The Wars of Watergate (100 page)

The Watergate spotlight briefly moved from the House Judiciary Committee to the Supreme Court on July 8 as Leon Jaworski and James St. Clair presented their arguments to the Justices. The year-long controversy over the tapes had reached the Court, draped in the constitutional finery that masks American political disputes. The President’s insistence that the immunity of his office justified defying the Special Prosecutor’s demands and the orders of the lower court had remained constant throughout the year. The conflict was one of high drama; sadly, the confrontation had escalated to the point that it offered scant chance for compromise.

“Scarcely any question arises in the United States that is not resolved, sooner or later, into a judicial question,” noted Alexis de Tocqueville in 1837. By 1974 Tocqueville’s brilliant insight had metamorphosed into an unwritten constitutional corollary. Americans preferred legions of lawyers to battalions of soldiers, and they looked to the Supreme Court as the ultimate locale for the peaceful resolution of political and policy disputes. However contradictory the Court and its power were to democratic theory and impulses, its role had served the nation well for nearly two hundred years. From the time of John Marshall, the Court frequently has fallen afoul of particular interests, yet it has displayed resilience, and its authority has steadily grown. Except in periods of emotional assault upon the institution from those momentarily
aggrieved by a decision, the Court’s prestige consistently has remained high among the American people.

In 1857, the Supreme Court, dominated by a majority of slaveholders, attempted to impress pro-slavery doctrines on constitutional law in the Dred Scott Case. Chief Justice Roger B. Taney’s decision upholding Scott’s master provoked protests throughout the North and the West. The vituperative denunciations of the Court at the time have attracted a great deal of historical attention—at the cost of ignoring a powerful current of opinion that deplored the Dred Scott decision yet recognized the need for maintaining the authority of the Court. “We are a lost people when the supreme tribunal of the law has lost our respect,” ran a typical comment that urged Americans to maintain faith in the efficacy of the Court, despite its momentary lapse. Following the Supreme Court’s desegregation decision in 1954, segregation advocates regularly denounced the Court, yet they persisted in pursuing judicial solutions. So, too, antiabortion activists, infuriated by
Roe v. Wade
(1973), nevertheless have pressed for a new judicial determination of the question.

Political battle cries for judicial restraint generally amount to little more than convenient appeals to rally the faithful. “What would we do without the Supreme Court?” asked those who stood between the defenders and root-and-branch critics of the Supreme Court following the Dred Scott decision. The Court had long before firmly established itself as an indispensable component of the American governmental apparatus. “Without some arbiter whose decision should be final the whole system would have collapsed,” Judge Learned Hand once observed.
¹

Despite the Supreme Court’s popular image as the ultimate constitutional arbiter, only rarely has it been called upon to consider the limitations of presidential power. The modern benchmark for such judicial determination was made in 1952 when the Justices rejected President Harry Truman’s claim of “inherent powers” to justify his seizure of steel mills to prevent a strike that he believed would impair the Korean War effort. When the steel companies sued to regain control of their property, six of the nine Justices ruled that in the absence of congressional authorization, the President had no such power. In a concurring opinion, Justice Robert H. Jackson eloquently underlined the rule of law: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and the law be made by parliamentary deliberations.”

William Rehnquist, a Jackson clerk at the time of the Steel Seizure Case, later recalled it as “one of those celebrated constitutional cases where what might be called the tide of public opinion suddenly began to run against the government, for a number of reasons, and … this tide of public opinion
had a considerable influence on the Court.” In 1974 Rehnquist implicitly applied that observation to his eight sitting colleagues who considered President Nixon’s appeals that they legitimate his efforts to retain control of the remaining White House tapes. Rehnquist recused himself in the case, citing his past association with the Nixon Administration. Ironically, as Jackson’s clerk he had listened to the arguments in the steel case; as an Associate Justice, he never heard those in
U.S. v. Nixon
lest he give the appearance of secret participation. Instead, he assigned seats to the Justices’ families, members of Congress, clerks and other Court personnel, the press, and finally, members of the public who would have access to twenty-seven seats, rotated on a five-minute basis.
²

While the Judiciary Committee weighed the President’s political future, the Supreme Court dealt only with his claims of executive privilege to keep his tapes from the Special Prosecutor. The issue was not literally framed as deciding Nixon’s ultimate fate, but the reality was plain. The constitutional process concurrently playing in the House inevitably had the burden of “politics” or “partisanship.” On the other hand, despite the political bearing of the Court’s role, the public to a large extent perceived the Justices as being above politics and parties—serving as disinterested constitutional arbiters. As the Court listened to arguments in
U.S. v. Nixon
, the editorial writers of the
Wall Street Journal
asserted that the President’s fate should not be resolved “by a unilateral assertion” of the impeachment power; “only the courts can draw an ongoing body of standards, that is, a body of law, to balance executive privilege against other necessary principles.” Richard Nixon himself had said in 1969 that “Respect for law in a nation is the most priceless asset a free people can have, and the Chief Justice and his associates are the ultimate custodians and guardians of that priceless asset.”
³

The Justices acknowledged the need to give the President his day in court by allowing three hours of argument instead of the normal one hour. As St. Clair began his presentation on July 8, he recognized the Court’s potential for damaging the President’s credibility. He told Chief Justice Warren Burger that “no one could stand here and argue with any candor that a decision of this Court would have no impact whatsoever on the pending inquiry before the House of Representatives concerning the impeachment of the President.” St. Clair sought to persuade the Court to deny the justiciability of the case and so to leave Nixon’s fate to the House alone. The White House much preferred Congress as an adversary. For his part, Jaworski appealed to the Justices to invoke the most sacred phrases in the Court’s constitutional liturgy. John Marshall had written in
Marbury v. Madison
(1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Protecting and interpreting the Constitution, said Marshall, was “of the very essence of judicial duty.” St. Clair to the contrary, that is also what the nation looked for in July 1974.
⁴

The opposing lawyers publicly exposed the debate that had raged between them for months regarding Jaworski’s independence and St. Clair’s right to defend the President. But St. Clair now moved beyond those arguments and asked the Justices to dismiss the suit because of “the co-pendency of impeachment proceedings.” One Justice interrupted St. Clair, suggesting that this was not the Court’s problem. St. Clair thought otherwise. The Court, he insisted, had a long tradition of not deciding “political questions,” a doctrine that generally provided an escape route from deciding questions best determined by the political branches of government. St. Clair acknowledged that when it had decided “political” matters, as, for example, the legislative reapportionment cases of the 1960s, the Court had acted to strengthen individual rights and the democratic process. But no such consideration was involved in this case, he argued; instead, a decision would affect the proper duties of Congress. Furthermore, St. Clair went on, a decision against Nixon would “diminish” the democratic process, for it would limit the ability of the President to hold confidential discussions with his aides and thus deprive him of the power, duties, and responsibilities given to other presidents.

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.”