In 1940, Congress passed the Smith Act making it illegal to support the overthrow of state or national governments. In 1949, 11 Communist Party leaders were convicted under this Act. The attorneys for the accused were themselves convicted of contempt of court and half served prison terms. Subsequently, most lawyers refused to represent suspected Communists unless they themselves were members of the Communist Party. In the following testimony before a House Committee on Un-American Activities (HUAC) hearing investigating Communist activities in the San Francisco area, radical attorney Robert E. Treuhaft (1912–2001) described his unsuccessful attempts to hire respected lawyers—who privately disapproved of HUAC—to represent him. Treuhaft, an Oakland-based lawyer who had represented labor unions and African-Americans deprived of civil rights, had joined the Communist Party in the 1940s. Subsequently, he became the unpaid counsel for the Civil Rights Congress (CRC), a trust fund that supplied bail money for Communists arrested under the Smith Act. The Justice Department included the CRC on their official list of subversive organizations, and following his appearance before HUAC, the Committee listed Treuhaft among the 39 most dangerous subversive lawyers in their pamphlet, “Communist Legal Subversives: The Role of the Communist Lawyer.” Jessica Mitford, Treihaft’s wife, wrote in her memoir, A Fine Old Conflict, that the San Francisco HUAC hearing targeted did serious damage "in destroying livelihoods and muzzling political dissent at the grass-roots level."
TESTIMONY OF ROBERT E. TREUHAFT . . .
Mr. TREUHAFT. I am obliged to appear before this committee without assistance of counsel, Mr. Tavenner, because of the fact that the repressive activities of this committee have made it impossible for me to secure the assistance of attorneys of my choice. This is a serious charge for a lawyer to make. I am compelled, however, to make it because the state of affairs that I have found to exist in this regard is truly shocking.
A month ago I received a subpoena calling for my appearance before this committee. My law partner and I have been, for many years, and are now, general counsel for the East Bay Division of Warehouse Union Local 6, ILWU, a labor organization which is one of the principal targets under attack by this committee. In fact, I am sure this was well known to the committee’s investigators, and I cannot down the suspicion that my representation of this union had something to do with the fact that my law partner and I are the only East Bay lawyers subpoenaed before the committee at these hearings so far as I know.
I readily agreed to represent four East Bay members of this union as their attorney, who likewise were subpoenaed, despite the fact that I, myself, had been subpoenaed as a witness.
Upon receipt of my subpoena I immediately began to make diligent efforts to secure counsel to represent me. I compiled a list of the 7 leading East Bay lawyers whom I would want to represent me because of their known ability in their profession and because all of them had, from time to time, shown themselves to be champions of the right of advocacy. All had a sound understanding of due process of law and of the other constitutional rights and immunities which are daily trampled upon by this committee. . . .
The first lawyer, whom I will call lawyer No. 1, holds high office in the Alameda County Bar Association. When I first approached this lawyer, he told me that he could see no reason why he could not represent me. The next day, however, he informed me that he felt that he could not do so because of the controversial nature and the publicity attendant upon hearings before this committee and because of his position in the county bar association.
The second lawyer I consulted out of this list, lawyer No. 2, is a former judge who has an active practice on both sides of the bay. I discussed with him the position which I intended to take before this committee; that is, to uphold the Constitution and to rely upon the first and fifth amendments to the Constitution as they might apply to every question that this committee might put to me.
This attorney, who is highly placed in the bar, agreed fully with me in principle and stated that it was his opinion that my decision was sound and wise. He told me that he would like to represent me.
After conferring with his associate, however, he called me in again, and he said that he was very sorry that he could not because representing me with the attendant publicity or representing any witness before this committee would involve financial hardship. He said that he regretted very much to give me this answer because we have been on friendly terms. He said to me, although he is a well-established lawyer, and older than I am, “Why don’t you find some older lawyer, someone who is in a better financial position, to take this risk?”
The third lawyer I went to see and offered a retainer to represent me before these hearings was an older lawyer, and he was a better financially established lawyer so far as I know. He formerly held high office in the American Bar Association, and he, too, has been a champion of the right of advocacy. He told me, “Try to find a younger lawyer. The activities before this committee would be too strenuous,” he thought, the publicity would be harmful.
The fourth lawyer I went to is a leading criminal lawyer in the East Bay. We have been on very friendly terms, and he readily agreed to represent me without any hesitation at all. When I offered him a retainer, he said that he would not accept a retainer from a fellow lawyer. He took the subpoena, and we proceeded to discuss the position I was going to take, and he agreed with me fully that anybody who had represented unpopular causes as a lawyer, as I have, would face grave dangers in answering any questions put by this committee. Three days ago I—I consulted him 2 weeks ago—3 days ago, the day before—3 days before I was supposed to come here, he called me, and he told me that his partner had just returned from out of town and had learned that he had undertaken to represent me. He said that his partner represented a bank, and that his partner felt that the attendant publicity would be so harmful to them that he insisted that they could not represent a witness before this committee.
He told me this with very personal regret. He also expressed the view—his partner did—that any attorney who represented a witness before this committee might find himself in a position where he was persecuted by other governmental agencies, as was Vincent Hallinan, against whom reprisals were taken, because he had the courage and temerity to represent a client who, in some eyes, was considered unpopular.
Lawyer No. 5 is one of the most distinguished members of the bar of Contra Costa County. He has held high office in the bar association there, and he is a leading lawyer in every sense of the word. He has also been a fighter for the right of advocacy. He told me with very great regret that he had discussed with some of his corporate clients the advisability of his intention to represent a witness before this committee. These clients told him that they would consider it an unfriendly act if he were to represent a witness before this committee. He said that although he was well established, he had very high overhead and that he didn’t want to subject his organization to the financial hardship and risk of losing clients that would be involved in representing anyone before this committee. I told him that I intended to take this matter up with the bar association and also to make a statement to this committee on my experiences in attempting to obtain counsel, and that I intended to keep the names of the individuals that I had consulted confidential. He said, “Bob, a fact is a fact. I feel rotten about telling you what I have to tell you, but a fact is a fact; you state the facts, and I authorize you to use my name and to give the reasons that I have given you.”
This man had real courage.
Mr. SCHERER. He didn’t appear, though, did he?
Mr. TREUHAFT. No; he authorized me to say that he couldn’t appear because these slanderous accusations by committees like this made it dangerous financially.
Mr. SCHERER. That is the man you say had real courage?
Mr. TREUHAFT. Yes; he had real courage, and all of these lawyers that I named had real courage. I went to them because they were courageous. I am not condemning nor criticizing the lawyers. I am condemning this committee for trying its cases in the newspapers and over the radio. I am condemning this committee for depriving me of right of counsel by its slanderous attacks, attacks by inference, which even repel and revolt some of the Democratic members of this committee . . .
Now the canon of ethics of the American Bar Association, as I think Representative Moulder has referred to, states, and this is law for lawyers, that no lawyer shall, for reasons personal to himself, reject any cause because it is unpopular. All of the lawyers that I consulted did reject this cause for reasons personal to themselves, but for reasons created by the hysteria engendered by this committee in the public mind, the fear that anybody who appears before this committee is labeled as a spy or something subversive, and that the taint may rub off onto the lawyer. . . .
This whole situation is McCarthyism. President Truman recently described it as such. He said that it is the use of the big lie and the unfounded accusation against any citizen in the name of Americanism—in quotes—and security—in quotes. It is the use of the power of the demagogue who lives on untruth, and I am reading here, Mr. Jackson, because I am quoting, and I don’t want to be inaccurate:
“It is the spread of fear,” President Truman said, “and the destruction of faith at every level of our society. This horrible cancer,” he said, “is eating at the vitals of America, and it can destroy the great edifice of freedom.”
Mr. Truman went on to say that this situation should serve to alert the people to the terrible danger that our Nation and each citizen faces and urge his fellow countrymen to “be aroused and fight this evil at every level of our national life.”
I am prepared to fight this evil at every level, and I intend to ask the State bar to look into a situation which I think is truly disgraceful, where lawyers with real courage and standing are afraid to come forward and represent clients before this committee. . . .
Mr. TAVENNER. Is it your position that you would desire your appearance continued until you have an opportunity to consult other counsel?
Mr. TREUHAFT. I would desire to have my appearance continued until such time as the hysteria engendered by this committee has abated to such an extent that it is possible for me to have counsel of my choice and to such time as it is possible for me to have one of these advocates that I consulted represent me. The Constitution says that I am entitled to counsel of my choice, not counsel of your choice.
Mr. TAVENNER. My question is this: Are you asking this committee to postpone your appearance until you can obtain counsel?
Mr. TREUHAFT. Yes, and that postponement would have to await the time that this committee changes its rules so that it conforms with due process of law so that lawyers can appear here with dignity and without fear of reprisal.
Mr. TAVENNER. Well, in light of that type of answer, I will proceed with my questioning. . . .
Source: Congress, House, Committee on Un-American Activities, Investigation of Communist Activities in the San Francisco Area—Part 3. Hearing before the Committee on Un-American Activities, House of Representatives, 83d Cong., 1st Sess., December 3, 1953 (Washington: Government Printing Office, 1954).