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Who'll Get Capone? 

The prosecutor who nailed him left behind some fascinating papers. The Chicago History Museum has them. The National Archives wants them.

1931, USA, Portrait and profile picture of Chicago gangster Al Capone

1931, USA, Portrait and profile picture of Chicago gangster Al Capone

Popperfoto/Getty Images

Al Capone owned Chicago in the roaring 1920s. On Wednesday we'll see who owns Capone.

Officials of the Chicago History Museum and the National Archives meet tomorrow morning at the museum to discuss papers from the desk of the federal prosecutor who brought Capone down. The museum has them now, but it won't for long if the National Archives gets its way.

U.S. Attorney George E.Q. Johnson prosecuted Capone for income tax evasion in 1931. Capone was found guilty and sent to Alcatraz.

"My father-in-law was a very fine lawyer who came up with a solution to a problem," says Mary Ann Johnson of Lakeside, Michigan. "They weren't going to be able to get him on murder, and they couldn't get him on Prohibition. I'm sure my father-in-law wanted to get him, and he did."

Johnson's papers—several boxes' worth— were the property of Johnson's son George "Gene" E.Q. Johnson Jr. For most of the last few years they were in the possession of Chicago author Jonathan Eig, who drew from the documents to write his recent history of the gangland chief's rise and fall, Get Capone. As Eig completed his book, Gene Johnson became ill, and the family decided to do what they'd always intended to do—donate the papers to the Chicago History Museum. The museum issued a deed of gift to the Johnsons last December, three months before Johnson died in his Lakeside home.

"Gene and I both decided that we wanted the Chicago History Museum to get the papers," says Mary Ann, his widow. "We didn't know anything about the National Archives. I didn't get an appraisal or take an income tax deduction. We just wanted it clean and easy. We wanted the museum to take care of it in the proper way."

But because the National Archives and Record Administration (NARA) is after the papers, CHM hasn't even unboxed them, much less logged them into the museum's database or made them available to the public.

Doug Bicknese, NARA's regional archives director, says the papers would complement the "more formal" federal case files from the Prohibition era that NARA already maintains at its Great Lakes regional office at 7358 S. Pulaski. "We don't necessarily keep records for every single person the U.S. district attorney prosecutes, but this is exceptional," Bicknese says. "We will probably want the entire thing—the deliberation that went into the case, the handwritten notes, the closing arguments, the wiretaps, the correspondence."

The Pulaski office is open to both researchers and the public. But it's hardly as central or familiar a place to explore Chicago's past as the history museum at Clark and North. And John Russick, senior curator at the Chicago History Museum, doubts the papers would even stay long in Chicago. "They could end up on display in [the Smithsonian]," he says. "It could have the kind of pull that makes people want to see them. Even if they go to Great Lakes, I wouldn't be surprised at all if they end up in D.C."

Eig calls the Johnson papers a "treasure trove." There are typed notes regarding testimony and legal arguments and notes jotted by hand during the trial. Hand-drawn maps locate suspected Chicago "booze joints." A letter from the attorney general in Washington—writing after Johnson reached a plea bargain agreement with Capone but before it fell apart—excoriates him for allowing so much time to go by before sentencing. The attorney general predicts that when the light sentence is announced the public will be outraged.

There are transcripts of the conversations overheard by Eliot Ness's wiretaps. When Ralph Capone was convicted of income tax crimes in 1930, a year before his little brother, a Capone crony was recorded calling government prosecutors "rotten skunks."

Johnson's papers show what went on behind the scenes of his investigation, how little evidence against Al Capone the government actually had, why it had to settle for making a tax case instead of murder or racketeering, and how close Johnson came to losing even that.

"Anything with Capone's name on it is important, and this is the most important trial of the time," Eig said. "The government uses the tax case today, for white-collar criminals. They still call it the Capone method. The Justice Department teaches classes on this. It's great that we have these documents to see how it was done the first time around."

Eig says he always knew ownership of the papers was "murky." His research on Capone took him to both the history museum and the NARA office on South Pulaski, and he informed both places of the existence of the Johnson papers. The next thing he knew, they were sending their people to his house to have a look. "The work of a historian is to track this material down," says Russick. "When the Johnson material popped up, I responded with enthusiasm."

Eig stored the papers in cardboard boxes from a liquor store. "The archivists were horrified," he says. "I said 'Should I put them in files?' and they said 'No, don't touch them.' They took lots of pictures. For all they knew, I could lose the stuff or spill coffee on it or sell it on eBay."

How did Eig acquire the papers? Perusing old newspapers, he spotted a Tribune story that said a professor Dennis Hoffman had documents related to Al Capone and prosecutor George E.Q. Johnson. Eig flew to Omaha, Nebraska, where the professor taught criminal justice. He persuaded Hoffman of his good intentions and hauled everything Hoffman had—filing cabinets of notes and boxes of newspaper clippings—back to Chicago.

And how did Hoffman get the papers? After publishing a book called Scarface Al and the Crime Crusaders in 1993, he was thinking of a sequel—something that would do justice to "the characters who never received credit for putting Al Capone away." During a visit to the Chicago Crime Commission, "I was mindlessly flipping thru the Chicago phone book and came across 'Johnson, George E.Q.' And I thought, 'Wow! This must be the guy who prosecuted Al Capone,' And I called the number and connected to George E.Q. Johnson Jr., and I said 'Are you the son of the man who prosecuted Al Capone?' and he said, 'Oh my God, everyone thinks it's Eliot Ness.' So we talked, and then he said, 'Come right over, I have something I want to show you.'

"I met him in the conference room at his law office. There was a long mahogany table. In the office he had six to eight boxes of scrapbooks. He said, 'This is not the complete collection. Some janitors, when I was in a previous office, threw some things away. These are for the years 1927 to 1931. It's when my father hunted down Al Capone.'"

It was the beginning of a beautiful friendship.

Gene Johnson told Hoffman, "Whenever I see a Hollywood version of the story, I feel like taking off my shoe and throwing it through the TV." He lent Hoffman the papers so he could write a book that would set the record straight about who really got Capone. Not Eliot Ness—the mere Prohibition agent—and his Untouchables, but Johnson, the prosecutor and strategist.

Says Hoffman, "The deal was, when I was done I would give [the papers] back to Gene and he would give them to the Chicago History Museum. The possibility of giving them to the National Archives was never, ever mentioned."

Hoffman did additional research on Johnson. He spoke to his relatives, traveled to his hometown of Lanyon, Iowa, and collected information on other members of the prosecution team. Because of his friendship with Gene Johnson, Hoffman wanted to present the U.S. attorney as a knight in shining armor. Yet he was beginning to wonder if he'd stretched the boundaries of criminal law to get Capone.

"So I was pretty much unable to write the book," Hoffman said. "For years I sat on this material, torn inside between two polar ways of telling the story."

Eventually Gene Johnson suggested they pray on it. "I am not a praying man, but I went along with it," says Hoffman. They prayed, and then Johnson told Hoffman to write the book the way he wanted to. But Hoffman never did.

And how did Gene Johnson get the papers? There was no National Archives until 1934, and not all government offices preserved their records. When George E.Q. Johnson went into private practice in 1933—he practiced until his death in 1949—he would have brought his important papers with him. What papers would've mattered more than the history of his prosecution of Al Capone?

The National Archives maintains that George E.Q. Johnson's working papers belong to the federal government because he was a federal employee. If the Chicago History Museum accepts this argument there won't be much else to discuss—simply how and when the originals are transferred to the National Archives and how to get the history museum copies of them.

But if it comes down to it, NARA could have a tough time proving everything in the boxes is a working paper. Some documents have official stamps or seals, others don't. And what about those handwritten notes and hand-drawn maps? Who can say if Johnson (or someone else) doodled some of them at home? And then there are Johnson's scrapbooks. Is a newspaper clipping a working paper?

And you know what they say about possession and the law. "Because the government doesn't have possession, if the Chicago History Museum challenges the government, the National Archives might have to prove they are theirs," says David Dana, a professor of property law at Northwestern University. "I don't know if there is any precedent or statute that is relevant. Normally, the body coming to take possession should have the burden of proof."

No one doubts the value of keeping the Johnson collection together, regardless of whether everything in it is a bona fide working paper, because together the documents tell a story they can't begin to tell separately. The question is where the collection should wind up, and its previous custodians have their own thoughts.

"They should definitely stay in Chicago," says Mary Ann Johnson. "It all happened in Chicago. The trial was in Chicago. George E.Q. Johnson was in Chicago. We just thought they would go to the Chicago History Museum."

Eig says the Chicago History Museum "would maybe give more attention to them, and make an exhibit, and put some of these letters on display. Beyond that, it doesn't make too much difference as long as they are preserved."

Hoffman adds, "My gauge is that if Gene was involved, he would be outraged that the National Archives might get his family scrapbooks. He might say no way in hell should that stuff leave the Chicago History Museum."

Russick wonders why the National Archives is so determined to get its hands on the Johnson papers. But he understands their importance. "There are other documents out there—treasury documents, etc—but there was no awareness of or access to the Johnson records," he says. "Johnson was the legal machinery that brought Capone down. Johnson didn't carry a gun. He didn't have the sexiness of the Untouchables."

Maybe not. But to the National Archives and the Chicago History Museum, he's looking pretty sexy right now.   

UPDATE: NARA got Capone. On Wednesday, the Chicago History Museum's executive vice president, Russell Lewis, and archivists John Russick and Peter Alter met with representatives of the National Archives and accepted their argument that the Johnson papers belong to the federal government. The entire George E.Q. Johnson collection—including materials unearthed by author Jonathan Eig—will be transferred to NARA's Great Lakes office at 7358 S. Pulaski.

"While we are disappointed that these important documents will not be available as part of the extensive collections at the Chicago History Museum, we are pleased to have been able to facilitate the transfer of the documents into the public domain," Russick said in email to this reporter. He said NARA assured the museum that the papers won't leave the city.

Mary Ann Johnson said she was told NARA will "get everything, even the scrapbooks." She said, "I'm fine with it, as long as they are staying in Chicago."

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