Daniel Sheehan’s Riveting Legal Memoir Is a Real Education
One of the most storied civil liberties attorneys of our time, Daniel Sheehan’s riveting memoir, The People’s Advocate, reveals the hard work, intense opposition from public officials, and even physical danger faced by those who go to the mat for the rest us. His book is much more than a great entertainment. It is essential education for anyone who wants to understand the tasks and trials confronting the American people today.
by Dan Hamburg
Truthfulness has never been counted among the political virtues, and lies have always been regarded as justifiable tools in political dealings.
—Hannah Arendt
Daniel Sheehan’s vital and compelling memoir, The People’s Advocate: The Personal and Legal Memoir of America’s Most Courageous Public Interest Lawyer, shows us the author and his friends in spirited combat with the bald-faced lies of government —combat conducted through our legal system, the last and ultimate venue in which our democracy publicly adjudicates the truth. His book is clear testimony to the enormous difficulty of this mission in the face of the vast means possessed by government, industry, and, on occasion, even the judiciary itself to prevent the truth from willing out.
Sheehan takes us inside many of the most important civil liberties legal battles of recent decades—beginning with two of the five cases he litigated while still a student a Harvard Law School, then moving briskly towards the case that electrified the country, United States v. New York Times (better known as “The Pentagon Papers trial”), followed by the Watergate burglary, several critical cases surrounding the American Indian Movement’s coming-of-age at Wounded Knee, the American Sanctuary Movement, the Greensboro massacre, the infamous Karen Silkwood trial (about which Sheehan makes stunning new, headline worthy revelations), and culminating in the epochal investigative and legal battles surrounding the Iran-Contra scandal. His storytelling is gripping as a John Grisham thriller. What makes The People’s Advocate so thoroughly unique, however, is that Sheehan’s passion for the law carries him into precincts few associate with the lawyer’s craft and calling anymore—namely philosophy and religion.
Judges are allowed to pose as philosophers, but we are not used to seeing lawyers take that role. Yet Daniel Sheehan readily abandoned what any ambitious lawyer would have regarded as the job of a lifetime—he was one of just three litigators in the office of F. Lee Bailey, at the time the world’s most famous trial lawyer—to return to Harvard to study of all things the philosophical and religious foundations of ethics. Sheehan had happened across the Harvard political philosopher John Rawls’ profoundly influential A Theory of Justice, a dense tome that he read in a single weekend. Affter a long private meeting with the good professor, he enrolled in Harvard Divinity School to study the spiritual foundations of a true social ethics—hardly a move we associate with lawyerly ambition.This is but one moment in what turned out to be a life of notable departures from the normal career path.
Whether it be courtroom antics worthy of a Perry Mason episode (in one of the book’s most hilarious passages, Sheehan snatches an envelope from the lap of a prosecution witness, dumps its contents on the defense table, and holds up to the court an audio tape exonerating his client that the prosecution had been consistently swearing did not exist), his revelatory moment of transcendence on LSD, dangerous clandestine meetings with CIA whistleblowers, or joining his soul mate and enormously talented lifelong collaborator, Sara Nelson, in giving birth and raising their first child while the couple lived in a recently celibate Jesuit rectory, we can understand why sometimes the author himself seems amazed to be playing a role in such an over-the-top movie.
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Daniel Sheehan grew up mostly in small upstate New York village towns in a home dominated by his father Pat Sheehan’s alcoholism. The elder Sheehan had returned home from World War II battlefields a broken man. He found a job as a nighttime prison guard but dedicated his weekends to being a good cheer drinker at the local bar. Danny’s mother, Margery, struggled endlessly to rescue enough money from her husband’s paycheck to feed and clothe her children. After moving the family to California, at some point the struggle overwhelmed her and Danny (the name, he points out, that was on his birth certificate) was sent back to New York with his father in hopes that the father would stay away. Fortunately, a kindly aunt and uncle in upstate New York took him in for his crucial adolescent years. We never really come to know quite how Sheehan came to be the wunderkind that he was, but there can be no doubting the epic scale of the intellect, emotional balance, physical talent, and sheer will that fueled his young adulthood.
I spent my entire high school experience devoted to one objective: proving to everyone—most importantly to myself—that I was “of value.” My mother, my sister, my brother, and even my father had, in effect, abandoned me and had never seen me play in a single athletic contest or act in a single play during my entire high school career. I was very upset about that at first. But ultimately, my unique situation forced me to learn how to become totally self-reliant and independent. I channeled all of my energy and all of my attention into demonstrating to everyone that I could be the best at anything I did. And I was.
He could not have picked a better place than Warrensburg Central High School, home of New York State’s famed Coach George Khoury, to strut all his stuff. Sheehan was a star athlete on Khoury’s championship teams in three different sports, even while also being a leader of student government and acting in student plays! All this was done for its own sake, no doubt, but also in service to his dominating ambition of becoming an astronaut. When we meet the author at the outset of his book, the hugely qualified Air Force Academy aspirant is about to get his first great political disillusionment. From here his life follows an improbable trajectory that eventually sees him all but installed at Harvard College in his junior year, where his academic chops prove to be such that Harvard Law School grants him another scholarship to enroll.
Daniel quickly became a legal star while at Harvard Law, where he co-founded the Harvard Civil Rights Law Review (with New York City’s talented political gadfly Mark Green), muscled together the famed Biafra Airlift, and litigated five cases, two of which turned out to be landmark moments in the law (Eisenstadt v. Baird, a critical precursor to Roe v. Wade, and In re: Pappas, which produced a foundational First Amendment decision protecting the confidentiality of journalist’s news sources). But this is a guy who played football, held a near 4.0 grade point average, acted in school plays, and took ROTC training (which produced his second great disillusionment) while he was an undergraduate at Boston’s premier working class university, Northeastern.
Very early on in the book we see that Sheehan has that rare combination of brains, chutzpah, and good timing required to challenge the unstated but nevertheless common alliances between the police, prosecutors, and judges. In fact, the non-independence of some members of the judiciary is a persistent background theme of the book. When, after forcing the recusal of two clearly biased judges in the epochal Karen Silkwood trial, he finally sees the trial handed over to a fair-minded judge, his response is “Holy shit! I thought. What do you know? What do you know? An honest judge!”
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There are truly funny moments in Sheehan’s book, whose good humor throughout is of a piece with his pluck. In a Constitutionally fraught First Amendment obscenity trial in state court on behalf of an Idaho Falls movie theatre owner, who had dared to show Bernardo Bertolucci’s Last Tango in Paris in a Mormon-dominated community, Sheehan, working pro bono for the ACLU, finds himself up against an irascible judge clearly determined to seat a jury that would find for the local District Attorney. The young attorney’s expert questioning of the president of the town’s city council, who had put in a claim to professional expertise on the matter at hand—namely, the local “community standards” regarding obscenity—angers the judge who summarily throws him out of the court. What follows belongs on a movie screen, not in a book review.
What most comes across throughout the book, however, is Sheehan’s passionate love for the law, the American Constitution, and, most unexpectedly, his fervent faith in the spiritual underpinnings of our legal system. The cases provide all the drama you could want, but periodically throughout his book Sheehan takes breaks in the narrative to discourse on the “natural law” basis of our common law, the need for a higher vision of human politics, and other, well, edifying topics that clearly rule over his soul. Reading his book you get the sense that he would love to live two lives simultaneously—one as the crusading litigator he’s always been, the other as an inspiring philosopher-preacher raising us all up to a holy vision of the rights and responsibilities of democratic citizenship.
Readers will learn a great deal about what goes on behind the scenes in a high profile contest over our constitutional rights from his gripping account of the Pentagon Papers trial, a high-stakes battle between the Nixon administration and the legal team representing the New York Times regarding the Times’ publication of the Pentagon Papers, given to them by the famed whistle-blower Daniel Ellsberg. The issue at hand was the Times’ right to publish the documents without first undergoing government censorship. The core of Sheehan’s account here is concerned with the debate that went on within his legal team, by contrast with which the actual trials are a bit anti-climactic. He gives us a brilliant portrait of the hard work, political calculation, deep legal thinking, and intense internal debate that an event like that requires from the lawyers we entrust with the defense of our civil liberties.
Even so, the Pentagon Papers concerned a world-renowned newspaper that had both the funds and the platform to command the public eye. There was far less money around to serve the plight of the refugees from some truly sadistic Latin American dictatorships (regimes, it must be said, that were cruelly abetted by a deeply cynical Republican foreign policy establishment) who were all but guaranteed execution if they were returned to the countries they had fled, especially El Salvador. The American Sanctuary Movement was initiated by Catholic bishops, aided by clergy from other denominations, who were well-informed by their counterparts in Latin America about how deeply imperiled those who sought refuge in America truly were. When the newly elected President Ronald Reagan issued a secret executive order abrogating the 1980 Refugee Act, America’s amnesty law, Sheehan was brought in by the Catholic archbishop of South Texas, John Fitzpatrick, to defend two Catholic church workers who had been arrested while driving two political refugees to sanctuary in that state. In the ensuing trial, Sheehan is pitted against “a xenophobic, fear-mongering” newly appointed Republican U.S. attorney who, concealing Reagan’s unconstitutional order, accused the women of being well-intended dupes but nonetheless lawbreakers. Sheehan tells us:
If I analyzed a case carefully enough, there was always one big factual truth on our side. American juries don’t do well at remembering, or strictly applying, the law. What they are very good at, however, is searching out lies. The key is to figure out how to get the entire case to turn on which of the two sides is telling the jury the truth on one very big and important fact. American juries can tell that better than anyone would ever expect.
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After skillfully getting an immigration officer to confess the existence of the executive order, and thereby getting the edict before the jury, Sheehan then puts on the stand a direct witness to the atrocities committed by El Salvador’s government. The witness tearfully describes how he was the lone survivor amongst a group of innocent men, women, and children hiding in garage who were machined gunned to death by El Salvadoran army troops. The man’s riveting testimony causes the jury to weep and soon thereafter the judge offers the defense a directed verdict of not-guilty. It is here that we see how the young lawyer draws together the legal, the political and the moral. He turns down the offer so that he can continue the trial and thereby get more of this witness testimony into the public record, all the better to spread word of the atrocities through the American press. This provides the occasion for his most impassioned moment before a jury:In my closing argument, I implored the jury, “Look at the facts that have been presented to you. A sixteen-year-old girl named Maria, escaping from Herod’s men with her infant child in her arms, both of whom would be sent back to the slaughter if they were caught. And this older man, the man who was not the father of the child, but who took it upon himself to help them flee from Herod’s men. Does this story not sound familiar to you? We have all heard it before!”
Everybody on the jury, most of whom were Catholics, froze when I said this. The U.S. attorney jumped to his feet and started shouting. “I object! I object! Your Honor, this is an outrage!”
“You are absolutely right,” I shouted to the jury. “This is an outrage. The U.S. attorney and these two immigration officers—and this entire administration—should be ashamed of themselves! Our whole country should be ashamed of ourselves for allowing this to happen, in our name, to these two innocent people. These men,” I said, gesturing toward the prosecution table. “These ‘Herod’s men,’ should be ashamed of themselves for trying to draw you twelve good Americans on this jury into this dirty business against these two innocent victims, pursuant to which this administration would have you send them back to their certain deaths. Then the wrong that they have attempted to commit will become the wrong that you have committed. I do not believe that you will do this. Do not do this.”
The U.S. attorney jumped up. “I object! I object!”
But I pressed on. “Let these people go! These men,” I said, turning toward the assistant U.S. attorney, “are ‘Herod’s men.’ But you have a choice, a choice that none of us were alive to make two thousand years ago when our human family was confronted with this exact same choice before. You and I are privileged to have been given the opportunity to make this choice, this choice that we have all, as Americans, been asked to make in this case. Will you let these people go? The choice is up to you, my fellow Americans. The choice is up to you.”
The jury was in tears. Judge Vela was in tears. I was in tears. Archbishop Fitzpatrick was in shock.
But the moments of greatest tension in the book come when Sheehan is undertaking his investigations. After he, his equally extraordinary wife and collaborator, Sara Nelson, and a team of Jesuits and spiritual activists formed the Christic Institute (which, he tells us with a mixture of pride and bemusement, was “considered by the Washington religious community to be the most political religious organization in Washington and we were at the same time considered by the Washington political community to be the most religious political organization in Washington”), Sheehan became an icon within America’s progressive community. Front rank rock stars like Jackson Browne, Kris Kristofferson, Bonnie Raitt, David Crosby, and Graham Nash raised funds for them through benefit concerts.
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Sheehan also angered some movement leftists because he willingly worked with anyone who could help him research and thereby win his cases. Since these included active members of the CIA and activists in right-wing organizations, not to mention his own extraordinary chief investigator, William Taylor, a Marine Corps veteran of three combat tours who had been a criminal investigator while in the Corps, the Christic Institute took a few barbs from its left flank while at the same time undergoing a concerted attack from right-wing government operatives. This all came to a head in Sheehan’s protracted and ultimately unsuccessful prosecution of the Iran-Contra case. That epic journey is, fittingly, the final case in the book and it clearly exacted its toll on Sheehan and all his collaborators.
If most of Sheehan’s legal career has had him war against the political evils perpetrated by Republican administrations, it seems that the complicity of Democrats draws the greater ire. The final portions of the book suddenly shift from the bracing narratives of his investigations and trials to his summary analyses of the incoherence (or, perhaps more accurately, non-existence) of the political philosophies animating both parties and thus the profound disconnection of our governance altogether from any of the root considerations of law and morality required to give our legal system its legitimacy. Worthy as these reflections are, they are a bit dry and I suspect intended to be an historical and philosophical primer for activists who want to right our now badly listing ship of state.
Although The People’s Advocate advertises itself as Daniel Sheehan’s “life and legal history”, we really do not get much of the former. We never hear about a movie he liked or a record album he loved, nor what it was like to be a father to two children whose parents’ own working lives were all but consumed by some of the most perilous and important legal battles of our time. For all his interest in the spiritual nature of reality, he tells us very little about his own inner life or the very human trials that must have beset him and his family through all these years.Even so, his good character comes through on every page. There is never a venal moment in the entire book, even after he is betrayed and abandoned by leading Democrats whose political cowardice cost both Sheehan and his country dearly. But that’s part of the total picture painted by the book that makes it such a profound and compelling education.
The civil liberties battles fought by Daniel Sheehan were but a prologue to the massive tests facing the American people today. As a lawyer at the center of many of the most fiercely contested trials of the nineteen sixties, seventies, and eighties, Sheehan was a central player in the conflicts that set the stage for our post-9/11 era.
It’s a whale of a story that should not only force us to rewrite our history books but also start paying close attention to the massive encroachments on our civil rights and political freedoms coming from our elected officials. The People’s Advocate is an essential document for our times and should be read by every American who wants to understand the trials of conscience, character, and will we avoid only at great peril.
Dan Hamburg is a former Congressman representing California’s 1st congressional district and was the California Green Party’s first gubernatorial candidate. He is currently serving Mendocino County as the First District Supervisor.
