The Brethren

by Bob Woodward

  Well, that was not quite right, Jaworski replied, because the President had argued that the Special Prosecutor had no standing to sue him. In the President's view, the matter was an internal Executive Branch dispute, and not something that lay within the Court's power to solve.

  Nonetheless, Stewart said, the President is making that argument as a matter of constitutional law. ". . . His position is that he is the sole judge. And he's asking this Court to agree with that proposition, as a matter of constitutional law."

  Jaworski was still not ready to agree. "What I'm saying is, if he is the sole judge . . . and if he is in error in his interpretation, then he goes on being in error in his interpretation," he insisted.

  "Then this Court will tell him so," Stewart said. "That's what this case is about, isn't it?"

  The Chief chimed in. He, too, was very concerned about the Court's authority. "[The President] is submitting himself to the judicial process in the same sense that you are, is that not so, Mr. Jaworski?"

  Jaworski was not sure. The President had insisted that "he and he alone is the proper one to interpret the Constitution."

  ". . . Each of you is submitting for a decision to this Court," the Chief said.

  "That may be, sir," Jaworski said, but he had personal reservations about Nixon's willingness to abide by the Court's decision. Like the Justices, he had read the President's elusive statements about complying with a Court decision.

  Jaworski came back to the grand jury question in spite of the attempts by Brennan and Stewart to warn him off.

  White interrupted testily. "I thought we had put that issue aside. I just don't understand what the relevance of that is to this case," he said.

  Jaworski fumbled, pointing out that St. Clair had raised one side of the question.

  "I am just wondering, Mr. Jaworski, why you aren't content... it is irrelevant. .."

  As Jaworski stumbled further down the path, his staff sat grimacing. Their boss had apparently forgotten the first rule of oral advocacy—get a sense of the Court and go where it wants to go. Be helpful, don't argue.

  Stewart finally cut him off. It was now St. Clair's turn.

  The Justices had joked that in order to emphasize his claim that the prosecutor had no standing, St. Clair might not show up for oral argument. St. Clair opened by arguing that the Court's decision and the House impeachment proceedings were intimately connected.

  "Well, those are none of our problems, are they?" asked Douglas, who three days before had suggested in his draft opinion that the two might overlap. That morning, Douglas had dropped the argument and circulated a redraft of his opinion without it.

  St. Clair insisted that the two were related. The Court was embroiled in impeachment politics, he said. The tapes which the Special Prosecutor wanted, if they were turned over, would be passed on to the House impeachment inquiry, St. Clair insisted. "So this fusion is going to continue," he added. "No one could stand here and argue with any candor that a decision of this Court would have no impact whatsoever on the pending inquiry before the House of Representatives concerning the impeachment of the President."

  Stewart suggested a hypothetical murder to which the President was one of the few eyewitnesses. Would he be unavailable to the courts because of an impeachment inquiry?

  This was different, St. Clair responded. The subject matter of the two Watergate inquiries was identical. He insisted repeatedly that the Court was entering into impeachment questions. It was not the Special Prosecutor who would ultimately use the tapes, but the House impeachment inquiry. That made it a political question.

  Marshall cut in. "So that the House can get [the tapes], the President can get them, and the only people I know that cannot get them is the Courts," Marshall said, drawing appreciative laughs from the courtroom.

  "You have not convinced me that we're drawn into it by deciding this case," Brennan said.

  "The impact of a decision in this case undeniably, Mr. Justice Brennan, in my view, cannot have—it will not be overlooked," St. Clair said.

  "Any number of decisions of this Court has ripples," Brennan responded.

  Burger re-entered the debate. "Mr. St. Clair, you left me in a little bit of doubt about this mechanical problem. I think perhaps we diverted you from it," the Chief said, raising an issue that St. Clair had mentioned in passing. "Are you suggesting that on a given tape, which is a reel type of thing, having an hour or more of material or maybe several hours—"

  "Two or three days," St. Clair helped.

  "Two or three days— Oh, I see," the Chief said. He had spoken many times with the President at the White House or on the phone. He was surely on some of these additional tapes. "That the first three hours might be the material which has already been transcribed and released," the Chief continued, "the next three or four hours might be a conference with the Joint Chiefs of Staff or the Chairman of the Atomic Energy Commission . . . matters totally irrelevant but confidential . . . and you want some mechanism set up so that these things can be screened out?"

  St. Clair indicated that would be his position if he lost.

  Marshall decided this would be a good time to make an effort at establishing the Court's authority. When presented with the subpoena, he asked facetiously, "you just ignored it, didn't you?"

  "No sir, we did not," St. Clair responded. "We filed a motion to quash it."

  "The difference between ignoring and filing a motion to quash is what?" Marshall closed the trap.

  "Well, if your Honor please, we are submitting the matter—"

  "You are submitting the matter to this Court" Marshall finished St. Clair's sentence for him.

  'To this Court under a special showing on behalf of the President . . ." St. Clair said, again trying to finish the sentence.

  "You're still leaving it up to this Court to decide it," Marshall tried to slam the door shut.

  "Well, yes," St. Clair admitted, but added in qualification, "in a sense."

  "Well, in what sense?" Marshall asked impatiently. St. Clair hedged. Marshall badgered him.

  St. Clair acknowledged they were submitting a legal question to the Court. "This is being submitted to this Court for its guidance and judgment with respect to the law," St. Clair said, gripping the lectern. "The President, on the other hand, has his obligations under the Constitution."

  The President's lawyer was suggesting that the Court's opinion would be advisory, not binding on his client. The President would be looking for a loophole, some convenient language in the opinion that would suit him. Then he would decide how to apply its decision. St. Clair was saying that the Court could decide the law, but that the President would apply it Nixon was telling the Court that it could tell him what criteria to use in his decision, but it could not decide for him whether to turn over the tapes.

  "Are you submitting it to this Court for this Court's decision?" Marshall demanded to know.

  "As to what the law is, yes," St Clair said.

  The challenge to the Court's authority was now clear.

  White took his turn. 'Would you automatically say every conversation about Watergate is in the course of the performance of the duties of the President of the United States?"

  "I would think it would be, yes sir," St Clair answered.

  "Why is that, Mr. St Clair?" White asked, letting out a little more rope.

  The Watergate conversations were part of Nixon's role as President, insuring that the allegations were fully investigated and prosecuted, St. Clair said.

  White let the answer hang in the air. He and the others had read the transcripts of the early tapes. Nixon had not acted as an investigator or a prosecutor.

  Powell was still concerned that the President be given an extra measure of protection from harassment by subpoena. "Mr. St. Clair, may I get back to what seems rather fundamental to me," he said, leaning forward. "Let us assume that it had been established that the conversations we're talking about here today did involve a criminal conspiracy, would you still
be asserting an absolute privilege?"

  "Yes, quite clearly," St. Clair declared.

  "What public interest is there in preserving secrecy with respect to a criminal conspiracy?" Powell inquired.

  "The answer, sir, is that a criminal conspiracy is criminal only after it's proven to be criminal," St Clair responded, smiling.

  "But my—," Powell tried to begin.

  "And we're not at that point yet," St. Clair added.

  "My question was based on the assumption that it had been established that the conversation did relate to a criminal conspiracy," Powell insisted.

  St. Clair insisted that the claim of privilege remained absolute since no one had been found guilty. The tentative allegation that there was a conspiracy was not enough to subpoena the evidence.

  Powell listened to all this in disbelief. Reduced to its essentials, St. Clair's argument was that the President was immune from criminal investigation. The only remedy that would reach him was impeachment Powell determined more than ever to vote against this seemingly unlimited assertion of power.

  Marshall viewed St. Clair's absolutist position as absurd. He posed a hypothetical question involving an "about-to-be-appointed" judge who pays off the President

  "How are you going to impeach him if you don't know about it?" Marshall asked.

  "Well, if you know about it, then you can state the case," St. Clair offered logically. "If you don't know about it you don't have it," he said.

  "So there you are," Marshall began, warming to the task. "You're on the prongs of a dilemma, huh?"

  "No, I don't think so," St. Clair responded.

  "If you know the President is doing something wrong, you can impeach him," Marshall said, gloating, his eyebrows arching. "But if the only way you can find out is this way [a subpoena], you can't impeach him, so you don't impeach him. . . . You lose me some place along there."

  The courtroom filled with laughter.

  ". . . Very few things forever are hidden," St. Clair said lamely. "This is not a case where there is no information. If anything, there is more than enough."

  Jaworski's counsel, Philip Lacovara, stepped up to finish the Special Prosecutor's argument.

  The Chief returned to the subject that seemed to concern him the most. "Mr. Lacovara, I wanted to get to this mechanical question that Mr. St Clair brought up," he said. Burger launched into one of the day's longest questions about how Judge Sirica could review the relevant Watergate conversations without listening to other presidential meetings.

  Lacovara assured him there was a mechanism to protect these other conversations.

  "Then," the Chief asked, ". . . there is, you suggest, no disagreement between you and Mr. St. Clair?"

  None, Lacovara assured him. And he closed carefully.

  ". . . We submit that this Court should fully, explicitly, and decisively," Lacovara paused, "and definitively uphold Judge Sirica's decision."

  St. Clair provided a short rebuttal, and the Chief ended the session at 1104. "The case is submitted," he said.

  In the robing room afterward, the consensus was that the arguments for both sides had been generally uninspired. There was a good deal of head shaking and grumbling about St. Clair's absolutist position—a position that had not been made fully clear in his brief. It seemed more extraordinary now than ever.

  The next morning the eight Justices met in conference to vote on the case. Everyone was well prepared. The memos from the chambers of Douglas, Powell, Brennan and Stewart had defined the scope of the case. Dealing first with the technical questions, they all agreed that the Sirica ruling on the subpoena was of sufficient constitutional significance to be appealed to the Supreme Court. It was properly before them.

  The first disagreement arose when Powell held firm to the position he had expressed in his memo on Rule 17(c), that there was a need for a higher standard of evidence for Presidents than for other people.

  White disagreed completely. The Court should ensure that the President was treated like any citizen, no more, no less. There was no suggestion in the Constitution or elsewhere that a President was entitled to any higher standard. Moreover, if some such higher standard—whether it be "necessity," "compelling need," or whatever—were established, White did not believe the Special Prosecutor had met it. He had met only the normal standard. Thus, White said, he would be forced to dissent on that point if the others supported Powell's position.

  The discussion was sharp and heated. The question of the standard was only one possible sticking point. The difficult questions revolving around the grand jury's naming of the President as an unindicted co-conspirator should be sidestepped, they all agreed.

  On the central question of executive privilege, the Justices agreed that the judiciary's specific need for sixty-four particular tapes for a criminal trial outweighed the President's generalized claim of confidentiality. At the same time, they all acknowledged that some form of executive privilege existed, at least implicitly.

  Brennan saw the consensus immediately. The President did not have a single vote. Even more encouraging, there was reason to believe that the gaps among the Justices could be bridged. A single opinion seemed within reach. That would be the greatest deterrent to a defiant President. Brennan decided to float again his suggestion of a single opinion, authored by, and signed by, all eight. Someone had to steer a middle ground between Powell and White— the emerging antagonists on the question of standards for Presidents and other citizens. The Court could erupt into a confusing mixture of opinions, concurrences and dissents. Without reconciliation, Richard Nixon might find a loophole. The Chief was not capable of preventing that, Brennan believed.

  Brennan spoke up. The Nixon challenge had to be met in the strongest way possible. An eight-signature opinion would do it. With the memos now in circulation, they could bang out an opinion in a week of concentrated effort. Each Justice might be given a section to work on, and they could convene in a few days to measure progress. Brennan reminded them of the impact of nine signatures on the Little Rock school opinion. It had been one of the Court's finest moments. The country would benefit from such a show of strength now.

  Having laid the groundwork carefully with each Justice, Brennan sat back anticipating quick seconds. Instead there was an uneasy silence, not a word of support from anyone. Brennan felt betrayed, figuring he was like one of the Watergate figures, left to twist slowly in the wind.

  The Chief broke the silence. He would take the opinion.

  The decision was similar to the Court's famous Brown school desegregation opinion; it required the Chief Justice. Burger hoped that he would be able to have it out in a week, perhaps by the next Monday. Brennan made a final appeal for a joint opinion. The Chief replied that he would consider the assignment decision further and give his final decision tomorrow. But Brennan knew the course was set

  The clerks turned to humor to kill time as they waited to learn what was going on. One of Powell's clerks, disturbed by his boss's memo the day before, drafted a phony opinion and gave it very limited circulation to the clerks' dining room "We believe the principle of executive privilege is important. . . . This case is different from all others that will come before the Court. The Court should be guided by a solicitous concern for the effective discharge of the President's duties and the dignity of his high office.

  "However, we're deciding this case differently, because Nixon is a crook and somebody ought to throw the son of a bitch in jail."

  Marshall laughed heartily when his clerks showed him a copy. The copies were destroyed for fear that one might fall into the wrong hands.

  Marshall was afraid a single opinion would never attract all eight votes. The Justices were agreed on the result, but not on the reasoning. The discussion in conference had been odd. Conversation at conference normally focused on a case in light of the Constitution. This discussion had centered more on the Court's role and power than on the case.

  The Chief got right to work with two of his clerk
s. This would be his most historic opinion, perhaps the Court's most momentous opinion. This was an opinion that would establish the Chief's independence from Richard Nixon. And, like Earl Warren before him, he would pull together and hold a unanimous Court on an extraordinarily divisive issue.

  The Court could, to his mind, deal with no more sensitive a topic than the subtle relationships among the three branches of government. He had a passionate interest in the Aaron Burr case, the first case of a subpoena being issued to a President—in that instance, Thomas Jefferson.

  A still life he had painted of a two-volume study written about the Burr case hung above the desk in his working office. He had tried his hand at a dramatic play about the case, but never finished it.