Establishment (34 page)

“I am still down there with Alice,” Barbara whispered to Kimmelman.

The courtroom was smaller than she would have expected and darker, with only a dozen seats for spectators. Two reporters watched the proceedings drowsily. There were four other people who, she guessed, might have been spectators, although why anyone would willingly choose a federal courtroom on a sunny September day, she could not for the life of her imagine. The judge's lump of ice dripped water, and with the regularity of a clock, he nodded at the black attendant to lift the ice so that he might drink.

The government called a single witness, Donald Jay, counsel for the House Committee on Un-American Activities. The questioning was brief and uninspiring. Barbara watched the jury. They sat with blank faces, as if this happening in the court was the last thing that concerned them.

“What is your name, sir?” Crombie, attorney for the government, asked Jay.

“Donald Jay.”

“And you are counsel to the House Committee on Un-American Activities?”

“That is right.”

“And on the occasion this past March, when Mrs. Barbara Cohen came before the committee as a witness, did you conduct the examination of the witness?”

“I did.”

“And was she properly subpoenaed and sworn?”

“She was.”

“And is it true that subsequently, the aforesaid House committee voted to cite this witness for contempt of Congress, and that subsequent to that vote, the motion was put before the entire House of Representatives, here in the nation's capital, and that the entire House voted to uphold this citation of contempt?”

Kimmelman objected. When the vote was taken, only a bare quorum of the House was present. The record should not give the impression that the entire House voted the contempt.

Meadows agreed and instructed Crombie to rephrase his question, which he proceeded to do. Barbara could not see that it mattered very much.

“Do you have the stenographer's record of the hearing of the aforesaid House committee to which we are referring?”

“I do.”

“I would ask the bench's permission for this witness to use the aforesaid record to refresh his memory.”

“Granted,” Judge Meadows said.

“Now, Mr. Jay,” Crombie said, “in the light of this citation of contempt, would you repeat the question that led to Mrs. Cohen's contemptatious action?”

Barbara began to giggle. Kimmelman nudged her and objected. “It is taken out of context, your honor. Let him read the whole record.”

“Since the record is in evidence, you can request that when you cross-examine. I see no need for it now.”

“Barbara,” Kimmelman whispered, “don't laugh. Those characters in the jury box are watching you like hawks.”

“Contemptatious, really. It's not a word. It's as unreasonable as all the rest of this.”

“It's a word here in court.”

“Go ahead, Mr. Jay,” Crombie was saying.

“Congressman Drake speaking: ‘Mrs. Cohen, please give the committee the names of the people who contributed to this private fund of yours.'

“Her answer: ‘No.'

“Donald Jay speaking: ‘You were asked to name the people who contributed to this private fund for the Hospital of the Sacred Heart. Will you please name them?'

“Her answer: ‘No, I will not.' Then the witness, Mrs. Cohen, consulted her lawyer. Then she added to her answer the following: ‘No, Mr. Jay, I have no intention of naming the contributors.'

“Donald Jay speaking: ‘You realize that we can subpoena your books and records?'

“Her answer: ‘The only books and records of these contributions are in my head. But if there were books and records, rest assured I would destroy them before you got your wretched hands on them.'

“Congressman Drake: ‘Mrs. Cohen, do you realize that by refusing to answer this question you are placing yourself in contempt of this committee?'

“Her answer: ‘I don't fully understand what that means. I would like to think that it means I have contempt for you and your associates. That would be correct.'

“Then the witness was dismissed.”

Crombie turned to Kimmelman. “Your witness, sir.”

Watching Boyd Kimmelman, Barbara realized that his twenty-nine years weighed heavily upon him. The fact that this was his first important court case did not bother her. He was a small, compact young man, with bright blue eyes and a thatch of sandy hair that tended to stand upright regardless of how he pressed it down with hair dressing. He was innately theatrical, and Barbara was sure he had practiced every movement for hours. Now he asked his first question without rising: “Mr. Jay, according to the record you have just read, Congressman Drake warned Barbara Cohen that she was placing herself in a position of contempt by refusing to inform on her friends—”

“Objection!” Crombie snapped. “The implication is insufferable.”

“Is it?” Kimmelman asked mildly.

“You will rephrase the question, Mr. Kimmelman,” the judge said. “And I must warn you that I will not have this courtroom turned into a political platform.”

Kimmelman nodded. “Nevertheless, the congressman warned Mrs. Cohen that she was committing a contempt. Is that correct, Mr. Jay?”

“It is.”

“Would the stenographer read her reply?”

The stenographer read, “I don't fully understand what that means—”

“That's sufficient,” Kimmelman said, rising and walking over to Jay. “And when she said that, Mr. Jay, you did not feel it was incumbent upon you to explain what contempt of Congress means?”

“No, sir, I did not. A question was asked, and she refused to answer.”

“But you had been at many such hearings. This was her first. You didn't feel it necessary to explain the gravity of the situation, the meaning of a congressional vote of contempt, that one day she could sit here in court and face the possible punishment of this court? You didn't see any necessity to inform her of that?”

“She had counsel beside her. The answer is no.”

Kimmelman turned to the jury. “What is the purpose of the House Committee on Un-American Activities, Mr. Jay?”

“Objection!” Crombie said.

“No, I'm going to allow that,” the judge said.

“He has to allow it,” Baxter whispered to Barbara. “He wants a clean record that won't be reversed.”

“To frame legislation to protect the people of this country against subversion.”

“Very laudable. As I understand it, the committee was established in the month of May, in the year nineteen thirty-eight.”

“I think so.”

“You think so. Don't you know when the committee you work for was established?”

“Yes, nineteen thirty-eight.”

“Ten years. A long time. We were in a depression, we emerged from a depression, and we fought a long, terrible war. Which incidentally took up four years of my own life.”

“You can spare us the biographical detail, Mr. Kimmelman,” Judge Meadows said sourly.

“Yes, your honor. Now, Mr. Jay, in those ten long, busy years, how many pieces of legislation did the House Committee on Un-American Activities frame and offer to Congress? Was there one, two, ten, or none?”

Before Kimmelman had finished speaking, Crombie was on his feet objecting. Meadows asked both attorneys to approach the bench.

“What do you hope to accomplish by this line of questioning, Mr. Kimmelman?” the judge asked softly.

“I intend to show that this committee has aborted the purpose for which it was created, and that now, in defiance of the Fifth Amendment, it acts as a Star Chamber, the only purpose of which is to entrap witnesses into self-incrimination or to make them victims of the misuse of the committee's power of contempt.”

“Not in this courtroom, Mr. Kimmelman.”

“I think I stand on constitutional grounds, your honor. May I respectfully ask why not?”

“Because the House committee is not on trial here, Mr. Kimmelman. Your client is on trial. I'm sure you are aware of that.”

“But still, with the greatest of respect, your honor, my duty is to defend my client, and that's my only constitutional line of defense.”

“I'm sure you're clever enough to find another approach, Mr. Kimmelman. You must remember that when an attorney licensed to practice in another state, in your case, California, pleads a case in a federal court in the District of Columbia, he does so as a privilege granted him by that court. I am sure you will do nothing to cause me to question that privilege, Mr. Kimmelman.”

“No, your honor.”

Crombie smiled and returned to his table.

Kimmelman had no further questions of Jay, and Crombie magnanimously waved away redirect. “The government rests,” he stated, as if offering the simple testimony of a single witness was all that the occasion required.

The judge then announced that the court would reconvene at two o'clock.

At lunch, Boyd Kimmelman wept without tears. “Oh, I am something,” he said. “The boy genius, all ready to inscribe a page in the history books, the brilliant California lawyer who destroyed the House committee. Brilliant—I am an idiot, an unredeemed idiot! And I sold you down the river, Barbara. That miserable, tight-lipped sonofabitch!”

“There was no way you could have anticipated this,” Baxter told him. “You did the right thing, Boyd.”

“No, no. Oh Jesus, I should have seen it. So simple. Why didn't I see it?”

“But Boyd,” Barbara said, “it's not over. I know how you feel, but you are going to put me on the stand—”

“I don't know.”

“Why not? You say that what happened this morning blows our chance for a constitutional issue. Well, there must be some way you can work a constitutional issue into my testimony.”

“It's not quite that easy, Barbara,” Baxter said. “No matter how this trial works out, we will try to bring it before the Supreme Court on a constitutional basis. It doesn't have to be a part of the court record. Boyd's scheme was to force Meadows to face up to the constitutional issue right here and either make him accept it or put him in error. But he's too old a hand to step into such an apparent trap, and he scotched it neatly. I must say, I don't like the notion of you taking the stand.”

“If I don't, what will the verdict be?”

When neither of them replied, she said, “Guilty, am I right? But at least I have a chance if I take the stand.”

“Yes, you have a chance,” Kimmelman agreed. “But, face this. Crombie will ask you whether you're a member of the Communist Party.”

“But you said he can't.”

“He can and he can't. He'll ask it, and I'll object, and the judge will sustain my objection. But the jury will hear the question.”

“Is that so terrible?”

“I think so.”

“There's also the record,” Baxter said. “Crombie will bring up the deposition of Manuel Lopez. We'll object, but the jury will hear it. There's also a chance that the judge may allow it.”

“I can't believe,” Barbara said, “that out of a jury of twelve men and women, there isn't one person whom we can convince that I've taken a course of common decency. If that's the case, what on God's earth has happened to us?”

“A climate of fear,” Baxter murmured.

“They're government employees for the most part, Barbara. But I think the choice must be up to you. If you don't take the stand, I don't think we have much chance. If you do, well, maybe. I don't think you can make it any worse.”

“We'll give it the old school try,” Barbara agreed, smiling. “Come on, cheer up, both of you. Somewhere under Lansing Meadows' icy exterior, we hope, there beats a heart of flesh and blood.”

But as she sat on the witness stand, the judge's cold, expressionless face turned toward her, she doubted her assessment of flesh and blood.
Anyway
, she thought,
I have always wondered what this feels like, and now I know. It feels idiotic, and as for that jury
—she looked at the jury. It was amazing that not one of the twelve would meet her gaze. They stared into the distance.

“Mrs. Cohen,” Kimmelman said to her, “according to the testimony of Mr. Donald Jay, you were asked to provide the House Committee on Un-American Activities with the names of eighteen persons. You refused. Is that correct?”

“Yes.”

“Who were these eighteen persons? Not their names. I am not asking for their names. I am asking a general question—how you related to them and the type of persons they are in social terms?”

“They are my friends. They are people I have known in the course of my life in San Francisco and in the course of my work with the Lavette Foundation. Some professional people, physicians, businessmen, teachers, housewives, trade unionists.”

“I see. And you know all of these people personally?”

“Yes, I do.”

“Do you believe on the basis of your knowledge of these people that any of them are subversive or pose a threat to the government of the United States or to our institutions?”

Crombie was objecting before Kimmelman had finished his question. “Calls for a conclusion!”

“You will not answer that question,” the judge told her.

“Very well. Now according to your testimony before the House committee, the Lavette Foundation has made several grants of funds to the Hospital of the Sacred Heart in Toulouse, a city in France. Will you tell us something about this hospital?”

Crombie objected.

“I'll allow this. You did open the door, Mr. Crombie.” And to Kimmelman, the judge said, “Rephrase your question. I'll have no speeches or declarations here. We'll save that for your summation. Ask your questions specifically.”

“When did you first come in contact with this hospital, Mrs. Cohen?” Kimmelman asked her.

“In the spring of nineteen thirty-eight, my fiancé, Marcel Duboise, was brought to that hospital with a bad leg wound that he had suffered in Spain. He was a correspondent for the French newspaper
Le Monde
. I was in Paris when news of this reached me, and I went immediately to Toulouse. He died there in the hospital.”