Liberated Spirits
Page 20
Having absolved himself from the hiring of Hubbard, Whitney defended his agent’s work. The “boy wonder” turned undercover agent had produced almost immediate results, providing Whitney with information to make the second Olmstead case. Whitney professed to have trained Hubbard to avoid any instigation of criminal acts, but merely to “follow along . . . We always told Hubbard not to initiate any of the illegal actions.”20 As proof that he had often discussed such instructions and Hubbard’s progress with Revelle, he submitted three large volumes of documents concerning Hubbard along with his application to the CSC.21 As Whitney awaited his fate, he confided to Jones that if his application failed to pass muster with the CSC, “I will have wasted seven years of sacrifice and be in a worse position than I started . . .”22
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As the campaign season began early in 1928, Pauline Sabin was a presumptive delegate to the national convention given her standing as a member of the Republican National Committee. New York was allowed seven delegates; the state Republican committee decided two would be women and assigned the task for their selection to the county vice chairpersons, who were women. Sarah Butler was the other presumed female delegate, but women from “up-state” counties, all those outside of greater New York City, resented the control exerted by party leaders based in the city, and wanted three rather than two women delegates including one from upstate. Hoping to avoid conflict and any appearance of division in the party, Sabin and Butler removed their names from consideration as delegates, Sabin declaring, “An individual, or the personal ambitions of an individual, are of no consequence compared to the importance of having an harmonious party.”23 The vice chairwomen selected Sabin and Florence Wardwell, of upstate Otsego County, to serve as delegates, a compromise possible by virtue of Sabin’s party loyalty and graciousness.24
The five male delegates-at-large included James Wadsworth, though he no longer held office or an official party position and his prominence resurrected the debate over his views on Prohibition and whether he would support the presumptive presidential candidate, Herbert Hoover, or a movement to draft Calvin Coolidge at the national convention, an effort hinted at by critics of party leaders, particularly Charles Hilles. Perhaps attempting to soothe Wads-worth’s detractors, he and Nicholas Murray Butler announced that they would not advance any initiative that would divide the wet and dry Republicans at the national convention.25
The differences between the female delegates, Sabin and Wardwell, reflected a division not only within the state Republican committee, but also the national Republican Party, over the candidacy of Herbert Hoover, President Coolidge’s handpicked successor. Sabin and other state party leaders refused to endorse any candidate until the convention, and they got the state committee to agree that its delegation would not campaign for any candidate in advance of the convention. Ignoring the state committee’s instructions to remain unpledged, Wardwell openly supported Hoover for the party’s nomination months before the national convention.26 Like-minded women taking their lead from Wardwell threatened to vote for Al Smith if Hoover failed to get the nomination as a result of the New York delegation’s refusal to endorse him. Sabin challenged Wardwell’s claim that Republican women overwhelmingly supported Hoover and charged her with disloyalty to the state party organization.27
The Women’s National Republican Club called a “mock” convention for April 24, at the Waldorf-Astoria Hotel in Manhattan, suggesting a gathering intended to mimic the upcoming Republican National Convention in three months, but in truth mocking and, in some instances, skewering convention traditions, political opponents, and public perceptions of women in politics. Sabin played a small role at the mock convention, allowing those less familiar with convention proceedings to seize the reins and join in the fun. At one point, Sabin appeared as a “telegraph boy” failing in “his” duties to deliver a copy of a speech to its author and being scolded for caring more “about the cut of your uniform than you are with these serious proceedings,” another jab at those who sought to define women in politics by appearance over substance.28
Mrs. Edward Van Zile, opening the mock convention, chided, “Only legal and qualified voters shall participate on a Republican primary or caucus for selecting delegates, but the delegates, though legal, need not be qualified.” Van Zile also declared a policy of nondiscrimination based on “age, color or even for membership in the League of Women Voters.” “Above all,” she admonished, “let the delegates realize that the front we present to the enemy should always be marcelled, manicured and massaged,” generating extended applause and laughter from the assemblage, which had grown tired of reporters who never failed to describe the wardrobe and appearance of female, and only female, political speakers. On the matter of law enforcement, the convention’s “platform” teased, “Freedom cannot be appreciated unless there is some tyranny from which to be free. It is the historic duty of Government to furnish that tyranny; the Republican Party will see that the Government does its duty, having full confidence in the traditional ability of the American people to do the rest.” In a moment of seriousness, Mrs. Coffin Van Rensselaer reminded the assembly that women had been invited into political decision-making only recently and needed to seize their opportunity more fully: “In the hands of women have been placed the fireside and all its influences; the guardianship of the beauties and delicacies of life, and the upraising in health and independence of the youth and, in a large measure, through these influences, the control of that elusive thing, the real power back of democracy—public opinion.”29
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President Calvin Coolidge’s announcement that he would not seek reelection opened the field to many candidates, most of whom began jockeying for position in early 1928. Mabel Willebrandt stirred the pot in April when she announced her support, “unhesitatingly,” for Herbert Hoover, the secretary of commerce, believing him the Republican candidate most supportive of Prohibition and most able to ensure a victory over the presumptive Democratic candidate, Al Smith, a renowned opponent of Prohibition. She made the announcement at a national gathering of the WCTU, an audience interested only in Willebrandt’s view of Hoover as a defender of Prohibition. She pronounced Hoover “the answer to those who said Prohibition cannot be enforced.” Willebrandt went on, “Prohibition is not being enforced and as a result the wets are saying that it can not [sic] be enforced. If you elect Mr. Hoover he will enforce it.” Calling her “the fountainhead of Prohibition,” the Washington Post wondered if Willebrandt meant she had been “hamstrung” by the Coolidge administration and would continue to be so if anyone other than Hoover were elected. The newspaper suggested Democrats might want to get Willebrandt before a Senate committee to explain her statements, but warned her “forceful” personality might be pushed to list the impediments to successful enforcement, in the process embarrassing elected officials who had opposed appropriations or changes in the law that might improve enforcement conditions.30 The newspaper could not have described Willebrandt’s seven-year dilemma any better: she had become the public face of Prohibition enforcement and been asked frequently to comment on its successes and failures, but she had no control over Prohibition agents or budget appropriations, a fact that she increasingly highlighted.
Willebrandt soon pointed to one failing that might hinder effective enforcement: the absence of women on juries. She took particular aim at New York, where “it seems incredible that fear of her [woman] persists,” adding, “It amounts to saying that any kind of man is a better juror than the best woman, for as a matter of fact, in many districts, we are only getting the least responsible men on juries.” Willebrandt did not claim “for woman any superiority” over her male counterparts, but insisted that women were not “inherently unfit” simply because of their sex or preconceptions of their “emotional” tendencies. Where women had been used as jurors, they were “superior intellectually and educationally to the men,” many
of whom remained available only after other men of quality secured excuses to avoid jury duty. Women jurors forced jury commissioners to reevaluate the lists of male jurors, some of whom Willebrandt regarded as career jurors, establishing relationships with police and court clerks to secure frequent listing for trial service, a situation that produced jurors who could be swayed by political favor making.31 Willebrandt’s pointed jabs underplayed a subtler commentary, one that would be echoed by others, including Pauline Sabin; most men acknowledged that Prohibition had been carried into existence by women, but the refusal of those same men to allow women to serve on juries hampered the effectiveness of the law.
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Reversing itself in early 1928, the Supreme Court decided to hear the U.S. v. Olmstead appeal, filed as Olmstead v. U.S., on the question of whether the wiretapping of phone lines violated the Constitution, specifically the Fourth and Fifth Amendments.32 The decision scared those in the Prohibition Unit and its allies, pushing Senator Wesley Jones to write to Willebrandt about the urgency of defeating the appeal.33 The assistant attorney general replied to the powerful senator, but only to advise him that Revelle would file the brief in advance of oral arguments scheduled before the nation’s highest court on February 20, 1928.34 The immediate effect of the court’s decision was to grant the release of Roy Olmstead and most of his co-appellants on bail, after they’d endured just over two months in the pen.35
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In mid-March, Special Assistant Attorney General Norman Morris, one of Willebrandt’s trusted aides, arrived in Seattle to oversee a grand jury investigation into Agents Al Hubbard and Richard Fryant. Willebrandt had not informed Revelle; Morris just walked into his office. Revelle was “just sick over the matter,” and Whitney felt betrayed because Willebrandt had promised “that she would not present this matter until all the important cases were tried.”36 Revelle still had defendants to be tried as part of additional, albeit smaller, cases against Olmstead. Hubbard was essential to those. He had just proven his value in the Zev case, in which six bootleggers from whom Hubbard had received bribes were convicted. Yet now he stood the chance of being indicted by the testimony of all the bootleggers the Prohibition Unit had ever convicted and by operatives of Alf Oftedal’s Intelligence Unit.
In a few days, Lyle and Whitney heard “a persistent rumor” that Willebrandt intended to indict not just Hubbard, but also them and Revelle. As usual, they turned to Senator Jones for help. Jones, however, declined to do anything that might be construed as interference in an official DOJ investigation. He trusted Willebrandt to be fair. Revelle, Whitney, and Lyle did not trust her, and they were sure the Intelligence Unit, in league with Willebrandt, would seek an indictment whether they had the evidence or not.37 Their angst proved unnecessary, though, when the grand jury returned a “no true bill” on the charges against Hubbard and Fryant, having found insufficient cause for charges to be brought against them. Fryant was restored to duty within days; Hubbard’s status was said to be pending.38
In the wake of his victory, and with the help of his mentors—Whitney, Lyle, and Revelle—Hubbard took a job as a deputy sheriff in Whatcom County, along the Canadian border. Perhaps the triumvirate thought a steady job in a rural setting would do the young man some good, or at least give them some relief. It did not last, though. Hubbard’s aversion to rules and regulations may have prompted his firing a few months later, though it’s more likely the separation was mutual, the freebooter wanting back into the action. Hubbard would stop by to see his friends at the unit, ask to be reinstated, occasionally ask for a loan (which Whitney granted), and on more than one occasion, he asked for one of his old bootlegging friends to be released from custody. “We knew Hubbard had slipped morally and was getting so desperate for money that he probably would take any course . . . ,” Whitney claimed later.39 It angered Whitney that Hubbard also visited the office of the Intelligence Unit, and made him fear what might result.
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Mabel Willebrandt’s declaration for Herbert Hoover brought her deeper into the political infighting and machinations she had tried for so long to avoid. Whites in the South had voted heavily Democratic since Republican Abraham Lincoln had prosecuted “the War of Northern Aggression.” The “solid South,” which ever since had managed to deny most black and therefore Republican votes, found itself in a quandary during the Prohibition era, though, and Hoover hoped to exploit its predicament. Much of the South supported Prohibition, but the national Democratic Party had become increasingly wet, no more so than in 1928, when the party’s presumptive candidate was New York governor Al Smith, who was candid about wanting to end Prohibition. Herbert Hoover hoped to make sufficient inroads with moderate, white Democrats to steal the South from Smith.
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The myriad groups purporting to represent women—the League of Women Voters, the National Woman’s Party, the General Federation of Women’s Clubs, and the WCTU—held conferences in the weeks leading up to the Republican and Democratic party conventions. They set planks variously asking for “equal rights” for women; participation in the World Court; abolition of lame-duck sessions of Congress; child labor legislation; development of hydroelectric power at Muscle Shoals, Alabama; and creation of a federal department of education. Above all these measures, though, rode demands for increased enforcement of the Eighteenth Amendment and the Volstead Act. Specifically, the groups coalesced in support of the following plank in both political parties:
The people, through the method provided by the Constitution, have written the Eighteenth amendment into the Constitution. The Republican [or Democratic] party pledges itself and its nominees to the observance and vigorous enforcement of this provision of the Constitution.40
On June 4, the Supreme Court issued its ruling in Olmstead v. U.S. Speaking for the five-to-four majority, Chief Justice William Howard Taft dismissed Olmstead’s contention that wiretapping without a warrant constituted an unlawful search and seizure. Taft asserted no rights had been violated because no personal residence or office had been entered, and, thus, nothing had been searched or seized. Congress could decide to grant telephone conversations protections similar to those accorded personal property, but the court would not overstep constitutional limits to make law.
Justice Louis Brandeis noted in his dissent that the Constitution’s authors were thinking of search and seizure resulting from “force and violence” perpetrated by government agents; the founding fathers could not have foreseen technological advances, such as the telephone, allowing for government “invasions” of individual security. Brandeis equated a private phone conversation with a sealed letter, and claimed “the evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails.” Brandeis extolled the right to be left alone as the right “most valued by civilized men.” Countering Taft’s point that the court would not make law, Brandeis believed it was doing so by sanctioning the illegal actions of the federal agents who set up the taps in violation of Washington State law. “If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Rationalizing that the ends justify the means—that “the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution.”41 Justice Harlan Stone, formerly attorney general and Willebrandt’s boss, agreed with Brandeis, as did Justice Pierce Butler, who regretted that the court’s review was limited to consideration of the constitutional question. He had hoped for review of the controversy over the veracity of the evidence, the method of transcribing and retranscribing phone conversations substituting hearsay for eyewitness accounts posing as grave a threat as invasion of privacy.
Thomas Revelle rejoiced in the news, his long-running battle with Olmstead and his coconspirators, nearly f
our years in length, coming to an end. Two weeks later, on June 21, Roy Olmstead once again boarded the boat, now named the Dorothy Willebrandt in honor of the assistant attorney general’s daughter, bound for the state penitentiary.42 Within a few days, Revelle resigned as U.S. Attorney, moving on to private practice, his work done.43
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Women’s groups and candidates set up “lounges” at several locations near the Shriners’ Ararat Temple, home to the 1928 Republican National Convention in Kansas City.44 The lounges provided women opportunities to discuss issues and form opinions without the condescending or disapproving eyes of their male counterparts, many of whom had failed to bring women into their political circles and backroom discussions. With women comprising only about 10 percent of all delegates, the lounges offered spaces to find common ground, their voices banding together for greater effect; the Kansas City Star saw this happening, and forecast a burgeoning role for women in national party decisions.45 Other newspaper accounts expounded on women’s abilities to soften politics, subtly using “their verbal cutlasses and oral knockout punches that sting and wallop us effectually as any ever wielded by a masculine politico.”46 Another report heralded women’s “press-wise” acuity, their willingness to always allow a photograph, grant an interview, or provide an opinion without couching the terms of such arrangements.47