GENE THERAPY
Gene Collier remembers Watergate prosecutor and eminent legal scholar Archibald Cox.
Roger Stone stood silent as a reptile while a federal judge sentenced him to 40 months in prison the other day, which was just as well; there was little left to say unless he wanted to ask U.S. District Judge Amy Berman Jackson if she cared to see his Nixon tattoo.
Talk about the fullness of time.
Here was a paranoid political operative convicted on multiple counts of lying to protect another paranoid political operative, the president of the United States, 40something years after still another paranoid political operative he’d memorialized in ink on his back triggered the Saturday Night Massacre and released the brake on the impeachment train no one could derail.
The primary victim on that long ago October night was the eminent legal scholar Archibald Cox, the special prosecutor in the Watergate investigation. I have it on impeccable authority that he would be absolutely gobsmacked at the way the justice system is getting trampled at the grim outset of 2020.
“He was a firm believer in the U.S. Department of Justice and the men and women serving there; he saw them as a bulwark against the erosion of liberty in our country,” said Duquesne University President Ken Gormley, himself a noted legal scholar and the author of the award-winning biography of Mr. Cox. “He would be horrified. He described how there was a sort of code of honor in the Justice Department that was, to me, similar to people who serve our country in the armed forces and put their lives on the line. For Cox, there was a close parallel. You were literally putting your life and your career on the line to protect the government.”
Four such careers wobbled last week via the resignations of prosecutors from continuing with the Stone case, this after a presidential tweet indicated displeasure with the recommended sentence of seven to nine years and the reflex of attorney general and presidential hand puppet William Barr to seek revisions.
When Mr. Barr emitted a brief wail at Mr. Trump’s arm-twisting and got someone to leak his own threat to resign, well, Mr. Cox would have been a big fan of that idea.
“He felt that if an attorney general didn’t have the moral fortitude to stand up to a president, that attorney general shouldn’t be in the position in the first place,” Mr. Gormley said. “Cox believed deeply in time-honored tradition of resigning if you were asked to do something inappropriate. He would applaud the four federal prosecutors who resigned after the Justice Department reversed its original recommendation. You can’t single out a friend of a president. What about all the other people who’ve been sentenced under the sentencing guidelines?”
Mr. Gormley thinks Mr. Barr can still salvage something of a legacy, can avoid fading into history along the lines of disgraced attorneys general like Nixon’s John Mitchell, if he finds within himself some inner strength. I defer to the legal scholar, obviously, but Mr. Barr’s inner conflict doesn’t appear to be with malignant basic skulduggery. It’s with Mr. Trump doing play-by-play of it on Twitter.
Mr. Cox was not the attorney general in 1973, but his view of presidential power was dramatically more constricted than Mr. Barr’s. As special prosecutor, Mr. Cox subpoenaed Nixon to release the tapes of secretly recorded Oval Office conversations, something the president had asked him not so nicely not to do. Mr. Cox knew he’d be fired.
His issued this statement: “Whether we shall continue to be a Government of laws and not of men is now for Congress and ultimately the American people.”
History holds they got it right. Swelling public pressure and members of Nixon’s own party convinced the president a Senate conviction was inevitable. He resigned Aug. 9, 1974, less than 10 months after firing Mr. Cox, who would no doubt recognize these same crossroads today.
In the mid-’70s, Ken Gormley was preparing for a summa-cum-laude academic career performance at the University of Pittsburgh and daydreaming on his Swissvale porch about Harvard Law School, about what it might be like to take a class taught by Archibald Cox himself. Mr. Gormley would take that class, be asked by Mr. Cox to be a teaching assistant, and contribute to the scholarship on one of the top legal minds of the 20th century.
He knows where Mr. Cox would position himself on
Roger Stone, et al.
“This goes to the heart of what he cared about mostly deeply,” Mr. Gormley said. “Cox was an early clerk to the famous Judge Learned Hand and that was a person who had such a deep impact on him. Hand wrote, I believe it was during World War II, this beautiful speech that was turned into a book called ‘The Spirit of Liberty.’ There was one line in it I scribbled down, it says, ‘Liberty lies in the hearts of men and women; when it dies there, no Constitution, no law, no court can save it.’
“Cox always tried to impart that on me and that’s why I try to take an active role in thinking about these issues. If this whole system doesn’t work, if individual actors do not remain true to their moral compasses and to doing the right thing, if you start bending because someone is shouting loudly telling you what to do, the whole system crumbles. You have nothing left anymore.”
I think that’s what the Stone judge was getting to with her signature line Thursday: “The truth still exists. The truth still matters.”
That’d make a good tattoo.