(7 of 11)
IV. NIXON CANNOT BE NAMED A CO-CONSPIRATOR
Though several Justices seemed to think that the matter was largely irrelevant to their main decision, St. Clair drew relatively few objections to his contention that the Watergate grand jury did not have the right to name Nixon as an unindicted co-conspirator in the cover-up case. "For the purposes of our decision, we can just lay that fact aside," Justice Brennan observed. But St. Clair claimed that it had already prejudiced the impeachment inquiry against Nixon and that he had been unfairly reduced to "an 85% President."
In apparent agreement with St. Clair, Powell observed, "With grand juries sitting all over the United States, and occasionally you find a politically motivated prosecutor—that's a rather far-reaching power, if it exists." Stewart, on the other hand, did not accept the St. Clair argument that if a grand jury lacks the power to indict a sitting President, it cannot name nun as an unindicted co-conspirator either: "I should think you could run the argument the other way, saying that since the President cannot be indicted, then all that can happen to him is that he can be named as an unindicted co-conspirator."
Yet it was the possible effect the Supreme Court case might have on the impeachment that obviously most concerned St. Clair. Reversing their normal roles of worrying about the ultimate impact of a decision rather than the narrow legal question before the court, the more liberal Justices this time seemed to dismiss impeachment as of no concern in this case. Declared Brennan: "You have not convinced me that we are drawn into it by deciding this case. How are we drawn into the impeachment proceedings by deciding this case?"
St. Clair: The impact of a decision in this case undeniably, in my view . . . will not be overlooked.
Brennan: Any decision of this court has ripples.
When the surprisingly low-key debate ended, some court experts professed disappointment that the arguments had not been as sophisticated or deeply probing, on the part of either the Justices or the attorneys, as the occasion demanded. To most laymen, however, the legal subtleties were not important. Mobbed by photographers and spectators on emerging from the hearing, Jaworski was confronted by loud applause and a shouted, highly unprofessional accolade: "Dynamite job, Leon!" St. Clair, smiling broadly and radiating confidence, was surrounded by a smaller but enthusiastic crowd.
The Justices retreated to their private conference room to begin the hard work of constructing a decision—one for which the present court will be long remembered. During Warren Burger's five years as Chief Justice, the court has seemed unable to establish a firm identity or to move with consistent direction. The Burger bench contrasts sharply with its activist predecessor, and the difference was being vividly recalled last week because of the death of former Chief Justice Earl Warren (see THE LAW).
The four Nixon appointees have given the court a more conservative tone. That was to be expected; Candidate Nixon in 1968 promised to appoint "strict constructionists." But the Burger Court has also on