Commentary Magazine


Bork's Watergate

Saving Justice:
Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General

By Robert H. Bork
Encounter, 200 pages

“I am suspicious of anyone,” the late Robert H. Bork wrote in his posthumous memoir, “who describes himself as calm and logical in moments of crisis.” The education the young Bob Bork received in Watergate—an advanced degree in ethics, earned amid a series of constitutional crises, each unprecedented and all exploding in a frightfully compressed time frame—likely rivaled the judge’s schooling in the law.

This education is recalled in Saving Justice, published only five months after his death at the age of 85 in December 2012. Reprising Bork’s cameo role in the capsizing Nixon administration, in which the Yale law professor served as solicitor general and acting attorney general, Saving Justice details the epic legal battles that dominated the headlines of 1973–74.

They were legion. Justice Department lawyers were forced to consider if Vice President Spiro Agnew, discovered to have been accepting bribes, could be indicted and prosecuted outside the machinery of impeachment; the department’s affirmative conclusion prompted Agnew’s swift resignation and plea of nolo contendere to tax-evasion charges. There was also a gambit by Supreme Court Justice William O. Douglas to dictate, from the bench, an end to U.S. military operations in Cambodia—staved off with the unlikely aid of Douglas’s fellow liberal, Justice Thurgood Marshall. Most notorious was President Nixon’s todeskampf with Watergate Special Prosecutor Archibald Cox over access to the White House tapes—a standoff that triggered Congress’s impeachment drive and led, inexorably, to Nixon’s own resignation. To the literature of the turbulent Nixon era, Bork adds important new details and a voice, now stilled, that brims with puckish wit and reverence for the law.

Until his scorching Supreme Court confirmation hearings in 1987, Bork was best known for his role in the aforementioned Nixon–Cox showdown that came to be known as the “Saturday Night Massacre.” The drama climaxed in October 1973, when the attentions of the world whipsawed between Watergate and the Yom Kippur War, and U.S. consumer confidence recorded its steepest plunge in history. Embattled and embittered, ensnared in a scandal he scarcely understood and fumblingly helped to grow, Nixon chafed at Cox’s mounting demands for the tapes he had surreptitiously recorded of his White House meetings. A Harvard law professor and longtime Kennedy loyalist, Archie Cox was no dispassionate pursuer of the Truth; as Bork reminds us, the Boston Brahmin’s partisanship was exceeded only by his projection of piety, and by the zeal of the Washington press corps to ratify it. But rather than follow Nixon’s order to fire Cox—entirely legal, as Cox was a presidential appointee, even if politically disastrous—Attorney General Elliot Richardson, nurturing his own presidential ambitions, resigned on principle. When Deputy Attorney General William Ruckelshaus likewise refused, invoking even flimsier principle, the president personally fired him. That left Solicitor General Bork, third in line at Justice, to execute the president’s order to dismiss Cox.

“I was in a welter of contradictory impulses, unable to see clearly what the results would be of a firing or a refusal to fire,” Bork writes. “I recognized that the president had a clear legal authority to fire Cox and a good reason to do so. Had I refused…the result…would have been mass resignations at the upper levels of the Department of Justice.” Bork decided the most honorable course was to fire Cox and then resign. As he confided to a colleague: “I don’t want to appear to be an apparatchik.” Ultimately, however, Bork fired Cox on the fateful Saturday night of October 20, 1973 (minutes after the departures of Richardson and Ruckelshaus, 10 days after Agnew’s) and then stayed on as acting attorney general. He did so to ensure the continuity of the Watergate investigation and to preserve orderly government.

Bork’s role in “saving justice”—department and concept alike—has received inadequate scholarly attention, let alone gratitude. His own modesty is partly to blame. When a subordinate congratulated him on the affair’s end, he snapped: “Catastrophes don’t call for congratulations.” And he remained regretful about having fired Cox and returned to Yale. “I knew I couldn’t resign,” he explains with trademark mordancy, “but still wished circumstances had allowed me to make the Massacre a murder-suicide.”

Among the most valuable contributions of Saving Justice is its refreshingly human portrait of America’s 37th president. “I did not find Richard M. Nixon to be the ogre or the threat to our constitutional order painted by his liberal enemies,” Bork writes. “I was pleasantly surprised to discover that Nixon’s working knowledge of the law combined the virtues of the practitioner and the professor.” For his part, the president looked askance at the red-bearded Ivy League professor, which left him amazed when he heard Bork espouse the strict-constructionist philosophy Nixon himself favored. “I could see in his expression the conviction that someone had stumbled badly,” Bork recalls. “He almost visibly recoiled at being confronted with this apparition resembling an antiwar protester.”

Unfortunately, Bork never truly understood Watergate. He accepts the long-discredited notion that Nixon confidant John Mitchell “coordinated and approved in large part” the break-in, which was never true in any part. And Bork writes that on the day he became solicitor general, “Watergate had happened, but it was not yet big news.” His memory played tricks on him here. The day Bork assumed office, on June 26, 1973, ex–White House counsel John Dean implicated Nixon in televised testimony before the Senate Watergate committee (a body whose formal name Bork mangles badly). The scandal had already ridden the covers of Time and Newsweek for months and become, among the political classes, a national obsession.

Bork discloses that Nixon mused aloud about nominating him to the Supreme Court. Aside from noting that the Massacre consumed “relatively little” of the debate during the 1987 hearings, Bork here mostly refrains from discussing them (“On that debacle, I’ve spoken my piece”). Instead, slender and elegantly written, Saving Justice bears witness to the observation of the Federalist Society’s Leonard Leo, who remarked that the legacy Bork amassed prior to President Reagan’s nomination of him far outweighs in importance the Senate’s rejection of him.

About the Author

James Rosen is chief Washington correspondent of Fox News and author of The Strong Man: John Mitchell and the Secrets of Watergate.




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