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                                                                                July 22, 1974

"The United States v. Richard M. Nixon, President, et al."



     Under few political systems in the world could a head of
state find himself locked in legal combat before his country's
highest court as the proclaimed adversary of his own Government.
Even by the distorted standards of Watergate, the case before the
U.S. Supreme Court was unique in terms of law, politics and
history. The President faced the lawful challenge of a Special
Prosecutor he himself had appointed only seven months before. The
prosecutor pleaded for a ruling to compel the release of evidence
that might hasten Richard Nixon's removal from office by
impeachment. The President, through his advocate, sought
protection from such an order, plus the court's imprimatur on his
very special view of presidential prerogatives.

     It was a confrontation of high suspense because of the
issues and because of the uncertainties of the climax. How
broadly the court would rule, by what margin, and how the
President would respond could only be guessed at week's end. Each
of these elements could be crucial in the months ahead.

     The specific legal questions before the court did not, of
course, involve impeachment directly. As debated in a historic
three-hour oral argument last week, the basic dispute was
constitutional: Does the President have the power to withhold
from use in the September conspiracy trial of six former aides 64
tape recordings of White House conversations -- merely on his
assertion that it is not in the public interest to release them?
That extravagant claim of absolute Executive privilege, applying
even to conversations that may have been part of a criminal
conspiracy, had never been made to the court before.

     There were signs that the answer from the Justices would be
no. At week's end, it was understood, one Justice had already
been assigned to write an outline for an opinion. That
preliminary draft was to be used as a basis for discussing a
final decision. Though not necessarily of one mind on all of the
issues, the jurists plainly recognized both the constitutional
importance and political explosiveness of the case. Therefore
they were expected to try to find common ground for a unanimous
ruling.

     In a sense, the Justices as well as the parties involved
have a stake in United States of America v. Richard M. Nixon,
President of the United States. A panel that has been reluctant
to break new judicial ground has now been asked to rule on a
fundamental question involving the constitutional balance between
the judiciary and the presidency. More immediately, the decision
could force Nixon to yield evidence that might bolster the
Special Prosecutor's conspiracy case against former Nixon aides
and influence the eventual outcome of the impeachment process
underway in the Congress by providing significant new evidence.

     It is widely assumed that the tapes he is withholding are at
least as harmful to his cause as the conversations he has already
released -- and little more is needed to convince all but his
diehard supporters in Congress that he was part of the cover-up
conspiracy. Although no one could be sure, the additional
material might even provide evidence to satisfy Presidential
Defense Attorney James St. Clair's narrow definition of an
impeachable act: A serious, indictable crime. Few constitutional
scholars agree with St. Clair's restrictive view; most consider
such a broad offense as failure to faithfully execute the laws
grounds for impeachment.

     Ostensibly, Nixon's no-win choice in the face of an adverse
decision would be to yield the tapes and their damaging contents
or defy the Supreme Court. Theoretically, he could also, of
course, take the embarrassing step of pleading his Fifth
Amendment privilege against self-incrimination.

     Failure to comply with the court would seem a certain route
to impeachment in the House and conviction in the Senate. Even
Vice President Gerald Ford, who contends that the prospect of
impeachment has been diminishing, concedes that defiance of the
court would create "a whole new ball game." Yale Law Professor
Alexander Bickel, who has been both critical of and sympathetic
toward various Nixon legal claims, declares, "I don't know anyone
who argues that when you get to a court decree after adjudication
there is any kind of moral or legal right to defy it." Nixon's
rationale for intransigence would doubtless be based on the
separation-of-powers principle expressed in briefs already
submitted -- that he must not subordinate the Executive Branch to
the will of the judiciary in a matter he considers essential to
the effective functioning of the presidency.

     No President has ever explicitly defied a direct order of
the Supreme Court when it was acting as a body. Franklin
Roosevelt was apparently prepared to do so "to protect the
economic and political security of this nation" in 1935, when the
court was expected to rule that holders of Government bonds were
entitled to payment in gold. But the court surprised him by
voting, 5 to 4, to uphold his position. Andrew Jackson in 1832
sharply objected to a ruling that federal authorities, rather
than the state of Georgia, should take jurisdiction over the case
of a missionary to the Cherokee Indians who was imprisoned by the
state. Jackson reputedly said, "Well, [Chief Justice] John
Marshall has made his decision; now let him enforce it." That
ruling, however, did not specifically require Jackson to take any
action. Other Presidents have bowed to decisions they considered
wholly wrong. When Harry Truman's seizure of strikebound steel
mills during the Korean War was declared unconstitutional, he
yielded to the Supreme Court ruling. "I have no ambition," he
said, "to be a dictator."

     Yet noncompliance by Nixon now remains at least a small
possibility. St. Clair told reporters after the Supreme Court
arguments that he did not know whether the President would yield.
It would seem more politically expedient, and more in keeping
with previous tactics, for Nixon to cooperate in principle -- and
then delay actual delivery of the tapes as long as possible. St.
Clair seemed to suggest that possibility when he said that it
might take two months for the 64 tapes to be submitted for
screening by Federal Judge John J. Sirica if Sirica's original
order to produce the tapes is sustained by the Supreme Court.
Special Prosecutor Leon Jaworski is now thinking in terms of a
few days.

     If the tapes are produced, the White House might report, as
it has in the past, that some recordings mentioned in the
subpoena simply were never made. So far the White House has said
that 13 tapes previously sought do not exist. Others may contain
gaps, like a 19-minute blank reported last week by the Special
Prosecutor's office to have been discovered in one tape.

    Assuming that Nixon does comply with an adverse decision, it
seems unlikely that the tapes would reach the house in time for
its impeachment debate. Democratic leaders are already reconciled
to having the Judiciary Committee proceed with its vote on
articles of impeachment without any such added evidence. The full
House, too, probably will act without it. But senior Democrats
who will be running the proceeding are confident that if the
tapes must be yielded for the criminal trial of Nixon's former
aides, the legal right of the Senate to acquire them for the
trial of the President will be overpowering -- and they will
almost certainly be available by then.

     However uncertain the final impact on Nixon's fate, the
Supreme Court hearing with its anticipation of a high-stakes
legal showdown gripped Washington. The event drew a mixed crowd
of Washington's legal elite, some Watergate figures and an eager
assemblage of college students, law instructors, office workers
and tourists. Many people waited outside the imposing marble
structure through two warm nights to get a crack at the 390 seats
reserved for the public. Most were to be available only on a
rotational basis, their occupants moving on after five minutes.
When the doors opened at 9 a.m., the crowd jammed into the
ornate, high-ceilinged chamber, squeezed shoulder-to-shoulder on
benches or knee-to-knee on metal folding chairs. H.R. Haldeman, a
defendant in the September trial, walked in beside Assistant
Special Prosecutor Richard Ben-Veniste and found himself sitting
beside Jaworski's wife in the VIP section.

     The audience rose in silence as all nine black-robed
Justices filed solemnly from behind maroon draperies and took
their black leather swivel chairs behind their long, semi-
hexagonal bench. From Chief Justice Warren Burger, sitting with
white-haired dignity at the center, the Justices were positioned
on his flanks in order of descending seniority: William O.
Douglas, William J. Brennan, Potter Stewart, Byron R. White,
Thurgood Marshall, Harry A. Blackmun, Lewis F. Powell Jr.,
William H. Rehnquist. After Burger briefly announced an action in
an unrelated case, Rehnquist, a recent Justice Department
colleague of two of the Watergate cover-up defendants, left the
chamber. He did not take part in the Nixon case. "I feel like a
starting player injured just before the big game," he has said.
From their elevated platform, the unsmiling Justices imposingly
dominated the scene.

     As the trio of lawyers who argued the case took turns at the
lectern, each was rendered somewhat less than life-size by the
hugeness of the marble-columned chamber. Some of the tension
eased as the arguments progressed. Occasionally a Justice would
exchange asides with a colleague. The opposing attorneys shunned
oratorical flights, spoke in calm tones that at times almost
understated their cases. Yet each was distinctive.

     Appearing first in opposing the President's attempt to
overturn Judge Sirica's ruling, Special Prosecutor Jaworski spoke
softly in the muted twang of a Texas gentleman. Almost
immediately he was thrown off stride by technical questions from
the unusually attentive and loquacious Justices. Although this
was his fourth Supreme Court appearance, Jaworski even forgot the
procedural reality that he was representing Sirica as well as his
own position on the tapes subpoena; his counsel passed him a note
reminding him of that fact.

     Yet Jaworski rose to the moment in making his major point:
"Now, the President may be right in how he reads the
Constitution. But he may also be wrong. If he is wrong, who is to
tell him so? The nation's constitutional form of government is in
serious jeopardy if the President, any President, is to say that
the Constitution means what he says it does, and that there is no
one, not even the Supreme Court, to tell him otherwise."

     Making his first appearance before the high court, St. Clair
proved more assured and forceful than Jaworski. He folded his
hands at ease on the lectern, waved his dark-rimmed glasses to
emphasize an argument. Brilliantly maneuvering to make the best
of a case that many constitutional experts consider untenable, he
nevertheless was cornered by deft questioning into revealing the
unreasonable limits of the President's privilege claims. Yet he
repeatedly drove home his central theme: "The President is not
above the law. Nor does he contend that he is. What he does
contend is that as President the law can be applied to him in
only one way, and that is by impeachment." But a decision against
Nixon would inevitably affect impeachment, St. Clair warned the
court, and that is a political "thicket" into which the Justices
should not intrude.

     Finally, appearing in rebuttal to complete Jaworski's case,
his diminutive (5 ft. 6 in.) chief counsel, Philip Lacovara, 30,
proved most professionally proficient of the three. Speaking
quickly and precisely without notes, he rescued Jaworski from
technical pitfalls and calmly challenged the Chief Justice on his
interpretation of legal precedents. He urged the court not to shy
away from a decision that might have profound political
implications nor to shun its duty to decide a basic constitutional
issue. He asked the Justices to "fully, explicitly,  decisively
-- and definitively -- uphold Judge Sirica's decision."

     Lacovara's use of the term "definitively" was a subtle
reminder that the President had once pledged to obey a
"definitive" decision of the Supreme Court in the original tapes
fight waged by Jaworski's predecessor Archibald Cox. After Nixon
had Cox fired for seeking this evidence, the political furor that
followed forced the President to drop his planned appeal to the
Supreme Court. Instead he yielded to an appeals court ruling that
he surrender the first group of recordings. At that time Nixon's
constitutional consultant, Charles Alan Wright, assured Judge
Sirica, "This President does not defy the law. He will comply in
full with the orders of this court." To Wright's embarrassment,
two of the nine subpoenaed tapes then turned out to be
"nonexistent" and a third contained the celebrated 18 1/2-minute
buzz-filled erasure.

     Though Nixon and his aides have pointedly refused to renew
any such pledge this time, the Justices chose not to ask St.
Clair pointblank whether Nixon would comply. St. Clair adroitly
sidestepped whenever the question seemed imminent. Yet the
subject became tantalizingly relevant when several Justices
objected to Jaworski's charge that Nixon was setting himself up
as the sole judge of the Constitution. As Justice Steward said of
the President: "He is submitting his position to the Court and
asking us to agree with it." Jaworski was hardly in a position to
say that Nixon might not comply, but Justice Marshall later
invited St. Clair to clarify the matter.

     Marshall: You are still leaving it up to this court to
decide?

     St. Clair: Yes, in a sense.

     Marshall: In what sense?

     St. Clair: In the sense that this court has the obligation
to determine the law. The President also has an obligation to
carry out his constitutional duties.

     Marshall: Well, do you agree that [Executive privilege] is
what is before this court, and you are submitting it to this
court for decision?

     St. Clair: This is being submitted to this court for its
guidance and judgment with respect to the law. The President, on
the other hand, has his obligations under the Constitution.

     Technically, of course, the question of compliance was not
before the court. The Justices, operating on the longstanding
presumption of acquiescence to their rulings, were properly more
interested in the fundamental legal issues. They showed their
interest by barraging the three attorneys with nearly 350
questions. Since the heaviest burden rested on St. Clair to prove
the Sirica order invalid, the most provocative questions were
aimed at the President's lawyer. In the process, St. Clair
sometimes seemed trapped in the illogic of his position. His
major claims:

     I. THE COURT LACKS JURISDICTION

     The President is the nation's chief law-enforcement official
with final authority over whom to prosecute and with what
evidence, St. Clair argued. Hence the Special Prosecutor is a
subordinate member of the Executive Branch. The courts simply
have no authority to intervene in such an "intra-branch" dispute
between these two officials. Referring to Jaworski as "my
brother" -- a courtroom courtesy -- St. Clair belittled the
Special Prosecutor's claim that he had been granted independent
authority having the force of law by both the President and the
Attorney General in the prosecution of Watergate crimes. "A
Special Prosecutor with the power that my brother suggests he has
is a constitutional anomaly," St. Clair claimed. "We have only
three branches, not three and a third, or three and a half, or
four. There is only one Executive Branch. And the Executive power
is vested in a President."

     Then Stewart shrewdly drew St. Clair into comparing Jaworski
with a U.S. Attorney who might seek confidential documents from
the President for a criminal trial. Steward wanted to know what
would happen if the President disagreed and the U.S. Attorney
persisted because he was "sworn to uphold justice." "Then you
would have a new U.S. Attorney," St. Clair said, intentionally
eliciting a laugh from the audience. But Stewart forced St. Clair
to admit that Jaworski, unlike a U.S. Attorney, could not be
fired by the President without the approval of leaders of
Congress -- a condition that had been specifically prescribed by
Nixon.

     St Clair: That is correct. And he has not been dismissed.
Nor is he likely to be.

     Stewart: And until and unless he is, we have a case in
controversy of a very real kind.

     Several other Justices also seemed to agree that the
President had, as Stewart put it, "dealt himself out" of the
intra-branch argument by increasing the independence of the
office of Special Prosecutor and by relinquishing the unilateral
power to fire Jaworski.

     II. PRIVILEGE IS ABSOLUTE

     St. Clair contended that the Constitution grants the
President, at least as an implied power, an unqualified right to
maintain the confidentiality of his conversations with his
advisers. Only he can decide which conversations he will make
public, and the courts cannot challenge that decision. It is a
political decision and, if abused, the only remedy is
impeachment. Burger and White wondered if the subpoenaed
conversations did not at least have to deal with official duties,
and St. Clair agreed. Powell then elicited the catch-22 kind of
circuitous reasoning that characterizes much of the St. Clair
argument.

     Powell: What public interest is there in preserving secrecy
with respect to a criminal conspiracy?

     St. Clair: The answer, sir, is that a criminal conspiracy is
criminal only after it's proven to be criminal.

     Powell: What is the public interest in keeping that secret?

     St. Clair: To avail the President, if your honor please, of
a free and untrammeled source of information.

     Marshall attacked the point by posing a hypothetical
conversation involving the sale of a judgeship. Should the
President be entitled to confidentiality?

     St. Clair: Absolutely . . . The remedy is that he should be
impeached.

     Marshall: How are you going to impeach him if you don't know
about it? You're on the prongs of a dilemma, huh? [When St. Clair
demurred, Marshall pushed on.] If you know the President is doing
something wrong, you can impeach him. But the only way you can
find out is this way, so you don't impeach him. You lose me some
place along there.

     St. Clair: Human experience has not demonstrated that's a
fact. Very few things forever are hidden.

     III. JAWORSKI HAS INSUFFICIENT NEED

     St. Clair argued that Jaworski has not demonstrated a need
for the subpoenaed conversations sufficient to overrule the
President's presumed privilege. Procedural rules place a burden
upon Jaworski to specify his reason for wanting each tape; he did
so in a 49-page memo to Judge Sirica. Lacovara contended that
since Sirica had found the explanations satisfactory, the
Justices could only involve themselves in the question if they
believed Sirica had abused his discretion. "This Prosecutor
[Jaworski] has a plethora of information," countered St. Clair.
"He says he wants to try the case with all the evidence. Nobody
tries any case with all the evidence. You would be buried in
minutiae." Later, St. Clair accused Jaworski of really wanting
the tapes to aid in the impeachment inquiry and not for the
trial.

     Marshall asked how St. Clair could be certain that the
subpoenaed tapes should be protected by privilege when the
President's lawyer readily admitted that he had not heard them
himself. St.Clair claimed that it was enough to know that they
were conversations between the President and his advisers. White
wanted to know how Jaworski could be expected to specify what the
conversations involved.

     White: He's never listened to the tapes. He doesn't know
precisely what's on them. You would say that he could never
subpoena a tape unless he had already gotten it.

     St. Clair: That's right . . . There must be a specific
showing of relevance and admissibility . . . That's his problem,
not mine.

     IV. NIXON CANNOT BE NAMED A CO-CONSPIRATOR

     Though several Justices seemed to think that the matter was
largely irrelevant to their main decision, St. Clair drew
relatively few objections to his contention that the Watergate
grand jury did not have the right to name Nixon as an unindicted
co-conspirator in the cover-up case. "For the purposes of our
decision, we can just lay that fact aside," Justice Brennan
observed. But St. Clair claimed that it had already prejudiced
the impeachment inquiry against Nixon and that he had been
unfairly reduced to "an 85% President."

     In apparent agreement with St. Clair, Powell observed, "With
grand juries sitting all over the United States, and occasionally
you find a politically motivated prosecutor -- that's a rather
far-reaching power, if it exists." Stewart, on the other hand,
did not accept the St. Clair argument that if a grand jury lacks
the power to indict a sitting President, it cannot name him as an
unindicted co-conspirator either: "I should think you could run
the argument the other way, saying that since the President
cannot be indicted, then all that can happen to him is that he
can be named as an unindicted co-conspirator."

     Yet it was the possible effect the Supreme Court case might
have on the impeachment that obviously most concerned St. Clair.
Reversing their normal roles of worrying about the ultimate
impact of a decision rather than the narrow legal question before
the court, the more liberal Justices this time seemed to dismiss
impeachment as of no concern in this case. Declared Brennan: "You
have not convinced me that we are drawn into it by deciding this
case. How are we drawn into the impeachment proceedings by
deciding this case?"

     St. Clair: The impact of a decision in this case undeniably,
in my view . . . will not be overlooked.

     Brennan: Any decision of this court has ripples.

     When the surprisingly low-key debate ended, some court
experts professed disappointment that the arguments had not been
as sophisticated or deeply probing, on the part of either the
Justices or the attorneys, as the occasion demanded. To most
laymen, however, the legal subtleties were not important. Mobbed
by photographers and spectators on emerging from the hearing,
Jaworski was confronted by loud applause and a shouted, highly
unprofessional accolade: "Dynamite job, Leon!" St. Clair, smiling
broadly and radiating confidence, was surrounded by a smaller but
enthusiastic crowd.

     The Justices retreated to their private conference room to
begin the hard work of constructing a decision -- one for which
the present court will be long remembered. During Warren Burger's
five years as Chief Justice, the court has seemed unable to
establish a firm identity or to move with consistent direction.
The Burger bench contrasts sharply with its activist predecessor,
and the difference was being vividly recalled last week because
of the death of former Chief Justice Earl Warren.

     The four Nixon appointees have given the court a more
conservative tone. That was to be expected; Candidate Nixon in
1968 promised to appoint "strict constructionists." But the
Burger Court has also on occasion seemed so indecisive as to
leave confusion in the wake of crucial opinions. When it ruled
against capital punishment -- an emotional issue that even the
Warren Court had avoided -- the vote was 5 to 4 and each Justice
wrote a separate opinion. Partly as a result, half the states
have drafted new statutes (still untested) reviving the death
penalty.

     Last year the court gave local jurisdictions the right to
apply their own standards in determining what is illegally
obscene. But this year it unanimously overturned one such local
ruling while upholding another. Now the way is open for an
endless string of smut cases to be appealed to the Supreme Court.
In school desegregation disputes, the court has seemed
ambivalent, particularly on the question of busing. After one
decision that appeared to encourage busing, Burger issued an
unusual "memorandum" suggesting that lower courts were misreading
the ruling.

     On some important occasions, of course, the court has left
no doubt about where it stands. It has struck down state laws
barring abortion, for instance, and extended the guarantee of
counsel to persons accused of misdemeanors that carry a jail term
(previously the guarantee was for felony defendants only). The
court unanimously rejected the Administration's claim of
authority to install wiretaps without warrants in domestic
national-security investigations.

     Part of the reason for the zigzag effect is that Burger has
been less adept than Warren was in building consensus -- or even
promoting amity -- among the nine jurists. Stories about
bickering behind the bench have been surfacing regularly.
Promoting harmony would not be easy for any Chief Justice now
because of the court's delicate ideological balance. There are
three consistent conservatives (Burger, Blackmun, Rehnquist),
three liberals (Douglas, Brennan, Marshall) and three swing men
who are often unpredictable (White, Stewart, Powell).

     Privately Burger insists that the court has ended a long
period of transition from the Warren era. "We're moving straight
down the road, holding to our course," he has said. "Just because
we refuse to extend a rule further, some people say we're backing
away from progress made by the Warren Court. That is simply not
true. In some cases, the Warren Court went too far. Now we're
coming out of that phase."

     Any court, of course, can be difficult to handicap on a
given case. Despite the predictions of experts, despite the hints
expressed in last week's hearing, no one could be completely
certain how any of the eight Justices would fall. Yet each
Justice has a record that law professors and others continually
consult in trying to assess how he may rule in a specific case.
TIME Correspondent David Beckwith, a lawyer himself, has surveyed
such experts and offered this shorthand guide to the eight
Justices as they forge their portentous decision:

WARREN E. BURGER, 66, a Republican appointed by Nixon in 1969,
believes so strongly in public figures' right to confidentiality
that he has often said that "interviewing a judge's clerk is like
bugging his phone." Thinks that many newsmen are biased against
him personally and against Republicans in general. As an
Assistant Attorney General in 1953, argued that the Supreme Court
had no authority to review the President's hiring and firing
power (the court disagreed). As an appeals judge and as Chief
Justice, has generally been a law-and-order man with a narrow
view of the judiciary's right to innovate, but has reacted
angrily to arbitrary decisions by Executive agencies. Likes Nixon
personally and is said to have held up last year's decision
quashing state anti-abortion laws for a couple of weeks to avoid
embarrassing the President during the inauguration period. Voted
for the abortion decision despite strong personal reservations,
apparently because his vote would not have changed the result and
he felt that the Chief Justice should not undermine the majority
on such a controversial issue. He seemed to be on the fence, but
is the man considered most likely to vote for Nixon -- on the
ground that the court should not decide the case since it is a
political question.

HARRY A. BLACKMUN, 65, a Republican appointed by Nixon in 1970.
Called one of the Minnesota Twins because he and Burger agree on
most decisions and because the two jurists were childhood friends
in St. Paul. Shy, slow in his work, and still somewhat
intimidated by the pace and pressure of the high court.
Personally sensitive to violations of confidentiality, but also
favors giving prosecutors the tools they need. Has castigated the
"pall of Watergate" with is "unusual doings in high places." His
essentially strict-constructionist sense of judicial power often
outweighs personal sense of what is right; a foe of the death
penalty, but voted to uphold its constitutionality. Appeared to
be sharing the fence with Burger, and while the Twins might lean
toward Nixon, they were probably reluctant to stand alone.

LEWIS F. POWELL JR., 66, a Democrat who joined the court in 1972,
is one of the least predictable of the eight and the most
flexible of the Nixon appointees. A gracious, old-school Virginia
gentleman, easily shocked by wrongdoing of all kinds; before last
year's restrictive decision on pornography, reportedly favored a
liberal ruling on First Amendment grounds, then switched after
viewing reams of hard-core smut. Just before joining the court,
was on record as pooh-poohing fears about Government wiretapping,
then wrote the sharply worded decision rejecting the Nixon-
Mitchell claim that the Government should be able to bug
suspected domestic-security risks without first obtaining a court
order. Universally regarded as a key vote that Nixon must have,
but appeared incredulous during the oral arguments when St. Clair
asserted that Executive privilege covers even the discussion of a
criminal conspiracy. Was considered to be leaning slightly toward
Jaworski.

BYRON R. WHITE, 57, a Democrat appointed by John Kennedy in 1962,
has become a pivotal vote who often sides with the conservatives
to form a narrow majority. Least predictable man on the court,
criticized by some scholars for ailing to develop a clear legal
philosophy despite twelve years on the bench . . . Nonetheless
said to have the quickest mind on the court. Though firm in
supporting desegregation and antitrust enforcement, experience as
No. 2 man in the Kennedy Justice Department made him a strong
advocate of prosecutors' authority. Also supports an active
Federal Government and Executive power, when authorized by
Congress. In this case congressional protection of the Special
Prosecutor's independence may be the key to White's stand. Like
Powell, appeared to be leaning toward Jaworski.

POTTER STEWART, 59, a Republican appointed by Eisenhower in 1959,
once seemed mildly conservative but has since moved to middle
ground and often votes against the Nixon bloc. A strong supporter
of civil rights and First Amendment privileges, as in his
dissents in pornography cases. The most aware, least ivory tower
among the Justices. Pragmatically concerned with a decision's
impact. A modest phrasemaker in an effort to give the public a
handle on a case's difficulties (on defining obscenity: "I know
it when I see it"; on court antitrust decisions: "The only
consistency is that the Government always wins"). Has publicly
praised the reporters who helped expose Watergate. Seemed an
almost certain pro-Jaworski vote.

WILLIAM J. BRENNAN, 74, a Republican appointed by Eisenhower in
1957, has been a consistent liberal with a broad view of
judicial powers. The court's only Roman Catholic, voted to end
obstacles to abortion, then suffered through demands that he be
excommunicated. Personally distrusts the press, and in recent
years has generally avoided interviews, but devoutly defends
First Amendment rights. Is known to dislike Nixon so much that
three years ago, when tempted to resign in order to spend more
time with his seriously ill wife, he decided to stay in office
rather than let the President appoint another conservative.
Considered a certain pro-Jaworski vote.

WILLIAM O. DOUGLAS, 75, a Democrat appointed by Franklin
Roosevelt in 1939, holds the record for Supreme Court longevity;
both he and his pacemaker seem to be going strong. Perhaps the
most liberal and libertarian Justice in history as well, ever
ready to strike a blow against those who abuse executive or
legislative power ("I believe that any time an individual is
coerced by his Government, he has an action"). Some law school
professors criticize him for shortchanging his large talent and
writing sloppy, ill-researched opinions, none of which fazes him
in the least. However the court now rules, undoubtedly was
tempted to write a characteristically abrasive opinion of his
own. Appeared to be firmly pro-Jaworski.

THURGOOD MARSHALL, 66, a Democrat appointed by Lyndon Johnson in
1967, won a score of cases while representing the N.A.A.C.P.
Legal Defense Fund before the Supreme Court prior to 1962, but
now finds himself in the Burger Court's liberal minority. The
court's best raconteur, who sometimes likes to jive groups of
whites by lapsing ostentatiously into a broad black dialect. Has
collected an informal panel of law professors and judges to help
choose his clerks, who as a result are now usually the best in
the building. Still impatient with legal complexities, preferring
to go to the right or wrong of a situation as he sees it. Another
activist who will have no difficulty concluding that the court
has authority to decide the case. The most certain pro-Jaworski
vote.

     On rare occasions, of course, the Supreme Court has mocked
prognosticators with a ruling contrary to all expert expectation.
In the subpoena case, it was conceivable -- barely -- that the
Justices could deadlock at 4 to 4. Legally, that would leave the
original Sirica order in force, but politically it would be a
kind of victory for Nixon. Another option was to return the case
to Sirica on some technicality -- also a highly improbable
result.

     Were it to act out either of these scenarios of surprise, or
some other, the court in effect would be vindicating St. Clair's
bold, circular argument. Stripped of frills, that contention
leaves the President virtually invulnerable. It says that he
cannot be indicted by a grand jury unless he is first impeached
and convicted in Congress, that he can be impeached only for
offenses that are subject to criminal indictment and that he is
the only rightful arbiter of what evidence in his possession
should be made available either to the courts or to the Congress.

     At the center of this circle is the totem of Executive
privilege -- Nixon is ostensibly not protecting himself but his
own and his presidential successors' institutional prerogatives.
The irony is that the Watergate scandal, and the particular
showdown before the Supreme Court, is more dangerous to the
presidency than any voluntary concession concerning his privilege
would be. By his actions, Nixon has invited a ruling from the
highest court that may for the first time put stated limits on
the very immunity he professes to protect.