Saturday Night With Elliot Richardson and Robert Bork: A Case Study in Exemplary Executive Branch Lawyering

Jason S. Harrow, Harvard University

Abstract

In the wake of both the “torture memos” written by the Bush Administration’s Office of Legal Counsel and the U.S. Attorney scandal that led to the resignation of Attorney General Alberto Gonzalez, a large literature appeared criticizing the performance of high-ranking Bush-era executive branch lawyers. But there is very literature highlighting incidents of good executive branch lawyering — especially under trying circumstances.

In this article, I try to buck this trend by examining the events surrounding the so-called “Saturday Night Massacre”: the extraordinary evening in October of 1973 when President Nixon ordered Attorney General Elliot Richardson to fire Watergate Special Prosecutor Archibald Cox, and Richardson resigned rather than carry out the order. After Richardson’s Deputy William Ruckelshaus also refused the order and was fired, then-Solicitor General Robert Bork finally did the deed and fired Cox.

Even though Richardson and Bork took different actions on that fateful night, I argue that in fact both men made excellent decisions given their different circumstances and institutional roles. In coming to this conclusion, I show that exemplary executive branch lawyers consider far more than just what they should do according to “the law.” Rather, good decisionmaking requires high-ranking executive branch lawyers to act in a way that takes into account the political, personal, and institutional ramifications of their decisions just as much as — or perhaps even more than — the legal considerations.

Because the legal officials in Nixon’s Department of Justice engaged in nuanced, sensitive analyses of their respective options, the country and the Department of Justice were well-served in a time of deep crisis. My hope is that, in looking closely at this incident, we can learn some useful lessons about how executive branch lawyers should make hard decisions when the next crisis hits.