(5 of 11)
Marshall: You are still leaving it up to this court to decide?
St. Clair: Yes, in a sense.
Marshall: In what sense?
St. Clair: In the sense that this court has the obligation to determine the law. The President also has an obligation to carry out his constitutional duties.
Marshall: Well, do you agree that [Executive privilege] is what is before this court, and you are submitting it to this court for decision?
St. Clair: This is being submitted to this court for its guidance and judgment with respect to the law. The President, on the other hand, has his obligations under the Constitution.
Technically, of course, the question of compliance was not before the court. The Justices, operating on the longstanding presumption of acquiescence to their rulings, were properly more interested in the fundamental legal issues. They showed their interest by barraging the three attorneys with nearly 350 questions. Since the heaviest burden rested on St. Clair to prove the Sirica order invalid, the most provocative questions were aimed at the President's lawyer. In the process, St. Clair sometimes seemed trapped in the illogic of his position. His major claims:
I. THE COURT LACKS JURISDICTION
The President is the nation's chief law-enforcement official with final authority over whom to prosecute and with what evidence, St. Clair argued. Hence the Special Prosecutor is a subordinate member of the Executive Branch. The courts simply have no authority to intervene in such an "intra-branch" dispute between these two officials. Referring to Jaworski as "my brother"—a courtroom courtesy—St. Clair belittled the Special Prosecutor's claim that he had been granted independent authority having the force of law by both the President and the Attorney General in the prosecution of Watergate crimes. "A Special Prosecutor with the power that my brother suggests he has is a constitutional anomaly," St. Clair claimed. "We have only three branches, not three and a third, or three and a half, or four. There is only one Executive Branch. And the Executive power is vested in a President."
Then Stewart shrewdly drew St. Clair into comparing Jaworski with a U.S. Attorney who might seek confidential documents from the President for a criminal trial. Stewart wanted to know what would happen if the President disagreed and the U.S. Attorney persisted because he was "sworn to uphold justice." "Then you would have a new U.S. Attorney," St. Clair said, intentionally eliciting a laugh from the audience. But Stewart forced St. Clair to admit that Jaworski, unlike a U.S. Attorney, could not be fired by the President without the approval of leaders of Congress—a condition that had been specifically prescribed by Nixon.
St. Clair: That is correct. And he has not been dismissed. Nor is he likely to be.
Stewart: And until and unless he is, we have a case in controversy of a very real kind.
Several other Justices also seemed to agree that the President had, as Stewart put it, "dealt himself out" of the