Black Booty (Cont'd)

"Mr. Hogan, I do not believe that I want to hear any more. I have listened to the case very fully. It has been fairly argued on both sides. It does not make any difference whether it is Mr. Silas Strawn or who it is."

When Washington Lawyer Frank Hogan last week heard these words from the mouth of Chief Justice Alfred Adams

Wheat of the District of Columbia's Supreme Court, he may well have feared that he had lost another bout with his favorite adversary, the U.S. Senate. If so, he was mistaken.

As attorney for Silas Hardy Strawn of Chicago, Mr. Hogan had just argued for a permanent injunction to keep Western Union Telegraph Co.'s Washington office from delivering to Senator Hugo Black's Lobby Investigating Committee all telegrams sent or received by the potent firm of Winston, Strawn & Shaw. Mr. Hogan's argument was that by subpoenaing wholesale all the telegrams sent or received in Washington between Feb. 1 and Dec. 1, 1935, the Senate Committee had violated the Fourth Amendment to the Constitution which guarantees the people security "in their persons, houses, papers and effects against unreasonable searches and seizures." After Mr. Hogan, the attorney for Western Union said that his company was only a football in-the fracas, would prefer not to give up the telegrams, would leave the real answer to "a friend of the court."

The friend of the court was Crampton Harris of Birmingham, Ala., Senator Black's onetime law partner, who had been hired as special counsel for the Lobby Investigation. Said Attorney Harris: "It is difficult to conceive of any injury at all resulting from obedience to the [Senate] subpoena unless the complainant has sent messages of such a type that they should not be entitled to protection by any court. ... In no instance has a Congressional investigation ever held up to the public gaze documents of a private and personal nature." The Senate, argued its hireling, is the sole judge of its own subpoenas, is not subject to interference from the courts. There might be, Mr. Harris suggested, a "very unseemly and unfortunate conflict" if the Court enjoined Western Union from delivering the telegrams and the Senate demanded the telegrams under threat of jailing Western Union officials for contempt.

"Now right there," interposed Justice Wheat, "wouldn't the court have the right to issue a writ of habeas corpus?"

When Mr. Hogan began his rebuttal, he was promptly shut off by Justice Wheat's announcement that he had heard enough. Continued the Justice: "I would be the last one in the world to claim any right to interfere with the powers of the Senate or with the exercise of its legitimate discretion. Where it has discretion, I have nothing else to say about it, nor has any other judge. . . . Feeling as I do, that this subpoena goes way beyond any legitimate exercise of the right of subpoena duces tecum, I think that I am bound to grant the injunction. . . . The plaintiffs here have a legitimate interest in the controversy, and they have the right to be protected by the court when they claim protection under the Fourth Amendment to the Constitution."

Two days later Justice Wheat made legal history by signing a permanent injunction forbidding the surrender of the Strawn telegrams to the Senate Committee.

As if to keep the issue alive from a news angle, Publisher William Randolph Hearst jumped into the spotlight with a demand that the court keep Western Union from giving up to the Senate Committee a certain telegram which he sent April 5, 1935 to James T. Williams Jr., Hearst editorial writer in Washington, ordering a series of anti-New Deal editorials. Since this telegram was specifically named in a Senate subpoena, Justice Wheat declared it could not be classed as an unreasonable search and seizure of papers.

Temporarily defeated, Mr. Hearst came back next day with a suit against the six Senatorial members of the Investigating Committee and the seven members of the Federal Communications Commission charging them with conspiracy to seize his telegrams illegally. Said his petition: "No agency of the Government has the power to go on a fishing expedition into matters concerning the conduct of the business of the Press."

By way of answer, Senator Black quietly asked the Senate for $25,000 to continue his efforts, loudly told the Press: "I am not surprised that the Liberty League and Mr. Hearst and others who think they are bigger than the Government should try to enjoin the Senate. They have already tried to supplant the Supreme Court. There is nothing they would not attempt to do to continue the operation of the United States Government like Mr. Hearst administers his baronial estate."

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