Pulitzer_ A Life in Politics, Print, and Power - James McGrath Morris [246]
Stimson was convinced that this approach was a mistake. If the government remained silent, he told Bonaparte, newspapers would use the secrecy surrounding the case as proof that it was on a fishing expedition. He was right. “This action by the Government is said to be without precedent in the history of American jurisprudence and lawyers regarded as authorities in libel actions are puzzled as to the exact course the Government will adopt,” reported the New York Times, a newspaper not known for hyperbole, even then. “It is said that all the proceedings are being personally supervised by President Roosevelt.” The secrecy even prompted a U.S. senator to seek a resolution to compel Bonaparte to disclose whether the president had ordered the prosecution and, if so, under what statute.
Ralph, who feared he might also be indicted, met with his father’s legal team. It consisted of the reform-minded lawyer De Lancey Nicoll, who had remained loyal since 1887, when Pulitzer had backed him in a contentious election; and John Bowers. Reviewing the subpoenas and other documents, the two lawyers noticed a pattern that led them to consult a federal law book so old that it was musty and its typeface used what looked like an “s” for an “f.” There they at last uncovered the legal strategy that Roosevelt’s lawyers planned to use in the government’s pursuit of Pulitzer.
Since there was no current applicable law, the Justice Department was dusting off an obscure law of 1825. Under its terms, the federal government retained the right to prosecute a crime committed on federal property, such as West Point, using state law in the absence of a federal criminal statute. Astonishingly to the lawyers, this law required that the prosecution be based on state laws that existed prior to 1825. In other words, the government was planning to prosecute Pulitzer by using century-old state laws that might no longer be in force.
Everything became clear. The two grand jury proceedings were held so that the prosecutors could use a Maryland law of 1802 (the District of Columbia had, in its early days, adopted Maryland’s laws) and a New York law of 1805. If one effort failed, the other might prevail. The discovery also solved the puzzle of why Jerome had participated in the investigation by the New York federal grand jury. If this plan succeeded, Jerome would try the case jointly with Stimson.
Nothing like this had ever been attempted before by federal prosecutors. Pulitzer’s lawyers knew that if it was made public, the government’s case would appear to be on shaky ground. To make the best use of their discovery, Nicoll and Bowers gave the story to all the press, rather than holding it for the World alone. The strategy worked. Newspapers such as the New York Times reported it on the front page. The headline in the Times read, LIBEL PROSECUTION SECRET COMES OUT: HALF-FORGOTTEN LAW USED.
Stimson was infuriated. He telephoned Bonaparte and, failing to reach him, sent an angry telegram. Later, a bit calmer, Stimson explained his actions to his boss. “I was anxious,” he said, “that a statement of the real ground of my investigation should be issued by the Government before a biased and perverted account should be issued by the other side.” Now it was too late. Pulitzer had won the first round in the court of public opinion.
Cobb seized the high ground. “To prosecute the World under the antiquated statute of 1825,” he wrote, “would represent the last word in the prostitution of the Federal machinery of justice to gratify the personal malice of an autocratic President.”
In the legal proceedings, the news was no better for the president. All the witnesses brought before the New York grand jury had invoked their Fifth Amendment right