The Brethren (59 page)
Powell wanted the President to lose on the narrowest possible ground, and that would be an order to the President to hand over the tapes precisely
because
he had been named a co
-
co
nspirator. Powell felt that a ru
ling such as that would be rarely applicable in the future. But as he thought about it, Powell realized that if the Court based its decision on the grand jury's finding, it would be endorsing it, thrusting itself into the impeachment issue. So he backed off.
Powell's clerks were generally pleased with the way his thinking was going, but they wanted him to assert himself in the case. He could expand his role if he were willing to be aggressive. But Powell still did not want to see the Court alter the fundamental power relationships among the branches of government. A President, like a Justice, needed confidentiality with assistants. Powell agreed with Stewart, who often remarked, "Government cannot function in a goldfish bowl." He did not wish to see the Court damage the principle of confidentiality. Powell wanted this President to lose, while providing every edge in the language to protect future Presidents from unwarranted intrusion into their decision-making. Finally, Powell decided to circulate a memo summarizing his position on the main questions. It might, perhaps, provide the skeleton of an opinion. Powell's clerks were unhappy with the final product, which was circulated July 6. It still gave away too much. Nonetheless, they still believed they could change his position.
Brennan, just back from Nantucket, was worried and unsure of what to expect. It was unlike Powell to circulate an opinion before oral argument. But reading quickly, Brennan saw that Powell wanted to rule against the President and not, Brennan thanked God, on the basis of the grand jury finding. Instead, Powell had stated that the particular and demonstrated need for the evidence—the tapes—clearly outweighed the general claim of privilege. Brennan's relief faded when he read that "the ultimate authority" for deciding claims of executive privilege resides in the branch of government "whose constitutional responsibilities are more gravely affected."
That single idea, published as a Court opinion, could wipe out a lot of constitutional law, Brennan realized. The first full definition of the Court's authority—
Marbury
v.
Madison
in
1803
—had established that it "is emphatically the province and duty of the judicial department to say what the law is."
Powell's position was more dangerous than the White House's, Brennan believed. In their briefs the President's lawyers said that the President had "an absolute privilege" and absolute authority to decide. Powell now was suggesting that while the Court had a
right
to consider the claim, it should
not,
but rather should back off and let the Executive Branch decide, if its responsibilities were "more gravely affected."
Douglas had said the President was trying to usurp judicial responsibility, and here Powell was giving away part of the judiciary's responsibility. It was the use of the phrase "ultimate authority" that Brennan found so objectionable. The courts, not the executive, had the "ultimate authority" to interpret the law. Brennan was deeply concerned. Powell was
advocating balancing Article II
(the constitutional power of the President) against Article III (the power of the courts). There were none of the absolutes that Brennan preferred.
But overall, the draft provided a starting point. Despite the narrow definition, it was a broad-brush treatment, which Brennan was sure he could remold without offending Powell.
Brennan thought Part IV of Powell's draft was even more mischievous. The subpoena to the President had been issued by the Special Prosecutor under the rules of criminal procedure set up for federal courts. These rules had the force of law. Rule
17
(c), allowing the federal courts to subpoena any person to produce evidence, provided that the material sought had to be both potentially relevant to the case and admissible in a trial. One of the remaining questions in the tapes case was whether this standard had been met. Powell had written that the Rule
17
(c) standard of relevance and admissibility was insufficient for a subpoena to be served on a President. A higher standard had to be met, Powell had concluded. Setting a new standard for presidential subpoenas, Powell had written that "necessity" or a "compelling need" had to be shown. That language was right out of the White House brief.
Though Powell went on to assert that this higher standard of "necessity" had been met by Jaworski in the tapes case, Brennan was not so sure. He found Powell's proposed terms vague and disturbing. Since the Nixon aides had already been indicted on other evidence that was previously available, the Special Prosecutor might have a tough time meeting someone else's definition of "necessity."
Brennan finished reading Powell's memo. A unanimity of rationale was going to be hard to achieve, but there was some consolation. If Powell's view was indicative of the other key votes, Richard Nixon would soon be yielding some tapes.
Brennan spent the Sunday before oral argument conferring with his clerks. Outside the Court, hundreds of spectators were already lined up, each hoping for one of the
120
seats reserved for the public.
The next morning, just before oral argument began, Brennan drafted a cover memo for a four-page proposal responding to Powell's standards for issuing a subpoena to the President. "I am greatly impressed by Lewis' analysis in his memorandum, particularly by his Part III. I think, however, that his Part IV requires some expansion and I am taking the liberty of circulating the attached in the hope that it may serve to focus that problem in our conference discussion."
Brennan's proposal substituted Rule
17
(c)—the federal rule for subpoenas that applied to every American—for Powell's higher standard, saying that it was "adequate to protect the President from unnecessary interference or harassment" Brennan would only concede that the courts should be "particularly meticulous" to see that the rule was applied correctly in cases involving the President.
Brennan then went on to address the procedures under which Nixon would turn over the tapes. "Our decision is that the President shall transmit all of the subpoenaed materials to the District Court, excepting those portions for which he interposes a specific claim of privilege limited to national defense, foreign affairs or internal security. With respect to those portions,
the President may initially de
cline production to the District Court." After a hearing on the specific claims, "production" could be ordered, but only after the President's lawyer had been heard. And the President, Brennan suggested, should be able to appeal an unfavorable result,
before
producing the tapes.
Across town, in the White House, President Nixon was dictating his oral diary. If he lost the tapes case, he hoped the Court would provide a method to exempt national security material. He had recently listened to the tapes of three June
23, 1972,
meetings that were held six days after the Watergate break-in. The tapes were filled with discussions of the White House efforts to have the C.I.A. ask the F.B.I, to halt its investigation of Watergate for bogus national-security reasons. If those tapes, which unfortunately were among those subpoenaed by Jaworski, were turned over, his defense could be destroyed. If Nixon could make that national security claim without turning over the tapes or perhaps could delay proceedings with another battle in the courts, he could gain some room to maneuver.
Blackmun breakfasted with his clerks as usual the morning of oral arguments, July
8.
He had told them that he anticipated voting against Nixon. Why would an innocent man with nothing to hide not turn over his tapes? That common sense view determined the issue for him. The clerks warned Blackmun that the Chief would try to take the opinion for himself. Blackmun thought they were right, but he told them he was going to insist that the Chief not write it. Burger was already burdened with the only remaining opinion of the term, the Detroit busing case.
Blackmun had in fact already privately urged the Chief not to assign the tapes case to himself for another reason. The Constitution said that the Chief Justice would preside at an impeachment trial. It would be unseemly for the Court if the author of the tapes opinion later had to preside at the impeachment trial of Nixon in the Senate. Since the House seemed likely to send the case to the Senate for trial, the Chief had to consider that possibility.
Blackmun had also told Burger that the tapes decision would carry more weight in the public's eyes if the author was both a Republican and a Nixon appointee. Rehnquist was out of the case, Powell was a Democrat, Stewart was a Republican but he had been appointed by Eisenhower, and the Chief was the prospective presiding officer in the President's impeachment trial. That left only Blackmun.
In Stewart's chambers there had also been talk about who should write the opinion. His clerks felt the author should be a Republican, but not a Nixon appointee. That eliminated everyone but Stewart.
Stewart brooded about the best way for the Court to handle this great case. He worried that Nixon was intending some subterfuge with which to ultimately defy the Court. Everything must be considered. The opinion had to be written forcefully, with exacting care; every sentence and word analyzed. A course had to be charted between dangerous extremes, one that would cripple the presidency, the other that would leave this President unchecked. All this suggested that the best writer should be assigned the opinion. Stewart was not one to seek it overtly. He would not circulate a memo as Powell and Douglas had done. His bid would be more subtle. He decided to circulate, in raw form, copies of the long research memos his clerks had prepared. The memos would suggest various approaches, foreclose a few options and focus the discussion, all without risk to Stewart.
Stewart arrived at his chambers the morning of oral arguments with little time to spare. His clerks were waiting, full of questions and answers. They filed into his office and tried to brief him. But Stewart was nervous. He paced around, distracted, and brushed off their ideas. The clerks realized that he was not interested in a last-minute briefing. One of the clerks mentioned that his favorite baseball team, the Cincinnati Reds, had swept a Sunday double-header from the Cardinals.
Stewart perked up.* He recalled his last conversation with Nixon, at a White House reception the previous fall. The Reds' star ballplayer, Pete Rose, had played brilliantly in an important game. Nixon and Stewart had chatted about his great performance. Rose was a man of average natural ability who excelled through sheer will power. Nixon had compared himself and Rose. "I want to call and congratulate Rose," he told Stewart. "But if I did it for
* Stewart kept a dog-eared piece of newspaper in his wallet, with the mathematical probabilities of scoring runs in each inning of a baseball game. The previous fall, he had requested that his clerks send him inmng-by-inning scores of the Reds-Mets playoff games while he heard oral arguments on the bench. Before the final game began, he asked for scores "every half-inning." And as it was played, he wanted a report on
each batter.
At
2
:35
p.m
., the game was interrupted by the surprising news of Vice-President Agnew's resignation. The clerks dutifully sent Stewart a note: Kranepool flies to right. Agnew resigns.
one, I would have to call all the players. Call Pete Rose for me and congratulate him for the President."
Stewart had been baffled. Certainly Rose was one of baseball's great players, a candidate for a contemporary list of Blackmun's superstars. In fact, Stewart had been called the Pete Rose of the Court—steady, always hustling, the ultimate team player, never one to let his teammates down. But a Supreme Court Justice could no more call a baseball player and congratulate
him
than a President could.
The President's quirks always made Stewart uncomfortable. Once, after Nixon had delivered the annual State of the Union address to a joint session of Congress, he walked up the aisle and recognized Stewart standing with his colleagues. Nixon reached out and shook hands with him alone. Stewart had felt conspicuously identified with this odd, clumsy man. Beyond such social gaffes Nixon gave a bad name to moderate Republican middle-of-the-road principles. Stewart had long ago given up on the President. He had voted for liberal Democrat Senator George McGovern in
1972.
He had recently concluded that Nixon was guilty as hell, a criminal fighting to retain his presidency. Stewart was planning to challenge Nixon lawyer St. Clair at orals on the question of whether the courts had the power to decide this case. He was not sure how far to push St. Clair, but he felt it essential to extract a commitment that the President would comply with a Court decision. That was the core. Whatever the outcome, important as it might be, it would not mark the end of constitutional law. But if the President were to defy the Supreme Court, that would cripple the Court, perhaps forever.