Good evening. Im Howard Walter and i have the honor of serving as director at roosevelt house and we are thrilled to have you here for what we think will be a special evening as we welcome our guest who as you know provides regular legal analysis to abc news and on the a e network constantly including this evening. And is a historian who has contributed a couple of great books but lincolns last trial if you wonder why im interested in having him. [laughter] but he has written a book that fdr called my fifth cousin by blood and set it at the very trial that dan abrams has written about in this extraordinary book of a littleknown episode in Theodore Roosevelts life and that is an extraordinary legal episode at the defense of a charge of liable argued here in new york state. Welcome. Its great to be here and always honored to be interviewed by you and always intimidating. Its better when we dont talk about lincoln. This is all new. I promise. It will be considered new to everybody else. So start with the obvious why this book and case . In the context of working on the lincoln book with his last trial we used this transcript arguing from nine months before he got the nomination and david fisher my coauthor brought me this and set a fascinating transcript only discovered 1989 know it has written about it i said come on the only transcript that existed cant be possible and of course it was true it really had become a footnote in history so the context of doing that we thought there is a lincoln trial out there becoming a footnote to history so the transcript that we could unearth family behold we came upon this case from 1915 and in the lincoln case a transcript only of witnesses no Opening Statements here we have almost 4000 pages of a transcript of the entirety of the trial and what makes this so amazing is at the time it was a huge story that media all over the country the New York Times had 12 singlespaced pages of the case literally transcribing what was happening in court and publishing in the New York Times. For david and i come it was really exciting because as we got into this we bought ourselves back to those moments and got the feeling of what a big deal it was back then and how incredibly forgotten it is today. And the obvious difference is that Abraham Lincoln argued his case on the cusp of the presidency with roosevelt argues or defends after running in the comeback bid with his own visio vision. So i argue the stakes were much higher for roosevelt in this case than from lincoln. But for roosevelt the essence of his legacy was here. And he was eyeing the possibility of a 1916 or 1920 run for the presidency again. But just as important Theodore Roosevelt cared enormously how people viewed him as a man of integrity and honesty. And this trial question that the attorney in crossexamination was trying to humiliate roosevelt and stain his legacy and put his hide up on the wall. And we believe of our speculation that his lawyer may have been part of the reason may be barnes attorney encouraged him to bring this lawsuit against roosevelt. So tell us about the action and what it was about and that also about this man William Barnes who is the plaintiff. So take a step back a were allies fellow republicans in 1912 it was becoming a real divide between them coming out into the open roosevelt felt that 1812 nomination was stolen from him. And he wouldve had many more votes if individual voters had direct votes in every state in the republican primaries. Instead the Republican Party bosses directed. I do think he lost the new york primary. Today we have caucuses so its not that was such an incredibly novel idea but roosevelt was convinced he was robbed. He may have been right. This really was party boss at its worst and barnes was responsible so roosevelt in 1814 was supporting a new york gubernatorial candidate who was an independent and in the context he put out a letter explaining why he was supporting him and part of that he talked about a corrupt alliance between the head of the Republican Party and the Democratic Party. And barnes sued him saying you copy corrupt and that is liable and that is defamatory. So the lawsuit came as a result of that. And the reason i bring up the issue of barnes lawyer pressuring him is because you have to wonder karma , has his eye and a political future also looking to run for governor he had to know that the defense is going to be more corrupt. But yet he brought the lawsuit and dealt with the effects. Is it possible to pursue his own political animus he needed a public vindication . I think in the end he thought he could be this layer of roosevelt that was buried divisive within the Republican Party in essence it was not a Progressive Party but this could make him a star in the party. What are the libel laws . People get away with a lot more today being sued for libel but what was that tradition up through 1915 when barnes feels he has a case . Keep in mind barnes is a public figure nationally known head of the Republican Party, so with todays log New York Times versus sullivan , you would have to show there was reckless disregard for the truth he knew or suspected what he said was not true in this case would have been dismissed pretrial under todays law. Back then all you had to show was the statement was libel per se defamatory. And if you could show it was defamatory of and about the particular person than the burden shifted to roosevelt to prove it is true. And there was a great moment early in the case where roosevelt and his letter was a little corny referring to barnes and the lawyers say they cannot prove this was necessarily about barnes is the political system and early they said called Mister Roosevelt to the stand and he says did you write this about Mister Barnes . Yes. Did you seek to distribute it . Yes. No further questions. That was it the minute they overcame that he distributed it was about barnes it was defamatory the burden shifted and now roosevelt had to prove it was true. There is a double story here put on the table and one is that barnes grandfather that you reminded me before we started was the wizard of the lobby he was called the man who made William Seward governor and supporter of lincoln and the distributor of patronage writing the most unbelievable things about being sued for libel and then you go in and then you still had your gold watch you had a very good day. [laughter] the other element is that his father is the most remarkable longtime defender of the First Amendment and freedom of speech and the press. [applause] so you come of your interest in this case. And that was a great resource to have because it was very complicated at times to understand the libel per se and the rulings pretrial. So david and i gave my dad, we had an advisor who gave us numerous notes of the book before it was published. We found a better lincoln connection of my good name to be more important. Either intentionally or inadvertently had put that in there. So barnes is still the publisher of the family paper. Why wasnt the trial in albany . It was supposed to be. Eventually roosevelt sought a change of venue. The former president of the United States one of the most famous people in the world one of the two most famous in america is seeking a change of venue because he doesnt think he can get a fair trial in albany new york. Thats how powerful barnes was in albany. Eventually the Appellate Court agreed and the trial was moved from albany to syracuse because there was the concern that Theodore Roosevelt could not get a fair trial because barnes was that powerful. Was that still the post . We quote the standard a lot i dont remember. Limas democratic stills. I have to say when it came to the trial, it didnt really cut across party lines. It was both republican it was just a question if the spies rose up enough if you wanted to see them fail. What was the charge of the original case . 50000 just over 1 million in todays money. People sometimes mistake roosevelt was rich. He inherited quite a bit of money that he blew in the 18 eighties on cattle and ranching in the dakotas. He was welloff but one of the reasons he wrote so many books was in part to make money not just because there were all these topics he cared about. He actually needed the money. So losing this lawsuit certainly would not have impoverished him, it mattered. And they all had the most expensive attorneys. That is two of the best for go that what makes the book find as you have two really good lawyers. And they are sharp and witty. And the plaintiff for barnes really wanted to embarrass roosevelt. Political animus . Political and personal. And he was a sick man at the time. That this trial took it out of him. This was six weeks. Think of this roosevelts perspective the former president of the United States moves to syracuse new york to live at a friends house and defend himself. But literally upending his life to go to syracuse and often there were a couple of weekends he did not return home to sagamore hill he was concerned about legal rulings and wanted to stay there to confer with his lawyers. That is how big of a deal this trial was to roosevelt at the time. Wasnt there also a harvard connection. With barnes and roosevelt they had all gone to harvard. Also the judge . They might have known each other. I dont know but just like the lincoln jury that we talked about if you know the defendant . Yes. Back then it was not a big deal is a little different by 1950 because that in the lincoln days in 1859 courtrooms were still a lot looser and lacking that formality prickle there was rules of evidence but by 1915 its almost like you would see today. Precedent, formality in the courtroom, no space tunes. [laughter] spittoon it is a different time. But the judge he was tough on them. Some of that dialogue from the transcript material it did not sit well. Part of the fascinating thing of this case is he was treated like any other defendant would be. But i think he enjoyed that. One of the great moments during the beginning of the examination of roosevelt by his own attorney trying to break the rhythm preventing roosevelt to bond from the jury and once crossexamination starts roosevelt instructs his attorney not to object to anything and says i will handle it. And roosevelt did just that. He was ready. He became frustrated but not in the way they were counting on. The plaintiffs were really hoping roosevelt would lose his cool and get really angry. And as a result look bad in front of the jury and he did not do that. But there were moments in which ivins for the plaintiff when he compares the coolness to roosevelts gestures and then they make fun of roosevelt. They asked the judge to stop roosevelt at one point because they get in the back and forth what is the objection exactly and then roosevelt becomes amused so any time roosevelt could get ivins upset then he became upset to view that as a success. And roosevelt was making fun of him. If you have seen films of Theodore Roosevelt there are films of him he is constantly hammering away. Maybe it doesnt work although im sure people can guess. The most interesting thing for us in the transcript was to see what happened with the verdict. Without giving it away they think there is a verdict and then there is not typical this unbelievable moment it has been written about nowhere that we were going to the transcript at the same time i dont remember which one of us did you see what happened . This is crazy this doesnt happen in courtrooms it is in the transcript. How long was he on the stand . Eight days on the witness stand through direct crossexamination and a little bit redirect actually he was called back. Like to be the bride at every wedding and the corpse at every funeral. We talked about this before roosevelt is a great biographer. There was a chapter written about this in the third of the trilogy. And he downplayed it like this embarrassing moment in roosevelts career. And we view it very differently. We view it has for roosevelt it was front pages again every day. And he gets to say the things he things are really important about the political system. And everyone is listening. So we dont think if you look at the question of how did this become a footnote to history . The answer is because there was no groundbreaking moment to define roosevelt. But i would argue the reason is it so important is because its an overview of everything about his legacy coming up in this trial. If he is forced to defendant one defend it not to give a speech or a book but actual crossexamination back and forth of Theodore Roosevelt is such a unique opportunity to see and hear roosevelt in his own words. Thats a really good point. After reading the book i did go back and read the chapter that was written in fact i asked him if he would like to be the interlock a tour tonight obviously before he passed away suddenly a couple of weeks ago. But he had written a new book of his own and he wanted to focus on that. [laughter] i think he looks at it purely as a historian looking back to history its humiliating for former president to be on trial youre looking at as a journalist and an attorney and i think youre into his head more. I will give away the ending because it is somewhat evident that when he ultimately prevailed and it wasnt expected his lawyers didnt think he would when he didnt think he was going to win. Ultimately when he prevailed he had a whos who where you write your own summary this and one other trial he was involved in had more space than the panama canal and other major achievements for roosevelt this trial was a big deal to Theodore Roosevelt. He was no stranger to libel cases but tell us as a protagonist. So in a case it wasnt just the paper but the rumors that result was a drinker and he was getting tired of it of paper made the comment in a way he would take them to court and make the statement he wanted to make i think it was called iron ore wrote an article to say he was a drinker and he sued them. Roosevelt testified he was never drunk in his life all these witnesses testified that they had only ever seen him drinking milk. And every once in a while he would treat white wine but never any other kind of alcohol. And when the case ended the publisher got up and said look, i cannot defend it we dont actually have proof. That roosevelt agreed to take a symbolic verdict you say that is just enough to buy a good paper. And with that lovehate relationship of the media and then to basically create the White House Press room and had conversations with reporters to go back and forth and calling it as a muckraker it was not meant as a compliment it was an insul insult. In 19 oh eight using the department of justice to prosecute two media organizations. And then to question with regard to the panama canal and using them to prosecute them. Long after roosevelt had left office. With Theodore Roosevelt. Dont give anybody ideas. [laughter] i am working now on a book from washington through trump and not to say he had a conversation. And then it was off to the races. Learning about lincolns purchase from reading your book i had no idea. So how they would be particularly interested. It was a dashing young democrat. It is amazing he had just got in the position roosevelt had held to be a new york democrat it was called to testify not as a character witness but he had been in the legislature at the time and had heard about a conversation about bards and the head of the Democratic Party agreeing not to resolve an issue about a us senator of new york so the bosses could retain power. But that was a key question in this case the 1911 senate election. And whether barnes and head of the Democratic Party were in cahoots together and roosevelt said he heard about this and confronted barnes about it. And then of who should be the senator Brett Franklin like theodore was a big advocate of direct election of senators by appointing the us senators. To ask a progressive democrat and then to be advocate within the state senate to have more representation with the direct election of senators in hopes of getting a progressive. So testifying briefly and Franklin Roosevelt walking into court to defend the distant cousin who had great admiration for. But always so admired. Just the idea of a striving healthy roosevelt from polio striking him but to harvard grad and state legislators and the assistant secretary of the navy with that longtime democratic and theodore gave away eleanor at the wedding and he took a look at the venue it was a fatherson double townhouse and she said thats for me. [laughter] and then she made sure that they had retracted walls or open doors. And then was inside the house 24 hours a day. [laughter] i think he was definitely a relevant one a witness at the heart of the case which is the corrupt alliance the head of the Democratic Party and at the end of the case trying to dismiss critical witnesses roosevelt was one of them he was trying to get stricken from the record so to get that du think that demeanor and then and then that credibility. That demeanor obviously that reports from the time it is tricky to be making that assessment but part of what worked with the jury is roosevelts passion. Keep in mind they were going after roosevelt everything to be eligible for governor of new york based where he lived as the rough rider whether he paid his taxes properly. To what he expected from campaign donations. I am surprised the judge let him a lot of this but basically the argument went you say barnes is corrupt but yet you did exactly the same things that you are accusing barnes of doing. And this is the reasoning it does seem tenuous to me that the judge allowed it in and allowed this mucking up of roosevelt to show he was part and also to make an argument and then to challenge roosevelt about paying taxes and said i dont recall. You have such a great memory and with a stack of taxes they knew this would be an issue and confirmed what he said was accurate and says they are here. In front of the jury. He did not say he was being audited. [laughter] tell us about the near verdict spirit you want me to give it away . I feel like you should read the book to get that moment. I thank you should. Okay. They informed the judge they have a verdict. Which made the Roosevelt Team very nervous. They were hoping to get for jurors to hang. They thought if there is a verdict then we lose. And all the newspaper coverage at the time indicated that as well. So they start pulling the jury and as you see in every case is a sure verdict is your verdict . I get to the 11th juror and he says it is as long as they split the cost for the trial and the judge says sorry . He says it is my verdict but i have to know that the two sides will split the cost and the judge says you cannot put a caveat on your verdict. Then the guy says that i dont have a verdict. That im not ready to rule four roosevelt so they have to go back and deliberate again and they stay another night for good and they were sequestered in a jail. So they say they were locked up again for the night at the local jail. Thats where they were sequestered. And this would never happen today but the guy the next morning after a full day of deliberations the next morning he wakes up the fourperson one the four man to say okay and then they decide we have a verdict in without the entire jury to be there would be a mistrial now somebody wake somebody else and says i think im ready to side with you and then they have the verdict and was so happy and if any of you are ever in oyster bay you have the key to my house. [laughter] he provided a signed copy and the transcript of the trial for each of the jurors. So it was a big win for roosevelt and he updated his whos who profile. Thats a great side story. But as you point out like the oj trial in terms of media. And the irony is at the very end the lusitania is sunk and it drives it off the front pages. Its actually during the trial and thats an important point. Though lusitania is sunk during the trial and 28 americans are killed. 1100 killed 128 are americans and roosevelt had to make a statement. And then the germanamerican meant you were to be affiliated with germany. In all of those for the comments getting into world war i. And then commenting again about going after the jurors and of course roosevelt didnt listen. And then again shows to get involved in the war and his lawyers were very concerned the three germanamericans would take great offense to it. That came into their views he was agitating. And when selecting the jury. But the big question became Party Affiliation mostly. Party affiliation mostly. And im balancing it so how does the outcome affect what little future and then as you say it was aspiring to the state office. I think for both of them the loser had more to lose and the winner had more to gain. If roosevelt had lost, it wouldnt have been a footnote to history. And i think because the bombs lost, his political career was effectively over. Also being the plaintiffs suing bringing them to court going through the money and then losing straight out, no hung jury, nothing. It was a big setback. For roosevelt it allowed him to kind of move on and move forward. When Theodore Roosevelt died in 1919. I was right about the germans, i was right about world war i et etc. So, i think that he viewed this case both in terms of his looking back but also looking forward. I think we have time for questions. Please wait for our cspan friends to hear. This will be audio only for the television viewers. Tell me a little bit about the lawyers on the side and the other part of the question was there any attempted jury tampering against one side or the other . It instructed them not to read newspaper coverage etc. Each day they would ask the same question to make sure that they havent been reading. And of course that was unfolding Henry Ward Beecher and allegations of the affair with a woman but it was a very salacious case and ivins had been involved in that and was a bigtime attorney the lawyer that roosevelt had. I would describe them as corporate attorneys. They would be the kind of attorneys in those days with big law firms, attorney types and theyve fared well with the judge, but there were a number of legal questions that came up during the trial that were close and so the lawyering mattered and who the judge was mattered and there were critical questions. The most important legal question had to be resolved was the defense wanted to reduce evidence that barnes was basically making money off of the side printing business that his newspaper had. They had a big Printing Press etc. And they were getting deals from new york state and effectively scanning etc. And the question in the case became is that the corruption roosevelt was talking about . The plaintiffs said when he says corrupt, he wasnt talking about stealing money or printing business stuff cummings was talking about the democrats and republicans. So why should that be admissible. And the judge allowed evidence to come in throughout the case while reserving judgment on the ultimate issue and when roosevelts team lost and the judge said im not going to allow any of it in, it felt like a huge loss to them but in the end it became sort of a victory because it meant that the plaintiffs could present evidence to rebut it so they allowed it to determine whether it would also be that the jury heard it. And then he said to disregard it, not to disregard it but then to also make him respond to it. Newspapers printing the documents yes, we have a question right here. Wait for the microphone. Was there ever an appeal . They claimed they were going to appeal that is the first thing they said when the verdict came in. Ivivins became very ill at thed of the trial and again many believed living away from home it was the straw that broke the camels back. I think that if he had lived there might have been an appeal. But there was never an appeal. Because it isnt helpful to his reputation. Any others . It affected his health, took a major toll. This case do you think it also added to the toll that it might have taken . It is a good question. I think it was probably more of the malaria than the bullet. That he still had launched in his chest that were probably the bigger issues as you mentioned when he took a trip down the amazon is the one he almost died and that stuck with him for li life. So, you know, i think roosevelt kind of enjoyed this. I think that did he like being sued, no. Did he want it to go away, yes. But once it happened, give him a platform, he is out there able to speak about not just if hes corrupt with the head of the party but about the legacy. I dont think that this was a painful and back on the weekends he was staying at a very wealthy friends house and again i dont want to say that he was loving every minute of it, but this wasnt the sort of trauma for him throughout the trial. Wait for the microphone. Franklin roosevelt was often quoted as saying that he admired Theodore Roosevelt above all other men. Are there any anecdotes that come out, did they spend days together . Began franklin had to come to syracuse and ha have just receny gotten this new position. He literally came up to testify. Just about Franklin Roosevelt but all the witnesses who testified, even if they were not testifying for roosevelt would come up and shake his hand and you know, want to give him a dac etc. Thats one of the interesting things about this. You can imagine writing a book like this we were trying to extract every Franklin Roosevelt put the code, and i think that we took it about as far as it went. I think we have time for one more if there is one. We have to let our speaker go because he has a Live Television commitment but you are all invited upstairs. I want to apologize to everyone because i want to be here but this came up late last week i have to host a show tonight in the halfanhour so im running out of think you all. [applause] our. Good evening, everybody. Im part of the event staff at politics and prose. Before we begin id like to go over a few quick announcements splease silence your cell phones and other noise making devices
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