First Among Equals (34 page)
In its investigation, the Senate Committee had uncovered a telltale fact: President Nixon had installed an elaborate voice-taping system in the Oval Office. The president's voice was on untold hours of tape. The tapes were, of course, potentially critically important evidence in the criminal investigation. The tapes could tell the story of whether the president himself had committed crimes.
It had seemed unthinkable. The “third-rate burglary,” as the White House dismissively referred to the episode, had spun out of control. Instead of getting the facts out and coming to grips with them, the White House, including the president and his closest, most powerful aides, had embarked on a systematic effort to obstruct justice. A conspiracy had been born, with the president in the middle.
In response to mounting pressure from Congress, Archibald Cox had taken over the federal criminal investigation into Watergate as special prosecutor appointed by the attorney general. For its part, the Justice Department had been compromised in the course of its investigation into the matter. Sensitive investigative information had inappropriately found its way from the department's Criminal Division to White House officials. The wall of confidentiality between professionals at the Justice Department and politicians at the White House had been breached, and the bruised agency had to step aside and allow an outsider to take over the investigation.
The outsider was a partisan Democrat. A respected Harvard law professor and former solicitor general, Cox had attacked the Nixon administration's civil rights policy in a speech only weeks before his appointment. He was independent and determined. Cox wanted the tapes. As a special prosecutor, he had no choice but to gather the information as thoroughly as possible.
On behalf of the federal grand jury investigating Watergate, Cox issued a subpoena for the tapes. This, in the White House's perspective, constituted a massive invasion into the privacy of a sitting president. The grand jury's powers were broad, to be sure, but the president was unique in our governmental structure. His responsibilities were so important that surely no court would permit such a wholesale assault on the core of executive authority. This was, after all, only one of thousands of federal criminal investigations across the country. In the White House's view, Cox had lost perspective. He was a one-case prosecutor, assisted by a rabidly anti-Nixon, liberal staff of prosecutors anxious to bring down a conservative president.
President Nixon directed his lawyers to fight the subpoena. The White House contended that the Constitution provided a legal privilege—”Executive privilege”—that protected the president's conversations and communications. But it was to no avail. The District Court in Washington, D.C., with Chief Judge John J. Sirica presiding, was determined to get the facts. The criminal justice system had needs as well, and the president would simply have to bend. Dismayed, the president appealed to the United States Court of Appeals in Washington. But President Nixon again lost. In an elaborate, scholarly opinion, the Court of Appeals rejected outright the president's claim to absolute immunity from the grand jury's process. The president's duties—and his need for confidential advice—could not prevent the grand jury's work. The president, in short, was not above the law. The grand jury had a duty to gather the facts, it had determined it needed the information on the tapes, and its wide-ranging right to that evidence could not be abridged.
Steeped in the art of political compromise, Nixon advanced a middle ground. Instead of turning over the raw tapes, written transcripts would be prepared and presented to the grand jury, with excisions to protect sensitive national security information and matters implicating personal and family privacy. Cox refused the offer. There would be no substitutes or compromises: The grand jury (and the special prosecutor's staff) wanted the tapes, not substitutes.
This, Nixon concluded, was beyond the pale. The special prosecutor had rejected a perfectly reasonable compromise. The special prosecutor was an “inferior officer,” in the words of the Constitution. He was in the executive branch, and there was only one head of that branch: the president. The president cannot order judges around, nor can he order Congress to take action. He can only litigate in the courts, like anyone else, and try to persuade and cajole the Congress, just like others. But a special prosecutor appointed by the attorney general was different. The president could order the attorney general to take action, say, to dismiss an antitrust or civil rights case that the president disliked. It could not be denied, then, that a single-mission special prosecutor could be fired when he engaged, as Cox did, in an act of disobedience to a direct order of the president.
Like any head of a corporation or a college, the president had to be in control of his own department. The point had been made clear soon after the Civil War. President Andrew Johnson had been impeached for defying the radical Tenure of Office Act, passed by the Reconstruction Congress in the wake of the Civil War. The purpose of the act, passed over the president's veto, was to regulate the executive powers of the president, in particular to limit his power to remove subordinate officials. Johnson openly challenged the new law when he fired his disloyal secretary of war, Edwin Stanton, a darling of the radical Re-constructionists who then dominated Congress. That firing was illegal under the Tenure of Office Act, since it expressly required that a cabinet officer, duly confirmed by the Senate, could not be removed without Senate approval. Johnson regarded the statute as an unconstitutional affront to the powers of the presidency.
The House of Representatives responded by impeaching Johnson. The Senate, following a full-blown trial (complete with actual witnesses giving live testimony), fell a vote short of convicting him. Just barely, Johnson survived. Whatever his qualities as a person or as president, he had fought hard for the rightful powers of office. The judiciary had not had occasion to step in.
But the Court's role in our structure of government was more central when, a century later, the presidency again came under assault. Cox's extremism, as the White House saw it, was yet another chapter in the unfolding history of struggle for power in a nonparliamentary system of government where divisions of power counted greatly. The founding generation had viewed separation of powers—and the related system of checks and balances—as fundamental to maintaining the liberties of the people. The power of the British Crown, coupled with the excesses of Parliament, had left the founding fathers with a keen eye for structure. Indeed, creating the right structure of government was the basic task at the Constitutional Convention in Philadelphia in 1787.
The upshot was what James Madison, the primary architect of the constitutional structure, called “balanced government.” The secret to maintaining liberty was not in a bill of rights, which Madison regarded as mere “parchment barriers.” Bills of rights were necessary and appropriate with respect to state governments that could directly affect the liberties of the people. But the new central government would not pose such a threat to liberty, Madison believed, because of the separation of powers and the enumeration, within those three separate powers, of their respective authorities and responsibilities. In the very structure of the Constitution framed in Philadelphia lay adequate protection for liberty.
Nixon was steeped in all of this. He was not only a lawyer but also a veteran of both Congress and the executive branch. He had served in both the House and the Senate, then as vice president under President Eisenhower for eight years. He knew a congressional power grab when he saw one, and he likewise knew when historic presidential prerogatives were under attack. To Nixon, Cox's snubbing of the proposed compromise about the tapes was unjustified.
The controversial result of Nixon's resistance was the Saturday Night Massacre. The new attorney general, Elliot Richardson, had promised the Senate Judiciary Committee during his own confirmation hearings that he not only would appoint Archibald Cox as the special prosecutor but that he also would protect Cox's independence. Cox had made his judgment, right or wrong, about the need for the tapes. Compromise was out. Nixon wanted Cox fired. In a hastily called meeting with the number-two officer at the department, Deputy Attorney General William Ruckelshaus, and the number-three officer, Solicitor General Robert Bork, Richardson made it clear: He could not, in good conscience, fire Cox. The president had the power to do so and to direct his attorney general to carry out the directive. But Richardson had made a moral commitment to the Senate. As a matter of honor, Richardson would have to resign.
Ruckelshaus felt the same way. As deputy attorney general, he had made his own promises about the special prosecutor's independence. Like the attorney general, the deputy felt he had no choice but to resign. That left the issue with Solicitor General Bork, who had not had occasion to make such moral commitments. The three officers discussed the options. The AG and the DAG would resign, the solicitor general would become the acting attorney general (by operation of law) and then carry out the president's order. There was no other realistic choice. Otherwise, the hemorrhaging at the department would continue. Both the former attorney general, John Mitchell, and the former deputy attorney general, Richard Kleindienst, were under investigation and soon would be under federal criminal indictment. For the Justice Department, Watergate had led to one disaster after another.
Bork dutifully carried out Nixon's order by firing Cox, but Nixon could not win politically. Weakened by public revulsion to the firing of Cox, Nixon promised that the Watergate investigation would not, as he had intended, be returned to the Justice Department. He would accede to the growing demand, voiced by members of Congress, that the investigation be handled by an outside prosecutor. No insider, even though the person was a career prosecutor protected by the civil-service laws, could be trusted. The replacement was quickly named: a prominent Texas Democrat, Leon Jaworski, who had been a lawyer and confidant of President Johnson. Like Cox, Jaworski could be counted on to press the investigation aggressively.
Jaworski picked up where Cox had left off. As trials of the seven Watergate defendants loomed in federal district court in Washington, Jaworski made a strategic judgment. He wanted the tapes for trial. Again, Nixon refused. The resulting dispute over the tapes quickly arrived at the Supreme Court. The case was argued in early July 1974 and decided just two weeks later. The result was surprising: A unanimous Court, speaking through a chief justice appointed by President Nixon, held that the tapes had to be turned over.
The Court well understood the stakes. Its decision could doom the Nixon presidency. But it would also affect Nixon's successors, since the Court would have to sort out the relative powers of the presidency when the operation of the Oval Office touched on the needs of a separate branch, the judiciary.
The Nixon Court engaged in a classic method of deciding cases: balancing. Balance had to be maintained, in the Court's view, lest a terrible injury ensue to our system of government. The Court, speaking through Chief Justice Burger, first accepted the main submission by President Nixon. The principle of executive privilege did indeed exist, the Court concluded, and the principle protected the confidentiality of conversations and discussions involving the president. The idea of “privilege” was simple: As with attorney-client privilege, conversations falling within the ambit of “executive privilege” could be protected from investigators, grand juries, or prosecutors. The reason had to do with the president's powers. For the president to carry out his responsibilities, he had to have the candid advice of his staff. Advisers would be afraid to speak forthrightly if they knew their conversations could be forcibly disclosed. For the sake of the effective functioning of government, a privilege, grounded in the constitutional separation of powers, must be recognized by the judiciary.
But that was only the first part of the analysis. The Court went on to note the needs of the criminal justice system. That system depended upon access to information. The justice system was, at its best, a search for truth, and care had to be taken not to interfere with the truth-seeking process.
Both branches of government had powerful claims. The Court split the difference. In the absence, the Court wrote, of a claim by the president that he was seeking to protect highly sensitive information (such as military or diplomatic secrets), the president's generalized claim of privilege had to bend to a specific, justified request for information from the judicial branch. And here the prosecutor had made a showing to Judge Sirica that the information in the tapes was highly relevant to a nationally watched criminal trial of high government officials. That point carried the day. A “generalized, undifferentiated” interest by the president in confidentiality had to yield to a demonstrated, specific need by the judicial branch to do justice in a criminal case.
This was an odd sort of “privilege.” Unlike privileges rooted in the common law (such as the attorney-client privilege), this privilege was grounded in the Constitution itself, specifically in the structural design of separated powers. Each branch, separate from the others, had to do its job. Executive privilege was an important tool in permitting the presidency to operate as the founders intended. Yet that privilege could be trumped by the interest of another branch: the judiciary.
Privileges grounded in the common law were absolute (with a handful of exceptions), so much so that the Supreme Court was destined to hold, in the late 1990s, that the common-law attorney-client privilege survived the death of the client. The Court held this in a case growing out of the Whitewater investigation: the death of Vincent Foster, Jr., the deputy White House counsel in the Clinton administration. The attorney-client privilege, in short, was strong. The common-law privilege, even after the client's death, would trump the interest of a federal grand jury in gathering all potentially pertinent information to its inquiry.
