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wrote the letter because "the decision of the President to .55

discharge Mr. Cox was final and irrevocable.

There can be little doubt that Mr. Cox was fired for one

and only one reason: he refused to accede to the order of the President directing him to cease further litigation with respect to documents subpoenaed from the White House. Mr. Cox had first challenged the claim of executive privilege in this Court, where he was successful in resisting the claim, and on appeal the decision below was affirmed with modifications not relevant to this proceeding. On October 19th, the President

decided not to take the case to the Supreme Court, but refused to do more than provide Mr. Cox with summaries of the documents. It was in this connection that he directed Mr. Cox not to proceed with further litigation, and Mr. Cox announced at an October 20th press conference his intention not to abandon the

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pending litigation. Immediately after that press conference, the President decided to fire Mr. Cox because of his refusal to cease litigation on the issues of executive privilege and the President's compliance with the order of the Court to produce the subpoenaed documents for an in camera inspection. No other basis for the firing has been suggested, and we do not understand either the defendant or the President to have

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Seeking court resolution of a dispute would not ordinarily be thought to be "extraordinary improprieties,' even where the dispute relates to executive privilege. More important, however, both the testimony before the Judiciary Committee and the terms of the enabling regulation make it clear that Mr. Cox's refusal to cease litigation of the issues was not an extraordinary impropriety. The regulation specifically gives to the Special Prosecutor the "full authority * * * for * * * determining whether or not to contest the assertion of 'Executive privilege' or any testimonial privilege *** *"* This specific authority was discussed and approved by the 58 Senate Committee in various parts of the hearings, and thus there can be no doubt that the applicable regulation, which permits a discharge only for extraordinary improprieties, cannot be read to apply to an assertion of a power which was specifically granted to the Special Prosecutor. the defendant was asked at his press conference whether Mr. Cox was guilty of extraordinary improprieties, he stated that he had "very little knowledge of Mr. Cox's activities" and that

Finally, when

he believed Mr. Richardson who told him that Mr. Cox "was
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guilty of no extraordinary improprieties.

The regulation governing the discharge of the Special

Prosecutor was legally in full force and effect when the

attempted firing took place, and hence it limits the authority

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28 C.F.R. $ 0.37 (1973).

58

Hearings at 41-42, 52, 57-58, 68-69, 77.

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of the Attorney General to discharge Mr. Cox except for

"extraordinary improprieties" until it is validly amended or

repealed.

The principles of administrative law firmly

establish that an agency which issues regulations is bound by them and cannot act in disregard of them. Vitarelli v. Seaton, 359 U.S. 535 (1959), and Service v. Dulles, 354 U.S. 363 (1957). Even though Mr. Cox might have been summarily dismissed in the absence of the regulation, its existence limits the authority of the defendant to discharge Mr. Cox except for "extraordinary improprieties." See Vitarelli, supra, 359 U.S.

at 540.

Under these basic principles of administrative law, it is plain that the firing of Archibald Cox was unlawful. This result is particularly appropriate here since there can be little doubt that Elliot Richardson would not have been

confirmed by the Senate without specific assurances that Mr. Cox would be truly independent and not subject to normal rules regarding dismissal, and that he would be given full authority over the Watergate investigation. Moreover, it is equally clear that Mr. Cox assumed the job only after assuring himself that he would be independent and could be discharged only in 60 accordance with the guidelines, which Mr. Richardson stated

would be issued as regulations having the full force of law.

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Since his discharge was not for the only valid reason under
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the regulation, it was unlawful and must be set aside.

It may be argued that the same result could have been obtained by revoking the regulation first and then firing Mr. Cox. The answer to this, of course, is that this is not what was done. The defendant issued an Order on October 23rd, purporting to make it effective as of October 21st, abolishing the Office of the Special Prosecutor. Since Mr. Cox was fired the day before the purported effective date of the order, that order cannot arguably validate the discharge. Moreover, as we shall demonstrate in Point II of this Memorandum, even the belated attempt to revoke the regulation and abolish the Office

was invalid.

Archibald Cox was fired in clear violation of a valid existing regulation which permitted his discharge only for "extraordinary improprieties." It is apparent that no such

improprieties existed and that the cause of his firing was his refusal to desist from doing that which he was specifically authorized to do under that regulation. Seen in this light, plaintiffs have established not merely that there is a strong probability that Mr. Cox was unlawfully fired, but a virtual certainly of that.

62 In addition, the discharge was invalid for the reasons set forth in Sections B and C of Point II of the Argument--i.e., that as Acting Attorney General the defendant lacked the power to discharge Mr. Cox and that his decision to do so was not an independent exercise of his discretion but was merely a carrying out of the President's order in order to prevent the President

II.

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The Attempted Abolition Of The Office Of The Special
Prosecutor Was Invalid.

A. The Regulation Precludes Abolition of the Office.

In order to achieve the objectives of the President, the defendant issued an order on October 23rd which purports to abolish the Office of Special Prosecutor. Plaintiffs contend

that the order is without validity for a variety of reasons, the first of which is that the regulation creating the office provides for the "Duration of assignment" of the Special Prosecutor as follows:

The Special Prosecutor will carry out these
responsibilities, with the full support of the
Department of Justice, until such time as, in
his judgment, he has completed them or until

a date mutually agreed upon between the Attorney
General and himself." 63

The clear import of this provision is that the Office of
Special Prosecutor shall remain in existence until the Special
Prosecutor determines that his work is done, or until he and
the Attorney General agree upon a termination date. There
can be no dispute that neither of those conditions has been
met, and accordingly, under the terms of the regulation itself,
the office may not be abolished.

The only defense to the plain meaning of this provision, which mandates the continuation of the Special Prosecutor's Office until either of two events occurs, is that there was no authority to enact such a provision and that it could have

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