Editing Archibald Cox (section)

===Negotiations, grand jury progress, and the court's decision===
The Circuit Court's recommendation was that the parties come to an arrangement whereby the president would submit portions of the tapes to Cox and Wright who would decide with Nixon what portions would be submitted to the grand jury. Cox announced almost immediately that he was willing to discuss the matter with the White House lawyers. The White House would only say that it was studying the matter; Wright had already returned to Texas. The Court instructed the parties to report back within one week. If no arrangement could be made, it would decide the appeal.<ref name="CtRecom"/>

Nixon had lost patience with Cox and was in no mood to negotiate (even though the court's suggestion strongly implied that it would order production of the tapes if there was no settlement). While the lawyers engaged in delay, Nixon was trying to control Cox through Richardson. For three months, [[Alexander Haig]], H.R. Haldeman's replacement as White House chief of staff, had been directing Richardson to clamp down on Cox with increasingly more explicit threats until it reached the boiling point just at this moment.{{efn|In mid-June Haig complained to Richardson after Cox told reporters he might subpoena the president. Several weeks later he called Richardson to tell him that the president was "very uptight" about Cox and wanted "a line drawn." The president would "get rid" of him if he strayed outside the lines.{{sfn|Kutler|1990|p=333}} On July 7 Nixon wrote Haig that he wanted "Richardson to rein in Archibald Cox and take him to task for 'conducting a partisan political vendetta rather than [doing] … the job he was appointed to do—bring the Watergate defendants to trial at the earliest possible date."{{sfn|Kutler|1990|p=363}} The incident that infuriated Nixon and set him on a course of inflexible hostility towards Cox took place when Cox requested news clippings concerning the controversy over the source of funds used to renovate Nixon's estate at San Clemente. Haig three times interrupted a meeting Richardson was having with Maryland prosecutors informing Richardson for the first time of the case they were going to bring against Vice President [[Spiro Agnew]]. On the third call Nixon took the phone and demanded that Richardson get Cox to make a retraction within 30 minutes or he would to fire Cox.{{sfn|Doyle|1977|pp=75–76}} The demands, threats and complaints to Richardson continued, until on September 25, just around the time the parties were supposed to be negotiating over the tapes, Nixon concluded a meeting with Richardson by saying that after the Agnew affair was over he wanted to get rid of Cox.{{sfn|Doyle|1977|p=125}}}} Buzhardt nevertheless made an offer: he would summarize the tapes with each participant's conversations re-written in the third person. It was an unworkable scheme, but Cox decided to continue negotiations over the next several days. Cox then drafted a 6-page counter-proposal providing for transcriptions of the actual conversations together with a third-party certification that the rest of the tape was irrelevant. At the last meeting, when Nixon's lawyers showed willingness to have a third party certify transcripts, Cox gave them his proposal and then left to give them a chance to consider it. In less than an hour Buzhardt called, rejecting the proposal and ending the negotiations. The parties informed the court that they could not reach agreement.{{sfn|Doyle|1977|pp=120–122}}

Aside from the tapes, the Special Prosecutor's office was making substantial progress on all fronts. The Watergate task force was initially stymied in their case against John Dean. Dean's lawyer made a compelling argument that the government could not proceed against him on the basis of the information he proffered during his plea negotiations with Silbert's prosecutors. A court would require a showing that the evidence used by the government had an independent basis than that proffered by Dean. It took careful combing of the file to find a letter from one of the prosecutors to Dean's lawyer noting that Dean had failed to inform them about two specific crimes that two other witnesses disclosed. Dean's lawyer replied that the omission was an oversight. The two letters showed that there existed an independent basis to prosecute Dean. Jim Neal gave Dean until the third week of October to agree to plead to one felony count, with the obligation to become a prosecution witness, or else face indictment on the two separate incidents. The plea before Judge Sirica (known among the criminal bar as "Maximum John") would certainly require prison time, but Dean would likely receive favorable consideration for a reduced sentence if he cooperated.{{sfn|Doyle|1977|pp=127–128}}

The other task forces were also proceeding apace. Connolly's task force was readying perjury indictments: one involved former Attorney General Kleindienst who now admitted that in fact Nixon had ordered him to dismiss the ITT antitrust suit in consideration of ITT's campaign contributions. The dirty tricks task force of Richard Davis obtained a plea of guilty by [[Donald Segretti]] to three counts of illegal campaign activity. It was now preparing a perjury indictment against [[Dwight Chapin]].{{sfn|Doyle|1977|p=130}} New information suggested an illegal contribution of $100,000 cash (in $100 bills) from [[Howard Hughes]] through [[Charles Rebozo|Charles "Bebe" Rebozo]] to Nixon's campaign. Inasmuch as Cox had to recuse himself from this case,{{efn|Cox believed that there was an appearance of conflict of interest since his younger brother Maxwell was a member of the New York law firm that represented Howard Hughes.<ref name="Doyle131">{{harvnb|Doyle|1977|p=131}}</ref> Nationally syndicated columnist [[Jack Anderson (columnist)|Jack Anderson]] later reported that the feeling at the Special Prosecutor's office was that the Rebozo case more than the desire to shield the tapes was the motivating factor in Nixon's decision to fire Cox.<ref>{{cite news|url=https://news.google.com/newspapers?id=17AzAAAAIBAJ&pg=5415,3711393|last=Anderson|first=Jack|title=Justice Faces True Test in Rebozo Inquiry|work=Bangor [Me.] Daily News|date=October 23, 1973|access-date=April 25, 2016|via=Google News}}</ref>}} he assigned it to McBride and authorized Ruth to make all decisions but asked for a prompt and diligent investigation.{{sfn|Doyle|1977|pp=130–131}} The Plumbers task force was considering how to trace the chain of authority in the [[Daniel Ellsberg#Fielding break-in|Fielding break-in case]], given their lack of a high-level cooperating witness, but they had ready perjury indictments against [[John N. Mitchell|John Mitchell]] and [[Egil Krogh]]; Krogh would be indicted October 11.{{sfn|Doyle|1977|pp=128–129, 136–137}} While most of this activity went unreported, people tapped into the network of defense attorneys and grand jury witnesses (including the White House) knew that the noose was being tightened around the president. One reporter told James Doyle that a "middle-level White House guy told him on September 28: "Over here they talk about how to get Cox all the time."<ref name="Doyle131"/>

It was the Krogh indictment that forced Richardson to have another meeting with Cox on October 12. The break-in of [[Daniel Ellsberg]]'s psychiatrist's office was still claimed by the White House to involve national security matters, and Richardson and Cox had an agreement that Cox would notify the attorney general before any indictment in that matter was filed. Richardson wanted to know why he was not notified. Cox, surprised, explained that the agreement did not involve perjury indictments (which could not betray national security secrets, since they would involve public testimony). Richardson, checking his notes of their understanding, agreed with Cox and then apologized for forgetting that provision. He then had a bizarre conversation with Cox during which he said that soon he would have to "push Cox," but that sometimes "it's better to lose your hat than your head." Perplexed, Cox returned to his office and was in the midst of telling Doyle of the conversation, when two lawyers interrupted to say the Circuit Court of Appeals had filed their decision just after 6 p.m.{{sfn|Doyle|1977|pp=133–135}}

The 5–2 decision of the Court of Appeals<ref>''[http://openjurist.org/487/f2d/700/nixon-v-j-sirica-united-states Nixon v. Sirica] {{Webarchive|url=https://web.archive.org/web/20160504221705/http://openjurist.org/487/f2d/700/nixon-v-j-sirica-united-states |date=2016-05-04 }}'', 487 F.2d 700 (D.C. Cir. 1973) (''en banc'').</ref> was an utter defeat for the president,{{efn|The court rejected entirely the two broad principles urged by Wright: that separation of powers deprived the court jurisdiction to hear the case and that the president was the only person entitled to decide what items were covered by executive privilege: "Whenever a privilege is asserted, even one expressed in the constitution, such as the speech and debate privilege, it is the courts that determine the validity of the assertion and the scope of the privilege." If an executive privilege exists (and it is not found in the text of the constitution), the court held the privilege is not absolute and the courts, not the president, must be the arbiter. The court then examined the specific circumstances of the case, it found that only a portion of one tape involved military secrets. As for the rest, only a generalized interest in protecting the confidentiality of presidential communications was asserted, and the court found that the particular need of the grand jury in this case overweighed that generalized interest.}} and the papers highlighted the statement that the president was not "above the law's commands."<ref>{{cite news|url=https://www.nytimes.com/1973/10/13/archives/judges-rule-52-historic-decision-finds-president-not-above-laws.html|last=Oelsner|first=Lesley|title=Judges rule 5–2: Historic Decision Finds President Not Above Law's Commands|work=New York Times|date=October 13, 1973|pages=1, 20|access-date=April 25, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20171201135516/http://www.nytimes.com/1973/10/13/archives/judges-rule-52-historic-decision-finds-president-not-above-laws.html|archive-date=December 1, 2017|url-status=live|df=mdy-all}} Large excerpts from the opinion were printed by the ''Times''. {{cite news|url=https://www.nytimes.com/1973/10/13/archives/excerpts-from-opinion-of-court-of-appeals-on-examination-of.html|title=Excerpts From Opinion of Court of Appeals on Examination of Presidential Tapes|work=New York Times|date=October 13, 1973|page=21|access-date=April 26, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20171201133815/http://www.nytimes.com/1973/10/13/archives/excerpts-from-opinion-of-court-of-appeals-on-examination-of.html|archive-date=December 1, 2017|url-status=live|df=mdy-all}}</ref> The court modified Judge Sirica's order and required Nixon's lawyers to specify the grounds of any privilege they were claiming as to particular portions of the tape, and Cox was to be furnished with the specifications. Cox was also to be given access to the material in any instance when the Court was in doubt of the relevance to the criminal proceedings. In this case, the court said, "any concern over confidentiality is minimized by the attorney general's designation of a distinguished and reflective counsel as Special Prosecutor." In short, the court required disclosure except for portions that the president could articulate a particularized need for confidentiality, and Cox was permitted to see any portion where Sirica needed guidance on relevance.