July 01, 2014

Reply Brief: Watergate and Robert Bork

Hon. Avern Cohn

[Section of Litigation Chair] Don Bivens’s account of the Watergate panel discussion at the Fall 2013 Leadership Meeting is a good read, particularly when one takes the time (and trouble) to download the video of the program. Exception must be taken, however, to his quoting past-President Chesterfield Smith’s comment that, “when [Nixon] couldn’t get anybody to fire [Archibald] Cox, he eventually got Bob Bork to fire Cox.” That is not true.

As Bork explains in his posthumously published Saving Justice, he fired Cox after Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned because for either of them to fire Cox would violate the commitment they made to the Senate when he was appointed special prosecutor. Bork made no such commitment. With Richardson and Ruckelshaus gone, he was the “last man in succession.” If he resigned, he saw the Department of Justice falling apart. As far as Bork was concerned, the president had the right to fire Cox. To Bork, the only question was whether he should resign after he did the job. Bork decided against resigning and went forward as acting attorney general; the Department of Justice survived. Indeed, Bork also played a major role in the appointment of Leon Jaworski as successor to Cox.

Whatever Robert Bork’s shortfalls that denied him a seat on the Supreme Court, he gave our country, as Edwin Meese says in his forward to Saving Justice, principled leadership and professional conduct, which served our nation well in a time of crisis.

Hon. Avern Cohn

The author is a Senior U.S. District Judge for the Eastern District of Michigan.