Legal History

The Trial of Anthony Burns and the Coming of the Civil War

By C. Evan Stewart

Although we do not like to admit it, the Founding Fathers wrote slavery into the U.S. Constitution.  In some places it is somewhat obscure (e.g., Article I, Section 2: “other persons” (i.e., slaves) are to be counted as 3/5ths of a person for purposes of Congressional representation and federal taxation); in others, it is more explicit (e.g., Article IV, Section 2, Clause 3: “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”).  This latter provision came at the insistence of Pierce Butler and Charles Pinckney of South Carolina, who proposed to the Constitutional Convention on August 28, 1787 that a clause be added to require “fugitive slaves and servants be delivered up like animals.”  The following day Butler moved to have the following language added to the Constitution:  “If any person bound to service or labor in any of the United States shall escape into another state, he or she shall not be discharged from such service or labor in consequence of any regulation subsisting in the state to which they escape, but shall be delivered up to the person justly claiming their service or labor.”  The substance and sentiment of Butler’s language ultimately was embodied in Article IV, Section 2, Clause 3.

The Fugitive Slave Acts of 1793 and 1850

Because Article IV, Section 2, Clause 3 provided no enforcement mechanism, Congress passed the Fugitive Slave Act of 1793, which President George Washington signed into law on February 12, 1793.  By that legislation, slave-owners/catchers were allowed into every state and all territories owned by the United Sates, and upon written or oral proof to an official therein, permitted to reclaim their “property.”  The legislation also made it illegal to “knowingly and willingly” interfere with slave-owners/catchers and/or to “harbor or conceal … a fugitive from labor,” with punishment thereof by payment of $500.

The 1793 law was not vigorously enforced in the Northern states, much to the consternation of the staunch advocates of the South’s “Peculiar Institution.”  In fact, many Northern states passed “personal liberty laws,” designed to inhibit federal enforcement of the 1793 law.  In New York, for example, Governor William Henry Seward helped enact numerous protections for fugitive slaves, including a right to a jury trial, a requirement that state lawyers intervene on the fugitive slave’s behalf, and the right of the governor to name agents to go to Southern states to negotiate for and free blacks captured and sold into slavery.

One state’s personal liberty law was litigated up to the U.S. Supreme Court:  Prigg v. Pennsylvania, 41 U.S. 539 (1842).  In Prigg, the Court (via seven separate opinions) struck down Pennsylvania’s statute as unconstitutional, as well as being trumped by the 1793 law under the Supremacy Clause.  At the same time, however, Justice Story’s “majority” opinion observed that states were under no obligation to use any of their own resources to enforce the 1793 law.  To many Southern “Fire-Eaters” that dictum constituted a breach of faith to the South, rendered its “property utterly insecure,” and (at a minimum) violated the “spirit” of the Constitution.  By the late 1840s, according to Senator John Calhoun, “the attempt to recover a slave, in most of the Northern States, cannot now be made without the hazard of insult, heavy pecuniary loss, imprisonment, and even of life itself.”

Those concerns (and the ever-increasing Underground Railroad) led to the Fugitive Slave Act of 1850.  It was part of an omnibus set of bills Senator Henry Clay designed (and Senator Stephen Douglas later skillfully guided through Congress) to deal with the huge swatches of land acquired as a consequence of the Mexican-American War.  As a part of the Compromise of 1850 (which was hailed by many as the “final” answer to controversies over slavery), the Fugitive Slave Act required all law-enforcement offices throughout the country to arrest an alleged runaway slave (failure to do so brought a fine of $1,000); forbade anyone from helping an alleged runaway slave (with punishment of six months in jail and a fine of $1,000); forbade a runaway slave from testifying on his or her own behalf; barred jury trials; and required only that the owner swear under oath as to his ownership of the runaway slave.  Debate over the statute was heated and intense.  In his famous Seventh of March Speech, Senator Daniel Webster – pleading for compromise between the two sections – declared that on the issue of fugitive slaves, “the South is right, and the North is wrong.”  Ultimately, the 1850 Act passed the Senate by a vote of 27-12 (with 20 Senators registering as not voting) and it passed the House by a vote of 109-76 (with 42 Congressmen registering as not voting).  President Millard Fillmore signed the bill into law on September 18, 1850.

Once in place, the 1850 Act played out in various states throughout the North in a way that made Harriet Beecher Stowe’s Uncle Tom’s Cabin chillingly real:  in Ohio, the cases of Margaret Garner, Rosetta Armstead, and George McQuerry; in Syracuse, New York, the case of Jerry Henry; in New York City, the case of Stephen Pembroke; in Wilkes-Barre, Pennsylvania, the case of William Thomas; the “Christiana Massacre” in Southeastern Pennsylvania (three blacks were killed, as well as the white owner-claimant); in Boston, the cases of William and Ellen Craft, Shadrach Minkins, and Thomas Sims.

But none of these incidents was as significant to the fate of the nation as the case of Anthony Burns.

The “Trial” of Anthony Burns

Anthony Burns was a Virginia born slave who, against state law, learned to read and write; he was also a lay minister in his slave community.  Hired out by his master, Charles Suttle, to another man, William Brent, in Richmond, Burns was able to save some money doing odd jobs and ultimately stowed away on a boat to Boston in February of 1854.  After working as a cook and a window cleaner, Burns was able to find a steady job in a clothing store.

Unfortunately, Burns wrote a letter back to one of his brothers, who still was enslaved in Richmond.  Suttle came into possession of the letter and went into state court in Virginia to start the process of recovering his slave.  On May 16, 1854, the Virginia court declared that Suttle had demonstrated “satisfactory proof” that Burns was his slave and was a fugitive.  Suttle and Brent then set sail for Boston to re-claim Suttle’s “property.”

On May 24, 1854, Suttle appeared before Edward Greely Loring, who in addition to being a Massachusetts state probate judge and a Harvard Law School professor, was also a commissioner for the federal district court in Boston.  Faced with the Virginia court determination and Section 10 of the Fugitive Slave Act of 1850 (said determination constituting “full and conclusive evidence of the fact of escape, and that service or labor of the person escaping is due to this party in such record mentioned”), Loring issued an arrest warrant for Burns.  He was apprehended outside his shop and “escorted” by a large group of men to the courthouse.  Brought upstairs to the jury room, Burns was confronted by Suttle and Brent:

Suttle: “How do you do, Mr. Burns?  Why did you run away?
Burns: “I fell asleep on board the vessel where I worked and, before I woke up, she set sail and carried me off.”
Suttle: “Haven’t I always treated you well, Tony?  Haven’t I always given you money when you needed?”
Burns: “You have always given me twelve and one-half cents once a year.”

After this exchange, Suttle and Brent confirmed to the U.S. Marshal that Burns was in fact the fugitive slave they sought.  Burns then was compelled to spend the night in the jury room, with a hearing as to Suttle’s claim on his “property” to take place the following day before Loring.

By the next morning (May 25), news of Burns’ arrest had spread throughout Boston.  Already outraged by Congress’s passing of the Kansas-Nebraska Act on May 22 (which opened up those territories to the possibility of slavery, in violation of the Missouri Compromise of 1820), many prominent abolitionists showed up in Loring’s courtroom, including well-known attorney Richard Henry Dana.  Initially, Burns seemed intent not to put up a fight; but after Dana’s intervention on his behalf and Loring’s advising him of his right to counsel and that he did not have to make any decisions right away, Burns said he would like more time; Loring then declared, “Then you shall have it.”  The hearing date, first set for the next day (May 26), was ultimately re-set for Monday, May 29.
On Friday evening (May 26), a large crowd (between 2,000 and 5,000) gathered in Faneuil Hall to hear protest speeches (e.g., “if [Anthony Burns] leaves the city of Boston, Massachusetts is a conquered state.”) Whipped into a frenzy, several hundred people left Faneuil Hall and headed to the courthouse determined to free Burns.  Using a battering ram, protesters breached the building.  In the melee that ensued, a temporary deputy federal marshal was killed.  Ultimately, the protesters were driven off, with eight men arrested.

After the events of Friday night, Boston’s mayor ordered the state militia to guard the courthouse.  The U.S. Marshal also brought in two separate contingents of Marines to assist. He thereafter sent a telegram to President Franklin Pierce, telling him what had happened, but that 
“[e]verything is quiet now.  The attack was repulsed by my own guard.”  President Pierce’s response:  “Your conduct is approved.  The law must be executed.”

At 11:00 a.m. on May 29, the rendition hearing (i.e., the legal process for judging whether a fugitive slave would be returned to his or her master) began.  Brent was the first witness, testifying first about his knowledge of and experience with Burns in Virginia (inexplicably, he swore he had last seen Burns in Richmond on March 20 – a physical impossibility that opened up an evidentiary door for Burns’ defensive team).  He then was asked to recount the May 24 colloquy between Burns and Suttle.  At that point Burns’ counsel objected, citing Section 6 of the 1850 Act, which prohibited any testimony of an alleged fugitive slave at a rendition hearing.  Suttle’s counsel’s responded that confessions and/or admissions uttered outside a courtroom did not constitute “testimony.” Loring overruled the objection, but noted he might reconsider his decision at a later point.  After Brent related the two mens’ exchange, his account was corroborated by a second man who had been present in the jury room.  Suttle’s counsel thereafter put into evidence the Virginia court determination and then rested.

When it was the defense’s turn, a second lawyer, Charles Ellis, made an incendiary opening argument (“if you send [Burns] hence …, he goes to the  block, to the sugar or cotton plantation [and] to the lash”), attacked the bona fides of the Virginia proceeding under the 1850 Act, and contended that the Massachusetts court was not in a position to give “full faith and credit” to that proceeding (per Article IV, Section I of the Constitution).

The following day (which happened to be the same day President Pierce signed the Kansas-Nebraska Act into law), Ellis resumed his offensive, now re-arguing about the admissibility of the May 24 exchange between Burns and Suttle.  He also contended that to be a “fugitive,” a slave had to intend consciously to escape, and (even assuming the admissibility of the May 24 exchange) the only evidence in the record was that Burns’ escape was inadvertent.  Ellis concluded by making a full, frontal assault upon the constitutionality of the 1850 Act itself (unfortunately, most of his arguments had been previously vetted and rejected by the Massachusetts Supreme Judicial Court in In re Sims, 7 Cush. (61 Mass.) 285 (1851)).

The defense then called William Jones, a free African-American, who testified that he had worked with Burns cleaning windows in early March; this, of course, contradicted a key portion of Brent’s testimony.  Jones’ testimony about Burns being in Boston in early March then was corroborated by eight other witnesses.  Suttle’s lawyer subsequently tried to rebut the testimony regarding Burns’ location with some additional witnesses, but was not very effective.

In their closings, both parties’ counsel made impassioned pleas, repeating many of the same legal points previously argued to Loring.  Suttle’s lawyer, among other things, praised the city of Boston, glad “that order was supreme; that Faneuil Hall, cradle of law and liberty, was closed today against treasonable and insane speech.”  Dana, closing for Burns, appealed to Loring’s better angels:

You recognized, Sir, in the beginning, the presumption of freedom.  Hold to it now, Sir, as to the sheet-anchor of your peace of mind as well as [Burns’] safety.  If you commit a mistake in favor of the man, a pecuniary value, not great, is put at hazard.  If against him, a free man is made a slave forever.  If you have, on the evidence or on the law, the doubt of a reasoning and reasonable mind, an intelligent misgiving, then, Sir, I implore you, in view of cruel character of this law, in view of the dreadful consequences of a mistake, send him not away, with that tormenting doubt on your mind.  It may turn to a torturing certainty.  The eyes of many millions are upon you, Sir.  You are to do an act which will hold its place in the history of America, in the history of the progress of the human race.  May your judgment be for liberty and not for slavery, for happiness and not for wretchedness; for hope and not for despair.

At 9 a.m. on June 1, with Boston under martial law, Loring entered a packed courtroom to read his decision.  Suttle and Brent, however, were not present – they had repaired to the U.S. revenue cutter Morris, which had been sent to Boston to assist in the rendition of Burns (President Pierce had directed the Secretary of War, Jefferson Davis, and officials in Boston that “any expense deemed necessary” be used to enforce the 1850 Act).  Loring dismissed all of the constitutional arguments raised because of the Sims precedent, which bound him (thus, it was not his job, he opined, to strike down a constitutional law that some/many considered “so cruel and wicked”).

Loring then turned to sole issue that remained:  was Burns in fact a fugitive slave.  Acknowledging the “complete and irreconcilable” conflict between witnesses “whose integrity is admitted,” Loring looked instead to Burns’ own words on May 24 and found that they constituted a legal admission that had not been the result of “hope or fear.”  As such, Loring ruled that Burns was the fugitive slave identified by the Virginia court and ordered that he be returned to Suttle.

The Return to Virginia and Bondage

At 2:30 p.m. on that same day, Burns was escorted out of the courthouse on foot by a group of the Boston Lancers, a U.S. Army company of infantrymen, two Marine companies, an artillery group that had a nine pound cannon filled with grapeshot, approximately 100 U.S. Marshals and deputies, and the entire Boston police force.  The streets, which had been closed to traffic for over two hours, were jammed with 50,000 people yelling, among other things, “kidnappers,” as Burns was led to the wharf.  At one point, some of the military were pelted with cayenne pepper, vitriol, and cowitch (an extract from a plant that causes skin rashes and extreme itching).  As the crowd surged forward, a horse was killed by one of the military personnel and an order was given to fire on the crowd.  Thankfully, the order was quickly cancelled and the unruly protestors were pushed back without any fatalities (but with many having sustained severe injuries).

Burns, who was dressed up in elaborate finery given to him by his jailers, finally reached the wharf.  Taken first to a steamer, the John Taylor, he later was transferred to the Morris and the trip to Virginia began.

Back in Richmond, Burns spent four months in a tiny cell, with his hands and feet bound.  Ultimately, he was placed up for auction, where he was sold to David McDaniel, a slave trader from North Carolina.  Once relocated to North Carolina, Burns was identified to a friend of McDaniel’s wife as the slave who had been at the center of the great controversy in Boston.  This news made its way back to Amherst, Massachusetts, where a minster, G.S. Stockwell, thereupon contacted McDaniel about purchasing Burns.  McDaniel was amenable, at a price of $1,300.  Stockwell then reached out to Leonard Grimes, a Boston based minister who had earlier tried to purchase Burns’ freedom during the trial.  This ultimately led to an agreement for the deal to be closed in Baltimore on February 27, 1855.  Not without difficulties along the way, Grimes met McDaniel (with Burns in tow) in Baltimore that day and $1,325 was exchanged (McDaniel demanded an extra $25 for his expenses).  Grimes then left with Burns on a train headed north (but only after having to put up a $1,000 bond to the railroad, which feared liability for transporting a fugitive slave).

Free at last, Burns received a scholarship to study at Oberlin College.  Ultimately, he resumed his religious career, becoming a minister, first in Indiana, and later at a black Baptist Church in Ontario, Canada.  Burns died in 1862, at the age of 28 years old.

Postscripts

•    Three individuals were tried for the May 26 death of the temporary deputy federal marshal at the Boston courthouse.  One man was acquitted; the two others kept getting hung juries.  Ultimately, the federal government got the message that no Boston jury was going to convict any of these individuals and the charges were dropped.

•    At Harvard, Judge Loring (whose Southern law students had vowed to protect him from physical harm) was stripped of his appointment by Harvard’s Board of Overseers.  An effort also was made to remove him from his position as a probate judge (based upon his conduct as a federal commissioner, acting under the authority of the Fugitive Slave Act of 1850).  Richard Henry Dana led the effort to defend Loring, arguing that judicial independence was at stake and that Loring had “been considerate and humane” in executing a law held by Massachusetts’ highest court to be constitutional.  A majority of the Massachusetts legislature’s committee charged with this inquiry, however, ruled that Loring’s handling of Burns’ case had “outrage[d] the sense of the people.”  Both the Massachusetts’ house (by a vote of 206-111) and senate (by a vote of 27-11) voted for removal.  Governor Henry Gardner, however, rejected the legislature’s action.

•    At the same time Governor Gardner was rejecting the legislature’s attack on Loring, that body enacted the most radical personal liberty law of any Northern state (the terms of which ensured that no Southern claimant could ever prevail in a Massachusetts court).  One add-on provision, unmistakably directed at Loring, dictated that no Massachusetts state judge could also serve as a commissioner for the federal courts.  When Loring ignored that provision and continued in both offices, a new initiative was launched to remove him.  The two legislative bodies again voted that Loring had to go; and with new Governor Nathaniel Banks in place, removal was effected on March 19, 1858.  Less than two months later, however, President James Buchanan nominated Loring to the federal Court of Claims, and the Senate approved his nomination on May 6, 1858, by a vote of 27-13.  Loring served on that court until he retired in 1877.

•    Needless to say, people in the South and North tended to react to these events very differently.  With respect to the Burns trial, the Worcester Spy opined:  “[T]he law of God, written in the people’s hearts and the law of man, written in the Constitution, were against the rendition of [Burns] to slavery; but the law of Virginia, sustained by the bayonets of the military… was in favor of it, and of course, everything had to give way before the omnipotent edict of the Slave Power.”  The Richmond Examiner, however, took a different tack:  “[S]uch an execution of the Fugitive  Slave law as that which we witness in Boston is a mockery and an insult[; it must] awaken the South to a sense of its position and the necessity of an independent and exclusive policy…. A few more such victories, and the South is undone.” 
Of Governor Gardener’s refusal to strip Loring of his judicial post, the Worcester Spy wrote that it “detaches him from the support of his own citizens of Massachusetts [and] attaches him to the proslavery citizens of Virginia.”  The Daily South Carolinian, however, praised the governor’s “heroic acts [which] stand out in bold relief [as] a beautiful contrast to the black fanaticism which pervades the body politic of his State”; the Fayetteville Observer added that “we are happy that the authorities in Massachusetts are not all traitors and madmen.”
Of Loring’s ultimate removal in 1858, the Richmond South opined:  “to her eternal disgrace, Massachusetts is the first State in the Confederacy whose Legislature, too cowardly to assert its fancied rights against the national government by secession or otherwise, wreaks its vengeance against the individual sworn to execute the law, and endeavors to set the interests of the man in opposition to his official duty.”  Surprisingly, many house organs of the Republican Party also criticized Loring’s removal.

•    Beyond the media, individuals in the South quickly perceived that the intense furor the Burns case fueled in the North (e.g., the new “personal liberty law” passed by the Massachusetts legislature in 1855) would make enforcing the Fugitive Slave Act of 1850 going forward near impossible, at best; this made the idea of secession much more palatable, even to Union-loving men in the South.  At the same time, the words of Amos Adam Lawrence, a Conscience Whig in Massachusetts, captured the sentiments of many in the North: “We went to bed one night old-fashioned, conservative, compromise Union Whigs & waked up stark mad Abolitionists.”

•    For those who want to know more about Burns and related matters, see A. von Frank, The Trials of Anthony Burns (Harvard 1998); G. Barker, The Imperfect Revolution:  Anthony Burns and the Landscape of Race in Antebellum America (Kent State 2010); E. Maltz, Fugitive Slave on Trial:  The Anthony Burns Case and Abolitionist Outrage (Kansas 2010).  For those interested in the legal issues surrounding the Fugitive Slave laws, see H. Hyman & W. Wiecek, Equal Justice Under Law (Harper & Row 1982); B. Holden-Smith, “Lords of Lash, Loom, and Law:  Justice Story, Slavery, and Prigg v. Pennsylvania,” 78 Cornell Law Review 1086 (1993).

Legal History

Reflections on Watergate After 40 Years: Part II

By Pete Eikenberry

Immediately after the Watergate burglars were arrested and the D.C. police referred the matter to the FBI, the Justice Department became responsible with the FBI as its investigative arm.  The White House responded with a strategy of noncooperation, active obstruction, and outright lies to hamper the FBI’s investigations.  Nixon championed “stonewalling.”  The FBI reported to White House Counsel John Dean, who often sat in on FBI interviews of witnesses.  In interviews with officials from CREEP (the Committee to Reelect the President), its lawyers sat in.  Sixty interviews were conducted at CREEP by FBI investigators, who made assumptions that Attorney General Mitchell and other high officials would not stoop to lying.  Yet many of those interviewed had been counseled to lie.
As the result of the facts revealed in the senate committee’s and the special prosecutor’s investigations, it cannot be disputed that the following illegal activities were conducted out of the Nixon White House or by CREEP, often with the president’s active participation and at least with his acquiescence:

1.    The president misused the IRS to harass people on his “enemies list”;
2.    The president attempted to use the head of the CIA to call off the FBI
        investigations of the Watergate burglary on purported national security
        grounds;
3.    The president encouraged the creation of the “Houston Plan” to open
        mail, do surveillance and infiltrate dissident groups;
4.    The president instructed his staff to “stonewall” the Watergate burglary
        investigations by the FBI, the independent prosecutor, and the congressional
        committees;
5.    The president blocked compliance with congressional subpoenas; and
6.    The president made or authorized misleading statements to the public.

Dean has just published his third book, The Nixon Defense: What He Knew and When He Knew It, with a near complete transcription of the Watergate tapes, more than doubling the number of conversations previously transcribed.  On July 28 of this year, in reviewing Dean’s book and depicting the era, Times reporter Robert Dallek wrote that former President Ford and many commentators “… considered Watergate the worst threat to America’s democratic institutions since the Civil War.…” Dallek further wrote:

Watergate was an attempt to shape a presidential election by other than constitutional means, violating the most sacred of American institutions going back to the start of the Republic: the elevation of someone to the presidency by popular choice.

In his book, Dean quoted a Joseph Kraft column from the 1970s that had been published in the Washington Post: “The president and his campaign manager have set a tone that positively encourages dirty work by low-level operators” and Nixon had a “special tolerance” for “using unethical means for partisan purposes” and for bending “the law for political advantage.”

John Dean’s Role

Dean was promoted from a deputy to Attorney General Mitchell to White House Counsel at age 31.  Dean drove a Porsche sports car and was a flashy dresser with Gucci loafers.  As counsel, Dean was asked to advise Nixon on personal matters such as estate planning and he performed conflicts of interest reviews of situations affecting White House staff members – for whom he also did immigration and divorce work.  Although he crossed the line to commit multiple felonious acts in being a loyal soldier to his commander-in-chief, Dean began to have questions about what was going on around him and reviewed the federal criminal code.

As early as April 8, 1973, less than seven months after Dean had assured President Nixon that nothing would come out to harm him before the ’72 election, Dean had retained a criminal lawyer and was meeting with prosecutors.  After the meetings, he testified before Wright Patman’s senate committee for seven hours wherein he described the roles of the various White House and CREEP officials in the Watergate cover-up and details of the incidents of misconduct.  For instance, he described cash payoffs to Watergate burglars to keep them quiet and gave detailed recitations of conferences at the White House in which President Nixon had participated.  As a team player, Dean was corrupted by the circumstances of the power of the White House.  As a witness, Dean was prodigious in his memory and precise in his recitation of detail.  Dean revealed that President Nixon had stated that a particular conversation was taped and urged the committee to obtain the tape if indeed such a tape existed.

The Tapes Are Revealed

But for Dean surmising at a senate hearing that conversations in the Oval Office might have been taped, the truth may never have been known and Nixon may have ridden out the controversy.  After Dean’s testimony, the senate staffers repeatedly asked interviewees about whether conversations were taped.  On July 13, 1973, Alexander Butterfield, a former aide of Chief of Staff H.R. Haldeman, confirmed the existence of the tapes.  Thereafter, the senate committee and Special Prosecutor Archibald Cox subpoenaed the tapes.  Although a court ruling by federal Judge John Sirica denied enforceability of the senate’s subpoena, Judge Sirica ordered the tapes produced to Cox – a ruling that was largely affirmed on appeal by the D.C. Court of Appeals.

Nixon’s Continued Resistance

President Nixon’s lawyer promised Judge Sirica that Nixon would follow the law as to any order regarding the tapes.  However, Nixon attempted to moot the court order to produce the tapes by having the special prosecutor fired.  In events thereafter depicted as the “Saturday night massacre,” Attorney General Richardson and his first deputy William Ruckelshaus resigned rather than carry out Nixon’s mandate to fire Cox.  Subsequently, Solicitor General Bork – third in line at the Justice Department – fired Cox.  Richardson and Ruckelshaus had urged Bork not to resign so as to give the Justice Department continuity of leadership in those difficult times.  Bork did fold the Special Prosecutor’s role into the Justice Department – but the Special Prosecutor’s staff and files stayed intact with the mission unimpeded.  Nixon, in thus seeking to shield the tapes from discovery, created a public relations nightmare and gained no ground.

The Truth Comes Out

The truth came out to prosecutors and Senate committee staff after Judge Sirica imposed long conditional sentences for Watergate burglars and others who ended up before him to coerce their cooperation.  John Doar’s detailed recitation to the members of the house Judiciary Committee of “statements of information” with citation to the relevant White House tapes led to three articles of impeachment adopted by a vote of 27-11. The president had no option to stay in office and was permitted to resign. He was pardoned by successor President Ford.  The house committee’s non-partisan vote and President Ford’s pardon helped avoid partisan turmoil.  The resignation led to general acceptance by the public of the process as a legitimate transfer of power from a president who had corrupted the office of president by his self-protective lies and illegitimate obstructions.

Some Conclusions

Bork apparently got a “bum rap” in being criticized for agreeing to dismiss Cox – since the prosecution was carried out without a hitch under Bork’s overall administration.  I give Bork an unequivocal pass.

Dean was a young man corrupted by the power of the president.  Probably there have been more than a few young associates who failed to stand up in less than ethical situations before them after being coerced by firm partners with substantially less power.  Dean has made it his life’s work to reveal as much as he can about what happened during his tenure as presidential counsel, has counseled stricter ethical standards for lawyers and has repeatedly attempted to proactively compensate for his misconduct.  I give him a conditional pass for utilizing his life to be a force for good after having paid his debt to society.

Whether Judge Sirica overstepped his constitutional bounds in coercing Watergate burglars and others to cooperate is a fair question for scholars.  Yet all judges are human beings, permitted to use their discretion in the circumstances of each case, with the remedy of appeal and impeachment available for overstepping. Judge Sirica exercised his discretion to discover the truth about circumstances of how presidential power was abused and corrupted to benefit the political ends of Nixon and his colleagues.  I give Judge Sirica a conditional pass for doing what he thought was right under the circumstances.  Presumably, if he had engaged in a pattern of repeated coercion in other matters as well, he would have experienced numerous reversals and sharp criticism by the D.C. Court of Appeals.

It is clear that ethical standards especially as to conflicts of interest have been clarified and strengthened after so many lawyers fell in line with President Nixon without seemingly being aware that their loyalty ran to the office of the president, not to President Nixon.  I find the question of whether more women in the White House would have made a difference unanswerable; many of the lawyers who have stood up on questions of torture, indefinite imprisonment in Guantanamo, or government “Big Brothers” activities have been women. The lack of women lawyers at the White House from 1972 to 1974 does not seem to be the crucial ingredient which, if it had been remedied, could have prevented Watergate.

The Supreme Court’s Decision

U.S. vs. Nixon established the precedent that a president’s claim of confidentiality could be “constitutionally based.”  However, the Court found that where a claim of presidential privilege was based “solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.”  The Court found that separation of powers justified a “presumptive privilege” but a wholesale claim to privilege would “upset the constitutional balance” and “gravely impair” the independent role of the judiciary.  The Court cited to “rule of law” and “due process” concepts to conclude that “the generalized assertion for privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”  The Court required the tapes to be produced for “in-camera inspection.”  The Nixon litigation resulted in an important constitutional precedent for the assertion of executive privilege by a president – but one that did not help that president.

Why Did Impeachment Force Nixon to Resign?

In the history of the United States, impeachment is not time honored, and there is very little precedent for this extreme remedy.  The proceedings against President Nixon were remarkably effective, with a 27-11 bipartisan vote in the Judiciary Committee recommending three articles of impeachment for adoption by the full house.  Perhaps the impeachment would never have been seriously considered had not Spiro Agnew been indicted for corruption and forced to resign on October 10, 1973.  Had Agnew been available to serve as president, presumably there would have been very little political appetite to pursue impeachment.

Once Dean hinted of tapes leading to the presence of tapes being revealed and the courts required the tapes to be produced, the evidence against Nixon became overwhelming.  The careful and non-inflammatory lawyering by John Doar and Special Counsels Archibald Cox and Leon Jaworski led to general bipartisan acceptance of the evidence.   Judge Sirica’s conditional sentences led to a parade of witnesses who made telling revelations of White House misconduct.  All of these circumstances together resulted in a perfect storm that made impeachment not only palatable but inevitable.  Nixon had no alternative but to resign and a precedent was set for some measureable limitation on the power of a president.  If not self-evident before, the president now is demonstrably not above the law.

Conclusion

The splendid bipartisan aura that led to a generally non-disruptive transfer of power from a corrupt sitting president may well be unmatched for decades.  Lawyers, judges, legislators, and journalists and all who participated are to be commended.