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Washington Lawyer

Legal Spectator: Not So Fast With a Defamation Suit

From Washington Lawyer, May 2008

By Jacob A. Stein

spectator Roger Clemens, the all-star fastball pitcher, demonstrated righteous indignation when George Mitchell’s baseball report alleged that Clemens’ trainer Brian McNamee said that

Clemens used steroids. Clemens, in his news conference, declared he intended to file a defamation suit against the informant. Clemens, a man of his word, did file the suit. Clemens may have thought twice if he had read United States v. Alger Hiss, 185 F.2d 822 (2d Cir. 1950).

In 1948 Whittaker Chambers appeared before the House Un-American Activities Committee (HUAC) and alleged under oath that Alger Hiss (1904–1996) was and still may be a member of the Communist Party. Hiss’s close friend, William Marbury, a distinguished Maryland lawyer, accepted without reservation Hiss’s denial. Marbury advised Hiss to challenge Whittaker Chambers to repeat the allegation outside the HUAC immunity protection. Chambers accepted the challenge. He repeated the allegations on Meet the Press.

On September 27, 1948, Marbury filed Hiss’s defamation suit, seeking $50,000 in money damages, in the United States District Court for the District of Maryland. Before the suit was filed, Chambers, in an odd way, was somewhat protective of Hiss. The lawsuit demanding money changed that.

Marbury commenced his deposition of Chambers on November 4, 1948. At the conclusion of the second day’s testimony Marbury (I am paraphrasing here) suggested to Chambers that in the course of the deposition Chambers admitted he lied on many occasions and that Chambers had, to say the least, a life filled with dishonorable conduct.

Marbury suggested that Alger Hiss’s background—law clerk to Oliver Wendell Holmes Jr. and high governmental positions—and the support of people in high places, was a person of such distinguished character that he would be believed in any credibility contest with Chambers. Then Marbury made the mistake of pressing Chambers for documentary evidence to prove his allegations.

Chambers went to retrieve evidence he had hidden in the Baltimore home of his nephew’s wife when Chambers left the Communist Party in the 1930s. Chambers, at that time, was apprehensive that the party may come after him, as he knew it came after others. He let it be known that if the party did come after him, he would disclose Communists in high places with whom he had dealt in the 1930s.

Chambers’ evidence included retyped confidential State Department documents and other materials traceable to Alger Hiss. Chambers gave most of this to his lawyer. He withheld microfilm from his own lawyer because he wanted to keep something in reserve in case he needed further protection. He placed the microfilm in a pumpkin which he concealed in farmland at his home.

When the deposition resumed, Chambers’ lawyer showed this evidence to Marbury. Marbury, later, in writing about the matter, said that when he saw this evidence he knew the defamation case was over.

The evidence went to a grand jury sitting in New York City considering the Hiss/Chambers matter. Richard M. Nixon, a first-term congressman and a junior member of HUAC, had taken charge of the Hiss inquiry. When he learned of the pumpkin concealment he arranged for a press conference with Nixon putting the “pumpkin papers” on display.

Hiss’s indictment trial and conviction on two counts of perjury followed. He was sentenced in 1950 to five years’ imprisonment.

I have asked lawyers about the Chambers deposition and whether Marbury made a mistake in pressing Chambers for corroborating evidence. A lawyer I discussed it with came up with this idea. He said the cautious thing to do would have been to end the deposition, without pressing for corroboration, drop the lawsuit, and then hold a press conference stating that Hiss did not want any of Chambers’ money. All he wanted was to get Chambers under oath conceding that he had a compulsion to lie.

Clemens’ trainer, after Clemens’ denial, disclosed evidence to a Congressional committee (a crushed can of Miller Lite, some gauze, and cotton pads and a single hypodermic needle) as corroboration of his challenged testimony. This evidence was withheld from the George Mitchell investigation. Will there be more?

The Hiss case has elements that connect with the Oscar Wilde case. Oscar Wilde (1854–1900) had a relationship with Lord Alfred Douglas, nicknamed “Bosie.” Bosie’s father, the Marquis of Queensberry, wanted to stop the Wilde-Douglas affair. He posted a libelous statement at Oscar Wilde’s club. Bosie disliked his father. He encouraged Oscar Wilde to file a libel action against the Marquis. Wilde filed suit in 1895.

After suit was filed, the Marquis’ lawyer produced strong evidence against Wilde, so strong that Wilde’s libelous suit was discontinued. Wilde’s friends urged him to flee to France because it was likely he was to be criminally prosecuted. He delayed too long. Wilder was arrested, tried, and convicted.

In May 1934 General MacArthur thought it necessary to sue a local newspaper that published a story giving the impression that the general was guilty of conduct unbecoming an officer in the conduct of his official duties. The suit was dismissed without trial when certain letters came to light, letters sent by the general to a young woman.

Even when the plaintiff wins a defamation case, the verdict comes in long after the case is filed. The public’s interest in the dispute is no longer front page news. New scandals, new denunciations, new threats to file a defamation suit have taken over the front page.

Reach Jacob A. Stein at jstein@steinmitchell.com.