The Wars of Watergate (101 page)

St. Clair “lost” the Justices while Jaworski and Lacovara successfully persuaded them of the “very essence of judicial duty.” As Rehnquist had noted, the Justices did not live in a vacuum. Watergate had captured their attention, as it had that of the nation. The Justices and their clerks avidly followed the Senate hearings, and the daily revelations of Administration wrongdoing had been a frequent topic of conversation. As they absorbed the Jaworski and St. Clair briefs, a consensus emerged: the President might not enjoy an absolute privilege over the tapes. The Special Prosecutor’s arguments had provided the Court with compelling reasons to order Nixon to release the tapes in question. Since the Justices differed as to the scope of their ruling, St. Clair might perhaps have been able to exploit those differences and produce a divided opinion, rather than the “definitive” pronouncement that Nixon said he would obey. But St. Clair did not.
⁶

William Brennan, a Democrat appointed by Eisenhower, had operated as a major force within the Warren Court, infusing liberal values into jerry-built coalitions. Some of that influence had declined under Chief Justice Burger, but Brennan now sensed an opportunity to revitalize his old role. When he learned that Potter Stewart, Lewis Powell, and Harry Blackmun had decided to vote against the President, Brennan realized the importance of uniting the Court behind one opinion. He suggested a strategy similar to the Court’s 1958 response to southern attempts to resist court orders in desegregation cases. In
Cooper v. Aaron
, the Court had sharply rebuked the Arkansas governor, the Little Rock school board, and state courts, and rendered a single opinion signed by all the Justices.

Burger, however, assigned the opinion to himself. He was in a bind as he confronted a case affecting the future political well-being of the man who appointed him. White House gossip in 1973 and 1974 reported that he “had assured the President that the tapes would not be taken away.” Burger’s closeness to Nixon and the Administration was well known—a situation riddled with irony since the Senate had rejected Lyndon Johnson’s nomination of Abe Fortas to be Chief Justice, in part because of charges of cronyism. “The C.J. needs to talk with you
urgently
,” the President’s Appointments Secretary told Nixon in May 1968. John Ehrlichman recorded in 1971 that Burger had “met periodically” with the President, Mitchell, and himself “to discuss issues of the day and to join a general discussion of current events.” Just after the Court took the tapes case in 1974, the
Washington Post
disclosed correspondence between Burger and John Mitchell, indicating a close, “confidential” relationship between the Chief Justice and the Administration.
⁷

Burger’s decision to write the opinion raised numerous questions. Would he soften the decision? Did he not face a conflict, given his constitutional responsibility as Chief Justice to preside in an impeachment trial? Indeed, for some time Burger had had clerks secretly researching impeachment trials, so that he would be prepared for that contingency. Perhaps he saw the opportunity to establish his independence from the Administration. Whatever his motives, a great deal of ego was involved—as it undoubtedly was for those colleagues who wanted the opinion for themselves. After the Justices assembled in conference the morning after the oral arguments, they quickly revealed their unanimity of judgment; deciding the scope of the opinion proved far more difficult.

Later that day Brennan visited Earl Warren, hospitalized after a series of heart attacks, and told him about the developments. Warren had long disliked and distrusted Nixon, and had been dismayed as the President sniped at Warren Court decisions. Several hours after Brennan’s visit, Warren suffered a fatal heart attack. Brennan nonetheless was certain that his news had comforted his old comrade.

The Court’s opinion emerged after several weeks of editorial emendation and intensive lobbying among the Justices. Douglas, still resentful over the Nixon Administration’s support for his impeachment in 1970, pressed Burger whenever it appeared that he might be willing to assert a too-permissive view of presidential powers. The Chief Justice at one point had suggested that the federal rule allowing courts to subpoena evidence considered potentially relevant and admissible, must be applied more strictly for issuing a subpoena against the President. Douglas would have none of it: “My difficulty is that when the President is discussing crimes to be committed and/or crimes already committed with and/or by him or by his orders, he stands no higher than the Mafia with respect to those confidences.” Justice
Stewart eventually provided a draft of the key section that satisfactorily maneuvered between the constitutional rights of the various Watergate defendants and the President’s demands for privileged communications.

In the end, Brennan and the others certainly had the input they had wanted all along; meanwhile, Burger alone had his name on an opinion that united the Court: the President must surrender the tapes. The Court met for its final conference on July 23, and the Chief Justice issued a press release noting that it would convene the next morning. Leon Jaworski had some trepidations; he knew the decision was about to come down. He also knew that if the Court ruled in the President’s favor, he would have “to close shop.” St. Clair was in San Clemente with his client.
⁸

The next morning Alexander Haig called the President to report that he had the complete text of the Supreme Court’s decision. “Unanimous?” the President asked. “Unanimous. There’s no air in it at all.” “None at all?” the President persisted. “It’s as tight as a drum,” said Haig.

The Supreme Court had preoccupied the President for several weeks. St. Clair had tried to create an appearance of optimism; he had written to Jaworski on July 10 that he thought he had won the Court over. Fred Buzhardt had told a White House defense group, chaired by former FCC Chairman Dean Burch, that he thought the President would win unanimously. One of the group remembered thinking that he was “in a madhouse.”

Richard Nixon’s fatalistic sense came closer to understanding the truth. He knew he could not defy the Court; perhaps he could still devise a plan for deleting some material. But the June 23, 1972, tape “worried” him ceaselessly; it could not be “excerpted properly,” he confided to his diary. While St. Clair made the President’s case to the Judiciary Committee on July 18, Nixon admitted that his greatest concern was “the Supreme Court thing.” On July 23 he talked to Haig and Ziegler about resigning. That night, Nixon stayed up late, reviewing a speech draft on economic matters. At midnight, he wrote: “Lowest point in the presidency, and Supreme Court still to come.”
⁹

The immediate reaction to the Court’s ruling in
U.S. v. Nixon
focused on the Court’s order that the President surrender the tapes. Although Nixon had lost the battle, the “presidency” had survived the war. In fact, the misty concepts of executive privilege Nixon and St. Clair had battled to protect finally received the Supreme Court’s imprimatur. The Justices did not concede privilege enough to protect President Nixon in this case, but they did provide some precedent and underpinning for future claims. The Court’s opinion—a much fairer way to characterize it than to label it “Burger’s
opinion,” although the Chief Justice issued the decision—clearly revealed that the criminal implications in the case, and the pressing political confrontation it had produced, forced the outcome. The Court recognized presidential rights to some confidentiality, but it found in the present case “a sufficient preliminary showing that each of the subpoenaed tapes contains evidence admissible with respect to the offenses charged in the indictment.”
¹⁰

U.S. v. Nixon
is another milestone marking the unique power of the Supreme Court. The heart of the opinion confronted St. Clair’s contention that separation-of-powers doctrine precluded judicial review of presidential claims of privilege—that the case, in short, was nonjusticiable. Politely but firmly, the Court invoked John Marshall’s 170-year-old dictum that the judiciary’s duty was “to say what the law is.”

In its partial vindication of the President, the Court agreed that confidentiality had validity—it could be “constitutionally based”; indeed, the opinion noted, the framers of the Constitution had met in secret. But the Justices refused to concede that the President’s claims completely insulated him from the judicial process. They would grant him great deference in the exercise of executive privilege, but when his claim depended “solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.” The case did not present a military or national-security matter; hence the Justices contended that confidentiality would not be “significantly diminished” if the President produced the tapes for an
in camera
scrutiny by the judiciary.

In practice, separation of powers, the Court noted, depended greatly on “interdependence,” on what Justice Jackson had called in the Steel Seizure Case the need to ensure a “workable government.” Nixon’s “undifferentiated” claims for confidentiality would “upset the constitutional balance” needed for a “workable government” and, not incidentally, “gravely impair” the judiciary’s role under Article III of the Constitution.

The Court conceded a “presumptive privilege” of confidentiality to the President, but the Justices insisted on a balance with the commitment to the rule of law. Here the Court followed the path suggested by Justice Douglas and turned the case against the President into one on behalf of the claims of those criminally indicted—Mitchell, Haldeman, Ehrlichman, and the others: “The generalized assertion for privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

The “President’s men” had a victory of sorts—but one that cost the President dearly. There is irony, too, in the doctrinal result. Richard Nixon had pressed the cause of “executive privilege” as had none of his predecessors. While the Court denied his desired goal, it established the legitimacy of executive privilege. Insofar as confidentiality was necessary for the effective exercise of the President’s powers, the Court held, “it is Constitutionally
based.” Executive privilege was a myth no more. When Representative Richard Nixon had angrily denounced President Harry Truman for withholding information from Congress in the Hiss case a quarter-century earlier, he ironically anticipated the other side of the coin of
U.S. v. Nixon.
Truman’s action, Nixon said in 1948, “cannot stand from a Constitutional standpoint or on the basis of the merits,” for it would enable the President arbitrarily to deny Congress its lawful right to investigate wrongdoing in the executive branch.
¹¹

Typically, Nixon interpreted the decision as a setback for the “presidency,” something the Supreme Court had carefully attempted to ensure it was not. After he learned of the Court’s action, Nixon closeted himself with Haig and St. Clair. For how long and just how far the President considered resistance to the Court’s decision, remains somewhat cloudy. That morning, on July 24, St. Clair had been advised by his White House aides that the Court’s decision was imminent. Fifteen minutes later, the wire services carried the news, but Haig did not inform the President for another forty-five minutes. At noon, Ron Ziegler told reporters that St. Clair would make a statement later in the day. The President’s lawyer appeared before the press at 4:00
P.M.
, approximately eight hours after the Supreme Court’s decision. Nixon may have been in a Truman-analogy mode at the time, but if so he did not recognize that in 1952 Truman promptly dispatched a letter to his Secretary of Commerce ordering him to return the confiscated steel mills to the owners. The President complied less than thirty minutes after the Justices finished reading their opinions in the Steel Seizure Case.
¹²

Nixon had “counted on some air in the Court’s ruling”—at least, he thought, the Justices would give him a provision for exempting national-security materials from subpoena. What he had in mind, of course, was the June 23, 1972 discussion with Haldeman concerning the use of the CIA in the cover-up. The notion that such a conversation could be insulated with a national-security blanket indicated the depth of his desperation. The Court, in fact, had provided “air” for such material; Nixon’s problem now was that too many in the White House had knowledge of the contents of that particular tape.

Nixon discussed the option of “abiding” by the decision while continuing to withhold materials, thinking that there was some Jeffersonian precedent for doing so. He dropped the idea after some supporters warned that “full compliance was the only option.” St. Clair always thought that even now the President “didn’t have to turn over the tapes, maybe. I don’t know.” That “maybe” was predicated on St. Clair’s belief that the presidency and the judiciary were two equal and separate branches, a belief traceable to Jefferson and to Andrew Jackson’s notion of concurrent powers, under which
some actions of the judiciary were not necessarily binding on the executive. During oral arguments before the Supreme Court, when one of the Justices had approached the question of compliance, St. Clair had carefully avoided committing the President. Nixon “was good at dissembling,” St. Clair remembered.
¹³

The White House’s public-relations men had tried to anticipate strategy for reaction to the Supreme Court. “If” the President complied, an aide suggested, then he also should announce that the tapes at issue here would be the last evidence he would submit; clearly, his enemies wanted “not evidence but blood.” “If” the President did not comply, or if he “shape[d] his compliance differently than asked for,” then speed would be essential. He must keep his enemies “off guard.” But late in the day of the decision, the President had touch with the reality that prevailed in Washington. Eight Republican congressmen dispatched a telegram urging him to comply. “We have confidence that your affirmative response to this order will be consistent with the unparalleled significance of this development.” That afternoon, Nixon put on a brave front, trying to salvage some victory from the ashes. “I am gratified,” he said, “to note that the Court reaffirmed both the validity and the importance of the principle of executive privilege, the principle I had sought to maintain.”
¹⁴