5 There are only two reasons of which we are aware for which the office might have been abolished. reasons is improper, i.e., legally irrelevant to defendant's determination that abolishing the office was "appropriate," then the determination must be set aside. D.C. Federation of Civic Ass'ns. v. Volpe, 459 F.2d 1231 (D.C. Cir. 1971), cert. denied, 405 U.S. 1030 (1972). The first possible reason is that the President did not want to surrender more than the summaries of the tapes, which he had agreed to provide to Judge Sirica, and which Mr. Cox, and presumably other members of the Office of the Special Prosecutor, would not accept as being sufficient. reason is not necessarily related to the independence of the Office since any prosecutor could demand the tapes, subject only to the threat of discharge by the Attorney General for doing so. Thus, that reason seems wholly irrelevant to any consideration that might properly cause defendant to abolish the Office of the Watergate Special Prosecutor. That The second possible reason is that the President himself was concerned that the investigation was coming too close to him, to former members of his Cabinet, to his friends, and to his former close associates in the White House. In short, he was concerned that the independent prosecutor would truly be independent, and that he and his closest associates might be adversely affected by such continued independence. No other reason has been suggested for the abolition of this office, and the circumstances admit of no other conclusion. It is apparent that if this other reason is the basis for assigning the functions of the Special Prosecutor back to the Criminal Division, that is not an "appropriate" reason under Section 510. Finally, in determining whether the defendant acted in an arbitrary and capricious manner in abolishing the Office, it is well to consider that he was aware of the resignation of the two predecessors in office and knew that he would be out of a job unless he also agreed to the President's desire.86 Seen in this light, his decision, even if he had the authority and met the technical requirements of the statutes and regulations, was clearly affected by a personal stake and thus must be judged with the greatest skepticism. In that respect the defendant's decision must be viewed in the same manner as the Court of Appeals for this Circuit did in assessing the approval by the Secretary of Transportation for the Three Sisters Bridge in D.C. Federation of Civic Ass'ns. v. Volpe, suora. The improper influence in that case was a threat on the part of Representative Natcher to withhold badly-needed funds for the District of Columbia Metropolitan Transit Authority unless the bridge was approved by Secretary Volpe. Judge Bazelon found this pressure to be "sufficient, standing alone, to invalidate the Secretary's action,"87 and Judge Fahy agreed that it was sufficient, when combined with other factors, to overturn the administrative decision. We submit that the virtual certainty of the defendant that he would be fired unless he obeyed the President's order, coupled with the fact that the President appears to have acted in part to prevent the Special Prosecutor from investigating him and his closest associates, fatally taints defendant's decision to abolish the Special Prosecutor's Office and requires that 86Jacks Exhibit 16, p. 3. this Court set aside Order 546-73 of October 23, 1973. * The question presented on the abolition of the Office of the Special Prosecutor is whether the statutes, regulations, Constitution, and the Congress of the United States contemplate that a Solicitor General, who is suddenly catapulted into the office of Acting Attorney General, should be able to make the drastic organizational change of destroying the Office of an independent prosecutor, which was established to reassure public confidence in the investigation of the Watergate matters, where he did so at the direction of the President who is a subject of the investigation and where he made the decision in order to avoid being fired and without any rational basis. Plaintiffs sub mit that the answer to this question is clearly "No," and that the attempted abolition of the Office of Special Prosecutor was of no force and effect. III. Immediate Injunctive Relief Is Required In This Case. The Court of Appeals for this Circuit established the criteria for the issuance of a preliminary injunction in Virginia Petroleum Jobbers Ass'n. v. FPC, 131 U.S. App. D.C. 106, 110, 259 F.2d 921, 925 (1958). Under that decision, this Court is required to consider the probability of success on the merits, to balance the equities between the parties, and to assess where the public interest lies. Moreover, the Court made it clear that a far lesser showing of irreparable harm to the plaintiffs is required as the probability of success increases. Id. As we have demonstrated above, there is a very strong likelihood that - 53 Mr. Cox was unlawfully discharged from his office and that the attempted abolition of the Office of Special Prosecutor was invalid. Thus, the showing of harm to these plaintiffs which is required can be met without proof of the kind of irreparable harm present in other situations where plaintiff's case on the merits is not so strong. Each of the plaintiffs is seeking to restore the public confidence in the administration of justice in this country and to insure that a truly independent special prosecutor is given full powers to investigate the full range of Watergate matters. Their efforts will be greatly aided by a preliminary injunction since that will permit them to turn their attentions away from legislative solutions to the problem of an independent prosecutor and direct their efforts towards other aspects of the problem, particularly since preliminary relief will entail a finding of probable success on the merits.8 88 A preliminary injunction will cause almost no harm or inconvenience to the defendant since he has little personal stake in the outcome of this controversy in fact, an injunction may relieve him of the problem of selecting a new prosecutor to handle the Watergate matters and of the need to exercise any further supervision over this matter. As for the public interest, even a preliminary injunction will go a long way towards restoring the public's faith that ours is still a system of laws and not men and that the actions of every citizen are subject to scrutiny by the courts where they transgress specific provisions of law. 88 Had the attempted discharge not already taken place by the sudden unilateral action of defendant, there seems little doubt that the balance of equities would compel the issuance of an This motion also asks that the hearing on the motion for a preliminary injunction be consolidated with a hearing on the merits as authorized by Rule 65(a)(2). This case would seem to be a particularly appropriate one for consolidation since the facts would not appear to be in dispute and the conflicts are solely those of law. Perhaps more important than the absence of factual dispute, and the consequent lack of need for discovery, is the real public need for the resolution of this conflict at the earliest time. So long as there is any uncertainty about the legality of the firing of Mr. Cox, the work of the Office cannot go forward. No defendant will be able to consider entering a plea until he knows who is in charge of the prosecution, and no indictments can be brought until it is determined who has the final authority to decide who is to be charged with what. Perhaps the best evidence of the uncertainty that must be resolved is the joint motion of the Special Prosecutor's Office and Mr. Petersen which asked Judge Sirica to take control over the Office's files until these questions of control can be resolved. Finally, the stated intention of the President to have 89 the defendant appoint during this week a new special prosecutor, who will operate within the Justice Department, makes clarification of the legality of defendant's actions at the earliest time even more urgent. It is clearly not in the interest of anyone to have a new prosecutor embark on examination of all the work undertaken by the Special Prosecutor's Office only to be told later that Archibald Cox is still validly holding the position of Special Prosecutor. 89See Jacks Exhibit 17. |