Today's post revolves around skulduggery in the Manuscripts Division of the Library of Congress. This blogger consulted documents in the LOC Manuscripts Division, but never suspected anything untoward. The opposite occurred in the National Archives and Records Administration (NARA); this blogger was stumbling, fumbling, and mumbling as a researcher in the National Archives in 1970. The blogger's quest were the records of the National Youth Administration (Texas) to check whether the youngest state administrator in the New Deal, Lyndon B. Johnson, had been even-handed in administering funds to those Texas youth in need without regard to race, creed, or color. However, this blogger went down into the bowels of the National Archives to look at the Texas NYA Records in their shelved location. The Archives staffer handed this blogger a box that was remarkably unweighty. Opening the box, it was empty. The Archives staffer assisting this blogger smirked and said, all of the boxes of documents you seek are the same: empty. There is no interlibrary loan from the National Archives; the documents housed in the National Archives are sacrosanct. Long story short, LBJ out of office in Austin and overseeing the construction and completion of his presidential library had prevailed upon his successor, The Trickster, to issue a secret executive order allowing the removal of all documents from National Archives for photocopying in Austin. This blogger mumbled, "What am I gonna do?" The smirking staffer replied,"If I were you, I would file a complaint in the Office of the Archivist of the United States." And so, a grievance was written and filed with in the Archivist's office. Next, this blogger received an invitation to meet with the Deputy Archivist for Presidential Libraries. What ultimately unfolded was LBJ's manipulation of The Trickster's presidential library ambitions. This blogger went away empty handed. Away from Washington, DC and back in Texas, this blogger received a telegram from the Archivist of the United States advising the blogger that the records of Texas National Youth Administration were enroute back to Washington. The blogger was invited to view the missing documents at the NARA Regional Office in the Fort Worth Federal Center. The blogger made the trek to Fort Worth to see the documents and the regional staff did a lot of bowing and scraping and the archival boxes were not empty. In the context of The Jillster's account of missing documents from LOC Manuscript Division, a lot of archival bureaucrats were jittery in the early 1970s. If this is (fair & balanced) exposure of chicanery in the stacks, so be it.
[x New Yorker]
The Supreme Paper Caper
By Jill Lepore
Tag Cloud of the following piece of writing
The biggest heist in the history of the Library of Congress, Manuscript Division, was so sneaky that for a long time no one noticed that someone had smuggled out of the Reading Room more than a thousand pages from the papers of the U.S. Supreme Court Justice Felix Frankfurter, including Frankfurter’s correspondence with Lyndon B. Johnson, Charles Evans Hughes, McGeorge Bundy, and Hugo Black, and seven years’ worth of Frankfurter’s diaries. In November, 1972, after the theft was discovered, the Library of Congress called the F.B.I. The F.B.I. launched an investigation; it lasted more than a year. A grand jury was convened. Then, suddenly, the investigation was abandoned. The thief was never caught. The case is as cold as stone.
Felix Frankfurter is one of the most cantankerous and controversial figures in the history of American law. By some accounts, he broke the Court, and it has never been right since. The pilfering of his papers was a disaster, but it’s nothing compared with the loss to the historical record that happens every day, a block away, in the chambers of the U.S. Supreme Court. The papers of Supreme Court Justices are not public records; they’re private property. The decision whether to make these documents available is entirely at the discretion of the Justices and their heirs and executors. They can shred them; they can burn them; they can use them as placemats. Texts vanish; e-mails are deleted. The Court has no policies or guidelines for secretaries and clerks about what to keep and what to throw away. Some Justices have destroyed virtually their entire documentary trail; others have made a point of tossing their conference notes. “Operation Frustrate the Historians,” Hugo Black’s children called it, as the sky filled with ashes the day they made their bonfire.
This fall, the Supreme Court issued a number of rulings that came as something of a surprise—refusing to hear a series of cases involving same-sex marriage, for instance—but there’s no reason to believe that historians will ever really know how the Court arrived at these decisions. Very few of the documents that could genuinely illuminate them will survive. The Federal Records Act, passed in 1950, specifically excludes the Supreme Court. In 1978, in the wake of Watergate, Congress passed the Presidential Records Act, which made the papers of American Presidents the property of the federal government; destroying them is a federal crime. There is no judicial equivalent. The Supreme Court’s official papers—formal filings, such as petitions, opinions, and briefs; and official records, such as audio recordings, transcripts, and governmental, case-related correspondence—end up at the National Archives. The papers of the Justices, if they save them, tend to go to the Library of Congress, to their alma maters, to their home towns, or to some other place they happen to like. They’re scattered across the country, and, by the time they arrive, they have, as a rule, been carefully culled.
The secrecy surrounding the U.S. Supreme Court derives from a policy set by the fourth Chief Justice, John Marshall, who wanted the Court to issue single, unanimous decisions and to conceal all evidence of disagreement. His critics considered this policy to be incompatible with a government accountable to the people. “The very idea of cooking up opinions in conclave begets suspicions,” Thomas Jefferson complained. This criticism has never entirely quieted, but every time things get noisy the Court simply brazens it out. To historians and journalists who are keen to have the Court’s papers saved and unsealed, advocates of judicial secrecy insist that the ordinary claims of history and of public interest do not apply to the papers of U.S. Supreme Court Justices; the only claim on the Justices is justice itself.
Sitting Justices often view their colleagues’ decisions to make their papers public without delay as a betrayal of the living. Louis Brandeis began handing his papers over to the University of Louisville, in Kentucky, in 1936, three years before he stepped down from the Court. Frankfurter and Brandeis had been close correspondents. After Brandeis’s death, in 1941, Frankfurter went to Louisville, stormed into the library, asked for the file labelled “Frankfurter,” and took nearly everything out of it. “These are my papers, and I’m taking them back,” he told the librarian as he walked out the door, sheaf in hand.
Even judges who start out thinking they’d like to make their papers available tend to change their minds. After William Rehnquist graduated from Stanford Law School, he clerked for Frankfurter’s colleague Robert Jackson. Early in his career, Rehnquist told the legal historian Stanley Katz that he thought there ought to be a requirement that all judicial papers be given to the Library of Congress. In 1971, when Rehnquist was nominated to the Court, his nomination was nearly defeated by the discovery, among Jackson’s papers, of a memo that Rehnquist had written in 1952, on the subject of segregation. In 1986, the memo haunted Rehnquist’s confirmation as Chief Justice, too. Not long afterward, the legal historian Melvin Urofsky, who was researching a book about Johnson v. Santa Clara, a 1987 affirmative-action case, happened to be chatting with William Brennan at a party. “Could I look at your folder on this case?” Urofsky asked Brennan, half joking. “Sure,” Brennan said. Urofsky went to Brennan’s office, and Brennan’s secretary gave him a thick folder. (Brennan had written the opinion for a 6–3 majority, upholding a company’s decision to hire a woman over a man; Rehnquist joined a dissent written by Antonin Scalia.) After Urofsky’s book came out, he went back and asked Brennan for a folder relating to another case. “I’m sorry but I can’t,” Brennan said. The Chief Justice had read Urofsky’s footnotes, Brennan said. “Rehnquist had a fit.”
Cases decided by the Rehnquist Court include Bush v. Gore, one of the most momentous actions ever taken by the Court. In the twenty-first century, the Supreme Court wields far more power than it did in the eighteenth. Is judicial secrecy defensible in an era of judicial supremacy? Fair-minded arguments can be made on both sides. But, so far, the question hasn’t been debated; it’s been tabled. Rehnquist died in 2005. In 2008, his papers—nearly nine hundred boxes—went to the Hoover Institution. More than five hundred will remain closed until the last Justice who served with Rehnquist dies. History is patient. But perhaps the time has come to ask, How long is too long to wait?
F.D.R. nominated Frankfurter to the “scholar’s seat” on the Court in 1939. Rarely has an appointment been met with such high expectations. People thought he’d be the next Oliver Wendell Holmes. “He has more brains than the whole Brain Trust combined,” a friend of his said. Rarely has a Justice proved so disappointing.
During the twenty-five years that Frankfurter taught at Harvard Law School, from 1914 to 1939, a conservative Court repeatedly struck down laws aimed at economic reform and regulation, and Frankfurter insisted that, in declaring measures like minimum-wage laws unconstitutional, the Court was overstepping its authority. During the twenty-three years that Frankfurter served on the Court, from 1939 to 1962, its most significant judicial activism concerned overturning laws that restricted civil liberties and civil rights. Frankfurter nearly always dissented from these decisions, citing his commitment to judicial restraint. A brilliant liberal scholar, Frankfurter became known, on the Court, as its most implacable conservative, not because his politics changed but because his view of the role of the Court did not.
Arguments about judicial restraint are not often principled arguments about jurisprudence; instead, they’re politics by other means. When the Court is conservative, as it is now, liberal legal scholars tend to urge judicial restraint; when the court is liberal, it’s conservatives who urge restraint. Frankfurter’s principled opposition to judicial activism is unusual, and serves as a cautionary tale about the limits of that position.
In 1940, the Court decided a case that arose in Minersville, Pennsylvania, when two elementary-school students, Billy and Lillian Gobitas, both Jehovah’s Witnesses, refused to salute the American flag. The American Civil Liberties Union—which Frankfurter had helped found—filed an amicus brief in support of the Gobitas family. Frankfurter wrote an 8–1 opinion upholding the mandatory flag salute, citing the principle of judicial restraint. To his outraged friends, he declined to elaborate. “It is not for a Judge to indulge in private exegesis of his opinions,” he insisted. “He must let them speak for themselves.” Meanwhile, he filed explanations among his papers, awaiting the redemption of history.
Frankfurter’s flag-salute opinion didn’t last three years. He earned a reputation as an annoyance. He lectured his fellow-Justices, as if they were his law-school students. His diaries are even more arrogant and venomous. He proved incapable of forging agreements. In 1943, in a second Jehovah’s Witness flag-salute case, West Virginia State Board of Education v. Barnette, Jackson wrote an opinion for a 6–3 majority that ruled in favor of the Barnette family. Frankfurter wrote a bitter dissent.
Felix Frankfurter may have been the most divisive Justice ever to serve on the Court. The legal scholar Cass Sunstein has recently demonstrated that, in 1941, the Court changed “from a court that had operated by consensus, with very few separate opinions, into something closer to nine separate law offices, with a large number of dissenting opinions and concurrences, and with a significant rate of 5–4 divisions.”
The change is sudden, dramatic, and puzzling. It may turn out that a divided Court is the legacy of Felix Frankfurter. But anyone seriously interested in pondering that legacy has got to wonder: Who raided his papers?
In 1949, Arthur Schlesinger, Jr., asked Frankfurter for permission to see his correspondence with F.D.R. “You yourself should choose what should be reserved for the ultimate historian,” Schlesinger wrote, “but in the meantime I hope something may be turned over to us proximate fellows!” Frankfurter said no, but the exchange got him thinking. In 1954, he asked one of his clerks, Alexander Bickel, to begin dividing his legal papers, one half to go to the Library of Congress and the other to the Harvard Law School Library. The Library of Congress collection was to be opened immediately after Frankfurter’s death, with one restriction: no document could be seen until sixteen years had passed since the date it was written. The Harvard papers (also known as “the Court papers”) were to be closed; anyone who wanted to see them had to get permission from Bickel and Paul Freund, Frankfurter’s closest colleague at Harvard. Frankfurter named Donald Hiss, Alger Hiss’s brother, the executor of his estate, and left his longtime secretary, Elsie Douglas, in charge of making sure that the papers got to the right place. (Before she was Frankfurter’s secretary, she had been Robert Jackson’s secretary, and also, many believed, his mistress.)
Frankfurter retired from the Court in 1962, after suffering a stroke. He then began eagerly anticipating his own biography, supplying a list of men “whom I deem wholly qualified to write my judicial biography.” Any of them was to have complete access to the Harvard papers; everyone else had to go through Freund and Bickel. Frankfurter hoped that the story of his life might be written by Philip Kurland, a former clerk of his who had become a distinguished constitutional scholar at the University of Chicago Law School. Kurland agreed to prepare a book of Frankfurter’s “extrajudiciary essays.” But he couldn’t write the Frankfurter biography because he’d already been anointed to write a life of Jackson. Meanwhile, Frankfurter allowed a reporter, Max Freedman, to edit a collection of letters between himself and F.D.R. “Tell the whole story,” Frankfurter said to Freedman on his deathbed, in 1965. When Freedman’s collection of letters appeared, Kurland asked Bickel to monitor anything that Freedman might try to publish about Frankfurter. But Freedman was in no condition to publish: he suffered a stroke that left him unable to write. He moved to Winnipeg and became a recluse.
In fact, none of the men on Frankfurter’s list of approved scholars wanted, or were able, to write his biography. Bickel and Freund, trying to “protect the turf” while they looked for just the right man for the job, rejected nearly all requests to see the Harvard papers, including requests from the dean of a law school, a Bancroft Prize-winning historian, a popular biographer, and a tenured political scientist. Freund wrote to Bickel, “I’d prefer an ex-law clerk.”
Judicial biography lies at the intersection of two dark alleys: a corner where judicial secrecy meets authorized biography. In 1969, when William Rehnquist was Nixon’s Assistant Attorney General, he started thinking about writing a biography of Jackson. He asked Bickel “whether trying to get access to family papers would be a hopeless job.” But Jackson’s papers weren’t in family hands; they were in Kurland’s office, in Hyde Park. Rehnquist abandoned the biography.
The Library of Congress’s Frankfurter collection—more than two hundred and fifty boxes of diaries, letters, and more—was opened to the public in 1967. By 1969, the staff had prepared a preliminary inventory of the papers (archival inventories are called “finding aids,” and they’re not usually exhaustive inventories; they’re guides). One person who came to see Frankfurter’s papers that year was a man named Roger K. Newman. “I got half my education reading his letters,” Newman told me. He decided, in 1969, that he wanted to see Frankfurter’s Harvard papers, too.
“I am a graduate student at the City University of New York, presently gathering material for a Master’s thesis on Mr. Justice Black which will eventually be expanded into a doctoral dissertation,” Newman wrote to Bickel on January 2, 1970. In fact, Newman, twenty-two, would graduate later that month from Hunter College with a bachelor’s degree in political science. Bickel put him off: he told him to write to Hugo Black.
Bickel then attempted to recruit a biographer from among his Yale Law School students. He tapped Richard Danzig, a twenty-five-year-old former Rhodes scholar. Bickel believed—hoped—that the talented Danzig was preparing for a career as a scholar. In February, 1970, Danzig submitted to Bickel a formal request for permission to use the Frankfurter papers at Harvard. “Danzig’s record speaks for itself,” Bickel wrote to Freund.
Newman graduated from college, and spent a few weeks in the summer of 1970 reading Frankfurter’s papers at the Library of Congress. Already, some of the papers may have been missing—there were rumors that Freedman, inadvertently and unknowingly, had bundles of Frankfurter’s papers in his hotel room in Winnipeg—although it would have been impossible to tell just what was missing, both then and later, since no version of the finding aid ever listed every item in the papers, only every folder.
Newman took a job teaching at a public school in New York. He was trying to avoid the draft, and he was also eager to make a career as a legal scholar, an outsider attempting to break into a tightly closed and fiercely guarded world. He took classes at night and pored over the Xeroxes he’d made in the Library of Congress. He wrote to Hiss in January, 1971, and to Bickel shortly thereafter, saying that he wanted to publish a collection of “Frankfurter’s extrajudicial correspondence.” Hiss told Newman that he could have permission to publish the collection, but only if he agreed to two conditions: Hiss and Freund would have the ultimate decision over the selection of the letters, and a portion of the royalties from the resulting book would go to Frankfurter’s widow.
Without having agreed to these conditions, Newman attempted to sell his edition of Frankfurter’s papers to a publisher. In April, 1971, he wrote to Elisabeth Sifton, at Viking, and to Richard Kluger, at Atheneum. Sifton called Freund and forwarded her exchange with “the mysterious Mr. Newman” to Freund and Bickel, adding, in a postscript, “He seems like a rather dim bulb.” She deemed the book unworthy of consideration. Kluger consulted Bickel, who told him to turn Newman down. Kluger wrote to Newman, “You have not been designated the keeper of Frankfurter’s papers.” On June 17th, Hiss withdrew his conditional consent of Newman’s project, writing, “This decision is final.” Newman pressed on. In August, 1971, he wrote to Freund requesting an interview: “Would you talk to me about Justice Frankfurter?”
In October, 1971, Kluger asked Freund and Bickel whether he could see the Harvard papers for a book he was writing about Brown v. Board of Education. “I appreciate the policy—and indeed respect the wisdom behind it—of not allowing every wayfaring scholar, not to mention dabblers and rank amateurs, to sift through the Justice’s papers,” Kluger wrote. Unlike the young and inexperienced Newman, Kluger had a contract with Knopf, and enclosed a letter from its editor-in-chief, Robert Gottlieb. Freund and Bickel agreed to grant Kluger permission to see the files relating to Brown v. Board.
The struggle over Frankfurter’s papers took place in the shadows of a stage dominated by the Court itself. Hugo Black was dying, and another Justice was about to leave the Court, too: John Harlan had cancer. “We may have a double play here,” Nixon’s Attorney General, John Mitchell, told the President.
Nixon had a terrible record with nominations to the Court. In 1969, he had nominated Clement Haynsworth, a federal judge from South Carolina. The Senate voted down the nomination, the first time that had happened since 1930. In 1970, Nixon nominated another Southern judge, G. Harrold Carswell; he was voted down, too. Both judges had checkered records on segregation. In September and October of 1971, Nixon and Mitchell debated possible nominees. “I have noticed in the past few days that your name has been mentioned twice in the Times in connection with the vacancies on the Court,” Newman wrote to Bickel on October 4, 1971. “I can only wish you the best of luck.”
“A Frankfurter-type is fine,” Nixon told Mitchell, so long as he wasn’t a liberal. “I can’t handle that.” Nixon dropped Bickel, and toyed with the idea of appointing Senator Robert Byrd, who had never practiced law. “Put his name in, yeah,” Nixon told Mitchell. “Frankfurter didn’t practice law! Not a day. Did he?” (He did.) Byrd was a ploy. Nixon told an aide that “the purpose of that was to scare the hell out of the liberals, so that when we appointed somebody that was not a member of the Ku Klux Klan” they’d accept him. On October 15th, Kluger sent a letter to Bickel regarding his request to see the Frankfurter papers, adding, “I am appalled by the spectacle of the President of the United States conducting the crucial selection process of two new Justices as if it were a Miss Rheingold contest.” On October 21st, Nixon announced his nominees: Lewis Powell and William Rehnquist. He’d settled on Rehnquist less than twelve hours before the announcement, and Rehnquist hadn’t been vetted. He wasn’t even told that he was being considered until the morning of the announcement.
Rehnquist’s confirmation hearings were held in November, 1971. In December, on the eve of the Senate vote, the Newsweek reporter Robert Shogan released a memo that Rehnquist had written to Jackson in 1952. Shogan got the memo from Kurland when he called to interview him and Kurland riffled through the Jackson papers in his office and mentioned that he had an interesting memo. In the memo, which is titled “A Random Thought on the Segregation Cases,” Rehnquist advised Jackson about the matter of racial segregation. “I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues,” Rehnquist wrote, “but I think Plessy v. Ferguson was right and should be reaffirmed.” It seemed very likely to sink the nomination.
In response, Rehnquist submitted a letter to the Senate Judiciary Committee, insisting, bizarrely, that the memo reflected Jackson’s views, not his. Another former Jackson clerk, Donald Cronson, sent a cable to Washington from London which seemed to support Rehnquist’s story. But Elsie Douglas told a Washington Post reporter that Jackson did not ask his clerks to prepare statements expressing the Justice’s views, and that Rehnquist had “smeared the reputation of a great Justice.” It appeared to many people that Rehnquist had lied to the Senate. On December 10, 1971, a member of the Senate Judiciary Committee threatened to continue the hearings after the holiday. Nixon responded by calling for a special session. “We’ll let those bastards talk through Christmas,” he told his aide Bob Haldeman.
One document that was once among Frankfurter’s papers but is now absent is a letter that Rehnquist wrote to Frankfurter in 1955. In 2012, two legal scholars, Brad Snyder and John Q. Barrett, published a fascinating law-review article in which they attempted to reconstruct that letter. This trick was possible because Frankfurter showed Rehnquist’s letter to Bickel and to E. Barrett Prettyman, another of his former clerks, to see what they made of it. Their replies support the contention that the views Rehnquist expressed in his 1952 memo to Jackson were Rehnquist’s own, not Jackson’s. If Rehnquist’s letter had been found among Frankfurter’s papers at the Library of Congress, in December, 1971, Snyder and Barrett concluded, it “would have been a bombshell at his Supreme Court confirmation hearings.”
But it wasn’t a bombshell, because it wasn’t presented. Kurland didn’t have it. Elsie Douglas didn’t have it. No one knows who had it.
When the Senate confirmed Rehnquist’s nomination, Nixon called Rehnquist to congratulate him. He said, “Be as mean and rough as they said you were. Okay?” Rehnquist took a seat on the Court in January, 1972. In August, scholars using the Frankfurter papers at the Library of Congress began reporting to the staff that a great number of documents were missing.
At first, the staff at the library assumed that the missing items had been misfiled, but in November, 1972, the library checked the entire collection against the finding aid as best it could. “We realized we had been robbed blind,” one librarian said. The missing documents appeared to have been carefully chosen: they included the most significant items in the collection. The library called the F.B.I. “Whoever did it must have a twist in his head,” Roy Basler, the chief manuscript librarian, said. “I can’t conceive of someone doing this sort of thing and not having something wrong with him.”
The special agent in charge suspected that the thief was a scholar, and the F.B.I. hoped to gain the return of the papers even at the price of immunity for the thief. That was likely among the reasons the story was kept from the press while federal agents went through call slips—known in the Library of Congress as “signature cards”—to identify suspects and summon them for questioning. In March, 1973, an F.B.I. agent interviewed Michael Parrish, a history professor at the University of California, San Diego, who had been a student of Bickel’s. He asked Parrish who else was sitting at his table in the Reading Room when he used the papers. Parrish told the F.B.I. that he’d consulted the missing volumes of the diaries as recently as October, 1971, “so the thefts must have taken place after that.” Parrish wrote to Bickel, “The idiot responsible should be shot.”
Parrish’s tip might have helped narrow the investigation. On March 22, 1973, an F.B.I. agent in Boston visited the Harvard Law School Library to get the names of people who had requested permission from Freund and Bickel to read Harvard’s Frankfurter papers in 1971 and 1972. That search—which I’ve re-done—would have pointed them to Danzig, Kluger, Parrish, Newman, and Mary Frances Berry, who had just published her first book, Black Resistance, White Law. But Berry, Danzig, and Kluger had all been granted permission to see at least a portion of the Harvard papers, and the F.B.I. believed that the thief was someone who’d been denied permission. (All three told me they were never questioned.)
In July of 1973, the special agent heading the investigation in Washington filed a report regarding the possible indictment of a new “prime suspect.” A redacted F.B.I. memo explains that this man “developed as a suspect” because the investigation of signature cards at the Library of Congress “indicated that he had reviewed the majority” of the stolen papers, while other lines of investigation had found that he “had made inquiries prior to the theft with the executor of the late Frankfurter’s estate for review of papers” and that the request was rejected, and that “he has made similar inquiries at the Harvard Law School Library.” (Another redacted F.B.I. memo refers to “a prime suspect who is a lawyer in New York who had been doing research on these papers,” which might be a different suspect but appears to be the same man.) Except for the part about being a lawyer, this description fits only Newman. The report was forwarded to the Justice Department on August 10, 1973. And then there was a leak.
“Scholar Steals Frankfurter Papers,” the political columnist Jack Anderson wrote on September 14, 1973, which is how the public first learned of the heist, and which is also the point at which a story about the ill consequences of judicial secrecy and authorized biography turns into a story about the ill consequences of anonymous sources. In the first of three columns about the Frankfurter papers, Anderson described the theft and the investigation—“the quest has reached a dead end”—and offered “to act as an intermediary between the unknown scholar and the Library.” He said that if the thief gave him the papers he’d return them, and would “guarantee not to reveal his name or otherwise identify him.”
Anderson, who had an office on the ninth floor of a building on K Street, was the most influential political columnist in the country. His daily column, “The Washington Merry-Go-Round,” was syndicated in around seven hundred newspapers. “He was on ‘Good Morning America’ every day; he was on Mutual Radio every night; he was in the Washington Post every day, seven days a week,” one of his former reporters, Bob Owens, reminded me. In addition to Owens, Anderson had several other reporters, including Brit Hume (now a senior political analyst at Fox News), Jack Cloherty (now a producer at ABC News), and Les Whitten (now retired). They scrambled for stories. “It was an absolute furnace,” Hume told me. “You had to be shovelling material in there constantly.” Anderson essentially had a monopoly on leaks and scandals. “He was the only game in town,” Cloherty said.
Anderson hated Nixon, and Nixon hated Anderson. At the end of 1971, Anderson made available to news outlets leaked documents revealing the duplicity of Nixon’s policy during the war between India and Pakistan. Hoover called Anderson “a jackal.” “Hoover’s Trash Shows He’s Human,” Anderson titled a column in 1971. After looking for evidence that Hoover was a homosexual, Anderson reported that the director of the F.B.I. suffered from heartburn: his trash was full of Gelusil tablets.
Anderson was followed, and his phone was tapped. Hendrik Hertzberg, in a canny piece that appeared in this magazine on January 22, 1972, asked Anderson whether “Washington’s fondness for secrecy had grown in recent years.” Anderson said “yes.” Herzberg asked, “What would you do if the government raided your office right now?” Anderson replied, “I would howl.”
In March, 1972, Morley Safer profiled Anderson on “60 Minutes.” “You can hardly pass a Washington landmark these days without recalling a reputation that Jack Anderson destroyed, a scandal exposed, a revelation of the big lie in high places,” Safer said. In May, Anderson was awarded a Pulitzer Prize for national reporting. The other big winner that year was the New York Times, for publishing the Pentagon Papers. Both awards were controversial, as Mark Feldstein reports in a recent biography of Anderson. The trustees of Columbia University, which awards the Pulitzer Prizes, issued a press release expressing disagreement with the Pulitzer board. One trustee said, “If you crib documents and then put them in the paper, that’s just not good journalism.” Questions about the press, leaks, and anonymous sources were before the Supreme Court that spring, too. In June, the Court issued a landmark decision in Branzburg v. Hayes (Rehnquist joining a 5–4 majority), ruling that the First Amendment does not protect a reporter who refuses to reveal his sources before a grand jury; the Court has never again ruled on this question.
Anderson’s Pulitzer Prize didn’t end the government harassment. On January 31, 1973, the F.B.I. arrested Les Whitten; he was charged with stealing documents belonging to the Bureau of Indian Affairs. Reporters began wearing buttons that read, “Free Les Whitten.” The charges against Whitten had been trumped up; they were dropped. That spring, Anderson published grand-jury records that had been leaked in the Watergate investigation. But the breaking of the Watergate story marked the end of the era of Anderson. It was the biggest scoop on Nixon, and Anderson hadn’t got it.
By the summer of 1973, the world was riveted by the Watergate hearings, and Anderson and his legmen were scrambling for stories. Maybe the Frankfurter heist appealed because it involved returning government documents. F.B.I. memos suggest that Whitten learned of the Frankfurter theft in September, from someone at the Library of Congress, when he called to ask about an unrelated investigation: Yvonne Horner, a clerk in the subject-cataloguing division of the library, was arrested in connection with an undercover F.B.I. investigation of the theft of thousands of first editions. (Horner seems to have been either carrying them out in her bag or to have been shipping the books to her home address from the library’s mail room.) Whitten has said that he got the story from a source inside the F.B.I. It’s possible that the F.B.I. leaked the story to Whitten, hoping to flush out the thief, a not uncommon practice. But Hume finds this theory unlikely. “It’s a two-cushion bank shot,” he says.
However Whitten found out about the theft, he really did want to get the papers back. According to an F.B.I. memo written a few days before Anderson’s column, “Whitten said that they have attempted to write this column very carefully so that whoever has the papers will not destroy them.”
On October 12, 1973, Anderson received five manila envelopes in the mail. They contained pages and pages of documents—all photocopies. Whitten had a clerk make photocopies of the photocopies; then he destroyed the envelopes. That afternoon, he called the Library of Congress and told the acting chief of the Manuscript Division, John C. Broderick, that he wanted to arrange a meeting. They met in the bar of the Sheraton-Carlton Hotel. Whitten brought the photocopies and said, according to Broderick, that Anderson was to get “as much publicity and ballyhoo as possible,” making him promise not to tell anyone about the photocopies until Anderson could deliver them, in person, to the Librarian of Congress.
Six days later, Anderson turned up on the front steps of the library, trailed by a ten-man CBS News camera crew. “Thief Heeds Plea to Return Papers,” Anderson titled his column on Friday, October 19th, announcing his heroic role in the recovery of Frankfurter’s papers. That day, he also wrote to U.S. Attorney General Elliot Richardson—another former clerk of Felix Frankfurter’s—offering to help secure the return of the remaining documents and, possibly, the originals. Meanwhile, Whitten, realizing that he had mistakenly given to the library some of the first-generation photocopies—which, presumably, had fingerprints on them—called the Manuscript Division and demanded their return. Amazingly, the library complied. Whitten made another set of photocopies, and likely destroyed the last of the first-generation photocopies. On the very day that Anderson offered to coöperate with the Justice Department, Whitten took back the only remaining physical evidence tying the theft to the thief.
CBS never ran the story. The next day, October 20th, Nixon ordered Richardson to fire the Watergate special prosecutor, Archibald Cox, and Richardson resigned in protest, in what became known as the Saturday Night Massacre. Anderson ran one more story about the theft in his next column, on October 21st. But the Frankfurter story was most decidedly not a scoop in the fall of 1973, when the American Presidency was unravelling. What, after all, was the story of the Frankfurter papers compared with the story of the Nixon tapes?
For a time, the F.B.I. continued the investigation. On October 31, 1973, the man who had been denied access to the papers and whom the bureau had described as its prime suspect was questioned by a federal grand jury. He denied any knowledge of the theft. The records of the grand jury are sealed. I asked Roger Newman if he was the suspect who had been brought before the grand jury. He said yes. “I told them I didn’t know much, and that was that,” he said. I asked him if the experience had been terrifying. He said, “If you tell the truth, and you have nothing to worry about, it can’t be that terrifying.”
On November 8, 1973, an F.B.I. agent reported to the director that the bureau had no proof tying the prime suspect to the theft. On December 6, 1973, the Justice Department replied to Anderson, declining his offer of help. It referred to the investigation as ongoing, and expressed concern that Anderson had destroyed the envelopes in which the photocopies were returned. In March, 1974, without officially closing the case, the F.B.I. effectively ended the investigation.
In May, 1974, Philip Kurland, acting as a consultant to the Senate Judiciary Committee, reviewed transcripts of the Watergate tapes and concluded that Nixon may have committed crimes warranting impeachment. Nixon resigned on August 9th. He might have destroyed the tapes if he could. To stop him, Congress passed the Presidential Recordings and Materials Preservation Act, in December, 1974. The act might have altered the fate of the Justices’ papers, too; it provided for the establishment of a seventeen-member commission to study, and make recommendations, regarding the records of federal officials in all three branches of the government. The report of the Public Documents Commission, issued in 1977, urged that the Justices’ papers, like the President’s papers, be made public property, and opened to the public fifteen years after they leave the Court. That measure was not adopted.
Roger Newman enrolled in a Ph.D. program in history at the University of Virginia, in Charlottesville, in the fall of 1974. He had long since abandoned his plan to edit a collection of Felix Frankfurter’s “extrajudicial correspondence” and, instead, devoted his attention to Hugo Black. In 1976, he finished his master’s thesis and then dropped out of graduate school. For years, he worked on a biography of Black, with the coöperation of Black’s family. His Hugo Black: A Biography appeared in 1994 and was a finalist for a Pulitzer Prize. Writing a biography of Hugo Black was a challenge, Newman has said, given how many of Black’s papers had been burned. “The loss of these records was history’s loss,” Newman said. “A loss for all of us.”
Richard Kluger published Simple Justice, his study of Brown v. Board of Education, in 1976. It’s still in print. Mary Frances Berry is a professor of legal history at the University of Pennsylvania. Clinton appointed her chair of the U.S. Commission on Civil Rights. Michael Parrish’s biographical study, Felix Frankfurter and His Times, appeared in 1982. Parrish, an emeritus professor, is teaching in the Czech Republic on a Fulbright fellowship. Richard Danzig wrote two articles about Frankfurter’s role in the flag-salute cases and, for a while, taught at Stanford, but gave up teaching for public service. In 1977, he began working for the Department of Defense. He served as Secretary of the Navy during the Clinton Administration, and was a senior national-security adviser during Obama’s first campaign for President. Today, he’s an adviser for the Departments of Defense and Homeland Security. No full-dress biography of Felix Frankfurter has ever been written.
In 1993, immediately following the death of Thurgood Marshall, the Library of Congress opened his papers to the public. “I speak for a majority of the active Justices of the Court when I say that we are both surprised and disappointed by the library’s decision to give unrestricted public access to Justice Thurgood Marshall’s papers,” Rehnquist wrote to the Librarian of Congress. “Unless there is some presently unknown basis for the library’s action, we think it is such that future donors of judicial papers will be inclined to look elsewhere for a repository.” A Senate subcommittee chaired by Joseph Lieberman convened a day of hearings into the furor over Marshall’s papers. “I, for one, am not, at this time, proposing that we adopt something that might be called a Judicial Records Act,” Lieberman said. “But I do think that the process of developing a set of guidelines for the preservation of, and access to, these judicial documents needs to begin.” Rehnquist sent Lieberman a letter of protest, insisting that no legislation was necessary. Five witnesses testified, the hearings adjourned, and that was the end of that.
Like many Justices, some historians and reporters are opposed to having Congress set an archival policy for the Supreme Court, citing the separation of powers and the independence of the judiciary. But nothing is preventing the Court from setting its own policy. About a decade ago, the Rehnquist Court tried to establish guidelines. Harry Blackmun had retired in 1994 and died in 1999, having arranged for his papers to go to the Library of Congress and to be opened five years after his death. They were unsealed in 2004, ten years after he left the Court, but, because there had been no turnover on the Court between 1994 and 2004 (aside from Blackmun’s replacement), a decade didn’t seem long enough to his colleagues on the bench. They held a discussion, asking, “Should we impose on ourselves some kind of policy that will prevent this from happening in the future?” They couldn’t agree, and the matter was dropped.
The statute of limitations on the theft of Frankfurter’s papers had expired by the nineteen-nineties. Neither Anderson nor Whitten ever revealed the name of the thief, if they even knew it. Anderson is dead; Whitten has said that he never learned who stole the papers. Hume, Cloherty, and Owens don’t remember where Whitten got the tip-off about the Frankfurter theft. “We called our chief source O.T. Transom,” Owens told me. “For ‘over the transom.’ ”
The papers of U.S. Supreme Court Justices enter the office of history over the transom, too, if they come in at all. Paper burns. Texts vanish. E-mails are deleted. Sometimes even sneakier things happen. Not a single page of the missing papers of Felix Frankfurter has ever been found. Ω
[Jill Lepore is the David Woods Kemper '41 Professor of American History at Harvard University as well as the chair of the History and Literature Program. She also is a staff writer at The New Yorker. Her latest books are The Story of America: Essays on Origins (2012) and Book of Ages: The Life and Opinions of Jane Franklin (2013). Lepore earned her B.A. in English from Tufts University, an M.A. in American Culture from the University of Michigan, and a Ph.D. in American Studies from Yale University.]
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