Washington Lawyer

D.C. Lawyers Reflect on Becoming Authors

From Washington Lawyer, April 2014

By Joseph C. Goulden

Graphic of a head from Getty Images.Based on sales figures and name recognition, the best-known lawyer–writers in the country are arguably novelists Scott Turow and John Grisham, who churn out bestsellers on law-related subjects. That their plots are occasionally of pot-boiler quality, with scant resemblance to the real world of lawyering, is of no consequence to readers; these authors sell books by the truckload.

So why have no Washington, D.C., lawyer-writers emerged to exploit the rich, real-world material that exists in abundance in this town? For instance, why not a novel presenting a reality-based but fictionalized character modeled on a legal titan such as Clark Clifford or Edward Bennett Williams? To be sure, any number of Washington novels has touched on the interplay of the government and lawyers, but none from the point of view of a single memorable character.

Nonetheless, there is a school of Washington lawyer-writers that is winning quiet acclaim from readers who appreciate authoritative and highly readable nonfiction. While these authors have not achieved the broad popularity of a Grisham or Turow, their books are apt to be on library shelves—and read—long after they have faded from view.

Who are these writers? How did they mesh the tremendous work required to produce a credible book of history with demanding legal careers? And the question that is perhaps of most interest to many of the lawyers reading this magazine and thinking about writing a book themselves—how can I get started? Here is how I discovered a genre of books that has afforded me many pleasant hours of reading in recent years.

Authors and Experts
Several months ago, a revived interest in Civil War history led me to purchase a new biography of William H. Seward, President Lincoln’s secretary of state. The book’s subtitle suggests Seward’s importance in the administration: “Lincoln’s Indispensable Man.”

The story is how a small-town New York State attorney rose through rough-and-tumble politics to become a progressive governor and senator, and the odds-on favorite to be the Republican nominee for president in 1860. Such did not happen, so Seward graciously accepted Lincoln’s invitation to run for vice president. After a score or so pages, I realized I was reading first-rate history—a well-organized narrative, with abundant humanizing anecdotes, and footnotes in such profusion that the author had obviously done hard research.

The author? I paused to skim the dust jacket and then consulted Google. Walter Stahr, a Harvard Law School graduate, had practiced law for 25 years, beginning with the Washington, D.C., firm Cleary, Gottlieb, Steen & Hamilton. After five years in Hong Kong for the firm, and another seven with the U.S. Securities and Exchange Commission (SEC) in the District of Columbia, Stahr became chief counsel for Fidelity Investments; a financial company based in Boston; and then for another firm, Emerging Markets Partnership, later called EMP Global, of Washington, D.C.

I rummaged around in my memory. In recent years I have read, for reviews and for pleasure, several other outstanding nonfiction books by writers who had enjoyed earlier careers as Washington lawyers. In addition to Stahr, there is David Roll with well-received biographies of Louis Johnson (longtime star Democratic fundraiser and briefly secretary of defense under President Truman), and Harry Hopkins (dubbed by the media as “the second most powerful man in America” while serving President Franklin D. Roosevelt). A review of the Johnson biography in Parameters, journal of the Army War College, termed it “the kind of scholarship we should expect of all historians. Expertly crafted and meticulously researched. . . . compelling.”

Then there is David O. Stewart, formerly a litigator with the Washington, D.C., office of Boston-based Ropes & Gray LLP, who has written nonfiction books on the impeachment of President Andrew Johnson, the tangled career of Aaron Burr, and the Constitutional Convention of 1787. Stewart also authored a novel about the conspiracy theories concerning the assassination of Lincoln.[1]

And last year, the versatile Stewart satisfied his longtime ambition to write that novel. During research on the Johnson impeachment book, his eye fell upon a sentence in an obscure biography of John Bingham, the prosecutor of accused conspirators in the Lincoln assassination. Nearing death, Bingham supposedly confided to his physician that Mrs. Mary Surratt, one of the conspirators, told him a secret that could “destroy the Republic.” The passage preyed on Stewart for years. What could she have meant? He finally decided that “a fictional treatment allowed me the freedom to explore the [John Wilkes] Booth conspiracy in the speculative fashion warranted by the known facts.” The result was The Lincoln Deception, which a somewhat bemused Stewart says outsold his previous nonfiction books.

A Keen Interest in History
In interviews over the course of several weeks, I found several common denominators among these authors. Foremost was a keen interest in history, and a love of books from an early age. Stahr, for instance, relates, “At age four, I could recite the names of every president, in the order in which they served.” He pauses to laugh. “And I can’t do that now!”

After completing undergraduate work at Yale, Stewart worked for more than a year as New York legislative correspondent for the Staten Island Advocate. But he soon developed doubts about the long-term relevance of journalism. He ran across a quotation from A. J. Liebling, for decades the dean of media critics, who said in effect, “When a reporter dies, his obituary lists when and where he watched other persons,” rather than what he did himself. So off went Stewart to Yale Law School and a career in law.

Roll developed a keen interest in history during his boyhood. At Amherst College, although an economics major, he loaded his schedule with American studies, focusing on the Civil War and the Roosevelt era. And he realized he had a knack for narrative writing. “I thought I was a pretty good writer coming out of Amherst . . . When I went to law school, I thought, God, they’re destroying my creativity, what I thought was my talent for writing,” Roll says.

But for Roll—as is also true for Stewart and Stahr—his legal training proved invaluable when he turned to writing something other than legal briefs. As he states, “it was important and it sharpened my writing, my ability to construct an argument, and I became much more careful about the words I use. And after 30 years of writing briefs and marshalling evidence, I think I know how to research and pull together evidence and try to winnow out what’s important and what isn’t, and then lay it out so that it proves or doesn’t prove a point.”

Roll immediately recognized a significant difference in writing legal briefs and history. His goal, of course, was to ensure that he presented the reader hard facts, but he also wished to explore the “why” of certain events. He recalled a 1953 essay by British philosopher Isaiah Berlin that he read years earlier, “The Hedgehog and the Fox,” which dealt with the writing style of Tolstoy. The title stems from a fragment of verse by the Greek poet Archilochus.

To summarize Berlin’s rather complex argument, writers (and other thinkers) fall into one of two broad categories: those “who relate everything to a single center vision, one system, more or less coherent” (i.e., the hedgehogs), and “those who pursue many ends, often unrelated and even contradictory” (i.e., the foxes). To be effective, a writer must start with hard facts, and from that base try to understand and explain what causes his characters to act in the way they do. Roll is definitely in the “fox category.”

Discerning motivation was something that puzzled Roll several times when he was writing the Hopkins biography, The Hopkins Touch, published in 2013. He discovered that in late 1944, Hopkins called FBI Director J. Edgar Hoover to his White House office. The next day, according to hundreds of pages of “Personal and Confidential” Hoover documents that Roll viewed in the Library of Congress, the FBI began tapping the phone in Hopkins’ Georgetown home where he lived with his third wife, Louise. Since Hopkins spent most of his time in the White House, the target was obviously Louise.

Why? Several historians have speculated that Hopkins suspected Louise was having an affair. Roll found this theory implausible—if the wife, indeed, was unfaithful, Hoover, with his famous zest for gossip, was the last person with whom Hopkins wished to share such an embarrassing secret.

As befits a “fox,” Roll delved further. He found that Louise “was a drunk, and a very loud drunk, one who made a public spectacle of herself with her loud voice and her tendency to state her opinions.” Several Washington newspaper reporters were among her friends. And Roosevelt’s staff, including Hopkins, became concerned about stories commenting on the president’s physical deterioration, which became strikingly obvious. So Roll decided that fears Louise was blabbing about FDR’s health prompted the wire taps, and not any affair.

Although Roll stresses that he loved the law, and his firm, there were times when he felt constricted—especially as a writer. He came to realize that “creativity” played no part in legal writing, that to “convince a judge to see things my way,” Roll had to present the facts—and only the facts—in a logical sequence, without any play on words.

Somewhere in Roll’s career (he would not venture a guess as to when), he would find himself awake in the middle of the night, wondering what else he might be doing. As managing partner at Steptoe & Johnson LLP, he billed 2,000 hours annually. Casting around for a “spare-time project,” he hit upon the idea of a biography of the late Louis Johnson, one of the founders of his law firm.

As a student of the era, Roll was aware of the seminal role that Johnson played in financing campaigns for both Roosevelt and Truman (and other Democratic figures). Originally a West Virginia lawyer and president of the American Legion, he came to Washington in the 1930s, started a branch of his law firm, and ran the defense mobilization program in the years before World War II. Truman appointed Johnson secretary of defense in 1949.

His tenure was short and painful. The American military took a pounding the first months of the Korean War (which began in June 1950), and a host of detractors, ranging from congressional Republicans to Secretary of State Dean Acheson, blamed Johnson for military unpreparedness. According to Roll’s book, Truman ultimately faced a choice: fire Johnson or lose Acheson by resignation.

The more Roll learned about Johnson, the more convinced he became that historians had been unfair to the man by concentrating on his firing, not his accomplishments. “I was determined to write objective history, not a hagiography,” Roll stresses.

Roll benefitted from one of those breaks that nonfiction writers treasure. In tracing Johnson’s origins through interviews in West Virginia, he met a judge who told him that “some professor from Texas A&M” had done numerous interviews years earlier with the aim of writing a biography of Johnson, which never materialized. The professor turned out to be Keith D. McFarland, by then president of Texas A&M University-Commerce (East Texas State University in Commerce at the time of his Johnson research). Happy to find a home for his work of years ago, McFarland shared his research materials with Roll, and their book, Louis Johnson and the Arming of America, was published in 2005. Roll’s work led directly to his next work, the Hopkins biography.

Cases Led to Books
Stewart, meanwhile, after abandoning journalism for Yale Law School, started his legal career with clerkships on the U.S. Circuit Court of Appeals, then spent some time at Miller & Cassidy LLP, led by Herbert J. “Jack” Miller, who had run the Criminal Division of the U.S. Department of Justice under Attorney General Robert Kennedy. (In one of those quirks that makes Washington politically interesting, Miller represented Richard M. Nixon in his postresignation days and was instrumental in negotiating the former president’s pardon by President Gerald Ford.)

As Stewart says, “The firm represented a sort of who’s who of folks who got into trouble, some elected officials, others not. Some of these cases never got into the papers. I remember the crowd at Jack Miller’s funeral. A rather prominent senator walked in, and I said to another lawyer, ‘Hmmm. I never knew he had been in trouble.’ The other lawyer just looked at me and smiled.”

The bulk of Stewart’s career was spent at Ropes & Gray, where he established a litigation group for its D.C. office. He litigated an uncountable number of cases and made several arguments before the U.S. Supreme Court. He eventually became managing partner.

And although Stewart loved the law and his practice, he found his thoughts increasingly focused on writing books. An avid reader, he sometimes fantasized about spending his entire life surrounded by books—reading them, writing them. “I love the law, but I wanted to get out into another world,” he says. Looking to the future, he frequently said to himself that after retirement, “I wanted to do something more useful than go play golf.”

Stewart made his first stab at nonlegal writing while still at Ropes & Gray, resulting in a novel that never found a home. Undeterred, he turned to nonfiction. While writing a Supreme Court brief, he read some 500 pages of notes made by James Madison during the Constitutional Convention of 1787. “I was knocked out by the drama, wisdom, and occasional depressing blunders of the 55 Framers of the Constitution,” Stewart says. Concurrently, he began phasing out of his partnership with the law firm.

Published in 2007, The Summer of 1787: The Men Who Invented the Constitution earned many favorable reviews and was on The Washington Post’s bestseller list. Several critics included it on their “best books” list for 2007.

Stewart was hooked. His next project also grew out of another case he handled for Ropes & Gray—defending U.S. District Court Judge Walter Nixon of Mississippi in an impeachment trial before the U.S. Senate. Nixon was accused of intervening with a state prosecutor to have him drop a drug charge against the son of a Nixon business partner. He was convicted of lying to a grand jury and the FBI, impeached, and removed from office. (Nixon retook the bar exam in 1993 and resumed a law practice, first in Mississippi, and now in Louisiana. He and Stewart still exchange occasional phone calls.)

Given the extensive knowledge of impeachment that Stewart amassed during the Nixon case, a book on the subject seemed obvious. The recent impeachment of President Clinton would have been an easy choice, but Stewart chose to delve back into history for the nation’s first such proceeding, against President Andrew Johnson, a “stubborn racist” who refused to defend the rights of four million freed slaves after the Civil War.

In Stewart’s opinion, the Johnson impeachment was one of several important episodes in America’s past that historians tend to skim over. But in Stewart’s deft hands, the story took on a vivid reality, beginning with a besotted Johnson lurching across the platform to be sworn in as vice president a few days before Lincoln was murdered. (I remember imagining, as I read the book, that I was in the Senate visitors’ gallery watching the impeachment proceedings.) Stewart also ferreted out evidence of how bribe money sloshed around the Senate during the hearings. In the end, the Senate declined to remove Johnson from the presidency.

A mark of Stewart’s talent is his ability to tell a story in an engaging manner. He likens the writing process to preparing a brief or an argument in a legal case: “Your mission is to tell your story in a convincing fashion—to lay out the facts in an orderly manner, with the aim of convincing your target audience that you are right.”

Exercising the diligence and attention to details that he learned as a lawyer, Stewart does meticulous research. In recent years, the Internet has made such research much simpler for nonfiction writers such as Stewart whose work deals with the Founding Fathers and their work. The Library of Congress offers a vast online collection of their papers.

For his latest book, a biography of James Madison to be published later this year, Stewart went through a trove of more than 30,000 individual pieces of correspondence, from his subject’s teen years until his death at age 85. As Stewart wrote in his blog, “It’s a virtual Niagara of words, the wading (in the Land of Mixed Metaphors) through thigh-high mud, destination ever receding into the horizon.” For the Madison papers that have yet to be posted online, he sought out a repository in Charlottesville, Virginia.

Stewart cheerfully admits that there was an easier way to deal with the mass of correspondence. “I could scamper through some of the many other books on Madison and note the letters that these authors found missing, then look only at them. That would be a lot easier,” he says.

“But, no, I would miss the texture of words and personalities that emerge in small terms and word choices for describing large ones . . . Madison used the word ‘trash’ only once, describing an etiquette kerfuffle precipitated by the British Minister [Ambassador] Merry. Madison quite simply found the whole affair beneath him even to relate to someone else.”

And, Stewart adds, “What better way to get to know a man who died more than 170 years ago?”

Mysteries bobbed up from time to time. “On his third day as president, Madison granted an executive pardon to ‘Nathan,’ a ‘Negro lad’ who had been convicted of burglary and sentenced to death. Madison set him free. What was that about?” he asks. (The incident was so far removed from the scope of the Madison biography that Stewart did not pursue the matter simply to satisfy his curiosity.)

An Impeccable Researcher
As did Roll and Stewart, Stahr found that writing nonfiction can be as demanding as law. After graduating from Harvard Law School, he came to Washington as an associate at Cleary Gottlieb. There he did the litigation scut work expected of any associate, going through masses of documents, writing draft briefs, and helping more senior members prepare for court. After a couple of years, a senior man called him into his office and asked, “How would you like to go to Hong Kong?”

“That really surprised me,” Stahr relates. “Europe, I could understand, because I knew French. But Hong Kong? I had never set foot in Asia.” He thought about the offer over the weekend and decided to take it. “Hong Kong sounded like an interesting place. So, why not?” he says. He would work here from 1985 to 1987.

The Cleary Gottlieb outpost was essentially an adjunct of the firm’s U.S. practice, but dealing with matters with a Chinese angle—for instance, a complex airline antitrust case involving both civil and potential criminal litigation. (Befitting his oath of confidentiality, Stahr would not discuss specific clients.) On a brief assignment in Japan, he met Masami, who became his wife.

Back in Washington, he accepted a position in the general counsel’s office of the SEC, and then moved to the personal staff of then chair Richard Breeden. His portfolio included writing speeches and draft opinions, and dealing with Congress. “It was a delightfully variable job,” he says. The Soviet Union was shattering, and he worked with Breeden in helping the newly independent states create regulatory mechanisms for their stock markets.

In 1995 Fidelity Investments hired Stahr as their first internal lawyer based in Hong Kong; his work took him throughout Asia. In 1999, at the height of the Asian financial crisis, another firm, Emerging Markets Partnership, hired him as an internal lawyer, and he eventually became chief counsel. By now, Stahr was back in Washington, and the idea of writing nonfiction books had gripped him tightly.

While still in Asia, he had pondered writing a biography either of Robert Morris, a Philadelphia merchant famed as the “Financier of the American Revolution,” or of Gouverneur Morris, a relatively obscure Founding Father. In his preliminary research on the two Morris figures, Stahr read biographies of their close associates. One person, he discovered, had gone virtually unnoticed by history—John Jay, a New York State lawyer who had been heavily involved in pre-Revolution maneuvers, and who was chosen to negotiate the treaty with Great Britain that eventually ended the war.

As Stahr skimmed the materials on Jay, “a little voice told me” that the Morris pair was “not nearly so important.” He read the most recent biography of Jay, published in 1930; since then, Jay had been essentially ignored by historians, save for passing references. Then Stahr learned that another writer was far along on a Robert Morris biography. “This did it,” he says. “I looked at the earlier Jay biography, and I said I can do better than this book.”

Much of this preliminary work was done while Stahr was still in Asia. At first he thought the book would require “a year or two.” This estimate proved overly simplistic. And, with a wife and the beginnings of a family, he made the realistic decision that it “was more secure to have a job and work on the book as well.”

This notion began to change the deeper Stahr got into his subject. Doing a proper job, he decided, “was more than just reading Jay’s papers,” an enormous task in itself, to be sure. No definitive collection of Jay’s papers had been published, so he knew he would have to scour libraries all over the East Coast to find what he needed.

As Stahr relates, “Jay was very much on my mind when I got on the plane to return to Washington [to continue his work with EMP]. And I did not think I could do a thorough job while working as a lawyer. I needed blocks of time for research that I simply did not have.” Besides the papers, he needed to consult the contemporary press and diaries and memoirs of persons with whom Jay worked. And there were all those papers in British archives that he must consult.

Stahr made a hard decision. He told EMP that he intended to resign to devote full time to writing.

To his pleasant surprise, EMP superiors told him, “No, no, stay here—we can work something out.” They convinced him to work another year half-time. “Luckily, EMP was just a small band of people, more like a family than a law office. They did not have to deal with a lot of rules; their reaction was to devise a solution. And they did just that for me,” Stahr says. (In the acknowledgment section of the Jay biography, Stahr expressed his appreciation to EMP, “which allowed me to retain my position as an international lawyer while I worked on this book.”)

The inescapable fact is that serious nonfiction, if done properly, requires tedious detail work, not unlike that known to any big firm associate. At an early point in his biography of Edwin Stanton, Lincoln’s secretary of war, Stahr confesses to feeling “somewhat harassed.” Stanton received thousands of papers and issued thousands of orders. The number of newspaper articles about him, positive and negative, numbered in the thousands. (In earlier years, many newspapers of the era were not accessible to researchers. Now, complete runs of many publications are available on the Internet.) And even the relatively few Stanton letters left much to be desired because, as Stahr confided in a blog posting, “even in those he tended not to answer the questions I would like to pose to him.” Nonetheless, “I often have the sense that somewhere just over the horizon is the key to this very mysterious man,” he wrote.

For Stahr, his legal background proved invaluable when he wrote the Jay biography, especially the section dealing with Jay’s negotiations with Great Britain that ended the Revolutionary War. As Stahr points out in his book, the former colonists had a plethora of demands, some conflicting. The New England states wished to retain fishing rights in their traditional grounds off Nova Scotia and environs. Merchants desired tariff agreements that enabled them to trade not only with Britain, but also with its Caribbean colonies. In researching this intricate phase of the book, Stahr found himself doing “a line-by-line analysis of what Jay was attempting to achieve.” An academic with no legal training, he suggests, would have encountered a rough slog trying to sort out what Jay was trying to achieve, and how he accomplished it. “Being a lawyer was invaluable in this regard,” he states.

Stahr also appreciated Jay’s determination to write the first draft of any treaty that emerged—something that all lawyers know gives their side a leg up in negotiations of any sort, from a real estate closing to a licensing deal. In John Jay: Founding Father, Stahr writes, “Like most lawyers, Jay preferred to prepare the first draft himself, and he now prepared the first draft of America’s first peace treaty.” (Although the British insisted on later changes, much of Jay’s first draft survived into the final document.)
As Stahr notes, there was important language in the draft, the import of which might have escaped the eye of a nonlawyer historian. “In the preamble, Jay provided that the preliminary articles, were ‘to be inserted in and to constitute’ the treaty of peace between Britain and the United States, if and when Britain and France signed their own common peace treaty,” Stahr writes in the Jay biography.

As befits an attorney who takes care to avoid using inaccurate information in a court filing, Stahr uses the same diligence in his research. One frequent irritant to him is the unreliability of footnotes and index entries in books he consults during research. “I try to be diligent; if I repeat someone else’s error, it becomes my error as well,” he notes. “Every historian, I believe, owes footnotes to future historians. It is only through good footnotes that one historian can retrace the steps of a prior historian, confirm whether the work is accurate, assess where the interpretation is fair.”

As an example, he cites the effort he put into documenting a quotation attributed to Secretary Stanton about the firing of 20 clerks in the Quartermaster Department. The clerks supposedly had been supporting General George McClellan, the Democratic opponent of President Lincoln in the 1864 election. An earlier biography of Stanton quoted him as saying “when a young man receives his pay from an administration and spends his evening denouncing it in offensive terms, he cannot be surprised if the administration prefers a friend on the job.”

Stahr diligently checked the footnotes cited in the earlier book. None of the listed sources included the quoted language; indeed, none were even close. Nor did two other biographies of Stanton. A Google entry simply referred to the original book.
A bit later, while reading newspaper articles from 1864 that mentioned Stanton, Stahr encountered a quotation in The Chicago Tribune attributed to Stanton that contained language similar to that used in the Thomas-Hyman biography. To Stahr, this was “clearly the source of the . . . quote, even if a few words have changed.” Looking further, he found similar quotes in other papers in Ohio, New York, and Springfield, Illinois. His conclusion? Stanton likely fired some clerks, but not that he “ever said anything about their evening habits; that looks like a clever reporter putting words in Stanton’s mouth to make them more memorable.”

Much of Stahr’s work involves sitting in front of a microfilm reader in the basement of the Exeter Academy library. For his Stanton biography, the subject’s papers alone occupy some 200 reels of microfilm, an estimated 200,000 pages in all. There is no index, although the papers are organized—somewhat—by subject matter. He can scan for specific words using software that directs him to specific entries. And he speaks longingly for a future when even handwriting two centuries old can be machine-read and printed. As is true of any researcher who works with original documents, Stahr has learned to try to ignore the eyestrain inherent in such a task.

The research reaps critical dividends: Publishers Weekly termed Stahr’s Seward biography “one of the top ten” history and military history books for the fall season. The New Yorker called it “masterly” and “a subtle portrait of this confounding figure.”
 Stahr begins his research by preparing two documents. He compiles a bibliography of possible source material, including prior books on the subject, and a list of other sources, and where they might be found. Next is a chronology of where his character was on any given day, and what various sources might say about what happened (for instance, “where they give different interpretations to the same letter”). Months ago, his chronology of Stanton had passed 500 pages and was “still far from being done.” (He sounded much relieved when he told me a few weeks ago that the book was bound for the publisher.)

Just Sit Down and Write
So can a person attuned to the structured life of an attorney make the transition to writing, either while practicing or contemplating retirement?

Stahr says that a major requirement is determination: “There should be a voice in the room that says, ‘Do it . . . don’t just talk about it!’” Stewart counsels that an aspiring writer should test the waters by writing a few hours at night and on the weekend.

But the most pungent advice comes from a mantra given to Roll by a neighbor, Tom Wheeler, chair of the Federal Communications Commission and author of two books[2] on the Civil War: “Just get your butt in the chair every single day.”

As Roll notes, “He was right!”


Notes
[1] Of course, my list is far from exhaustive as there are many other Washington lawyers producing scholarly work of high quality.
[2] Wheeler’s books are Mr. Lincoln’s T-Mails, on how the president “used the telegraph to win the Civil War,” and Take Command! which applies General U.S. Grant’s leadership lessons to business.