Washington Lawyer

Books in the Law

From Washington Lawyer, September 2012

By Patrick Anderson and James Srodes

Book cover. The Years of Lyndon Johnson: The Passage of Power.The Years of Lyndon Johnson: The Passage of Power
By Robert A. Caro
Alfred A. Knopf, 2012

Review by Patrick Anderson

When Vice President Lyndon Baines Johnson arrived in Dallas on the morning of November 22, 1963, his fabled political career had reached its nadir. As Robert A. Caro has detailed in the three previous volumes of this magnificent biography, Johnson, growing up dirt poor in Central Texas, boasted as a teenager that he would someday be president.

By the late 1950s Johnson had become the all-powerful Democratic majority leader of the U.S. Senate. Then, after a clumsy stab at the 1960 Democratic nomination, he agreed to become John F. Kennedy’s running mate because he believed that, as a Texan who was suspect to his party’s liberal wing, it was his only chance of becoming president. Caro quotes Johnson telling Clare Boothe Luce, a former congresswoman and the wife of Time publisher Henry Luce, “I looked it up: one out of every four Presidents has died in office. I’m a gamblin’ man, darlin,’ and this is the only chance I got.”

As a candidate, Johnson did what Kennedy wanted—helped the ticket carry Texas and other southern states—but his vice presidency soon became a nightmare. The young president and his inner circle variously ignored, scorned, and patronized the man some of them called Rufus Cornpone, and Attorney General Robert Kennedy more than once humiliated him. The proud Texan became a pathetic figure. By the time of the 1963 Texas trip, there was talk that Kennedy would drop Johnson from the ticket the next year.

Then shots rang out in Dallas that changed everything.

At first, Johnson was in limbo, guarded by the Secret Service in a small room in Parkland Hospital. Then, when word came that Kennedy was dead, Johnson was reborn, politically and spiritually. A decisive man stepped forth, one who suddenly had the power he had dreamed of and who moved quickly, brilliantly, to consolidate and expand it.

Caro’s new volume tells in often astonishing detail the steps Johnson took to reassure the nation, to break the congressional logjam that had frustrated Kennedy’s legislative priorities, and to win the popular support that made possible his nomination the following August and his landslide victory in November. “To watch Lyndon Johnson during the transition is to see political genius in action,” Caro declares of Johnson’s performance.

Even as this volume honors Johnson’s political skills, it does not ignore his dark side, for he could be cruel, crude, dishonest, and vindictive. And we read these pages knowing that soon enough, in Caro’s projected fifth volume, we will see the great achievements of 1964–65—the Civil Rights Act, the Voting Rights Act, Medicare—overshadowed, and Johnson driven from office, by his folly in Vietnam. Johnson’s story is, as Caro says, ultimately a “tragic drama.”

But Caro, who has worked tirelessly on this biography since 1976, gives the devil his due, as the Texan achieves political victories on behalf of social justice and racial equality that the author ranks with those of Abraham Lincoln and Franklin Roosevelt.

When Johnson took office, Kennedy’s top two legislative priorities were a tax cut and a civil rights bill. Economists thought the former was needed to boost the economy, and millions of Americans believed the latter was long overdue to reward the burgeoning civil rights movement. Yet both bills seemed hopelessly stalled by the coalition of southern Democrats and Republicans who had dominated Congress since Roosevelt’s second term.

Johnson made the passage of both bills his first priority, despite skepticism from some advisers. “[W]hat the hell’s the Presidency for?” he demanded of one aide. Johnson knew he had one great advantage: he understood Congress and its leaders far better than Kennedy did. Those leaders had seen Kennedy as a spoiled rich boy, but they respected Johnson as a formidable adversary. Johnson’s frequent Senate ally, Richard Russell of Georgia, said, “That man will twist your arm off at the shoulder and beat your head in with it.”

Johnson was soon exploring ways to blast the civil rights bill out of “Judge” Howard W. Smith’s House Rules Committee, where many past bills had languished and died. (Smith was a former Virginia judge, and was often referred to as such in Congress.) Because it was unlikely that a majority of Smith’s committee members would overrule his wishes, Johnson embraced the only strategy that remained. If a majority of the members of the full House would sign a discharge petition, the bill could be rescued from the Rules Committee and sent to the full House for a vote.

At that point, the most optimistic Democratic estimate foresaw 160 votes for a discharge petition, well short of the 218 needed for a majority. But by December 3, Johnson had rallied hundreds of civil rights leaders, union officials, and clergymen to lobby Congress for the petition. He advised them to warn wavering Republicans that members of the party of Lincoln could not vote against civil rights. Johnson himself won the votes of six Texas congressmen by threatening to cut back on federal contracts for Brown & Root, the huge Texas construction firm that contributed generously to their campaigns. Within days, as the projected vote count neared a majority, Judge Smith surrendered, promising to hold hearings in January. There remained the challenge of the Senate, but, within weeks of taking office, Johnson had worked a miracle.

On the tax–cut bill, the problem in the Senate was another Virginian, 76–year–old Harry F. Byrd, who was courtly, racist to the core, and all-powerful. There was no way around Byrd; he must somehow be persuaded. Fortunately, Johnson had spent a decade cultivating Byrd. The Virginian had at first been cool to the young senator from Texas. Then, in 1952, Byrd’s beloved daughter died after a riding accident during a fox hunt. Johnson was one of two senators to make the two–hour drive, in a driving rain, to the woman’s funeral. Soon, Byrd began inviting Johnson by his office for chats. Or Johnson would call and say, “Can I have a little bit of your wisdom?” Other senators thought the older man had come to view Johnson like a son, as House Majority Leader Sam Rayburn had for years.

On December 5, Byrd came to the Oval Office, at Johnson’s request, to discuss the tax bill. As a young man, Byrd had worked long and hard to rescue his family from poverty, and he passionately believed that much government spending was wasteful, even sinful. He hated that the administration’s proposed budget for the next year came to a record $102 billion. Byrd vowed never to release the tax bill unless the budget was brought below $100 billion. He demanded both the president’s written promise to achieve that goal and time to analyze the revised budget before he would act.

Johnson went back to his senior officials and laid down the law. Byrd’s goal must be met. Some Cabinet members unwisely tried to resist the necessary cuts and were repaid with the full wrath of Lyndon Johnson. Soon the budget fell well below $100 billion, and Byrd freed the bill. “You can tell your grandchildren you were the senator who finally got a President to cut his budget,” Johnson told Byrd, gladly flattering the old man who had given him his victory.

Tirelessly wielding flattery, charm, threats, deals, duplicity, and occasional bursts of inspiring rhetoric, Johnson, in Caro’s words, “not only broke the congressional logjam, he broke it up fast, and he broke it up on civil rights.”

Caro relates that when Johnson went before Congress and declared “We shall overcome,” thereby adopting the civil rights rallying cry as his own, Dr. King, watching the speech on television in Selma, Alabama, “began to cry—the first time his assistants had ever seen him cry.”

Having rescued the Kennedy program, Johnson seized upon an ambitious, even grandiose, initiative that would be his alone. He announced it on January 8, 1964, in his first State of the Union address to Congress: “This administration today, here and now, declares unconditional war on poverty in America.” The public was awed by Johnson’s words and deeds; soon more than 70 percent of the nation supported the new president.

Caro has no illusions about Johnson and often shows him at his worst. He relates in agonizing detail the “blood feud” between Johnson and Robert Kennedy. One of the first things Johnson did as president, still aboard Air Force One at the Dallas airport, was to call the grieving Kennedy and ask that the oath of office be provided to him. Some might argue that this was an entirely proper call, although many lesser officials could have passed on the needed information. But after we’ve read many, many examples of how Bobby Kennedy humiliated his brother’s vice president, it is hard to doubt that Johnson called the devastated Kennedy to remind him who was now the boss. Twisting the knife, it’s called.

Caro provides a colorful portrait of Johnson at his ranch over the Christmas holidays—horseback riding, wooing reporters, providing down–home Texas hospitality to foreign guests, but also finding time to call two Texas publishers and warn them that they had reporters who were annoying him. Unless the reporters were reined in, Johnson warned the publishers, he might have the Internal Revenue Service look into their finances, have antitrust lawyers examine a proposed bank merger of great importance to one publisher, and have certain federal projects denied to or withdrawn from their cities. The publishers saw the light.

Also during the Christmas vacation, Caro documents that Johnson often spoke with A. W. Moursund, the lawyer supposedly managing the new president’s financial affairs in a blind trust. Caro found many witnesses to the two men’s frequent financial discussions, including one of Moursund’s law partners who joked that the trust “wasn’t very blind.” Later, Johnson had a private line installed in the White House so he and the trustee could talk without their conversations being taped or made part of the official record.

Caro relates another scene during that long holiday in Texas that presents Johnson at his amazing best. On New Year’s Eve, Johnson and his entourage went to Austin for a round of parties. His wife, Lady Bird, stayed home, and Johnson took with him several of the secretaries he’d brought to the ranch. One of the parties was at the segregated Forty Acres Club on the campus of the University of Texas. Its whites–only status was well known: several professors had resigned in protest after the club refused to serve a black Peace Corps official.

As the president’s party neared the club, he gave his arm to one secretary who had been recently hired. Her name was Gerri Whittington, and she was young, beautiful, and black. Inside the club, as Whittington and Johnson chatted with guests for an hour, she was greeted with the same respect that would have been accorded the whitest debutante in Dallas.

Watching this, an astonished law professor asked Johnson’s astute young aide, Bill Moyers, “Does the President know what he’s doing?” “He always knows what he’s doing,” Moyers replied.

The next day, the law professor called to see if he could now bring black guests to the club. There would be no problem, he was told: “The President of the United States integrated us on New Year’s Eve.”

Johnson has by some miracle attracted a biographer who is equal to the challenge that his complexities present. These four volumes, even without the disasters that lie ahead, are a fiery, panoramic, and unforgettable portrait of a man who was both a political genius and a kind of monster. If there’s a more honest, more fascinating, more complete portrait of the realities, glories, and heartbreak of American politics, I don’t know what it is.

Patrick Anderson, a novelist and journalist, reviews crime fiction for The Washington Post.

Book cover. The Impeachment of Abraham Lincoln: A Novel.The Impeachment of Abraham Lincoln
By Stephen L. Carter
Alfred A. Knopf, 2012

Review by James Srodes

In the interest of full disclosure, a minor character in this imaginative and well–crafted alternative history novel is a relative of mine.

According to family myth, Congressman James K. Moorhead, a Republican from Pittsburgh, urged in 1864 that Abraham Lincoln be arrested and hanged for his mismanagement of the Civil War. This myth is so cherished among some of my more eccentric relatives that I have never bothered to check its veracity.

But having read author Stephen L. Carter’s entirely credible imaginings about that crisis period, I suspect there might be some truth to our family fable. This book is a legal thriller set in a time so violent that today’s poisonous political environment pales in comparison. It also is a cautionary tale about the maxim that true democracy depends on a government of laws and not of men. For this fast–paced, ripping yarn underscores the greater truth that the best laws in the world will not save us if men in power do not abide by them.

At first, reading the plotline seems to require a greater suspension of historical facts than the author can manage. But Carter has several things going for him. He is a Washington, D.C., native who accurately portrays the muddy, violent Washington of the 1860s, with its mix of wealth and ornate public buildings and the rancid, vice–ridden slums of the poor. He also is the long–time occupant of the William Nelson Cromwell professorship at Yale Law School, so he knows his constitutional legal history. He also knows how to tell a ripping yarn.

In truth, Carter does not have to strain real history too much to get his story in motion. First, Abraham Lincoln survives the assassination attempt, although Vice President Andrew Johnson does get killed and U.S. Secretary of State William H. Seward is so badly wounded that he remains an invalid in his mansion on Lafayette Square throughout this story. And Mary Todd Lincoln, unhinged by the near death of her husband, dies shortly afterward under suspicious circumstances. It’s not that much of a stretch since more recent historians have speculated that Lincoln’s doctors were culpably clumsy when they probed for the bullet from John Wilkes Booth’s Derringer; he just might have been saved.

Carter’s tale begins in the early days of 1867 when Lincoln faces a double threat. Unregenerate white Southerners have begun terrorizing African Americans in the South in a bid to reclaim their land and political power.

But the real threat to Lincoln and his presidency comes from within his own Republican Party where senators and representatives known as Radicals are furious with him for not following more stringent policies against the states of the Confederacy. There is no need to exaggerate here. Congressman Moorhead was just one of many who excoriated Lincoln for not prosecuting the war more vigorously, and then for being far more conciliatory toward the South than their anger would tolerate.

By the early months of 1867, the Radicals had had enough, and with echoes of the very real impeachment effort launched against Andrew Johnson, the House votes a four–count indictment of Lincoln “for high crimes and misdemeanors.” Specifically, Lincoln is charged with having suspended the writ of habeas corpus and with suppressing pro–rebel newspapers (and jailing the editors), all of which was true. The third count charged him with willfully failing to execute lawful acts of Congress, specifically bills that demanded continued military occupation of Southern states.

But it was the fourth count that was the crux of the Radicals’ accusations against Lincoln. It charged him with attempting to create a military district that would encompass the city of Washington and set the stage for a dictatorship over the federal government that would override Congress entirely. Again, the idea may well have been mooted in reality.

As so often happens in the real-time political arena, the legal arguments are just a façade behind which more important issues—in this case, the question of high tariffs and monetary policy—turn out to be a driving force in the bid to install a more pliable president. And, indeed, Carter’s Lincoln is not the monumental saint, á la Henry Fonda, but a wily, often evasive, and possibly unscrupulous political animal. Yet what remains so admirable about this Lincoln is his capacity to transcend his background with its legacy of racial prejudice and to remain committed to two conflicting ideals: the restoration of national unity and the advancement of the former slave population.

The choice of a hero is particularly inspired. Abigail Canner is the daughter of one of the prosperous African American families that had thrived in Washington as its tradesmen and skilled craftsmen. A graduate of Oberlin College, Abigail returns as a would–be law clerk for the fractious collection of attorneys who serve as Lincoln’s defense team. Whether one credits the first African American woman lawyer admitted to the Bar in the District of Columbia to be Mary Ann Shadd (1870) or Charlotte E. Ray (1872), Canner is a credible character, and much of the drama hinges on her ability to move through the racially charged minefields of Washington society as she seeks to serve her client and her ambitions.

I will not spoil for readers by revealing the dramatic conclusion of this tale, nor is that the only reason to be carried along by the narrative. One cannot help but be reminded by more recent real history coming up with uncomfortably similar episodes where passion, greed, and human weakness so easily trump our best intended laws and protections. This is entertainment to be sure, but it makes one think.

James Srodes’ latest book, On Dupont Circle, has just been published.