by Bob Woodward
Blackmun was a possible cert vote. He had come a long way from his fawning alliance with the Chief. As his reservations about Burger grew, Blackmun had begun to draw his own conclusions about events outside the Court. It was difficult to tell where Powell stood. The smallest of clues would have to suffice. During the term he had dropped the prefix "President" and now generally referred only to "Nixon."
Rehnquist, though clearly troubled, was the most likely to support the President on principle. He had drafted the President's original position on executive privilege when he was at the Justice Department. And Rehnquist was against Justices disqualifying themselves unnecessarily from major cases, particularly cases in which the vote was likely to be close. But Rehnquist had worked closely with John Mitchell and John Ehrlichman. They were all under indictment, and Richard Kleindienst, Mitchell's successor, had resigned at the same time as Haldeman and Ehrlichman. Kleindienst was one of Rehnquist's closest friends in Washington.
On Tuesday, May 28, Rehnquist faced the inevitable. He could not sit with his colleagues. He would, however, announce only that he had disqualified himself, without offering a reason.
Brennan worried that the Court would not take the case on an expedited basis before adjourning for the summer. The White House had the strongest force of all going for it—the vast history of judicial inertia. Burger, Blackmun and Harlan had dissented in the Pentagon Papers case, all objecting to the haste with which the case had been propelled through the courts.
This was precisely the argument the White House made in its brief opposing the expedited hearing. "Attempts in the past by the Court to make a hurried disposition of an important case arising in the dying days of a term have not been among the proudest chapters in the history of the Court," the brief read. The Pentagon Papers case "is but the most recent example." The brief cited Burger's dissent in the case.
In Brennan's view, this argument was an insult to the Court. The White House was conspicuously wooing the Chief. The claim that expediting the case would lead to a hasty, ill-conceived decision was absurd, a phantom issue, in Brennan's words, "a bugaboo." Brennan felt that the Court should extend its term if necessary. His vacation in Nantucket could be postponed. Since most of the term's cases were already completed, the Court would have the rare opportunity to give the case its undivided attention. But the argument against expediting would probably persuade Powell who, modeling himself after Harlan, would object to the undue haste. The clerks were betting even money on whether the Court would go along with Jaworski.
The conference convened on May 31, one week after the Special Prosecutor's filing. The Chief brought a letter that had arrived that morning. Senate Majority Leader Mike Mansfield urged the Court to forgo "its four month recess ... so that there will be no unconscionable delays in the consideration of Watergate or related matters."
The Chief's disdain was clear. The letter exhibited crude ignorance of the Court's work load during recess. Burger had never liked Mansfield. He was anti-courts, anti-lawyer, anti-judge, always leading the resistance to judicial pay raises.
Stewart was nearly as offended as the Chief. He was defensive about his summer-long vacation at Bowen Brook Farm in New Hampshire. He emphasized to callers there that he was working hard on cert petitions and other Court business. The other members of the conference all resented the occasional portrayals of them as part-time judges, racing off each summer to their fishing ponds and hammocks. The conference decided to send Mansfield a sharp, but tactfully worded, reply.
At 12:10 p.m., Rehnquist left the room, and they turned to the tapes case itself. The Justices agreed with two of the Chief's suggested ground rules. They would not tell their clerks about the discussion and to prevent leaks they would announce their decision immediately.
The Chief did not have to spend a long time presenting the case. They were all familiar with the facts. Burger said that he had problems with expediting the case. All that was at stake was a possible delay of the Watergate cover-up trial. That was hardly a matter of national emergency. But Burger hedged. He was not ready to vote either way.
Douglas spoke next. He did not hide his contempt for Nixon's position. Everyone, including a President, had to turn over evidence. The defendants in the cover-up trial would be entitled to all possible evidence. The Court could decide the issue quickly. He voted to expedite.
Brennan thought the President's claim of absolute "executive privilege" lacked even the slightest merit. The cover-up trial might survive the delay if the hearing was not expedited, but this called for decisive action. The Court had an obligation. He voted to expedite.
Stewart fidgeted. He too thought the President had a weak argument, and he worried how it might appear if the Court denied the petition. There was speculation in the 'press that the Court would not decide such a question because it was a classic political dispute between two branches of government. The Court's authority was now an issue. The President had made it one. This business about obeying only a "definitive" opinion was a challenge. Court rulings had to be obeyed, definitive or not. Compliance was not a matter for a President to decide. In any event, Nixon's challenge made the case a paramount legal issue. Now. It had to be decided. Stewart voted to expedite.
White disagreed. A few months' delay in the cover-up trial would not set back the cause of justice. Despite the other considerations, the only question was whether to grant an expedited hearing and bypass the Court of Appeals. If the Court's authority was being challenged, that should be taken in stride. There should be no hasty over-reaction. White said he was inclined to deny the petition for now, let the case mature and come to the Court naturally.
Marshall cast a fourth vote to expedite. But it took five votes to grant the immediate hearing.
Blackmun wanted to be sure the Court did not act recklessly. Watergate might be a national emergency, but speeding the cover-up trial was not sufficient cause to depart from normal practice. He would vote to wait.
Powell thus emerged as the critical vote either way. He thought Watergate was a national emergency; special steps were justified. He was ready to hear the case now.
That made five votes to take the case immediately. Burger then said he too would go along, making the final vote 6 to 2. Thirty minutes later, a formal order expediting the case was signed by the Chief and released to the press. As usual, the votes on a decision to grant cert or expedite the case were not listed.
Though confident of the strength of their legal arguments, Jaworski and his staff were concerned that the Court might still rule in favor of the President. The Special Prosecutor's office needed to buttress its position with something more than legal niceties. Jaworksi wanted the Court to reach the same conclusions that he and the grand jury had drawn: Richard Nixon was a crook. If he could get the Court to share that simple conclusion, the other arguments would follow naturally in turn, and they would get their tapes.
The most persuasive evidence in their possession was the first nine tapes that the President had turned over following the Saturday Night Massacre and that had been sealed by Judge Sirica. The grand jury had been strongly influenced by the tapes and other material sealed in that record. It had led them to the conclusion that there was only one reason the President had withheld the evidence, that he was protecting himself because he was guilty.
The Special Prosecutor's staff felt they had to draw the Justices' direct and personal attention to the sealed record. They knew, however, that it would not be easy. There were a half dozen former clerks on the Special Prosecutor's staff, and they knew very well that the Justices did not personally review long and detailed records, even in major cases. In an effort to pique their interest, Jaworski dropped an intentionally intriguing question at the Court's feet when he forwarded the record from Judge Sirica's court. Should his office print additional copies of the "sealed" portion for the public record?
The original of the record was locked in Court Clerk Michael Rodak's vault on Burger's instructions. Brennan at
once asked to see it. The reason it had been sealed was immediately obvious. The grand jury which had indicted the seven former high-ranking Nixon aides had also secretly named several unindicted co-conspirators. One was Richard Nixon himself.
Brennan immediately grasped Jaworksi's message to the Justices. Jaworski's threshold problem in the case was to establish the relevance of the subpoenaed tapes. Did the taped conversations pertain to the charges against Nixon's former aides who would go on trial? In Brennan's view, the grand jury's finding against Nixon bolstered Jaworski's argument dramatically. Because the grand jury had found Nixon a full member of the conspiracy, the conversations were clearly relevant. Conversations that were part of a criminal conspiracy would not be protected by a claim of executive privilege. The Special Prosecutor also gained an important technical advantage from the fact that Nixon had been named a co-conspirator. Hearsay statements of any alleged conspirator, whether indicted or unindicted, were admissible in trial. Therefore, Jaworski could get more tapes admitted into evidence.
The grand jury's action, however, did not remain secret for long. On June 6, the story broke in newspapers as the result of a leak from a defense attorney. Later that day, the White House filed a short cert petition asking the Court to determine whether a grand jury had the authority to name an incumbent President an unindicted co-conspirator.
The issue as posed by the White House was a potential nightmare for the Court, Brennan thought. A judgment by the Court on the legality of the President's status, and the power of the grand jury to charge him as an unindicted co-conspirator, would involve the Court in a direct judgment about Nixon's guilt or innocence, and that really was the impeachment issue. It was just the kind of political question the Court traditionally sought to avoid. But if they did not take the issue, the Court would appear biased against the President.
At conference the next Monday, June 10, the Justices decided to grant the White House petition, though some thought it was already before them, encompassed in the Special Prosecutor's petition that had been granted. They would just have to figure out how best to deal with it in the context of the whole case.
On Thursday, June 13, a story by Jack MacKenzie appeared on the editorial page of The Washington Post. "Evidence is accumulating, though it is fragmentary, that Chief Justice Warren E. Burger has skated close to the line between the branches of government." Citing material that had leaked during the Watergate disclosures, the story quoted two private letters that the Chief had sent to John Mitchell when he was Attorney General.
"The correspondence, by its tone and in its references to frequent conversations, confirms the impression long held in Washington that a confidential relationship developed early in the Nixon administration between Burger and Mitchell." The letters recommended people for judgeships or promotion to the court of appeals or even the Supreme Court.
The Chief was furious that his private letters had been leaked and at the implication that such recommendations were improper. The Attorney General had sought his opinion. Like anyone else, he had offered it. The article, coming at the moment the Court was considering the tapes case, struck the Chief as a heavy-handed attempt by the Post to embarrass him into disqualifying himself. It strengthened his will to stay in.
Brennan had finished all his opinions and dissents for the term and now turned his full attention to the tapes case. He read the sealed record carefully. In Brennan's opinion, the tapes showed that Nixon and his aides conspired to obstruct justice and therefore the conversations were not entitled to any constitutional claim of executive privilege.
Brennan kept abreast of developments in the other chambers. Tapping the grapevine, making his own soundings, he found that Nixon had virtually no support in any of the chambers. Some of the others had by now read the record. Nixon's position had eroded. Expecting a real dispute, Brennan found the opposite. It did not take him long to realize how close the Court was to unanimity. But he wanted not just unanimity of result, but unanimity of rationale. A "definitive" decision would require that all eight votes be solidly behind an articulate and persuasive opinion that disposed of each stated and unstated argument for not turning over the tapes.
Brennan knew that the other Justices had already invested a good deal of time in researching the case. Some were preparing memoranda or possible opinions. It would require a miracle for them all to sacrifice weeks of work and their egos for unanimity. Pride of authorship could be a barrier to a single, definitive opinion. But Brennan had a plan. Assuming his old play-maker role from the Warren Court days, Brennan retraced his clerks' route from chamber to chamber. His first call, as always, was to his old friend and the senior Justice, Douglas, the most likely of them all to scuttle a consensus with a cantankerous comment or an ill-conceived memo. Brennan found Douglas working in his chambers. Brennan reported his findings— sentiment was running strongly against Nixon in nearly all chambers. The Court had now to meet Nixon's challenge and issue a "definitive" opinion. This required spelling out the Court's reasoning in a single opinion.
Douglas agreed. A single opinion, of course, would be ideal.
There were problems, Brennan said. With an opinion prepared by a single justice—no matter who pulled what strings, who edited whose work, or who organized what portions of the opinion, even assuming the best and most deferential cooperation—the credit would go to a single author. The other seven might resent it. Brennan and Douglas knew they would be among the seven. There was no doubt who would assign this one—and to whom.
Brennan wondered aloud if it might be a good idea to have no single author but instead a single opinion, signed by all the Justices. It had been done in Coopery. Aaron, a 1958 Little Rock, Arkansas, desegregation enforcement ruling issued in the face of local resistance and Governor Orval Faubus's assertion that a Supreme Court decision was not the law of the land.
Douglas listened.
In this case, all eight of them could write and sign one opinion, Brennan suggested. Nixon had effectively laid down the same challenge that Faubus had. Eight signatures on one opinion would make defiance less likely, and it would prevent the Chief from snapping the opinion up. They would take equal responsibility and equal credit.
Douglas said he liked the idea.
Buoyed by Douglas's response, Brennan continued his rounds. Marshall, who, as a civil rights advocate, had argued Cooper v. Aaron twenty years before, was enthusiastic about Brennan's suggestion. Stewart saw the advantages immediately. Brennan optimistically concluded that Powell and Blackmun were also receptive. White, however, was skeptical, and he came right to the point. Entering into agreements before the specifics were sorted out was not his style. It was a pre-emptive strike against the Chief, bad business.
Undiscouraged, Brennan turned to the Chief himself. Burger's reaction was lukewarm, but he politely told Brennan that he would consider it. Brennan thought that if nothing else, he had all of them focused on unanimity. He figured he, at least, had the votes to force the issue with the Chief.
With the Justices apparently in agreement, Brennan set out to finish preparing for oral argument. There were no surprises in the briefs. The Special Prosecutor offered three reasons why the President should be compelled to give up his tapes; two were predictable. First, the public interest in disclosure of information relevant in a criminal prosecution outweighed Nixon's generalized claim of privilege. Second, the President had already waived his privilege two months before by releasing his edited versions of some of the subpoenaed conversations. The third argument was somewhat more problematic, since it rested on the grand jury's naming Nixon as an unindicted co-conspirator. The logic was simple enough. There was no executive privilege for conversations that were part of a criminal conspiracy. But Brennan was troubled. James St. Clair, the President's attorney, could too easily claim that an incumbent president could not be named an unindicted co-conspirator in the first place. And thus call into question the validity of the subpoena. Brennan wanted to avoid that thicket.
> Douglas had some answers. On July 5, three days before oral argument, he circulated a thirty-page printed draft opinion in memorandum form. The early entry allowed Douglas to help his colleagues focus on his issues.
In the past, however, Brennan had found Douglas's pre-argument memos less than helpful. They were often spun off in a single sitting and sometimes they unintentionally gave the other side effective ammunition. He approached Douglas's memo with some dread. It was satisfactory on several technical questions, but he found the central point inadequate. Rather than call attention to the Special Prosecutor's demonstrated need for the tapes in order to try his case against the defendants, Douglas focused on the needs of the defendants. He argued correctly that previous Court decisions had firmly established that criminal defendants were entitled to all potentially exculpatory information, and that since the defendants would be entitled to tapes that might exonerate one or all of them, so too was the prosecutor. But that was backward, as far as Brennan was concerned. The Court had to address the prosecutor's demand; it was his subpoena.