By Bennett Liebman
Government Lawyer in Residence
In light of the longstanding enmity and the assorted separation of powers/turf wars between the executive and the legislature in New York State, it may come as a surprise that once upon a time the leaders of the State legislature actually requested the governor to appoint a special prosecutor to investigate the legislature. Yet, this is exactly what happened in 1943 when the legislature asked Governor Thomas Dewey to appoint a special prosecutor to investigate the legislature.
The background is what sets this episode apart. Governor Dewey, who was elected governor in 1942, was convinced that the Albany City and Albany County governments – controlled by the infamous Democratic machine of Dan O’Connell – were thoroughly corrupt. During Dewey’s unsuccessful 1938 gubernatorial run against Governor Herbert Lehman, Dewey had regularly accused the O’Connell regime of massive corruption. In the 1938 election, won by Lehman by less than 70,000 votes, the County of Albany provided a large, 20,500-vote margin for Lehman. Albany was the only county outside of New York City to vote for Lehman, and in the city of Albany, 94% of the registered voters were counted for Lehman.
Once elected governor in 1942, Dewey set his sights on the O’Connell team. He ordered investigations by several agencies against Albany County. The Tax Department began looking at tax assessments in Albany County, and an Election Frauds Bureau in the office of the Attorney General began an investigation into voting registration in Albany County. Eventually, in December of 1943, Governor Dewey appointed a special prosecutor to investigate violations of the Election Law and “the provisions of the Penal Law relating to crimes against the elective franchise” in Albany County or in subdivisions of Albany County.
The O’Connell machine was not one to sit idly by, and the Democratic district attorney for Albany County, John Delaney, in the fall of 1943, served subpoenas on the Commissioner of Taxation and Finance, the State Comptroller and the former secretary to the Clerk of the Assembly demanding all the appropriations of the State legislature since 1935, including all payments and vouchers. See Moore v. Delaney, 180 Misc. 844 (Sup. Ct., Albany County, 1943). District Attorney Delaney alleged that he had “information in his possession which leads him to the belief that the crimes of larceny, bribery and corruption may have been committed by legislative officials in the expenditures of public moneys.” Id. at 848. Since the Republican Party held the majority in both houses of the legislature, the subpoenas were regarded as the O’Connell effort to strike back at Governor Dewey by investigating the Republicans in the legislature.
The Commissioner of Taxation and Finance and the Comptroller sued to quash the subpoenas and the State Supreme Court agreed with their argument. The court found that the subpoenas were “so broad and comprehensive and cover such a period of time that it is impossible for the court to tell whether all the matters required to be produced by them have any relevancy to the alleged crimes which the grand jury proposes to investigate.” Id.
As to the former secretary to the Clerk of the Assembly, the court found the subpoenas to be valid. The court stated “that it is a simple subpoena, regular in form, and no valid reason has been shown why it should be quashed.” Id.
While the legislature was able to avoid the initial thrust of the O’Connell counterattack, there was no assurance that the legislature would escape a properly constructed inquiry from Albany County district attorney Delaney.
To battle the Albany County district attorney, the legislative leaders clearly decided to forget about any separation of powers issues. They directly asked the governor to intervene to assist them and prevent the Albany County investigation. The leaders of both houses on December 19, 1943, wrote Governor Dewey alleging that the Albany County district attorney “was instituting and threatening to institute certain prosecutions against some of the members of the Legislature and its employees, unless the Attorney-General ceased his investigation into the city and county of Albany.” The threat of this investigation “must have grave consequences upon the proper functioning of government in the State and upon the respect of the people for our democratic system…. It is intolerable that the Legislature of a State or its individual members should be harassed by any local agency trying to protect its political sponsorship.”
The leaders urged the governor “to supersede the district attorney of the county of Albany by the Attorney-General of the State and to designate a person of unimpeachable reputation and character and great knowledge of government to conduct a fearless and impartial investigation into these matters.” The leaders pledged “unlimited assistance” to the investigation.
Based upon this request, Governor Dewey on the next day superseded the Albany County district attorney and prevented him from continuing his investigation of the State legislature. Instead, Governor Dewey, in an extremely broad designation statement, ordered the Attorney-General to investigate and prosecute “any and all crimes and willful misconduct in public office heretofore or hereafter committed or alleged to have been committed in the county of Albany by any member, officer , employee or agent or former member, officer, employee, or agent of the Legislature of the State of New York.”
One day after superseding the Albany County district attorney, the governor and the Attorney General named Hiram C. Todd to the post of the legislative special prosecutor. Todd was a corporate attorney in New York City who had served at several times for past Democratic governors as a special prosecutor. He was perhaps best known for his investigation of the failure of the City Trust Company in 1929.
Very little actually came of the Todd investigations. No criminal wrongdoing was ever established. He worked for nearly two years on his investigation of the legislature. His work, however, appeared to confirm the cynical observation that he was serving as – what might be currently termed – a “tool” of the Dewey administration. The New York Times wrote that he “turned a Democratic investigation of Republicans into a Republican investigation of the Democratic leadership.”
Todd was clearly positive about the overall work of the legislature and its members. His concluding grand jury report found that “the legislature… functions with general efficiency and rectitude. The fact that some wrongs have been brought to light … is counter-balanced by the fact that the general picture presented to the grand jury of legislative operations is of earnest men diligently engaged upon a public task in an earnest manner.” The New York Herald Tribune, however, appreciated the work of Mr. Todd which, while “not sensational,” was “fair” honest and thorough.”
Todd concluded his investigation in late 1945 having established no criminality in the State legislature. The 22-month investigation produced “one indictment, three presentments, two citations for contempt and no convictions.”
A decade later the Moreland Act inquiry into State regulation of the harness racing industry showed considerable corruption within the State legislature at the time of the Todd inquiry, making the judgments of the Todd inquiry of somewhat questionable value. The New York Times had summarized the Moreland Act report by stating that “influential politicians acquired substantial blocks of stock in tracks and racing associations, generally just before an association received a license, or existing associations obtained extended racing dates. Public pressure to increase the state share of the betting revenue was ignored by the Legislature. Stock was obtained by the politicians at bargain prices. Shares were held secretly in the names of friends and relatives and sold at fabulous gains.” Much of this was occurring at the time of Todd’s work and paints a far uglier picture than the portrait of earnestness found by the Todd inquiry.
 “Dewey Condemns Machine in Albany,” New York Times, October 8, 1938; See also Warren Moscow, “O’Connell Takes Albany Party Post,” New York Times, October 30, 1945.
 James A. Hagerty, “Lehman Is Victor by 67,506 Margin,” New York Times, November 10, 1938; Dewey pointed out the city of Albany had more registered voters than its adult population. See “Albany Vote Investigation Is Ordered by Gov. Lehman,” New York Herald Tribune, November 16, 1938.
 Id., Herald Tribune article.
 “State Opens Albany City Investigation,” New York Herald Tribune, August 28, 1943.
 “Designating the Attorney-General to Represent the People at Extraordinary Special and Trial Term of the Supreme Court, County of Albany,” Public Papers of Governor Dewey, pp. 272-275 (1943).
 These were the President Pro Tem of the Senate, the Speaker of the Assembly, and the Majority Leader of the Assembly.
 “Letter to the Governor from Legislative Majority Leaders Requesting Appointment of a Special Prosecutor to Investigate Charges of Legislative Corruption,” Public Papers of Governor Dewey, pp. 331-332 (1943). The text is also in “Dewey Supersedes Albany Democrats in State Inquiry,” New York Times, December 22, 1943.
 Id. at 332; See generally “Dewey Orders Investigation of Legislature,” New York Herald Tribune, December 22, 1943.
 The Herald Tribune states that the leaders met with Governor Dewey on the date of their letter, Sunday December 19, 1943. Id.
 “Designating the Attorney-General to Represent the People at Extraordinary Special and Trial Term of the Supreme Court, County of Albany, to Manage and Conduct Proceedings in Connection with Charges of Legislative Corruption,” Public Papers of Governor Dewey, pp. 274-276 (1943).
 “Special Prosecutor in Albany Probe,” Newsday, December 21, 1943; “Outfoxing the O’Connells” Brooklyn Daily Eagle, December 26, 1943, p. 24.
 The New York Sun called Todd an “elderly silk stocking lawyer.” Paul Ward, “Dewey, Elected Largely On ‘Clean-Up’ Pledges, Loses Two Court Cases In Less Than 24 Hours,” New York Sun, July 23, 1944.
 See Moscow, supra note 1.
 “Calls Legislature Honest In General,” New York Times, October 25, 1945.
 “Final Todd Grand Jury Report Gives Legislators Good Score,” New York Herald Tribune, October 25, 1945.
 “Neither Smear Nor Whitewash,” New York Herald Tribune, October 26, 1945.
 “Grand Jury Ends Albany Inquiry,” New York Times, December 14, 1945.
 “State Commission to Study, Examine, and Investigate State Agencies in Relation to Pari-mutuel Harness Racing,” Report to Thomas E. Dewey, Governor (1954).
 Emanuel Perlmutter, “Politics and Raceways: Fortunes for Insiders,” New York Times, March 14, 1954.