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o

FIRinG LineGuest: William Ruckelshaus, former assistant attorney

general of the United States

Subject: "CAN WE HAVE AN INDEPENDENT PROSECUTOR?"

SOUTHERN EDUCATIONAL COMMUNICATIONS ASSOCIA TlON

SECA PRESENTS ®

FIRinG Line

HOST: WILLIAM F. BUCKLEY, JR.

Guest: William Ruckelshaus, former assistant attorneygeneral of the United States

Richard Van Atta, professor of international service,American University

Jeffrey Reiman, College of Public Affairs,American University

Howard McCurdy, professor of government,American University

"CAN WE HAVE AN INDEPENDENT PROSECUTOR?"Subject:

Panelists:

FIRING LINE is produced and directed bV WARREN STEIBEL

This is a transcript of the FIR ING LIN E program taped at WETA in Washington,D. C., on November 12,1973, and originally telecast on PBS on November 18, 1973.

#., .'\'

SOUTHERN EDUCATIONAL COMMUNICATIONS ASSOCIATION

© Board of Trustees of the L and Stanford Jr. University.

"'"

The FIRING LINE television series is a production of the Southern EducationalCommunications Association, 928 Woodrow St., p.O. Box 5966, Columbia, S.C.,29250 and is transmitted through the facilities of the Publ ic Broadcasting Service.Production of these programs is made possible through a grant from theCorporation for Public Broadcasting. FIRING LINE can be seen and heard eachweek through public television and radio stations throughout the country. Checkyour local newspapers for channel and time in your area.

© 1973 SOUTHERN EDUCATIONALCOMMUNICATIONS ASSOCIATION

MR. BUCKLEY: Mr. William Ruckelshaus,you will recall, received a telephone callfrom the White House at midpoint duringwhat came to be known as the Saturdaynight massacre, and Mr. Ruckelshaus, for afew moments, had found himself actingattorney general of the United States. Thevoice at the other end of the Iine, it wasGeneral Haig's, chief of staff for PresidentNixon, said to him, "Will you fire ArchibaldCox?" special prosecutor for the Watergatedivisioll OT the Justice Department. "No,"said Mr. Ruckelshaus. Delil;acy prevailed, 50

that General Haig didn't say, "You aretherefore fired." Mr. Ruckelshaus simplywent off and executed a resignation.

His successor, Mr. Bork, fired Cox andthe Republic was catapulted into thegreatest pol itical crisis of modern times,abated only when, two days later, PresidentNixon agreed to surrender the tapesArchibald Cox had been fired for insisting heshould surrender.

Now the big question is: Who willsucceed Cox? The White House has named areplacement, but the Senate has two billsprominently in question. One, the Bayh-Hartbill, would give Judge Sirica the right toname the new special prosecutor. Thesecond, the Percy bill, would concede theright to President Nixon but stipulate thathe can fire said prosecutor only with theconsent of Congress. And complicating thewh ole bu siness are those who say that bothbills are, when you come down to it,unconstitutional.

William Ruckelshaus has studied theproblem intimately and is qualified to do so.He is a graduate of the Harvard Law School,having before then graduated from Princetonand from Portsmouth Priory School. Afterserving in the Army, he was elected to theIndiana legislature and was made a historicalfirst, the majority leader as a freshman. Helost a Senate contest to Birch Bayh in 1968.He came then to the Justice Department andwas named by President Nixon as head ofthe Environmental Protection Agency,where he made great waves. Then heaccepted, after the sad disgrace of PatrickGray, the acting directorship of the FBI,then back to the Justice Department asnumber two, and then to Coventry(laughter), though it is expected that he willfigure prominently in the future of theRepublican party.

I should like to begin by asking Mr.Ruckelshaus whether he believes there is anyquestion about Mr. Nixon's right to fire Mr.Cox.

MR. RUCKELSHAUS: I think there's somequestion about his right to fire him. There isno question about his power to do so.

MR. BUCKLEY: Would you elaborate onthe distinction?

MR. RUCKELSHAUS: Yes. I think rightimplies some correctness of action, which Ithought was questionable, and that was whyI refused to execute the order. I thinkthrough acting through a presidentialappointee as attorney general, he wouldunquestionably ultimately have the power todo so.

MR. BUCKLEY: Well, that power isspecifically being challenged, as I understandit, in a lawsuit right now launched by RalphNader, among others. Do you consider that afrivolous lawsuit?

MR. RUCKELSHAUS: No, I don't think it'sfrivolous because it's - I was actuallyaddressing my question to the broader andmore generalized statement of whether hehad the right to fire a governmentalemployee. There is some question in thatlawsuit as to whether the agreement bywh ich Elliot Richardson was confirmed,between himself and the Senate, that thespecial prosecutor's office was created,whether that was abrogated by the Presidentwhen he ordered Mr. Cox to be fired.

I don't think it's frivolous. I still thinkhe has the power to do so.

MR. BUCKLEY: Well, if a man who appearsbefore a Senate committee seekingconfirmation makes representationsconcerning a subordinate, is it automaticallyassumed that those representations are madeon the word of the President?

MR. RUCKELSHAUS: No, not necessarilyat all. And I think there is some question asto whether these representations were madeon behalf of the President.

MR. BUCKLEY: And would you say thatthe bu rden of those who suggest theillegality or the unrightfulness of thedismissal rests on the assumption, on thesoritical assumption, that there was a linefrom the President to the Senate?

MR-. RUCKELSHAUS: That's certainly - atleast in part, although they may be arguingand, in fact, do argue that the attorneygeneral, whomever he was, would not have

© Board of Trustees of the L. land Stanford Jr. University.

the power to discharge Mr. Cox because itwould abrogate an agreement enterp.d intoby the attorney general with the specialprosecutor. So the only way the Presidentcould carry out his order was to order theattorney general to do so, and he may havebeen blocked because of that agreement.

MR. BUCKLEY: As I remember it, when theoffice of the special prosecutor was launchedthere was sort of a governing rubric thereand that included the guarantee, if that's theright word for it, that the special prosecutorwill not be removed from his duties exceptfor extraordinary improprieties on his part.

Now at the time that he was removedit was not alleged that he was guilty of anyextraordinary improprieties. Would you,however, given what we now know about hisindiscretions with pol itical enemies of thePresident, say that in fact he was guilty ofextraordinary improprieties?

MR. RUCKELSHAUS: Yes, I think the termwas "gross improprieties," but he did -

MR. BUCKLEY: No, actually, it's"extraordinary. "

(laughter)

MR. RUCKELSHAUS: It is extraordinary.(laughter) He did commit those indiscretionsyou refer to after he was discharged.

MR. BUCKLEY: Oh, do we know that?

MR. RUCKELSHAUS: As I recall, he saidthat after he had been discharged he wentout to see Senator Kennedy, and SenatorHart was there and informed them of theconversation, at least part of it, that he'dhad with Mr. Kleindienst. To my knowledge,there was no such gross impropriety orextraordinary impropriety prior to hishaving been discharged.

MR. BUCKLEY: You probably resist theformu lation "extraordinary" improprietybecause it commits you to conceive ofordinary impropriety (laughter).

Well, the departure of Mr. Cox underthese circumstances, as we all know, raisesextremely interesting constitutionalquestions concerning which I am veryanxious to hear your views. But one of themcertainly has to do with this. Is it correct fora chief executive ever to warrant that he willnot dismiss someone unless he is guilty ofextraordinary impropriety or malfeasance or

whatever? Isn't it incorrect for a president tofreeze himself into an attitude toward asubordinate such as to bind him in thefuture against the contingency that hesimply ends up preferring Mr. Jones to Mr.Smith?

MR. RUCKELSHAUS: I think that's clearlytrue. For instance, if the President were toappoint me into any of the positions that Ihave previously held and say, "I ask you totake this job on these conditions," and aftersix months he comes to me and says, "I'vedecided to change those conditions. I don'tlike the original mandate that I gave you," Ihave -

MR. BUCKLEY: That's bilateral though.

MR. RUCKELSHAUS: That's right.

MR. BUCKLEY: That's just you and him.

MR. RUCKELSHAUS: But, nevertheless, if Idon't like those conditions that he'schanged, he's perfectly justified in firing mefor that reason or, in fact, for any otherreason that he wa nts to. If he doesn't likethe way I dress in the morning, he candischarge me.

MR. BUCKLEY: Sure, sure. But supposeyou plug in a third party, to wit, a Senatecommittee, and you represent that thePresident wi II not discharge you unless thereis an objective impropriety concerning wh icha tribunal, let's say, will judge. Isn't thisanti-traditional in an undesirable way?

MR. RUCKELSHAUS: Well, I think thereare a number of things being done to solvethe problems of the moment that are notonly anti-traditional but probably would seta precedent that is very unwise. But we're inan extraordinary time and I thinkextraordinary things have to be taken inorder for the President to regain theconfidence of the American people and thatmay be one of them.

MR. BUCKLEY: Well, you know, ProfessorAlexander Bickel, who has written heatedlyand continuously on the subject, has alwayslaid down a distinction which I ask you nowto focus on. It is between that which is legaland that which is politically acceptable, andhe insists, of course, that the two don'tnecessarily go hand in hand. It was absolutelylegal, in his judgment, to discharge Mr. Cox,but it was politically the wrong thing to do.This actually teases back into consideration

your distinction between that which is rightand that wh ich is legal.

Now, is it or is it not the job of thePresident of the United States inextra-impeachment circumstances to lookfor a political solution to many of hisproblems and isn't a political solutionexemplified by, for instance, the way Mr.Richardson handled the problem of Mr.Agnew? In return for his resigning, he woulddrop the charges - that is a politicalsolution. Why is it that the Congress and thepublic are being urged at this criticaljuncture to adjure the possibility of apolitical solution in preference for a rigid,totalist, unrelenting legal solution, theconsequences of which could very well beinternecine?

MR. RUCKELSHAUS: Well, I don't - Theline between a political decision and a legaldecision often becomes very fuzzy -

MR. BUCKLEY: Yes.

MR. RUCKELSHAUS: - particularly whenit gets to the Supreme Court and theSupreme Court tries to interpret what theConstitution really provides. The court looksat the society as it exists at the time ininterpreting what that Constitution means,as they've done so many times in the past.It's my belief that if it became politicallynecessary for the President, in some way, toinvolve the Congress in his appointment of aspecial prosecutor or in creating aninstitution which had not only in fact theindependence and thoroughness and fairnessbut appearance - appear to the people tohave that - if he needed to involve theCongress and maybe even the judiciary, Ithink that while the Constitution issomewhat unclear as to the constitutionalityof that action, my guess is the SupremeCourt would go along with it.

So often the distinction betweenpolitical and legal is much less clear thanProfessor Bickel or others might have youbelieve.

MR. BUCKLEY: Well, sure, but you can giveas a hypothesis one in which the distinctionis unclear and one in which the distinction isclear. An excellent example of one in whichthe distinction was very clear indeed was thedeal that was worked out for a very fewhours between the White House and theattorney general and Senator Ervin andSenator Baker on the matter of how tohandle the tapes, that a transcript of them

was to be made by Mr. Stennis who wouldthen paraphrase them.

Now, for a few instants, it looked asthough a political solution had been reached.Surely Bickel was correct when he said thatin the last analysis if Cox refused to goalong, he could appoint a special prosecutorwho would go along. What happened was itpolitically didn't work, correct? But is itwise for the President to give away the rightto put in critical situations when he is incharge of initiating political solutions peoplewho are as fractious as Mr. Cox tu rned outto be?

MR. RUCKELSHAUS: I'm not sure Iunderstand that question. Are you saying isit right for him to -

MR. BUCKLEY: Yes. Nixon is currentlybeing invited, or he may be forced, to nameas the special prosecutor a guy who cannotbe dismi ssed unless Congress goes along,which means that Congress, guided bypolitical motives which won't necessarily bethe same or even congruent as those ofRichard Nixon, might deny that permissionand leave Mr. Nixon immobilized. What I'msuggesting is that the approach of the specialprosecutor, as we now hear about it, may beheading for a very bad deadlock.

MR. RUCKELSHAUS: Well, that's true, butI think what the Congress and the Presidentare searching for is some institutional meansof investigating the president. That's what'sgoing on and there is a constitutional way ofdoing that through the impeachmentproceeding, which is what Professor Bickelsays they should be using. But it seems tome that what they're really searching for is:Is there another way of doing that withoutgetting into that constitutional mechanismthat may lead to some ultimate trauma? Thepolitics -

MR. BUCKLEY: Is there anotherinstitutional means?

MR. RUCKELSHAUS: Well, theimpeachment proceeding in theConstitution -

MR. BUCKLEY: But I thought you meantlaying impeachment to one side, is there -

MR. RUCKELSHAUS: That's what they'retrying to come up with, another means ofdoing the same thing.

2 © Board of Trustees of the eland Stanford Jr. University. 3

MR. BUCKLEY: But you're using"institutional." Is there another institutionalmeans?

MR. RUCKELSHAUS: Well, if you look onthe special prosecutor as an institution,whether he's appointed by the President orwith the agreement of the Senate or theSenate permits him to be appointed by thejudge or a group of judges, it's an institutionthat can conduct an investigation withindependence, fairness, thoroughness andcompleteness.

MR. BUCKLEY: What is the precedent forsuch a thing?You can't become an institutionex nihilo, can you?

MR. RUCKELSHAUS: Why, I don't knowwhy it can't.

MR. BUCKLEY: I mean, it's got to havehappened a couple of times, doesn't it?

MR. RUCKELSHAUS: There is a precedent,for instance, for a judge or a group of judgesto appoint a U.s. attorney when there's avacancy. That's specifically provided bystatute. So there is the judicial branchappointing a prosecutor who may beappeari ng before them to prosecute asped fic case.

MR. BUCKLEY: Yes, but they don't givehim a mandate. It's one thing to appoint aman; it's another to give him a v~ry directmandate. We're talking now not merelyabout appointing a special attorney, whichthe Constitution provides for, as you pointout, or rather the code does; but we'retalking about taking a guy and saying, "Youare a special prosecutor and this is whatyou're going to do." And this, so far as Iknow, is unprecedented, isn't it?

MR. RUCKELSHAUS: Well, there isprecedent for appointing a grand juryprosecutor where the grand jury is lookinginto given matters. There isn't anythingexactlv like this, any precede nt. I don'tthink there's any precedent in our historyth~t involves much of what is going ontoday. It may take some unprecedentedprocedu res to get us out of it.

MR. BUCKLEY: Oh, okay, but I thinkthat's a very shrewd point that in fact thekind of dilemma we face was not anticipatedby the founding fathers and, under thecircumstances, we have to improvise. Butlet's, in any case, recognize that we're

improvising -

MR. RUCKELSHAUS: Yes.

MR. BUCKLEY: - rather than we'reprojecting past institutions, okay?

MR. RUCKELSHAUS: Another point Ithink worth making is that a lot of what'shappened has obscured what I believe is thelegitimacy of the President's claim ofconfidential ity or executive privilege. It is animportant principle. My belief is that italways has to be weighed against the publicinterest in disclosure. And in this case,because of the way events have unfolded,the public interest in disclosing informationthe President has in his possession, inwhatever form, about allegations that arebeing made outweighs this claim ofexecutive or testimonial privilege.

MR. BUCKLEY: Well, but aren't you maybeapplying, however sympathetic I happen tobe to them, opportunistic standards? Forinstance suppose, after extensive discussionswith my own lawyer, he were to plead theclient-lawyer privilege. But you, as the headof the FBI, might say, 'Well, goddamnit, Iknow that these people have informationabout the kidnapping of Johnny So-and-soand, under the circumstances, I insist onseeing the transcript which happened to bemade of the recording of their conversationso that I can simply pluck out from it thatwhich has to do with the kidnapping ofJohnny."

Now, would you find yourself, as alawyer, capable of taking that position?

MR. RUCKELSHAUS: Yes, yes. It dependsvery much on the - It always has to beweighed against the public interest indisclosure.

MR. BUCKLEY: But it's never been done,has it? Can you tell me of any subpoenaedrecords of conversations between a clientand his lawyer?

MR. RUCKELSHAUS: No, no, that's anabsolute privilege. That's unlike the -

MR. BUCKLEY: Why isn't the President'sabsolute? It has been up until now.

MR. RUCKELSHAUS: No, it has not. Therehave been many intrusions into the claim ofexecutive privilege in the past, as claimed bythe president or the executive branch. The

courts have, in fact, pretty consistentlyoverruled the claim.

MR. BUCKLEY: Name one.

MR. RUCKELSHAUS: Well, when I was inthe civil division of t~e Justice Department,we would often, as a last resort, raise theissue of "executive privilege if we believeddocuments or whatever evidence was in thepossession of the executive branch and thatthe public interest in not disclosing itoutweighed the interest of a given court orjury in seeing that evidence. We were oftenoverruled, and often if the government hadbrought the case, we'd simply drop the caserather than reveal information we felt wasdamaging to the national security or -

MR. BUCKLEY: But that was a politicaldecision, wasn't it?

MR. RUCKELSHAUS: Yes, in essence itwas.

MR. BUCKLEY: But why then couldn't Mr.Nixon drop the petition by SpecialProsecutor Cox, ultimately his subordinate,rather than reveal conversations in the OvalOffice the publication of which he mightfind strategically disadvantageous?

MR. RUCKELSHAUS: The reason he can'tis because the public perceives that as theman who is being investigated using aprivilege to protect himself.

MR. BUCKLEY: And so this is why youwant to go to extra-institutional methodssuch as a special prosecutor who i~responsible to the court or to Congress, isthat correct?

MR. RUCKELSHAUS: I think unless thathappens, and coupled with it somedetermination, not only rhetoricaldetermination but backed up byperformance, on the part of the Presidentthat information that he has regarding theseallegations wi II be disclosed, there is simplyno way in which he can regain theconfidence of the American people.

MR. BUCKLEY: But that's his problem,isn't it?

MR. RUCKELSHAUS: Yes, it's-

MR. BUCKLEY: That's not your problem ormy problem. If Nixon wants forever to

estrange the American people (laughter), Imean, he's had a lot of practice (laughter)and I don't see why this becomes yourconcern or my concern.

MR. RUCKELSHAUS: It's my concern as acitizen because I can't bel ieve that apresident of this country can - Now we talkabout, is he capable of governing? I'm noteven sure I know what that means, but I dobelieve he cannot govern as effectively withmany of the problems that face us as he canif he really has the confidence of the peopleof .the country. They believe in him. Theybelieve what he says. If he believes there isa n e n erg y c r i sis, they wi IIreduce to 50 miles an hour on the highway. Ihave a feeling that maybe they'd be morelikely to reduce to 50 miles an hour if theyreally believe him.

MR. BUCKLEY: Well, I think that's atruism, but it's also, I think, correct thatnobody is as uniquely qualified to judge allof the political implications of a particularact in which the President is central as thePresident.

MR. RUCKELSHAUS: Oh, I think that'sright.

MR. BUCKLEY: Now, we've got analtemative - we can throw him out throughthe impeachment process, though that's alittle hard to do. As Professor Kenner said"What do you do with a man with 3,000parking tickets?" And that's really thesituation that we've got with Mr. Nixon atthis point. But what I don't understand isthe logic that seems to me locking into thesituation in which you deprive the onecritical guy, who is the president, of theadministration of the political initiative andI think that our appetite for hard, relentlessjustice, which he has stimulated, by the way­Nixon (Iaughterl-is one that we might verywe II regret. .

MR. RUCKELSHAUS: There could be anumber of precedents arising out of thisentire mess that could be very difficult forus to cope with in the future and this couldbe one of them. But I'm suggesting theopportunity that the President has isthrough permitting a certain divestiture ofthis power in himself and sharing it withanother branch of the government to permitan independent investigation of theseallegations, he may be able to avoid theconstitutional process of impeachment. And

4 © Board of Trustees of the eland Stanford Jr. University. 5

© Board of Trustees of the L land Stanford Jr. University.

MR. RUCKELSHAUS: Moral, it's not a - orethical.

MR. BUCKLEY: You were satisfied thatyou were entitled to proceed to indict ratherthan to bring impeachment proceedings?

MR. RUCKELSHAUS: Oh, yes. Now I'mnot talking about the Constitution. I wastalking about the ethical question.

or aA moralMR. BUCKLEY:constitutional?

MR. RUCKELSHAUS: I wasn't closeenough to it to be able to say that. He wasnot under my jurisdiction or really theattorney general's on these particularinvestigations. But it is true that throughoutthe whole Watergate affair defendants orpotential defendants were makingstatements to the press that they would notmake to the grand jury or they would notswear to in an affidavit form, greatly

MR. BUCKLEY: Yes, I see. I see. If it hadnot been for the tapes, would it have beenlikely that these indictments would havebeen handed down by now?

with even more fervor, is essential fairness.And if dragging out the process ofindictment in a highly publ icizedinvestigation greatly jeopardizes the rights ofall kinds of people, then there may be, in theinterest of essential fairness, reasons forbringing indictments very quickly. Butthere's no intrinsic reason in the law or indu e process th at says you shou Id br ing anindictment immediately or as quickly as youcan or that you should drag it out.

MR. BUCKLEY: Unless there's a statute oflimitations problem?

MR. RUCKELSHAUS: Yes, that could, ofcourse, cause a problem. But in dragging itout it could well be the reason you're doingthat is your very great fear of indicting apublic official or somebody who is in publiclife and thereby condemning him foreverwhether he's ever convicted or not. Iremember in the Vice-President'sinvestigation that I was involved in veryheavily this concerned us greatly, that werealized that an indictment of the sittingvice-president was an extraordinarily seriousaction and that we may never end up withany kind of trial that would result in aconviction and the indictment would, in andof itself, be the end of it.

7

MR. RUCKELSHAUS: Yes, he did. Hecontested that. In the middle of that, onJuly 16, came the information about thetapes. Then Mr. Cox sought to get thatinformation from the White House so thathe could present before the grand jury all ofthe evidence that the government had in itspossession. He had been stymied in that andgoing to-

MR. BUCKLEY: Yes.

MR. RUCKELSHAUS: It depends on whatyou want to do. You can do both. You canpresent to the grand jury simpl y affidavits,reciting what the evidence will be in thecourt, affidavits from potential defendantsor defendants. '

MR. BUCKLEY: Is that a point of protocol,to present all that you have in yourpossession to the grand jury or just enoughto constitute a prima facie case?

MR. BUCKLEY: Yes.

MR. BUCKLEY: What do they tell you inlaw schools or wherever it is that one trainsin the duties of prosecution - that justicerequires you to get an indictment as soon asyou can or that you can in fact pace yourselfto get as comprehensive a case as possible?

MR. RUCKELSHAUS: Or you can have thedefendants themselves come in and testify atgreat length before the grand jury and let thegrand jury cross-examine them. It dependsreally on how you see the case unfolding.And, in a case of this kind, it would seem tome to be the better part of wisdom for agovernment prosecutor, particul arty onewho might be viewed as being partisan onthe other side, to make very sure of his casebefore he brought any indictments so thatindictments that were brought were soundones based on all the evidence that he couldaccumulate and would not fall apart tater ina much more public atmosphere of a trial.And I am certain that Mr. Cox was veryconcerned about this and wanted to seewhat evidence was in the government'spossession as to who said what and who wasinv'olved before he went forward with anyfinal indictment.

MR. RUCKELSHAUS: One of the thingsthey try to teach you in law school -

MR. RUCKELSHAUS: - at least they usedto, and I think should continue to do so

MR. RUCKELSHAUS: Well, I can certainlygive you a scenario that's equally as feasibleas the one you've presented.

MR. BUCKLEY: And Cox protested those.

MR. RUCKELSHAUS: And I think that thatcertainly is a concern that arose in the mindsof many people, the one you've outlined.When Mr. Cox came in as special prosecutorin late May, there had been an extensivegrand jury proceeding already underway. Ithad resulted earlier in the indictment of sixor seven of those immediately involved inthe break-in, and they were very close toindictments, that grand jury.

Then Mr. Cox came in, his entirelynew staff, and they had to familiarizethemselves with all the evidence that hadbeen presented to the grand jury in the past.The prosecutors who were in the U.S.attorney's office in the District of Columbiawere replaced by Mr. Cox's staff. So, ineffect, you were starting all over again withnot only Mr. Cox being new, but all thepeople involved in the grand jury proceedingitself. Everyone was new, and they hadreally to start over again. What intervenedwere the Senate committee hearings inwhich a lot of the evidence that he wastrying to get into the grand jury record wasbeing promulgated nationwide overtel ev isi on.

the extraordinary slowness in handing downindictments. When Mr. Cox was named, wayback in May I guess it was, it was widelyspeculated that within 10 days he was goingto indict everybody in sight - Ehrlichmanand Haldeman and everybody. And then theweeks and the months dragged on andsome people began to harbor the suspicionthat the reason he was delaying justice wasthat he was really orchestrating the whole ofthe defendant class, which was a verynumerous class (laughter), in such a way asto make it especially appealing for them toget the big one (laughter). And in that senseI think that, for all of his concededrectitude, he gave a Iittle bit the sense of theconcertmaster who was engaged in a very,very, very strategic big game.

Now, can you say from yourknowledge of the situation, either intimateor general, why it was that so many monthswent by and those indictments weren'thanded down, and were they conceivablyrelated to a pol itical ambition?

MR. BUCKLEY: Sure.

6

I don't suggest those are the only twoalternatives but I think in the last two orthree weeks there has come to reside in theWhite House a growing realization thateither one of those alternatives is prettymuch what faces him right now.

MR. BUCKLEY: Yes, yes, yes. Well, youknow, one of the things that, it occurs tome, has caused a certain restiveness in thepublic mood about the special prosecutor is

MR. RUCKELSHAUS: Mainly because hehas so many - I mean, it could be raised inany number of ways without appearing tohave him directly raise it. It could be raisedby any of the defendants in the case andprobably would be raised by one or more ofthem. So that does present a problem.

What I would hope is that theexecutive and congressional branches couldagree on some kind of institutionalarrangement whereby the President wouldkeep as much ultimate authority over theexistence of the special prosecutor so as topreserve the constitutionality of thearrangement and thereby provide themaximum assurance to the American peoplethat the man had the agreement of both ofthe two branches involved and thereby wasin appearance independent. I think if thatkind of an agreement could be struck, thenthe chances of people not believing what hedid ultimately are greatly diminished,although there will be some who probablywon't believe him no matter what he does.

MR. RUCKELSHAUS: Yes, thinkparticularly if the judge does so.

MR. BUCKLEY: Yes. So how do we handle,since we are in search of appeasing a publ icappetite for the truth, yet anotherprocedural delay that would go five, six,seven or eight months, or would you guessthat Mr. Nixon would be frightened even toraise the question of the unconstitutional ityof that procedu re for the reasons that youhave just finished stating?

MR. BUCKLEY: Well, presumably, if theCongress proceeds to name a specialprosecutor or if Mr. Sirica proceeds to namea special prosecutor, there will be aconstitutional flare-up, right, and appealsand all that kind of busi ness?

MR. RUCKELSHAUS: Yes.

MR. BUCKLEY: As a political matter.

complicating the investigative process,because what appeared to be a solid case wasby no means a solid case when the witness orpotential defendant would be brought intothe prosecutor because he would simplyrefuse to repeat those statements that hadbeen made in national publ ications often.

MR. BUCKLEY: I see. A little bit like thepeace protesters of a few years ago whowould burn their draft cards, only theyturned out to be hockey tickets (laughter),and when they went before the grand jurythey -

MR. RUCKELSHAUS: That's not exactlyanalogous because one of the things theywere doing was playing a game of stall andevade that ultimately could be to theirinterest.

MR. BUCKLEY: Yes, yes, yes. Well, now,the notion that justice should be speedy isnevertheless not lost in this whole process, isit?

MR. RUCKELSHAUS: No.

MR. BUCKLEY: That is to say, it's just thatit's being tempered by the necessity to lookat all possible explanations.

MR. RUCKELSHAUS: That's right. It couldbe true that justice that was too hasty coul dbe justice denied, just as -

MR. BUCKLEY: Sure, of course, of course,of course. Yes, sure.

Now, if you have a situation in which,let's say, Jones was guilty of an illegal act;he, however, appears before the grand juryand he says that his understanding of theillegality of the act was dominated by thefact of his having committed that act underthe orders of a person who he thought hadinnate powers so to command him. Now, isthis the kind of thing that would stay yourhand before deciding whether to ask thegrand jury for an indictment?

MR. RUCKELSHAUS: Well, I should thinkit would. If the question remained wherethere was a contest as to whether thoseorders were actually given, the prosecutorhimself might decide to be much lessaggressive against an individual who wasacting under the belief that he was beingordered to do that than he would againstsomeone who had put this story forwardwithout any justification.

MR. BUCKLEY: Well, would he instruct thegrand jury how it shoul d regard thatambiguity?

MR. RUCKELSHAUS: He might, he might.

MR. BUCKLEY: Or would he let it come toits own conclusions?

MR. RUCKELSHAUS: It depends. He coulddo it either way. It's also possible that indeciding whether to accept a plea to one ofthe offenses that had been charged, theprosecutor would want to satisfy himself asto the truth of what a given potentialdefendant was telling him.

MR. BUCKLEY: Yes.

MR. RUCKELSHAUS: And a mitigatingcircumstance in fact if not in law would behe felt he was followi ng an order of asuperior that he really didn't have any rightnot to follow.

MR. BUCKLEY: Well, when you talk aboutmitigating circumstances, is this somethingcompletely discretionary with, first of all,the grand jury, then the petit jury, and thenthe judge, or is this something concerni ngwhich there is the tradition in the law thatpermits an appeal? For instance, takeHoward Hunt. It seems to me rather obviousthat he thought himself under some prettyhigh command to be doing what he wasdoing. Is this the stuff of an appeal or not?

MR. RUCKELSHAUS: Not usually. It's amitigating circumstance from which aprosecutor could decide not to prosecute,not to indict. The grand jury might return anindictment and the prosecutor say, "I'm notgoing to sign it. I just don't think that whatthis man has done, while it's a violation ofthe law, deserves prosecution." The judgecould decide to find him guilty and notsentence him, to suspend any sentence.

MR. BUCKLEY: He couldn't find him guiltyif the prosecution decided not to prosecute,could he?

MR. RUCKELSHAUS: No, he couldn't.

MR. BUCKLEY: Orcould he?

MR. RUCKELSHAUS: He could not.

MR. BUCKLEY: I see.

"

MR. RUCKELSHAUS: No, there has to be aprosecution going forward.

MR. BUCKLEY: Well, now, in thehypothetical case that we now face, do youhave a situation where Sirica will appoint theguy Vl(ho summons the grand jury whomakes the indictments who is thenprosecuted by the guy appointed by Siricawho will be judged by Sirica?

MR. RUCKELSHAUS: That's one way ofputting it (laughter). I'm sure that's not theway the sponsors of the Bayh bill of theSenate would Iike to have it put.

MR. BUCKLEY: The head of the TrialLawyers Association said last week that heconsidered that that would be a violation ofdue process, but it in fact is being urged byresponsible human beings, right?

MR. RUCKELSHAUS: Yes. As I say, that'sone way of putting it. It could be that thebill could provide for a panel of judges toappoint the special prosecutor, taking JudgeSirica personally out of the process ofappointing a man whose charges he wi IIultimately judge.

MR. BUCKLEY: Professor Richard VanAtta is a professor of international service atthe American University. Mr. Van Atta.

MR. VAN ATTA: We've been talking aroundthe question of impeachment fairly gingerlyit seems to me, and my feeling -

MR. BUCKLEY: It wasn't even on theagenda.

(laughter)

IVlR. VAN ATTA: Well, it seems to mealmost impossible to avoid the question ofimpeachment here when we are talkingabout institutions that have been framed todeal with this sort of matter. Andimpeachment in fact I think would be amatter of clearing the air and also utilizingand bringing to bear an institution whichcould perhaps be given a little bit morecapability. Since it has never been usedexcept for 'one other case, we're not veryused to the idea of impeachment.

I think it might be a little better if wegot more used to the idea of impeaching apresident, not necessarily having him thenprosecuted but the process of impeachmentitself, to air the facts, to clear the material

away, I think would be very useful. Do youthink that impeachment is as dangerous tothe body politic as it seems to be made outto be?

MR. RUr.KELSHALJS:Well.lthinktherearetwo questions. One is: Should it be? and thesecond: Is it? I think that it probably shouldnot be. It may be that there should be amechanism rather easily 'utilized for judgingallegations against a president that did notcause the trauma that has occu rred to thesociety under the present proceeding. But Ithink the fact that impeachment has been soseldom used, really only once seriouslyagainst a sitting president, has not preparedthe society for accepting an impeachmentproceeding without causing serious tremorsthroughout our -

MR. VAN ATTA: Well, we've got someother pretty serious tremors it seems to me.We have no institution presently forreviewi ng these things. If this President werein England and he were a prime minister, hewould have been out of office a long timeago. We have here a failing of our system toreact to what I consider to be the pol iticalfailings, if not legal failings as well, butpolitical failings in particular, of thePresident. In particul ar, he seems to be veryleery of any kind of institution which in facthas power to investigate or look into himand I think his removal -

MR. RUCKELSHAUS: You mean he'sacting Iike a human being.

MR. VAN ATTA: Well, this removal of Cox,I think, is an example of this, ostensibly forpurposes of the tapes but I think in fact theremoval was done because the scope of theinvestigation was getting too broad. Cox wasin fact finding out and getting involved inmany other aspects of the presidentialactivities and the electoral activities andNixon was apparently getting very muchafraid of the broader ramifications of this. Isthis not a plausible reason for the removal ofCox?

MR. RUCKELSHAUS: You mean, was thatthe motive for which he was removed?

MR. VAN ATTA: Yes.

MR. RUCKELSHAUS: I have no way ofknowing that. You, obviously, haveconcluded that that was the motive.

8© Board of Trustees of the Leland Stanford Jr. University.

9

MR. BUCKLEY: No.

MR. REIMAN: - muddying their owntheoretical -

MR. REIMAN: But ought that to be ajustification for -

MR. BUCKLEY: I think you would find itvery hard to come up with a document in

I mean, I can't evenit can be explained asfar. I mean, the whole

one that was very, very heavily motivated,with Nobel prize·winners giving a rationalefor it and so on and so forth.

Under the circumstances, when Mr.Nixon was beleaguered, as on one or twooccasions he was in 1969-1970, the questionarose that made people like PatrickMoynihan, an ADA liberal, say that it wastime for conservatives and liberals to join ina politics of stability. I think it'sunquestionably true that manyconservatives, certainly I, think that Mr.Nixon overdid it. Whether he overdid it inthe sense that you would not have, I simplydon't know. It may be that there was acertain amount of hysteria there that youonly feel if you, sitting in the White House,know that you need a heliocopter to get out(laughter), or that the only college in theUnited States that you can address withphysical safety is West Point (laughter).

That's the first point, but the secondpoint, surely is that the conservatives areclinging to Mr. Nixon at this particularmoment primarily because of the nature ofthe opposition. The principal critics of Mr.Nixon, however we might grant theirsincerity, nevertheless have a historicalrecord of anti-Nixon ferocity andopportunism which makes some of theirmotives suspect. After all, these are thepeople who couldn't buy enough executivepower when it was being handled byKennedy or Roosevelt or Truman. Theyloved it then; all of a sudden they're verysuspicious of it.

So, under the circumstances, you haveto recognize that there is in turn a feeling, adeep-seated suspicion, that the theoreticalmotives of many of Mr. Nixon's critics aren'tabsolutely pu reo

MR. BUCKLEY: No, it shouldn't, which isone of the reasons why -

MR. REIMAN:understand howhaving gone toopattern -

participate in. And your judgment is asgood as mine as to what his motives were.

MR. BUCKLEY: Well, your question has tobe answered in two parts. The first is thatAmerican conservatives definitely bel ieveand I think have consistently believed, thatthe exerc ise of power by the executive isexcessive; but they have also always believedthat salus publica suprema lex, the safety ofthe Republic is the first law. And Y9u haveto remember that the conservativecommunity emerged, as did the liberalcommunity, but perhaps the former moretraumatized than the latter, from a period ofquite studied lawlessness. It was not only alawlessness that was sort of improvised but

MR. BUCKLEY: Well, not quite.

(laughter)

MR. RUCKELSHAUS: It might be better.At least it's not tainted.

MR. REIMAN: If you say they're at least asgood as yours, that's okay.

Could I ask you another questionthat's really, I think, addressed to Mr.Buckley? I'm really puzzled about theconservative response to this whole affair,both the issue of the firing of Cox inparticular and the whole Nixon presidency.Well, let me say, I'm also puzzled by Mr.Buckley's questioning about appetite forhard, relentless justice and the pursuit of alegal solution to this.

I was always under the impression thatconservatism is a philosophy of limitedgovernment, that is government limited bylaw. It seems to me that the President'sfiri ng of Cox - given the reason, after all.His reason was that Cox would not agree notto sue the President any further over theissue of the tapes. There were some otherreasons, of course, but that's a ratherinteresting one. I see this as only one step inthe whole pattern of Mr. Nixon's rejectingbeing limited, being limited by the Houses ofCongress, his practices in impoundment, themoves for wiretapping and so forth, all ofthis seems to have a pattern of unlimitedgovernment, and yet the conservativeresponse is now - not an outcry ­something of a kind of whimper about thefact that his credibility, his capability ofgoverning is in question. I'm really, I mustsay, just depressed th at the conservati ves arenot outraged by the attempt of the Presidentto act without limitations.

MR. REIMAN: Yes, that seems to trouble alot of Republican senators, from what weread in the paper. They can't seem to read iteither. But as a person who was involved init, it's hard for me to imagine it neveroccurred to you that this -

MR. RUCKELSHAUS: Well, therearealotof things that occurred to me. That's quitedifferent from saying they occurred to me tosaying this is what I believe has happenedbecause, having been involved personally inthis whole affair and the dispute, to ascribemotives to the President when he exercisedwhat I think is a clear authority on his partto discharge me that I can't prove or that Idon't really know are there at all, strikes meas being something I really shouldn't

it. I just don't participate in it.

MR. REIMAN: Yes, a smokescreen thatmight be understood as ultimately puttinghimself in the position of having no choicebut to fire Mr. Cox, he being the only personwho wouldn't compromise.

(laughter)

MR. RUCKELSHAUS: That assumes acertain savage rationality in that action thatI've yet to see in this whole affair out of theWhite House.

MR. RUCKELSHAUS: You mean theStennis compromise?

(laughter)

MR. REIMAN: Savage, yes.

MR. RUCKELSHAUS: I think you could getinto a lot of difficulty if you try to interpretthese actions in terms of some overallscheme, because I can't frankly think whatthe scheme is if you try that. It's notworking whatever it is.

MR. REIMAN: Let me suggest why a morecynical person like myself might participatein it. Given the fact that presumably thePresident already knew that some of thetapes did not exist and yet went forth onthis Stennis compromise and engaged Ervinand Baker in some kind of support and then,rather speedily, after this so-called crisiscame forth to present the tapes through hisattorney to Mr. Si rica. Doesn't that suggestthat possibly the whole compromise wassomething of a smokescreen?

MR. VAN ATTA: But perhaps what we'vecreated here is in fact something of amonster that's going to come back to hauntus. If we went through the constitutionalproceedings of impeachment it seems to mewe could avoid that and avoid setting thatprecedent.

MR. RUCKELSHAUS: Yes, yes. I think theproblem may not be that the specialprosecutor is not independent enough, itmay be that there's no way the President canget at him. And so what we have is analternative mechanism to impeachment totry to get at the truth of these allegations.

MR. RUCKELSHAUS: I think that was Mr.Buckley's point at the beginning - is thisprecedent really one that is going to get us ingreat difficulty in the future? It could.

MR. BUCKLEY: Dr. Jeffrey Reiman is inthe College of Public Affairs. Dr. Reiman.

MR. REIMAN: Yes, I'd like first just to pickup on something that Bob started and thatis, Mr. Ruckelshaus, you seem to dismissrather easily the more cynical interpretationof the handling of Cox.

MR. RUCKELSHAUS: No, I don't dismiss

MR. RUCKELSHAUS: There are so manypeople who think that the office of specialprosecutor is a bad thing and, laying asidethe presidential difficulties involved, that itwon't work. In fact the President, when hedischarged the prosecutor, was perceived bythe American people as discharging the manwho was investigating him, however hewanted to put it, and they demanded with aflood of telegrams and letters andcorrespondence of one kind and anotherwith their representatives in Congress thatsomething be done about this. The result ofhis action has been another specialprosecutor, probably with moreindependence in reality than Mr. Cox everhad, with more assurances from the WhiteHouse of access to documents than Mr. Coxhimself ever had.

MR. BUCKLEY: And greater immunityfrom firing.

MR. VAN ATTA: No, I haven't concludedthat. I've surmised, on the basis of the otherkinds of activities that Cox was getting into,ITT and other kinds of affairs, that this wasgoing to get rather broad -

10© Board of Trustees of the Leland Stanford Jr. University. 11

which the theoretical point was in factmuddied.

MR. REIMAN: No, there's no document -

MR. BUCKLEY: On one point, on thewar-making powers it's quite true that someconservative theorists have held, and havefelt this rather consistently, that thePresident does have these powers innately.But this is not, I think, a matter of historicalopportunism. It's rather a reading of theConstitution, concerning which there aredifferences.

MR. REIMAN; But think of the povyers thatthe President has claimed as his innatepowers with really very little conservativeoutrage, the innate power to executiveprivilege without limit, the innate power towi retapping at his discretion of what is adanger to national security, his attempt tocensor the Pentagon Papers pre-publication,the innate power somehow to vetocongressional acts by impounding -

MR. BUCKLEY; Now, you're mixing twopoints. You're mixing, on the one hand, thatwhich is the desideratum and, on the otherhand, that which in fact learned exegetes ofthe Constitution will come up with. When alawyer, John Wilson, who is dubbed aconservative, sits next to Ehrlichman andsays, "I believe that the President does havethe innate power to break into Ellsberg'soffice," it becomes not a question so muchof "Should he have the power?" as "Doeshe?" And we've all been taught that theSupreme Court decides these questions. I'ma little bit fractious myself about giving theSupreme Court that kind of authority, but itis a rather submissive role that theconservative community is in fact playingout.

MR. REIMAN: I could agree with that.

MR. BUCKLEY; I think we should turn toDr. Howard McCurdy, professor ofgovernment.

MR. MCCURDY: I think I want to followup on what Jeff is doing here and ask bothof you: What has Nixon done to thestewardship theory of the presidency, thattheory that says that the president is theonly official elected by all the people andthat he can do anything within his powers aslong as it's not prohibited by theConstitution? Now we've lived under that

system virtually since Jackson's time andcertainly since Teddy Roosevelt's time. Is itnow gone? You know, 10yearsfrom now,we'll look back and say, "What did Nixon doto the presidency?"

MR. RUCKELSHAUS: It's not gone in factbecause there's been no change in either theConstitution or the grant of that power tothe president. In fact, if you go back to thebeginning of the year and all the fights overimpoundment of funds and how that shouldhave struck the Congress in a way thatwould have given them positive impetus tocreate some mechanism within the Congressitself to instill fiscal responsibility over theiractions, it simply didn't happen, which leadsme to believe that what has happened now,the whole question of morality of action bythe President, is not Iikely to change thestewardship theory of the presidency unlessthe Congress moves into any vacuum createdby the President.

MR. BUCKLEY: Which they're beginning todo.

MR. MCCURDY: Which they're beginningto do precisely on the issue that AndrewJohnson was impeached upon.

MR. RUCKELSHAUS: How are they doingit?

MR. MCCURDY: Andrew Johnson wasimpeached because he removed his secretaryof war without the consent of Congress.Congress has absolutely no power to adviseand consent to removals. They claimed it inthe Tenu re of Office Act.

MR. BUCKLEY; That's correct, yes.

MR. MCCURDY: And after an impeachmentand 40 years of fighting the Congress finallyrepealed the Tenure of Office Act and nowwe stand at the door of reopening the veryissue over which our only president wasimpeached.

MR. BUCKLEY: Yes, if Percy's bill goesthrough, you have to rewrite Myers v. theUnited States, don't you?

MR. RUCKELSHAUS: Well, if you say thatis a sufficient precedent to claim thatCongress is thereby going to reassert itsauthority in that area. I just think thecircumstances surrounding this incident areso extraordinary as to make it very

hazardous to generalize about what therelationship between the powers of thepresident and the Congress are going to looklike in the future. There are so many thingsin the society pushing in the other directiontoward greater powers in the presidency.

MR. MCCUR DY: Do I get then the idea thatyou separate the man from the office, whichI don't think anyone since Jefferson hasbeen successful in doing?

MR. RUCKELSHAUS: I haven't suggestedthat we do that, but (laughter). .. No, I thinkthat we do and there may be a period,maybe even transcending this particularpresident, in wh ich there is a trend towardmore congressional assertion of authoritybut I don't see that as being any very lastingtrend.

MR. BUCKLEY: Well, but do you see areversal in the trend, which, as Dr. McCurdysuggests, was a pretty straight graph of theconstantly aggrandized president? Nowwe've got riding over a veto of the Presidenta bill that says that his capacity to makeinstant war is very sharply delimited. Ihappen to be glad, incidentally, but Iwonder really if the constitutionality of it,given a whole lot that has been thought andsaid about the inherent powers of thecommander in chief -

MR. RUCKELSHAUS: There could be someconstitutional power there, too. In sayingwhat I'm saying, I'm not arguing in favor ofit. I think it's too bad that there isn't agreater assertion of authority on the part ofCongress. I just don't see any lastingcapacity in that body to assert itself veryeffectively in this society. If anything shouldh·ave shoved them into it, it was thepre-Watergate events. If efforts on the partof the executive branch to assert unto itselfpower that Congress had traditionally held ­and here was another party in total controlof Congress, almost totally incapable ofcombating that assertion of presidentialpower.

MR. BUCKLEY: Humphrey sat here acouple of months ago and said, "Frankly wedon't know in Congress what we can doabout impoundment, short ofimpeachment," which he thought wasover-drastic.

MR. RUCKELSHAUS: Oh, there's plenty ofthings they could do about impoundment.

There are a lot of things if they wanted toassert the authority. If they want to say,"Here are the areas in which we're going tospend money; this is how much of a budgetwe're going to work within for the comingyear, and we're going to prohibit theimpoundment of any funds appropriated byCongress and order the President to spendthem," to suggest that the Presi dent canthen impound them flies in the face of everycase that's ever been decided on this issue.

What they do is put language - they'llauthorize or appropriate money in languagethat's very fuzzy as to whether it has to bespent or not and deliberately avoid orderingthe President to spend it and then exceedany conceivable fiscally responsible budgetfor that given fiscal year. Then they troopover to the White House and say, "Bail usout. We've obviously gotten ourselves introuble. Don't spend it all." That's whatthey'd been doing in the past. There was acertain amount of that still going on.

MR. BUCKLEY: And this you think may becorrected by the general shake-up of thepresent emergency?

MR. RUCKELSHAUS: I'm not at allconfident it's going to be. I don't see anyreal mechanism being created in theCongress to reverse that.

MR. BUCKLEY; Thank you very much, Mr.Ruckelshaus, thank you, gentlemen of thepanel, ladies and gentlemen from AmericanUniversity.

12 © Board of Trustees of the Leland Stanford Jr. University. 13