The Chief then decided to confront the others' concern about delay in a second memo:
MEMORANDUM TO THE CONFERENCE I have received various memos in response to preliminary and partial sections circulated.
With the sad intervention of Chief Justice Warren's death, the schedules of all of us have been altered. I intend to work without interruption (except for some sleep) until I have the "privilege" section complete and the final honing complete on all parts.
I think it is unrealistic to consider a Monday, July
15,
announcement. This case is too important to "rush" unduly although it is in fact receiving priority treatment.
I would hope we could meet an end-of-the-week announcement, i.e., July
19
or thereabouts.
Brennan was extremely frustrated by the Chiefs memo. Certainly there was agreement that July
15
was not a realistic announcement date, but not for the reasons Burger gave. The Chief simply did not perceive the problem: all of his sections needed major rewriting.
The next morning, Friday, July
12,
Douglas was appalled at the Chief's standing section which dealt with the question of whether Jaworski could sue the President. It borrowed from the Brennan draft, but contained neither a satisfactory explanation of the regulations governing the prosecutor's office nor the fact that those regulations had the force of law. In Douglas's view, the Chief had failed to fully and conclusively establish that the courts often resolved disputes within other branches of government. Obviously the Chief didn't really believe the courts should get involved in such disputes. Burger still believed he was right and Warren wrong in the Adam Clayton Powell case.
The day before, Douglas had told the Chief that Brennan's standing section was "adequate." Now Douglas decided to be more explicit. Putting his felt-tip pen to paper again, he wrote to Burger that he had just reread Brennan's suggestions and "would, with all respect, prefer it over the version which you circulated this morning."
Stewart thought Douglas's memo was too harsh. If they appeared to be running over the Chief, he would get his back up and they would win nothing. It was pointless to provoke him. Stewart was sure they had to join at least one of the four sections the Chief had already circulated. Since his standing section was the least offensive, and in some respects, one of the least important, provided it said the Special Prosecutor had standing, it was the section to join. A join at this point would also put some distance between himself and Brennan; generally that was valuable strategy when dealing with the Chief.
Stewart drafted a memo saying that with a minor change —substituting "the President's" for "an executive"—he could go along with the Chief's standing section. "If that change is made, I could subscribe to this draft as part of the opinion," Stewart wrote. He also added, both to prod the Chief and to conciliate Brennan, "I could equally cheerfully subscribe to Bill Brennan's version."
One of Stewart's clerks was given the memo to forward to the Chief and to the other chambers. Reading it over, the clerk thought his boss was being too conciliatory to the Chief. Burger's standing section was not good enough. The opinion was more important than the Chief's ego. Since Stewart had left for Earl Warren's funeral and was not likely to be back that day, the clerk took matters into his own hands and slipped the original and all copies of the memo into his desk drawer. He would raise the subject with Stewart the next day. He hoped Stewart would be glad the memo had not been sent.
Earl Warren's funeral at Washington's National Cathedral provided a moment for reflection for the Justices.
President and Mrs. Nixon were there, and the Justices had agreed it would only be proper that they avoid any exchange or contact with the President. After the service, however, Nixon stepped forward to escort Mrs. Warren out of the Cathedral. The Justices moved aside and kept their distance.
The car ride across the Potomac River to Arlington National Cemetery seemed to take an eternity. At the grave site, taps sounded, the Army band played "America the Beautiful," and the flag draped over the coffin was removed and handed to Burger, who in turn, gave it to Mrs. Warren.
Back at the Court, Douglas went over the Chief's proposed section on the
17
(c) standard. It recited the contentions of each side and described the governing case law.*
Burger said the Court could not conclude that Judge Sirica was in error in finding that Jaworski had met the
17
(c) standard. By putting it negatively, the Chief left the distinct implication that a higher standard than routine application of Rule
17
(c) had to be met.
Douglas was furious. This was not the sense of the conference. He wrote a memo to the Chief declaring that he would not join the Chief's proposed section.
For three d
ays, White had said litt
le, lying in wait. He saw the Rule
17
(c) section as the key. That was what the case was about. Would the existing rules and law be applied to the President in the same manner as they would be to any other citizen? The Chief's answer was ambiguous. He had tilted toward raising the standard. So White rewrote the section to enhance the importance of Rule
17
(c) as a simple application of
existing law.
Since the President had claimed the standards of
17
(c)
* One case
(Bowman Dairy Co. v. United States)
established that such subpoenaed material had to be produced
before
trial, while another
(United States
v.
I
ozia)
prohibited "fishing expeditions" to gather more evidence for a criminal trial.
had not been met, White wrote, the Court must first overcome this barrier before deciding any other questions. Quoting from the rule, White noted that the subpoena may be quashed if it is found to be "unreasonable or oppressive." But, White said, the Special Prosecutor had— through the sealed recor
d of grand-jury proceedings—
shown in most instances that one or more participants in the subpoenaed conversations had testified that Watergate was discussed.
"As we see it there is a sufficient likelihood that each of the tapes contains conversations relevant to the Watergate case . . ." White wrote. Not only were the tapes relevant, but it was "sufficiently likely" that the tapes would be admissible as evidence at trial. No "cogent" objection to their introduction as proper evidence could be lodged. The only possible objection was that the statements were hearsay. But, White wrote, under court decisions the hearsay rule does not apply to a defendant's recorded out-of-court conversations with a co
-
conspirator. They would be admissible at least against the defendant. And if a conspiracy was shown, the statements were admissible against all defendants, whether present or not, if made in furtherance of the conspiracy. Addressing the question of statements by unindicted co
-
conspirator Nixon, White wrote, "The same is true of declarations of co
-
conspirators who are not defendants in the case on trial."
White had his suggestions retyped and took them to Stewart, who liked the approach. It answered questions that the White House could raise in order to keep the tapes from being used at trial.
With that, White decided to circulate his proposal.
"D
ear
C
hief
," he wrote, "The attached is the bare bones of an alternative treatment which I am now embellishing to some extent. Sincerely,
B
yron."
Douglas got his copy and pounced at once. He agreed with White's proposed
17
(c) section, he declared in a memo to the Chief. Brennan was also pleased with White's proposal. It seemed wholly in line with his own suggestions on Rule
17
(c) that had circulated the day of orals. In order to preserve his position with Powell, he decided not to endorse White's memo formally.
Powell was distressed at White's memo; the President was getting nothing, no extra consideration. Even Brennan had said the courts should be "particularly meticulous" to insure that Rule
17
(c) had been correctly applied. Desiring to reach a middle ground, Powell circulated his own revised memo. He dropped his "necessity" standard and substituted a requirement that a "special showing" be made to establish that the material was essential. At the bottom of Brennan's copy, Powell wrote in his own hand, "I have tried to move fairly close to your original memo on this point, as I understand it, and what you said at conference.
Lewis."
Brennan was confused by the personal note. In his own memo, Brennan had purposely steered clear of endorsing a higher standard, particularly a "special showing"—whatever that might be.
The Chief, who had at first been mildly bewildered by the sudden activity, was now angry. Brennan, Douglas, Powell, Stewart and now White—of all people—were sabotaging his work. Marshall had been silent, but he would certainly follow Brennan. Burger had an insurrection on his hands. He decided to waste no time in getting to Blackmun, his one remaining ally.
Blackmun had just finished his crash project of revising the statement of facts in the case when the Chief appeared at the door to his chambers. It was an awkward moment. Burger had no idea what Blackmun was preparing.
The Chief entered Blackmun's office and began complaining bitterly about the criticism he was getting on nearly all fronts. Ten critical memos had flown back and forth in the past two days. He could barely get a rough draft out of his typewriter before someone was circulating a counterdraft, suggestions or alternatives. It was amazing, he said. He could not get the counterdraft read before a barrage of memos arrived approving everyone's work but his own.
Blackmun listened.
Didn't the other Justices realize that he had been busy with the Warren funeral, the Chief said? He had his always-growing administrative duties, managing the building, the
600
federal judges. "It's my opinion," he finally asserted, "they are trying to take it away from me."
Blackmun hated scenes, and he disliked crossing the Chief. But it was time to tell the Chief where he stood.
"Before you go on, I think you should see this," Blackmun said, handing the Chief his revision of the facts section.
"What's this, Harry, a few suggested changes you'd like?"
"No," Blackmun said. "It's an entirely new section which I think you should substitute for your initial draft."
"Well," said the Chief, flustered, "it's too late now for such major revisions."
"Would you at least please read the new draft?" Blackmun asked.
Burger's eyes flashed. He turned and stormed out the door without a word.
Blackmun wanted to calm the Chief. He picked up one of his perfectly sharpened pencils on his desk and wrote a cover memo for his facts section.
"D
ear
C
hief
, With your letter of July
10
you recommended and invited suggestions. Accordingly, I take the liberty of suggesting herewith a revised statement of facts and submit it for your consideration."
He continued in a more personal vein. "Please believe me when I say that I do this in a spirit of cooperation and not of criticism. I am fully aware of the pressures that presently beset all of us." The draft was circulated. The tone of the coyer memo signaled several of the Justices that something had happened. Blackmun told them about his encounter with the Chief. The incident became known as the "Et Tu Harry" story.
When the clerk network passed word that Blackmun had agreed to draft a counterstatement of the facts, several clerks joked that Blackmun would write it like his
Flood
v.
Kuhn
baseball antitrust opinion. He would begin the facts, 'There have been many great Presidents," and then list thirty-six Presidents, leaving out the thirty-seventh, Richard Nixon.
Brennan was elated both by the revised Facts section and by word that Blackmun had stood up to the Chief. He wrote a memo that rubbed salt in the wound.
"
D
ear
C
hief
: I think that Harry's suggested revision of the Statement of Facts is excellent and I hope you could incorporate it in the opinion."
Stewart, too, was quite happy to see the Blackmun section. To one degree or another, all seven Justices were now confronting the Chief. But Burger's position could harden in the face of such pressure. Stewart had three
minor
points he wanted to add to Blackmun's section, to show that he was not just criticizing the Chiefs work. He wrote Burger: "I think Harry Blackmun's revision of the statement of facts is a fine job, and I would join it as part of the Court opinion, with a couple of minor additions."