The Sunday Night Massacre
[This piece was originally published on the Bordas & Bordas law blog in October, 2016.]
In 1973, a special prosecutor by the name of Archibald Cox subpoenaed President Nixon’s now-infamous Oval Office audio tapes. Unable to broker a deal, Nixon summoned the attorney general of the United States, Elliot Richardson, into his office on a Saturday night and ordered Richardson to fire Cox. Richardson refused, and resigned in protest of Nixon’s unethical and illegal order.
Undaunted, Nixon called for the Deputy Attorney General, William Ruckelshaus, He ordered Ruckelshaus, now the Acting Attorney General, to fire Cox. Ruckelshaus refused the unethical and illegal order from the President of the United States, and resigned.
Nixon had to go all the way down to an ambitious right-wing lawyer named Robert Bork to find someone willing to write a letter dismissing Cox from his job as Watergate prosecutor. Bork did it, but the story broke in the papers and Nixon’s public image never recovered. He was driven from office ten months later. The firings became known as the “Saturday Night Massacre.”
Nixon didn’t lose his presidency over a “third-rate burglary,” but over his abuse of power. Our system does not allow the President to directly control the prosecutorial apparatus of the United States because this is not a banana republic, where political opponents are jailed on trumped-up charges. Even the President is not above the law, and though Nixon famously said “when the President does it, that means it’s not illegal,” he turned out to be wrong.
That is what it means to have a nation of laws. It means having lawyers willing to follow and enforce the law in the face of politics and power plays. Without it, the sacred charter of our Constitution ceases to have any meaning.
Sunday night another massacre took place. The second Presidential debate featured Trump’s statement that Hillary Clinton will “be in jail,” if he becomes President. Trump indicated that he would use the powers of the Presidency to prosecute the (hypothetically) losing candidate, by reopening a now-closed investigation. What Nixon only dared to do after winning the Presidency twice, Trump promises to do before his first election: to use the power of his office to prosecute his enemies.
During the second Bush Administration, certain government surveillance of US citizens had to be authorized by the FBI. The Attorney General, John Ashcroft, was hospitalized at the time and his deputy refused to allow certain parts of the surveillance program because they violated the Constitutional rights of American citizens. The White House Chief of Staff, Andrew Card, and another ambitious right-wing lawyer, Alberto Gonzalez, actually went to Ashcroft’s hospital bedside to attempt to go over the Acting Attorney General’s head and get the permission they wanted to violate the Constitution.
Ashcroft hung in there, and said the Deputy AG was acting in his place and if his Deputy would not allow the surveillance, it could not go forward. The Deputy AG stood firm, saying he would resign if ordered to authorize unconstitutional actions. The White House backed down. That Deputy AG found himself back in the news this summer. His name was James Comey.
This is what it means to have a nation of laws. It means that constitutional due process comes first, and scratching the back of the man who appointed you, or the political party you belong to, comes somewhere after that. Ashcroft and Comey, like Richardson and Ruckelshaus before him, did their duty and served their country first when power knocked on their door.
Many people know the quote from Shakespeare: “the first thing we do, let’s kill all the lawyers.” Lawyers hear it all the time. But not everyone knows the whole play. That line comes from Henry VI. The scene features a criminal rebel, hoping to seize dictatorial power. He makes a series of ridiculous boasts, claiming that he is “valiant,” “able to endure much,” and that he fears “neither sword, nor fire.”
He continues with absurd promises to his gang, including “seven half-penny loaves sold for a penny,” “a three hoop’d pot shall have ten hoops,” and “all shall eat and drink on my score. . . and worship me as their lord.” Sound familiar? Anyway, when he has bragged enough, and promised the moon, one of his toadies is there to say “the first thing we’ll do. . .” Then the gang heads out to murder an innocent man.
To be a nation of laws, we need lawyers, and not just any lawyers. We need the likes of Cox, Richardson, and Comey – lawyers who have what it takes to stand up to a President. Lawyers who have what it takes to set aside party and ambition and do what is right for their country. American lawyers take their fair share of abuse (and sometimes earn it), but they are what separates us from third-world countries and military tyrannies where losing the election means going to jail.