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Steven Calabresi Reviews Robert Bork’s “Saving Justice”

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by Publius
Posted April 09, 2013, 9:15 AM

Steven Calabresi, professor at Northwestern University School of Law, writes in the Wall Street Journal:

Many people first came to know of Robert Bork when, in 1987, he was nominated for the Supreme Court and underwent a grueling—some would say, vicious—interrogation from the Senate Judiciary Committee, resulting in the defeat of his nomination. But others knew of Robert Bork already, as a noted legal scholar and, relatedly, as President Richard Nixon's solicitor general, a post that put him at the center of one of the Nixon administration's more tumultuous episodes.

That early period of Bork's professional life is the subject of "Saving Justice," a brilliant work of memoir and analysis that, sadly, appears posthumously. (Bork died on Dec. 19, 2012.) The core of the narrative is an account of the Watergate scandal written by an insider who played a key role in the events that drove both Nixon and his vice president, Spiro Agnew, to resign from office. Bork reveals details of historical importance and recounts conversations he had in 1973 with Nixon, Agnew and other players in the drama.

Within weeks of being sworn in as solicitor general—the lawyer who argues the administration's positions before the Supreme Court—Bork was approached by Alexander Haig, the White House chief of staff, with an offer to become Nixon's chief defense counsel. It was a fraught time in the White House. In July 1973, Alexander Butterfield, a White House assistant, had told the Senate Watergate committee that a secret taping system had recorded the president's Oval Office conversations. It was obvious that the tapes might provide crucial evidence for the committee, charged with investigating the break-in, a year earlier, at the Democratic National Committee headquarters.

Bork turned down Haig's offer, in part on the advice of his old Yale Law School colleague Alexander Bickel. Bork told Haig that he would need to listen to the Oval Office tapes before he could join the president's defense team. This demand proved to be a deal-breaker for Nixon. At the same time, Bork learned that Agnew was under investigation for taking bribes when he was governor of Maryland.

In September and October of 1973, Bork played a critical part, along with Attorney General Elliot Richardson, in insisting that Agnew be indicted by the Justice Department unless he resigned from office. Both men made it clear that they would themselves resign if Agnew were not indicted, and Bork made it clear that there were no legal impediments to the Justice Department indicting a sitting vice president. In a meeting with Nixon, Haig and Fred Buzhardt, a special counsel to the president, Bork laid out his case. "Nixon was totally relaxed and occasionally had his feet up on the desk as he questioned us," Bork writes. "He listened . . . for about forty-five minutes and then said, 'I guess you'll have to indict him.' Haig looked as if he would fall out of his chair."

Agnew agreed to a plea bargain and resigned from office on Oct. 10, 1973, paving the way for Rep. Gerald R. Ford to become vice president and removing Nixon's "impeachment insurance," since the only person Nixon's enemies hated even more than Nixon was Agnew. The drama was hardly over. Within 10 days, Bork had become the acting attorney general of the United States.

Events were set in motion by a stand-off between Nixon and Archibald Cox, a Harvard law professor who had been appointed by Richardson to investigate the Watergate break-in. Cox was ill-suited to perform this task. He had served as John F. Kennedy's solicitor general and was close to the whole Kennedy clan, which had hated Nixon since the election of 1960. Cox lacked the appearance of impartiality, and Nixon, thinking he was the target of a criminal investigation that was being conducted by his political enemies, became unhinged, especially when Cox pressed the White House for the tapes.

On Saturday, Oct. 20, 1973, Nixon ordered that Cox be fired, and the attorney general called a meeting in his office to decide what to do. Joining Richardson were Bork and Richardson's deputy, William Ruckelshaus. In "Saving Justice," Bork reveals that the three men conferred and agreed that Richardson and Ruckelshaus would resign instead of firing Cox. It was also agreed that Bork—who was next in line in the Justice Department's leadership—would fire Cox but that he would keep Cox's team of prosecutors in place. This series of moves would prevent Nixon from placing a White House hack like Fred Buzhardt in charge of the Justice Department. True to his word, Bork fired Cox, but it was Bork who kept Cox's investigation going.

After the "Saturday Night Massacre," as it came to be known, Nixon faced certain impeachment unless a new special prosecutor was hired. Bork worked with Haig to appoint Leon Jaworski, a former president of the American Bar Association. Jaworski took up where Cox had left off; the Supreme Court ordered Nixon to release the tapes; and the tapes revealed that Nixon was a crook. On Aug. 9, 1974, Nixon resigned from office.

Bork's firsthand account of these events is of extraordinary importance to anyone interested in the history of the Nixon administration and the Watergate scandals—not least in the way it explains the honorable logic of the Saturday Night Massacre, an event too often over-simplified, with Bork cast in the villain role. The book, written with wit and style, is also a pleasure to read. When Bork is being considered for the job of solicitor general, John Dean, the White House counsel, calls to invite him to Camp David. Bork remembers Dean asking, "with a confidential chuckle, whether I had any skeletons in my closet. I said no, little knowing that if I had need of a skeleton I could borrow one from Dean's closet, which was overflowing with them."

"Saving Justice" should be required reading in our nation's law schools, as a real-life demonstration that we are a government of laws and not of men. One of the great injustices of modern times was the failure of the Senate to confirm Robert Bork for the Supreme Court. "Saving Justice" shows what a travesty that decision was and what a blow was struck thereby against the effort to get the Supreme Court to follow the rule of law.

 

 

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