The Brethren (61 page)

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
1
104.
"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 clerks. 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.

This would be the opinion that would give the Chief a chance to draw on his legal knowledge about the separation of powers, an expertise he had refined in the Adam Clayton Powell case, when he was on the Court of Appeals, and which had been reversed by the Warren Court.

Burger knew that the possibility of a Senate impeachment trial was growing more likely each day. Trusted clerks were assigned to gather background information on impeachment, on Senate trial procedures, and to review the trial of President Andrew Johnson, the only President to be impeached and brought to trial in the Senate. The clerks were instructed to maintain the utmost discretion. The discovery that such research was underway would trigger unwelcome news stories and headlines—"Chief Justice Expects Impeachment and Senate Trial; Staff Busily at Work."

The Chief dreaded the prospect. His every ruling, as presiding officer, would be debated and criticized, every action measured as pro- or anti-Nixon. The Senators were unaccustomed to outsiders. All this publicity—the Chief Justice as trial judge in the spectacle of the century— would be bad for the Court and all courts. The judiciary would be thrust into a political storm. However much Burger might enjoy the limelight, a trial of Richard Nixon was disturbing. It could shatter the Court's general aloofness and distance from political events. Congress might retaliate.

The Chief's clerks were well aware that their boss had never been a trial judge. That was a problem in itself. More troublesome was his tendency to fly off the handle when pressed. A Senate trial of the President might last weeks, even months. Television cameras would be focused on him. The Chief was not equipped for such an ordeal. His first impulses were too often wrong. His hasty reactions, in his memos and opinion drafts and, they had heard indirectly, at conference, were generally filtered out by the Court process without ever becoming public. Some of the Chief's clerks feared that he would flounder. Perhaps a man like Powell could keep things on an even keel, but the Chief was sure to blunder. Worse still, he was smart enough to realize it, and that would take a heavy toll on his self-esteem.

The problems of a Senate trial could be put aside; they were speculative. For the time being, Burger and his clerks focused on the work at hand. Seated at the ceremonial desk in the conference room, the Chief told his clerks to pull up the two black leather chairs. They would work right there. He jotted down an outline in large block letters. Each of them would take one section and begin drafting. Then they would reconvene, read through the work line by line, and correct as they went. It was a tedious approach, but it was the Chief's style. He worked best talking out the question, with someone to keep him company.

They would begin with the facts section, Burger instructed. As always, the draft should be perfectly fair, there should be no slant, no clue as to the outcome. The briefs and internal Court memoranda had summarized the history and background of the case. The three men worked late into the night.

Frustrated and gloomy, Brennan went to the Georgetown University Hospital to visit Earl Warren on Tuesday afternoon, July
9.
The former Chief was recuperating from a mild heart attack he had suffered the week before. It was his third hospitalization for heart trouble in a year.

Warren was eager to know what was happening in the Nixon case.

Brennan delivered the good news: Nixon had lost, and it was unanimous. Predictably, the Chief had taken the opinion for himself.

The irony was not lost on either man. The remnants of the Warren Court, so hated by Nixon, and the emerging Nixon Court, so hated by both Warren and Brennan, had banded together. Brennan left at about
5
:30
p.m
., glad that he had been able to give his old, dear friend a needed lift.

Later that night Brennan learned by telephone that Warren had suffered a cardiac arrest at
8
:10
p.m
. and died. When he heard the news, Brennan wept.

The Chief quickly released a statement praising his predecessor. Warren had been "constantly available for consultation on the growing problem of the federal courts. . . ." Burger accepted the suggestion of one of his staff members that Warren's body lie in state in the Great Hall of the Court—an unusual honor.

Marshall, deeply grieved at the loss of the one white man who had done the most for black people in the twentieth century, also issued a public statement. "When history is written, he'll go down as one of the greatest Chief Justices the country has ever been blessed with. I think he is irreplaceable."

Brennan did not allow himself to spend too much time grieving. The Nixon case had to be kept on track. Brennan had already written a memo on the standing question. He decided that if should now go to the Chief. Calling on his surface charm, he wrote a cover memo and sent it Wednesday morning, July
10.