FBI Memo Morgan to Clegg, Janaury 14, 1947
|FBI Memo Morgan to Clegg, Janaury 14, 1947 (1947)|
Office Memorandum ° UNITED STATES GOVERNMENT
To: Mr. H. H. Clegg
From: E. P. Morgan
Subject: Gregory Case
Mr. Tamm requested that I make an objective analysis of this case from a legal and investigative standpoint for the Director. Pursuant to this request, the following observations are set forth:
We have an informant in this case referred to as Gregory who appears to be unusually intelligent and has related in detail of activities on the part of various individuals, in the main employees or past employees of the United States Government, which activities, if corroborated, would probably support a successful prosecution under existing statutes. There appears little reason to doubt Gregory's statement that information and documents from Government records were supplied Gregory by Silvermaster, Perlo, et al and that this material was turned over by Gregory to a member or contact of the Soviet Intelligence Service; however, what we know to be true in this case is a far cry from what we are in a position to prove beyond a reasonable doubt.
The Bureau was not apprised of Gregory's activities until November of 1945 and the inquiry since that time has been largely the development of information which might serve in corroboration of an alleged relationship between members of the so-called Silvermaster group, the Perlo group, as well as others. We have established since November of 1945 the fact that there exists a fraternal and intimate social bond among those individuals who, according to Gregory, were active more or less in concert prior to November of 1945 in supplying the informant data from various Government agencies. Beyond having evidence of this social relationship, we have little or nothing save the statement of the informant.
The subjects in this case are extraordinarily intelligent, at least they are unusually well educated, and include some very prominent people, including Harry Dexter White. It can be expected that some of the finest legal talent in the country would be retained for their defense in the event of prosecution. With the evidence presently available, the case is no more than the word of Gregory against that of the several conspirators. The likely result would be an acquittal under very embarrassing circumstances.
The following is a brief resume of the contacts made by the Bureau’s informant during the course of which information was obtained through the subjects with respect to the activities and records of various government agencies:
Summer of 1941 –
Novermber 27, 1943………
- Materials delivered by the informant to Jacob M. Golos
- who died November 27, 1943. During this same period
- material was also delivered to “John" (unidentified)
- and ”Catherine” (unidentified). Also during this period
- active in establishing contacts with “Margaret” (identified
- as Olga Borisovna Pravdina, a former employee of Amtorg
- who returned to Russia in 1946).
November 1943 -
- Material delivered to “Bill” (unidentified) who had been
- introduced to Gregory by “Catherine.”
October 1944 –
- ”Bill” turned Gregory over to an individual known only as
- “Jack” (unidentified). In December of 1944 Gregory was
- removed from his duties as courier but during the
- association with “Jack” the informant was introduced to one
- “Al” subsequently identified as Anatoli Borisovich Gromov,
- formerly First Secretary of the Soviet Embassy, Washington.
- Through surveillance Al is known to have contacted Gregory
- in New York in November of 1945. “Al”, or Gromov, departed
- from the United States for Moscow on December 7, 1945.
Gregory cannot testify in any instance to whom Golos and his successors delivered the material collected for them. Additionally, Golos is dead; “Catherine," "Bill," and "Jack" have not been identified; and "Al" presumably is in Russia. There is thus a complete blank at the receiving end of information obtained by Gregory from Silvermaster, Perlo et al. Gregory has stated, however, that during the period of association with Golos, the latter selected those items of a political, economic, or social intelligence character and made them available to Earl Browder, at the time National Chairman of the Communist Party. Browder in no instance kept this information for delivery to a third person since he did not wish to become compromised in the collection of material of this type.
It appears that Gregory obtained from the Silverwaster and Perlo groups information from the Department of State, the Office of Strategic Services, the Treasury Department, the War Department, the Department of Justice, the Foreign Economic Administration, and numerous other agencies of the Federal Government and that this information was turned over to Golos and his successors. Where it went from Golos et al we cannot prove, although we are reasonably certain it went to the Soviet Intelligence Service.
In considering the possibility of successfully proceeding under the espionage statutes, the following questions appear pertinent:
- (1) Does the evidence now available establish the obtaining of information with respect to the National Defense of the United States with the intent or reason to believe such information would be used to the injury of the United States, and/or for the benefit of a foreign country?
Gregory, it is to be presumed, can testify generally from recollection as to the type of information obtained which information, as a type, would probably be construed, considering that a state of war existed, as relative to the National Defense. No one else, however, is presently available to identify this information and, presuming a jury were inclined to believe Gregory in the face of denials by other defendants, it is questionable whether the informant's recollection would be sufficiently definite and detailed without some corroboration to sustain a conviction. It would be the word of one defendant against that of several others without more, which is always a precarious predicate for a conviction.
Furthermore, "intent or reason to believe such information will be used to the injury of the United states, and/or for the benefit of a foreign country" is an essential element of this offense. We have no evidence from which "intent or reason to believe" can be proved or reasonably inferred in the case of the Silvermaster or Perlo groups. We can identify their Communist connections but this does not supply the requisite intent or reason to believe under the statutes. Let us presume the co-conspirators admitted they obtained certain information but that they merely did so with a view to keeping abreast of Government developments for the Communist Party. Would that admission sustain the premise that the information was to be used to the injury of the United States or for the benefit of a foreign country? I think not, without going into the entire question of the status of the Communist Party as a political arm of the Soviet Union. Even Gregory can't testify where the information went after leaving him and his admission that he believed it would be used by Soviet Intelligence is not binding on the other co-conspirators, particularly in view of the informant's relationship as a courier.
- (2) Does the evidence available show that the subjects had lawful or unlawful possession of any document or note pertaining to the national Defense and (a) willfully transmitted or attempted to transmit the same to any person not entitled to receive it, or (b) willfully retained the same and failed to deliver it on demand to the officer or employee of the United States entitled to receive it.
Here we have only the statement of Gregory as to the nature of the documents or notes involved, some of which were, according to the informant, copied or photographed in the basement of the Silvermaster home. (It is otherwise known that a fully equipped photographic laboratory is located in the basement of the Silvermaster home.) Under this section it is the document itself, the unlawful possession and transmittal of which is proscribed. Certainly the document must be produced or identified with sufficient definity to show by other facts that it did, in fact, relate to the National Defense. I sincerely doubt if Gregory's testimony would go sufficiently far in this direction. As a matter of fact, should the other subjects deny the possession of such documents, as they almost surely will, a very substantial and detailed shm1ing will be required in the absence of the documents themselves as to just what they were. In other words, in a statute penalizing possession and transmittal of a document you must either produce the document or in its absence conclusively show that it comes within the provisions of the statute. We don't have the evidence to do this.
The fact that the Silvermasters have a photographic laboratory in their basement in 1945 is very effective corroboration of the veracity of our informant, however, without more, it does not go to establish the fact presumptively or otherwise that they had such a laboratory in 1942, 1943, 1944, or even 1945, and more particularly that it was used to photograph in these years documents, the possession and transmittal of which are penalized by the statute. And until you have sufficiently shown what the document was the question of its reproduction is wholly irrelevant and immaterial.
The foregoing observations apply equally to the other sections of the code relating to espionage.
From the standpoint of the Registration Act, this case presents a substantial question of agency. Gregory was the agent of Golos and his successors for the purpose of obtaining the information and Silvermaster, Perlo, and their cohorts could be no more, but who is their principal? Was the principal a foreign government? Was the principal a "foreign principal?" What we can prove here again falls far short of what we know. I don’t think the evidence available is sufficient to Prove the agency that is a requisite to a violation.
My understanding is that the Department has also indicated the thought of possibly proceeding against the subjects of this case for Fraud Against the Government on the theory that the Government was defrauded of subjects' services in so far as and to the extent that their time was devoted to the gathering of information to be transmitted to Gregory. I personally feel that this theory is ridiculous. To sustain a prosecution of this character it would be necessary to show specific times and instances in which the subjects departed from their contemplated duties for the purpose of gathering the information and, furthermore, prove that such departures were unauthorized and out of the scope of their cuties. If we could show, for example, that William Ullmann, one of the subjects, left the Treasury Department at 2:00 o'clock one afternoon, not being on leave, how could we hope to show that such departure was unauthorized, was out of the scope of his assigned duties and, of course, was incident to his gathering or transmitting information to Golos and others.
To my way of thinking, considering that a state of war existed, this case is one of Soviet espionage or it is nothing. At this point the evidence very definitely is insufficient to sustain a successful prosecution under the espionage statutes. The question, therefore, remains as to what further action reasonably should be taken in connection with this case.
1 The evidence available in the Gregory case is not sufficient at this time to sustain a successful prosecution under existing Federal statutes.
2. The investigation, as presently being conducted, offers little likelihood of providing corroborative evidence with respect to activities occurring during the association of Gregory with the subjects.
3. It is highly problematical whether the present inquiry will establish violations independent of those indicated by Gregory. Without an informant working within the group of subjects the odds in this respect are nil.
4. The principal value of the investigation has been to develop subjects addition to those indicated by Gregory.
5. To continue the investigation on its present basis does not appear justified inasmuch as the results are largely cumulative save for an occasional new face in the picture.
6. Had we been in contact with Gregory during the course of his courier activity, beyond question evidence could have been developed sustaining prosecution for espionage. Coming in after the event as the Bureau did, we are now on the outside looking in, with the rather embarrassing responsibility of having a most serious case of Soviet espionage laid in our laps without a decent opportunity to make it stick. This very circumstance, however, necessitates pursuing more direct methods, particularly since the facts of the Gregory statement are known to several persons and agencies outside the Bureau.
7. The only reasonable hope of salvaging a successful prosecution is (a) to endeavor to make an informant of one of the subjects and/or (b) to interview the subjects in the hope that at least one will break and serve as a corroborative witness to Gregory.
Contacting one of the subjects with a view to making him an informant would appear to be the only effective means of establishing violations independent of those indicated by Gregory, with particular regard to possible contemporaneous violations.
Failing to successfully develop one of the subjects as an informant, I doubt if any more can be accomplished of probative value through further investigation apart from the interviews. This case will stand or fall dependent upon the extent to which the subjects may break and in breaking corroborate Gregory. I personally am of the opinion that the Bureau would be subjected to possible criticism as being derelict in its responsibility in this instance if the various subjects were not thoroughly and exhaustively interviewed. The odds are not too good that such interviews would terminate successfully; however, it is quite possible that some of the lesser lights among the subjects would crack during the course of a careful and pointed interview.
1. That one of the subjects of this case, probably the weakest sister, be contacted with a view to making him an informant. This is an outside chance but offers the only reasonable prospect of making a case with respect to contemporaneous and future events.
2. Failing in this respect, that immediately the other subjects be exhaustively interviewed. Since an interview with one would virtually amount to putting all of them on notice, it would seem logical to conduct such interviews as nearly simultaneously as possible.
3. That inasmuch as the case is in the hands of the Department, its approval be obtained before taking the foregoing action.
4. That failing to break any of the subjects, serious consideration be given to exposing this lousy outfit and at least hounding them from the Federal Service. Several possibilities exist in this regard but this would seem to be a bridge to cross when we get to it.