History of the Federal Judiciary

History of the Federal Judiciary

  Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement
Historical Documents

“An Unusual Prohibition Victory”

Mabel Walker Willebrandt intended her newspaper series (and later book) to mobilize public opinion in favor of stricter enforcement of Prohibition. Supporters and opponents of Prohibition, however, derived different conclusions from her insider account of enforcement, with drys contending that stricter laws and more vigilant enforcement would work and wets decrying the growth of government action and corruption.

[Document Source: Mabel Walker Willebrandt, “An Unusual Prohibition Victory,” Ch. 15 in The Inside of Prohibition, published in the New York Times, Aug. 19, 1929, p. 14.]

In one case of widespread interest a prohibition victory was achieved in which I not only had no part but which I actually opposed. I refer to the so-called “whispering wires” case at Seattle, Washington. It involved the prosecution of a bootlegger named Olmstead. I certainly approved of apprehending Olmstead—he was head of a big ring of liquor runners from Canada—but didn’t approve the way the prohibition agents obtained their evidence. Practically all their testimony consisted of things they overheard on tapped telephone wires.

Now, I thoroughly disapprove of the practice of tapping telephone wires. Irrespective of its legality, I believe it a dangerous and unwarrantable policy to follow in enforcing law. Many of the States of the Union have State laws against it. The point involved in the Olmstead case was whether, in the absence of a State law, the Federal Constitution alone prevented obtaining evidence by tapping wires.

When the point was sustained in the lower Federal courts, and reached the Supreme Court of the United States, I indicated to the Solicitor General my unwillingness to argue the case and try to justify the prohibition agents’ wire-tapping tactics when I so thoroughly disapproved of them. Consequently, Mr. Mitchell employed distinguished counsel, a man formerly associated with his firm in Minnesota. . . .

. . . An intense bitterness developed between the two branches of the Treasury Department, and it was not an uncommon thing for agents of the intelligence unit and for the special assistants to the Attorney General who had been sent to Seattle to handle the Hubbard case to be “shadowed” by agents of the prohibition unit and their friends.

The evidence obtained over the “whispering wires” and otherwise disclosed an illegal liquor business of amazing magnitude. It involved the employment of not less than fifty persons, of two seagoing vessels for carrying liquor from Scotland to British Columbia, the employment of smaller vessels for coastwise transportation, the purchase and use of a ranch for an underground cache for storage of liquor, the operation of a central office in the heart of Seattle, the employment of executives, salesmen, delivery men, dispatchers, scouts, bookkeepers, clerks, and even an attorney.

Monthly transactions reached a total as high as $176,000 and the aggregate for the year’s operation probably exceeded $2,000,000. Olmstead was the leading conspirator. He acted as general manager. His contribution to the capital of the business was $10,000. Eleven others were his partners by virtue of contributions of $1,000 apiece. Profits were divided, one-half to Olmstead and the remaining half to eleven others.

One of the chief men was always on duty at the main office to receive orders by telephone and to direct the filling of these orders by a corps of men stationed in another room, called “the bull pen.” At times the sales amounted to 200 cases of liquor a day.

In this statement of the case I have largely used the language of the Supreme Court and the Court of Appeals. . . .

. . . Although personally I would still use my influence to prevent the policy of wire tapping being adopted as a prohibition enforcement measure, I nevertheless recognize that the interpretation of the United States Constitution against the lawbreaker and in favor of the government’s right to catch him is a prohibition victory of no small proportions.
Mabel Willebrandt
Bain Collection
Library of Congress, Prints and Photographs Division


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