Letter to Marilyn Henry concerning the return of 'Portrait of Wally' by Egon Schiele

Note: This letter was sent to the late Marilyn Henry in an effort to articulate complicated thoughts pertaining to the unsettling resolution of a decades-old battle to recover the 'Portrait of Wally' by Egon Schiele from the clutches of Mr. and Mrs. Leopold.  It constitutes mostly an attempt to sort out conflicting emotions and to restore a semblance of historical truth to an international story of racially-motivated theft, punctuated by a half-century of injustice towards a Viennese family whose sole crime was to be Jewish.

August 17, 2010

Dear Marilyn:

I debated even writing this note regarding the return of Wally to Vienna—the scene of the crime, as it were.

The ceremony on July 29 was emotional. After all, we did wait for 12 years to see a case closed that, had cooler, pragmatic, and ethical heads prevailed, would have been resolved a long time ago.

But, there were none of the above at the time of the ‘event’, the seizure of Wally at the Museum of Modern Art on that fateful Wednesday afternoon, in early January, on the eve of its planned departure for Europe. Had Wally left the United States, there would have been nothing to discuss, no strategies to implement. More to the point, there would have been no restitution law in Austria, of the kind that we now see today being implemented, albeit in a limited way, but in a more efficient manner than in most other countries that boast similar laws.

Indeed, not only would there have been no restitution law in Austria, but Randy Schonberg would not have recovered Maria Altmann’s fabled Klimt paintings which set astronomically high records at auction. Randy would still be wondering exactly how to approach the Austrian government and would be haunting the halls of the State Department looking for someone with enough spine to go and rattle a diplomatic saber at an indifferent Austrian government.

Worst of all, Dr. Leopold and his wife would continue to enjoy in apparent indifference to the suffering of Holocaust victims and their families, the pride and joy of their collection—so many Schieles with provenances that would make one’s hair raise on one end, to defy logic—in an unholy alliance with the Austrian government’s representatives on the board of the Leopold Foundation.

And, yet, most of the above did not come to roost because Wally did not go home in January 1998, as it was supposed to like an obedient child whose estranged biological relatives were clamoring to keep it in the US so that they could have their day in court and assert their rights to it.

I made the mistake of sitting in the same row as Frau Leopold and her coterie of dowagers. She snickered through the entire ceremony not four seats away from me. The same woman who together with her late husband, Dr. Leopold, prevented the Bondi family for more than 12 years from recovering Wally, on legal, moral and ethical grounds with the Anschluss and the Holocaust as the historical backdrop.

On July 29, my stomach turned while I saw the glitterati of New York City and of our own Federal government fawning over Frau Leopold, she who kept justice at bay for 12 years. Some might say that the time had come for reconciliation. Well, perhaps, we should just shake hands with former war criminals and collaborators and call it a day. Let bygones be bygones, right? After all, what is done is done, and so we should all move on. America loves stories of redemption, but they should not apply to the Holocaust.

My two heroes on the 29th of July were Andre Bondi and Robert Morgenthau. Andre because of his steadfastness and his family’s persistence in seeking what was rightfully theirs, in the face of total indifference to their cause in the late 1990s, except for one small group of irreverent folks based in Washington, DC. Those who comprise the Holocaust Art Restitution Project or HARP.

More on that later…

Robert Morgenthau will always remain an outsized mensch in my personal pantheon of individuals to look up to, true mensches. He inherited the best genes in the world, those of his father, Henry Morgenthau, one of the few in Franklin Delano Rooselvelt’s cabinet who stood up in explicit terms against National Socialism and Fascism when it was not fashionable to do so. Decades later, Robert stood up against the American museum establishment, the art world, complacent Jewish organizations, and a meek, passive Federal bureaucracy, more interested in accommodating America’s allies than standing up for a single citizen over a single painting that turned out to be property stolen during the Holocaust. Robert did the right thing. What he called a Hail Mary pass, was actually a calculated moment that did not come out of left field , but the outcome of a thoroughly well-rehearsed strategy that would not have been put into motion, had everyone else done their job to safeguard Wally and the rights of American citizens like the Bondi’s.

First off, the Departments of State and Commerce who, instead of considering the possibility that the Bondi Affair was worthy of note and thinking a bit harder about the implications of an inquiry with the Austrian government over property looted during the Holocaust, whose true owners are American citizens, chose to place the overarching national interests of the United States over those of its citizens. Granted, the logic is well entrenched in customary international law, but such logic has been mercilessly applied as a foil against Holocaust victims seeking redress since the late 1940s. In other words, the Federal government was simply being consistent with its stated policy not to intercede on behalf of Holocaust victims and their families in a forceful and meaningful manner.

While State and Commerce were not willing to modulate what was fast becoming an international incident, the Senate Banking committee leadership, under Senator D’Amato, had voiced its concern over the fate of Wally and contemplated some drastic action that would require the painting to remain in the US until its provenance could be sorted out in the interest of justice for Holocaust victims and their families. There too, the will to act quickly vanished, presumably under pressure from some unnamed notables close to the Museum of Modern Art and who also bankroll the World Jewish Congress. With State, Commerce, and the Senate Banking Committee running for cover, there was no one left to support the Bondis in their plea to keep the painting in the United States, at least long enough so that their side of the story could be heard in a fair and objective manner.

Except for HARP. Founded by Willi Korte, Ori Soltes, then director of the Klutznick Museum at B’nai B’rith in Washington, DC, and myself in September 1997, HARP’s mission was and continues to be to document the historical cultural losses suffered by Jewish owners during the 12 year reign of the Nazis. The Bondis had contacted Willi Korte and asked him to dig up the historical documentation surrounding the illegal seizure of Wally by Friedrich Welz and its subsequent wartime and postwar fate, which landed it in the hands of Dr. Leopold. Willi then turned to HARP for assistance and asked HARP to use whatever means possible to create sufficient pressure to keep the painting in the US.

Meanwhile, in late December 1997, Judith Dobrzinsky wrote a lengthy article for the New York Times on the Schiele exhibit and the brewing controversy surrounding Wally and another painting, Night City III, which was being claimed by the Reifs. However, in the same article, Judith also wondered whether venality had played a role in the Bondis’ decision to seek the return of Wally since they knew that the painting was then worth an estimated 2 million dollars.

With that type of adverse publicity, the Bondis had very few people to whom they could turn. Certainly no one in the Federal and legislative branches were willing to assist them. Jewish groups were pretending that they didn’t exist. And what was a District Attorney of Manhattan to do?

HARP, in the mean time, was seeking an accommodation with MOMA, a middle ground which would form the basis for a dialogue over the fate of the painting, as long as they could remain in the US. The general counsel of the Museum of Modern Art issued a terse rebuff—the reply to HARP’s request for dialogue and postponement of the shipment of Wally to Europe was: “Come and sue us if you want to prevent the painting from leaving. You have until Thursday.” Or something to that effect.

Without the painting in hand on US territory, the Bondis had no case. Fortunately, there were a number of legal issues that surrounded the Schiele exhibit’s hasty entry into the United States. Those legal issues provided a minimal opening for the District Attorney’s office to contemplate an aggressive move against MOMA to secure the painting and protect the rights of the Bondis on the suspicion that the painting might in fact be stolen property.

But the District Attorney’s office could not consider any form of drastic action against MOMA. It waited for the federal government to act. On the Monday preceding the expected departure of the painting, the Federal and legislative branches pulled their pins out of the game. Morgenthau was truly alone. But he was ready, whether he admits it or not, to launch his action.

And so, Robert did what he normally does, but which stood out as an outrageous exercise of bravura against the caste of Brahmins, symbolized by the tier one museums of New York and their friends and sycophants and followers and admirers. It was more like the 7th Cavalry charging when all hope had faded. As he explained it to us—Willi, Ori, and I—he doesn’t tolerate stolen property in his jurisdiction, especially if it is tainted by crimes against humanity.

Wally was saved. All hell broke loose. New York Museums instantly vilified Robert Morgenthau as a villain who was about to rain an economic calamity onto New York City. This message was delivered in unison by every major cultural institution in Gotham.

Morgenthau contacted HARP and asked if we would supply him with an affidavit in defense of his action to safeguard the rights of the Bondis. We complied with pleasure. Ori Soltes did the honors as chairman of HARP. We sat in Robert’s rickety conference room under the watchful eye of his late father, Henry. We were in good company. As it turns out, HARP is the only group that provided such an affidavit in defense of Morgenthau’s action.

This is basically the story of HARP’s involvement in preventing Wally from leaving the United States and securing the rights of the Bondis to a fair hearing of their claim. Wally did not mysteriously stay in New York by some act of divine inspiration that befell Robert Morgenthau. Without plenty of assistance, he could not have acted without knowing what we knew about the already-emerging complexities of the case. What had started as a simple request to modify the provenance of a painting in MOMA’s catalogue of the Schiele exhibit turned into a nightmare, both for the museum community, the US government, the Austrian government, and, the Bondis.

The rest is history. But on that fateful Wednesday afternoon, history was made as a result of a month of intensive lobbying, all-out pressure, and persistence from a small group of individuals who simply wanted Wally and Night City III to remain in New York so that their origins could be sorted out in the name of justice for Holocaust victims and their families.

I am relieved for the Bondi family, but the relief is bittersweet.

The only outcome that we had envisioned as just was restitution, assuming that there would have been no systemic failings.

I commend Larry Kaye and Howard Spiegler of the law firm of Herrick, Feinstein, for having found the best possible result to allow for closure to a very unpleasant and painful and trying ordeal, prompted initially by a racial crime perpetrated against a Jewish woman who loved her Wally. At least, Wally returns to Vienna with a price tag attached to its frame. But at what cost?

Regards,
Marc Masurovsky

'Human Rights and Cultural Heritage: from the Holocaust to the Haitian Earthquake'

Brookdale Center, Cardozo Law School
Source: Wikipedia

This one-day symposium took place on March 31, 2011, at Cardozo Law School in downtown Manhattan.

It featured, among other things, a panel on "Nazi-Era Looted Art: Research and Restitution."  The speakers included one person from the art trade, Lucian Simmons, a vice president at Sotheby's; Larry Kaye, of the law firm of Herrick Feinstein who co-chairs its art law group; Inge van der Vlies, who is a senior official of the Dutch Restitution Committee in Amsterdam; Lucille Roussin, co-organizer of the conference and head of the Holocaust Restitution Claims Practicum at Cardozo Law School.... and myself, as co-founder of the Holocaust Art Restitution Project and the only non-lawyer and historian in the assembly.

Lucian Simmons
Source: Sotheby's

Larry Kaye spoke about the events surrounding the seizure of the 'Portrait of Walli' by Egon Schiele and the involvement of his firm in the settlement of the case with the Leopold Foundation in Vienna, Austria.  He also addressed some sensitive issues governing the plunder of the Goudstikker collection in Amsterdam and the postwar role of the Dutch government in not facilitating the restitution of many items in that collection.

Howard Speigler, left, and Lawrence Kaye
Source: The New York Times via Fred R. Conrad

Lucian Simmons described how Sotheby's is leading the charge on art restitutions, careful, though, not to intrude on the rights of the consignors and the good faith purchasers, and reminding all of us that there are two victims in this game--the historical victim who lost the work or object and the good faith purchaser who--god forbid!--was caught with it, thinking it was perfectly fine. He did address an early incident involving a painting by Jakob van Ruysdael which had been withdrawn from a sale at Sotheby's London, in October 1997 on account of its shady provenance--which indicated that it had been acquired for Hitler's Linz Museum project.

Inge van der Vlies
Source: Raad Voor Cultuur

Inge van der Vlies gave us a painstaking description of the processes involved in assessing art claims in Holland through her restitution committee, reminding us all that, had the Dutch government adhered strictly to the rule of law, no returns would have been possible to claimants because of statutory and other considerations governing ownership of works of art.  Hence, its munificence in 'doing the right thing' governs the debate on restitution.  Larry Kaye took exception to the Dutch government's interpretation of what constitutes legally binding decisions in art restitution cases.  Nothing further needs to be said here about this.

Being the historian of the group, my task was to give context to the issue of restitution. I opened up the subject writ large, going back to the Hague conventions of the late 19th and early 20th centuries which sought to define protections for civilians and their property while armies duked it out near their fields.  My point, which is not popular, is that plunder of works and objects of art motivated by ideological, political, racial, and ethnic considerations are characteristic of the first half of the 20th century, starting with Armenia, going through the muddle of the First World War, Fascist Italy, Nazi Germany, the Anschluss, the establishment of a Nazi protectorate in then-Czecholovakia, the disappearance of Poland, the Nazi invasion of Western and Northern Europe, and the subsequent onslaught against the Soviet Union and southeastern Europe.  Not much time left to discuss the fundaments of restitution except to indicate that market considerations reigned supreme in the immediate postwar which compelled the US government in 1946 to liberalize the art trade by quickly eliminating wartime restrictions on the imports of cultural objects into the US, without knowing what objects might be of illicit origin.  The US and its allies shut down art claims in and around 1948 in their respective zones of occupation in Germany and Austria, thereby shifting the claims process to national governments in Europe and the Americas.

Howard Spiegler, Larry Kaye's alter ego at the Art Law Group of Herrick Feinstein, delivered a genuinely entertaining lecture over lunch where he took on the critics of art restitution litigation, especially aimed at high-revenue firms such as his and Larry's.  Point well taken.  Someone has to do the work.  The problem since 1945? There is still no national and/or international mechanism by which claimants who cannot afford to pay legal fees can be guaranteed a satisfactory procedure through which to articulate their losses and seek redress.  It's now been 66 years since the end of the Second World War and chances are that nothing will ever happen.

The main disappointment in an otherwise productive conference was the inability of the conveners to make a link between Holocaust-era losses and cultural property disputes in the postwar era, and also to address the confusion and complications arising out of the distinction between cultural property and other types of art objects and works of art.  Currently countries such as Italy are deliberately placing Holocaust- and World War II-era losses under the roof of cultural property and cultural patrimony, thus treating a painting by Claude Monet on the same basis as an antique urn.  The end result? the likelihood that the object, even if restituted, cannot leave Italian territory without special permits.  Something akin to what takes place in Austria with works by Gustav Klimt and Egon Schiele, and in France, with any masterpiece produced on French territory.

Hopefully, at some future forum, someone will take the brave step and challenge these artificial barriers that separate antiquities from the rest of artistic production.