Mr. Special Prosecutor
A generation has passed since Watergate and the Saturday Night Massacre catapulted Archibald Cox '37 to the center of national attention. After Watergate Professor Cox resumed quieter legal pursuits: teaching at the Law School, chairing the national citizens' lobbying group Common Cause, handling pro bono cases, recommending court reforms in Massachusetts, and writing articles and books, including The Court and the Constitution (Houghton Mifflin, 1987) and The Role of the Supreme Court in American Government (Oxford University Press, 1976).
The Carl M. Loeb University Professor Emeritus, Cox continues to teach constitutional law as a visiting professor at Boston University. Public debate of the independent counsel role frequently mentions Archibald Cox. "People have measured other independent counsels, as the special prosecutor job is now called, based on Archie's handling of his case and its political context," says Vorenberg.
It was on May 26,1973, that Archibald Cox took the oath of office as Watergate special prosecutor, appointed by his former student U.S. Attorney General Elliot Richardson '44 ('47). By this time the scandal had mushroomed from a bungled burglary at the Democratic National Committee headquarters in the Watergate Hotel Complex in Washington to a morass of alleged wrongdoing within the Nixon aministration. After several top Nixon officials resigned, the Senate Judiciary Committee demanded a special inquiry, independent of the executive branch, to be led by a person who would pursue the truth with unprecedented autonomy.
Lacking prosecutorial experience, Archibald Cox was not the first choice for the job, but his reputation for independence and his stellar record as solicitor general from 1961 to 1965 won him the appointment. But if the turmoil of Watergate seems distant now, the role Cox played still resonates in public consciousness. Professor James Vorenberg '51 says of his colleague, "Archie will always be associated in people's minds as Mr. Special Prosecutor. He taught us what the person holding this job should be and do."
The Watergate chapter of Cox's career resonates in the law as well. His firing as Watergate special prosecutor inspired the 1978 independent counsel legislation, establishing the process for appointing prosecutors outside of presidential control. When sufficient credible evidence suggests a high-ranking administration official may have committed a crime, the attorney general is compelled to request a special panel of three judges to select an independent counsel. The statute has been invoked many times since its enactment, most notably in the appointments of independent counsels Lawrence Walsh and Kenneth Starr. As it turned out, Cox held his new job for less than five months. It was his Special Prosecution Force's efforts to secure nine of President Nixon's notorious tapes that set in motion a historic legal showdown. Nixon's repeated refusal to release the recordings of White House conversations — despite Cox's famous subpoena and a court order — culminated in an ultimatum from Nixon for Richardson to convey to Cox, demanding that the special prosecutor accept the President's terms for third-party review of the tapes. The White House also announced to the press that a compromise had been reached with the Senate Watergate Committee, stunning Cox.
On Saturday, October 20, he held a press conference, broadcast nationwide, to explain his insistence upon compliance with the court order. That same day, under presidential orders to fire Cox, Elliot Richardson resigned, followed by Deputy Attorney General William Ruckelshaus '60. That evening Robert Bork, the solicitor general, dismissed Cox by letter. The phrase "Saturday Night Massacre" leapt into the newspapers. In recent months, calls for reforming this statute or eliminating it altogether have increased. Two reform bills are pending in the House. In April, Attorney General Janet Reno '63 decided not to request the appointment of an independent counsel to investigate Democratic Party fundraising practices. Her decision sparked strong reactions from both sides of the aisle in Congress. Cox's Watergate work was over, but its impact was not. Others continued to seek the truth that Cox had sworn to pursue "wherever that trail may lead." On August 9, 1974, President Richard M. Nixon resigned.