Herbert Marks

Herbert Marks was J. Robert Oppenheimer’s friend and attorney, and a former member of the Atomic Energy Commission’s legal staff. Across investigations into Oppenheimer’s political associations and the later security-clearance case, Marks tried to limit the damage that official proceedings could do to his client. His work ranged from demanding a record of questioning to lobbying senior officials, assembling a defense, and challenging the unequal access to classified evidence that shaped the hearing.

Legal Role and Early Interrogations

In an interview with two Senate Judiciary Committee investigators, Oppenheimer was questioned about allegations that he had hosted a Communist Party meeting at his Berkeley home in July 1941. Marks attended as his attorney. When he saw the investigators taking notes, he interrupted to request a copy of their record. They refused. Marks then made the terms of continued questioning explicit: “we would want a transcript.” The interview ended after twenty minutes. To Marks and Oppenheimer, the encounter showed that the allegations had not been laid to rest.

In May 1952, the Justice Department brought Oppenheimer to Washington and arranged for him to be confronted with Paul Crouch, who accused him of attending a Communist meeting. Marks and Joseph Volpe questioned Crouch about whether he remembered Oppenheimer’s appearance in 1941. Crouch said he looked much the same, although he allowed that Oppenheimer’s hair might have been shorter. The difference mattered: in 1941 Oppenheimer had worn it long and bushy, while by 1952 he had a very short, almost crew-cut style. Crouch also described the interior of Oppenheimer’s home and claimed to have seen him at a housewarming party. Oppenheimer remembered dancing with a Japanese girl at a party that might have been the same gathering, but afterward again said he had no recollection of ever meeting Crouch.

Three days after the confrontation, Weinberg was indicted, but the indictment did not mention Oppenheimer, Crouch, or the alleged Kenilworth meeting. Marks and Volpe had lobbied the Justice Department through Atomic Energy Commission chairman Gordon Dean to leave the incident out. That reprieve did not end the threat. When Weinberg’s perjury trial approached, Oppenheimer risked being called as a witness, and Marks again sought to keep him out of the proceedings. The stakes were larger than the immediate embarrassment: his lawyers feared that a conviction of Weinberg might help clear the way for an indictment of Oppenheimer.

Keeping Oppenheimer Out of the Weinberg Trial

The prospect of Oppenheimer testifying became more pressing after Dwight Eisenhower’s election. In November 1952, a Justice Department official told Volpe, “Oppie will have to be brought into it.” Oppenheimer was subpoenaed as a defense witness, and his lawyers argued that making him a central figure in the case would bring him grief and damage his standing. They also warned that suspicion directed at figures such as Oppenheimer could serve Soviet interests.

Marks and Volpe continued their efforts as the trial neared. In late January 1953, they approached Dean again, asking whether the question could be considered at a higher level. Oppenheimer went to Washington in case he had to testify. On February 27, however, the Justice Department agreed to drop the part of the indictment concerning the Kenilworth meeting. Oppenheimer was told he probably would not have to appear, and took the train home that evening. Marks’s strategy had helped avert a public confrontation, though the allegations and the possibility of further proceedings remained in the background.

The December 1953 Confrontation

As the Atomic Energy Commission prepared to suspend Oppenheimer’s security clearance, Marks tried to intervene before the decisive meeting. On December 21, 1953, he arrived at Lewis Strauss’s office and said that the Senate Jenner Internal Security Subcommittee was proposing to investigate Oppenheimer. Marks read Strauss a headline from a 1950 New York Times clipping, “Nixon Champions Dr. Oppenheimer,” and suggested that an investigation could embarrass Richard Nixon, then vice president. Marks said he had not spoken with Oppenheimer since before Oppenheimer left for Europe, and that Oppenheimer did not know about his warning. Strauss suspected that Marks was attempting “a polite form of blackmail”; that was Strauss’s interpretation of the encounter, not an established account of Marks’s purpose.

Later that afternoon, Strauss told Oppenheimer about the meeting. Oppenheimer expressed surprise and said he knew nothing of the subcommittee’s plans. The exchange placed Marks in an awkward position: he had approached the official who controlled the case with information intended to affect the decision, while his client was apparently unaware of the intervention. The next phase was no longer an effort to keep an allegation out of a criminal trial; it was a formal contest over Oppenheimer’s continued access to classified information.

Building the Security-Hearing Defense

After the Atomic Energy Commission issued its charges, Marks and Oppenheimer had to assemble a legal team under a thirty-day response deadline. Marks favored a distinguished lawyer with political connections; Volpe urged them to find an experienced trial lawyer. John Lord O’Brian was considered but withdrew for health reasons. John W. Davis was willing to take the case only if the hearing were held in New York City, a condition Strauss ensured would not be met. Marks and Oppenheimer eventually turned to Lloyd K. Garrison, whom Oppenheimer knew as a trustee of the Institute for Advanced Study and whose manner he liked.

Garrison obtained an extension of the response deadline and became lead counsel by default, despite the team’s concern that he lacked trial experience. Marks remained closely involved. The procedural imbalance soon became clear: Strauss denied Marks a security clearance, although Marks had formerly worked on the Atomic Energy Commission’s legal staff. Garrison took the position that either the entire defense team should receive clearance or none of it should; he would later regret that choice and unsuccessfully try to reverse it.

The disadvantage extended beyond the lawyers’ inability to review material. The hearing-board members were to spend a week studying raw FBI files on Oppenheimer, with the government’s attorney available to guide them through derogatory information. Garrison was denied permission to attend that briefing and was also unable to obtain emergency clearance to read the same material. In this process, Marks’s exclusion was part of a wider disparity between what the board could examine and what the defense could see.

The Decision to Fight

In late February 1954, Isidor Rabi proposed a compromise: withdraw the formal charges, restore Oppenheimer’s suspended clearance, and allow him to resign his Atomic Energy Commission consultancy. On March 2, Marks and Garrison went to Strauss’s office and confirmed that Oppenheimer would accept the arrangement. Strauss rejected it, insisting that the case should go before a hearing board; he said that a written resignation would receive further consideration. Marks and Garrison later called Oppenheimer and decided instead to contest the case.

Oppenheimer’s response, delivered on March 5, took the form of a forty-two-page autobiography. Marks’s part in the case thus moved from trying to prevent Oppenheimer’s appearance in a criminal proceeding to helping him answer a formal challenge to his loyalty and professional judgment. His interventions could not control the process or guarantee a fair balance of information, but they repeatedly shaped how Oppenheimer confronted it: through legal objections, negotiation, and finally a written defense prepared for a hearing that the attempted compromise had failed to prevent.