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June 25, 2020

“To Injure a Fellow Being”: Emory Buckner’s SDNY Resignation

Caption: Former Attorney General Harry Daugherty at his U.S. District Court for the Southern District of New York fraud trial, March 1927. Photo Credit: Bettmann/Getty Images

By David Kurlander

The firing this week of Geoffrey Berman, the now-former U.S. Attorney for the Southern District of New York, has again illuminated the thorny relationship between the Trump Department of Justice and the “Sovereign District.” Berman’s convoluted dismissal (not to mention Preet’s firing before him) may truly be uncharted historical territory. A sordid late-1920s legal battle between Warren G. Harding’s Attorney General, Harry Daugherty, and SDNY U.S. Attorney Emory Buckner, however, illustrates some of the same inherent risks that Federal prosecutors take in seeking out high-level political corruption. 

Emory Buckner, an Iowa-born son of a Methodist minister, was a career trial lawyer in his mid-forties. He had been both an Assistant U.S. Attorney (AUSA) and an Assistant District Attorney (ADA), and had developed a sterling record rooting out police corruption. Buckner had a more mixed reputation as an earnest but reluctant enforcer of the 2,000-a-week average Prohibition arrests that New York saw in 1925, the year he took over as U.S. Attorney. Eventual Supreme Court Justice John Harlan worked as one of Buckner’s famed “Boy Scouts”—his fiercely loyal AUSA trial team—and said of his boss: “His standards of objectivity, integrity, and professional skill were the most valuable exposure that I think any young man could possibly have had.”

Buckner was plenty busy with busting secret Bacchanalian parties and bathtub gin networks, but he found himself in 1926 moving toward the center of one of Washington’s seamiest and most lingering scandals, the Teapot Dome Affair. Teapot Dome should have been over. Warren Harding, the president whose aides had orchestrated government gifts of Navy-controlled oil lands (including the reserves at Teapot Dome, Wyoming) to preferred companies, had died in office of a heart attack before the scandal broke, way back in 1923. His quiet Vice President and successor, Calvin Coolidge, had allowed Congress to push out the most obviously corrupt parties, including Secretary of the Interior Albert Fall and Harding’s closest advisor, the ruthless Attorney General Harry Daugherty.

Yet facts continued to trickle in, not unlike what would be seen two generations later with Nixon’s Attorney General John Mitchell, that showed Teapot Dome-esque practices to be more the rule than the exception. Daugherty and his ruthless “Ohio Gang”—almost diametrically opposed in methods and style to Buckner’s prim “Boy Scouts”—had made graft and fraud a veritable hobby, from securing liquor licenses for cash to pushing presidential pardons for their friends.

Buckner’s investigation concerned the Office of the Alien Property Custodian, a World War I arm of the DOJ that handled property confiscated by the Allies. Congress created the Office as part of the larger 1917 Trading with the Enemy Act, which aimed—often remarkably ineffectively—to provide a rulebook for dealing with German business. 

Back at the height of the Ohio Gang’s misdeeds in 1921, German metal magnate Richard Merton had approached the Alien Property Custodian, close Daugherty ally Thomas W. Miller, in an attempt to regain the rights to the American Metal Company (AMC). The AMC was the U.S. arm of Metallgesellschaft AG, at the time one of the largest conglomerates in Germany and a major copper innovator. Merton’s father, Wilhelm, had brought the company to the States in 1877, around the same time he founded the University of Frankfurt. 

Merton argued that AMC had transferred much of its stock to neutral Switzerland before the start of the War and thus was entitled to its assets. He initially hired the young lawyer John Foster Dulles to advocate for his claim, but Custodian Miller—in cahoots with Daugherty’s people at Justice—allegedly allowed Merton to fast-track the legal process in exchange for $400,000 in Liberty Bonds, made out to the Republican National Committee. The transaction concluded with Custodian Miller handing Merton his massive stock checks while clinking champagne at the Ritz-Carlton. Much of Merton’s Liberty Bond “payment” ended up in Daugherty’s accounts.

Buckner oversaw two fraud trials of Miller and Daugherty. The first, in late 1926, ended in a hung jury. Buckner’s prosecutors had expertly zeroed in on Daugherty’s coverup. The former Attorney General had quite literally torched his account records of the Liberty Bonds, housed back at his brother’s bank in Ohio, as investigators closed in. Daugherty’s chief counsel acknowledged the incineration but fired back that Daugherty had been driven to temporary insanity by the uncalled-for tenacity of the hound-like prosecutors: “This lonesome, broken old man was followed by barking dogs, the yelpers, who wanted to peek at the records of the political fund he had raised and managed.”

By the time of the second trial, in Spring 1927, Buckner was in the national crosshairs. Democrats argued that he had purposely maneuvered around a conviction in the first trial to appease Coolidge and the GOP. Daugherty sympathizers, on the other hand, picked up the “yelpers” line, positioning Buckner as a puritanical inquisitor. Before resting, Daugherty’s defense explicitly charged Buckner with playing politics and having a personal vendetta against their client.

As the jury prepared to deliberate, Buckner made a stunning announcement: he was resigning. “I am not a politician,” said Buckner, who was “husky-voiced with emotion,” according to the Los Angeles Times. He reflected on the painful turn in his prosecutorial career. “Never in those four and a half years has anybody, until yesterday, accused me of being inhuman or accused me of trying for myself or my own preferment, to injure a fellow-being. I would rather be accused of murder than have that interpretation put upon my conception of my oath of office.”

Daugherty returned to Columbus to practice law. Buckner became one of the most influential attorneys of his age, practically inventing the mentorship system of the modern Wall Street firm. 

Supreme Court Justice Louis Brandeis wrote to future Supreme Court Justice Felix Frankfurter upon Buckner’s resignation: “Buckner has had a fine victory. 11 to 1 vs. Daugherty is almost as good as a conviction. I am sorry that B. has concluded to resign, a[nd] particularly that he should have given the reason therefor that he did.”

Political corruption drove Emory Buckner to speak out, just as it has with contemporary U.S. Attorneys. Perhaps this time around justice will be done.

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