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The Massacre and the Quid Pro Quo

[ 25 ] February 27, 2013 |

Interesting:

Robert Bork says President Richard Nixon promised him the next Supreme Court vacancy after Bork complied with Nixon’s order to fire Watergate special prosecutor Archibald Cox in 1973.

Bork’s recollection of his role in the Saturday Night Massacre that culminated in Cox’s firing is at the center of his slim memoir, “Saving Justice,” that is being published posthumously by Encounter Books. Bork died in December at age 85.

Bork writes that he didn’t know if Nixon actually, though mistakenly, believed he still had the political clout to get someone confirmed to the Supreme Court or was just trying to secure Bork’s continued loyalty as his administration crumbled in the Watergate scandal.

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  1. Murc says:

    My opinion of Robert Bork was pretty low, but I was always willing to at least entertain the notion that his role in the massacre was a bit overstated and that he hung on because his predecessors told him that someone senior needed to keep the lights on while the President went nuts.

    Looks like I may have been wrong to be so generous.

    • Warren Terra says:

      As I recall, Bork (or his defenders) claimed that his superior, who resigned rather than fire the special prosecutor, asked him not to resign, with an argument that the public protest had happened and no further would help, and some sort of continuity of government was necessary.

      As I recall, he (or they) made this somewhat dubious claim after the supposed other party to the conversation in question was deceased.

      • Julian says:

        Is this the progenitor of the Tom Friedman cabbie-who-agrees-with-me argument?

      • howard says:

        first richardson, then ruckelshaus resigned rather than fire cox, and so the bork Or bork-oriented argument has always been the story you both cite, that they both urged him not to resign so that there was some continuity.

        i still remember watching the tv news reports that night.

        • dave brockington says:

          The story that Richardson recommended to Bork that he go ahead and sack Cox is what is reported in the Theodore White book, and also I believe Woodward and Bernstein’s The Final Days. The way the event is reported is that Richardson and Nixon had several lengthy conversations, but by the time the succession got to Bork, there was nothing more than a phone call. Both contemporaneous books, I believe, mention a meeting between Haig and then VP Ford regarding pardons, but there’s nothing on a quid-pro-quo with Bork. I doubt it happened. Bork was interviewed, and he would have had nothing to lose to mention that; indeed he could have spun it to make himself appear more, not less, appealing at Nixon’s expense (“this appointment was offered, but that would have been an impropriety and I declined”).

          • Timb says:

            No one would have believed that. He had every reason to believe Nixon would make it through the scandal and he would get his appointment. Bork was never one to read a tea leaf properly

    • howard says:

      Murc, my precise thought when i first read the story earlier today, so i’ll just add two points:

      somewhere around 1990 or so, i actually was seated next to elliot richardson on a shuttle between new york and boston. i was going to give him privacy, but he obviously could tell that i recognized him, and so he put out his hand and said “elliot richardson,” and i said “it’s an honor to meet you, sir” (and let me assure you, that’s a comment i normally reserve for meeting people like count basie and max roachk!) and then, of course, we both turned to our respective briefcases.

      and then there’s this nice story at tpm from a former student of cox’s.

      • socraticsilence says:

        Seriously, I wonder how many high level executive branch types would have the honor to resign like that in the last quarter century, I mean imagine the impact if say Powell had resigned right after it became clear he was misled on WMDs.

  2. Crackity Jones says:

    What was the entire DOJ supposed to resign? I was convinced by the argument that after Bork, the next in the food chain would be bureaucrats, not appointees. I agree that those non-appointees shouldn’t have to choose between their livelihood and disobeying the President.

    But I am not defending Bork.

    • ajay says:

      What was the entire DOJ supposed to resign?

      Yes, basically. If you get an illegal order, you refuse it. And if that means you lose your job, you lose your job. You leave as publicly and noisily as possible, and hope that the noise leads to the sacking/impeachment/arrest of the person who gave the illegal order, after which you get your job back. All part of the wonderful world of public service. “But I really want to keep my job” is not an excuse for doing illegal stuff.

      • rea says:

        It wasn’t an illegal order, though–just an immoral one.

        • Right, this was before the Congressional “Independent Counsel” law. Cox was an executive officer who served at the pleasure of the President.

          • Craigo says:

            Actually, the special prosecutor could only be removed for cause, a category of misconduct which presumably doe snot include “has dirt on the President.”

            • Dilan Esper says:

              Not to get too deep in the weeds, but because the special prosecutor was a presidential appointee, the President could always change the standard for firing him.

              This is exactly WHY the Ethics in Government (independent counsel) Act was passed and we ended up getting Ken Starr. A special prosecutor the President could always fire was seen as a bad idea.

              I am not defending Bork either, but there was some merit to the idea that you can’t have the President’s subordinates all refuse to carry out a lawful but odious order.

              At any rate, also lost in this is that Leon Jaworski, Cox’s replacement, did a fine job and Nixon’s action, if anything, backfired.

              • Craigo says:

                Actually, an executive agency cannot dismiss one of its officers except according to its own regulations, and the regulation creating the Special Prosecutor expressly limited his discharge to one of two situations: consent, or extraordinary impropriety. Bork did not even attempt to defend the dismissal under either grounds.

        • ajay says:

          Same applies for unethical orders that aren’t illegal.

          • socraticsilence says:

            Arguable, you could posit instead that its up to the Voters or if necessary Congress to hold forth on the morality of Presidential directives, especially if you’re serving as part of the permanent bureaucracy where at least in theory you should be doing your job not setting policy.

    • Rarely Posts says:

      Several problems with your comment, but among others: if enough people resigned, Nixon was probably going to stop giving the order.

  3. Arthur says:

    He was a a genuine Cox sacker.

  4. c u n d gulag says:

    ‘David, if the President does it, it’s not a quid pro quo.’

  5. rea says:

    President Richard Nixon promised him the next Supreme Court vacancy after Bork complied with Nixon’s order

    It’s not a quid pro quo if the promise is made after the action the promise supposedly induced.

    • MJSS says:

      It’s an ambiguously phrased sentence, but the rest of the article makes it clear that it’s meant to be “promised him (the next Supreme Court vacancy after Bork complied)”, not “(promised him the next Supreme Court vacancy) after Bork complied”.

  6. socraticsilence says:

    There goes the slightly noble interpretation that Richardson and Ruckelshaus told Bork to do it since resignation wasn’t an option or however that justification went.

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