The replies of those engineers I mentioned became available on December 31 and January 1, and they indicated a complete lack of foundation for Arthur Morgan's charges of irregularity. I think these memoranda should be made a part of the record. The pages are 353, 354, 355, 356, and 357. Mr. BIDDLE. I offer those in evidence. (Whereupon, documents above referred to were received in evidence and marked "Exhibit No. 60.") Mr. FLY. On December 30, Mr. Morgan replied to my memorandum of December 29, in which I had asked for particulars, with a wholly unsatisfactory memorandum to me, describing in general terms but not specifically the irregularities which he had previously suggested, without identification of the personalities involved. This memorandum was critical in nature; it offered neither any suggestions for the improvement of the testimony nor any evidence or support for his imputations. Mr. BIDDLE. Have you got that here? Mr. FLY. That is set forth in my memorandum of December 29 and his of December 30, on pages 344 and 359 of the exhibits. Mr. BIDDLE. I offer the exhibit at page 344. The exhibit at page 359 has already been offered. (Whereupon, document above referred to was received in evidence and marked "Exhibit No. 61.") Mr. FLY. It will be noted that Dr. Morgan chose to ignore quite entirely the major inquiry which I had made, further made the complaint that the inquiry which had been made of the engineers was a form of strategy to alienate the affections of the engineers. He ignored entirely the problem of the duty to the court or of justice to counsel. Despite the other burdens of the case that were pressing at that time, I felt impelled to wire him again January 1, asking if he had any suggestions for the conduct of the case or any criticisms of the testimony. That telegram is at page 361 of the exhibits, and reads as follows: My memorandum of December 29 requested your suggestions regarding testimony in the case. Your memorandum dated December 30 just received states that at time of receipt of my memorandum of December 20 you had no further specific recommendations to make. Am I correct in assuming that you have no suggestions or recommendations regarding testimony to complete our case? Must have immediate response in view of fact that presentation of our proof resumes Monday January 3 and will be completed promptly. Mr. Morgan's reply was of the consistent pattern under which he had felt free to make the gravest criticisms, and at the same time to assert an entire lack of information. Here is his telegram: Retel. In view of my limited connection with the case I am not in a position to make further recommendations concerning its conduct. That is on page 361 of the record of exhibits. The meetings which Mr. O'Brian and I had had with Mr. Morgan in November had indicated that his state of mind was so obsessed with his personal grievances that his judgment was warped. I literally did not know how far Arthur Morgan would go in that frame of mind. Only a few days prior to that, and as I remember just after making a speech to the Knoxville Technical Society of Engineers, advising them as to their relations with attorneys, and warning them against presenting improper testimony, and being honest, he walked right from there and into the hearings of the Berry Condemnation case, and without the consent of the Board and over the objection of the Authority's counsel, crashed the gate, and appeared as a witness. Under these circumstances his conduct in the constitutional litigation was utterly unpredictable. Dr. Morgan not having clarified the matter, again on January 3, I wrote him The grave effect your attacks tend to have in disrupting relations between the attorneys and the engineers cannot be overlooked. The cooperation and mutual respect between the attorneys and the engineers is essential to the proper presentation of this case, upon which depend the existence of the Authority and, perhaps, the future of the conservation movement. Your reckless activities in connection with the case, particularly in the critical recent weeks have created situations which have occupied the time and energy of my associates and myself when it was vital to the Authority's case that we be free to give all our efforts to the trial itself. I need hardly say that the work of presenting this complicated case is more than a full-time job for every attorney and engineer engaged in the task. You must be aware that this litigation has put us all under a great and continuing strain. For months we have driven ourselves to the utmost. Attacks from sources within, as well as from without, can only add to our burden and risk taxing us beyond our endurance. It is imperative that we be free from unwarranted personal attacks and interference from within the organization. My personal and professional concern in this matter is obvious. But I also have a further and heavy responsibility toward my associates. I have been informed of the discussion respecting this matter at the board meeting today. I have read the accounts of a proposal for a congressional investigation. I want to make it clear that neither can be a substitute for the direct action from you correcting the injustice that has been done. That is pages 363 to 368 of the exhibits. But on that same day, apparently, Dr. Morgan was writing me a memorandum. They crossed in the mails. He further asserted that he was not in a position to offer any suggestion. That is set out at pages 370 to 371. Mr. BIDDLE. I offer this in evidence. (Whereupon document above referred to was received in evidence and marked "Exhibit No. 62.") Mr. BIDDLE. And the memorandum referred to on page 363. (Whereupon document above referred to was received in evidence and marked "Exhibit No. 63.") Mr. BIDDLE. That is the memorandum of Dr. Morgan and Mr. Fly's memorandum. Mr. FLY. Dr. Morgan concluded that memorandum as follows: Because our recent memoranda have been critical, I will add that in general the thoroughness and skill of preparation of our attorneys and engineers has seemed to me to be markedly superior to that of the opposition. Also, his general theory of the case as stated to me by Mr. O'Brian-that major emphasis should be placed on the broad constitutional question of the right of the Government to secure the other economies and benefits which naturally can be associated with navigation and flood control-has my full approval. There is a postscript that was dictated before the Board meeting of January 3. This was, of course, high commendation from Arthur Morgan, but he still left us in the dark as to the specific facts which he thought justified the conduct which was causing us so much concern. I finally reported the entire matter to the Board of Directors on January 4. Records of the meeting are contained in the exhibits, with reference to the Board, on page 372. Records of the meeting are contained in the exhibit beginning at about page 376 and continuing through page 410. Mr. BIDDLE. I offer the memorandum of January 4, 1937, page 372. (Whereupon document above referred to was received in evidence and marked "Exhibit No. 64.") Mr. BIDDLE. The proposed minute entry is next, is it? Mr. FLY. There is a group of documents there, Mr. Biddle, beginning at page 376. That is correct. Mr. BIDDLE. I offer the proposed minute entry appearing on page 376, volume 2. (Whereupon document above referred to was received in evidence and marked "Exhibit No. 65.") Mr. FLY. And then material pertaining to the Board meeting on page 382. Mr. BIDDLE. The call of the meeting on page 382 of volume 2. (Whereupon document above referred to was received in evidence and marked "Exhibit No. 66.") Mr. BIDDLE. The matter appearing on page 383 of volume 2. (Whereupon document above referred to was received in evidence and marked "Exhibit No. 67.") Mr. BIDDLE. Memorandum on page 384 dated January 5, 1938. (Whereupon document above referred to was received in evidence and marked "Exhibit No. 68.") Mr. BIDDLE. And page 385, memorandum. (Whereupon document above referred to was received in evidence and marked "Exhibit No. 69.") Mr. BIDDLE. Mr. Forest Allen's notes, dated January 5, 1938, page 386. (Whereupon document above referred to was received in evidence and marked "Exhibit No. 70.") Mr. FLY. Through 388. Mr. BIDDLE. The matter appearing on page 388, volume 2. (Whereupon document above referred to was received in evidence and marked "Exhibit No. 71.") Mr. BIDDLE. The transcript of the Board meeting of January 5, 1938, appearing on page 389 and following. (Whereupon document above referred to was received in evidence and marked "Exhibit No. 72.") Mr. BIDDLE. The transcript of the Board meeting dated January 7, 1938, appearing at page 392, volume 2. (Whereupon document above referred to was received in evidence and marked "Exhibit No. 73.") Mr. BIDDLE. The transcript taken at the Board meeting of January 5, 1938, beginning at page 393 of volume 2. (Whereupon document above referred to was received in evidence and marked "Exhibit No. 74.") Mr. FLY. Now, at that stage of the case, despite the grave embarrassment involved, it seemed necessary to broaden my own inquiry, Dr. Morgan refusing to give me information whereby the inquiry might be isolated and emphasized at the points where it would be per tinent, I felt compelled to write to every witness, whether or not he was a Tennessee Valley Authority employee, and to every man who had been seriously considered as a witness, asking each of them as to his relations to the attorneys and to the case, and to the proposed testimony. Now, again here, Mr. Chairman and Mr. Counsel, the exchanges of correspondence with those various witnesses is rather voluminous. They are all quite pertinent, however, to show the steps that I took to clear that record. Mr. BIDDLE. What pages do you refer to? Mr. FLY. Well, it will take 5 or 10 minutes to get them all. Mr. BIDDLE. Supposing you get them afterward? Mr. FLY. Suppose I identify them later. All of those communications with the various witnesses and prospective witnesses I should like to be included. I ought to add here that Mr. Wiersema, who testified here, was never considered as a witness. Mr. Monroe perhaps had preliminary consideration at first, but not during the latter stages, particularly because he was next senior to Mr. Woodward in the water control department, and he was left to carry on the administrative functions of the department. I need not mention the situation regarding Mr. Foster's proposed testimony. I thoroughly agree with what Mr. O'Brian said. We could not spend hours going into a lot of details, as to the details of terminals. For that reason, and that reason alone, his very useful study and his testimony which he submitted himself, which we were in complete agreement with, was not put on, and he was not put on the stand, and I may say there was never any problem in connection with Mr. Foster's situation. Finally, on January 9, Mr. O'Brian wrote Arthur Morgan further, asking him to withdraw his charges or at least to clarify them, but that again was unavailing. That letter, I believe, has been introduced, sir. Mr. BIDDLE. Yes, it has been read. Mr. FLY. Now, I should like to make some comment on some specific phases. Dr. Morgan indicated on the witness stand that we were a bunch of hard-boiled lawyers, and that we ought to ignore a thing like this, not pay any attention to it. He seemed even until last week not to have appreciated what he was talking about when he talked about false and misleading testimony and professional integrity and that sort of thing. So far as I am concerned I cannot conceive of any member of the bar in reputable standing being hard-boiled enough to ignore that situation. He further suggested that he had not said anything to anybody about it. Of course he had written those memoranda through his own secretarial staff and through mine and Mr. O'Brian's. He had written to Mr. Chandler. Beginning with Mr. Sargent away back on October 15, he had talked to the engineers and complained to them, although he asserted lack of knowledge, he still complained to them and cautioned them specifically. I mentioned the speech before the Knoxville Technical Society, on, I believe December 20 of last year, where he stressed the very points which he laid down in the memorandum to Mr. Chandler. That is a society with wide membership, outside engineers, T. V. A. engineers, and other technical professional men. And then behind our backs, he continued the inquiries, drawing in these different engineers that have been mentioned here, and who have testified here, inquiring into the conduct of the case, and if you please, sir, he called in Mr. Foster after the case was closed, after the event, in the blind hope of stumbling upon something which he could bring in before this committee and justify the charges and the conduct of a month or two previous. Right upon the eve of this hearing, he is demanding copies of that record. One might well inquire as to what basis he had for the memoranda when he wrote them. May I mention briefly the situation of one witness who has not appeared here, but as to whom the record is entirely clear? In his memorandum of November 8 to me, and I believe that has been introduced, Mr. Counsel, that is the first memorandum. Mr. BIDDLE. What page is it? Mr. FLY. It is on page 216, I believe, 217 of the exhibits; Arthur Morgan to Mr. Fly, dated November 8, 1937. Mr. BIDDLE. If not, I will offer it, Mr. Stenographer. I don't remember it being introduced. November 8, 1937, page 217. (Whereupon, document above referred to was received in evidence and marked "Exhibit No. 75.") Mr. FLY. There Dr. Morgan said: On one occasion an outside engineer, who was being prepared as a witness, came to me in great perturbation, saying that the position he was being asked to take was strikingly at variance with the recognized facts, and asked me what I thought he should do. That is a grave charge, if true. I told him that I thought he had experience and information of great value to the T. V. A. case, and that if asked for it, he should contribute his full, legitimate value, but that he should not stultify himself. So far as I know, that is the only conversation concerning the case I have had with any person who is to be a witness. Note that he repeated this charge in the memorandum to me on December 30, page 359 of this transcript, I believe. Mr. BIDDLE. Page 359? Mr. FLY. Yes. Mr. BIDDLE. That is in evidence. Mr. FLY. There, he again states, regarding Mr. Sargent: Within a short period of time before my memorandum of December 14, one of the T. V. A. consulting engineers came to me of his own initiative and said that he was much concerned over the testimony wanted from him in the nineteen power company suit. After going over the situation with him in some detail, my advice to him was that he had certain perfectly proper evidence which might be very helpful to the T. V. A. in the case. I advised him not to withdraw from the case, but that he would do well to limit his testimony to the matters concerning which he could testify with conviction. He did testify before I received your memorandum of December 20, and so far as I know, his testimony was suitable and proper. Mr. BIDDLE. Who was that? Mr. FLY. That is Sargent again. |