How Do Washington SuperLawyers Work?
|By JOHN W. DEAN|
|Thursday, Feb. 26, 2004|
If there are not more lawyers working in Washington, DC than any other city in the world, on a per capita basis, it's a surprise to me. The nation's capital has a disproportionate number of civil and criminal courts (from the D.C. Superior court to the U.S. Supreme Court). And of course, it is home to Congress along with a remarkable array of administrative agencies. All this legal apparatus, needless to say, results in a surfeit of lawyers, both inside and outside of the government.
With only rare exceptions, the top Washington attorneys are those with government experience. In addition, government practice produces a special breed of attorney, who seldom sees the inside of a courtroom or hearing room. These are the Washington based lawyer-lobbyists, the influence peddlers.
These lawyers are not found trolling for clients by playing pundit on television or radio. Indeed, they keep a low profile and, outside government circles, these men (and a few women) are little known. Yet they are always given the best tables at Washington's finest restaurants -- for they grease palms as a way of life.
Only occasionally are outsiders given a peek inside this world -- most often, when they get in trouble, and want to get a lawyer to help them out of it. Otherwise, the world of the Washington superlawyer/lobbyist is generally a private one. Even the HBO series "K Street," which aimed to depict that very world, was about as close to reality as is "The West Wing" (which has no relationship whatsoever to how the White House operates).
But a recent biography, by David McKean, of a superlawyer named Tommy Corcoran, has now made it more possible to peek behind these closed doors.
Because these high-priced Washington operatives move about the corridors of power quietly, and work largely behind closed doors for their corporate clients, few books are written about them. However, back in 1972, James Goulden -- the former Washington bureau chief of the Philadelphia Inquirer -- turned his considerable knowledge of Washington and muckraking skills upon several of these legendary heavy hitters.
Goulden provided a broad view of several of the best of the behind-the-scenes fixers in his book SuperLawyers. Unfortunately, however, Goulden's focus on muck produced less than a full (and fair) picture of what these lawyers do and how they do it.
David McKean's First Book About D.C. Superlawyers: A Clark Clifford Bio
Fortunately, this world of legendary Washington fixers has also caught the attention of a true Capitol Hill insider, David McKean.
McKean is an attorney who now happens to be Chief of Staff for Senator John F. Kerry. McKean earlier served as deputy chief minority counsel to the Senate Government Operations committee investigation of campaign finance. He has also worked on the House side of the Hill, as chief of staff for former Congressman Joseph P. Kennedy II. In short, McKean more than knows his way around the government.
It was McKean's work as Investigative Counsel during Senator Kerry's inquiry into the Bank of Credit and Commerce International (BCCI) that exposed McKean to the world of the Washington's superlawyers. Using that knowledge, he wrote a compelling biography (with New York Times reporter Douglas Frantz) of the once indomitable Washington lawyer-lobbyist-fixer Clark Clifford -- who became ensnarled in the BCCI fiasco.
For five decades, Clifford was the consummate Washington insider. In 1991, at the end of his career, Clifford wrote his memoir, Counsel To The President, with Richard Holbrooke. The book recounted recording his years with Presidents Truman (as White House Counsel), Kennedy (as personal attorney) and Lyndon Johnson (as Secretary of Defense).
But just as the book was being completed, Clifford's storied role as adviser to presidents morphed into scandal. As a result, an unauthorized -- and much more damning -- account of Clifford's life followed. David McKean and Doug Frantz recounted Clifford's rise and fall in Friends In High Places.
McKean's New Book: Another Superlawyer Biography
When working on Clifford's biography, McKean found that the name of another legendary Washington lawyer-lobbyist Thomas G. Corcoran "kept popping up" -- as McKean recently explained to the National Journal. Corcoran was both a competitor and friend of Clark Clifford's.
In the end, McKean became interested not only in Clifford, but with Corcoran as well. After six years of research, he has written -- and published, this month -- an important and telling biography of Corcoran: Tommy the Cork: Washington's Ultimate Insider From Roosevelt To Reagan. (It was President Franklin Roosevelt who gave Corcoran his nickname -- an apt description of the superlawyer's personality.).
As McKean told the National Journal, notwithstanding today's disclosures requirements, wheeling and dealing "hasn't changed all that much" since Tommy Corcoran's day. "I was really struck by the Wall Street scandals that broke when Corcoran came into the Roosevelt administration," McKean notes. "They were similar to what's going on today -- so identical that it's amazing."
Tommy the Cork is both history and a cautionary tale. It is told by an author who understands the way things work in Washington, and it sets a stage very much like the one on which contemporary Washington lawyers still operate.
The Education of a Washington Superlawyer
In the fall of 1926, Tommy Corcoran arrived in Washington to serve as a law clerk for U.S. Supreme Court Justice Oliver Wendell Holmes. Those who held this post were not, as it happened, selected by Holmes. Rather, Holmes entrusted that task to his former colleague, Harvard Law School professor Felix Frankfurter.
Corcoran had distinguished himself at Harvard with high grades, and with his excellent writing skills as displayed by his work on the Harvard Law Review. As a young scholar, Corcoran first considered teaching law. But after a year of graduate law study, he decided to head for New York City and private practice -- only to learn that he had been given the coveted position as clerk to Holmes.
Holmes was eight-five when Corcoran entered his life, and no law clerk would become closer to the Justice, nor more loyal than the young Irish boy from Rhode Island. Holmes clearly recognized the fine mind Frankfurter had sent him, and the Justice provided his own influence by suggesting to his clerk extracurricular readings that included the Old Testament, Montaigne, Burke and Lord Acton -- readings the Justice and his clerk would discuss on their regular afternoon walks.
These walking tutorials also had their lighter moments. Corcoran later recalled their strolling along Pennsylvania Avenue "when a curvaceous young blonde walked past them." Holmes watched her carefully, and when she turned the corner, he turned wistfully to Corcoran: "Ah, to be eighty again."
Corcoran also read aloud to Holmes, both as his clerk and later in the justice's life, for Corcoran remained companion and caregiver long after his clerkship ended. McKean reports that by the time of his death in 1935, Holmes had read, or listened to the reading of, thirty-five hundred books.
Indeed, Holmes would carefully record the title of each in a black notebook when it was completed. He instructed that this record was to be destroyed upon his death. But Corcoran managed to preserve it -- recognizing its historical value -- and gave it to the Harvard Law School, where Holmes had once taught.
Clerking for Holmes was "a wonderful education," Corcoran later said.
Frankfurter's Hotdogs, And The New Deal: Corcoran's Time in Government
After clerking, Corcoran wanted to earn some money, so he headed back to New York City, where he joined a prestigious firm, and within two years had accumulated over $250,000 (the equivalent today of several million).
The stock market crash of 1929, however, wiped out Corcoran's small fortune. But he soon earned enough to return to Washington and take a job with the Hoover administration -- again at the suggestion of Frankfurter. Corcoran was not particularly impressed with the Hoover administration's work. But he was very interested in the work of government.
It was the election of Franklin D. Roosevelt that changed the life of Tommy Corcoran, as it did the nation's. Corcoran was working as an attorney at the Reconstruction Finance Corporation when Roosevelt was elected. (The RFC was an incubator for many of the New Deal programs that the Hoover administration was developing, but FDR would implement.)
After becoming President, Roosevelt -- who had known Frankfurter since his days as an assistant secretary of the Navy, and had relied on the professor as governor of New York -- asked Frankfurter to assemble a legal team to review the nation's securities laws. New laws were sorely needed, given the state of near collapse that afflicted the financial markets. Frankfurter first called Corcoran and then another of his prize pupils, Benjamin Cohen, to handle the job.
It proved a remarkable pairing. As McKean says, knowingly or not, "Frankfurter had paired two lawyers who became perhaps the best legal team in the annals of American government. Indeed, one reporter noted, Corcoran and Cohen together wielded 'more influence at the White House ...and are more of a force through the entire reaches of the government than any pair of statesmen in Washington.'
Although Corcoran remained at the RFC throughout his government career, he had access to the president through FDR's personal secretary, Missy Lehand. From Corcoran's role in writing the securities laws, to his role in speech writing for the president, to his role in FDR's court packing plans, McKean has collected one historical nugget after another to show how profoundly Corcoran influenced the FDR Administration.
For example, it is Tommy Corcoran who was summoned by Justice Louis Brandeis from the Supreme Court's chamber to come to the robing room at an important moment in FDR's Administration. Through Corcoran, Brandeis sent a scolding message to FDR after the court rendered its decision in Schechter Poultry v. United States (which effectively removed the cornerstone of the New Deal's centralized planning, by deeming it unconstitutional).
Brandeis told Corcoran that FDR was living in "a fool's paradise," adding, "This is the end of the business of centralization, and I want you to go back and tell the President we're not going to let this government centralize everything. It's come to an end." It was a remarkable bit of advice for a justice to give a president -- and, again, Corcoran was the chosen messenger.
Corcoran's Influence Peddling: The Good, The Bad And The Ugly
As the war approached, Corcoran sensed his influence within the Roosevelt administration shrinking. So after marrying, he decided to use his knowledge of government, and the network of contacts he had developed (not to mention the many who owed their job to Corcoran) to lobby.
Corcoran saw an opportunity and he took it. He really was the first of the modern influence peddlers. He quickly established himself as the person to see to get things done in Washington.
Notwithstanding Corcoran's Irish charm, ebullient personality, and endless energy, he made enemies. (No one could have cut the swath through Washington that Corcoran did, without doing so.)
Senator Harry Truman seems to have been one of them. Truman neither trusted nor cared for Corcoran, as a result of Truman's experiences conducting Senate hearings on war profiteering. The precise reason for Truman's feelings are unclear.
As President, however, Truman had Corcoran wiretapped, and in one conversation McKean says Corcoran is heard saying that Truman is "dumb as hell," which could not have helped their relationship. But Corcoran's connections were so wide and deep, it seems that even the fact that the president himself did not care for Corcoran, posed not the slightest impediment to Corcoran's influence.
The core of this book reports how Corcoran operated: how he gained influence and used it. These two hundred pages are intriguing -- the most fascinating in the book.
Tommy the Cork was a rare talent: smart, knowledgeable, and ruthless on his clients' behalf. It is unlikely anyone will ever match his influence, for the government has grown so much more complex. Yet Corcoran's techniques, at least, remain the norm. McKean lays it all out, for Corcoran wrote the book on lobbying. It is not pretty. Nor does it have anything to do with the public interest.
Corcoran's Daring -- and the Dubious Legality of His Tactics
Clearly Corcoran often acted at the edge of the law. At times, he even acted beyond its boundaries -- as when he directly lobbied Supreme Court Justices Hugh Black and William Brennan for a client with a pending case. Both justices were stunned, refused to talk with him, and asked him to leave.
Because Corcoran had been instrumental in placing Black and others (William O. Douglas and Felix Frankfurter) on the Court, he seemed to think he had special privileges. The justices didn't agree, however. And had they been inclined, they could have had him disbarred.
McKean has provided the first (and only) full biography of Corcoran. In gathering his information, McKean spoke with historian Arthur Schlesinger, who had interviewed Corcoran years earlier. During that interview Corcoran said, "A great man cannot be a good man." The remark could hardly be more telling.
McKean surmises that Corcoran's comment was a reference to FDR, for Holmes -- who remained Corcoran's hero -- managed to be both great and good. But McKean also thinks that Corcoran might have been indirectly referring to himself, when he spoke of a great man who was, at the same time, less than a good man.
While Corcoran himself was not great, his influence surely was. And, especially as time passed, Corcoran's goodness seemed to evaporate. Sadly, Corcoran's story does not have a Frank Capra ending.
To the contrary, McKean found that as Corcoran grew older, "he seemed to care less about explaining why something should be done a certain way, simply resorting to deception because he knew he could achieve the desired result. In short, too often his morality extended no farther than the ends justify the means."
For anyone interested in understanding how the federal government operated in Washington from Roosevelt to Reagan, David McKean had reconstructed the life and times on one of the more important backstage players. It is a mesmerizing account.