Establishment (33 page)

“And if we lose, Boyd, what's the very worst that can happen?”

“A year in jail. But that's the very worst. I don't look for that under any circumstances.”

“All right,” Barbara said. “I'm quite content to go along with you and Harvey. I really don't want any other lawyers.”

“Good. Now here's the way it shapes up. I've read the record of your hearing a dozen times, and there's no doubt in my mind that the question they asked you was pertinent. Let's say that the whole inquiry lacked pertinence. That's another point. But if we accept the inquiry, the question was pertinent. They asked it. You refused to answer.
Ipso facto
, contempt of Congress. Now if that is the case, it would appear that the whole thing is open and shut, with no way out. But I don't think so. I think there are two lines of defense we can take. First, a line that holds that the subpoena was invalid, that you, Barbara Cohen, had engaged in no action that could be construed as un-American, and therefore you were wrongly served and summoned. I've found a case in the record to support that, and that will constitute my first move—or, I should say, Harvey's, because he'll try the case, and he'll go in immediately with a motion that the case be dismissed. There's just an outside chance that we might succeed, but I wouldn't want to get your hopes up on that first ploy. If the motion is rejected, we'll make a second motion on the basis that any inquiry calling you as a witness is not pertinent to the function of the committee. That won't hold up, but we'll get it on the record.”

“I don't understand, Boyd. Where is the actual courtroom defense?”

“All right, we get to that now. You see, Barbara, in an ordinary criminal case, the accused is presumed innocent and the state must prove guilt. But here, because there is no actual crime involved, the House of Representatives has already voted a charge of guilt, and the defendant must prove his innocence. It is insane, but try to follow me. You are guilty of contempt by a vote of the House. How can we establish your innocence? Only by invalidating the action of the committee. It's a procedure that violates every canon of common Anglo-Saxon law, and it is also a procedure that I believe to be unconstitutional. I believe it's in violation of the sense and implication of the Fifth Amendment, which declares that no person shall be forced to be a witness against himself. Now Harvey feels that we lost the opportunity when he failed to advise you to invoke the Fifth Amendment, and he's been beating his breast over that. But there was no reason for him to tell you to invoke the Fifth Amendment. I'm going to try a new approach and claim that the amendment holds in the case, whether invoked or not. You see, Barbara, not only is this the only foot we can put forward, but it raises a constitutional issue, and I want that desperately. Then, if we lose, we can appeal this right up to the Supreme Court with some hope that they'll hear it. That has to be our ace in the hole.”

“But Boyd wants to do it,” Baxter said, “by putting you on the stand. As the accused, you don't have to take the stand. I'm afraid of that.”

“But Harvey,” Barbara argued, “if I don't take the stand, who will? I'm in this alone.”

“We'll have character witnesses.”

“Come on, Harvey,” Kimmelman said, “look at the reality. She is our one and only witness. There's no case without her.”

The discussion went on almost until five o'clock. Boyd Kimmelman walked downstairs with Barbara, and she said, “When we first started this afternoon, you asked whether I knew why Judge Fredericks had turned down this case, and then Harvey did some frantic signaling to shut you up.”

“You don't miss much, do you?”

“I try not to. Why did Judge Fredericks turn us down?”

“I think you ought to ask Harvey.”

“Boyd,” she said, “don't turn cute on me. I'm a grown woman, up to my knees in a sewer. I damn well want to know why.”

“It's just a rumor we heard.”

“Then it's a rumor I should hear too.”

He sighed and said, “Are you going to insist that I tell you?”

“Of course I am. What is a lawyer for? And if you don't tell me, I'll find out elsewhere anyway, and there goes a very important question of trust.”

“All right. It stinks, but when you put it that way, I have no choice, do I?”

“That's right. You have no choice.”

“The rumor is that your brother, Tom, has been playing footsie with Congressman Drake all along.”

Barbara stopped walking and turned to face him. They were in the entranceway of the building, in front of the door that led to the street. She felt a lump of ice forming in her stomach.

“I don't believe that,” she said.

“Neither did we. Harvey went to see Judge Fredericks, and the judge says it's true.”

“Does my father know this?”

“Apparently, because he was the one who spoke to Fredericks first. I'm terribly sorry, Barbara.”

“I'm the one who has to be sorry, Boyd,” she said unhappily. “What a stinking mess. All right. Try to forget about it now. There's no need to tell Harvey you told me.”

***

Barbara sat between Harvey Baxter and Boyd Kimmelman, watching the selection of the jury. A large, heavyset black man had been called to the stand. Well dressed in a black suit, white shirt, and black tie, he stared unperturbed at Peter Crombie, the government attorney. Four fat cigars poked out of his breast pocket.

“Name?” Crombie asked.

“Ephraim Jones.”

“Occupation?”

“I am an undertaker,” Mr. Jones replied.

“Excused for cause. Step down, please,” Crombie told him.

“Well, that was short and sweet,” said Barbara. “How could they know so quickly that they didn't want him?”

“He's an undertaker,” Kimmelman answered. “This is the age of intimidation. How do you intimidate an undertaker?”

How indeed?
, Barbara wondered. Alice had seen a white rabbit, and when the white rabbit popped into a hole in the ground, Alice popped in after it. From that point on, two and two ceased to make four. With Barbara as with Alice, it was a process of constantly reminding herself:
I am Barbara; I am thirty-four years old, well, almost thirty-five; I am five feet eight and a half inches in height, and I weigh one hundred and twenty-nine pounds. I am a widow, I have a small son, and I have just written a novel that the critics will call saccharine and sentimental. Based on that rather unsubstantial data, here I am in Washington, District of Columbia, capital of the most powerful nation on the face of the earth, in this splendid federal courthouse, where all the forces of the mighty have been arrayed to put me in jail
.

“Do you know,” she said to Kimmelman, “all this nitpicking with the jurors is absolutely meaningless. I know you told me, but it just sank home. I have been found guilty. First the verdict and then the trial. Did you ever read
Alice in Wonderland
?”

Judge Lansing Meadows was regarding her sternly. She smiled at him but he did not smile back.
He has a ferret face
, Barbara decided. She had never seen a ferret, but having looked up the word in her dictionary once, she remembered that the ferret is a weasel-like animal found in Africa and Europe and used for the hunting of rabbits. Judge Meadows had a thin, almost lipless mouth, a pointed chin, a thin nose, and hair combed sidewise to cover the bald top of his skull. On the bench in front of him, he kept a glass of water, and sitting on top of the glass, shaped so that it dripped ice water into it, was a large piece of ice, almost twice the size of the glass it rested on. Whenever the judge felt the pangs of thirst, he glanced at a black attendant who stood nearby. The attendant leaped to the bench, raised the miniature iceberg while the judge eased his thirst, then replaced the ice so that the dripping might continue. The process fascinated Barbara, and she felt it was both eccentric and unique in this era of electric refrigeration. She found it difficult to keep her mind focused on the course of events; her thoughts tended to wander. Nothing that happened here was as important to her as her separation from Sam. She would be four days, possibly five days away from him. Jean was staying in the house on Green Street so that the disruption in Sam's life might be minimal. Eloise had begged Barbara to leave the child at Higate, but Barbara felt that it was easier to keep Sam at home.

Barbara had always been intrigued by her mother. Her father was more understandable. She could look at him and still see the big, wild, hotheaded boy who had run a string of fishing boats into one of the largest shipping and transportation empires of the nineteen twenties. Jean was something else entirely, the one-time arrogant beauty—and then the changes, the growth, the mellowing, the comprehending, each stage beyond Barbara's comprehension.

There is really no connection between parent and child
, she thought.
No way for one to understand the other. Mother is astonishing, but she bewilders me. One day, Sam will ask me why I did all this. Mother only asked once; after that she worried about my clothes.

“I don't want to hurt your feelings, Bobby,” Jean had said, “but don't think the judge and the jury won't be influenced by the way you dress.”

“What's wrong with the way I dress?”

“At your age, darling, a plaid skirt, a cardigan, and saddle shoes are not exactly
de rigueur
.”

“Mother, I am not going to wear saddle shoes in court.”

“I hope not. Let's go through your wardrobe and select something that will help and not hinder. And if we can't find it, we'll spend a day shopping.”

Well
, Barbara reflected,
it was perfectly normal. When one's daughter goes on trial, one sees to it that she is properly costumed.

“For heaven's sake, Barbara,” Baxter whispered to her, “what are you laughing at?”

“My mother.”

“Well, not here. It makes a rotten impression.”

The image Jean had arrived at was that of a middle western schoolteacher. Barbara's thick honey-colored hair was drawn back and fastened in a demure bun. She wore a suit of dark blue wool, a white cotton blouse, and dark blue shoes. Her own instinct was toward no make-up at all, but Jean said that would look suspicious.

“Mother, suspicious?”

“Bobby, the kind of a woman who doesn't wear make-up—”

“What kind of a woman?”

“Well, if I were sitting on the jury, and there you were with no make-up, I'd say to myself,
That kind of a woman with no make-up—obviously a radical.
”

“Mother, I almost never wear make-up.”

“And you're a radical. There you are.”

“I am not a radical. I am an ordinary housewife.”

“My dear Bobby,” Jean said patiently, “the last thing in the world that anyone would call you is an ordinary housewife.”

Late that first afternoon, they finished picking the jury, seven women and five men: three housewives married to government employees, four women who were government employees, and among the men, a bus driver, a telephone company repairman, and three more government employees.

“I don't get it,” Barbara said. “The jury's packed with government employees. Who's on our side?”

“No way out of it. We're in Washington.”

The reporters were waiting for her as she left the courtroom. By now, the Washington papers had pegged her as “the San Francisco heiress.” It did not matter that almost every penny of her inheritance had gone into an irreversible foundation almost ten years before. An heiress she had been and an heiress she would remain. And that her mother had divorced and subsequently remarried the same man was also grist for the mill, as was Tom Lavette's vast holdings in the GCS Corporation.
Only in America
, Barbara realized,
is wealth worshipped and deplored at the same time, the same Puritan work ethic that makes the gathering of wealth a holy mission stigmatizing the possession of wealth as self-confessed moral depravity.

Back at the hotel—the Mayflower this time—sitting down to dinner in the dining room, Barbara barely tasted her food, in spite of Baxter's insistence that this was one of the best restaurants in Washington. “You know, I'm bored,” Barbara said, “the way I'd be bored at some stupid orgy. Petty wickedness, stupidity, evil mediocrity—it's boring because it shrinks the soul. When I was in Hitler's Germany, it was naked and brutal and disgusting. Here it's all wrapped in germproof containers.”

“Come on, Barbara,” Baxter said, “you're not comparing us to Hitler's Germany. It just won't wash. You know that. Here at least we have due process. You are free on your own recognizance. We don't have a Gestapo here.”

“Then why am I here?”

They both stared at her. She shook her head and smiled. “I'm sorry. You've both been so good and patient, and here I am whining like some spoiled brat.”

“I think you've earned yourself a good fit of hysterics,” Kimmelman said, “and if it will make you feel any better, go ahead and let it out.”

“No, it's not my style, Boyd.”

“O.K., then let's talk about tomorrow. Harvey and I have been working over the material, and Harvey wants me to do the opening remarks and the examination if that's all right with you?”

“The point is,” Baxter said, “that I'm no trial lawyer. I think Boyd has a natural gift that way, and he thinks better on his feet than I do. I'm stuffy,” he admitted.

“No, Harvey, you're not stuffy, but if you want Boyd to do it, that's fine with me.”

***

Harvey Baxter's two opening motions for the dismissal of the contempt citation were both summarily rejected. Judge Meadows was annoyed. Barbara realized that he had a low threshold of annoyance. “You should know better, Mr. Baxter,” he said. “There is no citizen of the United States outside the purview of congressional authority. As for pertinence, that is established during the examination of a witness, as you well know.”