Would Blanche Have Fired Archibald Cox?

On August 9th, 1974, President Richard M. Nixon resigned. Heather Cox Richardson does a good job of chronicling how it came to be that a break-in at the Watergate Complex to tap the telephones of the Democratic National Committee took down a presidency. Putting aside J.D. Vance’s cynical, yet likely accurate, observation that Watergate would have been a 12-hour news story today, one key piece of the saga stands out as an apocryphal telltale of why Blanche is unfit to serve as Attorney General.

Archibald Cox, special Watergate prosecutor, learned from deputy assistant to the president Alexander Butterfield that conversations and telephone calls in the Oval Office were recorded. Oh boy. Cox, as well as Senate Watergate Committee chair Sam Ervin, wanted the tapes.

Nixon refused to provide copies of the tapes either to Cox or to the Senate committee. When Cox subpoenaed a number of the tapes, Nixon ordered Attorney General Elliot Richardson to fire him. In the October 20, 1973, “Saturday Night Massacre,” Richardson and his deputy, William Ruckelshaus, refused to execute Nixon’s order and resigned in protest; it was only the third man at the Justice Department—Solicitor General Robert Bork—who was willing to carry out the order firing Cox.

As it turned out, public outrage forced Nixon to appoint Leon Jaworski in Cox’s place. Jaworski, like Cox before him, wanted the tapes as well, and issued his own subpoenas. This led to the Nixon Tapes case, where the Supreme Court unanimously held that Nixon had to turn over the tapes.

On July 24, 1974, in U.S. v. Nixon, the Supreme Court sided unanimously with the prosecutor, saying that executive privilege “must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that ‘the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer.’… The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts….”

In contrast, Todd Blanche has made it overwhelmingly clear that his duty as Attorney General is to do whatever Trump tells him to do.

Time and again during his turbulent nomination process, Mr. Blanche made it unmistakably clear that he believes Mr. Trump possesses a nearly limitless right to directly control the actions of the Justice Department under Article II of the Constitution. It is an argument that formed the foundation of his strategy as the president’s criminal defense lawyer and is the lodestar of his government service.

Had Trump ordered Blanche to fire Cox, would he have? Should he have?

The three lame-duck Republican senators who narrowly saved Todd Blanche’s confirmation as attorney general ended up backing him because they believed he was the only person who had earned enough trust, and enjoyed enough access, to rein in President Trump.

One issue with that calculation: Mr. Blanche is a champion of unbridled presidential power.

The same questions hold at every stage of what transpired in the Watergate proceedings. Would the government have taken the opposite position before the Supreme Court, that Executive Privilege protects the president from being compelled to comply with a subpoena? What about the president directing the AG, under whom the FBI functions, not to investigate at all? Or to feign an investigation and reach the false public conclusion that no coverup happened and that the president had nothing to do with the bungled burglary?

Forget Watergate, and consider the implications today. What if the president declared the Democratic Party to be a terrorist threat to the nation (commies and all that), such that he directed the Attorney General to intercept communications? Would Blanche direct it be done, the Fourth Amendment and Title III be damned? So it would appear.

He articulated that view from the moment he took over as acting attorney general in April, telling reporters that Mr. Trump had “the right” and “duty” to order up investigations of people he targets. During his confirmation, both in public and in private conversations, Mr. Blanche sidestepped questions over whether actions Mr. Trump ordered were right, saying only that Mr. Trump had the right to do them.

The basic concept that the President has the “right” to direct and discharge the Attorney General is not in dispute. That the Department of Justice has traditionally been independent of the presidency and political considerations was a matter of norm, not law per se. That the courts gave the DOJ the presumption of regularity because they trusted that it was acting within the constraints of the law, the facts, and legal ethics was similarly a matter of norms, not law.

Blanche has openly and notoriously eschewed those norms, as has his patron, President Trump. When asked if he would violate the law if directed to do so, Blanche replied that Trump would never ask him to do so, but if he did, Blanche would not violate the law. Then again, according to Trump, he decides what the law is, rendering anything he does to be inherently lawful.

The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch.  The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties.  No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law…

Now that Todd Blanche is Attorney General, would Archie Cox have been fired? Would the Nixon tapes case, current make-up of the Supreme Court notwithstanding, have compelled the president to comply with a subpoena? Would Watergate have even been a 12-hour news story, or would no one have ever known it happened at all?


Discover more from Simple Justice

Subscribe to get the latest posts sent to your email.

4 thoughts on “Would Blanche Have Fired Archibald Cox?

  1. Hal

    JMO, but I’ve no doubt Blanche would have fired Cox. Richardson and Ruckleshaus were both vertebrates.

    I was just become politically aware during Watergate era. One of my favorite, “I bumperstickers, “Impeach the Cox sacker!”, was inspired by the “Saturday Night massacre”.

  2. Mark Creatura

    Did Richardson and Ruckelshaus refuse to fire Cox because Nixon had no authority to demand dismissal, or because each had promised the Senate that he would not fire Cox, even if so directed? I believe it was the latter, and that Bork had not so promised.
    If so, then R and R each was bound by his word, and B was bound by the Vesting Clause. (“The executive Power shall be vested in a President”)
    Following the honorable examples of Richardson and Ruckelshaus (and Bork!), Blanche would have a duty to fire the future Cox, if so instructed.
    We might be better off if the Vesting Clause had qualifications or limitations, but it doesn’t. Not fair to blame Todd Blanche for that.

    1. Mark Dwyer

      That would suggest that only a narrow, specific pledge to Congress would bind an Attorney General or an Acting Attorney General. But Bork, a lawyer, should have known differently. So should Blanche. And so should we.

      For an attorney working for a president to fire a special prosecutor whose investigation involves the president plainly violates not only the legal rules of ethics, but also every government officer’s sworn duty to enforce the law without fear or favor. I hope someday we find a state or federal ethics review panel with the guts to say so.

Comments are closed.