Hiss papers reveal Nixon's role in case; Grand jury testimony could have been subject to challenge by defense


WASHINGTON -- It's grist for historians now: 4,250 pages of newly released grand jury testimony in the U.S. Justice Department's case against Alger Hiss, who was accused of being a Communist spy. Had his lawyers succeeded in their effort to see the secret material 50 years ago, however, one historian and an advocacy lawyer say, they would have had a strong argument for getting the former State Department official off the hook.

As it was, the Baltimore native and Johns Hopkins University graduate went to federal prison for nearly four years after being convicted of perjury in 1950, launching a debate about his guilt or innocence that for decades has reflected the shifting politics of the day. Now come more fodder for the debate, new leads for scholarly inquiry on Cold War politics, more reasons to wonder "what if?"

The consumer advocacy group Public Citizen announced yesterday that records of two separate grand juries that considered the accusations against Hiss between July 1947 and May 1949 are available to the public at National Archives' reading rooms in Washington and New York.

The release comes months after a federal district court judge in New York ruled in favor of Public Citizen and a group of historians, who had sued for access to the documents. Hiss and his lawyers had tried and failed to have the materials released after his conviction.

Historian Bruce Craig, who read the transcripts, said he became "personally convinced that had defense attorneys been able to see this material they would have moved for dismissal" of the charges. The transcripts, Craig said, would have given Hiss' lawyers reason to argue that Richard M. Nixon, then a California congressman and member of the House Committee on Un-American Activities (HUAC), improperly influenced the grand jury with his appearances on Dec. 13, 1948.

David C. Vladeck, director of Public Citizen's litigation group, said Hiss' lawyers would have had a "very powerful argument that Nixon's appearance constituted an improper interference by a member of Congress in a criminal investigation. I don't think it would have been a frivolous motion."

Which is to take nothing from Nixon's performance.

"Nixon's speech was masterful, clever and nuanced, and he made a brilliant show of it," Craig told reporters at Public Citizen's offices yesterday. "It was his greatest performance prior to his famed 'Checkers' speech."

That came four years later, when Nixon was in hot water over a fund that a group of Californians had established for him as their new senator. With Republican presidential candidate Dwight D. Eisenhower under pressure to drop Nixon as his running mate, Nixon went on national television to answer the charges of impropriety, giving a performance that would be judged variously hokey, melodramatic, maudlin and extremely effective.

Much the same Nixon was at work before the grand jury Dec. 13, 1948. Two days later, the jury returned a two-count perjury indictment against Hiss.

With only two days remaining in the grand jury's term, with Republicans on the defensive after the surprise victory of Harry S. Truman, with HUAC's investigation widely criticized and the grand jury apparently uncertain about the charges against Hiss, Nixon volunteered to speak to the panel.

His reason, ostensibly, was to demonstrate the existence of new evidence in the case: the infamous "Pumpkin Papers," microfilm of government documents that Hiss had been accused of passing to confessed Communist courier Whittaker Chambers, who by 1948 had become an anti-Communist and an editor at Time magazine.

Chambers, who claimed Hiss passed documents to him during the 1930s, had at least as keen a sense of the dramatic as Nixon. A day before he handed the three cans of microfilm to HUAC investigators, Chambers stashed them in a hollowed-out pumpkin on his farm in Westminster. A nifty headline was born.

Nixon showed the grand jury the cans of film, which the Justice Department's criminal division chief described in the transcript as a "corpus delicti," but made clear he could not hand them over since that would violate rules of the House of Representatives. Nixon was not a witness to facts in the case, but he addressed the jury as a witness.

Nixon knew the grand jury was having doubts about the credibility of Hiss and his chief accuser, Chambers. The 52-page transcript of his two appearances that day shows Nixon presenting himself to the jury as a humble man working in conflict with a hostile Justice Department to root out Communists in government, a man empathetic with the jurors' task.

Nixon, who was then 35 years old, told the jury that a "statute of limitations" might enable those who passed information to Chambers to "go Scot-free and that the Grand Jury would have no power whatever to indict them. I want to assure you that if you feel you are unable to indict because of those technicalities, you will feel assured that we will go ahead with our investigation of the case."

Time was not of the essence in that sense, since the statute of limitations for espionage charges against Hiss had expired in 1945 -- seven years after the last date Chambers claimed he received government documents from Hiss. Hiss was indicted on a perjury charge for lying about passing material to Chambers and for testifying that he had not seen Chambers after Jan. 1, 1937.

Hiss died in 1996 at 92, having proclaimed his innocence to the end. His son, Tony Hiss, a writer and specialist on urban planning, told reporters that the grand jury record "underscores the unswerving truth of the story told time and again with candor and clarity by my father, my mother, my uncle and my brother."

Asked to comment on this assessment, the four historians at the news conference declined. They said the transcripts shed light on the internal politics of the government's pursuit of Soviet spies but do not clarify the question of Hiss' guilt or innocence.

"Documents do not have to contain shocking information or a smoking gun to be important," said Anna Kasten Nelson, a historian at American University.

Pub Date: 10/13/99

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