First Among Equals (35 page)

Executive privilege, in contrast, was weak (unless, again, military or diplomatic secrets were at issue). It would have to bend to the needs of a single trial, or, as the court of appeals had held in an earlier phase of the Watergate controversy, to the interests of the federal grand jury. The irony was stark: The president enjoyed virtually absolute confidentiality were he consulting with his private lawyer (to secure legal advice, as opposed to general policy or political advice), but he possessed only a qualified privilege if he were talking with his chief of staff.

The president nonetheless dutifully obeyed the Court's order, turned over the tapes, and within two weeks resigned.
United States v. Nixon
had brought the Nixon presidency to a shattering conclusion.

Nixon
stands for the following: All persons are under the law. The law (as interpreted by the courts) is supreme. Since the president is under the law, he can be ordered to give over tapes, just as Thomas Jefferson, while president, was ordered by Chief Justice John Marshall to turn over documents for evidence in the treason trial of Aaron Burr.

The Court's supremacy was also manifest in the most important executive-powers case decided by the Rehnquist Court,
Morrison v. Olson.
At issue was the constitutionality of the special prosecutor act, which came to be known as the independent counsel statute. The statute was a direct response to the firing of Archibald Cox. Passed by Congress in 1978, the law required the attorney general to apply to a Special Division of the United States Court of Appeals in Washington for appointment of a “special prosecutor,” later called “independent counsel,” when allegations of wrongdoing were made against a high-level executive branch official, including the president.

The Reagan administration fought the law, first in Congress and then in the courts. In round one, the Justice Department urged Congress not to reauthorize the statute when it first came up for renewal in 1983. At senior levels, department officials—beginning with my mentor and former law partner, Attorney General Bill Smith—focused on the statute's costs and benefits. Inside the Reagan Justice Department, where I was serving at the time, we well understood that the law was aimed at ensuring a fair, vigorous investigation into wrongdoing when allegations were made about a senior executive branch official. But this apparent “benefit” came at a high cost. At the core, we felt, the statute was unconstitutional; it intruded improperly into the functions of the executive branch. Among the fundamental responsibilities of the executive branch was the faithful enforcement of the law, including investigating and prosecuting federal crimes. The statute was aimed directly at that very function: the president's ability to control criminal investigations and prosecutions at the federal level.

Speaking through the then associate attorney general, future New York City Mayor Rudy Giuliani, the Department of Justice, under Attorney General Smith's leadership, urged Congress to allow this feature of the post-Watergate “reforms” to expire in accord with its built-in sunset provisions. But Congress disagreed, the law was re-enacted in 1983, then again in the late 1980s, and then, finally—and fatefully—in 1994.

Along the way, the issue of the statute's constitutionality found its way into federal court.
Morrison v. Olson
was the watershed. This was round two in the battle over the statute, and the Reagan administration again weighed in, this time through written briefs and oral arguments. By this point I was serving on the court of appeals in Washington, and I stepped aside as the case wended its way into our court. Embracing the Reagan administration's attack on the statute, the court of appeals struck down the law as unconstitutional on a variety of grounds. I was gratified since this was precisely the position that the Reagan Justice Department under Bill Smith had championed in Congress five years before.

But this was not to be the last word. In 1988, in a sweeping decision, the Rehnquist Court reversed my court's judgment, upheld the law, and said that Congress had the power to control the president's exercise of authority over the executive branch. In particular, the Court, speaking through Chief Justice Rehnquist, upheld Congress's power to limit the president's authority over appointments of executive branch officials. Even though the independent counsel was an executive branch official exercising only executive authority, the president's power to appoint—and remove—such an official could be narrowed by Congress.

This was an extraordinary result, crafted by an overwhelming 7–1 majority (Justice Kennedy, newly arrived at the Court, did not participate). The Court upheld the law through a balancing and weighing process. This intrusion by Congress into the powers of the presidency was limited, the Court assured the country, to a particular set of circumstances that would not substantially interfere with the orderly functioning of the executive branch. Looming in the background was Judge Lawrence Walsh's far-reaching Iran-Contra investigation and then, in the 1990s, the Whitewater investigation culminating in President Clinton's acknowledgment, on his last day in office, of responsibility to the criminal justice system. In a prescient dissent, Justice Scalia attacked the law as entirely inimical to a system of separated powers; the country would rue the day the Court upheld this system of congressionally ordained investigations of executive branch officials.

The die was thus cast for the 1997 case
Clinton v. Jones,
the controversial lawsuit brought by Paula Corbin Jones against the president that eventually found its way to the Rehnquist Court. The enduring result in that most famous of sexual harassment cases, ultimately dismissed by Chief Judge Susan Webber Wright, was foreshadowed by the
Nixon
case and to a certain extent by
Morrison v. Olson.
From
Nixon
came the principle that the president had to stand before the bar of justice just like anyone else. Applied to the Paula Jones contest, the president could not claim an exemption from civil process. He would have to deal with lawsuits brought against him in his private capacity (as opposed to his official capacity as the president), just like other citizens. From
Morrison
came the point that executive power was not so broad as to be without significant limitations that Congress saw fit to impose.

Like President Nixon's resistance to subpoenas, the effort by President Clinton's lawyers to create a new form of “immunity” from private civil litigation was doomed from the outset. Paula Jones's suit, grounded in the federal statutory law of sexual harassment and civil rights, was assailed by his private lawyers as a distraction to a busy president. The Supreme Court was respectful, but ultimately unpersuaded. As in the
Nixon
case, the Court rejected President Clinton's claim by a unanimous vote.

As in
Nixon,
the Court was unanimous on this proposition: The federal judicial system has its own pressing needs. Just as the president is not given an exemption from the federal tax laws, he likewise does not enjoy any sort of constitutional immunity from lawsuits brought against him as an
individual.

This did not mean that the president was powerless, left to the whim of any judge in the country who might be presiding over private litigation involving the president. To the contrary, the Rehnquist Court, speaking through Justice Stevens, emphasized that the unique responsibilities of the president required judges to be highly respectful of the extraordinary demands on his time and attention. Judges would have to accommodate the president's schedule.

This was not just politeness by one branch toward another. This was institutional respect born of the nature of the presidency. Chief Justice Marshall in the Aaron Burr case had made this corollary clear: The president was fully subject to the law (as interpreted by the courts), like all others in our representative democracy, but he would be accorded every courtesy due the nation's chief executive. He was not to be treated like just any other litigant.

There was another potential source of relief, however. Congress could, if it so chose, step in and legislate. This was a lesson from
Morrison,
and the parallel principle of congressional supremacy operating within its sphere. If, as pundits predicted, the president found himself subject to time-consuming, distracting litigation, then Congress could, by statute, provide for relief (consistent with basic due process demands). Years before, Congress had done just that in connection with the military. Especially for service personnel stationed far away from home, the burdens of litigation would at times become unmanageable. Basic fairness required some sort of dispensation. And Congress did what legislative bodies customarily do; the Article I Branch made a study of the issue and crafted a statute that struck a balance between the interests of service personnel, on the one hand, and fairness to litigants bringing lawsuits against those personnel on the other. Congress, in short, could weigh competing interests and craft a statute that reflected its considered sense of fair play. This was, in a different setting, the approach of the Rehnquist Court in
Morrison v. Olson.

Constitutional decision-making, however, seemed different from a run-of-the-mill equity case. This was the judiciary interpreting rights and responsibilities—or powers—under the Constitution. This seemed far afield from a judge “sitting in equity” determining the best remedy in resolving a dispute, to take a commonplace example, between two property owners when the underlying issue was the legality of an intrusion (or trespass) by one person onto the property of the other. To import the methods and mind-sets of equitable decision-making seemed likely to enhance judicial power at the expense of Congress and the presidency. The judiciary, not the two political branches, would weigh matters in the balance and then come to judgment.

But this was the methodology the Court saw fit to use when it came to interpreting the powers and prerogatives of the presidency. The result was indeed to enhance judicial power, and in the process, to maximize judicial flexibility in the exercise of that power. The Court's moderation served ironically to expand judicial authority—to ensure the Supreme Court's role as the authoritative, final voice in the framework of representative government. The stage was set for
Bush v. Gore.

Chapter Fifteen

B
USH V
. G
ORE

T
HE ENDURING QUALITY
of the Supreme Court's supremacy under the leadership of Chief Justice Rehnquist has nowhere been more manifest than in the case that resolved the 2000 presidential election,
Bush v. Gore.
Given the high stakes and the political context, it was unsurprising that the cries of foul were both loud and heartfelt. There was a genuine sense in many quarters that the Court had assumed an overtly political role, with Republican appointees cobbling together a majority of votes to give the election to George W. Bush.

The decision and reaction seemed, ironically, like a page drawn from the stormy history of the Warren Court or the Burger Court in its most controversial decision,
Roe v. Wade.
Typical of the reaction, although expressed in terms of sorrow, not anger, was that of New York Congressman Jose Serrano, who stated in a March 2001 hearing on the Supreme Court's budget that the Court “broke my heart by getting involved with a political decision.”

Indeed, the most significant fact in the Rehnquist Court's role in the presidential election litigation was that it chose, twice, to become involved at all. It could have simply declined to hear the case. There would have been criticism of the Court, to be sure, for forsaking its duty to decide important issues, but the criticism would not have been particularly serious and certainly not enduring. Rarely if ever does the Court find itself engulfed in controversy by virtue of deciding not to decide. It is widely viewed as commendable when the Court approaches its work with prudence and caution, including staying away from issues that bitterly divide the country. And prudence and caution have characterized much of the work of this Court of lawyers, not politicians.

As a result, many Court watchers, myself included, did not expect the Court to step into the swirl of litigation that came out of the closeness of the presidential vote in Florida. At first glance, the lawsuit seemed to revolve around very specific aspects of Florida election laws, such as how and when to conduct an election “protest” procedure and then a “contest” of the election results. The body of Florida statutes governing elections seemed quite complicated. More than that, the duty of interpreting Florida election law fell, naturally, to the Florida state courts, not the federal courts.

To be involved at all, the federal courts needed a federal “hook,” a claim under federal statutes or the Constitution. Otherwise, the federal courts, including the Supreme Court, would have no power over the matter. Just as Congress cannot regulate those matters entrusted to the states in our federal system, so too the federal courts cannot, as a general matter, stray beyond the boundaries of federal law and insert themselves into state-law controversies.

Then again, a presidential election was at stake. Although the Florida courts were interpreting that state's law, the context was overwhelmingly federal. Control of the White House would be determined by Florida's twenty-five electoral votes, so a strong “federal interest” overlay the state courts' interpretation of state law.

One federal interest lay in the Constitution itself. Article II, section I of the Constitution entrusts the method of determining a state's presidential electors to the legislatures of the various states. This delineation of power proved important in the
Bush v. Gore
litigation. Nothing in the Constitution prohibits, for example, a state legislature from deciding how to cast the state's electoral votes for president. Tradition, common sense, and obvious political considerations ensure that the popular vote will be the method for determining a state's position on who the next president should be. Nonetheless, as the Florida litigation continued week after week in the wake of the November 7 election, the Florida legislature—not without controversy—went into session to carry out its responsibility. If litigation gridlock resulted, with the dispute continuing between the state's highest court and the Florida secretary of state (who had certified Governor Bush as the winner based on the original count and the machine recount), then the Florida legislature seemed poised to step in and designate the state's electors. The heavy assumption was that the Republican-controlled legislature would designate George W. Bush as the victor and send a slate of electors to Washington to vote for Bush. It would then have been up to Congress to decide whether to recognize that slate. That untidy, politically divisive result was made possible by the Constitution. Governor Bush's advocate at the time, Ted Olson, who then became President Bush's solicitor general, made much of this point in his oral argument before the Court in the initial case,
Bush v. Palm Beach County Canvassing Board.
In his view, the framers of the Constitution did not want the state judiciary to be a pivotal institution in the presidential election process. He argued the point this way: