Shortly before midnight, the White House issued a statement declaring that the President was not going to appeal to the Supreme Court. Instead, Nixon proposed a compromise that would give the Special Prosecutor summaries verified by Senator John Stennis of Mississippi, an aging, nearly deaf Nixon supporter. The President also issued a direct order to Special Prosecutor Cox, "as an employee of the executive branch," not to seek any more tapes through the judicial process.
The next night, Saturday, October
20,
Marshall had his clerks over for dinner at his suburban Falls Church, Virginia, home. As usual, television sets were on upstairs and downstairs while Marshall shot pool with the clerks. Shortly before
8:30,
the regular programs were interrupted. Special Prosecutor Archibald Cox had been fired. Attorney General Elliot Richardson and his deputy had resigned rather than fire the Special Prosecutor. Solicitor General Robert Bork, the next in line, was Acting Attorney General. He had agreed to comply with the President's order to fire Cox. Soon all the networks were running special broadcasts. F.B.I, agents were shown sealing off and guarding the Special Prosecutor's office to prevent removal of files.
Marshall watched in disbelief. As a civil rights lawyer, he had often seen such raw displays of police power in the South, but never before in Washington. President Nixon had ordered the prosecutor to stay out of court, fired him, and was now probably seizing his evidence. Where would the man stop? Adding to the drama for Marshall was the fact that all the President's actions seemed designed to keep the tapes case out of the Supreme Court.
Within the week, Nixon, reeling from the hostile public reaction to what had become known as the Saturday Night Massacre, capitulated and turned over the tapes to Sirica. The case was closed.
Brennan wondered what the Court would have done. The most prolific source and consumer of grapevine information, Brennan sifted through the intelligence his clerks brought back from their peers in the other chambers. Over lunch, or dropping by a colleague's chambers,
Brennan probed. The results of his unofficial poll indicated that the vote might have been anything but "definitive." The four Nixon appointees seemed to favor the President's claim of executive privilege. Douglas, Stewart, Marshall and he were against it. Four-to-four with an inscrutable Byron White in the balance. White, as always, kept his own counsel. He seemed to enjoy keeping the others in doubt.
But if Watergate was not before the Court, it was much discussed at Brennan's morning coffee with his clerks and secretary. Was the new special prosecutor, Leon Jaworski, a Texas millionaire and former A.B.A. president, a shill for the White House? Brennan was not sure. Was the House of Representatives serious about its impeachment investigation?
On March 1
, the Watergate cover-up indictment charged seven of Nixon's forme
r aides including Haldeman, Ehr
lichman, and former Attorney General John Mitchell
.
The tapes question would not go away. Both Jaworski and John Doar, Chief Counsel to the House Judiciary Committee, wanted more tapes for their separate investigations. Jaworski subpoenaed sixty-four more tapes, and again Sirica ordered the President to surrender the tapes to the prosecutor. The Court was back at the center.
Sirica set
4
p.m
. Friday, May
24,
as the deadline for the President to appeal to the Court of Appeals for the District of Columbia. Nixon filed on time.
Two hours later at the Supreme Court a group of clerks were on the basketball court for their regular game, when someone raced in to say that Philip Lacovara of the Special Prosecutor's office was downstairs at the court clerk's office. The basketball players jogged down in their gym clothes —at some peril should the Chief see them—to get copies of the filing.
It was a cert petition asking for an expedited hearing. Jaworski was taking the extraordinary step of asking the Supreme Court to hear the tapes case before the Court of Appeals decision. In cases "of imperative public importance," requests to leapfrog the lower appellate courts were permissible, but had been granted only half a dozen times. The most recent had occurred when President Harr
y S. Truman seized the steel mill
s during the Korean War twenty-two years before.
It was a risky strategy. If the Supreme Court refused to grant expedited review it would be a stinging psychological defeat for Jaworski. Brennan felt strongly that cert should be granted. The President was saying that he, not the courts, should decide what, if anything, he was to turn over.
Jaworski said he wanted an expedited hearing to ensure there was no delay of the trial of the former top Nixon aides. For Brennan much more was at stake. The House Judiciary Committee's impeachment inquiry was in full swing. Without the crucial evidence, the wounds of Watergate would not heal. It was time for the truth of Watergate to surface, Brennan felt.
Five votes, rather than the normal four, were required to hear the case on an expedited basis, and Brennan knew that he could count on Douglas and Marshall. Douglas was eager to come to grips with his long-time antagonist. He regarded Richard Nixon as morally, intellectually and in every other way unfit to be President. Marshall was no less hostile. They might well be joined by Stewart. His skepticism about
a
President run amok had grown steadily. But this was the same Potter Stewart who once had been a possible Nixon choice for Chief Justice. Stewart toyed with progressive ideas, Brennan thought, but more often than not he fell back on the Ohio Republican principles of his past. White could be within reach. Burger was beyond hope. It was probably no accident that the White House had released, among the barrage of tape transcripts made public the previous April, a single transcript of no particular import that included
a
reference to the Chief's conversation with then Attorney General Richard Kleindienst. It disclosed that the Chief had forwarded his own list of candidates for the first Watergate Special Prosecutor through Kleindienst. Brennan was curious about what other references to the Chief might be on those tapes.
Blackmun was a possible cert vote. He had come a long way from his fawning alliance with the Chief. As his reservations about Burger grew, Blackmun had begun to draw his own conclusions about events outside the Court. It was difficult to tell where Powell stood. The smallest of clues would have to suffice. During the term he had dropped the prefix "President" and now generally referred only to "Nixon."
Rehnquist, though clearly troubled, was the most likely to support the President on principle. He had drafted the President's original position on executive privilege when he was at the Justice Department. And Rehnquist was against Justices disqualifying themselves unnecessarily from major cases, particularly cases in which the vote was likely to be close. But Rehnquist had worked closely with John Mitchell and John Ehrlichman. They were all under indictment, and Richard Kleindienst, Mitchell's successor, had resigned at the same time as
Haldeman and Ehrlichman. Klein
dienst was one of Rehnquist's closest friends in Washington.
On Tuesday, May
28,
Rehnquist faced the inevitable. He could not sit with his colleagues. He would, however, announce only that he had disqualified himself, without offering a reason.
Brennan worried that the Court would not take the case on an expedited basis before adjourning for the summer. The White House had the strongest force of all going for it—the vast history of judicial inertia. Burger, Blackmun and Harlan had dissented in the Pentagon Papers case, all objecting to the haste with which the case had been propelled through the courts.
This was precisely the argument the White House made in its brief opposing the expedited hearing. "Attempts in the past by the Court to make a hurried disposition of an important case arising in the dying days of a term have not been among the proudest chapters in the history of the Court," the brief read. The Pentagon Papers case "is but the most recent example." The brief cited Burger's dissent in the case.
In Brennan's view, this argument was an insult to the Court. The White House was conspicuously wooing the Chief. The claim that expediting the case would lead to a hasty, ill-conceived decision was absurd, a phantom issue, in Brennan's words, "a bugaboo." Brennan felt that the Court should extend its term if necessary. His vacation in Nantucket could be postponed. Since most of the term's cases were already completed, the Court would have the rare opportunity to give the case its undivided attention. But the argument agains
t expediting would probably per
suade Powell who, modeling himself after Harlan, would object to the undue haste. The clerks were betting even money on whether t
he Court would go along with Ja
worski.
The conference convened on May
31,
one week after the Special Prosecutor's filing. The Chief brought a letter that had arrived that morning. Senate Majority Leader Mike Mansfield urged the Court to forgo "its four month recess
...
so that there will be no unconscionable delays in the consideration of Watergate or related matters."
The Chief's disdain was clear. The letter exhibited crude ignorance of the Court's work load during recess. Burger had never liked Mansfield. He was anti-courts, anti-lawyer, anti-judge, always leading the resistance to judicial pay raises.
Stewart was nearly as offended as the Chief. He was defensive about his summer-long vacation at Bowen Brook Farm in New Hampshire. He emphasized to callers there that he was working hard on cert petitions and other Court business. The other members of the conference all resented the occasional portrayals of them as part-time judges, racing off each summer to their fishing ponds and hammocks. The conference decided to send Mansfield a sharp, but tactfully worded, reply.
At
12:10
p.m
., Rehnquist left the room, and they turned to the tapes case itself. The Justices agreed with two of the Chief's suggested ground rules. They would not tell their clerks about the discussion and to prevent leaks they would announce their decision immediately.
The Chief did not have to spend a long time presenting the case. They were all familiar with the facts. Burger said that he had problems with expediting the case. All that was at stake was a possible delay of the Watergate cover-up trial. That was hardly a matter of national emergency. But Burger hedged. He was not ready to vote either way.
Douglas spoke next. He did not hide his contempt for Nixon's position. Everyone, including a President, had to turn over evidence. The defendants in the cover-up trial would be entitled to all possible evidence. The Court could decide the issue quickly. He voted to expedite.
Brennan thought the President's claim of absolute "executive privilege" lacked even the slightest merit. The cover-up trial might survive the delay if the hearing was not expedited, but this called for decisive action. The Court had an obligation. He voted to expedite.
Stewart fidgeted. He too thought the President had a weak argument, and he worried how it might appear if the Court denied the petition. There was speculation in the 'press that the Court would not decide such a question because it was a classic
political
dispute between two branches of government. The Court's authority was now an issue. The President had made it one. This business about obeying only a "definitive" opinion was a challenge. Court rulings had to be obeyed, definitive or not. Compliance was not a matter for a President to decide. In any event, Nixon's challenge made the case a paramount legal issue. Now. It had to be decided. Stewart voted to expedite.
White disagreed. A few months' delay in the cover-up trial would not set back the cause of justice. Despite the other considerations, the only question was whether to grant an expedited hearing and bypass the Court of Appeals. If the Court's authority was being challenged, that should be taken in stride. There should be no hasty over-reaction. White said he was inclined to deny the petition for now, let the case mature and come to the Court naturally.
Marshall cast a fourth vote to expedite. But it took five votes to grant the immediate hearing.
Blackmun wanted to be sure the Court did not act recklessly. Watergate might be a national emergency, but speeding the cover-up trial was not sufficient cause to depart from normal practice. He would vote to wait.
Powell thus emerged as the critical vote either way. He thought Watergate was a national emergency; special steps were justified. He was ready to hear the case now.
That made five votes to take the case immediately. Burger then said he too would go along, making the final vote 6 to
2.
Thirty minutes later, a formal order expediting the case was signed by the Chief and released to the press. As usual, the votes on a decision to grant cert or expedite the case were not listed.
Though confident of the strength of their legal arguments, Jaworski and his staff were concerned that the Court might still rule in favor of the President. The Special Prosecutor's office needed to buttress its position with something more than legal niceties. Jaworksi wanted the Court to reach the same conclusions that he and the grand jury had drawn: Richard Nixon was a crook. If he could get the Court to share that simple conclusion, the other arguments would follow naturally in turn, and they would get their tapes.