In June of 2023, Donald Trump was charged with 37 counts of alleged mishandling of classified documents, as well as obstruction of justice. Of those 37 counts, 31 are alleged violations of the Espionage Act. Now, since its passage after World War I, thousands of people have been investigated for violating the Espionage Act, including Julian Assange, Daniel Ellsberg, and Donald Trump. However, only two people have been executed for violating it during peacetime; Ethel and Julius Rosenberg.
This episode features Anne Sebba, author of Ethel Rosenberg: A Cold War Tragedy, and Jake Kobrick, Associate Historian at the Federal Judicial Center. It explains the Espionage Act of 1917, the accusations against the Rosenbergs, the twists and turns of their trial, and their execution in 1953.
Transcript
Archival: [00:00:06] One of the greatest peacetime spy dramas in the nation's history reaches its climax as Julius Rosenberg and Morton Sobel, convicted of revealing atomic secrets to the Russians enter the federal building in New York to hear their doom.
Nick Capodice: [00:00:22] I'm Nick Capodice.
Hannah McCarthy: [00:00:23] I'm Hannah McCarthy.
Nick Capodice: [00:00:24] And this is civics 101. In June of 2023, Donald Trump was charged with 37 counts of alleged mishandling of classified documents, as well as obstruction of justice. Of those 37 counts, 31 are alleged violations of the Espionage Act. Today we’re going to talk about that act, and we’re going to do it through the most famous, so far, espionage trial in US History; the trial of the first ever US citizens to be executed for espionage during peacetime, Julius and Ethel Rosenberg. And Hannah, this trial has a LOT in it. It’s tied to communism...
Archival: [00:00:53] Communist Party of the United States is a fifth column, if there ever was one.
Nick Capodice: [00:00:57] Mccarthyism.
Archival: [00:00:58] Have you no sense [00:01:00] of decency, sir.
Nick Capodice: [00:01:01] The Manhattan Project, and the Cold War.
Hannah McCarthy: [00:01:05] So this is an espionage case, right?
Nick Capodice: [00:01:07] Yeah.
Hannah McCarthy: [00:01:08] So I think it would be best before we get to know who Ethel and Julius Rosenberg were and what they did, to understand what espionage actually is.
Nick Capodice: [00:01:19] After the US entered World War One, President Woodrow Wilson signed the 1917 Espionage Act. That's been amended several times since then, but basically [00:01:30] it made it a crime to unlawfully retain or disclose any information that could potentially harm the United States or benefit its enemies. And there are lots of Supreme Court cases where this act clashes with our First Amendment rights. Famously, Schenck v United States.
Hannah McCarthy: [00:01:46] Oh, yeah, I know this one. This is the one where the justices ruled that, for example, shouting fire in a crowded theater is not protected speech.
Nick Capodice: [00:01:54] Yeah. So if any speech presents a, "clear and present danger" to the U.S., [00:02:00] you can be punished for it. It's not protected under the First Amendment. Now, the Espionage Act covers a lot of ground. Whistleblowers like Daniel Ellsberg of Pentagon Papers fame and Julian Assange of WikiLeaks fame. They were accused of violating it. And so, too, were numerous spies and people accused of selling secrets. And most recently, the search warrant for the raid of former President Donald Trump's Mar a Lago estate cited a potential violation of the Espionage [00:02:30] Act.
Archival: [00:02:30] The court papers obtained by CBS News and unsealed today show the FBI seized more than 20 boxes, some containing classified documents marked top secret and above.
Hannah McCarthy: [00:02:43] So basically the act says you can't keep sell or reveal information that could compromise national security.
Nick Capodice: [00:02:49] That's it.
Hannah McCarthy: [00:02:51] All right. So let's get into the Rosenbergs. Who were these people and what did they do?
Nick Capodice: [00:02:55] Let's start with Ethel.
Anne Sebba: [00:02:57] You know, I always say I'm not relitigating [00:03:00] the trial. I'm I'm trying to tell the story of who Ethel was and Ethel's life.
Nick Capodice: [00:03:05] This is Anne Sebba. She's a journalist, lecturer and author of Ethel Rosenberg: A Cold War Tragedy.
Anne Sebba: [00:03:11] Particularly in England. If people know anything about the story, they would say to me, Oh, yes, the Rosenbergs, those spies as if they were an indissoluble unit. I wanted to extrapolate Ethel. She was 37 when she was killed and the mother of [00:03:30] two small boys and people really didn't know anything about her except the assumption that she was part of the spy ring.
Nick Capodice: [00:03:40] Before she married Julius. Her name was Ethel Greenglass. That last name is going to come up a few more times. Ethel grew up in my favorite neighborhood in the world, the Lower East Side of New York City. She pursued a career in singing and acting, and that didn't really pan out. But she found work at a shipping company in New York where she started to get involved in a worker's [00:04:00] union and then the Young Communist League.
Hannah McCarthy: [00:04:04] All right. So the word communist has been thrown around a lot in the last century or so. Sometimes it's a literal party descriptor. Sometimes it's an epithet. So how did communism fit into American politics in the 1930s?
Nick Capodice: [00:04:18] Yeah. So communism Karl Marx's political theory that all wealth and property should be shared and distributed as to people's needs. That word communism is a different thing than the Communist Party [00:04:30] in the US. The Communist Party was a very left wing organization with financial and ideological ties to the Soviet Union in the 1930s. Their platform had a lot to do with organizing workers into unions, fighting for the rights of Black Americans and the unemployed. And yes, the bigger goal of abolishing private property and having the government own and run all industry.
Jake Kobrick: [00:04:54] As you might imagine, giving the economic distress that was going on in the United States in the 1930s [00:05:00] during the Great Depression. That was the height of the Communist Party USA's influence.
Nick Capodice: [00:05:05] This is Jake Kobrick, associate historian of the Federal Judicial History Office.
Jake Kobrick: [00:05:10] So somebody being a member of the Communist Party in 1930s, New York, which was the center of their operations at that point, was not as extraordinary as it might sound in retrospect. The Communist Party in the 1930s in the United States was following what they called a popular front strategy, meaning that they were trying to not [00:05:30] sound radical, that they were trying to link themselves with other progressive organizations in the United States and sort of be part of the general political conversation. And what that meant in practical terms was they were very heavily involved in trying to organize labor, organize workers for better conditions, which in the 1930s was was a popular cause.
Nick Capodice: [00:05:49] Ethel Greenglass met Julius Rosenberg at a meeting of the Young Communist League in 1936 and Anne said that year is really important. [00:06:00]
Anne Sebba: [00:06:00] To me, 1936 is the touchstone when the world might have changed. And that, of course, is when Ethel and Julius both became communists. The only way to stop the dictators, Hitler, who had marched into the Rhineland, the Spanish Civil War, and Franco and Mussolini, they were all flexing their muscles. But also she'd lived through the Depression. She'd seen that capitalism hadn't worked. She thought the really must be another way.
Hannah McCarthy: [00:06:26] Since communism was explicitly tied to [00:06:30] another nation, the Soviet Union, was being a communist in and of itself considered something like a treasonous act?
Nick Capodice: [00:06:38] No, not at all. And interestingly, this is why Julius and Ethel are later convicted not of treason, but of conspiracy to commit espionage. Because as I'll get into, yes, Julius did become a spy for Russia, but he did so after Russia had become an ally in World War Two.
Hannah McCarthy: [00:06:57] Okay. So because the Constitution defines treason [00:07:00] as related to enemies giving enemies aid and comfort. Treason does not apply to Julius Rosenberg, right?
Nick Capodice: [00:07:07] Aid and comfort to an ally is not in our Constitution. And in 1941, the United States was trying really hard to convince people that Russia was an ally.
Anne Sebba: [00:07:16] There were a lot of rallies or propaganda films, and at that point, Russia became the brave ally of America and the world, and they were fighting the cause that we were all fighting against Hitler. [00:07:30] So. So there were these sort of yo yo swings and roundabout movements, if you like.
Archival: [00:07:36] And Russians are determined to hold at all costs. Perish, but do not retreat, is the order of every day.
Hannah McCarthy: [00:07:45] And you said Julius became a spy for the Russians.
Hannah McCarthy: [00:07:47] He did.
Nick Capodice: [00:07:47] What did he do for them?
Nick Capodice: [00:07:49] Well, we only know the extent of what Julius did. Thanks to the 1995 declassification and release of information about this counterintelligence program called VENONA [00:08:00] and VENONA revealed Julius was recruiting spies for the Soviet Union and giving them information.
Anne Sebba: [00:08:06] So these secret documents, the VENONA documents, of which there were thousands and thousands that the U.S. was deciphering decrypting, which revealed American agents passing information to the Soviet Union. And, of course, America was really scared. Again, I understand this existential [00:08:30] fear, because not only had Russia exploded a bomb in 1949 and the Americans thought that the Russians were years behind, they never expected them to have access to nuclear weapons.
Nick Capodice: [00:08:44] This is a crucial part of the Rosenberg story. Russia tested a nuclear bomb in August 1949, and everyone was like, How on earth did Russia get nukes? It must have been spies. People working on the Manhattan Project in Los Alamos, [00:09:00] New Mexico, where we designed our first atomic weapons. And the US government starts to arrest people suspected of giving nuclear secrets to the Soviet Union.
Jake Kobrick: [00:09:09] And there were seven people who were allegedly involved in this conspiracy. There were the Rosenbergs, there were the green glasses, Julius Rosenberg's in-laws, David and Ruth Greenglass. There was Morton Sobol, who was a friend of Julius and a fellow Communist. There was Harry Gold, who allegedly acted as a courier between the spies [00:09:30] and the Soviets. And then there was Anatoly Yakovlev, who was a Soviet official who was allegedly in charge of their atomic espionage program in the United States.
Anne Sebba: [00:09:41] Now, Julius was not at Los Alamos, but Ethel's brother, David Greenglass, had been at Los Alamos where they were making the bomb, the Manhattan Project. He was a lowly machinist. He didn't know anything, but clearly merely being there was enough to excite information. [00:10:00]
Jake Kobrick: [00:10:00] David was in New York. He was over at the the Rosenbergs apartment, I believe, and Julius tore a jello box in half and gave David and Ruth half of that Jell-O box. And he basically said, I'm going to send someone out to you. And the way you'll know that it's the person that I'm sending you is they're going to have the matching half of this box.
Hannah McCarthy: [00:10:19] A Jell-O box.
Nick Capodice: [00:10:20] That's some low tech spycraft.
Hannah McCarthy: [00:10:22] You know, low tech can be very effective.
Jake Kobrick: [00:10:23] There's a knock on their door. They open the door. A man allegedly says, I come from Julius. He has the [00:10:30] matching half of the box. They match him up. And that's how he knows this is the right person to give these stolen notes and sketches to about the atomic bomb.
Nick Capodice: [00:10:38] Ethel and Julius were arrested in 1950 under the charge of conspiracy to commit espionage.
Hannah McCarthy: [00:10:45] Now, Jake said there were seven people involved in the plot, so why do we only learn about the Rosenbergs? And so far, you haven't told me anything about Ethel's supposed role in all of this. What was she accused of doing?
Nick Capodice: [00:10:57] All right. We're going to get to Ethel, the trial and [00:11:00] everyone else involved right after this break.
Hannah McCarthy: [00:11:02] But first, just our weekly shout out that the most significant portion of our show's budget depends on listeners. Like you donate a buck or five at our website, civics101podcast.org, or just click on the link in the show notes.
Hannah McCarthy: [00:11:18] We're back. Ethel and Julius have been arrested. What happens next, Nick?
Nick Capodice: [00:11:22] So the government knows from these decoded VENONA documents, those again are the thousands of secret messages intercepted by the US. [00:11:30] The government knows that Julius was indeed a spy. He recruited agents for a spy ring and he gave the Soviet Union's secret documents. Here's Jake Kobrick again.
Jake Kobrick: [00:11:42] You know, he had code names and everything. They called him Antenna for a while. And then after that, they called him Liberal. The Greenglasses, by the way, they had they had code names as well. David Greenglass was Bumblebee for a while and then Caliber and Ruth Greenglass was Wasp. And Ethel Rosenberg did not have [00:12:00] a codename, which is pretty significant.
Hannah McCarthy: [00:12:02] So if Ethel didn't have a code name, does that mean she was not necessarily a spy?
Nick Capodice: [00:12:08] Ethel Rosenberg's actions and involvement here is like a big, wide, uncertain mark on this whole trial. To this day, we are not sure of the specificities of her involvement, and it's worth mentioning that there is a movement around her potential innocence. Her sons asked President Barack Obama to exonerate her of her crimes. Anne [00:12:30] Sebba told me that Ethel had been used as a lever. She was to be a tool to name other parties and confirm Julius's guilt, which would then lessen her sentence. But she didn't. She and Julius protested their innocence and did not name names of any coconspirators. Here's Anne again.
Anne Sebba: [00:12:50] Once these VENONA documents were deciphered, a man called Klaus Fuchs who was in England was arrested. He confessed. [00:13:00] He was a very clever physicist who really had given important information to the Russians. So Klaus Fuchs was arrested. He confessed. He was given 14 years and he named names. That's what everybody did. Klaus Fuchs named his courier Harry Gold. Harry Gold, who was a serial liar already in prison, named David and Ruth Greenglass, who were real spies. They passed information and given money. David and this is the critical point, named [00:13:30] only one name, Julius Rosenberg. If you read his grand jury statements, he did not name his sister, Ethel.
Nick Capodice: [00:13:41] In 2015. David Greenglass statement to the grand jury before the trial was released, and he said, Leave my sister Ethel out of it. She is not involved. However, at the trial itself, there were several prosecutors questioning David, including Roy Cohn. [00:14:00]
Archival: [00:14:00] One thing we have to understand at the outset is that the Communist Party is not a political party. It's a criminal conspiracy. Its object is it has been established by the verdict of a jury, the overthrow of the government of the United States.
Hannah McCarthy: [00:14:14] And for anyone out there who doesn't know Roy Cohn, he was a lawyer who would later serve as chief counsel to Senator Joseph McCarthy during the McCarthy hearings, which were about finding and outing communists and the lavender scare, which was about finding and outing members of the [00:14:30] gay community.
Nick Capodice: [00:14:30] And as an additional footnote, later in Cohn's life, he would serve as lawyer and long time mentor of a young real estate developer named Donald Trump. But back to the trial. They reenacted the scene with the Jell-O box. You can actually see the box they used in the trial at the National Archives. It was raspberry flavored, by the way. But a big turning point in the trial happens during Roy Cohn's examination of David Greenglass, where David reversed [00:15:00] what he had said about his sister Ethel.
Anne Sebba: [00:15:02] When he invented a different story and he perjured himself and suddenly said she did the typing.
Hannah McCarthy: [00:15:10] Typing? Typing up what?
Nick Capodice: [00:15:12] Typing up notes for Julius and David. And in the prosecution's closing statement, they said that Ethel, quote, sat at that typewriter and struck the keys blow by blow against her own country in the interests of the Soviets. Later, [00:15:30] when David Greenglass got out of jail, he admitted he had lied about the typewriter.
Anne Sebba: [00:15:36] In my view, it was such a clever lie, partly because it was known that Ethel was a typist, but partly because, don't forget, this is the 1950s and misogyny is absolutely dripping at every stage of this evidence. The only evidence, quote unquote, that the judge could use was that Ethel was older, two and [00:16:00] a half years older, than her husband. Therefore, she was obviously the senior partner in this crime unit. Again, no evidence. But but that's the attitude towards women. It was known that Ethel was clever, but a typewriter is something that all Americans could understand. Because if American women undertook work in the 1950s, it probably was that sort of secretarial work. So if you can't trust [00:16:30] that person who's doing your typing, who on earth can you trust? And Ethel was it was insinuated was a woman who couldn't be trusted.
Hannah McCarthy: [00:16:40] What exactly insinuated that she couldn't be trusted?
Nick Capodice: [00:16:43] Well, for one thing, she took the Fifth Amendment at her trial. She refused to say anything that would incriminate herself.
Anne Sebba: [00:16:50] So she was considered slippery because she wasn't telling the truth. Ethel somehow came to portray somebody who was responsible for [00:17:00] betraying all American womanhood that if if you allowed Ethel to get away with with what was conveyed as spying. Although I keep repeating, there's no evidence she actually partook of this. You would be somehow allowing all American womanhood to to be guilty.
Nick Capodice: [00:17:28] Julius and Ethel [00:17:30] Rosenberg were found guilty of conspiracy to commit espionage and were sentenced to death for their crimes. Roy Cohn would go on to say years later that the judge issued the death sentences on Cohn's personal recommendation. The US government offered to lessen their sentence if they just name names of coconspirators. But Julius and Ethel replied by saying, "By asking us to repudiate the truth of our innocence. The government admits its own [00:18:00] doubts concerning our guilt. We will not be coerced, even under pain of death, to bear false witness." David Greenglass then wrote to President Eisenhower to personally request their sentence be commuted to prison time. But that request was denied. Eisenhower wrote The execution of two human beings is a grave matter. But even graver is the thought of the millions of dead whose deaths may be directly attributable to what these spies have done.
Hannah McCarthy: [00:18:27] Now, there were other parties involved. Were none of them sentenced [00:18:30] to death as well?
Nick Capodice: [00:18:30] No they all served jail time and again. These are the only two people in U.S. history to be executed for espionage during peacetime.
Hannah McCarthy: [00:18:39] The only time as in it has not happened since then?
Nick Capodice: [00:18:42] The only time, has not happened as of this recording. It has not happened since then. And that execution was scheduled for June 17th, 1953. However, there's one last twist. And do you remember our episode on the Shadow docket?
Hannah McCarthy: [00:18:58] Yeah, of course. It's about the times that the [00:19:00] Supreme Court orders actions outside of their usual ruling.
Nick Capodice: [00:19:03] Yeah, there is a notable instance of that here. On the day the Rosenbergs were to be executed at Sing Sing Prison, Supreme Court Justice William Douglas issued a stay of execution. He put the whole thing on hold.
Hannah McCarthy: [00:19:16] What was his reasoning for that?
Nick Capodice: [00:19:18] Well, his reasoning was that while the judge, Irving Kaufman, had sentenced the Rosenbergs to death, the jury had not. And this conflicted with a ruling in another case in 1946, [00:19:30] which said a jury had to consent to a death sentence.
Hannah McCarthy: [00:19:33] So because of that precedent set, when Judge Kaufman sentenced them to death, but the jury didn't. This was grounds for Justice Douglas to pause their execution.
Nick Capodice: [00:19:42] Yes. And since this stay of execution was granted in the summer, it would be months until the Supreme Court was back in session and they could review the case.
Hannah McCarthy: [00:19:51] So did they delay it until the summer?
Nick Capodice: [00:19:53] They did not. Chief Justice Fred Vinson immediately convened the court out of session, and he stopped that stay of [00:20:00] execution. Justice Douglas faced impeachment proceedings because of this later, he was not removed. But this is a story for another day.
Archival: [00:20:08] Inside the stone walls of Sing, Sing Prison. The Rosenbergs wait all day for word of their fate. It's now more than two years since they were first sentenced to die for organizing atomic espionage for Russia.
Nick Capodice: [00:20:19] On June 18, at 8 p.m., Julius and Ethel Rosenberg were electrocuted. One reporter who was present at the execution described Ethel's death in extreme detail, [00:20:30] which I actually want to share here with our listeners. But frankly, it's a horrific description. So if there's anybody out there who doesn't feel like hearing about it, skip ahead a minute and 30 seconds.
Archival: [00:20:41] When it appeared that she had received enough electricity to kill an ordinary person and had received the exact amount that had killed her husband, the doctors went over and pulled down the cheap prison dress. A little dark green printed job. And [00:21:00] place the stethoscopes. I can say it. Place the stethoscopes to her and then looked around that looked at each other rather dumbfounded and seemed surprised that she was not dead, believing she was dead. The attendants had taken off the ghastly wrappings and electrodes and the black belts [00:21:30] and so forth. And these had to be readjusted again. And. And she was given more electricity, which started again, that kind of a ghastly plume of smoke that rose from her head and went up against the skylight overhead. After two more of those [00:22:00] jolts. Ethel Rosenberg had met her maker. She'll have a lot of explaining to do, too.
Hannah McCarthy: [00:22:12] What was the public's reaction to their death?
Nick Capodice: [00:22:15] It was divided, though, Anne told me that in a poll conducted prior to the execution, 70% of Americans felt Ethel Rosenberg should be killed for her crimes. And at the same time, others considered the two of them as martyrs. [00:22:30] 10,000 people waited outside their funeral services in Brooklyn, where their lawyer, Emanuel Bloch, said that America was living under the heel of a military dictator garbed in civilian attire.
Hannah McCarthy: [00:22:43] Nick, if we look at this case from a civics angle and what are we supposed to learn from the trial of Ethel and Julius Rosenberg?
Jake Kobrick: [00:22:51] We are always in a very interesting position at the FJC. We try not to be openly critical of the judiciary or [00:23:00] say anything that would cast the judiciary in a bad light. But at the same time, we don't shy away from acknowledging that the judiciary has made mistakes. You know, people were obviously when we talk about Dred Scott, we say obviously this was a terrible thing. You know, people in the years after the trial were very, very critical of Irving Kaufman's conduct. They they were critical of [00:23:30] of the death sentences. I mean, it really looks like he kind of got to swept up in this and too carried away. So, I mean, there's blame to go around. I mean, there's blame. I think probably more of the blame falls with the Justice Department. And I think we kind of rely on the judiciary to, I guess, de-escalate that passion. The judiciary is supposed to be a neutral arbiter between the prosecution and the defense. [00:24:00] And in this particular case, the judiciary failed in that task, I think.
Anne Sebba: [00:24:06] Of course, if you're looking at it through the prism of the trial, Ethel would never have been convicted today. I mean, the American Bar Association has had a rerun and there is so much that is not acceptable now. And it's quite clear from the letters I've had from lawyers how this is a shameful moment that they were prepared in [00:24:30] the fear of mob rule and the fear of communism, which, as I say, I do understand, to let the rights of one of their citizens be overruled because they felt it was for the greater good. And as far as I'm concerned, I can only repeat if my book is about one thing. It's about the importance of the rule of law. And God knows we need it more than ever today.
[00:25:08] [00:25:00]
Nick Capodice: [00:25:12] That's the story of the Rosenberg trial. Huge thanks to the American Bar Association for working with us on this series. If any of you are educators out there who want to teach this case in your classroom, there are some great resources provided by the Federal Judicial Center on our website, civics101podcast.org. This episode was made by me Nick [00:25:30] Capodice with you, Hannah McCarthy.
Hannah McCarthy: [00:25:31] Our staff includes Christina Phillips is our senior producer and Rebecca Lavoie our executive producer.
Nick Capodice: [00:25:37] Music in this episode by Bio Unit Blue Dot Sessions Ben Lesson Howard Harper Barnes Christian Andersen. Emily Sprague ProletR Scott Gratton Yung Kartz Jesse Gallagher and the great Chris Zabriskie.
Hannah McCarthy: [00:25:48] Civics 101 is a production of NHPR, New Hampshire Public Radio.