Before Starr, There Was Cox
BY Pius Murray
September 27-October 3, 1998 Issue | Posted 9/27/98 at 2:00 PM
Saturday, Oct. 20, 1973 — the “Saturday Night Massacre” — was a watershed date in American history. President Richard Nixon demanded the firing of Watergate Special Prosecutor Archibald Cox. Attorney General Elliot Richardson refused, resigning that same day; Deputy Attorney General William Ruckelshaus, who likewise refused to obey Nixon's order, was fired. Solicitor General Robert Bork, third in line in the U.S. Justice Department, finally agreed to execute the president's command to dismiss Cox. Cox's memorable response reflects his commitment to the law: “Whether ours shall continue to be a government of laws and not of men is now for Congress and, ultimately, the American people [to decide].” The events which followed led inexorably to the destruction of Nixon's presidency and his unprecedented resignation Aug. 9, 1974.
Duquesne University law professor Ken Gromley's biography of Cox is excellently written, well-researched, and laudatory to the point of hagiography. Yet, the opening chapter begins neither with Cox's own birth and early years, nor with his appointment as the first Watergate special prosecutor, but with the impeachment trial of Lincoln's successor as president, Andrew Johnson — the only president whose impeachment case ever came to trial before the U.S. Senate.
One ground for this: Johnson's principal counsel for the defense was one William Maxwell Evarts (1818-1901) — none other than Archibald Cox's maternal grandfather. In that trial, Evarts' arguments had proven so persuasive that the proceedings against Johnson failed by a single vote.
Evarts, himself an interesting character — a corruption-busting lawyer, secretary of state under President Rutherford B. Hayes and one-term U.S. senator — is no exception in the Cox family tree. Another ancestor was Roger Sherman, a signer of both the Declaration of Independence and the Constitution. Service to country and a deep-rooted love of American values were family values instilled in Archibald Cox from a very young age.
Gromley's biography is divided into three main sections: the first, entitled “The Making of a Lawyer,” follows Cox's early years, his studies at Harvard, a Supreme Court clerkship, teaching at Harvard, and early public service as chairman of President Harry Truman's Wage Stabilization Board. There, his response to the coal miners' walkout in 1952 garnered national attention and brought him into close contact with a freshman senator from Massachusetts named John F. Kennedy.
The second section, “The Kennedy Years,” cover Cox's career from 1953-72. Over these years, Cox served Kennedy in the drafting of key bills, in policy research, and speechwriting. In 1961, Cox was named as U.S. solicitor general in Kennedy's presidential administration. During his tenure, Cox won an astonishing 87.7% of its cases, including key civil rights and voting rights litigation. Were it not for Kennedy's death, Cox might well have been appointed to the Supreme Court.
After his resignation as solicitor general in 1965, Cox accepted the Samuel Williston Professorship of Law at Harvard, served as a consultant to Robert Kennedy, and helped a former student named Elliot Richardson run for state attorney general in Massachusetts. But his greatest career challenge still lay ahead.
Here commences the third section of this fascinating biography. On May 16, 1973, that same Elliot Richardson, about to begin serving as U.S. attorney general, asked Cox to become Watergate special prosecutor. Cox's reputation for honesty and independence, his stature in Washington, and his relationship to Richardson were all key to his accepting the task.
Cox insisted in advance on clear language regarding his work as Watergate special prosecutor. First, Cox demanded that only “truly serious grounds” should justify his dismissal, and that the breadth of the special prosecutor's powers be clearly elaborated. Improprieties or apparent criminal activities by senior Nixon administration officials, White House aides, and officials from the Committee to Re-Elect the President (CREEP) were all suitable subjects for investigation.
The White House tapes set up the climatic crisis between Cox and Nixon. The tapes offered possible corroboration of Cox's investigations. Until the existence of the tapes became publicly known, Cox did not think that any court in the land would enforce a subpoena on the president. On July 18, 1973, Cox subpoenaed eight tapes but the Nixon administration refused to turn them over.
Cox and Richardson tried to hammer out a compromise, but Nixon declined Cox's proposals. Instead, Nixon decided on the so-called Stennis compromise, by which Mississippi Senator John Stennis would be the only one allowed to transcribe tapes, and the special prosecutor would be forbidden from seeking any future tapes or papers from the president.
On Friday, Oct. 19, 1973, the White House announced that the compromise had been agreed to by both parties. But the following day, Cox held his own conference at the National Press Club spelling out in detail his objections to the compromise and its unacceptability on legal grounds. This set in motion the fatal collision course that ultimately led to Cox's dismissal and Nixon's resignation. The rest is history. Cox's role is a little-known part of that story but one well worth examining.
Father Pius Murray CSS is professor of Old Testament studies and librarian at Pope John XXIII National Seminary in Weston, Massachusetts
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