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June, 2001

"A Wink and a Nod"
Philip Lacovara, Rosi Barros, Mayer, Brown, Rowe & Maw LLP

On 24 July 1974, Philip Lacovara won a unanimous decision by the U.S. Supreme Court ordering President Richard Nixon to surrender all tapes requested by the Special Prosecutor's Office for its Watergate investigation. In so doing, the President relinquished the so-called "smoking gun" tape of 23 June 1972, that recorded him conspiring to obstruct the investigation into the recent break-in into Democratic National Headquarters to plant, of all things, electronic eavesdropping equipment. Within a week of handing over the tapes, Richard Nixon resigned.

Philip had been working as Deputy Solicitor General for Criminal Matters when he was invited to join the newly established Office of the Special Prosecutor in 1973. When the White House Tapes came to light in the course of the Watergate hearings in the summer of 1973, the Special Prosecutor sought possession of them as important evidence. This began a year-long struggle over the principle of Executive Privilege. Philip had the interesting task of serving the first subpoena on the White House, ordering the President to show cause why his refusal to surrender the tapes did not put him in contempt of court. The animosity continued to build until October 1973 when President Nixon ordered the Attorney General to fire the Special Prosecutor. The AG and the Deputy AG both resigned rather than do it, and it fell to the Solicitor General, Robert Bork, to carry out the firing.

It is known to history as the "Saturday Night Massacre," and Philip remembers it as a night of confusion for his office. "It wasn't clear to us if our entire office had been dissolved that night. Bob Bork told me, though, that the President's order did not include instructions to fire the staff, so as far as he was concerned we were still in business. But many of us questioned whether we should resign in protest of the action, which most of us felt was a naked betrayal of the Independent Prosecutor's charter. We all came into the office that very night-lawyers, staff, secretaries-and after a lot of soul-searching, we agreed that the best course of action was to continue the investigation."

The sense of political crisis was undeniable. The FBI showed up quickly to impound all records of the office, but the surviving members of Cox's staff were able to get an order from Judge John Sirica to call off the FBI. "At one point, it was an ominous stand-off between the FBI and the GSA Police over who would take possession of the records." A short while later, Philip returned to the White House with a show-cause order for President Nixon requiring him to explain why he wasn't in contempt, "but this time I took the precaution of bringing a U.S. Marshal along with me. The mood was pretty hostile. They actually disarmed him before they let us in."

Eventually the battle over executive privilege and the White House tapes did reach the Supreme Court, in July 1974. "We had carefully postured the case to present it as 'the United States versus Richard Nixon,' because we wanted to suggest to the Court that we represented the people of the United States and President Nixon was simply a recalcitrant witness who was refusing to produce relevant evidence.

"We did a lot of things to reenforce that gestalt. For example, we printed our brief in the color only the U.S. Government uses before the Supreme Court. I told Special Prosecutor Jaworski that we had to get to court early, so that we could take the counsel table at which the Solicitor General normally sits when appearing for 'the United States.' I also told Leon that we should both wear formal gray cutaways, just as the SG and his staff do-and still do-when appearing before the Court. But that's where he drew the line, telling me with his twinkling Texas drawl that I should be satisfied that he wasn't going to wear his cowboy boots."

Philip and Leon Jaworski had equal time-about 45 minutes each-before the Court. Jaworski presented the opening arguments, and Philip handled the rebuttal portion. That was July 8. Two weeks later, on 24 July, the Supreme Court handed down a unanimous opinion against the President, and two weeks and a day after that, Richard Nixon resigned.

"Although Nixon partisans never believed it, the special prosecutor's office was established to investigate the Watergate matter, not to lynch Richard Nixon. We ultimately obtained indictments of his highest aides, John Mitchell, Bob Haldeman, and John Ehrlichman, and the White House Tapes were simply evidence against those parties. The fact that they also incriminated President Nixon was-almost-beside the point. His resignation was not really directly relevant to our case. We came into the office the next day and worked to prepare our case against those already indicted. I thought Nixon was open to indictment-he wasn't beyond the scope of our investigation-but at that time, he was not a direct factor.

"It was only when President Ford pardoned him a month later that we had cause to object to our authority being abridged. Nixon's culpability should have stayed in play, and the revered 'system' that everyone claimed had worked so well up to that point should have been allowed to function."

Do you think there was some kind of deal made?

"I think there had been a wink and a nod between General Haig and Vice President Ford," Philip says simply.

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