Interesting History on Carlton Fox, DOJ Tax, and His Compilations of Legislative History (8/8/18)

This morning, I was reading this article:  Nicholas Parillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 Yale L.J. 266 (2013), here.  I cut and paste a paragraph with footnotes on an early comprehensive compilation of tax legislative history compiled by Carlton Fox of the Tax Division:

As a third example, take the DOJ Tax Division. Founded in 1919 and greatly expanded in the 1930s, the division in 1931 hired an attorney named Carlton Fox, n229 who became "a pioneer in the field of legislative histories." n230 By the late 1930s, Fox had assembled scrapbooks of primary material on the internal revenue laws - apparently consisting largely of legislative history - that totaled forty-five volumes. n231 When a private tax attorney published a one-volume "legislative history" of the internal revenue laws in 1938, Griswold criticized it in the Harvard Law Review, arguing that it was not "much more than a digest or partial index," declaring that the "only place where the complete sources may now be found is in the compilations which have been made by Carlton Fox, Esq., of the Department of Justice," and concluding that "the final story on the legislative history of the Revenue Acts will not be told until Mr. Fox's compilations can be made more readily available." n232 The Tax Division apparently took advantage of its legislative history to guide the DOJ field service, sending circulars to the U.S. Attorneys' Offices with legislative history on commonly litigated questions. n233
   n229. 1934 DOJ Register, supra note 199, at 3.
   n230. Hudon, supra note 73, at 325.
   n231. A copy of the set was donated to the Supreme Court and discussed in Oscar D. Clarke, The Library of the Supreme Court of the United States, 31 Law Libr. J. 89, 91 (1938). Clarke describes the collection as forty-five volumes and covering "tax laws, regulations, and legislative history," id., but it appears the bulk of it was legislative history. See the description by Griswold, infra note 232 and accompanying text. A description of the collection's various parts as of 1950 (by which point it had been further expanded to 160 volumes) indicates that 107 of the volumes consisted entirely of legislative history and another 27 partly of legislative history. Federal Taxation, 32 Chi. B. Rec. 180 (1950); see also id. at 190 (confirming that the donation to the Court occurred in 1937 and that the collection is "adequately indexed").
   n232. Griswold, supra note 161, at 718. Griswold added that copies of Fox's volumes were available in the libraries at Harvard and two of the U.S. circuit courts. Id.
   n233. E.g., Circular Letter to All United States Attorneys, Circular No. 2730, Re: Memorandum of authorities with respect to the applicability of the Federal Declaratory Judgment Act to suits for the recovery of taxes 10-13 (Aug. 1, 1935), Box 182, Folder 1, Freund Papers, supra note 201. The DOJ Criminal Division and Claims Division would likewise acquire their own legislative history libraries, while DOJ's central library would provide such material to the other divisions. McKavitt, supra note 220, at 276; William Mitchell, Government Law Libraries: Guideposts to Research, 20 Fed. B.J. 281, 283 (1960).

Particularly while in the Appellate Section, I worked in legislative history a lot.  I had heard of Fox's compilations, but I don't recall that I ever accessed them.  I do recall working with Seidman's volumes on legislative history of the tax laws.

Parillo's point in the article is that such compilations back in Fox's day were not readily available to the private tax bar.  For this interested in this niche of history, read Parillo's article.

Does anyone out there remember either Carlton Fox or his legislative histories?

The NYU website, here, has a link to HeinOnLine saying the following:

Taxation & Economic Reform in America Parts I & II, 1781-2010, HeinOnline
"This historical archive contains . . . legislative history materials and other documents. It includes the complete Carlton Fox Collection which contains nearly 42 years of historical legislation related to the internal revenue laws from 1909-1950. It includes more than 100 other legislative histories related to taxation, economic reform, and stimulus plans. ." (HeinOnline)

One other interesting matter related to legislative history is that there was some secret legislative history dealing, as I recall it, primarily for legislation in the 1930s (at least that was the period I accessed).  We had volumes of that secret legislative history in the Appellate Section library and we had to get permission from the appropriate committee if we wanted to cite the legislative history.  I accessed it in a merger case after my reviewer kept sending me back to the history to find some point he insisted was there but which neither I nor he could ever find.

Women of DOJ 1937, including Helen R. Carloss (1/2/14)

I picked up this posting of a list of Women Lawyers at DOJ in 1937.  Dan Ernst, Women Lawyers at the Department of Justice, 1937 (Legal History Blog), here.  The actual list is here. The list does not break down the women by division.  Wikipedia says that the Tax Division was formed in 1934.  See Wikipedia entry here.

At least one on the list -- Helen R. Carloss -- handled tax cases, including in the Supreme Court.  I recognized her name and so first did a Google search and then a LEXIS-NEXIS search.  I report some of the results below.

Before reporting the results on Helen Carloss, however, I want to say that I don't mean to slight any of the others, particularly those who might have worked on tax cases or for the Tax Division after it was formed.  I am just time limited, so any reader who wants to pick one or more names to write a blog entry or a comment on, please do so and let me know.

An ancestry entry is here, which says:

Helen Carloss earned plaudits from Justice William O. Douglas for her skill as an advocate for the government in tax cases from the 1920s to the 1940s.
Source: The United States Supreme Court: The Pursuit of Justice - by Christopher L. Tomlins, Houghton Mifflin - 2005.

The same entry has the following which is attributed as an article in the Washington Post on March 28, 1934:

The Washington Post ¦ Wednesday, March 28, 1934 ¦ page 15
Woman Attorney Dashes About the Country Defending Government in Tax Cases
Assistant to Attorney General Handles Much Work on Trains
Helen Carloss Is First Women to Argue Cases Before All U.S. Courts of Appeal; Went From Teaching to Government Work 

Escape! That is what Government Work represents to some women. Escape from the dull, colorless life of a small town. A school teacher have up a position in a little Mississippi town to accept an humble clerkship with the Government because she wanted to get away from teaching. She wanted to be where things were happening. Now the former school teacher and clerk is a special assistant to the Attorney General of the United States. 

This is the ninth in a series of articles telling of women with interesting Government positions. 

By Virginia Lee Warren

Johnnie Walters on the Nixon Tapes and Related Materials (5/14/13; 5/26/13)

Johnnie Walters, former AAG Tax and then Commissioner of Internal Revenue, was in the mix during the turbulent years when Richard Nixon was abusing the powers of the office of President.  His background is at this site, here, for the dedication of his papers to the University of South Carolina.  Those of us who remember those times, remember that Johnnie was a good and decent man and disappointed President Nixon because he would not do his political bidding as Commissioner of Internal Revenue.

I just came across some transcripts on the Miller Center website.  The Miller Center, here, is transcribing and putting on the web presidential voice recordings.  Us old timers will remember that President Nixon secretly recorded a number of Oval Office meetings and telephone calls, which ultimately contributed to his downfall.  Among those transcribed are some referring to Johnnie Walters.  Here is a link to a search on that site for Johnnie Walters, which picks up the material related to Johnnie.

I cut and paste below one of the offerings from these materials; the web page is here.  The discussion appears to revolve around getting a more compliant Commissioner of Internal Revenue to replace Johnnie Walters who resisted the White House's political overtures:

President Nixon: The IRS thing is important but, God, we ought to be able to get some loyal son of a bitch. 

H.R. "Bob" Haldeman: I think we can. 

John Ehrlichman: We will, we will. 

President Nixon: There ought to be some guy that will do our bidding. That’s what we want, isn’t it? I don’t want that to drop between the stools. I don’t want another Johnnie Walters. We’ll get some—OK. [Unclear] a guy on your own staff. How about [Egil "Bud"] Krogh? Is he a tax lawyer?

Tax Division History - Involvement in Bay of Pigs Prisoners' Release

I just became aware of this interesting bit of Tax Division and broader tax and U.S. history. Tax Division luminaries and a host of others were involved in behind the scenes maneuvering to meet Castro's demands for medicine in return for the prisoners captured in the Bay of Pigs fiasco. Prominent Tax Division alumni involved were Louis Oberdorfer (then AAG, Tax), John B. Jones, Jr. (First Assistant AAG, Tax), and Mitchell Rogovin (then Assistant to Commissioner IRS and later AAG, Tax). I include below the links to some of this history and the list of persons mentioned in the Oral History interview of Messrs. Oberforder, Jones and Rogovin.

Oral History Interview of June 2, 1964 - here and here.

David Wise and Thomas b. Ross, The Invisible Government, section called Gray Operation. (I don't vouch of the complete accuracy of this account, but even if it were historical fiction it is interesting.)

Persons mentioned in the Oral History Interview:

Name Index
B
Bighinatti, Enso V., 16

C
Caplin, Mortimer M., 1, 2, 5
Castro, Fidel, 2, 7, 19
Coppock, Don, 21
Cutler, Lloyd N., 6

D
Dodge, Joseph M., 3

E
Edson, Robert C., 15
Eisenhower, Milton S., 3

F
Feldman, Myer, 3
Freeman, Orville L., 18
H
Harriman, E. Roland, 14
Hurwitch, Robert A., 3

K
Katzenbach, Nicholas deB., 3, 6, 13, 22
Kennedy, John F., 2, 3, 10, 14, 18, 20, 21, 22
Kennedy, Robert F., 5, 10, 11, 12, 18

M
Miskovsky, Milan “Mike”, 3

N
Nolan, John E., 22

R
Rauh, Joseph Louis, Jr., 2

S
Shea, Robert, 14, 15
Starr, Elvis, 13
Surrey, Stanley S., 3, 5

W
Wilson, John J., 13

Justices Jackson and Frankfurter on Duty to the United States Through Reporting and Paying Taxes

As some of the Alumni know, Justice Robert H. Jackson had, prior to serving on the Supreme Court as the chief United States prosecutor for the Nuremburg Trails, has served both as general counsel of the Treasury where his responsibilities included the IRS and as Assistant Attorney General heading the Tax Division. I received the following email today from Professor John Q. Barrett of St. John's Law School and Fellow of the Robert H. Jackson Center, Inc.. I thought readers would be interested in this email and received permission from Professor Barrett to pass it along. (I have some links at the end for readers desiring to see more on Justice Jackson and some may want to join Professor Barret's email list as well.)

For the Jackson List:

In summer 1962, Justice Felix Frankfurter, age 79 and disabled by a stroke, retired from the Supreme Court of the United States after 23 years of service.

As a retired Justice, Frankfurter kept his mind and interested eyes on many matters. In winter 1964, for example, he spotted, or someone called to his attention, a quotation that an official U.S. Internal Revenue Service (IRS) form attributed to his late colleague Robert H. Jackson (who once had been the Revenue bureau’s chief counsel). According to the IRS, Jackson once said or wrote—no source was specified—that “[t]he United States has a system of taxation by confession. That a people so numerous, scattered and individualistic annually assesses itself with a tax liability, often in highly burdensome amounts, is a reassuring sign of the stability and vitality of our system of self-government.”

AAG Robert Jackson Speech on Republicans, Intelligence & Practicality

Yesterday, my DOJ Tax Division automatic Google search served up a reference to a remarkable speech in 1936 by then DOJ Tax AAG Robert Jackson (of later Supreme Court fame). The reference was to a publication by Professor John Q. Barrett who is writing a biography about Jackson and sends periodic emails on Jackson topics. (His lists of Jackson postings may be viewed here, where a pdf of this speech can be downloaded.)

The item that my Google search captured caught my attention because it was a speech made while Jackson was AAG. I asked Professor Barrett for permission to put it on this blog and he graciously gave permission, which I acknowledge thankfully. Professor Barrett further invited readers of this blog to review his Jackson documents at the link above and join his list. Professor Barrett's introduction to the speech and the speech are:

Jackson on Republicans, Intelligence & Practicality
(December 1936)
John Q. Barrett*
Copyright © 2009 by John Q. Barrett.
All rights reserved.

On Wednesday evening, December 2, 1936, more than 400 people attended a Democratic Party victory dinner and celebration at the Hotel Jamestown in Jamestown, New York. The guest of honor was Robert H. Jackson, a former Jamestown resident, lawyer and leading Democrat who was serving under President Franklin D. Roosevelt in the United States Department of Justice as Assistant Attorney General heading the Tax Division. At the time, press reports from Washington indicated that the newly-reelected President Roosevelt was about to appoint Attorney General Homer S. Cummings to a new position, and that Jackson was the leading candidate to succeed Cummings. (As events developed, Cummings continued as Attorney General for almost two more years. His successor was, for a year, Frank Murphy. In 1940, Jackson succeeded Murphy as Attorney General.)

At the Jamestown dinner, following musical entertainment and various addresses, including a principal speech by Francis M. Shea, the young Dean of the University of Buffalo School of Law, Jackson delivered these timely—then, and now—remarks:

My friends and neighbors are generous as well as gracious in singling me out for honors tonight. Many of you could not be expected to enthuse over the political aspects of this occasion and your interest is deeply appreciated. Others are celebrating the event by which the Democratic Party became a majority party not only in state and nation but in this city as well. I share your joy at that achievement. It is a delight to have Dean Shea come to Jamestown for any reason and I feel honored that he should come now.

While I enjoy getting credit for achievements, whether earned or not, I must disclaim all except a very modest share in the victory. It was too general and too sweeping to be attributable to personal efforts. It was a result of a great many contributions.

The local party organization remained loyal from top to bottom. Organized labor gave the most effective demonstration of its strength and solidarity in local history. Our Swedish citizenry were not afraid of the cry of communism and ruin, for they knew that the efforts of the Roosevelt administration were already achievements in their native land. The Italian people have developed a fine group of young professional men who saw in the Democratic policy a fulfillment of the hopes of a people who came here seeking opportunity and security. So many groups broke with their old tradition and they are entitled to the credit for the result.

I am not so confident that the Republican Party is dead. Some sixteen million voters who remained loyal even this year is a very respectable political beginning, if properly led, and if it can make up its mind what its principles are to be. It is terribly handicapped in leadership. Its old leaders are discredited and its future leaders are unknown. They have few governorships, senatorships, or even large mayoralties in which to learn leadership and to develop public standing. Moreover the leadership problem is complicated by the tendency of the seaboard states to want one kind of leadership and the interior another. So the Republican Party is in a bad way. But it is not dead. Democratic blundering might give it life again.

The fact is that the election leaves us with a tremendous responsibility. It is no time for delusions of grandeur nor for animosities, pettiness or partisanship.

Our danger is not from opposition so much as from the lack of it. Our victory may be too devastating to be wholesome. It is a temptation to be reckless, an invitation of factions. We have been given a lot of rope and it will take some self restraint to keep from hanging ourselves, by the excesses and arrogances which too often follow oversized majorities.

There is another danger. We must not forget our responsibilities to those who elected us, just because those who were lately so bitter are now outdoing themselves in proffers for good fellowship. This campaign was no tea party—it had a definite meaning. The cat cannot be put in care of the canary just because it is now purring. Visible opposition is gone but do not believe that invisible underground work has ceased by those whose motto is “Time Marches—Backwards.”

In the president [FDR] and the governor [Herbert H. Lehman] and in our local appeals we offered a fighting faith in real democracy, in economic freedom as well as legal freedom for the working masses. We denied that the injustice and disadvantage under which many people work must be accepted and worshipped as the American way. We believe the soul killing processes of industry and the cruelties of economic life are capable of improvement. We challenged the doctrine that God stopped His great clock in 1789 when our Constitution was framed and that He placed on the Supreme Court a duty of seeing that nothing ever moves again.

In this local campaign, we carried our cause directly to the people who cast the votes. We dealt with no broker. We wasted no time trying to reach workers through their employers. We had no middlemen. Let that be our method always. When we go to the people we educate them to understand us, but far more important they educate us to understand them.

Let us never forget that political campaigns in the large sense are not materialistic. They are of the spirit. Those who came with us cared nothing for our organization, our patronage or our narrower partisanship, and they overlooked our many mistakes. Their response was to ideas and ideals.

It is the salvation of democracy that both sides learn wisdom from a campaign. Although the campaign often seems so unintelligent, it is also characteristic that after the heat of the campaign both sides welcome cooler thought and are glad the bitterness is over with. There is evidence already that conservatives have become more aware of the need of concession, the liberalism more aware of the need of being practical. Only if conservatism is intelligent and liberalism practical can the struggle between the two be solved by the ballot.

So whether we were among the victors or the vanquished, we share together the exciting adventure of free government, with its process of claim and counterclaim, of progress by compromise, of trial and error. Slowly but surely we move to greater economic security, to a more humane and just and equal order of society.

From the bottom of my heart I thank you all for its demonstration of confidence and friendship. It gives courage in whatever little part I may play to remember your trust in me and to keep the faith.