Book excerpt: 'Theodore Roosevelt for the Defense' by Dan Abrams and David Fisher

This is an excerpt of "Theodore Roosevelt for the Defense" by Dan Abrams and David Fisher. Published with permission. Abrams is the chief legal analyst for ABC News.

The judge gaveled the trial back into session and asked Ivins to call his first witness for the plaintiff. Twenty-four-year-old John McGrath was asked to take the stand. After perfunctory questions Ivins asked, “What is your business.”

McGrath said clearly, “Private Secretary to the defendant in this case, Theodore Roosevelt.”

The purpose of McGrath’s appearance was to prove that Roosevelt had ordered the libelous statement circulated widely. “Did you hand this statement to the newspaper reporters at Oyster Bay?”

“I did.”

“At whose direction?”

“At the direction of Theodore Roosevelt.”

Ivins then proceeded to read the long list of the newspapers that had published the article, from Barnes’s own Albany Evening Journal to the New York World, newspapers with an aggregate circulation of 2,678,479. To reinforce his point Ivins stood at the plaintiff’s table and opened a bundle of newspapers two feet high, consisting of sixty different newspapers from different cities throughout the country that had circulated the libel.

The defense did not dispute that list nor those numbers. The Colonel’s statement had been distributed far and wide, which was his precise intention. When his list was done, Ivins startled the courtroom by looking up at the judge and saying simply, “I rest my case.”

It was an unexpected, audacious strategy, but typical of the courtroom surprises for which Ivins had become known. He had what he needed; Judge Andrews had ruled the article was defamatory or what the law characterized as “libel per se,” and he had proved that it was written and caused to be distributed by Roosevelt. The burden of proving it to be true was now laid squarely on the defense.

And with that, Judge Andrews closed the morning session.

In the corridors during the break for lunch, there was high praise for Van Benschoten’s strong opening; people were heard to say that he had “scored points” and even more impressive, “was a good match for Ivins.”

When the trial resumed, Barnes, who had absented himself for the defense opening, retook his seat only a few feet away from Roosevelt, but the short distance belied the vast gulf between them.

Bowers immediately made a motion for dismissal, raising two technical points; first claiming Ivins had failed to present any evidence of malicious intent and second that the article never referred specifically to Barnes. Ivins quickly topped him. “I will call the defendant and let him say so.”Ivins calling the defendant himself at this point in a trial was unorthodox if not downright risky. By calling McGrath as his first witness, Ivins had elicited the critical testimony that the statements at issue were made at the direction of Roosevelt. No pushback, no disputes and no cross-examination of the witness. But to call Roosevelt was to also effectively abandon Ivins’s mostly theatrical effort to end the trial at this point.

In a civil case, the person suing—the plaintiff—typically would call witnesses that support his arguments not the defendant himself. When it happens, the defendant would be considered a hostile witness thereby allowing the plaintiff’s lawyer to ask the types of aggressive, pointed questions that would typically be permitted only on cross-examination. For now, however, Ivins only wanted to make a limited point.

This was what the spectators had come to see; Teddy Roosevelt rose calmly, walked the few steps to the wooden witness chair and sat down to be sworn in. Only two years earlier the moving picture shows had begun showing brief coming attractions to the audience, especially Chaplin’s comic gems, hints of the delights to come. If such a concept might be extended to a courtroom, a legal tease, this was it.

“You are the defendant is this action?” Ivins asked.

“I am.”

“Have you read the statement complained of in the complaint?”

The Colonel had no interest in cleverness or equivocation, snapping, “I wrote it.”

Ivins stood only a few feet away and to the side, so when T.R. responded he would have to look at him rather than the jury. “You wrote it?”

“Yes, sir.”

“Did you write it of and concerning the plaintiff, William Barnes?”

“I did,” Roosevelt replied so quickly and emphatically that a ripple of laughter flowed through the courtroom. Even the normally placid Judge Andrews smiled at that.

Having his answer, Ivins rested. “That is all.” It was a daring strategic maneuver; the plaintiff’s direct case had taken only seven minutes to present. The point was made: the article was legally libelous and Roosevelt had written it and circulated it. Refuting those facts would consume weeks.No one was surprised when John Bowers, rather than Van Benschoten, rose to begin questioning the Colonel. Now the issues in dispute would be displayed for the world to see.

Bowers made his point with his first question, “The writing of the article in connection with Mr. Barnes was in connection with the other persons and the other principles that you attacked?”

“It was.”

Bowers led Roosevelt through a series of questions intended to introduce him to the jury and demonstrate that he was a man of substantial character, although those facts were well-known: he was Theodore Roosevelt of Oyster Bay, fifty-six years old and a man of family, with a wife, six children and three grandchildren. He had studied the law at Harvard, but had become a writer and a state assemblyman, then went west and “spent much of my time on a ranch on the Little Missouri in western North Dakota for the next half dozen years.”

The recitation continued; he had returned and filled several governmental positions until “going into the Spanish War,” being appointed “Lieutenant Colonel of the First Volunteer Cavalry Regiment, ordinarily called the Rough Riders.”

If this were a show, Bowers was setting the stage; the Rough Riders had stirred American passions, and this was the man who had led the charge. Ivins objected, calling all of this entirely immaterial, but while there was little he could do to limit this testimony. Bowers was responsive, agreeing to rephrase his question “because I don’t care to get into trouble with brother Ivins yet.” Turning to the defendant, he asked him to explain what he did in the war.

“We marched on Guisimas where we fought the Spanish… We went forward to Santiago and fought there…”

Ivins tried again, suggesting it did not “bear on the question of character.”

Judge Andrews disagreed. “He may state whether his regiment was in any fighting.”

“My regiment was in the Santiago fight and lost in killed and wounded over a third…”

“I object…” Ivins began implementing his strategy, doing everything possible to confine Roosevelt’s testimony to the charges in his statement, and clearly his wartime exploits had nothing at all to do with that. “…the number lost or killed is immaterial in this case.”

While the court agreed, Bowers did not, stating, “I think I have the right to prove that he was in actual fighting and the loss of life in his immediate vicinity and the result of the fighting as bearing on the life work of this gentlemen and upon his character…” And just in case the jury did not get his point, that the man sitting in front of them had risked his life for America, Bowers lamented, “I don’t think I have been able, with the objections that have been made, to show the men killed and wounded to the right and left of him.”

After establishing his client’s bravery, Bowers moved to his political success, leading him through his career as governor of New York, and President McKinley’s vice president. And finally ascending to the presidency. “Where were you at the time President McKinley was assassinated?”