Rubicon, page 24
“Were people in the White House involved in this?”
“I can’t say anything more than I’ve said already. But I don’t think you’ll have to wait too long to find out who these people are. Once they understand that it’s over, that Lattirmore talked, I imagine at least some of them will try to save themselves by coming forward with what they know.”
“Was anyone from the vice-president’s office involved?”
“As I said….”
“Was the vice-president himself involved?” Hart did not say anything. “Then the vice-president was …? What about…? Does it go even higher?”
Coleman stepped in front, waving his hand to signal that the senator had to go. He did not say anything to Hart until they were in the car, driving away.
“Lattimore told you he got rid of Harrison - right?”
“Right.”
“And he told you that Harrison only did what he was told?”
“That’s what he said.”
“But he didn’t tell you the rest of it, did he? He may have told you that this thing went as high as the vice-president or maybe even the White House, but he didn’t give you any names, did he?”
Hart was not surprised that he knew.
“How did you know I was lying?”
“I’m not sure you can call it lying when it may be the only way to get to the truth,” said Coleman, pondering what Hart had done. “Everyone involved in this thing is going to wake up in the morning and - if they haven’t seen it on television - read in the paper that before he died Henry Lattimore told you who they were.”
“You still haven’t told me how you knew.”
“Instinct, I guess. That, and the fact that I knew you were smart enough to figure out how you could take advantage of Lattimore’s death.”
Hart made two phone calls when he got back to the hotel. The first was to Helen to tell her that he was all right and that, despite what she might see on television or read in the papers, he had never been in any real danger.
“Why do you lie to me like that?” she asked after a long pause. “It isn’t because you really think I’ll believe it, that I’ll think you weren’t in danger. It’s so that I’ll know you’re all right now, that you aren’t falling apart because this madman would have killed you if the police had not stopped him at the last minute.”
Sitting on the edge of the bed, his elbows resting on his knees, he stared down at the floor. Leonard Coleman knew by some instinct when he was lying; Helen knew it by experience. He decided to tell her the truth.
“I wasn’t scared while it was happening; I was scared to death when it was over, when I knew I was safe. There’s something else, something I want you to know. When I thought I was going to die, the only thing I worried about was whether you’d be all right, and whether you would know that the last thought I ever had was you.”
The second call was to Charlie Ryan. It was in a different key altogether.
“You know, Hart, you always did have a talent for publicity. No one gets the kind of coverage you do.”
Hart sprang to his feet and went hopping into the other room. A smile shot across his mouth. He fought it hard, trying not to laugh.
“I almost get my head blown off and all you can think about is how this could change the whole nature of campaigning in America?”
“Listen,” replied Ryan confidentially, “if it works, you know someone will try it.” There was a brief pause, a sudden change of mood. “You’re back at the hotel? Pack your things and check out. I’ll pick you up in half an hour. You stay here this weekend. We need to work anyway.”
“No,” protested Hart. “The hotel is fine. There isn’t any reason....”
“Do you think Lattimore is the only hired gun these people have? I’ll be there in thirty minutes.”
Ryan had an apartment two blocks from Dupont Circle. It was quiet, out of the way. Most of those who lived in the building diplomatic personnel on assignment with their country’s embassy.
“I get invited to all the best receptions,” remarked Ryan with a broad grin as he led Hart inside.
He tossed Hart’s bag on the bed in the guest room, got each of them a beer from the kitchen, and went to work. They quit at two in the morning and were at it again at nine the next morning.
“They’ll hit us with questions before we get two sentences out of our mouths. Turn every question into a variation of the only question that counts: What are the limits on the president’s authority. Lopez will argue that in a case like this the president can do whatever the president thinks best.”
It was mid-afternoon. Bread crumbs on an empty dish, left over from a sandwich, and two empty coffee cups had not been moved since lunch. With his fingers laced together behind his neck and his legs stretched out in front of him, Ryan leaned against the straight back chair. Hart slumped over the table, his cheek in his hand.
“It’s like being back in law school, isn’t it?” asked Ryan, amused at the look of discouragement on Hart’s face. “The day before finals, when you suddenly discover that after a whole year you know less than when you started.” He bolted forward. The front two legs of the chair crashed hard on the floor as he leaped up and stretched his arms. “But you always knew you were going to pass, didn’t you? And this time you know you’re going to win.” He started toward the kitchen, thought of something, and looked back at Hart. “Unless they shoot us first!”
On a different level, Hart took it seriously.
“That’s one thing that won’t happen.” He nodded toward the newspaper that had been tossed on the far corner of the dining room table. “Everyone involved in Rubicon is too worried about what’s going to happen to them, to think about getting rid of us.”
Ryan shook his head in admiration.
“You really made all that up, just minutes after he was about to kill you? And you’re worried about a little hearing, a couple questions from a few judges?”
“I didn’t make it up. He as good as told me that it doesn’t stop with the vice-president, but he wasn’t specific. He didn’t name names, he didn’t give me details. He wasn’t going to give me that kind of satisfaction. He wanted me to die wondering.”
Hart got up and walked past Ryan on the way to the kitchen. He needed more coffee. He stopped just long enough to give him a look that said they both knew what was at stake.
They worked late into the night again, well past midnight, going over every line of the brief, trying to imagine every question that might get asked and every answer they wanted to give. On Sunday, at Ryan’s insistence, they worked only until the end of the afternoon.
“It comes down to this,” said Hart. “The law, or what there is of it, doesn’t matter. The issue is whether the Constitution provides a remedy for a situation that the Framers of the Constitution did not foresee.”
“Exactly; and the answer...?”
Hart knew their case backwards and forwards now; he could have answered the question in his sleep.
“The same answer Lincoln gave.”
Ryan nodded thoughtfully, full of quiet confidence. He stood up, placed his hands on the side of his hips and threw his shoulders back.
“Tell me, when you first ran for Congress, did you ever think it would come to this - that it would be up to you to save the Union?”
Hart was thinking of something more immediate.
“If we lose tomorrow, if the Court doesn’t do what we’re asking it to do, if there is no election, then they will have gotten away with it. Lattimore and Harrison are dead, and despite what I told the press, despite the fact we both know damn well that the vice-president and his people were in this up to their eyeballs, and maybe the president as well, we’ll never be able to prove it. Worse than that, if we lose tomorrow they’ll be on their way to stealing the country once and for all.”
Chapter Twenty Three
The chief justice leaned forward. Walter Devlin had been on the Court for sixteen years. With high, sharp cheekbones and ice blue eyes, he had the ascetic look of the scholar, a man of letters who had spent his life surrounded by crumbling manuscripts and dusty books. When he spoke, his voice had a kind of creaking sound, like a door, closed for centuries, shoved open. He was old and seemed older than he was. Oliver Wendell Holmes had been on the Court when he was ninety, but seemed remarkably young compared to the venerable Walter Otis Devlin who was only seventy six. Like Holmes, however, Devlin lived for the law, and expected everyone who brought a case in the Supreme Court of the United States to feel exactly the same way. A lawyer who did not know what he was talking about was, for the chief justice, no lawyer at all.
“This is a case brought on behalf of the Congress of the United States,” he announced in a flat tone, “against the president of the United States, asking that the Court set aside as against the Constitution of the United States an executive order postponing the scheduled presidential election and asking for certain other remedial relief as well. Because of the urgency of the matter, we depart in certain respects from our usual practice this morning. The Court, having read plaintiff’s brief and being fully advised in the premises....”
Devlin droned on, threading his way through the tangle of jurisdictional issues, until he got to where he thought the argument should be joined.
“So, Mr. Lopez, let us begin with the question whether the president has authority to delay an election. Under what federal statute, or under what provision of the United States Constitution, do you find a grant of this power?”
The attorney general rose from the table and went to the podium directly in front of the long, curving bench at which the nine black robed justices sat waiting.
“The president has declared a state of emergency and imposed martial law,” he began in a slightly hesitant voice. He paused, collecting himself. “It is inherent in the executive power, conferred on the president by Article II of the Constitution, to do all things necessary to protect the people of the United States. No other branch of government can....”
“That wasn’t what I asked,” Devlin quickly interrupted. “I asked you to cite the precise statute, or the specific provision of the Constitution, that allows the president to decide that an election will not be held. It is a simple question, Mr. Lopez. Perhaps you might be so good as to try to answer it.”
“I believe I did, Chief Justice Devlin. Article II of the Constitution confers the executive power on -”
“On the president - yes, believe it or not, Mr. Lopez, I was vaguely aware of Article II even before you were kind enough to bring it to my attention.”
The chief justice, who had been bending forward, slowly drew back. Crossing his arms in front of his narrow chest, he scowled at the attorney general.
“Humor the Court, Mr. Lopez. Where precisely in Article II do you find this authority?”
“As commander in chief, the president has the exclusive authority in wartime to decide what needs to be done to protect the United States. That includes, by necessary implication, the power to protect the institutions of government and, in this instance, the integrity of the elections by which those who head those institutions are selected. Even were we not in a state of war, the executive power of the government can only be exercised by the president. In a situation like this, where the candidates for the presidency have been murdered and there isn’t time to replace them, and where, even if there were time, it would not be safe to do so, someone has to decide what to do and that can only be the president.”
“But Mr. Lopez,” asked Justice Brandes, “you must be aware that there is an amendment to the Constitution that specifically states that in the event a candidate or candidates cannot serve, the Congress is to select a date for the next election.”
An associate justice for fourteen years, Kathryn Brandes was a small, tightly controlled woman with a waspish smile and dark, penetrating eyes. She spoke in a slow, measured tone, but in a manner so decisive that she actually seemed to grow larger and become the dominant physical presence in the room. Through years of listening to oral argument, she had acquired a disconcerting habit of waiting for an answer with a look of unwavering skepticism
“The amendment was intended for what I might call the usual case,” replied Lopez, meeting her glance with a look of practiced innocence. “When a candidate, after winning the election, but before assuming the office, dies or becomes disabled. It does not address the situation in which, unfortunately, we now find ourselves. The country is under attack. Three candidates have been murdered in terrorist attacks, and there is no reason to believe that other candidates chosen to run won’t be murdered, too. We have to make certain that this won’t happen, we have to -”
“None of that has anything to do with the issue, Mr. Lopez,” insisted Justice Caruso in the cheerful booming voice with which he regularly destroyed the arguments, and the confidence, of lawyers who had taken the wrong approach to constitutional interpretation. “Nothing whatsoever. The issue has nothing to do with whether the country is under attack. The issue is whether the president has the authority to delay an election, and, if he does, whether he also has the authority to decide when that election should then be held. The issue, Mr. Lopez, is whether this is part of the executive or the legislative power, and, as Justice Brandes observed, there is an amendment that would seem to suggest that it is up to the Congress, not the president, to determine the date.”
Lopez seemed stunned. Caruso was an outspoken conservative, a strict constructionist, a brilliant if at times belligerent advocate for the position that the Constitution could only be read in terms of the intentions of the men who wrote it; that the meaning of the words, far from changing with the times, never changed at all. If Caruso had doubts about this assertion of presidential power, Lopez was in trouble.
“Granted, that the Constitution cannot, and should not, be read in light of the particular circumstances of a national emergency, the Constitution was clearly intended to provide a remedy for any such emergency. The president is required to preserve and protect the Constitution of the United States. Obviously, that includes the duty to protect the integrity of the method by which the president himself is chosen.”
“I’m not sure I quite agree with Justice Caruso’s suggestion that the events creating the present emergency are irrelevant to the issue before us,” said Justice William Paulson.
Cautious in his judgments, Paulson was considered a liberal by conservatives, while liberals were never quite certain where he stood. But no one, liberal or conservative, had ever doubted the almost mathematical clarity of his mind.
“There is a point that seems to me of particular importance that I should like to have you address. As you know, there is in equity that well-known principle aptly called ‘clean hands.’ If you ask the court for a remedy you must yourself be innocent of blame. Now, what I would like to know is this: When you say that the president has the authority to postpone the election for his successor until a day that he shall determine, and you say this is necessary because the candidates for the presidency have been killed in terrorist attacks, would you still insist that the president has the power under the Constitution if the president himself - or if not the president, someone in his administration - had been responsible for those deaths? I mean exactly what I say, Mr. Lopez. In your view, does the Constitution allow - no, authorize - a president to decide in his sole discretion when the election will be held, should he in fact have been the cause of the very emergency that brought about the necessity that you speak about?”
The courtroom, crowded to capacity, was, more than silent, subdued, by the terrible possibility that had now for the first time been uttered openly. Lopez stood tense with the effort of keeping himself under control. With a few well-chosen words, Justice Paulson had put him on the defensive, made it seem that the attorney general was arguing the case, not for a president, but for an assassin.
“If a president were ever to be guilty of such a monstrous crime, the Constitution provides a clear remedy: impeachment. The Constitutional powers of the executive, however, cannot be limited by the possibility that such powers might be abused by a criminal act. That would be to argue that no powers could be conferred.”
There were other questions for the attorney general from other justices, and then, finally, the chief justice looked up and with a bare nod of his ancient head invited the other side to plead its case.
Hart got to his feet; Ryan did not leave his chair. Hart looked at him with surprise and then, when he saw that Ryan had no intention of joining him, with a sudden sense of panic. Ryan’s eyes were full of confidence.
“They only allow one attorney at a time,” he explained. “I tossed a coin. You lost.”
“Mr. Hart, if you’re ready,” said the chief justice in his throttled, threadbare voice.
“Yes, your Honor,” said Hart, standing at the lectern.
The chief justice seemed amused.
“You’re not a practicing lawyer, are you? Never appeared before this Court - or any court - is that correct?”
“Yes, that’s true; but -”
Devlin held up his hand as if to make an important announcement.
“Because this is your first time, Mr. Hart, you are subject to the two-minute rule.” He was leaning forward, a shrewd, playful grin on his thin, desiccated mouth. “It’s the way we show fairness here, the way we make sure that the experience of one side does not gain an advantage over the inexperience of the other. We give you two minutes to make as many mistakes as you like. It is only after that - a full two minutes - that we then treat you like we do everyone else and begin to crucify you for any, even the slightest, error you might make. That seem fair to you, Mr. Hart?”
“Perfectly fair, Mr. Chief Justice.”
This was not some peculiar quirk of the chief justice; it had been done quite on purpose, a way to cut the tension that had held the courtroom in its grip; a way to give a pause, a respite, to the forced discipline of oral argument. Hart had understood immediately from the sparkle in Devlin’s wintry eyes what it was about. And he had understood as well the second meaning in what the Chief Justice had done: made him feel that he was as welcome as anyone else who had ever made an appearance.
