The Brethren

by Bob Woodward

  Also, Burger's effort to balance the needs of one branch of the federal government against the interests of another, raised the separation-of-powers question. Since such questions were generally left to the head of the affected branch rather than the courts, the Chief was simply asking for trouble.

  Perhaps there was an easy way of handling this, Stewart thought. The Chief had balanced the needs of the President against those of the Court. Why not balance them against the Constitution? The Fifth and Sixth Amendments guaranteed due process and a fair trial with all the evidence. Taking some language from the memos of Douglas and White to develop a constitutional foundation for a subpoena, Stewart wrote that "the needs of due process of law in the fair administration of criminal justice" required the evidence. This line of argument would force Nixon to pit his claims against the Bill of Rights, the commitment to the rule of law, and the concept of due process.

  The case came down not just to the question of a subpoena, the courts' technical requirement, but to the future of the constitutional system. The Chief's version missed the central point, dismissing it in footnote 16. The central feature of Burger's section, four pages in his draft, was two long citations from twenty-year-old civil cases (C. & S. Air Lines v. Waterman Steamship Corp. and U.S. v. Reynolds). Stewart thought the Chief's draft. reflected an obsession with the technical administration of justice and an utter lack of concern about fundamental constitutional questions.

  Now that he had his foundation, Stewart began tinkering with both drafts, trying to develop an alternative that would change the thrust of the opinion but least challenge the Chief. He kept the Chief's first two paragraphs, and the next long paragraph except for the last sentence, which said the courts must have standards and procedures to ensure that the "legitimate confidentiality" of the executive is preserved. That sentence had originally come from Powell's pre-argument memo. Stewart then substituted a new line of reasoning for the Chief's core functions analysis. He wrote seven paragraphs in place of the Chief's final four, keeping only Burger's last sentence, which summarized the decision Stewart had his clerks come in on Sunday, July 21, to type the new version, twelve pages, triple-spaced.

  Early Monday morning, July 22, Stewart went over the draft. He was satisfied that it gave the tapes subpoena a firm constitutional basis while giving executive privilege a very limited constitutional status. He then went to White and Marshall and went over it with them in detail. They agreed that they would join the Chief only if he accepted Stewart's substitute. Afterward, Stewart sent a copy to the Chief. That still left four Justices out of the picture— Douglas, Brennan, Blackmun and Powell.

  Stewart decided to make sure that everyone understood they were on a one-way street; there was no turning around. He wrote:

  re: Nixon cases

  memorandum to: Mr. Justice Douglas Mr. Justice Brennan Mr. Justice Blackmun Mr. Justice Powell

  Byron, Thurgood, and I were here in the building on Saturday afternoon when the printed draft of the tentative proposed opinion was circulated. After individually going over the circulation, we collected our joint and several specific suggestions and met with the Chief Justice in order to convey these suggestions to him.

  . . . our joint suggestions were too extensive to be drafted on Saturday afternoon, and I was accordingly delegated to try my hand at a draft over the weekend. The enclosed draft embodies the views of Byron, Thurgood, and me, and we have submitted it to the Chief Justice this morning.

  As of now, Byron, Thurgood, and I are prepared to join the proposed opinion, if the recasting of [the section] is acceptable to the Chief Justice ...

  At this late stage it seems essential to me that there be full intramural communication in the interest of a cooperative effort, and it is for this reason that I send you this memorandum bringing you up to date so far as I am concerned.

  P.S.

  Copies to: The Chief Justice

  Mr. Justice White

  Mr. Justice Marshall P.S. As you will observe, the enclosed draft borrows generously from the draft of the Chief Justice as well as Lewis Powell's earlier memorandum.

  Blackmun was pleased to see someone stand up to the Chief. Stewart's proposal was far superior, if for no other reason than the weight and authority of the language. Blackmun made it known that he was now prepared to join if the substitution were made.

  Powell also found Stewart's version preferable and gave his tentative approval. But he was not deluded. Very little had been taken from his early memo.

  Brennan flew in from Nantucket later that afternoon and read the proposal. Though he thought it overly generous in its use of the Chief’s language, there were no apparent major changes from the first version he had approved. He quickly called Stewart to say that he agreed strongly that the substitution was essential.

  Douglas was scheduled to return from Goose Prairie that afternoon. The Chief sent a messenger to the airport to give Douglas a copy of the full draft he had circulated two days earlier. If Douglas ratified his version, it could puncture the counterdraft movement. Brennan, however, made sure that a copy of Stewart's proposal was also at the airport. He also took the precaution of sounding out Douglas before the Chief could get to him. Douglas agreed that the substitution should be made. That was seven votes, according to Brennan's count. The Chief was the only holdout to his own opinion.

  Burger was exhausted. In addition to closing a Court term and attending his official functions, he had worked for more than two straight weeks without a day off. Burger felt the others had been merciless. And Stewart's memo calling for future "full intramural communication" was a joke, after the way he had operated behind his back for weeks. This was all particularly ironic given the Saturday meeting. The Chief didn't think the little gathering in Stewart's chambers he had wandered into on Saturday was in the spirit of "full intramural communication." Each of them had taken a section of his draft and chewed it to bits. If he had written only an eighth of the opinion, he too could have fussed over every word and each comma.

  But what would the others do? The Chief had talked to some of them. All, to one degree or another, seemed sympathetic to Stewart's proposal. Burger felt he had been sandbagged; he needed time to consider his options. He dashed off a quick "Personal" memo to the conference.

  Potter's memo of July 22, 1974, enclosing a revision of Part "C" prompts me to assure you that I will work on it promptly with the hope to accommodate those who wish to get away this week.

  The two versions can be accommodated and harmonized and, indeed, I do not assume it was intended that I cast aside several weeks work and take this circulation as a total substitute.

  I will have a new draft of Part "C" along as soon as possible. I take it for granted voting will be deferred until the revised opinion is recirculated.

  Once again, Brennan saw, Burger had not even understood the vast difference between the two approaches. The two simply could not be "accommodated and harmonized" as the Chief had proposed. Any attempt by the Chief to accomplish that would inevitably result in another half-baked, paste-up job.

  At least the Chief finally perceived that he was up against the wall. For Burger to plead that any vote be deferred meant that they were gaining some ground.

  Burger knew that he faced a tough choice. There was no "give" in Stewart's posture, and Stewart seemed to have lined up all the others. Burger read through the alternative drafts. They were really two different ways of saying the same thing; the approaches were different but the bottom line was the same. The President would have to turn over his tapes. Whichever version they used would not make any difference to history or constitutional law. Burger was sure his version was better, but the others thought differently. What was the big deal? It came down to three pages out of a thirty-page opinion. All of them, living day and night with the case for weeks, had become wrapped up in each word and phrase. Did the difference have any substance? Burger could find none. It would all seem silly in a few weeks. But the Chief knew that making c
oncessions was part of holding the Court together. The main thing was to get the opinion delivered. He wanted it unanimous. They were on the final leg. The only thing holding them up seemed to be this section. Stewart had left the first two paragraphs the same. That was settled. The Chief then took Stewart's next two paragraphs about the rule of law and compressed them, shifting some of the sentences around, dropping others.

  Next, Stewart had reduced the Chief’s citation of one case to a passing reference. But, of course, Stewart had dissented in that case. The Chief decided to restore the full citation (Branzburg v. Hayes).

  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 psychologically. 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 comprehend what had been forced on him?

  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 t
he 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.