Cross-posted from Just Security

"Whether ours shall continue to be a government of laws and not of men is now for … ultimately the American people” to decide.  Those were the words of Archibald Cox, the Watergate Special Prosecutor, on that fateful Saturday night in October 1973, just moments after he was fired by the president whom he was investigating.

A question for the American people to decide.

To their credit, the American people responded, with what Attorney General Elliot Richardson, himself also removed from office that night, would later call a “public uproar” of “overwhelming power.”  Within hours, crowds gathered in protest at the White House.  Thousands more flooded its switchboard, to the point that official phone calls struggled to get through.  Western Union could not keep up with the demand for telegrams to Washington.  And Congress was soon blanketed with three million letters from citizens across the country, the most it had ever received in response to a single event.

Historians would later describe the national reaction to Cox’s firing as an “explosion of public sentiment” as “fierce and instantaneous as the day Pearl Harbor had been attacked, or the day John F. Kennedy had been assassinated.”  To Richardson, it was nothing less than “a declaration of conscience on the part of the American people themselves,” who “showed with unmistakable force that they would not tolerate a further abuse of power.”

In the end, it worked.  The public outcry led to the appointment of a new special prosecutor, and ultimately to the end of Nixon’s presidency, closing a dark chapter in our national history and reaffirming both the rule of law and the power of public protest.

But of course, the citizens who marched into the night that Saturday did not know what the morning would bring.  As Cox’s colleague at Harvard Law School and on the Watergate task force, James Vorenberg, later recalled, there was “a real sense” that the country was in “danger of a fascist takeover.”  Commentators would later describe that same sentiment as having been felt across the nation, as “in the shock of that moment, the American public got a taste of what it would be like to live in a country where their ruler is above the law.”

The American people, in other words, took to the streets not knowing whether the country they loved would still be recognizable come daylight.  And so, facing together their fear, they performed one of the most basic acts of citizenship: showing up, in times of acute crisis, to hold steady with their voices and their bodies the foundations of government, against threats previously unimagined.

The Saturday Night Massacre took place a decade before I was born.  And yet, reading news reports this past week suggesting that the current president may take us back to that precipice, I’ve felt echoes from that night reverberating forward, posing a question from the American people then to the American people now—to us.  What will you do if Robert Mueller is fired?

It is a question we each hope to avoid, and can only each answer for ourselves.  But should the moment arrive, it is also a question that will prove inescapable.  Because really, there are only two options: do something, or do nothing.

To their credit, the American people—hoping for the best but anticipating the worst—are preparing to do something.  As I write this, citizens in over five hundred cities and in all fifty states are readying themselves to answer anew the question that Cox posed back in 1973. They have identified in advance the time and place in their local communities where they will rally if the news that Mueller has been fired comes, and have vowed to do so if called.

I’ve just now signed up to join them.  For me, that decision is informed by two others I’ve already made: the decision to be a lawyer, and the decision to be a teacher.  As a lawyer, and at various points over the past few years as a civil servant, I have sworn to “support the Constitution of the United States of America.”  As my profession’s code of ethics explains, that promise entails not just a set of obligations as “an officer of the legal system,” but also a set of obligations as “a public citizen,” including a “special responsibility for the quality of justice,” a commitment to “the preservation of society,” and a duty to instill “confidence in the rule of law.”  As a teacher, I tell my students that these ideals are not some corny clichés, but rather are part of what calls us to the law as a vocation, and part of how we measure ourselves against that calling.

In other countries, lawyers and civil servants are often among the first to take a stand when the rule of law is threatened, marching out en masse to underscore both the gravity of the situation and the solidarity of their resolve.  In this country, perhaps because we have encountered such threats less frequently, lawyers and civil servants sometimes tend more towards caution—waiting first to gather all the facts, and deliberating over whether stepping away from our desks, from our classes, or from our homes is a symbolic act of protest either too big, or perhaps too small.

Such deliberation is to the good.  Each of us must decide where our own red lines fall, recognizing the risk in this current climate of seeing crises around every corner.  But for those who understand firing Mueller or thwarting his investigation as transgressions that genuinely stand apart, the power of protest ought not be minimized as too small.  To be sure, protests alone may not be enough, absent some sustained effort to defend the rule of law.  But if the “fierce and instantaneous” public response to the Saturday Night Massacre teaches us anything, it should be that before such efforts can be sustained they must first be begun.

And in that light, the caution that is so often a virtue of lawyers and of civil servants carries instead a great risk of impeding the decisive action that may be necessary in the moment.  So, if your tendency, like mine, is to deliberate when called to action, my humble suggestion is simply this: Deliberate now.  Reflect on what you will do now.  Decide now.

And then tell someone else what your decision is—as a promise to them, as a promise to yourself, and as a public signal of your resolve, should the need for it arise.

This essay draws on the following sources: Ken Gormley, Archibald Cox: Conscience of a Nation (1997); Elliot Richardson, The Saturday Night Massacre, The Atlantic Monthly (Mar. 1976); Douglas Kneeland, Nixon Discharges Cox For Defiance, Abolishes Watergate Task Force, Richardson And Ruckelshaus Out, The New York Times (Oct. 20, 1973); Simon Lazarus & Jane E. Larson, The Constitutionality of the Independent Counsel Statute, 25 American Criminal Law Review 187 (1987).

Tags: