A History Lesson For Our Turbulent Times
This is how I remember the story, as told many years ago by one of its participants.
In 1954, Wisconsin Senator Joe McCarthy was making wild, unfounded accusations that communists had infiltrated the United States Army. By that time, McCarthy was notorious for falsely accusing patriotic Americans of being communists, and destroyed reputations and lives in the process. Hence the term “McCarthyism.”
A Senate committee convened televised hearings to investigate McCarthy’s charges. Seated with McCarthy at the hearings were a New York lawyer named Roy Cohn, who later became lawyer and mentor to Donald Trump and would one day be disbarred, and a very young Robert F. Kennedy.
The Army denied McCarthy’s scurrilous charges and hired Boston trial lawyer, Joseph Welch, to represent it. Welch was a senior partner in the law firm Hale and Dorr (a predecessor of the firm now known as WilmerHale). He enlisted two of his firm’s associates to go to Washington with him to defend the Army. The two associates were James D. St. Clair and Fred Fisher.
During the flight to Washington, Welch asked his younger colleagues if they carried any proverbial baggage that McCarthy might be able to use against them. Fisher mentioned that, when he was a student at Harvard Law School, he had been a member of the National Lawyers Guild, a progressive organization then rumored to be a front for communists. Welch told Fisher that, while he did not question Fisher’s patriotism, Fisher’s past affiliation with the NLG could give McCarthy ammunition to fire at the defense team, which would be an unwelcome and potentially damaging distraction. For that reason, Welch told Fisher that, when the plane landed in D.C., Fisher needed to return to Boston and could have no role in the matter. Fisher dutifully followed his instructions, and another Hale and Dorr lawyer was sent to D.C. to take his place.
The hearings went on for some time, and Welch’s questioning of McCarthy was taking its toll. At one critical juncture, McCarthy claimed to have a list of the names of numerous communists who had infiltrated the Army. Sensing that McCarthy was bluffing, Welch urged him to provide the list immediately so that the Army could quickly weed out the supposed communists and protect the nation from harm.
Rather than comply (and unable to comply because there was no list), McCarthy went on the offensive. In an effort to discredit Welch, he brought up Fisher’s past affiliation with the National Lawyers Guild. Welch responded with what proved to be a fatal blow to McCarthy’s dishonest crusade:
Until this moment, Senator, I think I have never really gauged your cruelty or your recklessness. Fred Fisher is a young man who went to the Harvard Law School and came into my firm and is starting what looks to be a brilliant career with us.… Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale and Dorr. It is true that he will continue to be with Hale and Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man but your forgiveness will have to come from someone other than me.
Wikipedia describes the rest of the exchange as follows:
When McCarthy tried to renew his attack, Welch interrupted him:
Senator, may we not drop this? We know he belonged to the Lawyers Guild.… Let us not assassinate this lad further, Senator. You've done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?
McCarthy tried to ask Welch another question about Fisher, and Welch cut him off:
Mr. McCarthy, I will not discuss this further with you. You have sat within six feet of me and could have asked me about Fred Fisher. You have seen fit to bring it out, and if there is a God in Heaven it will do neither you nor your cause any good. I will not discuss it further.
The gallery erupted in applause.
Welch’s impassioned defense of Fred Fisher became McCarthy’s Waterloo. The Senator was disgraced on national television, and the dark and sinister era of McCarthyism soon ended.
Welch returned to what remained of his brilliant career, even playing the role of a judge in the film “Anatomy of a Murder.” Jim St. Clair became a legendary trial lawyer in his own right, well-known in the Boston legal community and nationally. He served as special counsel to Richard Nixon during Watergate and argued the Nixon tapes case to the United States Supreme Court, albeit unsuccessfully (thank God).
Fred Fisher went on to have a long and exemplary career. And, as a young Hale and Dorr litigator myself in the 1980s, I, with my law firm colleagues, had the privilege of attending a screening of the Army-McCarthy hearings documentary, “Point of Order,” with special, in-person commentary provided by our senior partner, Jim St. Clair. It was an event and a film I’ll never forget.
Of course, there is a lesson in all of this. When you go after famous figures and accuse them of wrongdoing, especially in matters of public importance being played out in the public eye, you’d better make sure your own house is in order. Joe Welch understood that. It’s why he sent Fred Fisher home. Had he not done so, his crucial defense of Fisher, and through it his exposing of McCarthy’s reckless cruelty, might have landed on shaky ground.
But sometimes putting your house in order is not enough. You also have to keep your house in order, at least until the proceedings have concluded. Because when a coward in a position of power is backed into a corner, he’ll throw whatever mud he possesses to bring his accusers down. As his adversary, one of your jobs — one of your most important but least difficult jobs — is to avoid handing him mud to throw. It’s simply a matter of exercising sound judgment and not doing anything that could make you and your conduct the issue.
Joe Welch got it right. Unfortunately, others sometimes get it wrong. And the consequences when they do can be personally and publicly devastating. We’ve seen it in our own time, even very recently, and no doubt we’ll see it again. Let’s hope those who would protect our nation and its people from future, powerful bad actors will watch and learn.