The idea that the President can arbitrarily declare evidence off-limits belongs on the ash heap of history along with the "Divine Right of Kings," "Unitary Executive" and the "Doctrine of Papal Infallibility;" absolute rubbish invented by the mendacious to rationalize that most human of impulses: I want it my way.
Ask anyone, they'll tell you. Me. Archibald Cox. The United States Supreme Court and Magna Carta. This is why Chairmen Leahy and Conyers are not blinking the face of Bush's bluster. It's two branches against one, and Presidents don't win those fights.
In fact, this fight has already been lost, 32 years ago, in circumstances that look more and more similar to today's. You might not have heard of it, because it was hardly noticed at the time. It was a little thing written of so obliquely as "Watergate." Few remember it, so let's recap.
I am going to quote and source (extensively) from a book written by Archibald Cox, "The Court and the Constitution" published in 1987. Cox, you may know, was the Special Prosecutor investigating the Watergate break in. Yeah, him. In the prelude of the book, he soberly recounts his role in the dramatic events that ended the Imperial Presidency.
We must begin with Cox testifying to a Senate committee. He promises them to follow this investigation even to the President himself, and further at their behest, to battle in court any attempt by the President to block access to evidence by hiding behind his office (p3).
The committee could foresee the obvious fight looming. The investigation had already figured out that Nixon was in the habit of taping conversations, and that these tapes might contain evidence that Nixon was personally directing the cover up of the break in. Despite some trepidation over the impending fight, having given his word to Congress to do so (!), Cox proceeds to subpoena the tapes (p4).
Let's be clear here: Nixon had taken the tapes into his personal possession. This was no subpoena to some aide or White House staffer. This subpoena was addressed to "Richard M. Nixon, 1600 Pennsylvania Ave" (p5).
Nixon sends Cox a letter refusing to comply. Off to court goes Cox for an order to "show cause" for refusing a subpoena. The Judge, sensing the severity of the issue, takes the unusual step of querying Cox's Grand Jury in open court, in front of all the press to confirm they had agreed with the need for the subpoena. Cox fears though they assented in private, in public they will cower from confrontation with the President:
The moment dramatized the American philosophy of government. Here were eighteen or twenty typical citizens, none titled, rich, or powerful, deciding whether to require the President of the United States, the holder of the Nation's highest office and probably the most powerful man in the world, to come before them in order to help them in the administration of justice, and either to give an account of himself or to plead the privilege against self-incrimination if there were evidence that he had violated a criminal law. I can recall no more symbolic scene in American history (pp5-6).
To Cox's relief, the Grand Jury was unanimous (p6). Judge Sirica makes history by issuing the first court order personally directed to the President, ordering Nixon to "show cause."
When we ponder today the likely outcomes of such a move in the Supreme Court, let us not forget the much less certain ground Cox stood on in 1973. No one had done what he was doing before. Historically, the branches had always managed to avert head on collision, usually because the courts themselves backed down, fearing the loss of prestige from being shown ineffectual in enforcing their rulings on the Executive. The closest Cox had to precedent were Marbury v Madison and Youngstown. In the first, the courts had decidedly chickened out from the fight. In the latter, the court had successfully ordered President Truman's Secretary of Commerce to end an illegal seizure ordered by Truman. I say "successfully" because Truman obeyed the order despite his personal outrage over it. Would Nixon? Truman was not facing possible indictment from his compliance. This was fairly weak precedent to rest on (pp 6-9).
Luckily, Cox had more than case law on his side, and Nixon had only the ideas of Sovereign Immunity, Executive Privilege and the unspoken threat to ignore the Court leaving them no recourse (lacking the force to take on the President). The first had been neatly dispensed with by Magna Carta. the King was subject to the Law. In Youngstown, a Justice had even mentioned this:
Chief Justice Coke's reply to King James I: "the King ought not to be under any man, but he is under God and the Law."
And Cox would use these words when Nixon appealed the order in District court.
The second, as Cox notes is nowhere in the Constitution (p10). Basically some Presidents had asserted it, and no one had yet challenged it in the Supreme Court.
A note here: As part of the principle as defended by several Presidents, is the idea that each branch gets to keep its papers sacrosanct from the others. Some sense to that, sometimes. Funny that neither Bush nor the Courts felt that way when a search warrant was executed on the Congressional offices of Representative Jefferson not so long ago. A small dose of hypocrisy, but Bush has no problem having the Executive seize Legislative documents when the Judiciary blesses it. Turn and turn about, say I...
Nixon's appeal seems clearly bunk right? Federal Judge Sirica agreed and threw out Nixon's appeal, Presidential Immunity and (most of) executive privilege all at once. Nixon's lawyers take it to appeal. Slammed again. The court orders that it, with the special prosecutor, will listen to the tapes in secret, determine what is valid evidence and what is privileged. Obviously to that crook Nixon, this won't do. He's not trying to hide his deliberations on national security from Soviet ears here, he's covering up a crime.
Now Nixon tries to get cute. Having lost twice in a row, it's time to cut a deal. I'll save the details (Google "Stennis Compromise" if you care) but Cox shoots it down for substantive reasons, and makes a counter proposal that would be acceptable which Nixon shoots down. Cox's obstinance causes Nixon to have him fired in an event that became known as the "Saturday Night Massacre." Nixon's AG refuses to fire Cox and resigns. Ditto for the Deputy AG. Up steps the Solicitor General, one Robert Bork (yes, him) to dutifully suppress Justice and protect the boss.
Cox describes the reaction:
Sunday and Monday a firestorm of public outrage overwhelmed the White House. The President's defiance of the courts and the Saturday night massacre dominated the media. There were special bulletins. Senators, Representatives, newspaper editors and columnists called for impeachment. Cars streamed by the White House, honking for impeachment. Telegrams streamed into Washington at the rate of thirty thousand a day. Tuesday monring, while Charles Wright [Note: a Nixon lackey] was appearing on the Today show to describe how surprised and pleased he had been by the President's generous offer of compromise -- the compromise Cox had so unreasonably rejected -- John Anderson, the leader of the House Republican Conference, was coldly telling the President's legislative assistant, "If you want Republican members to support you, tell the President he has to turn over the tapes."
The firestorm worked. That selfsame Charles Wright appears in Sirica's court later on Tuesday to announce Nixon will comply with the subpoena and furnish the tapes.
Eventually, a new special prosecutor is appointed to replace Cox. The court drama didn't end there, because he decides to subpoena a second set of tapes.
Nixon has no choice: Final showdown in the Supreme Court. United States V. Nixon.
The Court quickly sees that the legal fight is a fly taking on a Buick. But they have the future to think about. The lower courts can freely rule based only on legal principle, but the Supreme Court has a delicate balance between the branches to think about, and the Judiciary has never been exactly running away with the show. Their doubts centre on the enforceability of any ruling they issue to Nixon, which makes them wonder if they should issue one at all. I'm not a lawyer, but the Courts do frown on ordering the Impossible as a legal principle. Try getting an injunction against gravity and see if you float.
Luckily it's now 1974, and the Supreme Court has had a long time to grow up, and having established in Youngstown that it can order Cabinet secretaries to obey the law, it's ready to take on a President. Despite misgivings about enforceability, Cox explains that the court decides privately that unanimity is required for a ruling such as this. A split decision will only encourage Nixon to ignore the ruling. One Justice (Rehnquist) having recused himself, [b]the court rules 8-0 against Nixon.[/b]
From the ruling:
Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. See, e. g., Marbury v. Madison, 1 Cranch 137, 177; Baker v. Carr, 369 U.S. 186, 211 . Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of [418 U.S. 683, 685] Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution.
Shorter USSC: Executive Privilege is not a get out of jail free card. If you can claim that, why bother having courts?
Cox:
...the rulings as a group settled the principle that even the President of the United States is subject to the Constitution and other legal obligations as interpreted by an independent judiciary (p13).
Hear that, Mr. Bush? Settled law. Congress is on firm footing here. The Executive cannot simply disregard a subpoena, nor can its staff refuse to testify. That some questions may not be answered in open session is possible - but the grounds for doing so do not apply here. No question of foreign policy exists here. Congress isn't going to ask for the nuclear launch codes.
Final Cox thought:
Because the people did rise up morally and politically, the rule of law prevailed (p25).
And that's the key. Bush can only subvert the Rule of Law if the people and their Congress allow it.
If you were surprised that Leahy and Conyers didn't back down, this is why.