The Wars of Watergate
Page 76
St. Clair came perilously close to suggesting that his client stood above the law—a claim that a zealous government lawyer had advanced on behalf of President Truman in the steel controversy in 1952 much to Truman’s embarrassment and the annoyance of the Justices. St. Clair conceded that the President was not above the law, yet argued that he had a constitutional standing within the law different from anyone else’s. He might be impeached while in office, but not indicted—and by implication, he might not be forced to diminish his authority. Meanwhile, St. Clair squared the circle: the President alone might decide what material would go to the House; if a court examined any of that material, it would infringe on the separation of powers, for only the House might impeach. Justice William Brennan was mystified. How did judicial consideration of taped conversations held for purposes of criminal actions interfere with impeachment? St. Clair replied only that an unfavorable verdict in the criminal proceedings would unduly influence the House. Justice William O. Douglas neatly turned the tables, countering that the material might well help the defendants in various Watergate-related trials now pending. The President’s counsel found himself arguing for naked official power as opposed to the rights of individuals.
Defending Nixon’s control of the tapes also left St. Clair in the uncomfortable position of protecting matters which the President preferred to hide. Another Justice pressed the counsel to the point that St. Clair admitted that Nixon might claim privilege over any Watergate conversation. What, demanded Justice Thurgood Marshall, was the constitutional authorization for that position? “Well,” St. Clair responded, “I would suggest you should find it in the Constitution. And it need not be explicit. It can well be implied.” Throughout, St. Clair sought to persuade the Court that the Constitution granted a body of privileges to the executive, just as it did to Congress. The difference, of course, was that the privileges of Congress were enumerated, while those of the President were implicit.
The constitutional privileges and rights of “the presidency” were central to St. Clair’s argument—and they proved his Achilles’ heel. He contended that the preservation of candor in presidential conversations represented an overriding public interest; such materials could be released only at the President’s discretion. But what public interest was there in preserving secrecy regarding a criminal conspiracy, Justice Lewis Powell asked? St. Clair could only beg the question: “The answer, sir, is that a criminal conspiracy is criminal only after it’s proven to be criminal.” Another questioner posed the hypothetical situation of a soon-to-be-appointed judge who negotiated a deal in which he would give the President money. No, St. Clair said, the conversation remained privileged; the only clear remedy would be to impeach the President. Almost in exasperation, Marshall homed in: “How are you going to impeach him if you don’t know about it?” Then there would be no case, St. Clair responded. “So there you are,” Marshall said. “You’re on the prongs of a dilemma, huh?… You lose me some place along there.”
Jaworski’s deputy, Philip A. Lacovara, followed St. Clair to close the Special Prosecutor’s arguments. His task was simpler and less abstract. Lacovara dismissed St. Clair’s “co-pendency” argument, requiring the Court to subordinate the criminal case to the impeachment process, as unsupported by “sound constitutional law” or by history. He appealed to the Court’s independence and courage, and to its history. The Court had only rarely taken refuge in the doctrine barring decisions of “political questions.” Instead, it had regularly decided “political” matters, as in cases concerning reapportionment, civil rights, and the procedural rights of the criminally accused. The Court had understood “its duty to interpret the Constitution”; “that’s all we ask for today,” Lacovara concluded.
Arrows rained on the President’s defenses from unexpected quarters. On the day that Jaworski and St. Clair dueled in the Supreme Court, the United States Customs Court in New York struck sharply at generally conceded presidential powers. That court’s docket consists of specialized cases usually confined to technical issues and well-defined legal rules. Constitutional power rarely generates controversy, let alone scrutiny, in such arenas. But in 1971 a Japanese zipper-importing firm in New York challenged a presidential proclamation of August 15, 1971 that had imposed a supplemental 10 percent duty on imports. Nixon’s order was part of a broad program designed to cope with inflationary pressures. A three-judge court, however, sharply rebuked the President, ruling that he had assumed power not specifically delegated by congressional statutes.
Although John Locke’s seventeenth-century contention that the legislative branch may not delegate its powers lies at the heart of separation-of-powers doctrine, American courts rarely have struck down either legislation or executive action violative of that maxim. In the zipper company case, the court flatly repudiated the President’s action, finding no statutory intent to grant him such “unrestrained unilateral authority”; his proclamation “arrogated unto the President a power” simply not delegated to him by Congress. The court conceded that broad and expansive authority over trade matters had in fact been granted for some years to the executive branch, but Nixon had “exceeded” any such precedents.5 The President had committed a “crime of the head,” not “of the heart”; on this score, he had no reason to fear retribution. Still, the case spoke to the times. Nixon may have thought (if he had heard about the case) that he had been rebuked for what “everyone else did.”
St. Clair “lost” the Justices while Jaworski and Lacovara successfully persuaded them of the “very essence of judicial duty.” As Rehnquist had noted, the Justices did not live in a vacuum. Watergate had captured their attention, as it had that of the nation. The Justices and their clerks avidly followed the Senate hearings, and the daily revelations of Administration wrongdoing had been a frequent topic of conversation. As they absorbed the Jaworski and St. Clair briefs, a consensus emerged: the President might not enjoy an absolute privilege over the tapes. The Special Prosecutor’s arguments had provided the Court with compelling reasons to order Nixon to release the tapes in question. Since the Justices differed as to the scope of their ruling, St. Clair might perhaps have been able to exploit those differences and produce a divided opinion, rather than the “definitive” pronouncement that Nixon said he would obey. But St. Clair did not.6
William Brennan, a Democrat appointed by Eisenhower, had operated as a major force within the Warren Court, infusing liberal values into jerry-built coalitions. Some of that influence had declined under Chief Justice Burger, but Brennan now sensed an opportunity to revitalize his old role. When he learned that Potter Stewart, Lewis Powell, and Harry Blackmun had decided to vote against the President, Brennan realized the importance of uniting the Court behind one opinion. He suggested a strategy similar to the Court’s 1958 response to southern attempts to resist court orders in desegregation cases. In Cooper v. Aaron, the Court had sharply rebuked the Arkansas governor, the Little Rock school board, and state courts, and rendered a single opinion signed by all the Justices.
Burger, however, assigned the opinion to himself. He was in a bind as he confronted a case affecting the future political well-being of the man who appointed him. White House gossip in 1973 and 1974 reported that he “had assured the President that the tapes would not be taken away.” Burger’s closeness to Nixon and the Administration was well known—a situation riddled with irony since the Senate had rejected Lyndon Johnson’s nomination of Abe Fortas to be Chief Justice, in part because of charges of cronyism. “The C.J. needs to talk with you urgently,” the President’s Appointments Secretary told Nixon in May 1968. John Ehrlichman recorded in 1971 that Burger had “met periodically” with the President, Mitchell, and himself “to discuss issues of the day and to join a general discussion of current events.” Just after the Court took the tapes case in 1974, the Washington Post disclosed correspondence between Burger and John Mitchell, indicating a close, “confidential” relationship between the Chief Justice and the Administration.7
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p; Burger’s decision to write the opinion raised numerous questions. Would he soften the decision? Did he not face a conflict, given his constitutional responsibility as Chief Justice to preside in an impeachment trial? Indeed, for some time Burger had had clerks secretly researching impeachment trials, so that he would be prepared for that contingency. Perhaps he saw the opportunity to establish his independence from the Administration. Whatever his motives, a great deal of ego was involved—as it undoubtedly was for those colleagues who wanted the opinion for themselves. After the Justices assembled in conference the morning after the oral arguments, they quickly revealed their unanimity of judgment; deciding the scope of the opinion proved far more difficult.
Later that day Brennan visited Earl Warren, hospitalized after a series of heart attacks, and told him about the developments. Warren had long disliked and distrusted Nixon, and had been dismayed as the President sniped at Warren Court decisions. Several hours after Brennan’s visit, Warren suffered a fatal heart attack. Brennan nonetheless was certain that his news had comforted his old comrade.
The Court’s opinion emerged after several weeks of editorial emendation and intensive lobbying among the Justices. Douglas, still resentful over the Nixon Administration’s support for his impeachment in 1970, pressed Burger whenever it appeared that he might be willing to assert a too-permissive view of presidential powers. The Chief Justice at one point had suggested that the federal rule allowing courts to subpoena evidence considered potentially relevant and admissible, must be applied more strictly for issuing a subpoena against the President. Douglas would have none of it: “My difficulty is that when the President is discussing crimes to be committed and/or crimes already committed with and/or by him or by his orders, he stands no higher than the Mafia with respect to those confidences.” Justice Stewart eventually provided a draft of the key section that satisfactorily maneuvered between the constitutional rights of the various Watergate defendants and the President’s demands for privileged communications.
In the end, Brennan and the others certainly had the input they had wanted all along; meanwhile, Burger alone had his name on an opinion that united the Court: the President must surrender the tapes. The Court met for its final conference on July 23, and the Chief Justice issued a press release noting that it would convene the next morning. Leon Jaworski had some trepidations; he knew the decision was about to come down. He also knew that if the Court ruled in the President’s favor, he would have “to close shop.” St. Clair was in San Clemente with his client.8
The next morning Alexander Haig called the President to report that he had the complete text of the Supreme Court’s decision. “Unanimous?” the President asked. “Unanimous. There’s no air in it at all.” “None at all?” the President persisted. “It’s as tight as a drum,” said Haig.
The Supreme Court had preoccupied the President for several weeks. St. Clair had tried to create an appearance of optimism; he had written to Jaworski on July 10 that he thought he had won the Court over. Fred Buzhardt had told a White House defense group, chaired by former FCC Chairman Dean Burch, that he thought the President would win unanimously. One of the group remembered thinking that he was “in a madhouse.”
Richard Nixon’s fatalistic sense came closer to understanding the truth. He knew he could not defy the Court; perhaps he could still devise a plan for deleting some material. But the June 23, 1972, tape “worried” him ceaselessly; it could not be “excerpted properly,” he confided to his diary. While St. Clair made the President’s case to the Judiciary Committee on July 18, Nixon admitted that his greatest concern was “the Supreme Court thing.” On July 23 he talked to Haig and Ziegler about resigning. That night, Nixon stayed up late, reviewing a speech draft on economic matters. At midnight, he wrote: “Lowest point in the presidency, and Supreme Court still to come.”9
The immediate reaction to the Court’s ruling in U.S. v. Nixon focused on the Court’s order that the President surrender the tapes. Although Nixon had lost the battle, the “presidency” had survived the war. In fact, the misty concepts of executive privilege Nixon and St. Clair had battled to protect finally received the Supreme Court’s imprimatur. The Justices did not concede privilege enough to protect President Nixon in this case, but they did provide some precedent and underpinning for future claims. The Court’s opinion—a much fairer way to characterize it than to label it “Burger’s opinion,” although the Chief Justice issued the decision—clearly revealed that the criminal implications in the case, and the pressing political confrontation it had produced, forced the outcome. The Court recognized presidential rights to some confidentiality, but it found in the present case “a sufficient preliminary showing that each of the subpoenaed tapes contains evidence admissible with respect to the offenses charged in the indictment.”10
U.S. v. Nixon is another milestone marking the unique power of the Supreme Court. The heart of the opinion confronted St. Clair’s contention that separation-of-powers doctrine precluded judicial review of presidential claims of privilege—that the case, in short, was nonjusticiable. Politely but firmly, the Court invoked John Marshall’s 170-year-old dictum that the judiciary’s duty was “to say what the law is.”
In its partial vindication of the President, the Court agreed that confidentiality had validity—it could be “constitutionally based”; indeed, the opinion noted, the framers of the Constitution had met in secret. But the Justices refused to concede that the President’s claims completely insulated him from the judicial process. They would grant him great deference in the exercise of executive privilege, but when his claim depended “solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.” The case did not present a military or national-security matter; hence the Justices contended that confidentiality would not be “significantly diminished” if the President produced the tapes for an in camera scrutiny by the judiciary.
In practice, separation of powers, the Court noted, depended greatly on “interdependence,” on what Justice Jackson had called in the Steel Seizure Case the need to ensure a “workable government.” Nixon’s “undifferentiated” claims for confidentiality would “upset the constitutional balance” needed for a “workable government” and, not incidentally, “gravely impair” the judiciary’s role under Article III of the Constitution.
The Court conceded a “presumptive privilege” of confidentiality to the President, but the Justices insisted on a balance with the commitment to the rule of law. Here the Court followed the path suggested by Justice Douglas and turned the case against the President into one on behalf of the claims of those criminally indicted—Mitchell, Haldeman, Ehrlichman, and the others: “The generalized assertion for privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”
The “President’s men” had a victory of sorts—but one that cost the President dearly. There is irony, too, in the doctrinal result. Richard Nixon had pressed the cause of “executive privilege” as had none of his predecessors. While the Court denied his desired goal, it established the legitimacy of executive privilege. Insofar as confidentiality was necessary for the effective exercise of the President’s powers, the Court held, “it is Constitutionally based.” Executive privilege was a myth no more. When Representative Richard Nixon had angrily denounced President Harry Truman for withholding information from Congress in the Hiss case a quarter-century earlier, he ironically anticipated the other side of the coin of U.S. v. Nixon. Truman’s action, Nixon said in 1948, “cannot stand from a Constitutional standpoint or on the basis of the merits,” for it would enable the President arbitrarily to deny Congress its lawful right to investigate wrongdoing in the executive branch.11
Typically, Nixon interpreted the decision as a setback for the “presidency,” something the Supreme Court had carefully attempted to ensure it was not. After he learned of the Court’s action, Nixon closeted himself with Haig an
d St. Clair. For how long and just how far the President considered resistance to the Court’s decision, remains somewhat cloudy. That morning, on July 24, St. Clair had been advised by his White House aides that the Court’s decision was imminent. Fifteen minutes later, the wire services carried the news, but Haig did not inform the President for another forty-five minutes. At noon, Ron Ziegler told reporters that St. Clair would make a statement later in the day. The President’s lawyer appeared before the press at 4:00 P.M., approximately eight hours after the Supreme Court’s decision. Nixon may have been in a Truman-analogy mode at the time, but if so he did not recognize that in 1952 Truman promptly dispatched a letter to his Secretary of Commerce ordering him to return the confiscated steel mills to the owners. The President complied less than thirty minutes after the Justices finished reading their opinions in the Steel Seizure Case.12