a ruling against the President but almost irresistibly pressing
for it."33 It was manifestly clear, from the evidence in the justices' files, that the justices were aware of that reality and that
they acted with dispatch to fulfill their "duty to end the Watergate crisis."
However credible or noble that action of the Court might have
been at the time, the simple truth is that in their commitment
to come to judgment quickly, a majority of the justices accepted the arguments of the Nixon attorneys that executive
privilege was constitutionally based. It would have been enough
for the Court to have ended the crisis; the justices did not have
to create a broad constitutional executive privilege.
The precedent, however, has been established. While there
was some discussion about executive privilege, there should
have been a great deal more reflection and analysis by the judges
before the creation of the constitutional privilege. (Between May
31 and July 24, 1974, many strongly held views were expressed--and modified--by the justices, except for the executive privilege principle.) The Court ended the 1974 presidential
crisis of Watergate, but by employing interpretive judicial review to define the contours of Article II, it may well have set
the stage for future constitutional crises.
Douglas rarely tried to persuade his colleagues on cases and
controversies before the Court. On the issue of executive privilege,
however, he was especially active, and his activity was clearly seen in
letters written to Powell and Burger, the major Nixon supporters on
the issue of executive privilege. In a July 11 letter to Powell, Douglas
pleaded with his colleague, because the group was torn between the
privilege being grounded in common law or in the Constitution, to
"reserve making a decision on it as it is a question not necessary for
us to reach on the facts of this case." In a July 12 letter to Burger, Douglas wrote: "I don't think it is necessary to reach the decision of
whether [executive privilege] is based on the constitution. The office
of the President as I read the Constitution is to executive the laws
faithfully. A conspiracy to violate the laws or a conspiracy to protect
people who have violated the law cannot be brought under Article 2
of the Constitution.... On the basis of the showing so far, conver
Questia, a part of Gale, Cengage Learning. www.questia.com
Book title: "We Have a Duty":The Supreme Court and the Watergate Tapes Litigation.
Contributors: Howard Ball - Author, Paul L. Murphy - Editor.
Publisher: Greenwood Press.
Place of publication: New York.
Publication year: 1990.
Page number: 150.
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