“Donovan,” Kahn reports, “was convinced that the state could lawfully conduct the warrantless arrest of Abel, hoping to turn him into a double agent for counterintelligence purposes, or it could prosecute him for the capital crime of espionage. But it could not do both.” Donovan argued that the FBI had plenty of time to get an arrest warrant and a search warrant. But the government wanted to grab Abel secretly; if its recruitment succeeded, his masters in Moscow would never know it had happened. So they used the INS—and its “administrative warrant”—as a way around the law.
Frankfurter, however, rejected Donovan’s interpretation. Abel’s arrest, he wrote, was merely an example of “rightful cooperation between two branches of a single Department of Justice.” The searches, then, were justified, and Abel’s conviction would stand.
In the principal dissent, Justice William Brennan, writing for himself, Chief Justice Earl Warren, and Justices Hugo Black and William O. Douglas, argued that a search of an individual’s property “on the authorization of one administrative official to another” should make the fruits of the search inadmissible in a criminal trial. Douglas, writing separately for himself and Black, dissented in a near-Scalian tone: “How much more convenient it is for the police to find a way around those specific requirements of the Fourth Amendment! What a hindrance it is to work laboriously through constitutional procedures! How much easier to go to another official in the same department!”
Abel—an implacable enemy of the United States at the height of the nuclear standoff—came remarkably close to succeeding. Donovan fought gamely for his client’s Fourth Amendment rights; he also convinced the district judge to spare Abel’s life on the grounds that he might be useful in a swap later. (In the film this is depicted as taking place in an improper secret talk with the judge, but in reality the argument was made in open court.) That happened, and five years later, Rudolf Abel walked across the Glienicke Bridge between Potsdam and East Berlin, where he was met by Soviet intelligence.
Bridge of Spies is the best picture of a good lawyer I have ever seen. As Donovan, Tom Hanks is both restrained and implacable. Donovan fought hard for Abel, and the case cost him dearly. “In fact,” Kahn told me, the film “might even have undersold how much of a political risk he took.” Donovan ran for Senate in 1962 and was beaten badly.
Mark Rylance is chillingly likable as a determined foe of the United States ready to die for the Soviet cause. Palermo has tried to get word to the actor that “he absolutely nailed the man I saw in court day after day for four months.”
The real Abel was a resourceful rogue who gave his captors nothing—not even his real name. In fact, his claim to be “Abel” was a final coup; when the arrest was announced, the name signaled the Soviets that the secrets of their spy ring had not been compromised. As Kahn reports, the West only learned his real name—William August Fisher—when American journalists visited Moscow’s Donskoi Cemetery in 1972 and found both names carved on “Rudolf Abel’s” tombstone.