With All Deliberate Speed: The Life of Philip Elman

9. Assignment in Germany

CHAPTER 9 Assignment in Germany ROOSEVELT DIED IN APRIL 1945 and Francis Biddle was replaced as attorney general by Tom C. Clark. That was a dark day in the Department of Justice. Paul Freund said to me that day when Clark was appointed that he now knew how it must have felt in the Department ofJustice when Harry Daugherty became attorney generaL Solicitor General Fahy did not get along with Tom Clark, who had been head of Antitrust Division. So when the war ended and General Lucius D. Clay was appointed deputy military governor of Germany, Fahy was asked by John McCloy to go with Clay to Germany as his legal advisor. Fahy jumped at the opportunity. And I was lucky enough to be asked by him to be his personal assistant, or glorified law clerk. So in June 1945 Fahy went to Germany accompanied by me; by J. Warren Madden, who had been chairman of the Labor Board when Fahy was its general counsel, and who was now judge of the Court of Claims, and who was going to Germany as associate director of the Legal Division of the military government; by Herman Phleger, senior partner in a very big law firm in San Francisco, Brobeck, Phleger and Harrison, and was also going as an associate director; and by James V. Bennett. Bennett was director of the Federal Bureau of Prisons and a very humane and enlightened man, and he was going to Germany to take over the running of the prison system there. We all flew to Frankfurt, where the headquarters of the military government had been established. I did all kinds ofodd jobs for Fahy, writing legal opinions without doing much research and a lot of other seatof -the-pants stuff. The Potsdam Conference was held in July of 1945. Truman, Winston Churchill, later Attlee, Joseph Stalin, Charles de 147 With All Deliberate Speed Gaulle were there. They agreed, among other things, that all Nazi influences should be removed from German society, and I got the job of being lawyer to the denazification program in the American zone. Let me give you the flavor of what it was like in those early days of the occupation. During the Potsdam Conference, Judge Madden and I were in Berlin as liaison officers to handle any legal problems Eisenhower or Clay had. It turned out that one of the provisions of the Potsdam agreement was that cartels and excessive concentrations of economic power should be abolished. This had been an American proposal, and Clay wanted to show the other allies that the United States was very serious about it. So I got a call when I was in Berlin from Fahy that Herman Phleger was coming up to Berlin and the two of us were to draft a law about cartels which Clay wanted to submit at the very first meeting of the Allied Control Council just a few days after the end of the conference. Phleger came up with nothing but yellow pads. We had no other materials to work with. Fortunately we were able somehow to locate a set of the United States Code, which at that time filled only one or two volumes, not like today. We turned to the Sherman Act and the Federal Trade Commission Act and started writing. Article I: "All cartels and excessive concentrations of power are hereby declared unlawful." Article 2: "To carry out the provisions of Article I, a Commission is hereby created." Article 3: "The Commission shall have following powers ..." All this was copied straight out of the Federal Trade Commission Act and the Sherman Act. We just lifted it all. When it came to definitions, we said that an "excessive concentration of power" is defined as any business or enterprise having assets of more than x reichmarks or annual income of more than x reichmarks. We sent this draft out to Fahy, who had to clear it with other bureau directors, including General William H. Draper, who had been with Dillon Reed and was in charge of the Economics Bureau. Draper and his people thought our draft was a joke, which I suppose it was, but that didn't prevent him from presenting it to the Allied Control Council. None of the other powers took it very seriously. The Russians, of course, were not interested in doing anything about cartels in other Assignment in Germany 149 zones...