Watergate lawyer who became a folk hero

The lawyer acting for President Richard Nixon at the federal court hearing on August 22nd, 1973, assured Judge John Sirica that…

The lawyer acting for President Richard Nixon at the federal court hearing on August 22nd, 1973, assured Judge John Sirica that "in the 184 years of this republic no court has undertaken to do any of the things the special prosecutor contends that this court ought to do". The opponent he was flailing was Prof Archibald Cox of Harvard, who has died aged 92.

Cox had agreed to serve as the Watergate special prosecutor after seven eminent lawyers had rejected the increasingly desperate invitations of President Nixon's new attorney general. They saw the job as a bed of nails.

Against massive political and legal obstruction, Cox was trying to obtain some of the White House's most confidential material, hoping it would expose President Nixon's part in the attempted cover up of this historic "third-rate burglary", the June 1972 break-in at the Democratic national committee's offices in the Watergate office complex at the height of the president's re-election campaign.

The scandal was racking the country. Although three of Nixon's senior staff had been sacked, the president was refusing to surrender any of the Oval Office recordings of conversations he had had with them about the break-in. His lawyers argued that Cox's request breached the constitutional separation of powers between judiciary and executive.

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But Charles Wright, Nixon's lawyer, had seriously underestimated his opponent. Cox's dry-as-dust manner covered a sharp legal brain. One of his ancestors signed both the Declaration of Independence and the constitution and his great-grandfather had acted for the defence in the leading case about the confidentiality of presidential documents.

At the 1807 treason trial of vice-president Aaron Burr, his defence counsel, William Maxwell Evart, subpoenaed President Thomas Jefferson to testify about letters he had exchanged with the chief prosecution witness, Gen James Wilkinson. Chief Justice John Marshall upheld Evart's interpretation of the constitution, ruling that the letters were material evidence. Jefferson complied, accepting Marshall's judgment that federal courts were sole arbiters of executive privilege.

Cox's reliance on his forebear's precedent stood up. A week after his application, Judge Sirica ruled: "The grand jury has the right to every man's evidence. For purposes of gathering evidence, process may issue to anyone . . . It is emphatically the province and duty of the judicial department to say what the law is."

Sirica's finding was reinforced by a 200-page appeal court finding which said flatly: "The president is not above the law's commands." Nixon was left with two options - to hand over the damning tapes or to direct Cox (an employee of the Justice Department) to withdraw the application.

On October 19th, 1973, Nixon ordered Cox to abandon his suit. The lawyer refused, saying: "For me to comply with those instructions would violate my solemn pledge to the Senate and the country." Next afternoon came the infamous Saturday Night Massacre.

Nixon instructed his attorney general, Elliot Richardson, to sack Cox and to close down his operation. Richardson refused and resigned, as did his deputy, William Ruckelshaus. Finally the solicitor general, Robert Bork, carried out the instruction. An outraged public sent 450,000 telegrams, the heads of 17 law colleges called for Nixon's impeachment, editorial comment was hostile and suddenly the end of Nixon's presidency came into sight.

It turned Cox into a folk hero, but he drew little satisfaction from his role. "I'm worried," he told reporters, "that I am getting too big for my breeches, that what I see as principle could be vanity." He returned thankfully to the academic world to watch his successor, Leon Jaworski, force Nixon out.

Cox's father was a successful lawyer whose early death coincided with the start of the Depression. Cox's mother, faced with supporting seven children, eventually ran a boarding house. Archibald, by then a 23-year-old Harvard student, helped her make ends meet. Initially his studies were seriously affected, but he emerged from Harvard Law School's first-year examinations as the best of 593 students. The head of the school described his examination paper as "one of the five or six very best books I have had the pleasure of reading in 36 years of law teaching".

Cox's soaring reputation brought a postgraduate offer of a clerkship with Judge Learned Hand. The experience shaped his legal life. He joined a Boston firm to work on industrial relations cases, and that took him to wartime Washington as a solicitor for the Labour Department. At the end of the war he was invited to join the Harvard teaching staff and within a year had become one of the youngest Harvard professors.

Cox became one of John Kennedy's closest advisers and played a major role in his 1960 presidential campaign. After Kennedy's narrow victory, Cox was made solicitor general, not an easy job with the president's brother, Robert, as attorney general, but Cox eventually developed considerable admiration for the latter's work on civil rights. Robert, in turn, relied heavily on Cox's legal judgment.

This confidence was amply justified by the way Cox handled the crucial civil rights issue of electoral reapportionment when it came before the Supreme Court in 1962. The constitution left no doubt that it was for individual states to determine their own political boundaries, but gerrymandering had become rife, particularly in the south in the continuing effort to disenfranchise blacks.

Some of Tennessee's urban electoral districts, each of which returned one member of Congress, housed 25 times more voters than rural districts. Alabama's state senate was controlled by members representing less than a fifth of the electorate.

In a test case known as Baker v Carr, Cox persuaded six of the court's eight sitting judges that, since Tennessee had clearly breached the 14th Amendment's guarantee of equal protection under the law, the federal authorities had the right to intervene. It brought legal enforcement across the US of one man one vote and changed the face of American politics.

Cox's other significant legacy came from his dominance in the writing of the 1964 Civil Rights Act. When work started during the Kennedy administration a legal obstacle emerged. The Supreme Court had held in 1883 that the 14th Amendment guarantees did not apply where discrimination occurred on private premises, such as hotels or restaurants.

Cox opted to rely on Congress's constitutional power to regulate interstate commerce. This provision had been successfully used in 1937 against employers trying to stop staff joining trade unions. The court found the employers' actions illegal because they caused strikes and protests (legally protected, of course, by the First Amendment) which obstructed interstate commerce.

In October 1964 the Supreme Court unanimously supported Cox's application of this doctrine to the civil unrest generated when southern restaurants and hotels barred blacks. encouraging President Johnson to introduce a newVoting Rights Act, drafted largely by Cox.

Not that the beleaguered president was grateful. After the 1964 election he dumped Cox, who returned to Harvard. The Washington Post commented that he had filled his office "with extraordinary devotion, learning, effectiveness and style". Chief Justice Earl Warren wrote saying: "Why you were not reappointed to that or a higher position is something I do not believe I will ever understand."

Cox spent more than 50 years as a Harvard professor. His austere manner did not deter pupils from giving him rave reviews. He is survived by his wife, Phyllis, a son and two daughters.

Archibald Cox: born May 17th, 1912; died May 29th, 2004