Marshall got an oral briefing from his clerks. He did not require a research memo. Certain that he would not be writing the opinion, Marshall thought he knew enough about the case. He favored a strong opinion that would direct Nixon to turn over the tapes. Nonetheless, he too was sensitive to the need for executive privilege. Marshall would never have wanted to see tapes of his conversations with Lyndon Johnson get into anyone's hands. Presidential meetings were not tea parties. Both Johnson and he had talked openly, free of inhibitions—"Cocksucker this and cocksucker that."
* * *
At
10:02
a.m.,
the eight Justices emerged from behind the thick burgundy drapes. The Chief surveyed his seated colleagues, looked out over the jammed courtroom and finally nodded to Special Prosecutor Jaworski, who sat at the government's table. "You may proceed whenever you are ready," the Chief said.
Occasionally glancing at a large black notebook, Jaworski recited the history of the case and the naming of the President as an unindicted co
-
conspirator.
Douglas was the first to interrupt. What relevance did the grand jury's finding have to the President's duty to deliver subpoenaed material? "I thought that was primarily just for the knowledge, information, of the House Judiciary Committee," Douglas said.
"No, sir, that is not correct, sir," Jaworski replied.
Stewart wanted to get the argument off this track. "You would be here, Mr. Jaworski," Stewart asked, "whether or not the President had been named as an unindicted co
-
conspirator. But that simply gives you another string to your bow—isn't that about it?"
Jaworski agreed, but he did not drop the subject. He was sure it added considerable weight to his argument that he get access to the tapes.
Brennan felt that the grand jury question had to be buried. "You don't suggest that your right to this evidence depends upon the President having been named (by the grand jury) as an indicted co
-
conspirator," he asked.
"No, sir," Jaworski replied.
Brennan underlined his point. "And so, for the purposes of our decision, we could lay that fact aside, could we?"
Jaworski offered a reluctant yes. After several interruptions and another flirtation with the grand jury question by Powell, Jaworski attempted to summarize. "Now enmeshed in almost five hundred pages of briefs, when boiled down, this case really presents one fundamental issue. Who is to be the arbiter of what the constitution says? . . . Now, the President may be right in how he reads the Constitution. But he may also be wrong. And if he is wrong, who is there to tell him so? . . . This nation's constitutional form of government is in serious jeopardy if the President,
any president,
is to say that the Constitution means what
he
says it does, and that there is no one, not even the Supreme Court, to tell him otherwise."
Stewart saw an opening to show that the President was subject to the Court's authority. Since the President had gone to district court to quash the subpoena and had filed his cross petition in the Supreme Court, "he has himself invoked the judicial process. And he has submitted to it," Stewart said.
Well, that was not quite right, Jaworski replied, because the President had argued that the Special Prosecutor had no standing to sue him. In the President's view, the matter was an internal Executive Branch dispute, and not something that lay within the Court's power to solve.
Nonetheless, Stewart said, the President is making that argument as a matter of constitutional law. ". . . His position is that he is the sole judge. And he's asking this Court to agree with that proposition, as a matter of constitutional law."
Jaworski was still not ready to agree. "What I'm saying is, if he is the sole judge . . . and if he is in error in his interpretation, then he goes on being in error in his interpretation," he insisted.
"Then this Court will tell him so," Stewart said. "That's what this case is about, isn't it?"
The Chief chimed in. He, too, was very concerned about the Court's authority. "[The President] is submitting himself to the judicial process in the same sense that you are, is that not so, Mr. Jaworski?"
Jaworski was not sure. The President had insisted that "he and he alone is the proper one to interpret the Constitution."
". . . Each of you is submitting for a decision to this Court," the Chief said.
"That may be, sir," Jaworski said, but he had personal reservations about Nixon's willingness to abide by the Court's decision. Like the Justices, he had read the President's elusive statements about complying with a Court decision.
Jaworski came back to the grand jury question in spite of the attempts by Brennan and Stewart to warn him off.
White interrupted testily. "I thought we had put that issue aside. I just don't understand what the relevance of that is to this case," he said.
Jaworski fumbled, pointing out that St. Clair had raised one side of the question.
"I am just wondering, Mr. Jaworski, why you aren't content... it is irrelevant. .."
As Jaworski stumbled further down the path, his staff sat grimacing. Their boss had apparently forgotten the first rule of oral advocacy—get a sense of the Court and go where it wants to go. Be helpful, don't argue.
Stewart finally cut him off. It was now St. Clair's turn.
The Justices had joked that in order to emphasize his claim that the prosecutor had no standing, St. Clair might not show up for oral argument. St. Clair opened by arguing that the Court's decision and the House impeachment proceedings were intimately connected.
"Well, those are none of our problems, are they?" asked Douglas, who three days before had suggested in his draft opinion that the two might overlap. That morning, Douglas had dropped the argument and circulated a redraft of his opinion without it.
St. Clair insisted that the two were related. The Court was embroiled in impeachment politics, he said. The tapes which the Special Prosecutor wanted, if they were turned over, would be passed on to the House impeachment inquiry, St. Clair insisted. "So this fusion is going to continue," he added. "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."
Stewart suggested a hypothetical murder to which the President was one of the few eyewitnesses. Would he be unavailable to the courts because of an impeachment inquiry?
This was different, St. Clair responded. The subject matter of the two Watergate inquiries was identical. He insisted repeatedly that the Court was entering into impeachment questions. It was not the Special Prosecutor who would ultimately use the tapes, but the House impeachment inquiry. That made it a
political
question.
Marshall cut in. "So that the House can get [the tapes], the President can get them, and the only people I know that cannot get them is the Courts," Marshall said, drawing appreciative laughs from the courtroom.
"You have not convinced me that we're drawn into it by deciding this case," Brennan said.
"The impact of a decision in this case undeniably, Mr. Justice Brennan, in my view, cannot have—it will not be overlooked," St. Clair said.
"Any number of decisions of this Court has ripples," Brennan responded.
Burger re
-
entered the debate. "Mr. St. Clair, you left me in a little bit of doubt about this mechanical problem. I think perhaps we diverted you from it," the Chief said, raising an issue that St. Clair had mentioned in passing. "Are you suggesting that on a given tape, which is a reel type of thing, having an hour or more of material or maybe several hours—"
"Two or three days," St. Clair helped.
"Two or three days— Oh, I see," the Chief said. He had spoken many times with the President at the White House or on the phone. He was surely on some of these additional tapes. "That the first three hours might be the material which has already been transcribed and released," the Chief continued, "the next three or four hours might be
a
conference with the Joint Chiefs of Staff or the Chairman of the Atomic Energy Commission . . . matters totally irrelevant but confidential . . . and you want some mechanism set up so that these things can be screened out?"
St. Clair indicated that would be his position if he lost.
Marshall decided this would be a good time to make an effort at establishing the Court's authority. When presented with the subpoena, he asked facetiously, "you just ignored it, didn't you?"
"No sir, we did not," St. Clair responded. "We filed
a
motion to quash it."
"The difference between ignoring and filing
a
motion to quash is what?" Marshall closed the trap.
"Well, if your Honor please, we are submitting the matter—"
"You are submitting the matter to this Court" Marshall finished St. Clair's sentence for him.
'To this Court under a special showing on behalf of the President . . ." St. Clair said, again trying to finish the sentence.
"You're still leaving it up to this Court to decide it," Marshall tried to slam the door shut.
"Well, yes," St. Clair admitted, but added in qualification, "in a sense."
"Well, in what sense?" Marshall asked impatiently. St. Clair hedged. Marshall badgered him.
St. Clair acknowledged they were submitting a legal question to the Court. "This is being submitted to this Court for its guidance and judgment with respect to the law," St
. Clair said, gripping the lecte
rn. "The President, on the other hand, has his obligations under the Constitution."
The President's lawyer was suggesting that the Court's opinion would be advisory, not binding on his client. The President would be looking for a loophole, some convenient language in the opinion that would suit him. Then he would decide how to apply its decision. St. Clair was saying that the Court could decide the law, but that the President would apply it Nixon was telling the Court that it could tell him what criteria to use in his decision, but it could not decide for
him
whether to turn over the tapes.
"Are you submitting it to this Court for this Court's decision?" Marshall demanded to know.
"As to what the law is, yes," St Clair said.
The challenge to the Court's authority was now clear.
White took his turn. 'Would you automatically say every conversation about Watergate is in the course of the performance of the duties of the President of the United States?"
"I would think it would be, yes sir," St Clair answered.
"Why is that, Mr. St Clair?"
White asked, letting out a littl
e more rope.
The Watergate conversations were part of Nixon's role as President, insuring that the allegations were fully investigated and prosecuted, St. Clair said.
White let the answer hang in the air. He and the others had read the transcripts of the early tapes. Nixon had not acted as an investigator or a prosecutor.
Powell was still concerned that the President be given an extra measure of protection from harassment by subpoena. "Mr. St. Clair, may I get back to what seems rather fundamental to me," he said, leaning forward. "Let us assume that it had been established that the conversations we're talking about here today did involve a criminal conspiracy, would you still be asserting an absolute privilege?"
"Yes, quite clearly," St. Clair declared.
"What public interest is there in preserving secrecy with respect to a criminal conspiracy?" Powell inquired.
"The answer, sir, is that a criminal conspiracy is criminal only after it's proven to be criminal," St Clair responded, smiling.
"But my—," Powell tried to begin.
"And we're not at that point yet," St. Clair added.
"My question was based on the assumption that it had been established that the conversation did relate to
a
criminal conspiracy," Powell insisted.
St. Clair insisted that the claim of privilege remained absolute since no one had been found guilty. The tentative allegation that there was
a
conspiracy was not enough to subpoena the evidence.
Powell listened to all this in disbelief. Reduced to its essentials, St. Clair's argument was that the President was immune from criminal investigation. The only remedy that would reach
him
was impeachment Powell determined more than ever to vote against this seemingly unlimited assertion of power.