by Bob Woodward
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.
White did not like what he had seen. The Chief was creating too much law to dispose of the case. He sat down at his typewriter and composed another message.
Dear Chief:
I am in the process of considering your draft on executive privilege.
I am reluctant to complicate a difficult task or to increase your labors, of which I am highly appreciative, but I submit the following comments for your consideration.
First, he said, "I do not object to Potter's suggestion ..." Then came the real message. There was too much discussion of executive privilege and a construction of newly defined power for the courts to decide these issues. Too little was being made of Rule 17(c). All citizens, Presidents among them, were obligated equally to cooperate in criminal trials. That was the heart of the case. In this case,
The courts are playing their neutral role of enforcing the law already provided them, either by rule, statute, or Constitution ... I doubt, therefore, that we need discover or fashion any inherent powers in the judiciary to overcome an executive privilege which is not expressly provided for but which we also fashion today.
He repeated his perennial point that Marbury v. Madison did not create judicial review; the Constitution did. "I always wince when it is inferred that the Court created the power . . ." To underscore his point, White wrote, "Perhaps none of these matters is of earthshaking importance, but it is likely that I shall write separately if your draft becomes the opinion of the Court." (Emphasis added.)
As the latest wave of memos arrived at his desk, Burger saw that large accommodations would be necessary. He decided first to add four long paragraphs at the front end of the privilege section, incorporating Stewart's suggestion. Marbury v. Madison (despite White's point) was cited at the beginning and the end—"It is emphatically the province and duty of the judicial department to say what the law is." It was rather obvious, but if Stewart, Brennan and Marshall thought it was important, so be it.
Now for White. White's multiple memos on one subject were clear. Rule 17(c) was what concerned him. The Chief took his own 17(c) section, cast it aside, rearranged some of the paragraphs in White's 17(c) proposal, and incorporated it almost verbatim. Keeping only three of his own sentences on the admissibility of recorded conversations and one of his own footnotes, the Chief dropped only one of White's sentences, one that he deemed redundant, given what would follow in the executive privilege section. Several of White's footnotes were dropped as unnecessary. The Chief was now certain that each of White's major points was included in some form. White would have to join. And with White neutralized, and the others accommodated on the Marbury v. Madison issue, the Chief decided to phone Nantucket and talk to Brennan.
Brennan was surprised to get the call.
Burger said the entire opinion would be circulated in draft form by the weekend; sufficient revisions had been made to meet White's objections. He was hopeful that the opinion might come down by the next Wednesday. It would be helpful if Brennan could return to Washington by Monday to help finish work.
Brennan agreed and hung up. He was both pleased and disappointed. At last there would be a complete draft from which to work. But Brennan did not see how White could have been so easily accommodated. He also thought the Chief did not yet understand how profound were the disagreements. White's draft represented a full-fledged renewal of his debate with Powell over the standards applicable to a presidential subpoena. Skeptical, Brennan made arrangements to return to Washington.
The Chief also talked to Douglas in Goose Prairie. He told him his timetable. He said he was thinking of using White's 17(c), but only if Douglas approved. Many of Douglas's thoughts had also been used, the Chief said. His memo had been invaluable.
Douglas encouraged the Chief again. Then he called his chambers and had a memo sent to the Chief and to the conference declaring simply that White's 17(c) section "is O.K. with me."
The Chief spent the next day, Friday, July 19, in his chambers, working with his clerks to pull the opinion together for the first time. Though he tried to incorporate any reasonable suggestion from the memos of the other Justices, the Chief still had to modify the language in several of the memos. Powell's proposal that the courts show "solicitous concern" was changed to "great deference."
Brennan's repeated invitation to the White House to withhold national security material as privileged was also altered.
In the last ten days the Chief had tried to accommodate nearly all the others. He used some of Powell's language on the importance of confidentiality, and the need for deference and restraint by the courts. He simply incorporated Stewart's Marbury v. Madison section. He inserted almost verbatim White's section on Rule 17(c). He picked up some ideas from Douglas, particularly his appealability section. He used some of Brennan's standing section. And he tried to accommodate Marshall's objection to two footnotes: one was deleted completely, the other was modified.
That left Blackmun. The Chief used large parts of his statement of the facts. What difference did it make anyway? When he took his completed draft to Blackmun, he told him that no one had seen it yet. Before he circulated it, he wanted the benefit of his friend's editing skills.
Blackmun agreed happily.
It was a small price to pay. Burger had endured Blackmun's nitpicking before and would again. Most probably Blackmun's suggestions would be small and meaningless. It was not likely that he would want conceptual changes.
Blackmun made a few stylistic suggestions and corrected some grammar and spelling errors before he returned the draft with his approval.
The next morning, Saturday, July 20, The New York Times carried a front-page story on the tapes case: "The Supreme Court may be unable or unwilling to hand down a decision in the Nixon tapes case until after the House Judiciary Committee has voted late next week whether to recommend the impeachment of President Nixon."
The story, citing unnamed sources, said that six Justices had tentatively held against Nixon but that the Chief joined by Blackmun was writing a dissent that was delaying the announcement of the decision.
The Chief was in his chambers early Saturday. He was in an excellent mood. He read over the draft one last time and was proud of the work. Though the others had tried to pick the opinion to death, it was solid, complete, straightforward and well reasoned. The rest of them had gone over every word he had written, demanding changes. But they had essentially acceded to what he felt sure would be the most important part of the case—the part with the most far-reaching implications. The key sentence was still there. "The protect
ion of the confidentiality of presidential communications has . . . constitutional underpinnings." Nixon was going to lose the case, but the larger principle he claimed to be fighting to protect would be upheld.
The Chief finally sent the draft down to the printer. With nothing more to do, he proposed that his clerks join him for lunch. One could not go because out-of-town friends had stopped by his house. The Chief offered to drive him home before he went off to lunch with his other clerk.
Since the chauffeur was off, the Chief got behind the wheel of a Ford—the Court's car since the beginning of the energy crisis—and headed out of the basement garage. They drove to the clerk's house, dropped him off and then went on to lunch. Afterward, they would return to the Court to measure the reactions of the other Justices. The Chief had noticed that some of them were in the building.
Stewart had arrived at the Court that Saturday morning thinking that the first official full draft would come around. When it was brought to him, he read the twenty-nine pages slowly. As he had expected, the core functions analysis was there, the central part of the section on executive privilege that the Chief had labeled Part C. Stewart was uneasy. As inelegant as the writing was, something else worried him. The tone was odd, the references somehow stilted, the citations of cases slightly off the mark. Could there be some subtle meaning beneath the words that he was missing? Could the Chief be slipping something in to sabotage the opinion? Could he be omitting something to create a loophole?
Nixon was desperate. Surely he would look for any ambiguity or favorable point on which to base a last-ditch defense. He might accept the Court's judgment on the law but reinterpret some obscure reference in the opinion. Could there be a bubble of imprecision that would give the President the "air" he needed?
Stewart realized he might be getting too suspicious or paranoid, but the simple fact was that he just didn't trust the Chief, particularly on this case. He recalled a Sherlock Holmes mystery, The Silver Blaze, in which Holmes discovered a clue in something that didn't exist, a watchdog that didn't bark. By recognizing this seemingly trivial anomaly, Holmes deduced that the dog's owner, the apparent victim, was actually the perpetrator of the crime. The notion of the "dog that didn't bark" began to haunt Stewart. Was the Chief purposely leaving unanswered some crucial, but hidden, question? Stewart's instinct was to drop as much as possible from the Chiefs draft and substitute his own analysis and language. If Stewart could not locate the loopholes, at least he might remove some of them, if only accidentally, by putting the argument in his own words. The best way to get the Chief to adopt changes was to go slowly, item by item. Once the Chief accepted a change, he generally forgot where it had come from and became certain it had been his idea.
But now there was not much time. The Chief was talking about an announcement in four days, and Stewart had not even told Burger his major complaint about the core functions analysis. An early announcement looked impossible. However awkward, there was no choice but to move a step at a time even if the deadline had to be pushed back. Stewart could at least count on support from the others who had approved his version; at a minimum that included Powell, Brennan, and Marshall.
Then there was the matter of control. Since Burger had come to the Court, the major opinions had been the achievement of the center coalition. There was no reason that this opinion should be any different. To a great degree it was rightfully theirs. The Chief had to be reminded of this fact of life. It was not the Chief's Court, or a Nixon Court.
White had come to the Court unsure of what the day would bring. Marshall, having missed the previous Saturday, also came to his chambers. After the Chief's draft had circulated, they stopped by Stewart's chambers. Stewart was sitting at his desk in a polo shirt. White was still pleased that the Chief had adopted his 17(c) section. He and Marshall sat at the left end of the desk, and a small group of clerks hovered at the front and right side.
They went through the draft line by line. Stewart made his case against the core functions analysis, restating every argument. White and Marshall agreed that it would be better to substitute Stewart's simpler alternative. Powell and Brennan also agreed, Stewart reminded them, so they had five votes. There were other minor problems. President should be capitalized. Then they decided to list their non-negotiable demands.
The door to Stewart's inner office was open, and they heard someone come into the outer office. There was a second of silence, and Marshall turned toward the door. "Hi, Chief," he boomed.
Burger hesitated in the doorway. He just wanted to make sure that everyone had received a copy of the full draft, he said. The printers, he said apologetically, had forgotten to heat the lead to set type that morning so the draft had been delayed until midday.
It was obvious what Stewart, White and Marshall were doing.
It looks good, Stewart said. His hands working furiously, he picked up a rubber band, put it in his mouth and began to chew it—an old nervous habit.
White was more direct. He said there were still some problems and they were trying to isolate the main ones.
Yeah, the Chief responded. He appeared tense, but he was gracious. Well, he said, he was still shooting for a Wednesday announcement. He said goodbye and left.
The group waited in silence as Burger closed the outer door behind him.
"Jesus," Marshall said, "it's like getting caught with the goods by the cops."
Stewart was visibly distressed. This could make the Chief more intractable.
In any event, they told each other, the Chief's little visit had changed things. Their small intrigue, or what remained of it, was no more. Before the Chief put a more sinister interpretation on the meeting than was warranted, they had to do something, and at once. They had to lay out their demands clearly.
Stewart said maybe they could turn the incident to their advantage. The Chief's discovery had given their convocation legitimacy. Burger would be expecting them to come to him with suggestions. It was important to find a way to present their demands with the force but not the appearance of an ultimatum.
With Stewart orchestrating, they singled out the necessary modifications. It boiled down to some changes in wording and the core functions problem.
"Well, Potter," White remarked, "I'm going home. You go tell him."
Everyone laughed.
"I'm not going by myself," Stewart said to more laughter.
"Oh yes," White replied. Stewart was definitely the man for the job. Given his close relationship with the Chief, he would be most effective.
After some more moments of teasing, White agreed to go with Stewart and Marshall. They walked down the hall to Burger's office.
The Chief greeted them. They outlined their suggestions.
It all sounds fine with me, the Chief responded, except the elimination of the core functions analysis.
But that was the biggest problem they had, Stewart said.
Well, the Chief replied, he preferred his core functions section, and he was going to keep it. In fact, this was the part of the opinion that offered the most explicit reason for why the President had to lose—an essential core function of the judiciary was pitted against a general need for confidentiality.
Stewart could see that the Chief was growing increasingly adamant. Instead of debating it right now, Stewart suggested that perhaps he should go back to his office and draft an alternative subsection C along the lines that he and the others had been talking about. He would have it ready for the Chiefs consideration by Monday.
The Chief had little choice but to agree. He would look over Stewart's proposal.
After the three Justices left, the Chief vowed to his clerks that he would hold his ground. He could see that Stewart was the leader. His suggestions were the most sweeping and unacceptable; Stewart was not going to carry it off. No way, the Chief said.
Back in his chambers, Stewart got out his uncirculated version of the privilege section. Brennan, Marshall and Powell had already approved it.
The fa
ult in the Chiefs reasoning lay in his effort to balance the President's interests against those of the courts. On one side, the Chief put the Article II powers of the President, which he said contained executive privilege. On the other side of the scale, the Chief put the Article III power of the courts. Since there was a specific demonstrated need for evidence in a criminal trial, the weight was on the Judiciary's side of the scale. Burger's conclusion in this case was that there was an imbalance. Little or nothing of weight on Nixon's side, and great weight on the Court's.
Stewart was opposed to creating new constitutional concepts such as core functions, but he had other important problems with this section as well. The definition of executive core functions was too broad and too vague. The term was an open door for a defiant reinterpretation by the President. And the definition of judicial core functions was apologetic. The judicial interest seemed manufactured. The Chief's opinion smacked of judicial legislation, as if the Court were conjuring new constitutional grounds for compelling the production of evidence as a special indulgence for fellow judges. Burger had dismissed Stewart's constitutional due process basis for the need for evidence in a footnote rather than in the text.