Chapter 8
During the 1925 Christmas season, Willebrandt, perhaps feeling a need to construct a traditional family for Dorothy, revisited Fred Horowitz’s marriage proposal made a year earlier. However, she came to the same conclusions, placing even greater emphasis on the professional goals she hoped to achieve. She doubted his “love & satisfaction” could survive the “strain, social conditions & other circumstances out of my control.” Should the marriage dissolve, as she suspected, “wrecked would be the fruits of all my sea of repressions and discipline and achievements so far,” while Fred’s “prestige and opportunities for a full life” would be unaffected.1 Though she didn’t say so, the specter of Arthur Willebrandt, her estranged husband, probably shrouded her thinking. A divorce from Arthur, the mystery man never spoken about by Willebrandt or revealed in the press, would need to be obtained before betrothal to Horowitz, marking one strike against her. A potential second divorce from Horowitz, should he realize her fears, might as well have been strikes two and three in Willebrandt’s assessment of her future opportunities. She loved Horowitz, but could not trust his love would last and could not afford the damage to her career and standing that would accrue with another failed marriage.
Amidst congressional hearings, Supreme Court presentations, appearances at court cases around the country, and the administrative chores of her office, Willebrandt found time to be a mother to Dorothy, whom many took to calling “little Mabel,” especially as the girl tagged along on her mother’s business trips. Willebrandt took her to Seattle in January 1926 to peek in on the Olmstead case preparations, to Yellowstone National Park for a vacation in April of that year, and to New England in the summer for a slate of Chautauqua presentations she made.2 She admitted frustrations with her daughter’s “infinite capacities for naughtiness,” but conceded she was “bright and original and responsible.” Dorothy enriched her life, but Willebrandt still wanted more, judging, “I am in my life and profession a man.” She craved a “family reaping vicarious pride in my success and being noticed for it, etc. But that—the forever not having that—is another liability of my sex.”3
Pauline Sabin began 1926 by removing her name from consideration for president of the Women’s National Republican Club, a post she had held for three years, during which she had increased the club’s membership rolls and raised its political profile along with her own.4 She would remain a member, but her duties with the Republican National Committee and plans to assist James Wadsworth in his reelection campaign demanded all her time. The success of Sabin’s efforts to educate women through the club’s programs could best be seen in her successor, Alice Chittenden, who had opposed suffrage for women out of fear that it would alter a woman’s control over the home, but had come to see suffrage as granting political power to preserve the home rather than allowing men alone to determine its fate.
Transitioning from club organizer to political campaigner, Sabin hosted the WNRC’s annual luncheon, held, as always, at the Waldorf-Astoria; she invited James Wadsworth and Nicholas Longworth—speaker of the U.S. House of Representatives and husband to Pauline’s longtime friend Alice Roosevelt Longworth—to speak at the January 16 gathering.5 On the same day, at the Hotel McAlpin, five hundred members of the Women’s Christian Temperance Union met to hear several speakers attack inadequate efforts to enforce Prohibition. Carrie Chapman Catt, an old-guard suffragist and Prohibitionist, painted “a gloomy picture of immorality and crime” rooted in “extravagance and prosperity,” of which Prohibition violations were but the most obvious symptom. Ella Boole, president of the WCTU, denounced James Wadsworth and the Association Against the Prohibition Amendment and called for a “campaign of education, agitation and legislation to show that America’s financial leadership of the world is greatly enhanced by the benefits of Prohibition even under imperfect enforcement” and by opposition to any changes in the Volstead Act. As if on cue, Arthur Davis, the New York ASL superintendent, called for the “political annihilation” of Senator Wadsworth.6 Back across midtown Manhattan, the two thousand attendees at the WNRC luncheon filling nearly the entire second floor of the Waldorf-Astoria heard Longworth defend Wads-worth and say it would be a “national disaster” if he were not reelected. The senator spoke next, condemning attempts to centralize more power in the federal government’s hands, citing Prohibition as the keystone example of failed policies in that direction. He characterized the Eighteenth Amendment as the first “to say to the individual citizen, ‘thou shalt not.’” In so doing, Wadsworth accused Prohibitionists and like-minded people of diverting “the logical and orderly development of the Constitution . . . to a new path and in the direction of a goal scarcely dreamed of by the liberty-loving people who founded the Government. So abrupt a change was this and so at variance with the age-old conception of constitutional law that we should not be surprised at this confusion, to use a mild term, which resulted.”7
Orville Poland later saw fit to challenge Wadsworth’s attack on centralization, saying that if the senator believed in states’ rights so strongly, he should have no reason to oppose a state enforcement law, wresting responsibility from the federal bureaucracy so the state could regain its sovereignty.8 Poland failed to mention that an enforcement law by the state legislature would never be enacted; Governor Al Smith had promised to veto it.9 The true intent of bringing a vote to the New York legislature was to force Republicans—for all Democrats were considered Wet—to state definitively their position on Prohibition. If they voted for an enforcement bill, the ASL and WCTU would hold those legislators accountable in any future Prohibition arguments, using their vote as a cudgel to hold them in line. If they voted against an enforcement bill, they would be cast as radicals, defying the party platform. But New York’s Republican legislators bridled at being defined by one issue. On March 22, 1926, five Republican state senators stiffened their backs and joined twenty-two Democrats, that party’s entire caucus, to reject two enforcement bills.10 Emboldened by the victory, senate Republicans pushed forth a resolution calling for a statewide referendum asking voters whether a petition should be sent to Congress requesting modification of the Volstead Act.11 Republicans in the assembly sought to reassert their claim as the “dry” party, exposing any members choosing to vote against the party’s promises. Both measures, the referendum bill in the senate and the enforcement bill in the assembly, moved in tandem through committee hearings and floor debates into mid-April, each seeking enough votes to set a tone for the most populous state in the country and for the Republican Party nationally. On April 13, the competing bills came up for votes in their respective chambers. The senate passed the referendum proposal, needing only the votes of twenty-two Democrats for victory, but also got eight votes from Republicans, unafraid of the ASL and WCTU’s threats. The assembly passed the enforcement bill with the bare minimum—seventy-six votes to seventy-two—needed to send it to the senate.12 The triumph of the enforcement bill held little joy for its backers, though, who saw no chance in the senate after that chamber’s recent vote against a similar measure. They were right. Arguments that the public should have a say on the Prohibition question drew more votes, the referendum bill passing the assembly easily.13 The bill moved to Governor Smith’s desk, and on to a vote in November.
Great crowds of gawkers gathered outside the federal building on the morning of January 19, 1926, as the biggest case in the history of Prohibition, featuring the King of Bootleggers, opened.* Few of the members of the public jamming the halls made it inside the courtroom, with U.S. Marshals allowing entry only to those directly involved with the trial, and a few reporters. Forty-six defendants, many with their own attorneys, took up a sizable portion of the room. Another forty-four individuals who had been indicted had fled the country or pled to a lesser charge. If they had appeared, little room would have been left for the reporters.
When the clock struck ten, the bailiffs and marshals quieted the crowd, and attention focused on the door beside the imposing bench of Judge Neterer, guarded by a bailiff. On cue, the bailiff opened the door, and the judge stepped up to his seat above the proceedings as another bailiff rapped a gavel, crying, “Hear ye, hear ye, all rise . . .” The solemnity lasted only a moment, though, as Roy and Elsie Olm-stead, accompanied by Roy’s mother, entered the rear of the courtroom. The elderly Mrs. Olmstead found a seat with the audience; the couple took their seats behind their counsel. Roy, tall, relaxed, and unhurried, had made his point. He would not be cowed. The long-delayed “whispering wires” trial, set in motion by the arrest of the Olmsteads and their dinner guests in 1924, had begun.14
Everybody in the courtroom expected the prosecution team to open with testimony related to the “whispering wires,” but Tom Revelle chose to establish the length and breadth of the conspiracy from Canada to downtown Seattle first. Through a series of witnesses, most of whom had been employed by Olmstead, Revelle established the day-to-day routine of a rumrunner—pickups, deliveries, corruption of local law enforcement—but none could provide direct evidence of Olmstead’s participation in the purchase, transport, or sale of illegal liquor in the United States.15 The brief sideshow completed, the main event began. William Whitney, the man who knew everything, took the stand.16 With the hour of the “whispering wires” at hand, the prosecution began with questions allowing Whitney to reel off the successful raids, each yielding enough contraband to indicate a large commercial operation, Whitney specifying how each location fit into the Olmstead gang’s scheme. The description of each raid allowed Whitney to spell out who all the conspirators were and what were their respective duties, and to name all the defendants.17 The Seattle Times, describing his first day of testimony, said, “Whitney has relentlessly invaded the strongholds of the liquor dealers,” and gathered the evidence against the conspiracy that had been “flooding Seattle with liquor and generating $500,000 a year in profit.”18
After putting the conspiracy in context, Whitney held aloft the 775-page book that every spectator jammed into the courtroom knew contained the transcripts from the wiretaps.19 Whitney described entire conversations he had heard over the “whispering wires” between men clearly engaged in taking orders and running liquor to waiting customers. Many of the callers had helpfully identified themselves, according to Whitney, with salutations such as “Hello, this is Johnny the Wop,” and often included their locations. One of Olmstead’s attorneys, George Vanderveer, objected throughout Whitney’s testimony, claiming the Prohibition agent was providing hearsay evidence and relying on the book of transcripts for details of conversations he never heard. The judge, laying bare his bias and his assumption that Olmstead would be convicted, swept aside every objection and advised Vanderveer to raise the issues on appeal.20
Upon cross-examination, Vanderveer bore into Whitney, and badgered until Whitney admitted he had not listened to all the conversations but relied on the book his wife, Clara, had typed up from her notes, which, in turn, had been extrapolated from the “stenographic” notes made by Whitney and the other agents listening to the calls. Vanderveer hammered away with questions about the validity of the information transcribed: How long had the book been in existence? How many agents had listened to the phone lines or seen the original notes? How could an entire conversation be captured in longhand? Eventually, the defense wanted to know what had become of the original notes.21 Whitney admitted he did not have them. Pressing, Vanderveer extracted an admission that Clara Whitney had edited the original notes, and she was also unaware of their whereabouts.
The prosecution next called Richard Fryant, one of the original wiretappers, to the stand. Fryant handled a number of the defense attorney’s questions about the note-taking process well, until he was asked to state when the book of notes, the all-powerful “whispering wires” evidence, was completed. Fryant’s answer—December 1925—brought an audible gasp from the defense team. The transcripts had been completed one and a half years after the conversations had taken place, just prior to the start of the trial.22 The disturbing revelation induced the judge, finally, to grant the defense’s request to have the book introduced as evidence. Upon that small victory, the defense pressed Fryant about his ability to testify without the book, the agent quickly admitting, “There was such a volume of conversation” no one could recall it all, prompting the judge to allow the witness to refresh his recollections by consulting it.
The defense attorney wondered aloud at Fryant’s description of himself sitting alone at the wiretaps and observed that he had not been alone, because Harry Behneman had been seated next to him. Fryant admitted that, well, yes, Behneman had been there but he never had possession of original notes—notes which might conflict with the typed transcript.23 Like the Whitneys, though, Fryant had to admit he did not know what had become of those notes—or Harry Behneman.
Vanderveer’s tactics gave Olmstead an air of confidence bordering on contempt for the proceedings. At one of the court’s recesses, Revelle stopped to light a cigarette before leaving the courtroom. Olmstead, walking with the crowd, spied the light and steered over to him. “No hard feelings; gimme a cigarette?” Revelle shook one out of the pack for him. Outside the courthouse, Olmstead consorted with members of his “gang.” He was a free man in the evenings; his operations continued, though reduced, resources focused on localized rum-running, selling wholesale to local bootleggers. Nights of hard work left many of his gang tired. The accused slept so much during court that one of the bailiffs opined, “They must go to night school, or something,” surely triggering a chuckle from those still plying their trade.24
The success of the defense attorneys in attacking the prosecution’s witnesses had turned the trial on its head, those witnesses unwillingly putting doubts into the minds of jurors unsure of the veracity of the “whispering wires” evidence. As the defense prepared to call its witnesses, looking to punch more holes in the truthfulness and trustworthiness of federal agents, news broke that raised the stakes for Whitney and Revelle. “Federal officials at Washington, DC,” the story went, were “showing keenest interest in the Olmsted liquor conspiracy trial in Seattle.” Citing only “authentic sources,” the Seattle Times stated that if the government’s case proved successful, the use of the “whispering wires” might become commonplace in Prohibition enforcement, though the newspaper’s unnamed source warned that higher courts might take a different view of wiretapping, seeing it as an invasion of privacy. Further proof of the interest of decision-makers in Washington, D.C., was an announcement that Mabel Willebrandt, Tom Revelle’s boss, would appear at the trial.
With Fryant dispatched, Vanderveer prepared to raise his defense, starting with Olmstead, but an unexpected phone call from Harry Behneman changed the course of his preparations. In hiding for the past several weeks, Behneman told the attorney of his role in the wiretapping, but, more importantly, produced twenty-seven pages of notes bearing Fryant’s handwritten corrections and signature.25 To Vanderveer and his defense team, the pages shone like rays of sunshine breaking over them. Behneman’s notes, which had not been incorporated into William Whitney’s “book,” offered the promise not just of destroying Richard Fryant’s version of events, but also of at long last creating a fulcrum upon which the whole 775-page edifice of “whispering wires” could be toppled.
Unaware of Behneman’s reappearance, Revelle and Whitney felt secure in the strength of their case and eager to impress Willebrandt, who arrived in the Pacific Northwest for a working weekend as Fryant finished his testimony. She had come to inspect the federal penitentiary at McNeil Island and would make the trip north to Seattle on Sunday.26 The two men’s mood changed, most assuredly, when the Sunday newspapers carried the story of Behneman’s return to Seattle and his readiness to appear in court.27 On the train north to the Emerald City, Willebrandt may not have seen the Sunday newspapers, but Revelle, a worrier by nature, would have been concerned about her attitude toward this potential setback. A reporter caught the moment of their meeting: Revelle, a good foot taller than Mrs. Willebrandt, stooping slightly in his three-piece suit and bow tie as he gave “his superior officer” a firm handshake and a bouquet of flowers. She had no time for him at that moment, though, as she was hurrying to a breakfast being given in her honor at the University Women’s Club by the local chapter of Phi Delta Delta, a women’s law honor sorority of which she was national president.
As Willebrandt departed for her breakfast, an astute observer would have seen in her itinerary an indication of her priorities. Listing her visits to the penitentiary and the Women’s Club ahead of a conference with Revelle and Whitney was the action of someone who refused to allow the intractable problems of Prohibition enforcement to distract her from other priorities—priorities where she could make a real difference. Creating a prison in which inmates were not just incarcerated but reformed and prepared for reintroduction into society, and encouraging women brave enough to excel in college to ignore the naysayers and negative employment statistics mattered more to Willebrandt.
In the early afternoon, she arrived at the new Washington Hotel to receive most of the local members of federal law enforcement: Thomas Revelle, Roy Lyle, William Whitney, U.S. Marshal Ed Benn, and William Bowling, in charge of the Department of Justice investigators in Seattle. These were serious men, the burden of a huge case on their shoulders, tired from weeks of grueling effort, their jobs on the line. They were undoubtedly eager for some “face time” with the boss, which probably made little impression on her beyond the way their interest in her approval represented her success in a man’s world. The details of the meeting were not recorded, but more than likely, Willebrandt would have wanted to know if the case could be made without the wiretap transcripts, the question of whether they represented a breach of constitutional guarantees of privacy looming over their admissibility.
The reporters caught up with Willebrandt afterward, and asked about her trip. She extemporized at length about turning McNeil Island into a model penitentiary, one that reformed its inmates by putting them to useful work, such as an industrial program for canning fruits and vegetables. She praised the beauty of the Pacific coast as a good politician should, omitting any description of the women’s event. It was fine for her to talk about reforming prisoners, but she knew her message to the young women was too controversial. At last the elephant in the room was addressed, when she was asked about the Olmstead conspiracy trial. Her answer astonished them. “I will not have the opportunity to look in on the Olmstead trial,” she said flatly. “We all hope for the best, and the case is in most competent hands. Mr. Revelle doesn’t need me.”28 Her eastbound train departed at five p.m. Sunday.
A letter to her parents written the day after she left Seattle showed other things on her mind. “I’ve fought at loneliness to the point when I knew I’d rather be married, no question of that, if my marriage could be a private affair in my life the way it is for a man,” she lamented. “Unfortunately the things I most prize are tenderness and intellectual challenges. I don’t expect to find both in anyone so far,” discounting marriage to Fred Horowitz again. In lieu of marriage, even companionship, she had Dorothy and a desire to make sufficient “capital” that she could have financial security without a husband. She saw a life in California, “a home on a hill with mts. and sea from the windows, three children, a fair compensation, and a dignified community standing. That’s all I want. Don’t you think that’s better than political office.”29 A judgeship would give her that, but she would not go “holding my hand out for political favors.”
On Monday morning the trial resumed, the defense calling several witnesses to rebut specific allegations made by the prosecution before calling Harry Behneman to the stand. After establishing the basics—Did you know Fryant? For how long? Did you help him tap Olmstead’s office phone number?—the defense counsel asked the witness when the tapping had begun. “June 25,” came the reply—nearly two weeks earlier than Whitney and Fryant had testified—establishing a new timeline and unveiling a different narrative for the wiretaps. Olmstead’s defense team would exploit the discrepancy upon cross-examination, citing it as an example of Whitney’s ineptitude, never guessing the real reason was a calculated move by Whitney to ensure that nobody learned that Fryant had not been sworn in as a Prohibition agent until early July 1924 and had been working in an unofficial capacity before then. Behneman said the first time he saw anyone beside Richard Fryant listening to the phone lines was July 14, when Whitney visited for a short time. At this point, offered into evidence were the twenty-seven pages of notes penciled on brown paper and described as the original notes written by Behneman and Fryant in late June and early July 1924. They had traded the paper back and forth between them, the witness contended, as one endeavored to write what he had just heard while the other listened to the next call, sitting in the basement of the Henry Building, worried they would be discovered by a repairman from the telephone company. Leading his witness, the defense counselor asked how the names of the parties on the calls were identified, but the judge supported objections from Revelle, denying Behneman a chance to answer. Vanderveer, demonstrably frustrated, begged the opportunity to show that “names, dates, hours, whole conversations were deliberately filled in: that’s the purpose of this inquiry.” If Fryant retook the stand and admitted his handwriting appeared on these pages, Behneman’s notes would immediately become the “originals.” Any discrepancies between this scant record and Whitney’s tome would undermine the “book’s” validity and prove Fryant guilty of perjury. Vanderveer demanded Fryant’s return. The judge allowed for Fryant’s return to the witness box, but denied any questioning from Vanderveer, allowing only rebuttal testimony to Revelle because Fryant had been his witness. Fryant flatly refuted Behneman’s assertions, leaving jurors to decide for themselves where truth lay.30
Stymied at so many turns, George Vanderveer presented his final motions in summation, moving that all wiretap testimony be struck from the record as a violation of privacy rights granted in the Fourth and Fifth Amendments to the Constitution, and in violation of statutes enacted by the State of Washington. Vanderveer moved, also, that the testimony of Clara Whitney and Fryant be struck, their recollections rooted in the 775-page transcription cherished by William Whitney, “the authenticity of which has now been disproved.” Judge Neterer denied both motions.
After five grueling weeks, the case went to the jury, but not before the judge offered his view. He instructed the jury to regard the “whispering wires” transcripts as one source among many. “If you are convinced and believe the testimony, and believe that the parties talking were members of the conspiracy, if you find one existed, then you will conclude accordingly. The value of these telephonic conversations is based upon the identity of the voice of the person talking and the recollection of what was said, insofar as it is not corroborated by other evidence.” Speaking to the challenges raised by the defense, the judge asserted the objections were an attempt to “influence your decision based upon something other than the evidence. In other words, that you should find for the defendants as a way of saying wiretapping ‘will not be permitted!’” Making it clearer, Neterer declared, this “is no place to punish anybody for wiretapping, if an offense has been committed. There is no law in the United States against it.”31
The doubts raised by Olmstead’s attorneys about the reliability of the tapped conversations could not wash away the other evidence presented against him and his codefendants. Associations between the rumrunner and others clearly involved in the liquor trade could not be denied. The connections between Olmstead and these men hinted at conspiracy, especially after several defendants had admitted to selling liquor. The absence of a clear alternative to the government’s presentation betrayed how completely Whitney had laid bare Olmstead’s business. Explaining away job descriptions, such as those of truck drivers and phone operators and salesmen—jobs so clearly detailed by the prosecution and assigned to specific individuals—proved impossible. The fundamental truth, like acid, dissolved the defense’s assertions into a confused mishmash. After seven hours of deliberation, the jury returned a verdict of guilty.32
The reporters now had their turn, aiming to capture the scene as well as the comments of the significant participants. Attorneys Finch and Vanderveer, exhausted and deflated, announced their intention to file an appeal to the U.S. Circuit Court in San Francisco and, if necessary, to petition the U.S. Supreme Court. In a real scoop, a reporter got Olmstead to offer a surprising opinion. “I am satisfied with the verdict,” Olmstead said. “Twelve good, loyal American citizens did their duty as best they saw it. It was not the way I saw it. But they did their best. That is all.”33
On March 1, 1926, Pauline Sabin hosted a meeting of the vice chairpersons, all women, from thirty-five of sixty-two New York counties, to garner support for James Wadsworth. The topic of Prohibition took center stage, but Sabin reported the discussion proceeded in a “temperate manner,” something she found pleasantly surprising given the intemperate criticisms typically lobbed at Wads-worth.34 Her loyalty to Wadsworth and the party outweighed what she saw as petty differences over Prohibition and Wadsworth’s past positions on child labor and equal rights. The larger issue, she agreed with Wadsworth, was expansion of the federal government, the resulting monolith subsuming states’ rights and personal liberties. If she’d truly opposed Prohibition above all else, as some critics opined, Sabin would have had little reason to support the Republican Party or Wadsworth; the Democrats were definitely the anti-Prohibition party.
A month later, Sabin called another meeting of women leaders to seek their endorsement of Wadsworth’s campaign. She admitted the senator’s opposition to the Eighteenth and Nineteenth Amendments, “on conscientious grounds,” but since passage of the Nineteenth, she contended, Wadsworth had encouraged full participation of women in the political process. Sabin did not address Prohibition further, but focused instead on his conservative values, the respect of his peers, and his growing reputation around the country, as evidenced by the support of the Speaker of the House of Representatives and President Calvin Coolidge. She believed most women would choose “courage” as the one quality they most admired in men, and while courage could be found in many places, Sabin appreciated the “courage of one’s convictions,” something she saw in Wadsworth but in so few other elected officials. With Sabin’s arguments striking the right note, the women endorsed Wadsworth.35
Sabin recommended to Wadsworth that he refrain from dispensing interviews or materials about his stand on Prohibition, and Wadsworth agreed.36 Sabin had a harder time avoiding questions—publicly, privately, and intellectually—about her own views. The situation came home in May, when the AAPA established a New York Committee on the Referendum including her husband, Charles.37
In the spring of 1926, almost constant questioning of the desirability and enforceability of the Eighteenth Amendment and the Volstead Act culminated in the presentation before the Senate of eleven distinct resolutions to correct perceived inadequacies. The resolutions included plans to shift enforcement authority to local and state agencies, raise allowable alcohol percentages, tighten regulations on prescription issues, grant greater authority in seizure and control of property, establish a border patrol, allow each state to set its own definition of “intoxicating” liquors, advance a national referendum on the Volstead Act, and flat-out repeal the Eighteenth Amendment. With more than 150 witnesses, representing every side and angle related to the proposed resolutions, the hearings turned, largely, into a debate on two related questions: could the Volstead Act be enforced to satisfy the mandate of the Eighteenth Amendment, and, if so, what would it take to make that happen? Fiorello La Guardia, a representative from New York, a state generally regarded as one of the most lax in terms of enforcement, put it bluntly: “It is impossible to tell whether Prohibition is a good thing or a bad thing. It has never been enforced in this country.”38
Senators, the public, and newspaper reporters anxiously awaited Willebrandt’s appearance before the subcommittee holding the hearings, regarding her as one of the de facto experts on Prohibition enforcement efforts. She began simply by presenting statistics as proof of improving efforts—twenty-two thousand convictions and 4 million dollars in fines in 1922 increasing to thirty-eight thousand convictions and 7.6 million dollars in fines in 1925—but the senators were more interested in what remained to be done.39 Without hesitation, Willebrandt stated her belief that Prohibition was enforceable, and offered recommendations to make the task easier for the Department of Justice. She considered the inability to assess penalties “commensurate” with the crime as the greatest deficiency in the Volstead Act, and she recommended modification of the Volstead Act to provide for prosecution of local and state officials failing to perform their duties, by either outright bribery, conspiracy, or turning a blind eye.
Willebrandt made clear that investigations and arrests occurred outside her department and oversight, but subcommittee members wanted her perspective on activities of the Prohibition Unit as it applied to the work of her office. As in past testimony, Willebrandt highlighted the convoluted separation of enforcement powers when asked about the number of search warrants issued. She could not answer, Willebrandt explained, because her department did not approve or issue warrants in Prohibition cases and her office had no control over the U.S. Commissioners of the Courts who issued them. While all federal courts fell under the banner of the Justice Department, commissioners reviewed evidence and made decisions on warrants independently, without supervision or guidance from above. In some locations, commissioners had little legal training, having obtained their positions as political favors, and granted warrants without adequate evidence. Coupled with insufficient training in evidentiary procedures for Prohibition agents, warrants with few verifiable facts did not hold up in court even after searches found evidence of violations. The greatest success rates of conviction came in districts where Prohibition agents cooperated with and received guidance from U.S. Attorneys. When asked if she could obtain better results if the Department of Justice had control of Prohibition agents, Willebrandt demurred, saying that was not a given. When pushed, she responded, “You are asking me to admit I am a bigger man than anybody else,” prompting laughter from the committee. Later, she conceded that with more agents, attorneys, and time, the law could be enforced, regardless of which department performed the work.
Willebrandt’s answers seemed clear to everyone but Senator James Reed of Missouri, an outspoken opponent of Prohibition, who demanded to know if it was her judgment that the law could be “enforced so as to absolutely stop the manufacture and sale of intoxicating liquors.” She replied:
I am not a Utopian, but what I do mean to say is that the officers of the law with proper evidence and facts can try a case and get a conviction, and more than that, I mean that the violations of this law can be reduced to be probably commensurate with the violations of other laws.
Reed reminded her that Lincoln Andrews, the assistant treasury secretary in charge of Prohibition enforcement, had said in earlier testimony that the seizure of 172,000 stills in the previous year represented only one out of ten in existence. Seeking a comparison for argument’s sake, Reed mused, “Do you think it is the same sort of a problem as horse stealing or burglary or highway robbery?” Willebrandt answered no, “because we are long past the time when so-called first citizens indulge in highway robbery, horse stealing, and burglary.” Reed pushed again, asking whether she believed the law could be enforced to the same degree as any other. Willebrandt did, basing her assessment on the success of enforcement in locations where local law agencies did their fair part. When full transcripts of the hearings were published, Willebrandt’s testimony was buried nearly one thousand pages deep; the testimony of Lincoln Andrews, who made similar statements about enforceability with additional agents and training, began on page forty-five. Roy Haynes, the commissioner of Prohibition, had not appeared at all.
On March 8, Judge Neterer sentenced Roy Olmstead to four years in a federal penitentiary and assessed him an eight-thousand-dollar fine. Olmstead wrote the verdict down in a little red book, his casual manner unflappable. A U.S. Marshal placed him in custody, but only until bail could be arranged. Mrs. Olmstead had her husband out that same afternoon, having sold their home for thirty thousand dollars. Their appeal had been filed in federal court, with a motion for a stay on jail time, so once bail was arranged, the Olmstead gang might spend as much as a year waiting for the U.S. Circuit Court of Appeals to offer a ruling, one that might send the “whispering wires” case back to Neterer or on to the Supreme Court. If they lost the appeal outright, Olmstead would have to serve at least two and a half years before he would be eligible for parole.40
Roy offered no comment to the press at his sentencing, perhaps at last, rather too late, realizing that allowing himself to become a public figure, maintaining an office downtown and a mansion in a fashionable district, had made William Whitney’s job easier. A few days later, the Olmsteads held an estate sale to clear out their house. Roy absented himself while Elsie watched the throngs of people poke and prod through her belongings, and bravely kept up appearances for the reporters, making it sound as though downsizing to a smaller home would be good for them.41
The sale of his home and its contents may have been when Roy Olmstead divined the truth, one that tens of thousands of men in his industry faced: for all his efforts, he had created nothing of real and lasting significance. The money from rum-running and bootlegging had vanished; the superstructure of his enterprise broken; his reputation in the community, of which he had been so proud, irrevocably diminished. A convicted felon facing time behind bars had few respectable friends and no social standing. Whatever the long-term effects of his conviction, Olmstead needed money to appeal the decision to the Circuit Court and more money to pay for his defense of the Woodmont Beach indictment, still awaiting a court date. Like many convicted felons free on bail, especially those tens of thousands caught violating the Volstead Act in the 1920s, Olmstead went back to work in the only job that could get him out of the hole: running rum from Canada, humping thousands of cases on and off boats to the caches used by their distributors in town.
In one last gambit, Olmstead went to Tom Revelle’s home and threatened the U.S. District Attorney. If two of Olmstead’s operatives, recently caught by the Prohibition Unit, were indicted, Olmstead would go to the press about payments Al Hubbard claimed to have made to Whitney and Lyle, as well as bribes paid by Olmstead to Revelle’s assistant, Clifford McKinney. Revelle, who knew nothing of these payments and alleged bribes, did not hear enough in Olmstead’s threat to realize that Hubbard was playing a double game. Perhaps Revelle understood the threat to mean Olmstead would betray Hubbard’s secret undercover work. By coincidence, William Whitney was at Revelle’s house, and Revelle brought him in from another room. Whitney bucked up Revelle’s courage and the two men refused to make any deal with Olmstead. As Olmstead walked out the front door, though, he probably failed to realize his exit meant Al Hubbard was home free. Like Revelle, Olmstead had missed any clues about Hubbard’s true allegiances and actions.42
A few days later, on May 13, 1926, Revelle announced indictments for liquor conspiracy against nearly two hundred defendants, including Olmstead, stemming from the bust at Woodmont Beach. Roy Lyle, the region’s Prohibition administrator so often in Whitney’s shadow, spoke to reporters about the “smashing blow” these indictments dealt to liquor law violators in the Pacific Northwest, a comprehensive “take down sure to have national and international significance.”43 The next morning, the former King of the Bootleggers took a familiar trip across town and presented himself at the U.S. Marshals’ office to be taken into custody only long enough to post bail.44 Whitney knew it was time to announce the ace up his sleeve. The titular head of the Prohibition Unit stood up and shocked everyone by announcing, “Alfred M. Hubbard, 23 years old, long believed to be a confidential aide of Roy Olmstead, convicted liquor king, has been a secret agent of the federal dry office for some time.” Pouring it on, Whitney delivered the startling news that “the cases which resulted in the liquor conspiracy indictments which the grand jury has just returned were all due to Hubbard’s work.”45 In an impromptu press conference, Whitney’s protégé stood before reporters and took questions. When asked what his other boss, Roy Olmstead, would say, Hubbard matter-of-factly responded, “Well, all I can say is Olmstead was doing wrong, wasn’t he?”46