Burger said the pre-trial test of executive privilege was especially appropriate in this case because, although no President is “above the law,” it would be “unseemly” to frame the dispute as a case of contempt for violating a court order.
The impact of the court’s decision was increased by the fact that it was delivered by Burger, appointed to the nation’s top judicial post by President Nixon.
Equally impressive was the court’s unanimity on every issue in the case — a tricky question of the court’s jurisdiction, the enforcement of the subpoena under conventional criminal law standards and the merits of the executive privilege controversy.
The issue of jurisdiction, considered by some legal scholars to be St. Clair’s strongest point, also raised a storm in Congress over whether the administration had reneged on its pledge giving Jaworski independence and the right to take the President to court over disputes on executive privilege.
St. Clair argued that the pledges, contained in published Justice Department regulations, did not and could not guarantee that the courts would have the legal power to decide contests between President Nixon and his executive branch subordinate, Jaworski.
Jaworski replied that this argument would make a “mockery” of his role, which was worked out to prevent a repetition of the “Saturday night massacre” firing last October of his predecessor, Archibald Cox.
Burger easily disposed of St. Clair’s argument. He said the unique job security and authority granted to Jaworski under regulations having “the force of law” made the case far more significant that the mere “intra-branch” squabble St. Clair said it was.
Even assuming the President once had the power to order Jaworski fired, Burger said, he denied himself that authority with the regulations. And while “it is theoretically possible” to revoke the regulations, the attorney general “has not done so. So long as this regulation remains in force the executive branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it.”
This reasoning also appears to mean it was illegal to fire Cox last fall, since a similar regulation was in force then. A decision in U.S. District Court here declaring the Cox firing illegal is currently on appeal.
Although Burger did not mention it, it is widely assumed that any move now to dismiss Jaworski would result in another “firestorm” of protest and hasten President Nixon’s impeachment.
Burger said that looking beneath the formal titles of the parties and their formal relationship within the same branch of government, the case was clearly “the kind of controversy courts traditionally resolve,” especially since it comes up in the course of a criminal trial in a federal court.
Moving to the propriety of the subpoena under ordinary criminal law rules, Burger said Judge Sirica clearly acted within his powers in finding the requested evidence relevant to the prosecution, probably admissible as evidence and sufficiently specific to avoid being characterized as part of a “fishing expedition.”
Burger said Jaworski was able to show where each of the 64 conversations fits into the prosecution’s case aided by White House logs, testimony from last summer’s Watergate hearings and grand jury evidence.
Burger said St. Clair’s “most cogent objection to the admissibility of the taped conversations” was that they were “hearsay” statements by individuals “who will not be subject to cross-examination” at trial.
It was here that the chief justice appeared to acknowledge that President Nixon could be treated as a co-conspirator for purposes of admitting his statements in evidence, even if the President was correct in contending that the grand jury lacked power to label him a conspirator in a formal vote. Burger said:
“Declarations by one defendant may also be admissible against other defendants upon a sufficient showing, by independent evidence of a conspiracy among one or more other defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy.”
Burger said a blend of deference to the trial judge and to the President was appropriate in handling this delicate question. Trial judges are afforded wide discretion in ordinary cases, he noted, but added that reviewing courts “should be particularly meticulous to insure that the standards” of criminal law have been correctly applied “where a subpoena is directed to a President of the United States.
The justices have examined the record, including some grand jury material that is still under seal, and they are satisfied that Judge Sirica met the standards in evaluating the question of probable admissibility, Burger said.
Finally, Burger reached the heart of the dispute and he quickly found that President Nixon was wrong in arguing that courts must honor without question any presidential claim of executive privilege.
Burger repeatedly said the court had the utmost respect for the other branches of government but was obliged to reach its own judgment on whether the President’s need for confidentiality was as great as the judiciary’s need for the evidence.
Acknowledging that each branch of government “must initially interpret the Constitution and the interpretation of its powers by any branch is due great respect from the others,” Burger then quoted and reaffirmed a classic phrase from the 1803 opinion of Chief Justice John Marshall in the case of Marbury vs. Madison:
“It is emphatically the province and duty of the judicial department to say what the law is.”
Burger also acknowledged Jaworski’s argument that “executive privilege” isn’t mentioned in the Constitution although some enumerated privileges have been given restricted scope by the high court. But he accepted St. Clair’s argument instead and declared that “certain powers and privileges flow from the nature of enumerated powers. The protection of the confidentiality of presidential communications has similar constitutional underpinnings.”
But, said Burger, “when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.” Without a plea to protect military, diplomatic or national security secrets, he said, “we find it difficult to accept” the argument that confidentiality would be significantly diminished by a turnover.
“We cannot conclude,” he said, “that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.”
Nixon Resigns
By Carroll Kilpatrick
Washington Post Staff Writer
Friday, August 9, 1974
Richard Milhous Nixon announced last night that he will resign as the 37th President of the United States at noon today.
Vice President Gerald R. Ford of Michigan will take the oath as the new President at noon to complete the remaining 2 ½ years of Mr. Nixon’s term.
After two years of bitter public debate over the Watergate scandals, President Nixon bowed to pressures from the public and leaders of his party to become the first President in American history to resign.
“By taking this action,” he said in a subdued yet dramatic television address from the Oval Office, “I hope that I will have hastened the start of the process of healing which is so desperately needed in America.”
Vice President Ford, who spoke a short time later in front of his Alexandria home, announced that Secretary of State Henry A. Kissinger will remain in his Cabinet.
The President-to-be praised Mr. Nixon’s sacrifice for the country and called it “one of the vary saddest incidents that I’ve every witnessed.”
Mr. Nixon said he decided he must resign when he concluded that he no longer had “a strong enough political base in the Congress” to make it possible for him to complete his term of office.
Declaring that he has never been a quitter, Mr. Nixon said that to leave office before the end of his term “ is abhorrent to every inst
inct in my body.”
But “as President, I must put the interests of America first,” he said.
While the President acknowledged that some of his judgments “were wrong,” he made no confession of the “high crimes and misdemeanors” with which the House Judiciary Committee charged him in its bill of impeachment.
Specifically, he did not refer to Judiciary Committee charges that in the cover-up of Watergate crimes he misused government agencies such as the FBI, the Central Intelligence Agency and the Internal Revenue Service.
After the President’s address, Special Prosecutor Leon Jaworski issued a statement declaring that “there has been no agreement or understanding of any sort between the President or his representatives and the special prosecutor relating in any way to the President’s resignation.”
Jaworski said that his office “was not asked for any such agreement or understanding and offered none.”
His office was informed yesterday afternoon of the President’s decision, Jaworski said, but “my office did not participate in any way in the President’s decision to resign.”
Mr. Nixon’s brief speech was delivered in firm tones and he appeared to be complete control of his emotions. The absence of rancor contrasted sharply with the “farewell” he delivered in 1962 after being defeated for the governorship of California.
An hour before the speech, however, the President broke down during a meeting with old congressional friends and had to leave the room.
He had invited 20 senators and 26 representatives for a farewell meeting in the Cabinet room. Later, Sen. Barry M. Goldwater (R-Ariz.), one of those present, said Mr. Nixon said to them very much what he said in his speech.
“He just told us that the country couldn’t operate with a half-time President,” Goldwater reported. “Then he broke down and cried and he had to leave the room. Then the rest of us broke down and cried.”
In his televised resignation, after thanking his friends for their support, the President concluded by saying he was leaving office “with this prayer: may God’s grace be with you in all the days ahead.”
As for his sharpest critics, the President said, “I leave with no bitterness toward those who have opposed me.” He called on all Americans to “join together . . . in helping our new President succeed.”
The President said he had thought it was his duty to persevere in office in face of the Watergate charges and to complete his term.
“In the past days, however, it has become evident to me that I no longer have a strong enough political base in the Congress to justify continuing that effort,” Mr. Nixon said.
His family “unanimously urged” him to stay in office and fight the charges against him, he said. But he came to realize that he would not have the support needed to carry out the duties of his office in difficult times.
“America needs a full-time President and a full-time Congress,” Mr. Nixon said. The resignation came with “a great sadness that I will not be here in this office” to complete work on the programs started, he said.
But praising Vice President Ford, Mr. Nixon said that “the leadership of America will be in good hands.”
In his admission of error, the outgoing President said: “I deeply regret any injuries that may have been done in the course of the events that led to this decision.”
He emphasized that world peace had been the overriding concern of his years in the White House.
When he first took the oath, he said, he made a “sacred commitment” to “consecrate my office and wisdom to the cause of peace among nations.”
“I have done my very best in all the days since to be true to that pledge,” he said, adding that he is now confident that the world is a safer place for all peoples.
“This more than anything is what I hoped to achieve when I sought the presidency,” Mr. Nixon said. “This more than anything is what I hope will be my legacy to you, to our country, as I leave the presidency.”
Noting that he had lived through a turbulent period, he recalled a statement of Theodore Roosevelt about the man “in the arena whose face is marred by dust and sweat and blood” and who, if he fails “at least fails while daring greatly.”
Mr. Nixon placed great emphasis on his successes in foreign affairs. He said his administration had “unlocked the doors that for a quarter of a century stood between the United States and the People’s Republic of China.”
In the mideast, he said, the United States must begin to build on the peace in that area. And with the Soviet Union, he said, the administration had begun the process of ending the nuclear arms race. The goal now, he said, is to reduce and finally destroy those arms “so that the threat of nuclear war will no longer hang over the world.” The two countries, he added, “must live together in cooperation rather than in confrontation.”
Mr. Nixon has served 2,026 days as the 37th President of the United States. He leaves office with 2 ½ years of his second term remaining to be carried out by the man he nominated to be Vice President last year.
Yesterday morning, the President conferred with his successor. He spent much of the day in his Executive Office Building hideaway working on his speech and attending to last-minute business.
At 7:30 p.m., Mr. Nixon again left the White House for the short walk to the Executive Office Building. The crowd outside the gates waved U.S. flags and sang “America” as he walked slowly up the steps, his head bowed, alone.
At the EOB, Mr. Nixon met for a little over 20 minutes with the leaders of Congress — James O. Eastland (D-Miss.), president pro tem to the Senate; Mike Mansfield (D-Mont.), Senate majority leader; Hugh Scott (R-Pa.), Senate minority leader; Carl Albert (D-Okla.), speaker of the House; and John Rhodes (R-Ariz.), House minority leader.
It was exactly six years ago yesterday that the 55-year-old Californian accepted the Republican nomination for President for the second time and went on to a narrow victory in November over Democrat Hubert H. Humphrey.
“I was ready. I was willing. And events were such that this seemed to be the time the party was willing for me to carry the standard,” Nixon said after winning first-ballot nomination in the convention at Miami Beach.
In his acceptance speech on Aug. 8, 1968, the nominee appealed for victory to “make the American dream come true for millions of Americans.”
“To the leaders of the Communist world we say, after an era of confrontation, the time has come for an era of negotiation,” Nixon said.
The theme was repeated in his first inaugural address on Jan. 20, 1969, and became the basis for the foreign policy of his first administration.
Largely because of his breakthroughs in negotiations with China and the Soviet Union, and partly because of divisions in the Democratic Party, Mr. Nixon won a mammoth election victory in 1972, only to be brought down by scandals that grew out of an excessive zeal to make certain he would win re-election.
Mr. Nixon and his family are expected to fly to their home in San Clemente, Calif. early today. Press secretary Ronald L. Ziegler and Rose Mary Woods, Mr. Nixon’s devoted personal secretary for more than two decades, will accompany the Nixons.
Alexander M. Haig Jr., the former Army vice chief of staff who was brought into the White House as staff chief following the resignation of H.R. (Bob) Haldeman on April 30, 1973, has been asked by Mr. Ford to remain in his present position.
It is expected that Haig will continue in the position as staff chief to assure an orderly transfer of responsibilities but not stay indefinitely.
The first firm indication yesterday that the President had reached a decision came when deputy press secretary Gerald L. Warren announced at 10:55 a.m. that the President was about to begin a meeting in the Oval Office with the Vice President.
“The President asked the Vice President to come over this morning for a private meeting — and that is all the information I have at this moment,” Warren said.
He promised to post “some routine informa
tion, bill actions and appointments” and to return with additional information” in an hour or so.”
Warren’s manner and the news he had to impart made it clear at last that resignation was a certainty. Reports already were circulating on Capitol Hill that the President would hold a reception for friends and staff members late in the day and a meeting with congressional leaders.
Shortly after noon, Warren announced over the loudspeaker in the press room that the meeting between the President and the Vice President had lasted for an hour and 10 minutes.
At 2:20 p.m., press secretary Ziegler walked into the press room and, struggling to control his emotions, read the following statement:
“I am aware of the intense interest of the American people and of you in this room concerning developments today and over the last few days. This has, of course, been a difficult time.
“The President of the United States will meet various members of the bipartisan leadership of Congress here at the White House early this evening.
“Tonight, at 9 o’clock, Eastern Daylight Time, the President of the United States will address the nation on radio and television from his Oval Office.”
The room was packed with reporters, and Ziegler read the statement with difficulty. Although his voice shook, it did not break. As soon as he had finished, he turned on his heel and left the room, without so much as a glance at the men and women in the room who wanted to question him.
There were tears in the eyes of some of the secretaries in the press office. Others, who have been through many crises in recent years and have become used to overwork, plowed ahead with their duties, with telephones ringing incessantly.
In other offices, loyal Nixon workers reacted with sadness but also with resignation and defeat. They were not surprised, and some showed a sense of relief that at last the battle was over.
The Original Watergate Stores Page 14
