Liberated Spirits

by Hugh Ambrose

  After granting his endorsement, he sent Willebrandt to meet the president. Warren Harding had the stern visage, the commanding presence, and the resonant baritone of a president. Talkative and friendly, the president may have taken his time, seeing if she were the right sort, before expressing his concern: “There is only one thing against you—your youth.”12 Rather than responding that thirty-two was old enough, she smiled winningly and promised to “outgrow” it, Mr. President. Her quip, combining calmness and humor, muted his concern.13 Daugherty wanted her to start immediately, and she agreed, postponing a return to California to “close her affairs.”14 She announced to the press that she would not grant interviews for at least a week, and one reporter declared, “A woman who is not ready and willing to talk or be photographed has been found.”15 The cheap jest hid a wise move, though, for someone who had undertaken an enormous leap in her legal career. She had to find a place to live, a difficult task for a single woman in an unfamiliar city; acquaint herself with her staff, all of whom would be men who had never had a female boss; worry about her parents, now elderly, living in a rural farming community; and begin sending out her thank-you notes, the never-ending work of successful and assiduous politicians.

  Among the congratulations received was an unsigned letter from a “friend.” On her law firm’s stationery, the author implored her to “gaze upon the heading . . . the dignity and simple import conveyed by the simple announcement—‘Law Office,’” before regretfully acknowledging the dream of that law firm had come to an end with her appointment. The letter could have been written only by Fred Horowitz, her law partner who wished to become much more. The letter indicated how much he struggled with his emotions, first insisting Los Angeles was “the only place on earth you belong,” and deploring the idea of a fine lawyer becoming a politician, before concluding with well-wishes in the form of advice: “Hold fast to that which is good [and] yield to no one.”16 Unlike most other letters, she held on to this one all her life.

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  Director Lyle got just the kind of district attorney he had hoped for when Thomas Revelle took the oath of office on October 22 and assumed control of the government’s criminal prosecution team in western Washington. “There is no more reason for condoning violation of the Prohibition amendment than for condoning murder,” Tom Revelle stated, making his case for imposing maximum penalties on bootleggers and rumrunners. He decried public apathy, even from those in support of the Eighteenth Amendment, stating, “If the Eighteenth Amendment is not enforced it is easy for other laws, even the constitution itself, to fall into disrespect. One law cannot be made a joke without the whole system of law enforcement feeling the effects of that disrespect.”17 Quietly, Lyle agreed with the district attorney’s every word; he was eager to put violators behind bars, rather than the predominant practice of issuing fines, which allowed bootleggers and rumrunners quickly to return to their illegal pursuits.

  In his conversations with Tom Revelle, Director Lyle came to understand that some of the problems in prosecuting bootleggers were created in his office. Obtaining search warrants, collecting evidence, and taking statements from suspects were key steps in building a successful prosecution, but Lyle had no experience with any of those. The former real estate agent needed a legal advisor on his staff to help train his agents in the proper techniques for making arrests and gathering evidence, ensuring every case had been properly constructed before passing it to the DA’s office. Simultaneously, Lyle received word from his superiors in Washington to move the headquarters of the Prohibition Unit out of Tacoma to Seattle, where it would be closer to Revelle’s office, the U.S. district court, the headquarters of the Anti-Saloon League, and the WCTU—and the biggest, most brazen bootleggers in the state. Several agents would remain based in Tacoma, while two stenographers would move into the new suite of offices leased by Lyle in the Thompson Building, at the corner of Fourth Avenue and Cherry Street in the heart of downtown Seattle, near many of the city’s hidden, and not-so-hidden, speakeasies.

  Lyle announced the appointment of William Whitney as assistant director and legal advisor, and asked him to direct enforcement efforts.18 Assistant Director Whitney would prepare the evidence on liquor cases for presentation to juries, thereby becoming a critical cog in Lyle and Revelle’s plan to obtain the harshest penalties possible for violators. “Heretofore we have had difficulty, through the lack of legal knowledge on the part of agents, in securing proper presentation of evidence to the United States attorney’s office. I feel that we are fortunate in securing a man of Mr. Whitney’s undoubted ability.”19

  Neither Lyle nor DA Tom Revelle doubted Whitney’s commitment to the cause of Prohibition, which matched Revelle’s own intensity, or the force of Whitney’s personality, which far exceeded Lyle’s quiet demeanor. Whitney also had experience managing a workforce of dozens of employees, having served as chairman of a busy draft board during the Great War and leading the Young Men’s Republican Club of King County; he was one of the few honestly Dry men to have held the position in decades.20 Given that his qualifications and his closeness with Senator Jones both exceeded Roy Lyle’s, it can be surmised that the only reason Jones had not appointed Whitney to the director’s position was the public embarrassment of Whitney’s alleged affair with a former secretary, which resulted in a charge of alienation of affection by her husband. Taking over the leadership of most functions of the unit, Whitney pushed Lyle, his nominal boss, aside. Roy Lyle, it was generally agreed, had neither the backbone nor the training to impose his will against the driven, angry, and ambitious Bill Whitney.21 So the administrator quietly stepped aside, deferring to Whitney’s direction.

  Whitney intended to be an effective enforcer of public morality, putting the bootleggers behind bars, rehabilitating his reputation and getting ahead in the world in the process. He dived in, relishing the opportunity to hire agents—men loyal to him, men full of fight, men ready to become agents in a world of intrigue. “In selecting Prohibition agents,” he advised, “the color of the man’s hair or his stature may be reasons why you don’t want to appoint him because these things might make him a marked man.”22 So far as he or his boss Lyle knew, there was only one way to catch a bootlegger—in the act, allowing the agent to go on trial and say, I saw this man, at this time and in this place, selling booze. The problem was, the leaders of the liquor smuggling and distribution rings usually left the physical movement of liquor to working stiffs, thereby avoiding prosecution, a practice frustrating to the leaders of the Prohibition Unit.23

  The fact that Canada was dripping wet, its export houses selling unlimited quantities of alcohol to all comers so long as they cleared Canadian customs, loomed paramount in all discussions of how to shut down the smugglers. Lyle arranged a meeting with officials of the provincial government of British Columbia, seeking to gain some cooperation. The officials of British Columbia took care not to give any interviews to the press, since the majority of Canadians felt that Prohibition was ludicrous, and it had resulted in a windfall of profits for Canadian businessmen and for their government’s coffers; taxes collected on liquor bound for the U.S. were in the range of forty thousand dollars per week. Unnamed Canadian officers were quoted as saying their “hands were tied under existing laws.”24 Happy to announce something that sounded like cooperation, Canadian officials and Prohibition officials in several western states announced they had agreed on “booze restrictions” and planned to require “the consent of officials of the Canadian province involved before American liquor is permitted to enter Canada.”25 Readers could be forgiven for scoffing at the idea that enterprising rumrunners were trying to move liquor out of America.

  Although they could do little about the legal purchase of liquor within their sovereign borders, Canadian officials allowed the Americans to review Canadian customs records, thereby divulging the names of smugglers and the frequency and amounts of their purchases.26 One record descri
bed a “speedy launch which runs from Vancouver to Birch Bay,” an inlet featuring a shallow beach just south of the border. “This boat drops its cargo of liquor in sacks in eight feet of water at a point just off the beach and departs. The sacks are recovered by grappling hooks at a convenient time from a small boat . . .” Lyle was informed the boat made three trips per week carrying as many as fifty cases per trip. Deliveries to Birch Bay avoided the U.S. customhouse at the border crossing; it was a handful of miles to Bellingham but a long drive south to the big market in Seattle. Lyle summarized the situation for his mentor, Senator Wesley Jones, who noted one of the many absurdities in the Volstead Act. “It certainly is a peculiar situation,” Senator Jones observed, “where permits are given for the purchase of liquor in one country on the condition that the purchaser will undertake to export this liquor to a country where its manufacture for beverage purposes is prohibited.” Jones expressed his confidence in Lyle’s ability to “meet the situation along the border,” and pledged “to seek the state department’s aid in an endeavor to end the issuance of permits in British Columbia to export liquor to the United States.”27

  In order to make an arrest, Prohibition agents had to catch men in the act of violating a provision of the Volstead Act—manufacturing, smuggling, or selling alcohol fit for consumption. This meant they had to work undercover and ingratiate themselves with the violators, not just to catch them in the act of breaking the law, but to see if there was a way to be introduced to men further up the chain—the bigger dealers, the importers, the moonshiners. Whitney, the trained attorney, knew that his agents had to be taught the boundary, though, between entrapment and effective police work. All persons were to be presumed innocent until an officer received information to the contrary. Anytime an agent encouraged someone to break the law, the resulting case would be weak, if not thrown out altogether. When an officer had reasonable grounds for suspicion, he was free to “disguise his person, change his name, deny his purpose or do anything else within law and morality that will make an opportunity for a law breaker to reveal his unlawful intentions by unlawful acts.” If asked by a bootlegger, an officer could participate in a criminal act to obtain evidence, so long as he received approval in advance from his superiors and he did not surpass the result sought.

  While Whitney could instruct his men in the basic principles of the law, he had no training in police work. Professional standards of investigation, surveillance, evidence gathering, warrants, searches, and seizures were entirely lacking, but then, the situation was similar for members of the Seattle police force, who received little, if any, formal training. New policemen learned by walking a beat with an experienced man. Whitney’s unit had no experienced men, nor did it provide anything in the way of guidelines for addressing these fundamental problems. Most cases came down to eyewitness testimony, the most important of which was that of the arresting officer, who would produce, as evidence, a bottle or sample of a defendant’s illegal beverage.

  Almost no aspect of the unit’s work, because so much of it demanded legal assessment or preparation of paperwork, escaped Whitney’s attention. He served as probation officer for persons given suspended sentences. He worked with the district attorney and his assistants on the issuance of search warrants and production of witnesses at trial; he appeared at trial to explain or corroborate testimony and investigative methods; and he examined all matters regarding collection of taxes, assessments, or civil penalties “arising in the enforcement of the National Prohibition Act and the revised statutes relating to intoxicating liquor.”28 Each year this workload related to hundreds, and later thousands, of investigations undertaken by the Prohibition Unit in Washington. It might seem that little was left for Lyle, but he managed to stay busy coordinating investigations and arrests with the myriad international, federal, state, and local law enforcement agencies whose paths crossed in defense of the Eighteenth Amendment.

  Director Lyle attended the state sheriffs’ convention in late January of 1922 to foster better relations and make plain his plans for increased enforcement efforts. Lyle got a little carried away onstage, though, and began promising to declare any building in which intoxicants were sold a public nuisance and padlock it. The Volstead Act granted him the authority to shutter hotels, rooming houses, and restaurants for up to one year, and the threat got the public’s attention. The next day, reporters wanted to know more about this plan. “I don’t know yet how far I can go with this,” he responded, admitting that he needed to consult with Whitney, “but the owners of buildings have been warned.”

  Lyle’s inexperience and ignorance extended to other key aspects of the problem. Police officers, sheriffs, and his own agents had found it hard to stop vehicles they suspected of being used to transport spirits. Lower court rulings to the contrary, lawyers informed Lyle and the sheriffs that “strict enforcement” of the laws governing the use of motor vehicles “furnish legal reasons for stopping automobiles and examining their contents without search warrants.” Lyle promised the sheriffs that his agents would continue to stop cars without warrants.

  Finally, he promised a harder line against bootleggers making “pistol plays,” or brandishing guns when confronted or chased by law enforcement. “When a bootlegger draws a weapon,” Lyle warned, “he should be made to realize he is inviting the Prohibition officer to shoot.” Otherwise, apathetic citizens could expect a “big tragedy” forcing them to awaken “from lethargy to a full cognizance of the prevalent lawlessness.” “We mean business,” said Director Lyle. “We are going out to get these fellows now.”29

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  Mabel Willebrandt’s confirmation raised no questions; her nomination was submitted before the Senate on September 22, 1921, and approved five days later.30 After taking the oath of office, she had to answer questions from a reporter, who asked about her goals. “It would be presumptuous in the extreme,” she replied, “for me to say I came into the office with some glorious scheme of reform. I am here as an assistant to Mr. Daugherty and his views and his policies will be carried into every decision of this office.” Returning to her office, she signed an official communication denying a prisoner of Leavenworth a commutation in his sentence, looking past the grieving family to the evidence of his guilt.31 With that decision, the word began to get around that the old idea of women being guided by their emotions rather than by facts did not apply to the new assistant attorney general. Sometime soon thereafter, Senator Johnson called to congratulate her. Did she notice that, as one of the senator’s friends once admitted, Johnson found taking “serious women seriously, especially in politics,” difficult?32

  The urgent demands of her duties forced Willebrandt to postpone, again, a return to California to settle her affairs. She had three cases to present to the United States Supreme Court in November. At the same time, she had to prepare for the Supreme Court’s bar test. A handful of women had been admitted to the court already, yet the test was to be feared. One of the court’s newest members, Associate Justice James C. McReynolds, had objected publicly to the notion of women becoming attorneys, his overt misogyny complemented by his pronounced hatred of African-Americans and Jews, his hostility toward the latter on public view because of the two Jewish justices on the court. He had a reputation for leaving the bench when female attorneys rose to argue their cases.33 As Willebrandt was learning, playing politics meant more than answering to the Republican Party and the men who had helped secure her new position. It required balancing the perceptions of a male-dominated world—some friendly, some hostile, all unsure of what to expect from Mabel Willebrandt.

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  Pauline Sabin spent much of 1921 building the membership of the WNRC, arranging speakers (primarily male politicians) to educate women not just on the issues of the day but, more importantly, the rules of the political game. Women had shown political will in getting the Eighteenth and Nineteenth Amendments enacted, but she fel
t they needed to shed their one-issue agendas and embrace the concerns and legislation adopted by the Republican Party if they wanted to gain the respect of the party leadership and assume a permanent role in determining the future direction of the party.

  When the New York state legislature went into session in February 1922, Pauline Sabin announced, “I’ve joined the ranks of the lobbyists,” as she journeyed to the state capitol in Albany to press legislators to pass the Livermore Bill, requiring political parties to give women 50 percent of all party management positions and thereby speeding up the pace of change.34 The Livermore Bill passed, the power of women in New York politics burgeoning.35 A few days later, she joined her husband for a journey down to Washington, D.C., for the state dinner given by President Harding in honor of Chief Justice William Howard Taft of the Supreme Court. Senator Hiram Johnson of California and the other leading lights of the Republican Party attended as well. Despite Charlie’s prominence in the banking community, he was a registered Democrat; clearly, the invitation had been made to Mrs. Sabin, perhaps as an acknowledgment that her stature was growing beyond New York.

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  In late March of 1922, Mabel Walker Willebrandt wrote her parents about a speech she had presented to the Women’s Bar Association of New York, complaining in her letter that her effort to say something important had been ignored. A local newspaper reporter wrote that she was “a beautiful picture in a black spangled gown,” who had “laid a silken scarf aside as she arose to speak.” The reporter had included something of her speech, complimenting her delivery, but the article had irritated her: “Why the devil they have to put on that ‘girlie girlie’ tea party description every time they tell anything professional that a woman does, is more than I can see.”36 Among the topics stirring within her was the Supreme Court’s recent refusal to hear Blum v. Wardell, allowing the curiously Californian definition of community property to stand, a sour defeat for her.37 A month after the decision, the Women’s Legislative Council of California dissolved, its work unfinished and, seemingly, unattainable.38