950. One Justice, probably Black, questioned Jackson's description of Cramer as “a studious and intelligent man in humble position.” That was “What Medina said about him?” he wrote, on the margin of Jackson's slip opinion, Memorandum for the Conference, No. 406, Apr. 24, 1944, at 4, Box 97, Douglas Papers, MS-LC.Google Scholar
190 Kunstler, supra note 4, at 351.Google Scholar
191 HRM to John McKim Minton, Jr., Sept. 21, 1944; HRM to Robert S. McKellar, June 29, 1945; N.Y. Herald Tribune, Apr. 2, 1950; and HRM to John Studeny, Apr. 3, 1956. Quote, COH-HRM at 638.Google Scholar