15 Dec The IMT Without Justice Jackson? (Corrected)
It is difficult to imagine what the Nuremberg Trial would have been like without Justice Robert Jackson. I still get chills when I read the final paragraph of his summation, which ranks as one of the great closing arguments in legal history:
[T]hese defendants now ask this Tribunal to say that they are not guilty of planning, executing, or conspiring to commit this long list of crimes and wrongs. They stand before the record of this Trial as bloodstained Gloucester stood by the body of his slain king. He begged of the widow, as they beg of you: “Say I slew them not.” And the Queen replied, “Then say they were not slain. But dead they are…” If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no slain, there has been no crime.
Justice Jackson was always the public face of the trial. I was thus particularly intrigued to find, while working this morning with the Telford Taylor papers at Columbia Law School, a 22 April 1945 memo written by John J. McCloy, then the Assistant Secretary of War and later the U.S. High Commissioner for Germany, containing an early list of seven other candidates for Chief Prosecutor. Here is the list:
1. Sidney Alderman, Counsel for Southern Railway and later one of Justice Jackson’s deputies
2. Herman Flaeger (Phleger), founding partner of Brobeck, Phleger, and Harrison in SF
3. John Harlan, then a Colonel in the Air Force, later a Supreme Court Justice
4. Justice Jackson
5. Theodore Kiendl, the lawyer for Erie Railroad who argued Erie v. Tompkins
6. Hugh D. McClellan, a former U.S. District Judge in Massachusetts
7. Justice Owen Roberts, who famously dissented in Korematsu
8. Marion B. Smith
It is impossible to know how the Nuremberg trial would have been different if one of the others had been chosen. Interestingly, the memo indicates that McCloy’s first choice was Justice Roberts. Justice Roberts would have made an interesting choice, given his willingness to criticize the Executive and the military: he not only dissented in Korematsu, but also authored a 1942 report on Pearl Harbor — as head of the Roberts Commission, a position to which he was appointed by President Roosevelt — that was extremely critical of naval and army readiness.
Food for thought…
Kevin–
Is that a McCloy typo on #2? I think it should be Herman Phleger, a founding partner of Brobeck, Phleger and Harrison (now, sadly, defunct), the San Fracisco Law Firm. Phleger was, I believe, part of the post-war administration in Germany and later an advisor on arms control. I have no opinion on what kind of chief proseuctor he would have made, but he loomed large as one of the few high-profile cold warriors in the SF legal establishment and his reputation lived on at the firm when I was a summer associate at Brobeck in 1997. Phleger died in 1984. Here’s his obit.
The archives sound fascinating!
Peggy
This 4/22/45 memo was from McCloy to Sam Rosenman, who had been handling war crimes planing for FDR in London from Yalta until FDR’s death (4/12) and then was back in Washington. The memo. captures, in a Sunday musings sort of way, McCloy’s preference for Roberts (who of course resigned from the Court that summer and then was offered, and declined, the chief U.S. judge job (i.e., the job that went to Francis Biddle) at what became Nuremberg). McCloy’s memo. does not reflect knowledge of the Rosenman-Truman discussions that were ongoing at this point (not surprising–those presidential dealings were were above McCloy’s, and probably even his principal Stimson’s, need to know) and their preference for Jackson. They recruited him and formalized his appointment only a few days later, and Truman announced it publicly on 5/2.
Peggy is right about Herman Phleger, who worked as an occupation government legal adviser in Berlin that fall.
JQB