Brennan went to the Court on Saturday, July
13.
It was unusual for him to come in on a Saturday, but to preserve the momentum he felt he must stay on top of developments. He checked to see who else was there. Douglas had returned to Goose Prairie; Blackmun was attending a conference in New York City; Powell was in Richmond; Marshall was at home. Only Stewart and White were in the building. The three discussed the situation. It was nearly noon. White, accustomed to an early lunch, suggested they go out to eat. He preferred a quiet place near the Court, where they would probably not be recognized on a Saturday.
White and Stewart each invited two of their clerks. The three Justices and four clerks piled into White's car and drove to the Market Inn, a dimly lit restaurant on the other side of the Capitol. They sat in a dark corner of the almost empty restaurant, near the bar. A motley assortment of pinups, etchings and paintings of nude women covered the walls.
"Bill, you're the guy who likes nudes. What do you think of these?" White joked.
Brennan laughed. Then he quickly got down to business.
The Chief's drafts had invited anarchy. The Court had fractionalized at each new circulation by the Chief. In addition to the objections everyone had noted, the Chief's work was sloppy and ungrammatical. The Chief, Brennan declared, was going to embarrass the Court.
Stewart agreed. The Chief was, once again, not doing his homework. The delay he proposed was absurd.
A clerk suggested that perhaps the Chief wanted to scuttle the opinion.
He would if he could, the Justices seemed to agree.
Brennan criticized the Chief's work—its general imprecision, its aimless rhetoric, its lack of analysis.
"I don't know what it says or what it means," Stewart agreed.
Exactly, Brennan said. The vague language floating out there was very "dangerous."
The Justices found themselves entering the clerks' longstanding debate: Was the Chief evil or stupid?
Finally, Brennan declared that he for one favored firmer action. Since the Chief had not responded to any of the many suggestions they had supplied, they should put together an entire alternative draft from their work to date. They could no longer just make piecemeal suggestions and propose alternatives and hope the Chief would incorporate them, Brennan said. There was enough material in circulation to fashion a solid opinion, a composite counterdraft. Acting in concert, no single Justice would be out on a limb challenging the Chief.
Stewart, however, noted that he had sent out a memo the day before essentially going along with the Chief's standing section. Even though Brennan's section was better, Stewart argued that they had to go along with one of the Chiefs sections. If they did eventually force through an alternative draft, Stewart said, they would still want and need the Chiefs vote for unanimity. It was important to demonstrate support for at least one part of his work.
Stewart's clerk, the one who had impounded his memo, sat feeling very uneasy. With a troubled look, he told Stewart that the memo backing Burger's standing section had not been circulated.
"Why?" Stewart asked.
"Because it is in my desk drawer," the clerk replied.
"You'll deliver that after lunch," Stewart said sharply.
White again raised the
17
(c) question. He repeated his strong opposition to any requirement, even hint of a need, for a higher standard for presidential subpoenas.
Stewart also felt they should not fashion a higher standard, but said he thought such presidential material should be treated differently. The district court judge should inspect it in private before it was turned over to the prosecutor.
Brennan agreed with Stewart. He suggested that White include in his rewrite of
17
(c) something along the lines of Brennan's own suggestion that the courts be "particularly meticulous" in applying the
17
(c) standard to presidential subpoenas.
White said that would be possible. He would circulate by late afternoon a fuller version of his section on the
17
(c) standard.
You know Lewis feels quite differently? Brennan said. Yes, White replied.
But the question remained. How far could the Chief be pushed? What were his limits on this case? The discussion went around the table. How dangerous was the Chief's opinion really? If it did nothing truly damaging to the law and was just his usual sloppy work, bad grammar, and memorable lapses in language usage—what, then, was their responsibility? This was not a case, they agreed, in which they could just concur in the result.
What sort of counterweight was
a
rump majority against
a
Chief Justice who had assigned the formal opinion to himself? Theoretically, they could take the opinion from him. But practically, Stewart pointed out, they might make more trouble for themselves than was necessary. After all, they had not seen the guts of the case—the Chief's section on executive privilege.
There were nods around the table. White too preferred a middle ground that would avoid a head-on collision with the Chief.
They paid for their lunches, Dutch treat. In the car on the way back, someone mentioned the Ehrlichman trial. He had been found guilty the day before. Stewart said that, as a white man, he would not want to be tried in the District of Columbia, where the juries were predominantly black.
"You bet your ass," Brennan agreed.
The clerks quickly dubbed the meeting "the conspiracy lunch." It was unusual for them to meet with Justices other than their own, especially to plot strategy. As they saw it, the Justices were preparing a coup.
Back in his office, White decided to accommodate Brennan. He took his own six long paragraphs and added a seventh, at the end, lifted almost verbatim from Brennan's own suggestions on the
17
(c) standard. It included the "particularly meticulous" language. He made only one change. Where Brennan had said in conclusion that Judge Sirica's refusal to quash Jaworski's subpoena was "amply justified," White substituted "consistent with Rule
17
(c)," the regular standard. That made it clear that this case really was being handled under the normal standard.
White ordered his section typed. It was virtually the same as his "bare bones" memo of the day before.
The next morning, Sunday, July
14,
Brennan redrafted Powell's section on the standard for presidential subpoenas, trying to get it closer to White's
17
(c) position. But he retained Powell's sentence that "the District Court did not rest on satisfaction of Rule
17
(c) alone." Still convinced that there had to be a national security exception, Brennan reworked his section on instructions to the judge, again stating that claims could be accepted for "national defense, foreign affairs or internal security." But, he wrote, the legitimacy of those claims rested finally with the judgment of the District Court. After hearing the President's arguments, it could still order both
in camera
inspection and eventual delivery to the Special Prosecutor. It was much stronger than his own earlier draft.
Monday morning, July
15,
Brennan, White and Stewart met again to pick up where they had left off at Saturday's lunch. White said he had read through Brennan's revision of Powell's
17
(c) section and did not like it. He and Powell were on very different tracks. White would not buy even a suggestion of higher standards for a president.
Stewart saw that White had dug in on
17
(c). White could be as inflexible as the Chief. In addition to his original reservations about the other Justices developing substitute opinions and trying to force them on the Chief, White now had second thoughts about substituting sections one at a time. Even that might be going too far. He left the meeting quite concerned and went back to his chambers. The cabal was out of control. Brennan was pushing too hard. The Chief would see Brennan's hand in this if he hadn't seen it already. White was loath to have it appear that he had drifted under Brennan's influence. He had to prove his independence both to the Chief and to Brennan.
White swiveled to the right for his typewriter.
D
ear
C
hief
: Your statement of the facts and your drafts on appealability and (standing) are satisfactory to me, although I could subscribe to most of what is said in other versions that have been submitted to you.
My views on the Rule
17
(c) issue you already have.
With respect to the existence and extent of executive privilege
...
I
cannot fathom why the President should be permitted to withhold the out-of-court statements of a defendant in a criminal case . . . For me, the interest in sustaining confidentiality disappears when it is shown that the President is in possession- of out-of-court declarations of those, such as [Charles W.] Colson and Dean, who have been sufficiently shown to be co-conspirators. . . . Shielding such a conspiracy in the making or in the process of execution carries the privilege too far.
White had the memo retyped and sent simultaneously to the Chief and to all the other Justices. When Brennan received it, he decided that the weekend's work had been wasted. White had gone at least halfway over to the Chief's side. Without a unified front, the Chief would never accept the other Justices' revisions.
Brennan had to get White back in the fold. He jotted out a memo:
"
D
ear
B
yron:
I
fully agree with your expanded Sec.
17
(c) treatment, recirculated July
13, 1974,
and hope it can serve to cover that issue in the Court's opinion." He specified that copies be sent to all the others, including the Chief. Maybe that would appease White.
Stewart followed with a similar memo to the Chief.
"I
agree with Byron's revision of the discussion of the Rule
17
(c) issues," Stewart said.
Trouble had surfaced, however, on another front. Marshall's clerks were miffed that they and their boss had not been included in Saturday's "conspiracy lunch." They told Marshall about the lunch, and he was mildly put off. Somewhat overstating Marshall's reaction, they then told Brennan's clerks that Marshall was quite upset that the others would meet without t
elling him. Marshall was so dis
pleased, they said, that he might not even join the effort to force an alternative draft or sections on the Chief, even if he were invited.
When Brennan heard of the hurt feelings in Marshall's chambers, he was out the door at once.
He reminded Marshall that he had not been in the building on Saturday. Otherwise he would, of course, have been invited to the lunch. Brennan then undertook in some detail to bring Marshall up to date. His support was crucial, particularly given the widening difficulties with White and Powell. Douglas had deserted to Goose Prairie. And you could never tell when Blackmun would bolt to the Chief. Perhaps White had already done so.
Marshall said that he would go along. His clerks drafted
a
short memo for him to sign. It was the coldest prose they could fashion.
D
ear
C
hief:
Brennan was relieved. The memo was more direct than he expected. TM was back on the team.
Marshall's memo went off like
a
grenade in the Chiefs chambers. Of all the memos this was the most combative. It obviously reflected the sentiments of Marshall's clerks, and the fact that Marshall was giving them free rein. It would be hard to budge that chambers.
It wasn't only Marshall's chambers. The Chief
’
s clerks could see the hands of their fellow clerks in other chambers in all the various alternative drafts and supporting memos. They realized that because the seven other Justices had no other cases to work on, their clerks had little to do. So the Justices and the clerks spent their time cutting the Chief's rough, preliminary drafts to ribbons.