Everything became clear. The two grand jury proceedings were held so that the prosecutors could use a Maryland law of 1802 (the District of Columbia had, in its early days, adopted Maryland’s laws) and a New York law of 1805. If one effort failed, the other might prevail. The discovery also solved the puzzle of why Jerome had participated in the investigation by the New York federal grand jury. If this plan succeeded, Jerome would try the case jointly with Stimson.
Nothing like this had ever been attempted before by federal prosecutors. Pulitzer’s lawyers knew that if it was made public, the government’s case would appear to be on shaky ground. To make the best use of their discovery, Nicoll and Bowers gave the story to all the press, rather than holding it for the World alone. The strategy worked. Newspapers such as the New York Times reported it on the front page. The headline in the Times read, LIBEL PROSECUTION SECRET COMES OUT: HALF-FORGOTTEN LAW USED.
Stimson was infuriated. He telephoned Bonaparte and, failing to reach him, sent an angry telegram. Later, a bit calmer, Stimson explained his actions to his boss. “I was anxious,” he said, “that a statement of the real ground of my investigation should be issued by the Government before a biased and perverted account should be issued by the other side.” Now it was too late. Pulitzer had won the first round in the court of public opinion.
Cobb seized the high ground. “To prosecute the World under the antiquated statute of 1825,” he wrote, “would represent the last word in the prostitution of the Federal machinery of justice to gratify the personal malice of an autocratic President.”
In the legal proceedings, the news was no better for the president. All the witnesses brought before the New York grand jury had invoked their Fifth Amendment right not to testify. One after another, the World’s treasurer, J. Angus Shaw; Pulitzer’s banker Dumont Clarke; the editor Florence White; and others remained closemouthed in front of the jury. If Stimson wanted to force them to answer his questions, he would have to bring them before a judge in an open court, and the questions the government wanted to keep secret would become public. He was getting nowhere.
“Thus far, we have not connected either of the Pulitzers with the commission of the offense, and in my opinion, have not evidence to indict either,” Stimson reported. This was not what the president wanted to hear. Roosevelt sent a terse note to Stimson, dropping the usual “Dear Harry,” demanding that he come to the White House.
The following morning, before meeting with his cabinet, the president sat down with Stimson and Bonaparte at the White House. Also present was Roosevelt’s brother-in-law Douglas Robinson; he had just returned from seeing Jerome, the district attorney in New York, who had not ruled out bringing his own case against the World. When this gathering broke up, Stimson and Bonaparte returned to the Justice Department, where they conferred with the U.S. attorney for Washington and his assistant. The message was clear. Roosevelt wanted Pulitzer in the dock.
Like most lawyers who examined the case, Jerome had doubts about it, but he enjoyed having a chance to torment Pulitzer. As Stimson spun his wheels, Jerome remained mostly mum about his intentions. The World assigned reporters to tail Jerome and to try to get his assistants to leak his plans. But nothing could be learned. When Pulitzer returned from his cruise, confounding those who thought he had gone to Panama, he told Seitz to find out what Jerome was planning. Seitz turned to a star writer from the Evening World, Irvin Cobb (not related to Pulitzer’s editorial writer Frank Cobb). Cobb had gotten to know the district attorney when he covered the famous trial of Harry K. Thaw, who murdered Stanford White. Seitz hoped he might use this friendship to determine Jerome’s plans.
“To put it badly,” Seitz said when he brought Cobb into his office, “we’ve exhausted practically every expedient, every available resource we could think of—we and our lawyers and other representatives—and without success. A grave emergency exists. Mr. Pulitzer is in a very depressed, very harassed state. The possible consequences to his health are dangerous—most dangerous. So as a last resort we are asking your cooperation.”
Cobb agreed and was told he could use as much money and manpower as he needed to get the job done. However, he simply hopped onto a trolley and rode down to Pontin’s Restaurant, a popular hangout for lawyers. There he found Jerome having a drink. “I don’t like a hair in that man’s head,” said Jerome when Cobb asked him about Pulitzer. “He has attacked me viciously, violently, and without due provocation.
“Even so,” Jerome continued, “I never intended to make either a burnt offering or a martyr out of him.” In fact, Jerome said that within forty-eight hours of meeting with Stimson he had made up his own mind not to pursue the case. But because he had been annoyed by the World’s behavior toward him, he admitted, “I’ve let King Pulitzer—and his gang of sycophants—stew in their own juice.”
Cobb returned to the office and reported what he had found out. Seitz put him on a telephone to Pulitzer’s house and asked him to repeat this to Norman Thwaites. After hearing it, Thwaites said that Pulitzer was sitting with him and wanted to know how Cobb had obtained the information so quickly.
“Well, it’s like this,” said Cobb, who then recounted his trolley ride and the alcohol-laced interview with Jerome.
“Well, I wish I might be God-damned,” said Pulitzer, loud enough to be heard over the telephone, when Thwaites had repeated the tale. Cobb turned in his expense report of ten cents for his trolley rides and returned to work.
Stimson remained firmly convinced that Pulitzer was beyond his reach. In February he instructed the grand jury that there was not enough evidence to indict Joseph and Ralph Pulitzer. “I am sorry for the President’s disappointment,” Stimson wrote to Bonaparte, carefully choosing his words, “but feel sure he appreciates the impossibility of my allowing the grand jury to indict a man without legal evidence, no matter how much reason there might be to imagine he was also probably responsible.” Further, he warned that the case in New York against the World would be endangered if the grand jury in Washington made the mistake of indicting the Pulitzers. Once they were indicted, their lawyers would be able to make public evidence revealing the weakness of the government’s case. “It will also go a long way,” Stimson said, “towards confirming the impression that an indictment was obtained by use of the overwhelming influence of the Government where it would not have been otherwise obtained.”
Bonaparte brought the U.S. attorney’s letter to the White House. Roosevelt was none too happy when he read it. He told Bonaparte that if Stimson was unwilling to go after Pulitzer in New York, he himself would insist that the U.S. attorney in Washington do so. At his desk the next day, Roosevelt rebuked Stimson. “This letter is purely private and is merely to explain why I agree with Bonaparte that no effort should be made to get the District Attorney here to abandon his position, as you suggest,” Roosevelt told Stimson. If the Pulitzers were not indicted, then the lesson he wanted to teach the press would be lost, he continued. “I think that much more service would be rendered by indicting the two Pulitzers with only one chance in three of convicting them, than by indicting their subordinates with three chances out of four of convicting them.”
Stimson did not cower. “If you had been sitting on the Grand Jury I feel perfectly confident that you would have agreed with me,” he told Roosevelt. The evidence was insufficient and the law unsupportive. “But in the second place, as a matter of policy and expediency, and not of official duty, I have a very strong conviction against pulling the trigger unless I have a ball-cartridge in the gun,” said Stimson, appealing to Roosevelt the hunter. In New York, as “there has been sedulously nursed a belief that the government is doing something unusual in this prosecution under pressure of your personal desires, there is more than ever before, in my opinion, the absolute necessity that the bullet discharged should be true to the mark.”
Roosevelt ignored Stimson’s warning. If he couldn’t get the U.S. attorney in New York to do his bidding, the one in Washington would. The prose
cution in the capital was actually led by two men: Daniel W. Baker, who was the city’s U.S. attorney; and Stewart McNamara, his assistant. Most of the work fell to McNamara, whom Bonaparte elevated to special assistant to the attorney general to show the importance the administration attached to the prosecutions.
On his yacht, Pulitzer prepared for the indictment. The World’s reporters were watching the proceedings in Washington carefully, even compiling biographies of the grand jury members in hopes of predicting their behavior. Pulitzer told his editors that if he was indicted, they were to prominently publish a disclaimer saying that he had been away and that he had known nothing of the stories until Roosevelt lodged the complaint. They were also to drop all editorials on Panama.
On February 17, 1909, the twenty-three grand jurors in Washington indicted Pulitzer, his company, and the editors Van Hamm and Lyman on five counts of criminal libel. The indictment charged, among other things, that the men and the World had libeled President Roosevelt, Roosevelt’s brother-in law Robinson, President-Elect Taft, Taft’s brother Charles, the financier J. Pierpont Morgan, Secretary of State Elihu Root, and the lobbyist Cromwell. The grand jury also indicted Delavan Smith and Charles Williams of the Indianapolis News, which had used the World’s articles on the Panama Canal.
Frank Cobb was ready for this moment. He published an editorial ringing with defiance. “Mr. Roosevelt is an episode,” wrote Cobb. “The World is an institution. Long after Mr. Roosevelt is dead, long after Mr. Pulitzer is dead, long after all the present editors of this paper are dead, the World will still go on as a great independent newspaper, unmuzzled, undaunted, and unterrorized.”
Arrest warrants were brought to New York. McNamara was champing at the bit to put Pulitzer in custody. New York, however, would be a hard place to do so. The city’s judges were known to be reluctant to permit an extradition to Washington for this sort of indictment, as a previous case had shown. In 1895, they had refused to send the editor Charles Dana to the capital when he had been indicted for libel in a case that involved neither the federal government nor unusual applications of law. (Ironically, Dana’s defense attorney, Elihu Root, was now Roosevelt’s secretary of state.) “Menacing as was the Dana case to the liberty of the press, it was far less serious than this Roosevelt persecution, for the complaint against Mr. Dana was made by a bona fide resident of the District of Columbia,” Pulitzer told Cobb. “The President of the United States did not instigate the proceedings and direct the persecution thereby perverting the powers of the government to the gratification of personal revenge.”
McNamara consulted the attorney general about the feasibility of arresting Pulitzer in Norfolk, where his yacht was to dock on its way back from a cruise to Havana. They believed it would be easier to extradite him from Virginia than from New York. But sloppy paperwork on McNamara’s part thwarted the plan, and the Liberty sailed as fast as it could toward New York. Stimson was of no help to the case in Washington, either. Convinced that it was a waste of time, he ignored it while working on his own indictments in New York. The rush to arrest Pulitzer came to a standstill. Florence White sent word to Pulitzer that the attorney Nicoll had said an arrest was no longer imminent. “He also says he believes there is no danger of arrest in Charleston, and that Mr. Andes [Pulitzer] might cruise in that vicinity and return to New York when he heard from Mr. Nicoll.”
Meanwhile, the grand jury in New York continued gathering evidence. Only the president and his lawyers knew that Pulitzer himself was no longer a target in Stimson’s planned prosecution. Half an hour after Roosevelt left office on March 4, 1909, the jury in New York issued indictments containing fourteen counts of libel against the Press Publishing company (the corporation that published the World), and Van Hamm. Despite his growing opposition to Roosevelt’s vendetta, Stimson had purposely delayed the issuing of the indictments in order to protect his political patron. He was worried that Pulitzer’s lawyers might try to embarrass Roosevelt by serving him with a subpoena as he prepared to sail for a well-publicized trip to Africa. “I am trying to engineer my indictments,” he told the attorney general, “so there will be no issue of fact pending at the time of his departure, or if there is such an issue, I will be in a position to call the bluff and bring it on for immediate trial.”
These indictments, like those in Washington, were based on an unusual interpretation of law. In this case, the old federal law brought to bear was an “Act to Protect the Harbor Defense and Fortifications Constructed or Used by the United States from Malicious Injury, and for Other Purposes.” Stimson reasoned that the paper could be charged under federal law for its allegedly libelous actions because twenty-nine copies of the World had been mailed to West Point and one had been delivered to the city’s federal building. Noticeably absent from the indictment was Pulitzer’s name.
By the time the Liberty steamed into Brooklyn’s Gravesend Bay, other fissures had appeared in Roosevelt’s strategy. Joseph Kealing, the U.S. attorney in Indianapolis, resigned in protest after eight years on the job, rather than pursue the case. Kealing told Bonaparte he believed the government was overreaching in trying to drag the defendants in Indianapolis to trial in Washington. “I believe the principle involved is a dangerous one,” he said, “striking at the very foundation of our form of government. I cannot, therefore, honestly and conscientiously insist to the court that such is the law.”
His nerves agitated, Pulitzer remained apprehensive. “Never was the time more propitious than now to treat judges and courts and all forms of justice with respect,” he instructed his editors. He had cause to be anxious. Even after issuing its indictments, the grand jury in New York continued its probe. Hosmer was called to testify, and he sent Pulitzer a long description of his ordeal in the closed chambers. Unaware of how Stimson had stood up to Roosevelt, Hosmer insultingly compared Stimson to Lepidus in Shakespeare’s Julius Caesar, described by Mark Antony as “a slight unmeritable man, meet to be sent on errands.”
Over time, it became clear that neither the case in Washington nor the one in New York had much traction. “Panama matter at this end apparently making no progress,” reported one of Pulitzer’s men in New York. Roosevelt was now in Africa chasing big game, and Stimson had returned to private law practice and was rumored to be planning to run for higher office. The matter fell into the hands of President Taft’s appointees, who dutifully pressed on, out of loyalty to the man who had picked their boss for the presidency. With no prospect of any trials soon, Pulitzer was granted permission to leave the country.
Clearing Sandy Point, the Liberty went south, as usual. During breakfast, off the coast of southern Virginia, Pulitzer asked the captain which way the yacht was heading that morning.
“Due east, sir,” he replied.
“If we keep on ‘due east,’ where will we fetch up?” asked Pulitzer.
“Lisbon, sir.”
“Keep on, due east.”
It was a bad decision. The crossing took them into a severe spring gale, followed by long days of heavy swells. By the time the group reached Lisbon, they were sick and exhausted, and Pulitzer had whooping cough. Life on board worsened. A new secretary who had joined the bedraggled group came down with smallpox. The yacht had to be fumigated and everyone vaccinated before authorities allowed the Liberty to move on. The voyage was hardly an escape from Pulitzer’s persecution back home.
Pulitzer spent the summer and fall of 1909 on the Liberty cruising from northern Europe to the area around Gibraltar, with short stays in port cities and one in Carlsbad for another cure. Back in the United States, the legal proceedings against him and his newspaper ground on. The government prepared to prove the articles untrue by tapping into its huge archive of documents relating to the acquisition of the canal and even deposing all the members of the junta in Panama.
Although they felt they had the upper hand when it came to the law, Pulitzer’s lawyers took no chances. They dispatched their own investigators to Washington, Paris, and Panama to uncover pro
of confirming charges of corruption involving the canal. If they succeeded, not only would they have an irrefutable defense, but the World would have the scoop of the century. This undertaking, however, became increasingly expensive when Pulitzer’s lawyers decided to use rogatory commissions that would permit the taking of testimony usable in a U.S. court. The Justice Department insisted that Pulitzer pay the travel and lodging costs of its attorneys who had to witness the hearings.
Each side believed its foreign research benefited its case. From Paris, McNamara wrote to George W. Wickersham, Taft’s attorney general, that “the witnesses who had testified have not only not substantiated in the smallest degree the contentions of the World, but have rejected their allegations in toto and have established more thoroughly the utter falsity of the libels.” On the other hand, the World’s reporter Earl Harding, who accompanied the lawyers to Paris, was convinced that a ledger he obtained showed the collusion of American investors in acquiring French canal stock to benefit from the U.S. payment.
Harding was among those at the World who believed Cromwell and his associates had made an immense, illegal profit from the canal deal and that the truth could set Pulitzer free. On June 3, 1909, he went to the docks of New York to see off Pulitzer’s attorneys, who were leaving for Panama. He saw Cromwell’s law partner, Edward B. Hill, accompanying the Justice Department’s attorney. “Every bit of telltale evidence in Panama would be bottled up,” Harding concluded. “It was three in the afternoon. I hurried back to the World, told my misgivings to Don Seitz, and instantly got his clearance to take the next train to New Orleans, leaving at 4:40 PM.” In New Orleans he boarded a Panama-bound United Fruit cargo ship.
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