The most persuasive evidence in their possession was the first nine tapes that the President had turned over following the Saturday Night Massacre and that had been sealed by Judge Sirica. The grand jury had been strongly influenced by the tapes and other material sealed in that record. It had led them to the conclusion that there was only one reason the President had withheld the evidence, that he was protecting himself because he was guilty.
The Special Prosecutor's staff felt they had to draw the Justices' direct and personal attention to the sealed record. They knew, however, that it would not be easy. There were a half dozen former clerks on the Special Prosecutor's staff, and they knew very well that the Justices did not personally review long and detailed records, even in major cases. In an effort to pique their interest, Jaworski dropped an intentionally intriguing question at the Court's feet when he forwarded the record from Judge Sirica's court. Should his office print additional copies of the "sealed" portion for the public record?
The original of the record was locked in Court Clerk Michael Rodak's vault on Burger's instructions. Brennan at once asked to see it. The reason it had been sealed was immediately obvious. The grand jury which had indicted the seven former high-ranking Nixon aides had also secretly named several unindicted co
-
conspirators. One was Richard Nixon himself.
Brennan immediately grasped Jaworksi's message to the Justices. Jaworski's threshold problem in the case was to establish the relevance of the subpoenaed tapes. Did the taped conversations pertain to the charges against Nixon's former aides who would go on trial? In Brennan's view, the grand jury's finding against Nixon bolstered Jaworski's argument dramatically. Because the grand jury had found Nixon a full member of the conspiracy, the conversations were clearly relevant. Conversations that were part of a criminal conspiracy would not be protected by a claim of executive privilege. The Special Prosecutor also gained an important technical advantage from the fact that Nixon had been named a co
-
conspirator. Hearsay statements of any alleged conspirator, whether indicted or unindicted, were admissible in trial. Therefore, Jaworski could get more tapes admitted into evidence.
The grand jury's action, however, did not remain secret for long. On June 6, the story broke in newspapers as the result of a leak from a defense attorney. Later that day, the White House filed a short cert petition asking the Court to determine whether a grand jury had the authority to name an incumbent President an unindicted co
-
conspirator.
The issue as posed by the White House was a potential nightmare for the Court, Brennan thought. A judgment by the Court on the legality of the President's status, and the power of the grand jury to charge him as an unindicted co
-
conspirator, would involve the Court in a direct judgment about Nixon's guilt or innocence, and that really was the impeachment issue. It was just the kind of
political
question the Court traditionally sought to avoid. But if they did not take the issue, the Court would appear biased against the President.
At conference the next Monday, June
10,
the Justices decided to grant the White House petition, though some thought it was already before them, encompassed in the Special Prosecutor's petition that had been granted. They would just have to figure out how best to deal with it in the context of the whole case.
On Thursday, June
13,
a story by Jack MacKenzie appeared on the editorial page of
The Washington Post.
"Evidence is accumulating, though it is fragmentary, that Chief Justice Warren E. Burger has skated close to the line between the branches of government." Citing material that had leaked during the Watergate disclosures, the story quoted two private letters that the Chief had sent to John Mitchell when he was Attorney General.
"The correspondence, by its tone and in its references to frequent conversations, confirms the impression long held in Washington that a confidential relationship developed early in the Nixon administration between Burger and Mitchell." The letters recommended people for judgeships or promotion to the court of appeals or even the Supreme Court.
The Chief was furious that his private letters had been leaked and at the implication that such recommendations were improper. The Attorney General had sought his opinion. Like anyone else, he had offered it. The article, coming at the moment the Court was considering the tapes case, struck the Chief as a heavy-handed attempt by the
Post
to embarrass him into disqualifying himself. It strengthened his will to stay in.
Brennan had finished all his opinions and dissents for the term and now turned his full attention to the tapes case. He read the sealed record carefully. In Brennan's opinion, the tapes showed that Nixon and his aides conspired to obstruct justice and therefore the conversations were not entitled to any constitutional claim of executive privilege.
Brennan kept abreast of developments in the other chambers. Tapping the grapevine, making his own soundings, he found that Nixon had virtually no support in any of the chambers. Some of the others had by now read the record. Nixon's position had eroded. Expecting a real dispute, Brennan found the opposite. It did not take him long to realize how close the Court was to unanimity. But he wanted not just unanimity of result, but unanimity of rationale. A "definitive" decision would require that all eight votes be solidly behind an articulate and persuasive opinion that disposed of each stated and unstated argument for not turning over the tapes.
Brennan knew that the other Justices had already invested a good deal of time in researching the case. Some were preparing memoranda or possible opinions. It would require a miracle for them all to sacrifice weeks of work and their egos for unanimity. Pride of authorship could be a barrier to a single, definitive opinion. But Brennan had a plan. Assuming his old play-maker role from the Warren Court days, Brennan retraced his clerks' route from chamber to chamber. His first call, as always, was to his old friend and the senior Justice, Douglas, the most likely of them all to scuttle a consensus with a cantankerous comment or an ill-conceived memo. Brennan found Douglas working in his chambers. Brennan reported his findings— sentiment was
running
strongly against Nixon in nearly all chambers. The Court had now to meet Nixon's challenge and issue a "definitive" opinion. This required spelling out the Court's reasoning in a single opinion.
Douglas agreed. A single opinion, of course, would be ideal.
There were problems, Brennan said. With an opinion prepared by a single justice—no matter who pulled what strings, who edited whose work, or who organized what portions of the opinion, even assuming the best and most deferential cooperation—the credit would go to a single author. The other seven might resent it. Brennan and Douglas knew they would be among the seven. There was no doubt who would assign this one—and to whom.
Brennan wondered aloud if it might be a good idea to have no single author but instead a single opinion, signed by all the Justices. It had been done in
Coopery. Aaron,
a
1958
Little Rock, Arkansas, desegregation enforcement ruling issued in the face of local resistance and Governor Orval Faubus's assertion that a Supreme Court decision was not the law of the land.
Douglas listened.
In this case, all eight of them could write and sign one opinion, Brennan suggested. Nixon had effectively laid down the same challenge that Faubus had. Eight signatures on one opinion would make defiance less likely, and it would prevent the Chief from snapping the opinion up. They would take equal responsibility and equal credit.
Douglas said he liked the idea.
Buoyed by Douglas's response, Brennan continued his rounds. Marshall, who, as a civil rights advocate, had argued
Cooper
v.
Aaron
twenty years before, was enthusiastic about Brennan's suggestion. Stewart saw the advantages immediately. Brennan optimistically concluded that Powell and Blackmun were also receptive. White, however, was skeptical, and he came right to the point. Entering into agreements before the specifics were sorted out was not his style. It was a pre
-
emptive strike against the Chief, bad business.
Undiscouraged, Brennan turned to the Chief himself. Burger's reaction was lukewarm, but he politely told Brennan that he would consider it. Brennan thought that if nothing else, he had all of them focused on unanimity. He figured he, at least, had the votes to force the issue with the Chief.
With the Justices apparently in agreement, Brennan set out to finish preparing for oral argument. There were no surprises in the briefs. The Special Prosecutor offered three reasons why the President
should be compelled to give up h
is tapes; two were predictable. First, the public interest in disclosure of information relevant in a criminal prosecution outweighed Nixon's generalized claim of privilege. Second, the President had already waived his privilege two months before by releasing his edited versions of some of the subpoenaed conversations. The third argument was somewhat more problematic, since it rested on the grand jury's naming Nixon as an unindicted co
-
conspirator. The logic was simple enough. There was no executive privilege for conversations that were part of a criminal conspiracy. But Brennan was troubled. James St. Clair, the President's attorney, could too easily claim that an incumbent president could not be named an unindicted co
-
conspirator in the first place. And thus call into question the validity of the subpoena. Brennan wanted to avoid that thicket.
Douglas had some answers. On July
5,
three days before oral argument, he circulated a thirty-page printed draft opinion in memorandum form. The early entry allowed Douglas to help his colleagues focus on his issues.
In the past, however, Brennan had found Douglas's pre-argument memos less than helpful. They were often spun off in a single sitting and sometimes they unintentionally gave the other side effective ammunition. He approached Douglas's memo with some dread. It was satisfactory on several technical questions, but he found the central point inadequate. Rather than call attention to the Special Prosecutor's demonstrated need for the tapes in order to try his case against the defendants, Douglas focused on the needs of the defendants. He argued correctly that previous Court decisions had firmly established that criminal defendants were entitled to all potentially exculpatory information, and that since the defendants would be entitled to tapes that might exonerate one or all of them, so too was the prosecutor. But that was backward, as far as Brennan was concerned. The Court had to address the prosecutor's demand; it was his subpoena.
But Brennan was most shocked by Douglas's endless penchant for raising issues that were likely to derail consensus. In his concluding section, Douglas considered whether the grand jury could constitutionally name the President as an unindicted co
-
conspirator. He dug an even deeper hole for the Court by dealing in such depth with the issue that St. Clair had raised. The lawyer had asked the
Court to hold that the evidence shown to the grand jury was insufficient to justify the conclusion that the President was a co
-
conspirator.
Rather than dismiss the request as absurd—the Court should not second-guess the grand jury—Douglas had written:
It is obvious from the history of this grand jury that the finding was made for the benefit of the House Judiciary Committee which now has before it the impeachment question. So what in substance we are being asked to do is to rule that a certain bit of evidence produced by the grand jury and sent to the House Judiciary Committee is not competent evidence in impeachment proceedings. I think that beyond question that issue is a "political" issue...
and therefore not one to be decided by the Court.
Douglas had effectively said the Special Prosecutor's use of the secret grand jury report was a
political
action designed to foster the President's impeachment in the House of Representatives. As weak and inelegant as the President's position had become, he had one powerful historical ally: more than anything else, the Court was always reluctant to take on
political
questions involving the ultimate workings and the limits of the other branches of government. Douglas was raising issues that did not need to be addressed. Brennan found the section bizarre. Any such statement by the Court, Brennan reasoned, would be just what Nixon needed to discredit the Special Prosecutor, his grand jury and the House impeachment inquiry. Of course the grand jury had supplied evidence and some of the early tapes to the House Committee. But the Supreme Court should not comment. They should not provide Nixon with an argument to keep them out.
Brennan was sure that most of the other Justices, with the possible exception of Powell, did not want,
to deal with the grand jury question. He had heard through the clerk grapevine that Powell wanted to rely heavily on the uniqueness of the grand jury's finding.