When the Walker party reached the Albany station at 6:45 P.M., it was met by the blare of a brass band and the boom of aerial bombs touched off in his honor. A crowd of about five hundred had turned out on orders of the Democratic overlords of Albany. Mayor Walker was driven to his headquarters at the Hotel Ten Eyck, where he clasped his hands overhead in a prizefighter’s victory sign.
“I have no fear of removal,” Walker told reporters. “I am prepared to meet any charge. I want to hear the testimony—the sworn evidence—which will give me an opportunity to cross-examine. If the kidnappers of the Lindbergh baby were to be discovered tomorrow they would receive a trial. They would have the opportunity to hear their accusers and to cross-examine. There is certainly no charge against me that is worse than kidnapping.”
The mayor was clearly preparing the groundwork for a loud protest or a judicial appeal even before the hearings. He and his lawyers were aware that this was an investigation, not a courtroom proceeding, and that a different set of rules applied. In fact, the summons calling Mayor Walker before Governor Roosevelt on removal charges was the first of its kind ever served upon an incumbent of City Hall in New York State. A previous effort to remove Mayor Robert A. Van Wyck (because of a monopolistic city ice-supply trust in which Van Wyck and other Tammany cronies held stock) was dismissed without a hearing in 1899 by another Governor Roosevelt: Theodore.
By contrast to the cheers and bands rolled out for Jimmy Walker, Judge Seabury and his staff went quietly to Albany by automobile. He left his home at 154 East Sixty-third Street at 7:45 P.M., driven in the Lincoln by Nick Livingston, his longtime chauffeur. With him were Maud Seabury and two of his close aides, George Trosk and Louis Molloy. Long afterward, Trosk recalled that Seabury and Maud held hands during most of the trip.
Seabury’s aides Phil Haberman, Harold Melniker, and Oren Herwitz piled into Bill Mulligan’s Marmon for the trip north, loaded down with briefcases full of testimony and records. On Route 9W, not far from Roosevelt’s Hyde Park home, a state trooper pulled them over. He looked suspiciously at the bundles blocking the back window and poked them to see if they were a cover for some illicit operation. Prohibition still existed. When they identified themselves and explained their mission, the trooper waved them on.
Actually, Seabury and his team were on their own. The state legislature was not compensating them; the young lawyers were contributing their services as private citizens. Judge Seabury picked up their expenses at the De Witt Clinton Hotel. He was never reimbursed by the state.
When they arrived in Albany that evening, Judge Seabury was informed that Jimmy Walker had received a great welcome. As he had done earlier, after the hearings in the New York County courthouse, Seabury dryly observed, “So did Tweed.”
The Hofstadter committee had stepped aside, too divided along Democratic and Republican lines to take action against Walker. Here might have been another out for Roosevelt—if he wanted one. If the legislature was not opposed to Walker, why should he take the extraordinary step of interfering in city affairs? But Roosevelt pressed on. Actually, it was too late for him to take any other course. The national press was watching every move and recording every remark by the New York governor who was the Democratic candidate for President. Election day was only a few months away.
The responsibility for the investigation’s rules and decisions—including the avoidance of pitfalls for F.D.R. in the unfamiliar role as a presiding judge, a role he was assuming for the first time in his life—had now shifted from Judge Seabury to Governor Roosevelt.
ELEVEN
F.D.R., Esg.—Judge and Jury
Governor Roosevelt immediately took command of his “courtroom”—much to the surprise of Walter Lippmann of the Herald Tribune, who, with his usual hauteur, wrote: “I continue to believe that the problem before Governer Roosevelt is that he must not only do justice as a judge but he must convince the people as a leader that justice has been done.”
From the start, F. D. R. appeared judicious, yet firmly in control. To do so was a matter of professional pride even more than of politics. He had never made a great mark as a lawyer in private practice; now he was being challenged to show his abilities as a member of the bar in a new, untried role.
Perhaps to offset the punditocracy, which wrote from perches in Washington and New York, delivering its opinions at a distance without seeing him conduct the “trial” at the scene, Roosevelt had made an unusual request to the newspaper reporters: Your stories should carry an Albany dateline. The working press willingly complied.
The governor had been doing his homework for the past few weeks, preparing himself for the encounter by studying the record and transcripts with his counsel, Maldwin Fertig and Martin Conboy, and, behind the scenes, Samuel Rosenman. Fertig was Roosevelt’s regular counsel. Conboy was added to the governor’s staff especially for the trial; the fact that he was a prominent Catholic warded off any possible accusation of anti-Catholic bias. He stayed at the Governor’s Mansion and briefed Roosevelt each night before the next morning’s hearing.
The windy and combative John J. Curtin, Walker’s lawyer, immediately acted as if he were appearing in front of a jury. He used an old criminal lawyer’s familiar courtroom maneuver—shifting the bad-fellow image to himself and away from his client—because he was so outraged by the injustice. As an experienced litigator, he played not only to the court but to the “gallery”—the dozens of newspapermen in the chamber. His opening statement set the tone:
“I welcome at this time a hearing upon all the charges that have been submitted. Let us throw away the law books. Let’s forget there ever was a written law in the statutes or in the decisions, and let’s tackle this from a human, fair-minded standpoint. What is this thing we are doing here? What is it all about? My first proposal is to demonstrate to you that it is a matter of common fair play, and that idea of fair play should be backed up by decisions, and, if you please, because law is only a matter of common sense, after all.”
Whereupon Curtin went into the familiar song-and-dance that Jimmy Walker had established as his main routine while tripping the light fantastic: the mayor of the City of New York led the largest municipality in the world. . . . He was the people’s choice. . . . He had been elected twice to that office by an enormous plurality. . . . He was the man who for twenty-odd years, including in the state legislature, had submitted himself for approval to the voters successfully.
Roosevelt and Curtin quickly began to spar with each other about legal evidence and procedures. Curtin’s main argument finally emerged as a request to be able to cross-examine every single witness that Seabury had questioned.
ROOSEVELT [consulting his notes]: As Governor, I wish to make it clear to the Mayor and to his counsel that if, in their judgment, the defense requires that any person who is available as a witness, whether he did or did not testify before the legislative committee, should be called before the Governor for examination, and the Mayor’s counsel will give me the name or names of such witness or witnesses, together with a statement showing the purpose for which the testimony is desired, I shall, upon due consideration, require the attendance of such witnesses before me—and, of course, a similar opportunity will be accorded to those who are presenting the charges, which are the subject of this hearing.
While at first glance the governor’s ruling seemed to be a victory for Walker, it was nothing of the sort, and the Mayor and his counsel knew it. Speaking carefully, Roosevelt said only that the mayor could submit to him names of witnesses who might help him in his defense. What Walker and Curtin wanted was to have the governor direct Judge Seabury to recall all the witnesses who had testified against him. But Governor Roosevelt had no intention of allowing Mayor Walker’s counsel to reexamine more than a hundred witnesses.
“I can be cross-examined but I can’t cross-examine,” the mayor grumbled.
There was an obvious reason behind the open antagonism between Roosevelt and Curtin: Roosevelt had defeated Curtin’
s good friend Al Smith at the Democratic convention in Chicago. When Smith was governor, Curtin had been his legal adviser. Furthermore, Curtin looked upon the hearings as an opportunity to express his dislike for Seabury, who had defaced the mottled image of Tammany for nearly two years and forced some of its thieving officeholders to resign.
Soon enough, both Roosevelt and Curtin took off their gloves and dropped the polite “Your Excellency” and “Counsel” talk. Walker, who knew Roosevelt’s temperament, had warned his lawyer in advance not to get “Frank’s Dutch up.” Curtin ignored the advice.
At one point, Judge Seabury was called upon to read a letter giving certain details about Walker’s secret accounts, in which the mayor deposited large sums that he received from a friend who hoped to sell his services to the City of New York. The questioning became a test of the governor’s judicial knowledge and pride.
CURTIN: One minute, I would like to know if that paper is in evidence that Judge Seabury is going to read.
SEABURY: It is not in evidence.
CURTIN: Well, then, it cannot be used, I am sure of that. I don’t know what it says but it can’t be used.
ROOSEVELT: It can be marked for identification.
SEABURY: Yes, for identification.
CURTIN: Let someone say that they know something about it, through his own knowledge, and testify about it under oath.
ROOSEVELT: Mr. Curtin, I happen to be a lawyer, and remarks of that kind are wholly unnecessary to the Governor of this State.
CURTIN: I assume you do know that. Still, when a lawyer makes a statement as to what the—
ROOSEVELT: All right, don’t try to instruct me about the difference between putting a thing into evidence and marking it for identification.
CURTIN: I am here to protect the rights of my client to the best of my ability, and that only.
The next day, news reports said that Curtin’s face “flushed with color” when the governor put him down.
Curtin was not totally on his own. Walker was clearly guiding his lawyer’s objections. In a voice that carried to the press tables, but did not appear in the official record, Walker said to Curtin, “If you waive the technical objections on one thing, you’ll have to waive on something else.”
Swaying back and forth in his chair, with his eyeglasses in one hand and their case in the other, the mayor parried the governor’s searching questions. Occasionally, he glanced angrily toward the table where Seabury and his assistants consulted their records and busily took notes.
Every document mentioned in the “conclusions” against Walker was challenged by Curtin. He pointed his finger at Judge Seabury’s staff and demanded to see what he called their “work sheets.” Curtin said that “these gentlemen have been on the State payroll for months” and should be able to produce the papers for him. Seabury replied that he had given Curtin photostastic copies of every document in his possession relating to Walker’s hidden banking accounts.
Roosevelt interrupted Curtin’s demands. “I am a little fed up, talking about ‘work sheets.’ You don’t need a work sheet. A bank statement is a bank statement. You have deposits, and withdrawals. Let us stick to that.”
Seabury and Trosk were permitted to read from the transcripts of their own legislative hearings. As evidence or “marked for identification,” most of the paper trail underlying the main charges was admitted into the governor’s hearing.
“Perhaps you are right in not calling this law,” Roosevelt said to Curtin and Walker, “but you would also be right in calling it my public policy in this state.”
Again and again, Curtin interrupted Roosevelt with objections to the admission of evidence, but he scored few points. Roosevelt, under no compulsion to provide due process, nonetheless consistently won the approval of the dozens of reporters in attendance. One amusing exchange between Roosevelt and Curtin involved knowledge not only of the law but of the apocryphal thirteenth chapter of the Book of Daniel.
CURTIN: I dislike in some ways to refer to this, but perhaps it won’t be amiss. The earliest recorded—so far as I know—instance of the value of cross-examination is contained in the Bible itself. You may recall one of the Apocryphal books, the story of Susanna and the Elders; Susanna, a beautiful lady, and two of the Elders, enamored of her. She repulsed them, whereupon, to get square, they accused her of impropriety with some other third person. And these Elders were men of good standing in that community, and they swore definitely before the counsel that this lady committed this impropriety, and there was nobody to gainsay that, except the lady herself, who met it with tears and denial. There is nothing dramatic about a denial. And she was condemned to death, under the laws of Moses. And then Daniel arose and said, “Not so fast”—I am not quoting accurately—“Not so fast. Let me examine these Elders.” And he put them both out, then brought in one of them and said, “You are sure this thing happened?” “Yes.” “Did you see this thing happen?” He said, “Yes, and I am sure of it.” “Where did it happen?” “Under the mastic tree.” He was sent away. And the other fellow was brought in. “You are sure this thing happened?” “Yes.” “You saw it with your own eyes?” “Yes, and I couldn’t be mistaken.” “Where did it happen?” “It happened under the yew tree.” Whereupon the committee put to death not Susanna but her accusers. I am talking thus bluntly to you as one lawyer to another.
ROOSEVELT: You have referred to the testimony before the legislative committee as “minutes.” I consider it evidence. You have referred also to the interesting case of Susanna and the Elders. I think it is a very apt case. You are in the position of the Prophet Daniel. I will not say that His Honor is in the position of Susanna.
CURTIN: That isn’t so.
WALKER: I certainly feel like it.
Everybody in the chamber broke out in laughter, including Seabury and his aides. The next morning the newspapers played the exchange as a small victory for Roosevelt. Curtin’s biblical analogy had boomeranged on him and his client.
(The biblical tale of Susanna and the Elders is found in chapter 13 of the Book of Daniel in early versions of the Old Testament. Nowadays it appears in the Douay translation of the Latin Vulgate, but not in the King James version of the Bible. The biblical tale concludes: “And Daniel became great in the sight of the people from that day and thenceforward.”)
Later, when the New Testament was referred to, Walker wisecracked, “This fellow Seabury would convict the Twelve Apostles if he could.”
Governor Roosevelt soon discovered that Walker planned to continue what he had done with Seabury: address himself to the crowd instead of to the issues. Speaking directly to Roosevelt from the witness stand, Walker said:
“Now I must have my twenty-three years in public office snuffed out without an opportunity of looking into the faces of the men who would tear up my past, present and future. I can’t be unlike every other human being in the world. I can’t be so different than the rest of the human family.”
And he dragged out the same red herring he had delivered when he was cross-examined in Manhattan:
“I haven’t been transported back to Russia. I haven’t been taken into other kingdoms and empires in Dark Ages and never to return again.”
At another point, Walker openly spoke with bitterness to “Judge” Roosevelt about Seabury:
“Maybe I am wrong, maybe countless others are wrong, but there was a disposition to railroad me. Maybe, after all, they would like to have the comfort, the conscientious relief, maybe they would like to have the moral satisfaction of bringing to you and pouring into your own ear the testimony upon which they relied, which I never heard, which you never heard, and which was adduced in an ex parte proceeding.”
In response, Governor Roosevelt patiently said, “It is to give you a square deal, Mayor, that I am going to ask the questions.”
During this time, Allie Walker, smartly dressed in a brown silk ensemble with an enormous orchid corsage, watched her estranged husband being interrogated. She nodded wit
h approval as he delivered his heartfelt speeches from the witness chair. Onlookers noticed that while sitting in her reserved seat, beneath a portrait of Governor Grover Cleveland, the diminutive Mrs. Walker continually adjusted her felt hat with bejeweled fingers. After the first day’s hearing, she complained of fatigue and retired to the Walker suite at the Hotel Ten Eyck.
Following up the mayor’s earlier testimony before the Hofstadter committee, Governor Roosevelt began to untangle several complex deals with businessmen seeking city franchises, deals in which the mayor had received a piece of the action. He pressed Walker to explain how he obtained $26,500 in bonds from J. A. Sisto, a financier and taxicab promoter. At a meeting in Atlantic City, the mayor had been “declared in” on a “pool” of Cosden Oil stock; its bonds were said to represent his “profit.”
At first, the mayor denied that he knew until he received the “profit” money months later that there was any link between a taxicab deal and his bonds. He claimed he had no knowledge of the nature of Sisto’s business, and that he had no idea he would be in a position to help Sisto bid for city contracts. A moment later Walker corrected himself, saying that he had known from the beginning that Sisto was the “operator” and banker of the money pool. He added that he had turned the securities over to Mrs. Walker.
An echo of the crash of the Bank of the United States was heard during the hearing. Governor Roosevelt tried to track some of the monies that had been given to Walker without any investment or responsibility for losses on his part. Referring to the Interstate Trust Company stock that was part of the Equitable Coach franchise deal—the deal for which the Mayor’s indirect payoff was that $10,000 letter of credit—Governor Roosevelt asked him if he did not realize that the stock was valuable because it was oversubscribed.
“If it turns out to be a good thing,” Walker replied, “I suppose the conclusion would be yes, but isn’t that said by every promoter who sells a stock or promotes a stock? Is my standing and status as Mayor of the City of New York dependent upon my knowledge, my speculation or my reasoning or thinking of stock operations or whether they are valuable or not? Why, if that was so, and I was so completely familiar with the value of banks and condition of banks, I suppose I should have insisted on the City of New York withdrawing a million and a half dollars from the Bank of United States before it failed. But I can’t be blamed for that, surely.”
Once Upon a Time in New York Page 21
