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February 2013

Restoring justice

by Robert Bork

An excerpt from Robert H. Bork’s forthcoming memoir, Saving Justice: Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General (Encounter Books).

I had not been long in my temporary position of acting attorney general when it became obvious that we would need to find a new special prosecutor to complete the Watergate investigation. Strictly speaking, we didn’t need a special prosecutor. I’m confident the individuals we had in the office possessed the demeanor and intelligence necessary to see the Watergate investigation through to its inevitable conclusion. But with the outcry over Cox’s firing reaching a fever pitch, the need for a new special prosecutor became a necessity, if only to calm everyone down.1

In our independent searches for a new special prosecutor, the White House and the Justice Department hit on Leon Jaworski’s name at about the same time. There was really no other candidate so well fitted for the job. Jaworski was a former president of the American Bar Association, and one of the first prosecutors at the war crimes trials before they moved to Nuremberg. We went through the list of other bar association presidents, but that was a fruitless enterprise. Jaworski was the one candidate suitable for the position. The others were too old for the job, lacked trial experience, or were otherwise disqualified.

Haig and I were equally enthusiastic about Jaworski, but perhaps for different reasons. Haig kept saying, “We have to get a real professional this time.” Finding a real professional was easy enough. The difficulty was finding one that the bar and the press would accept as sufficiently independent and skillful enough to reassure the public that the new special counsel could be trusted. That required a sufficiently broad experience. Jaworski fit the bill.

After meeting with Haig, Jaworksi came to my office to interview with Henry Petersen and me. He arrived with a sheath of résumés, which was quite unnecessary at this point. Petersen cast an eye over one of the résumés, and playfully turned to me to say, “Bob, he wasn’t in the Corps!”—an inside reference to my known preference for Marine Corps veterans. I didn’t say much by way of response, because I didn’t want to do anything that might scare Jaworski away. We wanted him. Jaworski looked slightly bemused, but took the job anyway.

The appointment of Jaworski meant the creation of a new charter, a process in which Congress was decidedly interested. In what turned out to foreshadow events to come, the reestablishment of the special prosecutor charter provided an occasion for me to learn something of the reckless disregard for truth that was Senator Ted Kennedy’s key to power.

In order to guarantee the independence of the special prosecutor after Cox’s firing, we tried adding to the new charter language to the effect that even with cause a special prosecutor could not be fired without the agreement of key individuals. When I was summoned before the Senate Judiciary Committee, Kennedy maintained that I had devised a means for firing the special prosecutor again. I called Jaworski, who understood the extra protection given by the clause in question and had no objection to it. But when I went before the Judiciary Committee again to explain that we had, if anything, strengthened the charter, Kennedy did everything in his power to paint the clause as a route to attack the independence of the special prosecutor. It was so obviously a false claim that even some members of the press folded their notebooks and left the hearing room. The upshot was a day of wasted time and nothing more. But I got a foretaste of Kennedy’s willingness to say anything to gain a political advantage.

At this point, Nixon’s unpredictability had reached a point where I began to worry I would be asked to do something that would force me to resign. Henry Petersen made up a list of all the political appointees in the department who were left to run the department, should worse come to worst. We extended the line of succession in the Justice Department five assistant attorneys general deep, just to be sure.

A few weeks into my stint as acting attorney general, my secretary, Mrs. Satterwhite, rang through to say that two gentlemen from the FBI were there to see me. Immediately all my free-floating anxieties coalesced. I had been operating without much staff and in a hurry. God knows what I had missed and the FBI had found. When they came in, I was relieved to learn that they were not there to clap me in irons, but relief soon gave way to distress as I learned what prompted their visit.

The FBI desired to appeal an adverse district court ruling about the Bureau’s Counterintelligence Program (COINTELPRO), a program of intelligence gathering and disruption of various radical groups. As I recall, three of us met in my office: Clarence Kelley—who was the new head of the FBI—a long-time FBI executive, and myself. The executive was insistent that national security required continuation of the program. I said that, in my best judgment, we would lose the case and do so resoundingly. The man did not give up easily and pressed his points until Kelley, who had seemed undecided, now spoke for the first time. He said the program was wrongheaded. I tried to make clear to the FBI executive that a radical group could be planning violence or other criminal activity while also conducting fairly ordinary politics aboveboard. It was, I said, legitimate for the FBI to spy on and disrupt plans for violence or crime, but not on the conduct of regular political activity.

Of course, the distinction between national security and domestic wiretaps grew extremely blurry at times. For example, the Soviets summarized conversations or other information they received from domestic sources here and sent it by encrypted radio messages to Moscow. Our intelligence agencies and other intelligence agencies picked up the Soviet messages and deciphered them. Since the Soviets were sending messages involving conversations with leading U.S. politicians, our intelligence gathering affected domestic as well as international matters.

While in the ordinary criminal case the government had time to obtain a warrant from a single judge, in national security matters sensitive classified information could not safely be submitted to judges scattered around the nation in order to obtain a warrant. In one case a federal district court judge read all the classified documents aloud in his courtroom, an absurdity that persuaded me to authorize searches and seizures without warrants.

A few years later, Congress created a special court, the Foreign Intelligence Surveillance Court, whose members are appointed by the Chief Justice from district court judges. I had serious doubts about the constitutionality of such a court, but the Foreign Intelligence Surveillance Act, which created this court, may be the least exacerbating of congressional reactions to Watergate. The War Powers Resolution, passed by Congress over the veto of Nixon in November 1973, expanded congressional control over the limits of presidential authority in the use of force abroad. Had the president asked for my advice, I would have suggested that instead of vetoing the Resolution, and thus giving it the dignity of a statute, Nixon should have returned the bill to Congress with a note saying he thanked them for their essay on his constitutional powers and, when he found time in his busy schedule, he would send them an essay of his own on his understanding of his constitutional powers. This would have treated the War Powers Resolution with the frivolous gesture it deserved.

Similarly misconceived were the 1974 amendments to the Federal Election Campaign Act, which, in seeking to purify the election process by taking money out of it, severely restricted campaign contributions. The result was to diminish political activity supposedly protected by the First Amendment. Eugene McCarthy’s campaign, which drove Lyndon Johnson from office, could not have been conducted without very large campaign contributions. The result of the Act was that members of Congress spent more and more of their time begging for money and less and less in sober contemplation of their legislative duties. Attorney General Edward Levi and I regarded the statute as so blatant an attack upon First Amendment freedoms that I assigned the briefing and defense of the statute to a few senior deputies while Levi and I filed an amicus curiae brief questioning the Act’s premises and assumptions. The amicus brief was written by Frank Easterbrook, then an assistant in the office of the solicitor general, and A. Raymond Randolph, then a deputy solicitor general. Both went on to distinguished careers in the law (as did so many of the young attorneys we had in the office at that time) and are now federal appellate judges. The Supreme Court saw fit to address the questions we raised with equivocation and compromise.

Watergate also prompted a move in Congress to make the special prosecutor a permanent part of the government, freed from any effective control by the attorney general or the president. We managed to fight off that obviously unconstitutional proposal throughout Gerald Ford’s term as president, but Jimmy Carter, over the objection of Attorney General Griffin Bell, saw fit to honor his campaign promise to create a permanent special prosecutor. The difficulties with the statute are manifold, but the most obvious is its removal of the law enforcement function from the attorney general, despite the fact that the Constitution places it there. The excrescence persisted, to the delight of Democratic lawmakers, until it began to be used against Democratic presidents, at which point its evils became apparent to them.

In any case, with Jaworski in place and the continuity of the Watergate investigation intact, I was eager to see Nixon complete the process of confirming a new attorney general so I could return to my post as solicitor general. In the highly charged atmosphere of the time, the task would not be easy. Nixon solved the problem by choosing a safe senator, William Bart Saxbe of Mechanicsburg, Ohio. The press officer for the Department of Justice took care to help Saxbe smooth his rather rough-hewn mannerisms and add a patina of sophistication. That effort was set back a bit when Saxbe welcomed a reporter to his home. According to legend, Saxbe and his wife were giving the reporter the grand tour when they arrived at one of the spare bedrooms. Above the bed was a large painting of a nude. The trio stopped before it and the Saxbes, gesturing toward the painting and nodding knowingly, said in tandem, “Inspiration.”

William Saxbe had a number of habits that might be called colorful, including the grotesque habit of drooling tobacco spit from his bottom lip into a coffee tin. He didn’t spit—he drooled. Drooled in his limo, and in his office; in private, and with company. A more gruesome sight I never saw. It got to the point where I took to breaking protocol in entering his office when there were several people going to meet with him. As solicitor general, I was traditionally supposed to be first to enter and take the seat closest to him. After one experience catching him mid-drool I took to waving in people ahead of me and taking a seat farther away so I didn’t have to sit within eyeshot. Habits aside, a more vigorous attorney general I never saw. After he was confirmed in December, I was able to return to my duties as solicitor general.

Jaworski was pressing forward with preparations for the Supreme Court arguments over the subpoena of the White House tapes. I was called to the White House to find a small gathering in Haig’s office consisting of James St. Clair, who was the recent addition to the president’s defense team, and three or four other members of the White House staff. Haig said the president wanted me to argue the case defending his retention of the tapes in the Supreme Court. I said that if I did, my next argument would be before the grievance committee of the Illinois Bar Association explaining why I should not be disbarred, since I would have argued on both sides of the case.

I reminded Haig that the special prosecutor was a branch of the Department of Justice and that I was, nominally at least, his superior, making it impossible for me to go to court to take a position in opposition to the special prosecutor. Haig said I was relying upon a technicality.

“They hang people on technicalities!” I rejoined.

During a break in the action a few moments later, St. Clair whispered to me, “I think you’re right.”

I whispered back, “Tell him that,” nodding toward Haig.

“Maybe I will . . . someday.” That reply lowered my estimation of St. Clair, who was apparently more concerned with keeping the boss happy than providing candid legal counsel.

“Why don’t you get Charles Alan Wright to argue your case for you?” I suggested to Haig.

He responded that Wright didn’t have the constitution for the job. He meant it literally—word had spread that every time Wright got a call from the White House, he got physically ill to the point of vomiting. Nor was Haig thrilled with Wright’s flamboyant statement to the district court in handing over the subpoenaed tapes, when he asserted, “This president obeys the law,” leaving the question of which president didn’t obey the law unanswered.

Both Wright and St. Clair signed the brief filed in the Supreme Court on the president’s behalf. It was assumed, I think correctly, that the major part of the brief dealing with the Constitution was the work of Wright, who had a reputation as a constitutional scholar that the others lacked. A member of the prosecutor’s staff characterized the brief as “random historical observations.”

It became particularly apparent that St. Clair, and perhaps the entire defense team, did not understand that their only chance for a win was to make the argument that the Court had no jurisdiction to decide the case. Article III of the Constitution forbids federal courts from taking due jurisdiction where there is no case or controversy, and there was certainly an argument to be made that there was no such case for Nixon. That is, if Nixon was within his constitutional right to handle the dispute by giving the special prosecutor an order not to go to court for subpoenas (although such an order would be political suicide), then there was really no controversy for the Court to address. That it was politically impossible for him to do so does not affect the constitutional argument at all.

St. Clair did once make reference to this line of reasoning when arguing before the Supreme Court. Justice Potter Stewart replied that ordinarily the Court would not take on an intrabranch dispute, but here the prosecutor had a charter. In Stewart’s view the existence of a charter seemed to give rise to a case or controversy that would not otherwise exist and therefore created an otherwise deficient jurisdictional base for the Court. The obvious rejoinder missed by St. Clair was that, if a charter was enough to plunge the Court into intrabranch disputes, a president or his surrogates could convert every intrabranch squabble into a justiciable dispute merely by issuing paper charters. That should have been enough to turn the Court away from the case, but of course it did not.

It is possible to have some sympathy for the Court’s lawless assumption of jurisdiction. Every other means of getting the White House to produce the tapes had failed. It was Jaworski’s subpoena or nothing. Had the Court announced that it had no jurisdiction on a point that 99 percent of the population would not understand, the reaction would have been explosive. The episode is a useful reminder that all too often the Court cannot or will not stand in the way of an impassioned public.

After the decision against the president came down, Haig called me from the White House and said they were still discussing whether to obey the Court’s order. “If you don’t, it is instant impeachment,” I said, which seemed to cast a new light on the dispute for Haig. I have no idea whether my opinion had any influence upon the outcome of the debate within the White House, but shortly afterward the president decided to release the tapes to Jaworski.

When the time came for Jaworski to go to court to report on the outcome of his subpoena, he called me on the telephone to warn me that Nixon’s tapes were not complete. In particular, there was an unexplainable eighteen-minute gap in the tapes, which apparently could not be retrieved by any technology then available. The announcement of the gap marked the beginning of the final lap of the Nixon presidency, and it would unravel over the next year. Facing impeachment in the House and almost certain conviction in the Senate, Nixon announced his resignation, making Gerald Ford the new president of the United States. In the end, I think Ford’s handling of the Nixon case was admirable. Had Ford pushed on with a criminal trial following Nixon’s resignation, the result would have been catastrophic, both for our system of justice and for our politics.

1 Restoring Justice” is drawn from Robert H. Bork’s forthcoming memoir, Saving Justice: Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General (Encounter Books).

Robert Bork isRobert H. Bork (1927–2012) was an American jurist and legal scholar. 


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This article originally appeared in The New Criterion, Volume 31 February 2013, on page 5

Copyright © 2014 The New Criterion | www.newcriterion.com

http://www.newcriterion.com/articles.cfm/Restoring-justice-7542

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