On 7 January 1910, Louis Brandeis found himself with a new client, Robert J. Collier. The magazine publisher and his editor, Norman Hapgood, were no strangers either to the Boston attorney or to political controversy. (Brandeis had placed his important savings bank insurance piece with Hapgood.) Collier’s magazine had run more than a fair share of muckraking articles attacking corruption in both big business and government, but its latest venture into airing the foibles of the powerful had triggered a congressional investigation, and Collier worried that it could expose his magazine to libel charges. Collier chose Brandeis after a conference at which a number of names were proposed. In the end, Norman Hapgood suggested Brandeis for the simple reason that he would be the one most likely to win the case. That argument carried the day. Over the next several months Brandeis practically lived in Washington, returning home on Saturday night and going back the following evening. His investigation of the Taft administration’s efforts to cover up a controversial firing added to his reputation and set the stage for six heady years of involvement in national reform and politics, culminating in his appointment to the Supreme Court.
Although the Pinchot-Ballinger affair is often depicted as primarily a fight between protectors of the environment and robber barons who would despoil it, the evidence suggests Brandeis may not have understood the basic issues in the case, insofar as they involved competing philosophies of both conservation and management. He found that Taft had deliberately misdated a letter, and Brandeis focused—one might even say fixated—on that issue to the exclusion of other large and important matters. This does not mean that President Taft acted wisely or correctly in what he did, but rather a debate that should have resulted about conserving the nation’s resources never took place.
In part this resulted from the role Brandeis accepted—lawyer for Collier—and he did not try, as he had in other instances, to be counsel to the situation. He had been retained to defend Collier’s interests, and the publisher paid him handsomely for his services, $5,000 a month plus expenses. His involvement with conservation issues proved very limited, and it never engaged his interest as did his other reforms.
FIRST THE FACTS, or the facts as Brandeis would have seen them in January 1910.
In the latter part of the nineteenth century, Americans became aware that their march across the frontier and the industrialization of the nation had begun to imperil some of the natural resources they had always taken for granted and believed to exist in infinite supply. In 1872, Congress created the first national park, Yellowstone, covering two million acres in Wyoming, Montana, and Idaho. Although both Benjamin Harrison and Grover Cleveland withdrew federal lands that became national parks and monuments, the conservation movement languished until Theodore Roosevelt took office in late 1901. A young man named Gifford Pinchot, who had studied forestry in France and then almost single-handedly introduced that science into the United States, caught Roosevelt’s attention and converted him into a champion of conservation. A major section of Roosevelt’s first message to Congress dealt with conservation, and during his administration he established six national parks and sixteen national monuments. In 1901, the government held 45 million acres in government preserves; by the time Roosevelt left office in March 1909, he had added 150 million acres. Roosevelt’s conservation program proved to be among his most enduring achievements. Much of that credit belongs to Pinchot, who, as head of the U.S. Forest Service, had created an informal network among several departments to facilitate the withdrawal of lands.
William Howard Taft, Roosevelt’s handpicked successor for the White House, promised during the 1908 campaign that he would continue these policies, but many conservationists took alarm when Taft replaced James R. Garfield with Richard A. Ballinger as secretary of the interior. The president, upon Ballinger’s advice, also eased out a number of officials in the Interior, Agriculture, and Justice departments who had played key roles in facilitating the removal of public lands to a protected status during the Roosevelt administration. Both Ballinger and the new attorney general, George W. Wickersham, had ties to firms such as the Aluminum Company of America that had long sought open access to public lands to exploit mineral resources and waterpower.
In August 1909, Louis R. Glavis, a field division chief in the General Land Office, informed Ballinger that he had doubts about the legality of the so-called Cunningham claims, in which the Guggenheim mining interests planned to develop Alaskan coalfields that constituted about 15 percent of the Bering River coalfields. These claims had initially been validated by Ballinger himself, back when he served as commissioner of the General Land Office in 1907. A subsequent investigation by federal agents charged that the Cunningham claimants had broken the law by collusive action, and that they planned to sell off some of these lands to a Morgan-Guggenheim syndicate after they had been clear-listed, another violation of federal law. Nonetheless, Ballinger insisted on clear-listing the claims, only to have to reverse himself on the direct orders of Secretary of the Interior Garfield.
Ballinger had left the post of commissioner in 1908, and Glavis, who had been part of the federal team investigating the patents, obtained further evidence that collusion existed; he also found a copy of a contract between the Cunningham group and the Morgan-Guggenheim syndicate. In the meantime, Ballinger accepted a fee to represent the claimants before his old agency, the General Land Office. A short time after Ballinger became secretary of the interior in March 1909, he removed Glavis from the investigation on the grounds that he was moving too slowly. Ballinger apparently believed that an expedited examination would clear the Cunninghams of any allegation of wrongdoing and confirm their claims. At this point Glavis took his story to Pinchot.
Taft had kept Pinchot on as head of the U.S. Forest Service. The “Forester,” as everyone called him, took advantage of his direct access to the White House and presented Glavis’s charges to Taft, who in turn requested a reply from Ballinger. Ballinger, accompanied by Assistant Attorney General Oscar Lawler, went to see Taft at the president’s summer home in Beverly, Massachusetts, with an enormous collection of documentary material. On 13 September, Taft gave the press a lengthy statement in the form of a letter to Ballinger fully exonerating his interior secretary of any charges of wrongdoing and authorizing the dismissal of Glavis from his post. Taft recognized that it could split the party if conservationists saw this as an attack on those policies championed by Roosevelt and Pinchot, so he appealed to the Forester not to let this minor incident mar their good relationship.
Secretary of the Interior Richard A.
Ballinger, 1911
This ought to have been the end of a trivial dispute had not both Pinchot and Glavis been so determinedly self-righteous and convinced that Ballinger—and Taft—had undermined the conservation movement. Even as Taft tried to calm the Forester down, Glavis gave his denunciation to Collier’s, which published it in the 13 November 1909 issue with such striking subtitles as “The Whitewashing of Ballinger.” The cover ran a banner asking, “Are the Guggenheims in Charge of the Department of the Interior?” with the head of Richard Ballinger in the crook of the question mark. Glavis, who refused any money for the article, very carefully avoided any direct charges of criminality. Pinchot kept up his criticism of Ballinger and of the administration’s public lands policy, and wrote a letter to Senator Jonathan P. Dolliver (R-Iowa) admitting that the U.S. Forest Service had been supplying anti-Ballinger material to the press, praising Glavis, and indicting the interior secretary as a foe of conservation. Dolliver read it on the floor of the Senate, and Taft now had no choice but to dismiss Pinchot.
The public uproar over the article led to a congressional investigation of the charges. Given the Republican majorities in both houses of Congress, the administration felt confident it could control the hearings. But Collier had Brandeis, and although Pinchot retained the noted Philadelphia lawyer George Wharton Pepper to represent him, he joined with Collier, and Pepper let Brandeis take the lead. Collier secured the services of Joseph Cotton Jr., a top New York lawyer, to represent Glavis, who also agreed to let Brandeis direct the case. With Cotton came one of his associates, George Rublee, a school classmate of Norman Hapgood’s who would quickly become Brandeis’s right-hand man, both in the Interior Department hearings and later in drafting legislation for the Wilson administration.
Taft also failed to take into account the growing revolt in both chambers by progressive Republicans, led by men such as Robert La Follette in the Senate and George W. Norris in the House. George Rublee believed that the intensity of the Pinchot-Ballinger investigation grew out of this insurgency as much as from conservationists opposed to the Taft-Ballinger policies. Brandeis clearly understood this. He recognized that in order to vindicate his client, he would have to prove Glavis’s charges, but from the beginning he appreciated the political nature of the hearings and managed them brilliantly. The Republican members of the committee expected the Collier’s team to allege fraud, and they believed that such a charge could not be proved. Brandeis adopted a different strategy, one that gave him a great deal more flexibility and also allowed him to bring in issues separate from the Glavis charges. “We’re not trying to prove a fraud,” he said, “we’re just trying to protect the public interest.”
THE COMMITTEE MET for the first time on 26 January 1910, chaired by Knute Nelson, the longtime Republican senator from Minnesota. Although some of the conservation forces saw him as an enemy because of his close ties to the Taft administration—Gifford Pinchot later called him “Old Guard to the finger tips”—Nelson’s reputation is actually more that of a progressive, albeit not in the same league as Robert La Follette or George Norris. Given the circumstances, Brandeis had little to complain about in regard to Nelson’s conduct of the hearings. There would, of course, be disputes over the massive amount of documents that Brandeis wanted from the Interior Department, and Nelson would have no truck with Brandeis’s efforts to get documents related to the president. “I had a private tussle with Senator Nelson,” he told Alfred, “but won my point & relations are diplomatically friendly.”
In his first weeks of studying the case, Brandeis had the benefit of information supplied by both Glavis and Pinchot, in the form of copies of letters and memoranda, as well as notes on specific events and documents. Utilizing this material, on 27 January, Brandeis sent the first of many letters requesting information from the Interior Department, including letters specified by date and correspondent, as well as related material. Number 4 out of a list of twenty-five items read, “Original letter of L. R. Glavis to commissioner, November 12, 1907, and all other papers on file in the General Land Office relating to soldier’s additional application No. 69 therein referred to.” Number 5 asked for the daily reports and report books for “Special Agent H. K. Love, June 15, 1907, to date of retirement from service.” No. 7 referred to “all letters or telegrams received from and copies of letters and telegrams sent bearing date between November 23, 1907, and December 7, 1907, between L. R. Glavis and Fred Dennett, assistant commissioner, or personally, or H. H. Schwartz, chief of field division, or personally in relation to Alaska coal lands.” None of the items in these letters referred to the White House, and so did not fall under the rubric of executive privilege. While much of this material involved the internal administrative workings of the Interior Department, none of it would, in modern parlance, be “classified.” Brandeis gave enough specifics so that he could not be accused of going on a fishing expedition, but by asking for all materials related to certain documents, events, or persons, he no doubt hoped to uncover evidence supporting Glavis in the secondary material.
Conservationist leader Gifford
Pinchot, 1921
Upon receipt of the material Brandeis went over it page by page, making new lists of documents to be submitted to the committee. As Norman Hapgood later wrote, everyone agreed that Brandeis should take the lead because he fully understood the facts. “The business of the Land Office, and of the Interior department generally, is very complicated indeed,” Hapgood wrote.
The only person who was held to understand it in detail was a permanent official named [Edward] Finney; and he was the most important witness in defense of Ballinger. When Brandeis had finished cross-examining him, Finney came impulsively over to where I was sitting in the committee room, and exclaimed, “Mr. Hapgood, I have no respect for you. I think you are doing this to make circulation for your paper. But I want to say you have a wonderful lawyer. He knows the business of the department today as well as I do.”
Brandeis led Pinchot, Glavis, and other witnesses through their testimony and appeared very happy with the results. Glavis, he said, “has proved an extraordinary witness. Have never seen his equal. Der junge Mensch is only 26.” He gave Pinchot his head, and in his initial testimony Pinchot made quite clear the points he wanted the committee to understand: Ballinger had become interior secretary determined to undo Theodore Roosevelt’s conservation policy; Glavis had been telling the truth about Ballinger and the Cunningham claims all along, and had been ill-treated for his integrity; and the Taft administration had adopted the position of placing the political and legal burden on those who would protect the environment rather than on those who would despoil it. “We had a great day yesterday,” Louis told Alfred. “Pinchot’s charge was fine & impressive.”
Brandeis knew that while the major newspapers all carried stories about the hearings, much of the material would appear complicated to the average reader. So he utilized his contacts with reporters to get them to write stories setting out the charges against Ballinger in plainer language. Norman Hapgood, of course, ran one or more pieces in every issue of Collier’s magazine, and to ensure accuracy, as well as not to endanger the case, he sent them to Brandeis ahead of time. The Boston attorney made time to read, comment on, and occasionally emend these writings, and also alerted Hapgood as to matters he intended to bring up, so that the editor could start working on those articles.
At the time, the influential New York Evening Post and the Nation, both owned by Oswald Garrison Villard, had been rather skeptical of the Glavis charges and had been running editorials supportive of the administration. George Rublee knew Villard and with Brandeis’s blessing went up to meet with him. Villard agreed that there might be something to the charges and directed his editor to talk with Rublee, who then spent three days going over the testimony point by point. Convinced by this evidence, the paper and the magazine came out with strong editorials favoring Collier, and sent a reporter down to Washington to cover the investigation in person. Rublee believed that once the Post came over, the tide turned, and soon other papers that had been hostile, such as the Springfield Republican, also changed sides.
Ballinger may have intended to take the stand early to defend himself, but after learning how Brandeis had, on cross-examination, tripped up every witness testifying for the interior secretary into making damning admissions, he decided not to appear until the end of the hearings. Adolph Behrens, for example, had been called by John J. Vertrees, the lawyer representing Ballinger, in order to undermine part of Glavis’s testimony. Instead, in his cross-examination of the Seattle real estate speculator, Brandeis discredited Behrens, caught him out in embarrassing lapses of memory about specific events, and then showed his connection to fraudulent Alaskan land claims. “The enemy fell into every trap set,” he wrote, and Ballinger’s refusal to go on the stand “is better for us than if we had the immediate chance to flay him, which might have resulted in our getting some severe kicks.” The rest of the administration witnesses had been nothing but fun, and “Keith’s Continuous Vaudeville couldn’t compete for a minute.” It kept me “laughing 6 hours long & I had to go out to the La Follettes to let off the accumulated merriment.”
The hearings, far from being controlled by the administration, turned into a major embarrassment for Taft and his allies. Toward the end of March, Louis ran into his former brother-in-law Charles Nagel, now Taft’s secretary of commerce and labor. They met outside the new Willard Hotel on Pennsylvania Avenue, and Nagel seemed uncomfortable. The two men made some small talk—what Louis’s old Latin teacher in Dresden called “allotries”—and chatted about Nagel’s daughter, Hildegard; Charlie “was pleasant enough; but he looks worn & troubled.” The Taft people are “up against it,” and the president “can make more mistakes in a week than the rest of them can remedy in a year.” In fact, Taft’s troubles would soon escalate.
BY MID-FEBRUARY, Brandeis, Collier, and Pinchot could feel fairly certain that regardless of the final committee vote, they had made their case regarding the veracity of Louis Glavis’s charges, and that the Interior Department had been less than vigorous in protecting the nation’s natural resources. Taft, however, had stood by Ballinger, and many wondered how much longer the secretary would enjoy the president’s confidence. Initially, Brandeis suspected Taft of little more than political maladroitness. The president, Louis had told his brother, “is getting into an ever more uncomfortable position & seems ever more foolish in his actions.”
Then one night Brandeis called Norman Hapgood and asked him to go out for a walk with him. When Hapgood arrived, he found the Boston lawyer “excited as I have seldom seen him.” He swore the editor to secrecy, because he had come up with a theory that seemed “so theatrical” that he did not want anyone else to know until he could prove it. In going over the documents, Brandeis had noticed a number of discrepancies in the dates relating to when the attorney general and the president had gotten certain information, and he had concluded that Taft could not possibly have studied all of the documents delivered to him. The report had been predated, and Taft had lied about the care he had supposedly given to the matter. The problem would be how to prove it.
Sometime in the third week of February, Brandeis dined with the former interior secretary James R. Garfield and met Frederick M. Kerby, who had been private secretary to Garfield and had then been kept on by Ballinger. Kerby told Brandeis that when Ballinger had gone to see Taft in Beverly the preceding September, he took with him a memorandum prepared by Oscar Lawler, the assistant attorney general who served as the Interior Department’s chief counsel. That document fully exonerated Ballinger from Glavis’s charges. Taft essentially adopted the Lawler memorandum and a few days later released it over his name. Kerby’s story confirmed Brandeis’s suspicions: the president had lied and had been a collaborator in Ballinger’s efforts to defraud the public. As far as Brandeis was concerned, Taft had committed a sin even greater than those charged against Ballinger; he had violated the public trust and lied to the American people. Had Kerby come forward at that time, it would have been easy enough to prove his allegations, but Kerby had a family to support and could not afford to lose his job. Brandeis would have to prove the charge but with evidence from other sources.
On 21 March, he sent Senator Nelson another request, but not for Interior Department material. This time he wanted documents from Attorney General George Wickersham, “written, dictated or made prior to September 20, 1909 and sent or submitted by him to the President, his private secretary or other assistant or which were received by the Attorney General or any assistant from the President, private secretary, or any other person.”
Here Brandeis surely trod on dangerous ground. Ever since the days of Chief Justice John Marshall, the courts had recognized an executive privilege, one in which a president could withhold documents from Congress because they involved discussions with his advisers. The rationale had been that if people speaking or corresponding with the chief executive feared that their advice or their views on events or persons could be made public, they would refuse to be candid, and thus deprive the president of important advice needed to make a decision. Moreover, while Collier, Pinchot, and others always understood that Taft, as president, bore the ultimate responsibility for the actions of his cabinet members, they had never planned on attacking him directly. To show Ballinger up and prove the charges against him would be enough of an assault on the administration.
Attorney General George W. Wickersham,
1909
In fact, the move made Robert Collier a bit nervous, and he asked Brandeis how much longer the hearings would continue. While well-to-do, the publisher did not have unlimited resources, and the monthly fee of $5,000 had been adding up; perhaps a subordinate, someone like George Rublee, could take over the work. However, if Brandeis in his judgment felt he needed to stay with the case, then he should do so. Brandeis assured his client that the investigation would not “drag along for many months,” and he believed it would be over by the end of May. But he would, if possible, hand over some of the work. “Indeed, my Boston interests are so clamorous, that it must be done.”
Brandeis in fact had other reasons for ending the work as soon as possible, including loneliness for his wife. In his daily letters he reported about the people he met, the latest political gossip, and doings at the La Follette home. He spent one evening with Justice and Mrs. Holmes, “where we dined aux trios as of old, with most cordial reception.” So cordial, he confessed, that “I was led to talk far more than is my wont, or at least, intention. Indeed this Washington Solitude is making me fearfully social.” He missed Alice, who, enjoying a period of good health at this time, gladly gave in to her husband’s importuning and came down to spend some time with him in Washington. She reported that although Louis “is enjoying the experience, I think he is getting a bit tired of it now and would be glad to be getting home.” But with the change in focus from Ballinger to Taft, she figured the prospect of his return “is rather far off.”
Indeed, taking on Taft altered the tone of the hearings and also raised the ire of regular Republicans against Brandeis. “I understand Wickersham is very hot against me,” he told Al, and he noted that the attorney general had become Taft’s chief adviser, leading the attack against reformers within the Republican Party. To Alice he wrote, “I am becoming much hated for the vigor of my attack, & think Ballinger et al. regard me with quite as much disfavor as the New Haven crowd.” To some extent he returned the favor, and when he learned that several measures backed by the president had failed to win congressional approval, he noted that the suppression of “Taft measures is a great satisfaction. Like Indians, only dead Taft measures are safe.”
When his brother worried that perhaps Louis had for once taken on too powerful an enemy, he replied in what was for him a rare moment of introspection:
There is nothing for us to do but to follow the trail of evil wherever it extends. Fiat Iustitia! [Let justice be done!] In the fight against special interest we shall receive no quarter and may as well make up our minds to give none. It is a hard fight. The man with the hatchet is the only one who has a chance of winning in the end. This chance is none too good. There is a chance—but a chance merely—that the people will now reverse all history and be able to control. The chance is worth taking, because there is nothing left for the self-respecting man to do. But every attempt to deal mercifully with the special interests during the fight simply results in their taking advantage of the merciful.
There is a note of self-righteousness here, as well as one of despair. The world is not a fair place, and those who have the money and the power will do all they can to get even more. Most people had already given up and made the best bargain they could just to survive in such an environment. But Brandeis could not. He had to fight, he had to try to see justice done, and he could not be merciful in this fight. Several years later when he went on the Court, his wife referred to these years—and to these fights—as his time of knight-errantry. Surely Louis Brandeis never saw himself as a Don Quixote, and did not consider himself a Galahad either. At his death Felix Frankfurter compared him to Bunyan’s Mr. Valiant-for-Truth. Brandeis did make all of his reform efforts into moral struggles, and this no doubt gave him the internal strength to carry on against great odds.
TO PROVE KERBY’S ALLEGATION, Brandeis had to show that Taft could not possibly have read the material, digested it, and then written the report exonerating Ballinger. Glavis and Pinchot had seen Taft at Beverly on 18 August 1909. On 6 September, Ballinger and Oscar Lawler went to the president and brought with them the large number of documents that supposedly answered all of Glavis’s accusations. The material, which Taft eventually turned over to the committee, ran 661 pages of small type in the hearings report. One week later, on 13 September, the president issued his letter exonerating Ballinger. Brandeis had carefully read all of this material, as well as a “Summary” and a “Separate Report” prepared by Attorney General Wickersham dated 11 September, which filled an additional 87 pages of the report, and it had taken him many hours to do so. Had either Taft or Wickersham done nothing else between Ballinger’s visit on 6 September and the issuance of the letter a week later, then possibly they might have done what they had claimed—read the material, prepared a report, and dictated the letter.
As Alpheus Mason wrote, “Brandeis knew only one man who could have done that job in that time, and his name was not Wickersham.” Moreover, he knew that during that week the attorney general had been heavily involved in preparing amendments to the Interstate Commerce Act. As for Taft, the daily press always carried a report on what the president of the United States had done, with whom he had met, and when he had played golf, and by examining these reports, one could piece together the president’s schedule between 6 and 13 September. Brandeis and Hapgood began collecting news clippings from that period, from which they would painstakingly re-create Taft’s daily schedule, as well as those of some of his associates, sometimes down to the minute.
At the same time, in his cross-examination of witnesses, Brandeis began to ask whether a letter had been prepared for Taft, and if so, when? When Edward Finney, the head of the General Land Office and a Ballinger ally, took the stand on 22 April, Brandeis managed to elicit the fact that a report had been written, but that Finney did not know when that had been. “There was a fearful pall on the assembled company when the point was developed,” he told Alice. But there had been no denial from either the Justice Department or the White House.
A week later he pressed the committee members to insist on having the attorney general provide the materials he had requested, but they turned him down by a vote of 7–5 along party lines, a vote that Brandeis would continue to run into for the rest of the hearings. “Everything points to our leaving them caught in a trap,” he told Alice, and so he would have to seek help from his allies elsewhere. At his request, insurgents introduced a resolution in the House on 2 May echoing the demand for papers that Brandeis had earlier sent to Senator Nelson. This time Wickersham responded in an angry letter, denying any wrongdoing. Even so, he would not comply with the request, since “due regard for the constitutional authority of the Executive forbids that the action of the President and his advisor shall be called into question by a co-ordinate branch of government in any way.” Brandeis could not answer the constitutional argument, but he became even more convinced that the administration had engaged in a major deception of the American people.
Finally, on 29 April, Richard Ballinger took the stand and immediately went on the attack, denouncing “lies” and “liars.” As Brandeis prepared to cross-examine him, he turned to George Rublee and said, “Hold my hand.” Rather than go immediately to the Glavis charges, Brandeis picked up on the interior secretary’s insistence that he and all other members of the Taft administration had always been guided by a scrupulous adherence to the law. Why then, Brandeis wanted to know, had he written a letter to a subordinate ordering that all appointments in the Interior Department not filled directly by the president be referred to the postmaster general, Frank Hitchcock, who controlled political patronage? Where, Brandeis wanted to know, did the law state that positions exempted from civil service because of requirements of special knowledge—expertise in coal and minerals—should be filled on the basis of political service, a clear reversal of the policy that had existed under Secretary Garfield? After trying to dismiss the question, Ballinger practically snarled at his foe that such appointments were “a matter of my own concern which I do not propose to state anything further about.” In a little over a minute, Brandeis had essentially shown that Ballinger, and by extension the administration, had no respect for the law they had sworn to uphold.
Ballinger from that point on must surely have regretted that he had agreed to appear on the stand. After friendly questioning from Vertrees, in which he had been tossed one softball after another, Ballinger now faced Brandeis, who attacked him on everything he said, forcing him to make corrections, or claim that he had never done something, only to be confronted with the testimony of another witness who said he had done just that. He denied that he had ever acted as counsel to the Cunninghams, only to have Brandeis produce a letter from the former governor of Washington, allied with the Cunninghams, identifying Ballinger as “counsel for our people.”
Eventually, Brandeis raised the issue of whether a memorandum had been prepared by Oscar Lawler and delivered to Taft in Beverly on 13 September, and after denying that he knew anything about such a memorandum, or what had happened to it, Ballinger reluctantly conceded that Lawler had with him “a sort of rásumá of the facts as set forth in the records.” Brandeis would not let go, and eventually Ballinger admitted that the report had been prepared at Taft’s request and that Ballinger had carefully gone over it. As Brandeis forced one concession after another out of the secretary, Ballinger, who had been on edge since the cross-examination started, would flare up in anger against his accusers. At one point Brandeis cautioned him, “Mr. Secretary, if I may be allowed to suggest, I think the committee is more desirous of light than heat.”
In the cross-examination Brandeis showed why opponents feared him as an adversary. Never raising his voice, never engaging in personal attack, he stuck to the points like a bulldog. When Ballinger claimed he could not remember, or misstated events, or refused to make a direct reply, Brandeis simply asked the stenographer to repeat the question. Ballinger’s patience, or what little he had left of it, snapped when Brandeis referred to a letter in which the secretary had declared that he intended to “kill some snakes” in the Interior Department.
“When it comes to snake-killing,” Ballinger shouted, “I want to say that if I stay at the head of the Department they are going to be killed, and I am going to administer that Department as I consider it should be administered, with loyal support from every man in it, and I want it understood that I am serving notice in that respect.”
“Well, now,” Brandeis asked, “did it ever occur to you, Mr. Secretary, that this supposed lack of loyalty, or, putting it another way, that the personal loyalty of one in public service to a superior or to an associate might involve disloyalty to 90,000,000 people?”
“I will not argue that question,” the secretary responded.
BY NOW BRANDEIS KNEW that there had been a memorandum prepared for Taft, but so long as the committee voted not to demand the documents from Oscar Lawler or George Wickersham, Brandeis could only suggest the possibility, and he understood the credulousness that this suggestion elicited. After all, William Howard Taft was president of the United States, not some robber baron or petty crook! In an era before the likes of Richard Nixon’s Watergate or George W. Bush’s claim of weapons of mass destruction in Iraq, Americans expected their presidents, if not to tell all of the truth, at least not to lie to them. Brandeis felt more and more exasperated. “The situation is now pretty tense & my disgust for the administration is now unbounded,” he told his brother. “If only there were a Democratic Party. What havoc would be wrought!”
Then fate intervened in the form of a young man with a conscience. Frederick M. Kerby had been paying close attention to the hearings, and he realized that without his testimony Brandeis might never be able to prove the truth of the allegations. He had already told the story of taking the dictation for the Lawler memorandum to his former boss, James Garfield, and had repeated it to Brandeis at Garfield’s request. He could not afford to be fired, but neither could he keep silent. He asked his wife what to do, and then a newspaper syndicate, piecing out his connection from the Brandeis allegations, contacted him and told him it was his patriotic duty to tell his story. In addition, they offered him a job afterward, thus relieving him of his financial concerns.
On 14 May 1910, Kerby released his statement, and it made the headlines in nearly every afternoon newspaper in the country. In specific detail he told how Oscar Lawler had called him into Ballinger’s private office on Friday, 10 September 1909, and there, with Ballinger checking every statement, and with assistance from three of Ballinger’s closest aides, Lawler had dictated the statement in the first person, as if he were Taft writing to Ballinger. Kerby had typed it triple-spaced, in case the president wanted to make any corrections. The whole event had been surrounded in secrecy, with Kerby warned against putting any of the early drafts into a wastebasket; every note, every scrap of paper, had been taken into another room and burned. They finished near midnight, and Kerby handed over the original and the carbons, one of which Ballinger put into his confidential file. Lawler took the original and one copy with him to Beverly the following Monday, the “rásumá” that Ballinger had vaguely recalled in his testimony.
Ironically, the same William Howard Taft who had been so astute as Roosevelt’s secretary of war and would later be so effective as chief justice, proved one of the most politically inept of all American presidents. He had allowed Gifford Pinchot to provoke him into firing the Forester, had managed through his handling of the Glavis charges to make himself appear as an enemy of conservation, and now, in the last scenes of the farce, managed to get caught out in the lie.
As news of the Kerby statement spread, Attorney General Wickersham suddenly contacted Knute Nelson, claiming that he had ordered a further search of Justice Department files and “found a paper which I transmit to you herewith, and is either the original or a copy of the memorandum prepared by Mr. Lawler on September 11, 1909.” He had left this with other papers at the president’s home in Beverly on 12 September and then received it back, along with other materials about the Glavis matter, about a week later. Since then, they had lain forgotten in the files.
Ballinger, on learning of the Kerby bombshell and unaware of Wickersham’s “discovery,” went directly to the White House, only to learn that Taft had gone to play golf. The president’s secretary managed to get a call through to Taft, and he and Ballinger had a long conversation, after which the interior secretary, acting on Taft’s orders, issued the following statement to the press:
With reference to the published affidavit of Mr. F. M. Kerby, the stenographer in the office of the Secretary of the Interior, to the effect that the President’s letter of September 13, 1909, exonerating Secretary Ballinger was substantially prepared for the President’s signature by Assistant Attorney-General Lawler, it was said at the White House today that there is absolutely no foundation for any such statement. The President dictated his letter personally as the result of his own investigation of the record and in consideration of documents and papers in his possession at the time and upon the general report to him.
The storm of criticism that greeted this statement when the evidence so convincingly showed just the opposite led to an emergency meeting of Taft’s cabinet that night, and then a more forthright statement from the president. In it the White House confirmed Brandeis’s assumptions, not only about the 13 September Taft letter to Ballinger, but also that the summary prepared by the attorney general that Taft claimed he had relied upon for that letter had, in fact, not been prepared until several weeks later, following the publication of the Glavis charges, as a post hoc justification for the president’s decision.
There would still be a few days of testimony left, in which the Republican members of the committee tried to deflect criticism from Taft. Oscar Lawler appeared on the stand and accused Brandeis, James Garfield, and Gifford Pinchot of having him and other members of the administration “gum-shoed” by professional detectives. When Brandeis denied this, Senator Ollie James (D-Ky.), who had supported Brandeis throughout the investigation, asked him to explain how he had deduced all of the information.
“Every step in regard to the action of the President (and of others) appears by the collation of the Washington and New York newspapers, the Tribune and the Boston papers,” Brandeis told the committee. “Now, that is open to anybody. It is a perfectly simple way, but when you put those in sequence, one upon the other, you have what appears to be very extraordinary intimate knowledge.”
“Of gum shoeing?” asked Senator William E. Purcell of North Dakota.
“Yes,” Brandeis conceded, “of gum shoeing.”
Brandeis, who in addition to statistical reports read Arthur Conan Doyle’s tales of the Baker Street detective, said that deduction was nothing more than adding two and two, but you had to know which twos to put together. Clearly he and Sherlock Holmes knew how to add.
BRANDEIS AND VERTREES made their closing arguments, the hearings finally adjourned, and Brandeis went back home to Boston and to a much-anticipated vacation with his family on Cape Cod. “Next Saturday I expect to be with you in Dedham ‘for keeps,’” he promised Alice, “and not to leave my hearth until we move to South Yarmouth. It will be good to have a united family again.” George Rublee prepared the final brief on behalf of Collier, and the committee voted 7–5, as everyone had expected, to exonerate Ballinger of all charges against him. The majority report, signed by seven Republicans, declared, “No ground whatever has been shown justifying the opinion that he is not a faithful and efficient public officer.” The four Democrats, on the other hand, derided Ballinger as “an unfit man to hold the office of Secretary of the Interior…. He is not sufficiently devoted to the interests of the common people, or sufficiently diligent or resolute in resisting the insidious aggression of special interests.” (A second minority report, by Edmond H. Madison, insurgent Republican of Kansas, held the Glavis-Pinchot charges had been proven, and that Ballinger should go.)
In the end, Congress took no action on the reports. Collier and Hap-good had the satisfaction of seeing that the charges in the Glavis article had been vindicated, and that they stood in no danger of a libel suit. Public pressure forced the Interior Department to cancel the Cunningham claims, and as it turned out, the land involved did not have the coal reserves that the Guggenheim syndicate had anticipated. Friends tried to help Glavis and raised the funds for him to have an apple orchard in Oregon, but he abandoned it (losing the investors all of their money) and had a rather checkered career afterward. Ballinger did not lose his job immediately; it would have been too embarrassing to Taft to have fired him, but in March 1911, after a series of political missteps, Ballinger offered his resignation and the president accepted it. Once rid of both the Forester and Ballinger, Taft proved to be a friend of conservation, and actually withdrew more public lands in his four years in office than Roosevelt had in eight. Moreover, where Roosevelt had relied on executive authority, Taft got Congress to pass enabling legislation to provide for an orderly and legitimate means of withdrawal.
The whole affair fed the fires of insurgency, and in the 1910 election the Republicans lost heavily, with Democrats winning control of the House of Representatives for the first time in nearly twenty years. Of the forty-one incumbent Republican congressmen defeated, only one was an insurgent. Three more progressives joined the Senate, the result of insurgent gains in the midwestern and western states. Although the GOP still had a majority of twelve in the upper chamber, Taft could not count on the insurgents to back his plans, nor could he count on a sufficient number of Republicans to sustain a veto.
The fight only enhanced Brandeis as a figure of national importance. When he took on Collier’s defense in January, Henry Watterson, the powerful publisher of the Louisville Courier-Journal, had to ask a friend about him. By May everyone in the country who read the papers knew his name. He had, of course, become a hero to the insurgents and to the Pinchot-led conservation forces. But his methods, and his embarrassment of the president, had also made him many enemies.
That Republican supporters of Taft would be angry is not surprising. They believed that the president had not done anything terrible and that the real scoundrels were Louis Glavis and Gifford Pinchot, who had taken a minor dispute and magnified it until it ruptured the party. Not only did the quarrel feed midwestern insurgency, but Theodore Roosevelt had come back from lion hunting in Africa and, thanks in part to the Forester’s urging, appeared ready to challenge Taft for the Republican presidential nomination in 1912.
Some people, moreover, recoiled in general from the idea of attacking the country’s chief executive as Brandeis had done. In 1910 the country could recall only one administration that had been plagued by corruption, that of Ulysses S. Grant after the Civil War, and even then Grant himself had not been personally involved. One believed that the president, no matter how bad his policies or how poorly managed his administration, stood above base dishonesty. In the midst of the hearings, for example, as Brandeis sought to get information on what the president had done, Senator Elihu Root (R-N.Y.) angrily told the Boston attorney, “We are not here to investigate the President of the United States.” He charged Brandeis with “endeavoring assiduously and not altogether ingenuously to lead the investigation into a trial of the President.” George Sutherland of Utah, later to be Brandeis’s colleague on the Court, agreed. To inquire into Brandeis’s charges against Taft, Sutherland declared, “is an insult to the President, and I, for one, do not propose to be a party to it.”
George Wharton Pepper, the old-line Philadelphia attorney retained to represent Gifford Pinchot, believed that Brandeis had gone too far in attacking Taft and forcing him to admit what, at most, was a common bureaucratic practice. In an interview years later, Pepper said,
I thought what had been done “was not cricket,” whereas Brandeis took the view that no public official had any right to have a private file and that as he was to give his whole time to the public, there was nothing beyond the reach of whatever strategy could be invoked to get possession of it. I found myself unable to argue the question effectively with Brandeis. It was a question of original apprehension. He felt thoroughly justified in doing what he did and I had a sporting instinct which condemned it.
Others also shared this view, often to Brandeis’s frustration. “New York is in dense ignorance of the subject,” he told his brother. Even normally astute persons like his friend Charles C. Burlingham did not understand that the president had, in essence, lied to the people.
Kerby’s participation also offended many, since it was expected that a private secretary would respect confidentiality. Theodore Roosevelt held Brandeis responsible for allowing this to happen. “Gifford isn’t a lawyer, not that I’m excusing Gifford,” Roosevelt told a friend. “But Brandeis is a lawyer, and should have known better than to engage in such business.” Brandeis ought to have known better than to use testimony obtained this way. In fact, Kerby had come to Brandeis, and once he knew about the deception, Brandeis figured out how to prove it. In fairness, a number of newspapermen had already begun to suspect that the letter had been written ahead of time, and in the end they came to Kerby and made it possible for him to go public. Brandeis had also questioned the sequence of events, and Kerby did little more than to confirm these suspicions. But the use of a private secretary’s information did not seem the “gentlemanly” thing to do.
Brandeis did not take any satisfaction in exposing Taft’s and Wickersham’s efforts at deception. “Yesterday was a terrible day,” he told his wife. “I felt almost like an executioner & was glad to have Norman Hapgood here to share the responsibility. But it was an awful thing for Wickersham to have done & unfortunately the President … is as guilty as W.” Dishonesty had offended Brandeis even as a boy, and as he grew older, this puritanical strain in him became ever more pronounced. In many of his reforms, such as the fight against the New Haven, he objected less to the goals of big business than to the methods it adopted, which included deceit and fraudulent accounting. In the 1930s, President Franklin D. Roosevelt referred to him as “Isaiah,” a reference to the Old Testament prophet’s insistence on morality. One should not think of him as a prig, because the practices he objected to had serious consequences, and he believed that if people got away with small dishonesties, these would eventually become larger crimes.
Taft had relied on the Lawler memorandum and also claimed to have utilized the more thorough examination prepared by Attorney General Wickersham. Had he come right out and said that he had engaged in a common administrative practice, to have a subordinate prepare a statement for his signature; that he had spoken with all of the parties involved, and believed Ballinger to have been in the right; that he had then issued a statement to that effect; and in due course the attorney general, who had been heavily engaged in other governmental business at the time, had done a separate investigation whose findings supported his own judgment, then all Taft could have been accused of would have been bad judgment resulting out of loyalty to his cabinet members. If and when it had been proven that the Glavis charges had been true, Taft could then have said he had been deceived, Ballinger would have resigned, and the president would have avoided the stigma of having been shown to have deliberately misled the public. In fact Brandeis had, prior to Kerby’s announcement, left Taft a loophole, pointing out that he had been misled, but Taft insisted otherwise. Brandeis would not have been upset by loyalty to subordinates, nor even by simple bad judgment; neither of these traits indicated a moral infirmity. As Brandeis told Hapgood, “It was the lying that did it.”
Pepper also hit directly on another aspect of Brandeis’s anger. Brandeis knew that people acted unwisely and at times dishonestly, but he drew a line between private acts, which, while regrettable, affected only the actors and those near to them. But deception that affected the public, either by business or by government officials, constituted a greater sin. As he made clear in his fight against the insurance companies and the New Haven, private enterprise, while entitled to a fair return on its investment, also had a duty to the public to provide goods and services at a reasonable rate and in a trustworthy manner. Officials of the government, whether elected or appointed, had an even greater responsibility, and he certainly subscribed to the notion that a public office is a public trust. Taft, Wickersham, Ballinger, and their ilk had violated that trust, not by bad judgment, but by outright dishonesty. That could not be forgiven.
Some people would probably call Brandeis naive, ignorant of the realities of political life, but this would not do justice to the man. He had a very good sense of himself and clearly understood his shortcomings as well as his strengths. He had a brilliant mind, a remarkable memory, and the tenacity to follow evidence trails. His solutions to problems such as savings bank insurance and the preferential shop displayed a creativity all too rare among reformers. His personal standards of honesty and fiscal integrity protected him against charges that he sought to enrich himself through his public efforts. This made him very attractive to reformers who over the years asked him on several occasions to run for political office, but he refused them because he understood that the very traits that made him effective as a reformer would make it impossible for him to be an elective official. He could, when the occasion demanded, negotiate on a solution, but not on principles. He could not have abided a life of constant compromise. The high idealism he cherished all his life would allow concessions to achieve a solution fair to all parties, but he could not tolerate dishonesty, especially by those chosen to guard the public’s interests.
OTHER ASPECTS TO THE DEBATE over conservation are worth mentioning, chief of which is the issue of scientific management of national resources. Gifford Pinchot acted as the prophet of this movement, arguing not that the nation’s natural treasures should be left in pristine form but that they should be managed and exploited in a manner that would renew the land. Lumbering could and should take place on public lands, but it should be done in a scientific manner. Advocates of progressive conservation included many businessmen, who responded to Pinchot’s call for the wise use of resources. “The object of our forest policy,” Pinchot declared in 1903, “is not to preserve the forests because they are beautiful … or because they are refuges for the wild creatures of the wilderness … but … the making of prosperous homes…. Every other consideration comes as secondary.” Today much of the environmental movement aims at the preservation of wilderness areas, and certainly Theodore Roosevelt shared some of that concern. For Pinchot, conservation meant utilization of resources, but in a scientific manner that would not leave forestlands denuded or mineral fields ravaged.
Brandeis himself loved the outdoors, and well into his sixties found time to go hiking and camping with friends and then with his daughters. He, however, would have been attracted to the notion that forests, coalfields, and other natural resources existed for the benefit of the people as a whole. A growing nation needed lumber to build houses, and a means by which forests could be managed to become a perpetual source of wood made eminently good sense. Here as in so many other areas, progressives like Brandeis sought to restore an order they believed had existed earlier in the nation’s life. The great sin of the postwar industrialization was that it destroyed the order and the sense of community that accompanied it and left the nation with social as well as economic and political instability.
Although conservationists counted Brandeis as a friend because of his role in clearing Glavis and Pinchot, he did not get involved in the movement to protect the nation’s natural resources. When it appeared that the Taft administration had given other lands around Controller Bay to the Morgan-Guggenheim syndicate, Brandeis very reluctantly agreed to look into it at the behest of Congressman James M. Graham (D-Ill.), but happily bowed out of the matter when the new interior secretary, Walter Fisher, resolved it.
In 1911, Senator Robert La Follette asked Brandeis what should be done about Alaska, and his response is interesting less for its practical suggestions than for the sense of idealism that suffuses it. First, adequate public transportation should be built at government expense, because if private capital controlled the railroads, it would also control the land. Lines would only be built to where capitalist enterprises would require them, and not to where the people would need them. Second, there had to be a system in place to prevent large syndicates from gaining control of the land and its resources. Ownership of the land ought to belong only to those who actually lived on and worked the land. “Alaska is the Land of Opportunity,” he declared. “Develop it by the People, for the People.”
The Brandeis plan is unusual in its emphasis on government ownership and control, unlike anything he ever proposed for domestic reform. It does, however, anticipate the plans for the development of Palestine that he put forward nearly a decade later. For both Alaska and Palestine he advocated a form of social engineering that he knew could not be implemented in the United States, because of the advanced state of industrial society. Alaska and Palestine stood empty (he paid no attention to the native Aleuts of Alaska, or the Arab population of Palestine, a trait common to most of those writing on the two lands at the time), and therefore one could try to create a particular type of society and economy. In the Alaskan proposal Brandeis began to articulate what he believed to be “the good society,” reaching back into the early years of the Republic to find his model—the Jeffersonian ideal of a democratic community with small-scale farming and business. There would be no “curse of bigness,” because government ownership and regulation would effectively preclude bigness.
Nothing in the plan conflicted with the scientific management of natural resources proposed by Gifford Pinchot and others. Brandeis did not advocate leaving Alaska as a pristine wilderness, and indeed the modern debates over the development of Alaskan oil resources in the Arctic National Wildlife Refuge would have made little sense to him. The question was never “to develop or not to develop,” but how it should be done, and how to protect the interests of the people as a whole against the depredations of the magnates. After writing his letter to La Follette, Brandeis said little more about Alaska or conservation, but he had a great deal to say about other things, and by this time his had become an important voice in the progressive movement.