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The Conspiracy Weapon

Boston was probably the last place on earth where the Spock defendants either wanted to be tried or should rationally have been tried. New York, Washington, and even New Haven would have been more logical sites and in each the defendants perhaps would have been tried before a more nearly impartial jury. The Government was free to choose the place of the trial, and Boston was presumably thought a tactically shrewd choice. In the long run, the Government may have outfoxed itself, since in Boston they had to contend not merely with the “right” judge and the “right” jury but also, as it turned out, with the “wrong” appellate court.

Yet this one example, of the place of trial, serves to show the accumulated pressure of the law of conspiracy at the Government’s disposal. How did this body of law develop, and why has it become what has been called “the prosecutor’s darling”?

Conspiracy is an ancient crime whose origins are shrouded in English history. Yet it is generally agreed that it got a substantial shot in the arm from the infamous institution, Star Chamber, during the seventeenth century. In the Poulterers’ Case (1611) the Court of Star Chamber held that it was no defense to a charge of conspiracy that a conspiracy did not have harmful consequences. From that holding developed the modern crime of conspiracy as an inchoate offense.

Perhaps the most important use made of the offense early in its development, both in England and in this country, was as a means of attacking the efforts of workingmen to combine into unions and to try to bargain collectively with their employers. Such famous decisions as the Case of the Journeymen Taylors of Cambridge (1721), the Case of the Boot and Shoemakers of Philadelphia (1806), and the Case of the Journeymen Cordwainers of New York (1811), represented the law in this country until the Congress legitimated collective bargaining during the New Deal. The main doctrinal interest of these decisions lay in their assertion that the law of conspiracy could be used in effect to create joint crimes even though no statute made the conduct criminal.

The law of conspiracy did not reach its full currency until the twentieth century. It became largely the domain of the federal government, where it was given the substantial advantage of the venue or place of trial provisions in the Hyde case, previously referred to. The conspiracy offense came to have three principal uses:

(1) It was extensively employed in antitrust cases. Many of the extraordinary procedural rules I have mentioned were developed or extensively used in order to prove conspiracy among companies to control the market where direct evidence that they had agreed to do so was hard to obtain. This has been particularly true of cases involving price fixing or refusals to deal in a market of few sellers (oligopolists), where a price increase or unilateral refusal to deal by one businessman tends to evoke a similar response by the others, often without any evidence of agreement. The development of the criminal side of antitrust law, notoriously the doctrine of “tacit collusion” or “conscious parallelism,” had spillover effects into the rest of the criminal law. The history of criminal antitrust law still awaits its historian; yet its baleful effect is beyond belief.

(2) The offense has been extensively employed against organized criminal activity, and it is here that most of its peculiar doctrinal features have been developed. It has been used to prosecute “rings” of narcotics smugglers, violators of the Mann Act, gamblers, tax evaders, and the like. In all of these prosecutions it has been helpful to the Government to be able to paint the whole picture by presenting the facts of complicated transactions involving large numbers of people. There have been conspiracy prosecutions involving as many as ninety defendants. Such prosecutions have facilitated the presentation of evidence while at the same time they tend to promote unfairness to individual defendants, thanks to the propensity of juries to believe that, as Justice Jackson put it, “birds of a feather are flocked together.”

(3) The Government has depended as much as possible on that provision of the general federal conspiracy statute prohibiting conspiracy either “to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose [emphasis added].” This provision has, if anything, made conspiracy a phantom offense, crowding out what little remained of the overt act requirement, the standards of fair trial, and the constitutional prohibitions against vagueness and double jeopardy.3 Doctrines developed for this offense have spilled over into the general law of conspiracy. Not only has this offense “outlived its usefulness” but the author of that conclusion likewise questions “the desirability of including a general crime of conspiracy in the federal code.”4

Still, these examples do not explain the use of conspiracy for political offenses. The law had a brief currency for that purpose during World War I, notably in the Schenck case (1919), where Holmes coined the famous “clear and present danger” test. A number of obscure cases about draft evasion were decided during this period paying no attention to the effect on free speech of the conspiracy doctrine. Yet Schenck was only in form a conspiracy case and did not present in relation to conspiracy doctrine any of the vexing issues of the Spock case. Indeed, the very decisions in which Holmes and Brandeis laid the basis for their expanded view of “clear and present danger,” Abrams (1919), Gitlow (1925), and Whitney (1927), were not conspiracy cases at all.

It was not until the Smith Act cases that conspiracy became central to political prosecution cases. Miss Mitford seems to have her history a bit confused. She says, “Conspiracy had a great revival in the days of Senator Joseph McCarthy’s ascendancy,” referring to the prosecution of the eleven leaders of the Communist Party in 1948, the famous Dennis case. Some readers will remember that Senator McCarthy did not come to prominence until June, 1950. While the Dennis convictions were affirmed, most of the second-string Communist leaders who had also been indicted before anyone heard of the junior Senator from Wisconsin had their convictions reversed over the years after Dennis. The last three of those cases, Yates (1957), Scales and Noto (1961), pretty much ended the Smith Act’s usefulness to the government. Those cases did not deal with the relationship between conspiracy and free speech.

Aside from the obscure cases previously referred to during World War I, which were decided before the Supreme Court began giving content to the free speech guaranty of the First Amendment, there was no judicial history of a direct confrontation between conspiracy and free speech before the Spock case, with the exception only of Dennis, which was very far from involving the kind of free speech issues which Spock raised.

One still wonders why the government chose to use the weapon of conspiracy. The intervening development of free speech doctrine, along with growing evidence of judicial hostility to the growth of conspiracy, should have warned the Government that a major collision was in the offing. It was neither good law nor good politics to bring a conspiracy indictment, rather than an indictment for the underlying substantive offenses of aiding, abetting, and counseling draft resistance against a group of people who did everything in the open, whose respectability, aside from their political heterodoxy (if heterodoxy it was), was beyond question. Political crimes, if crimes they were, should have caused the Government to be cautious, particularly when questions about the right to freedom of dissent were as plainly in issue as they were here. At this point, Miss Mitford fails us.

To her, it is enough that the nastiness of the Government and its propensity to use whatever weapon it could lay its hands on to deflect this challenge to the Vietnam war are self-evident. But her assurance that the federal monolith did what should have been expected of it does not convince me. She should have followed the trail somewhat beyond Mr. Van de Kamp, other than simply to quote as she does an unnamed Federal judge to the effect that President Johnson must have been consulted about the Spock indictment.

Short of quizzing the President, there were some intermediate steps that any good reporter would have taken. It is impossible to believe that the Attorney General, Ramsey Clark, did not authorize the prosecution. Ramsey Clark, who performed so honorably in office, must have been intimately involved in the decision to proceed with the case. What could have impelled this best Attorney General of modern times to authorize a prosecution which he must have recognized as being not only distasteful but of dubious legality? I don’t know the answer but it is too bad that Miss Mitford apparently made no effort to find out.

It was, for example, common knowledge for some months among academic experts in criminal law that men at the highest level in the Justice Department were wrestling with the problem of whether to prosecute people who were organizing and promoting resistance to the draft, and it so on what grounds. The pressures, on speculates, built up partly as a result of the wrangle between Ramsey Clark and General Hershey, to which Miss Mitford does refer. Whether initiated by the White House or Congress, the pressure was ultimately successful in forcing the Attorney General to acquiesce in the decision to prosecute. But why, why did he agree to the vicious expedient of a conspiracy prosecution? There are those who presumably know and who, either when they write their memoirs, or through the inevitable leaching process of history, will tell what they know.

I do not know the answer but I am tempted to guess. Given the hypothesis that acquiescence in prosecuting promoters of draft resistance could not be resisted, one may surmise that men as well-versed in both the lore of conspiracy law and in the judicial tradition of hostility to the use of conspiracy indictments for political purposes might have reasoned something like this: rather than try to make out a case of actual aiding and abetting of draft resistance, perhaps against Spock or Coffin, it might be better to use the conspiracy indictment framed by Van de Kamp, with the thought that somewhere along the line (who could predict where and how) some court might simply do the obvious and reverse any conviction that might be obtained. Thus the Attorney General might have been able to satisfy the hounds as well as his own instincts to minimize danger to the hares. I don’t say that this is what happened, but I’d give a lot to know whether some such thought might have crossed the Attorney General’s mind.

  1. 3

    This offense has been the subject of a definitive article by A.S. Goldstein, Conspiracy to Defraud the United States, 68 Yale Law Journal 405 (1959).

  2. 4

    Goldstein, supra, at p. 462 and n. 179.

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