Burger was calmer. Idle hands do the devil's work, he advised his clerks. The others were nitpicking and trying to spoon-feed him, he said, but it wouldn't work. He had never responded to that kind of pressure. Their job was to keep working and take the opinion
a
step at a time.
But the Chief was also beginning to feel more insulted and less bemused by the patronizing approach of his colleagues. He resented the challenge to his authority and competence. It was different in the English legal system he loved so much. Once when he was in England for a judicial meeting, everyone was talking and the senior English judge had just lifted his finger. The others had stopped in midsentence. The senior judge did not even have to speak to obtain silence. Unfortunately, the Chief Justice of the United States did not command the same respect.
But the Chief decided to fight back with a memo to the conference on the nature of his prerogatives as the designated author.
My effort to accommodate everyone by sending out "first drafts" is not working out.
I do not contemplate sending out any more material until it is
ready.
This will take longer than I had anticipated and you should each make plans on an assumption that no more material will be circulated for at least one week.
The Chief had been getting support, meanwhile, from an unexpected quarter. Douglas had been shuttling down to one of the telephones near Goose Prairie and calling the Chief with words of encouragement.
Yes, it was a Chief Justice opinion, Douglas had reassured Burger. The sections looked good. Douglas requested that Burger keep him informed and let him see the rough of the privilege section as soon as possible.
The Chief knew that Douglas's zeal in the tapes case somehow went beyond the legal issues. Nevertheless he appreciated Douglas's support. To ensure that his reclusive colleague in Goose Prairie would stay with him, he immediately dispatched a copy of his privilege section. Then he drafted another memo to the conference.
In my earlier memo today on our "timetable" I should have mentioned that at Bill Douglas's urgent request I mailed him a very rough draft of what I had worked up on the weekend on the "privilege" section. On reviewing it Sunday I came to the conclusion that while it may be useful to Bill at his distance to show my "direction" it was far too rough and incomplete for circulation and I will not circulate it generally. Regards, WEB.
The Chief knew that as the senior Associate Justice and the symbolic liberal, Douglas had great influence. More importantly, if the end product suited him, Douglas would not quibble over a paragraph or a word. A tacit acceptance of the draft by Douglas could turn the tide.
At the "conspiracy luncheon," Stewart had offered to redraft Powell's section on executive privilege, and now he got down to work. Altering Powell's deferential language, Stewart wrote that confidentiality in government was important, but he stated firmly that in every case, the Courts, never the executive, would make a final determination. Stewart chose a simpler argument than Powell. He adapted and enlarged upon the argument already made by Douglas, that due process would be denied everyone—prosecutors, defendants, witnesses, the public at large—if all the evidence was not turned over.
More importantly, on the sticky issue of the Rule
17
(c) standard, Stewart lowered Powell's standard from "compelling justification" to a milder "sufficient justification." That might safely allow him to walk the line between Powell and White.
On Tuesday, July
16,
Stewart privately sent his redraft to Powell, and Powell said it was acceptable. Stewart concluded that Powell had given up on the higher standard. Buttressed by Powell's support, Stewart sent copies to White, Brennan and Marshall. Those three then met to review Stewart's section and passed word to Stewart that it was acceptable. White and Powell had finally found a point of agreement, Stewart hoped.
As best he could tell, Stewart now had five votes for the section. Rather than further aggravate the Chief, Stewart decided not to send his own substitute draft to the Chief but to wait for the Chief's circulation on the privilege section.
Of all the Justices, Stewart was at once the most desirous of confrontation and the most committed to compromise. The tension between the two impulses at times seemed to exhilarate him.
The Chief spent the day grinding out his privilege section. The work went faster than he had expected. He tried to borrow generously from some of the ideas provided by
Powell, Douglas, and even Brennan, and the pieces fell together nicely. The Chief found Brennan's suggestions surprisingly deferential to the President. Brennan's "national defense, foreign affairs and internal security" exception to what would be initially submitted to Sirica's court was extraordinarily broad. It certainly presented the White House with many opportunities to withhold evidence from Sirica.
Since the White House had not claimed any such exemptions, the Chief did not want to invite them. "Absent a claim of need-to protect military, diplomatic or sensitive national-security secrets," the Chief wrote, "the White House's invocation of executive privilege hardly suffers in this case from an
in camera
inspection of the subpoenaed tapes."
By early evening, the Chief had what he felt was
a
satisfactory draft. He resolved to make an appeal to perhaps the most obviously conspiratorial of the Justices. He reached Brennan by phone at home.
Burger told Brennan he had finished
a
draft of the privilege section and would like him to have
a
copy before Brennan left for Nantucket for the weekend.
Brennan said he would be delighted to see it.
Telling him that things were moving faster than he had indicated the day before, the Chief hinted that the opinion could come down shortly after the weekend—perhaps on Monday, July
22.
That indeed would be good, Brennan said. The Chief was obviously in an excellent mood. They fell into an animated discussion of non-Watergate matters.
Early the next morning, Wednesday, July
17,
Brennan received his copy of the executive-privilege section. On initial reading, Brennan thought it was in better shape than the Chief's other sections. There were, however, some problems. First, the Chief was not emphatic in meeting the White House challenge by restating the ultimate responsibility of the courts to decide all such constitutional disputes. Second, the Chief talked of the "competing demands" of the executive and judicial branches, which had to be weighed in order to determine which would prevail. That determination turned on the extent to which each branch's "core functions" were involved. Such functions for the executive included war powers, the conduct of foreign relations, and the veto power. On the other hand, one of the "core functions" of the judiciary was ensuring that all evidence was available for a criminal trial.
The Chief then reasoned that in the tapes case a "core function" of the judiciary was clearly involved, whereas none was for the President. Under that reasoning the President lost. The Chief had also sidestepped Powell's demand for a higher standard by simply saying that the Special Prosecutor had shown "a sufficiently compelling need" for the material to be inspected by Judge Sirica.
Brennan assumed that the core functions formulation— a potentially vague and expandable creation—could pro
bably be rendered harmless by li
miting its meaning to foreign affairs, military or state secrets. It was doubtful, he felt, that the Chief would balk at that.
Though it was rough, Brennan felt that the draft was adequate and immediately told the Chief so. He recommended that Burger circulate it
Encouraged by this response, Burger sent the section around. A full opinion draft he told the others, would be ready by the end of the week.
The other Justices were not happy with the Chief
’
s privilege section. Stewart didn't trust it. He particularly did not like the core functions analysis. Even if more narrowly defined than in the Chief's draft, the term implied that a President had an absolute constitutional prerogative over his core functions. These "core" functions were very loosely outlined as the Chief named them—war, foreign relations, the veto power or, as the Chief had written, whatever was implied when the President was "performing duties at the very core of his constitutional role."
That was precisely Nixon's claim. He was fighting the subpoena on the basis of just such broad definitions. Language like that could arm Nixon's defense. There were dangerous sentences in the Chief's draft, such as:
". . . The courts must follow standards and implement procedures that will adequately protect the undoubted need
to preserve the legitimate con
fidentiality of that office."
O
r
"The courts have shown the utmost deference to presidential acts in the performance of Article II core functions."
or
"In the present case, however, the reason for the claim is somewhat removed from the central or core functions of the Chief Executive."
Not only did the analysis present problems for the current case—in some areas almost inviting a Nixon rebuttal —but a phrase like "core functions" could invite future chaos. The Court could find itself with years of work defining what was and wasn't a core function. The expression could exclude the Court from intervening in future disputes.
Powell agreed with Stewart. When they met with Brennan and Marshall, Stewart made his case, and Powell supported him. Marshall agreed.
Brennan, however, disagreed. The term could be rendered harmless by narrowing the definition. It was more important to keep the Chief on track.
No, Stewart argued. The Chief had moved into dangerous territory.
Brennan saw the others were flatly opposed and was embarrassed by his initial enthusiasm. They might well be right about core functions. Brennan, holding out for a compromise, said he was sure the Chief was not wedded to the term or the analysis.
The four decided to nibble at the Chiefs privilege section a subsection at a time. Stewart should circulate only the portions of his substitute section that might be added to the Chiefs, particularly the
Marbury
v.
Madison
restatement—the portion that forthrightly and definitively ruled that the courts had absolute authority to resolve the dispute. They would wait until the Chief circulated his full opinion, all sections from facts to privilege, to attack the concept of
core functions.
Before leaving for Nantucket on Thursday, July
18,
Brennan dictated a memo to Burger.
D
ear
C
hief,
This will formally confirm that your "working draft" circulated July
17,
of "The Claim of Executive Privilege" reflects for me a generally satisfactory approach
...
I do however agree with Potter, that St. Clair's argument, that the President alone has the power to decide the question of privilege, must be dealt with. Potter's suggested way is satisfactory to me.
Brennan closed by saying that he expected to have some more suggestions and would pass them on.
Marshall's memo to the Chief was even fainter in its praise of Burger's draft "I agree with its basic structure, and believe that it provides a good starting point with which we can work." But, he added, he agreed with Stewart that the White House position that the President should ultimately decide what is privileged should be "firmly and unequivocally" rejected.
Marshall also objected to two footnotes. Number five in the Chief's privilege draft said that the Constitution does not mention executive privilege. "There is similarly nothing said in the Constitution authorizing the very subpoena at issue in this case," Marshall said. This footnote should be dropped, Marshall said, adding that he saw "no reason to raise any doubt on this score or to discuss the question at all."
Footnote number seven distressed Marshall even more. Leaving open the question of specific claims of privilege on foreign policy or national security matters, the Chief had written that "deference" was also due "discussion of highly sensitive domestic policies, for example, devaluation of the currency, imposition or lifting of wage and price controls . . ." These discussions were ". . . entitled to a very high order of privilege, since the economic consequences of disclosure of such discussions could well be as pervasive and momentous as the disclosure of military secrets."
Marshall thought that was outrageous. Conspiracies, such as the alleged administration deal to raise milk prices in return for campaign contributions, might be reasoned privileged.