Steve Haycox: 40 years ago, some men of integrity stood for the rule of law

commentBy STEVE HAYCOXNovember 4, 2013 

There were commemorations in Washington, D.C., last month of one of the finer moments in American history: the response to the Saturday Night Massacre. What was commemorated was the courage to take a stand on principle by major figures in the Justice Department.

During Senate hearings in 1973 investigating the break-in of Democratic Party offices in the Watergate office complex in D.C., a White House aide revealed that President Nixon had a comprehensive taping system in his office. An issue in the investigation was whether Nixon had personal knowledge of the break-in, and any attempt to cover up White House involvement. When Nixon's attorney general, Richard Kleindienst, resigned under a cloud in the summer of 1973, Nixon appointed Elliot Richardson.

The Senate exacted a stipulation from Richardson in his confirmation, that he would appoint a special prosecutor to investigate the Watergate affair, and not fire him if the investigation led to the president. The special prosecutor appointed was Archibald Cox, one of the most knowledgeable jurists of the time. Learning of the tapes, Cox subpoenaed them. Nixon refused to comply, offering instead an unacceptable compromise. When Cox rejected the compromise, on Saturday, Oct. 20, Nixon ordered Richardson to fire Cox.

Standing on the principle of pursuing the truth wherever it might lead, and honoring his promise to the Senate Judiciary Committee, Richardson refused to fire Cox, and instead, resigned. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox. Again, standing on principle, Ruckelshaus refused, and also resigned. Next in line was Robert Bork, who was also prepared to resign. But Richardson and Ruckelshaus prevailed upon Bork to stay and execute the president's order, both because Bork had made no promise to the Senate, and for the sake of continuity and order in the government. Bork fired Cox. Subsequently, Bork hired Leon Jaworski, who pursued the investigation in the same manner as Cox had done.

Outrage in Congress and the public at the president's flouting of the law eroded his support, and led ultimately to impeachment hearings and passage in the House Judiciary Committee of three charges of abuse of power. An NBC News poll soon after the Saturday Night Massacre found 44 percent polled supporting impeachment, 43 percent opposed.

What the commemorations last week celebrated was the integrity of Cox, Richardson and Ruckelshaus, and the special prosecutor's office. No one could be certain how Nixon would respond, how far above the law he would place himself, as it were. As it turned out, release of transcripts of the tapes over time led Nixon to resign his office rather than face certain conviction in the Senate trial. Nixon is the only president to vacate the office while serving except by assassination.

It is the rule of law that allows the western democracies to work as well as they do, both to represent and to protect the people's rights. It is common in much of the rest of the world for dictators and even elected officials to set aside constitutions and laws when they become inconvenient, to corrupt elections, to fire subordinates who opt to follow the law rather than bend to the leader's will.

There's been much criticism of the U.S. government over the collection of records of communication by the National Security Administration; over the use of drones to kill terrorists, including American citizens, with too much "collateral damage"; over the continuing use of the extra-territorial prison at Guantanamo Bay, Cuba; over the paralyzed Congress; and, here in Alaska, over the overreach of the Justice Department in the Ted Stevens trial. But we have a better chance of learning of our government's excesses, and working to curtail them, because of the rule of law. Anarchy is not an option, rabid survivalists to the contrary notwithstanding. Neither is the crippling of government, as Sen. Ted Cruz and the tea partiers claim to want.

In a video of Archibald Cox's news conference announcing his firing, in the audience of journalists one sees I.F. Stone, the most vigorous muckraking political writer of the day. Assiduous attention to what the government is doing and courageous exposure of its missteps was Stone's conviction. It was the best protection of our democracy then, and it still is.

Steve Haycox is professor emeritus of history at the University of Alaska Anchorage.

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