THE PRESIDENCY: Richard Nixon Stumbles to the Brink

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That reasoning ignored the fact that Stennis, as one of 535 Senators and Representatives, is a member of a branch of Government that is often even more eager than the Judiciary to contest the President's prerogatives. Moreover, as the appeals-court decision noted, Nixon had already breached his privilege by allowing his former aides to testify as to the content of the disputed Watergate conversations. Indeed, Nixon has publicly given his own version of some of these talks.

The Nixon tactic raised other troubling questions. If he was indeed so dedicated to principle, why not carry the matter to the highest court and get the favorable ruling that he said he so confidently expected? Or did he really expect the decision to go against him? The argument that international pressures arising in the Middle East would not permit such a delay seemed superficial. Nixon was not at all likely to be more seriously wounded by Watergate pending such a decision than he already had been—and the war crisis might well have abated by the time the tapes issue was resolved. In fact, at a time when the fighting abroad was still indecisive, Nixon had precipitated the very weakened condition that he so decried.

Broken Agreement. The President's legal evasions dismayed even some of his previous defenders in the law profession. Yale Law School's Charles Black Jr. had stoutly supported Nixon's position that the courts had no right to his confidential conversations or papers. Now Black declared: "I don't see how you can defend the President who first fights in the court, then cuts himself off from the courts and also breaks his agreement with Cox."

In guidelines written by Richardson last May and approved by Nixon, Cox had been given "the greatest degree of independence," and full power "whether or not to contest the assertion of Executive privilege" as well as to review "all documentary evidence available from any source, as to which he shall have full access." It had also been agreed that he could be fired only for "extraordinary improprieties."

Despite the dismissal of Cox, Law Professors Harry Kalven Jr. of the University of Chicago and Gerald Gunther of Stanford both contend, the court of appeals can still cite Nixon for contempt. "The appellate court has already issued its order," said Kalven, "and it may take judicial notice of the President's defiance even without Cox." Other scholars, however, believe that the courts have no independent prosecutorial power; without a prosecutor, there is no adversary relationship. Cox could be appointed a counsel to the court or an agent for the grand jury that is still assigned to consider Watergate and related indictments. "Cox has a right to be heard," said Gunther. Another possibility of further legal action, according to Black, lies in Congress's power to appoint a special prosecutor on its own.