Stewart also made only offhand references to the twenty-year-old cases the Chief had cited. Burger wanted those back in. He then switched around and condensed some of the next four Stewart paragraphs—the central basis of Stewart's argument that due process and the fair administration of justice required the President's relevant evidence.
Burger did not find it particularly painful to make the alterations. Stewart's draft didn't really say anything he would not have written himself. The core functions approach was just one of several possible lines of reasoning. Also, he had improved on Stewart's prose.
Late in the day, Burger had a rough of this amalgamation typed, and took it to Douglas, who now seemed the most reasonable of his colleagues. Douglas was happy with the new section and told the Chief it would win quick approval from the others.
Meanwhile Brennan had gone to dinner and returned to the Court. Having initially expressed fairly strong support for the Chief
’
s privilege section, including the analysis of core functions, he felt guilty now. Perhaps the Chief didn't understand that Stewart's version was a necessary improvement
.
With his clerk, Brennan had begun writing a detailed letter to the Chief spelling out why Stewart's constitutionally based approach was better.
Fortified by Douglas's support, the Chief walked over to Brennan's chambers about
9
p.m
. Burger was in an effusive mood. The last problem surely was solved. He told Brennan he had revised the "C" section and had just shown it to Douglas, who liked it.
Brennan was alarmed. The first vote for a draft
was often the most important ps
y
c
hologically. Douglas's vote could make the other six appear to be the holdouts.
The effort of harmonizing the two versions, the Chief said, had been very difficult. Stewart's draft proposal could not be accepted as a substitute because it was so poorly written.
This remark struck Brennan as almost comic, but he decided that the time was ripe to step forward. He preferred Stewart's version, he said, and had just drafted a note explaining why. The core functions argument would not do.
Burger was surprised.
That
has been dropped in the new harmonized version, he said.
What was
that!
Brennan asked incredulously.
Core functions
was dumped, Burger replied.
But of course, Brennan said,
that
was the dispute.
That,
Burger said, was nothing more than "the little word discrepancies" between the two versions.
Brennan was skeptical. He asked to see the latest revision.
Sure, Burger said. They returned to Burger's chambers to get a copy.
Brennan read it quickly. Though still in rough form, the new version made no mention whatsoever of core functions. The whole notion had been jettisoned. Even more intriguing, Brennan thought he recognized whole sections, apparently verbatim, from Stewart's draft.
Though Burger's new version was not perfect, Brennan thought it was acceptable.
Brennan told the Chief he was delighted. If
this
is it, he would go along.
That is my compromise, the Chief said.
Brennan bid him a very pleasant goodnight and walked out. He reread the draft to make sure there were no hidden meanings, and he compared it carefully with Stewart's. He did not want to rush to accept something the others would oppose; it had been, after all, his initial encouragement of the Chief on the core functions argument that had slowed down the efforts to win concessions from Burger.
Brennan went to see Douglas. Was he right? It seemed like a capitulation by the Chief.
Douglas agreed.
Brennan was amazed. There were nine paragraphs in the section, some of them long. Only two, the introductory and least important paragraphs, were from the original. The other seven were from Stewart's draft. More than three quarters of the language was Stewart's. Most importantly, the basis was due process and not core functions. And all four footnotes in the section were Stewart's.
Brennan and Douglas decided that Brennan should phone the others that night Brennan called Stewart first to tell him of the victory.
Stewart was dubious.
Brennan read every word of that section of the modified draft to Stewart.
If
that
was it, Stewart agreed, the Chief had caved in. Of course, he would join.
Unable to contain his enthusiasm, Brennan phoned White, then Marshall and finally Blackmun. It was a victory both in principle and for their strategy. They all three agreed that they could join if it turned out to be final.
Brennan could not reach Powell by telephone, but he conveyed the outcome of the calls to Douglas, who phoned the Chief to suggest a conference the next day in order to ensure that they were all on track.
The Chief agreed. His coalition was building.
By 10
a.m
. the next morning, Tuesday, July
23,
the Chief had formally circulated his revised section C as seven double-spaced pages.
Brennan read over Burger's cover memo. "As I view this revised Section 'C,' it does not differ in substance from the original circulation." Incredible, Brennan thought. Was it a face-saving rationalization, or did the Chief not compre
hend what had been forced on hi
m?
Stewart went over the new draft line by line, word by word, to make sure that nothing had been slipped in from the night before. His own language had been clearer and more forceful, more eloquent, but enough language and basics were there. They had beaten the Chief this time.
The Chief followed with a memo saying there would be a conference at
1
:30
.
At
1
:25,
the conference bell rang. The tension was more pronounced than ever. Various pieces of the opinion draft had been okayed, but this was really their first look at the whole. It was now virtually impossible to trace the turns and twists the opinion had taken: ideas articulated by Douglas and Powell, modified by Brennan, quickly sketched by the Chief; a section substituted by White; a footnote dropped for Marshall; Blackmun's facts embroidered over the Chiefs; Stewart's constant tinkering and his ultimatum. Still hanging over them all was the possibility that the President of the United States might ignore them.
Since the printed draft was not yet ready, they sat down and made sure that each had a complete typed draft. They discussed a few minor changes. All seemed to agree that they could join the Chief's opinion.
The eight Justices were exhausted. Summer was slipping away. As they proceeded, the tensions were replaced by a slightly self-conscious note
-
taking, as if they were preparing for some further drafts.
Douglas, just back from Goose Prairie, suddenly spoke up from his end of the table. There were too many changes that he had not seen or approved. The opinion had drifted in too many directions. Many elements were not derived from their original conference discussion, or from the Chief's initial work. If all these changes were left in, Douglas said, he would file a separate opinion, a concurrence.
Brennan felt helpless. It had been settled, but now, as in hundreds of cases over the years, Douglas was going to do his own thing. Before Brennan could say anything, Powell said that he too was considering a separate opinion. Through many small subtle changes, the Chiefs opinion had shifted from the middle course he thought they had agreed upon. The notion of deference to presidential confidentiality, and the need for a higher standard to be applied for subpoenas to an incumbent president, had not been given real consideration in the opinion. They were ruling that any grand jury could subpoena material from the President in a criminal investigation. That was too sweeping. They could, and they should, rule more narrowly, fitting the circumstances to this unique case. Their job was, in part, to ensure that the presidency and the chief executive's decision making were protected from unwarranted intrusions. This opinion failed to do so.
The room erupted. The tentative unanimity that had prevailed only a few minutes before had evaporated.
White was sitting quietly for the moment, but Brennan thought he would probably be next. A separate opinion by Powell would likely touch him off and compel him to respond.
Brennan made an impassioned plea for unanimity. Everyone had problems with the opinion, he said. He too had problems. But it was a compromise document and it was essential both to the Court and to the nation. They might not be able to imagine what was at stake in this case, nor could they predict the consequences of their action. The Court must speak with one voice. He turned to Powell and Douglas. The opinion is fine, he pleaded. Please let it go, he beseeched them.
Brennan betrayed no hint of his real feelings—that, had the opinion been in the hands of a more capable man, this would never have happened. But he made as strong an entreaty as he had ever made at conference.
The Chief watched, happy to have Brennan's support for his opinion. From the Chiefs perspective, Powell was acting like a spoiled child.
As Powell listened to Brennan's appeal, he could see that, like the others, Brennan was overwrought and frantic. Brennan spoke with a tremor in his voice. He was not expressing an ordinary argument, but a conviction. Powell had a nearly inflexible rule: If at all possible, never let a separate opinion or concurrence jeopardize personal relations. Brennan might be right. The need for one voice possibly outweighed the need to precisely state and limit the opinion. Certainly it was not an outrageous opinion. The corporate product was bland enough; and it would not be an embarrassment. Powell might have fought Brennan alone, but Brennan had support. Most significantly he had the Chiefs.
Okay, Powell said, he would go along. He withdrew his threat graciously. He would accede to the majority.
Douglas also backed off, and the room itself seemed to cool.
Powell had another suggestion. The formal announcement should be delayed for at least five days. In that way the opinion would come down after the House Judiciary Committee was scheduled to begin its formal vote on impeachment. It was uncertain whether the Committee would vote to impeach, but Powell worried that the Court decision would hand the pro-Nixon Republicans a strong argument for delaying any vote until they had obtained the additional tapes. It would take months for the tapes to make their way from Judge Sirica's courtroom to the Committee members. Those opposed to impeaching could make the point that without the tapes they would be now authorized to have, the Committee would be acting prematurely in judging Nixon.
Brennan, Stewart and Douglas pounced hard on Powell. Many of the Court's decisions, perhaps all of them, had political repercussions of one kind or another. In the past they had always rejected suggestions that they delay cases for political reasons, they told Powell. The Court could not, it must not, ever get in the business of selecting which secondary effects it preferred and adjust its timetable to suit them.
Brennan was astonished that Powell could express such a political motive, even
though it seemed contrary to th
e interests of the man who had appointed him. Brennan actually believed that no matter what the Judiciary Committee did, delaying the decision would play into Nixon's strategy of delay.
Powell's suggestion was dropped as quickly as it had come up. There was nothing left to debate except a few technical matters. Since they had not decided the grand jury question—whether an incumbent President could be named an unindicted co
-
conspirator—they would dismiss that issue in a footnote, as one improvidently granted— that is, "DIGGED."
Still the conference dragged on. The case was so important that the Justices kept going over the same ground, repeating themselves. It could not be as simple as it now seemed. They finally adjourned until the Chiefs printed opinion was ready.
It came around to all the chambers at
5:30
p.m.
Stewart checked to make sure that all his changes had been retained. Stylistic and other minor changes were phoned in to the Chief. Another conference was not needed.
The Chief took the final vote. It was
8 to
0
—
unanimous for his opinion.
Burger ordered a press release saying only that the Court would convene the next morning at some time between
10
and
11
a.m.
That evening Douglas decided to have a get-acquainted meeting with the new clerks he had hired for the next term.