Numbers appearing in square brackets (ex. ) within the transcript indicate the pagination in the original, hardcopy version of the oral history interview.
Opened August, 1972
Oral History Interview with
June 22, 1972
by Jerry N. Hess
HESS: For the record, sir, will you give me a little of your personal background?
GARDNER: Yes, I was born in 1909 in Richmond, Indiana. My family moved about a great deal during my youth, ending up in New York City and New Rochelle, New York. I went to Westtown School, a Quaker preparatory school in Pennsylvania for five years, and then to Swarthmore College, graduating in 1930. To escape unemployment I took graduate work on a fellowship at Rutgers University, receiving a Master of Arts Degree in 1931. From there I went to Columbia Law School, graduating in 1934.
There followed about thirteen years of Government service, starting with one year as law clerk to then Justice [Harlan Fiske] Stone on the Supreme Court; then about six years in the office of the Solicitor General at the Department of Justice, where I was an attorney and then first assistant to the Solicitor General. I served under three: Stanley Reed, Robert Jackson and Francis Biddle, and very briefly under Charles Fahy.
I went to the Labor Department as Solicitor in the fall, I believe, of 1941, and I was there for about nine months and went over to Interior Department as Solicitor under Mr. [Harold] Ickes, where I was on duty for about a year, and then entered the intelligence service of the Army where I served for two years. During that period I was trained at Camp Richey and the Pentagon, and then assigned to the British intelligence group which was working in the Midlands in England, and by them reassigned in the summer of 1944 to the 5th Army group, under the command of General [Jacob Loucks] Devers. I was his intelligence officer in respect to the specialized intelligence which the British were producing. At the conclusion of the European hostilities I came back to the Pentagon, and as it was evident to me that I would never learn enough about the Japanese army to be of any use to anyone, I did nothing for the summer and returned to the Interior Department, again as Solicitor, about October the 1st of 1946. I found some of the same problems on my desk that I had left two years before.
HESS: They were waiting for you.
GARDNER: Yes. I resumed service as Solicitor to Mr. Ickes. No, I believe it was in 1945 when I came back to the Interior Department. I resumed service with Mr. Ickes until his somewhat tempestuous resignation as Secretary of the Interior and became Assistant Secretary under Julius Krug who succeeded Mr. Ickes, and stayed in that position until July of 1947 when I left and came to what is now Shea and Gardner, where I've been ever since.
HESS: All right, now moving back, you mentioned the names of four very interesting men who were Solicitors General: Stanley Reed, Robert Jackson, Francis Biddle and Charles Fahy. Would you tell me a little about those four men and if you were called upon to rate them at the job of Solicitor General, their administrative ability, etc., how would you rate them?
GARDNER: The first position is very easy. Robert Jackson, who was by all odds the most satisfactory man that I have worked for. I was, I believe, his first assistant from the start or shortly after he came in, and we had an extraordinarily satisfactory working relation from my viewpoint. He left the day-to-day conduct of the office to me without interfering; and yet whenever I
needed help, as regularly a couple of times a week I would, he was available and invariably helpful. Beyond that, he was a distinguished advocate, an outstanding lawyer all told, and my period with him was, as I say, quite the most satisfactory that I've had with any superior.
HESS: Did you ever have any conversations with him in later years about his duties at Nuremberg and the Nuremberg trials?
GARDNER: No, we were never close personally, and I am by no means clear that I even saw him after his return from Nuremberg. It was also a matter of some delicacy. If I did see him I wouldn't have mentioned it. My partner, Francis Shea had been over there as his first assistant, and had left for reasons which he has never mentioned.
HESS: And about which you have not inquired.
GARDNER: And as to which I have not inquired.
On Nuremberg, I should say that immediately after V-E Day, I began working very hard to get back to the United States, and I got as far as London by the first of June. I was told that Jackson was searching for
me for his Nuremberg staff, which was the last thing in the world that I wanted to do, and I hid out in London leaving word where I could be found if the Air Force called me, but no one else.
HESS: Why didn't you want to become involved in that matter?
GARDNER: I had been away from home for eighteen months was the primary reason. Second, I was by no means clear that I approved and I certainly was not enthusiastic about the conduct
HESS: About the war crimes trials? What is your view today?
GARDNER: It's about the same. It's a very dubious undertaking to make the law after the crime has been committed. In a way, it's rather worse to do it with a panoply of procedural rights and protections in due process than it would be by summary execution, which you put aside as military excess, and it didn't affect the structure of the law to the extent that papering it over with perfectly evident laws, but nonetheless made after the event.
In any case, as I was on the way back, I finally got a seat on the plane going out of Prestwick and I boarded a plane in London to go up to Prestwick. I
saw an empty seat and noticed there was a man in civilian dress, and thought very little of it and sat down next to him. After awhile I looked up and it was Robert Jackson whom I had been hiding out from. He was, however, very considerate and I explained that I'd been away from home long enough, and he canceled the request he'd put in with my superiors in the Pentagon. So I never saw any part of Nuremberg.
HESS: How would you rate the other three gentlemen: Mr. Reed, Biddle and Fahy?
GARDNER: Reed is a very solid lawyer, a very careful workman. He wasn't a brilliant advocate, but was to my mind a very good and satisfactory man to work for.
Mr. Biddle was a completely charming man to work for. Perhaps his essence is best caught in one episode. One of our duties in the Solicitor General's office was to authorize appeals, when the Government lost a case in the district court. The Post Office had lost a case in which they banned from the mail a nudist magazine, and they had been enjoined in the district court and wished to take an appeal. I said that they couldn't and they demanded an interview with the Solicitor General before a final decision was reached, and I
said, "Certainly." We set up an interview in which about eight people from the Post Office came over and explained that Mr. Biddle's young man did not wish to authorize an appeal here. They handed him the nudist magazine in question. For a good fifteen minutes he looked at it, turning over page by page, skipping none, and at the conclusion announced his judgment, which was, "They're pretty little girls, aren't they?"
The Post Office Department left, and I believe has never since taken an appeal from the young man in the Solicitor General's office.
They were all very capable men and it was a privilege to work for each of them.
HESS: Any comments about Mr. Fahy?
GARDNER: I didn't work with him long enough to have any very clear notion. He did not carry on the tradition of Messrs. Jackson and Biddle of allowing the first assistant to run the office.
HESS: He ran it himself?
GARDNER: He ran it himself, and ran it well. It was nevertheless a somewhat less interesting job after a working Solicitor General arrived on the scene, and accordingly
when Miss Perkins asked me to be her Solicitor, I said, "Yes," and went over to the Labor Department for about nine months.
HESS: What are your reminiscences, recollections, about Madame Perkins?
GARDNER: She was a highly intelligent woman, very committed to social improvement. By the time I got to her she had been in Washington as Secretary of Labor for, it must have been nine years, and had been kicked around quite a bit, particularly by the Congress. It had the effect by the time I was there of making her somewhat timid about causing controversy, and with that attitude she was less effective than I think she had been in her earlier years. Personally, I had the highest regard for her.
HESS: And in 1942 you changed over from Solicitor of the Labor Department to a similar position with the Interior Department. What brought about that switch?
GARDNER: The man who had been Solicitor of the Interior Department for many years, Nathan Margold, had, I believe, been appointed to one of the inferior courts in the District and they needed a Solicitor. Abe