Speaker & Gavel
Volume 41/2004
Maintaining
Institutional Power and Constitutional Principles:
A Rhetorical
Analysis of
R.
Scott Medsker & D. F. McDorman
of
the Patriot Archetype
Betsy McCann & Desireé Rowe
Computer Mediated Communication and Adult Learners:
A Case Study
of Messages Using the Hyperpersonal Framework
Linda
B. Dickmeyer & Ronda Knox
Points of
Stasis in the 1960 and 2000 Presidential Debates
Kevin
Stein
The Role of
Spokesperson in Ambiguous and Complex Crises: The CDC and Anthrax
M.
Scott Barrett, Kathryn C. Hasbargen, Anthony Ocana,
Vern
Markey, Matthew P. Berg, Scott Grand & Timothy L. Sellnow
Journal of
DELTA SIGMA
Speaker & Gavel
Delta Sigma
National Honorary Forensic
Society
EDITORIAL
STAFF
Editor Daniel
Cronn-Mills
daniel.cronn-mills@mnsu.edu
Office Kathy
Steiner
Editor’s Note:
S&G went to an
entire online format with volume 41/2004 of the journal. The journal will be
available online at: www.dsr-tka.org/ The layout
and design of the journal will not change in the online format. The journal
will be available online as a pdf document. A pdf document is identical to a
traditional hardcopy journal. We hope enjoy and utilize the new format.
Speaker & Gavel
http://www.dsr-tka.org/ Volume 41 / 2004
Table of
Contents
Maintaining Institutional Power and Constitutional Principles: 1
A Rhetorical
Analysis of
R. Scott Medsker
Todd F. McDorman
Sally
Hemings and the Deconstruction of the Patriot Archetype
Betsy McCann
Desireé Rowe
Computer Mediated Communication and Adult Learners: 34
A Case Study
of Messages using the Hyperpersonal Framework
Linda
B. Dickmeyer
Ronda
Knox
Points of
Stasis in the 1960 and 2000 Presidential Debates 51
Kevin
Stein
The Role of Spokesperson in Ambiguous and Complex
Crises: 63
The CDC and
Anthrax
M.
Scott Barrett
Kathryn
C. Hasbargen
Anthony
Ocana,
Vern
Markey
Matthew
P. Berg
Scott
Grand
Timothy
L. Sellnow
Speaker & Gavel
Delta Sigma
National Honorary Forensic Society
www.dsr-tka.org/
Editor
Daniel Cronn-Mills
230
Armstrong Hall
507.389.2213
daniel.cronn-mills@mnsu.edu
Editorial
Board
Susan
J. Balther, DePauw U
Jon
Bruschke, CSU,
Ann
James
Dittus,
Lisa
David
Gaer,
JanieM.
Harden Fritz, Duquesne U
Karla
Leeper, Baylor U
Allan
Louden,
Mark
Meister, North Dakota State U
Edward
Panetta, U of
Jeff
Pierson,
Kimberely
Powell, Luther C
David
Williams,
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Maintaining
Institutional Power
and Constitutional
Principles:
A
Rhetorical Analysis of
R. Scott
Medsker and Todd F. McDorman
While
president, Richard Milhouse Nixon was almost obsessive in his desire to control
the flow of information. One example of Nixon’s pre-occupation is demonstrated
in the lengths he went to identify who was leaking national security
information contained in the Pentagon Papers. Angered by FBI Director J. Edgar
Hoover’s refusal to investigate the source of these leaks, Nixon created a
group to do the task himself (Kutler 112). These henchmen, known as “the
Plumbers,” were subsequently used by Nixon to spy on both his own administration
and his opponents in the Democratic Party; and whether one deems it fitting or
ironic, eventually contributed to his loss of the presidency.
On June 17, 1972, seven
Nixon neophytes broke into the Democratic National Headquarters in the
Watergate complex to wiretap phones and obtain campaign information. While the
seven men were arrested and eventually convicted for their crime, who
orchestrated the break-in remained a mystery, although some quickly suggested
that the orders came from within the White House (Apple 1). In January 1973,
after the general election, enough concern remained to justify the formation of
a Congressional committee to investigate allegations of White House misconduct.
However, the initial witness testimony, which was identical from all involved,
failed to implicate President Nixon or his administration.
During the third week of
March, two members of Nixon’s team broke rank and gave critical information
that did in fact implicate the president. On March 19, James McCord, a former
Nixon security advisor and one of the convicted Watergate burglars, wrote to
Judge Sirca, who presided over his trial, and informed Sirca that White House
officials had worked to keep the seven intruders silent. On March 22, FBI
Director Patrick Gray further fueled speculation by telling a Senate committee
that White House counsel had “probably lied” during the investigation. Subsequently,
on March 26, 1973 the Watergate grand jury convened for the first time (Apple
2-3).
As the investigation
proceeded, a Special Prosecutor was appointed. He was granted sweeping power
and charged to “investigate, subpoena, [and] bring suit in court against anyone
suspected of criminal wrongdoing in the campaign of 1972, up to and through the
White House to the President himself” (White 250). The Special Prosecutor
subsequently asked the District Court to issue a subpoena duces tecum1
to compel President Nixon to supply critical information. Nixon’s resistance to
the subpoena eventually brought
Watergate is an event
that influenced a generation and their beliefs in American government.
Likewise, rhetorical scholars have been fascinated with the scandal, spending
considerable energy addressing the issue from multiple perspectives. These
analyses have examined the apologia of Nixon (Harrell, Ware, and Linkugel;
King), his resignation (Rosenfeld; Wilson), the general course of events that
contributed to the cover up (Gouran; Schuetz), and the aftermath of the scandal
(Blair; Klumpp and Lukehart). Noticeably absent, however, is a detailed
analysis of the rhetoric that most influenced the trajectory of the crisis—the
Supreme Court’s decision in
In examining these
implications we argue that the Court’s Nixon decision was a uniquely strategic
response to a complex rhetorical situation. In fact, the elements of the
situation were so fundamental to the tenor of the Court’s response that this
essay’s framework is drawn from Lloyd F. Bitzer’s construction of the
rhetorical situation. The use of this system will allow for deeper consideration
of the context of
The analysis reveals
that in resolving the case the Court was faced with concerns on two fronts.
First, on an institutional front, the Court sought to maintain their ability to
perform their duties against encroaching claims from the executive branch.
Simultaneously, the Court worked to balance the sacred doctrine of American
jurisprudence that “no man is above the law” with the status of the President
as “first among equals.” Utilizing Bitzer’s rhetorical situation we examine how
the Court responded to the constraints, exigencies, and audiences present in
this extraordinary situation, ultimately arguing that the Court skillfully
assessed a complex situation and offered a rhetorical response that not only
maintained their institutional power in a tenuous time but also preserved the
basic tenets of American judicial theory.
Perhaps in response to
Lucaites’ challenge to rhetorical scholars, attention to the rhetorical
dimensions of legal decision-making has grown in recent years. In the past
decade scholars of legal rhetoric, possessing varied goals, have offered
important observations about the intermingling of law and society (Hasian;
Hasian, Condit, and Lucaites; Sullivan and Goldzwig; Rountree). In bringing
social considerations to the reading of judicial opinions such work has reinforced
Prentice’s claim that “judicial rhetoric is a form of argument that seeks to persuade
listeners of the legitimacy of particular uses of power” (87). For instance,
Critical Legal Studies scholars have addressed contradictions and deep-level
incoherence within texts that legitimize unjust systems of power and distribution
of wealth. One investigation in this tradition undertaken by Hasian examined
the functions of law as sword, shield, and menace within Buck v. Bell and the eugenics controversy. Others, such as
Rountree’s pentadic analysis of Korematsu
v. United States, have sought to understand the relationships of actors,
actions, and motives in the expression of judicial rhetorical power. Finally, numerous
scholars have explored the moral implications of ideologically charged decisions
(Srader; Sullivan and Goldzwig). Regardless of the approach used, it is clear
that in briefs, oral arguments, and judicial opinions rhetorical expressions of
power are central to understanding the meaning and implications of law.
One approach for reading
rhetorical dimensions of the law that has received little attention is Bitzer’s
conception of the rhetorical situation. While the idea is often dismissed as a
pre-critical descriptive tool, Bitzer’s concept has a cozy fit with the
operation of the law. For instance, Bitzer argues that the function of rhetoric
is “ultimately to produce action or change in the world” (250). Such a function
is nearly identical to that of the law in its efforts to control, regulate, or
promote certain actions and behaviors. In this sense, Bitzer’s treatment of
rhetoric within the rhetorical situation could be used to provide perspective
on the workings of any Court ruling. However, other approaches to judicial
rhetoric will often provide more nuanced analyses due to unique factors found
in each decision.
Still, the mapping of
the rhetorical situation in terms of exigence, audience, and constraints is
also an accurate mapping of the judicial decision making process from the
acceptance of a case for oral argument to the rendering of an opinion. Bitzer
defines exigence as “an imperfection marked by urgency . . . a defect, an obstacle,
something waiting to be done, a thing which is other than it should be” (252).
Some type of exigence or “something waiting to be done” marks every Supreme
Court case and each judicial decision is written in response to a specific
obstacle, defect, or situation that is not as one party feels it should be
(Prentice 94). Bitzer’s point that every rhetorical utterance is controlled by
situational factors such as an exigence mirrors the petitioners’ presentation
of a legal claim. In
Attention to audience is
required according to Bitzer because “rhetorical discourse produces change by
influencing the decision and action of persons who function as mediators of
change” (253). The practice of this principle might be observed in the opinions
written by Supreme Court justices who must consider a number of separate and
distinct constituencies, interests, and reactions (Prentice 95). These groups,
to note only a few, may include the public, the litigants, or the other
justices. What makes United States v. Nixon unique and gives special emphasis
to audience is that the key constituency is the most powerful person in the
political hierarchy—the president. Thus rather than a generic concern for
audience, this controversy presents a particularized audience that makes the
lens of the rhetorical situation particularly profound.
The final element of the
rhetorical situation concerns the relevant constraints. In a judicial context,
the constraints consist of “persons, events, objects, and relations” that the
Court must consider when writing an opinion because “they have the power to
constrain decision and action needed to modify exigence” (Prentice 98). While
traditional legal constraints such as the Constitution, a lack of fiat while
needing to compel compliance, and American ideology are relevant to
The use of the
rhetorical situation as an approach to legal rhetoric has been explored
previously by Robert Prentice in the Arizona Law Review. For his analysis
Prentice selected Brown v. Board of Education because “more is known about the
decision-making process in Brown than in any other case” (102). In Brown, the
inflammatory nature of the issues forced the Court to realize that the manner
in which they presented their “ruling would be no less important than the
substantive content of the opinion” (Prentice 103). The result of Prentice’s
investigation is a quality analysis by a legal scholar that at times underestimates
the importance or impact of rhetorical subtleties. In contrast, in this
analysis rhetorical scholars address a legal controversy in hopes of providing
a more nuanced treatment of rhetoric (while no doubt opening ourselves up to
similar charges concerning legal subtleties). While the subject matter of the
analyses is vastly different, the resolution of a sensitive subject with a high
probability of provoking disobedience represents a parallel between Brown and
Nixon. Thus for this and similar reasons this essay employs the rhetorical
situation to examine
The analysis proceeds by
exploring with additional detail how the rhetorical situation can be an
effective tool to evaluate strategic decisions in the legal sphere. That is
rather than serving only a descriptive or pre-critical function, evaluation of
complex situations can be fundamental to successful legal decision making, as
the Supreme Court’s decision in United
States v. Nixon demonstrates.
Negotiating
the Constraints:
Determining
Jurisdiction and Justiciability
in
In any given legal
dispute there are likely to be numerous constraints operating in conflict with
one another. Most importantly, each constraint has “the power to constrain
decision and action needed” to address an exigence before the Supreme Court
(Bitzer 254). These constraints may consist of social norms, statutes, criminal
law, past precedent, or the Constitution. While constraints such as past precedent,
the Constitution, and institutional rules are typical in nearly every case, in United States v. Nixon the Court
effectively juggled more difficult challenges to their jurisdiction and the
justiciability of the issue. These constraints initially presented barriers to
the Court’s ability to review the issue and thereby resolve the exigence.
Before addressing the
legal merit of claims proffered by Nixon and the Special Prosecutor, the
Supreme Court had to first determine if it had jurisdiction over the case. In
most respects this is a fairly generic constraint. In every case, whether it is
a criminal case in a District Court or a case of national importance in the
Supreme Court, the question of whether the implicated court has authority to
adjudicate the controversy must be decided. In Nixon, the Court acknowledged
the a priori nature of this issue by calling it the “threshold question” (690)
in the case.
While jurisdiction is a
requirement for any court to hear a legal controversy, additional explanation
allows full appreciation of the complicated nature of this question and the
challenge it presented. In appellate courts, such as the Court of Appeals or
the Supreme Court, one rarely sees argument over specific motions but instead
entire decisions are appealed from lower courts. This is because in order to
create a judiciary that is efficient as well as to avoid piecemeal reviews of
cases, the jurisdiction of the Court of Appeals encompasses only the “final
decisions of the district courts” (United States v. Nixon 690), thus typically
excluding motions such as the subpoena duces tecum around which this case revolved.
At first glance,
therefore, jurisdiction appeared to present a constraint on the Supreme Court’s
ability to review and resolve
In explaining its
reasoning the Court was also careful to pay deference to the high office Nixon
held. For instance, in referencing Ryan’s determination that to risk contempt
for defying a court’s order is not an undue burden for the ordinary citizen,
the Court acknowledged the special standing of the president. Preserving the
maxim that the president is the “first among equals,” the Court used precedent
to demonstrate their desire to prevent an “unnecessary occasion for
constitutional confrontation between two branches of government” (United States
v. Nixon 692) by requiring Nixon to “place himself in the posture of disobeying
an order of a court simply to trigger the procedural mechanism for review”
(691). Such a result would not only be “unseemly” but “the issue [of] whether a
President can be cited for contempt could itself engender protracted litigation,
and would further delay both review . . . and the ultimate termination” of the
controversy (691-92). By delicately crafting an opinion that created a clear
attempt to present the image of facilitating the needs of the President, the
Court maneuvered to combine the power of precedent with calculated deference to
both Nixon and the office of the presidency in order to navigate what could
have been a barrier to resolving the exigence.
The second key
constraint for the Court was the question of justiciability. In order for the
Court to hear a case it must present a resolvable issue that is not a strictly
political question (Baker v. Carr). If the issue was an intra-branch dispute,
as Nixon’s counselors contended, the Court would have no authority to
intervene. Just as they did in addressing the question of jurisdiction, the
Court carefully chose its words so as to not offend the President, even going
so far as to suggest that the Executive Branch could have avoided the legal
controversy.
Arguing in the Court of
Appeals, Nixon’s attorneys contended the matter was an intra-branch dispute
between the President and the Special Prosecutor, who serves as an extension of
the Department of Justice, a section of the Executive Branch, therefore leaving
the Court without jurisdiction. After this argument was rejected by the Court
of Appeals it was renewed before the Supreme Court in an alternative form, with
Nixon’s attorneys arguing that the political nature of the matter was beyond
the purview of the Court and hence not justiciable. To put it differently,
since the chain of command flows through the Executive Branch from President to
Attorney General to Special Prosecutor, Nixon’s counselors argued that the
Court could not tell the President how to manage his branch, effectively
barring the Court from providing any relief to the exigence.
To refute this claim and
negotiate their way around the barrier of justiciability, the Court relied upon
the Constitution and sections of U.S. Code which define the ability of the
Attorney General to appoint subordinate officers to discharge relevant duties.
The Court explains:
Acting pursuant to those
statutes, the Attorney General has delegated the authority to represent the
Here the Court explained
that while it is true that the Special Prosecutor is an agent of the Executive
Branch, his duties allow him to turn to the Judicial Branch for aid should he
be hindered in gathering the evidence needed to complete his function.
While this passage is certainly
important as it validated the actions of the Special Prosecutor, footnote 8
registered the fatal blow to Nixon’s argument. In that footnote the Court cited
federal register rules defining the power of the Special Prosecutor, which was
given full authority “to contest the assertion of ‘Executive Privilege.’”
Moreover, the footnote explained the existence of “assurances given by the
President to the Attorney General that the President will not exercise his
Constitutional powers . . . to limit the independence that he [the Special
Prosecutor] is hereby given” (United
States v. Nixon 694-95). The footnote removes any ambiguity that might
exist in the text of the opinion. The question of justiciability is
resolved—the Special Prosecutor has the right to turn to the Judicial Branch
for help in completing his task. To include this footnote in the body of the
text, in plain sight if you will, might have been perceived as charging that
either Nixon’s counsel was so incompetent in their briefs that they did not
know of this assurance or that they knowingly presenting the Court false information.
Regardless of which was true, either would be an insult and an embarrassment to
the President, making him hostile to any decision from the Court. Given that
the condition was too important to omit the Court wisely placed it in the
footnote, thus preserving the record while also allowing the President to keep
his dignity.
Perhaps most
importantly, in an attempt to again show that they are not zealous to encroach
on the Executive Branch, the Court noted that it was “theoretically possible
for the Attorney General to amend or revoke the regulation defining the Special
Prosecutor’s authority. But he has not done so” (United States v. Nixon 696). The Court simultaneously reminds the
reader that so long as the regulation delegating the Special Prosecutor
“remains in force the Executive Branch is bound by it, and indeed the United
States as the sovereign composed of the three branches is bound to respect and
to enforce it” (696, emphasis added). By suggesting that the Executive could
have avoided the problem if the Attorney General had amended the Special
Prosecutor’s responsibilities, the Court not only displaced some of the
responsibility for the decision, but also showed the executive branch that
future better management of the Special Prosecutor might avoid similar situations.2
The Court concluded
their answer to the question of justiciability with a basic judicial lesson on
the meaning of the concept. Of course there was the “controversy” or “conflict”
over whether or not the Special Prosecutor could take his boss to court, but
the Court writes “controversy means more than disagreement and conflict; rather
it means the kind of controversy courts traditionally resolve” (United States
v. Nixon 696). The use of the word “traditionally” reasserts that what the
Court did was nothing radical, but rather was the continuing function of their
constitutional role. The Court quotes
Thus ultimately the
Court effectively confronted issues related to its institutional authority and
American jurisprudence. In preserving the institutional authority and power of
the Court, they invoked their history and precedents and cited federal regulations
and sections of U.S. Code to assert that their action in this case was not
revolutionary. Without explicitly stating it, the Court created the perception
that rather than encroaching upon the territory of the Executive Branch they
were simply maintaining their institutional authority and power as granted by
the Constitution. At the same time, in their effort to preserve American
jurisprudence, the Court argued that to allow the subpoena to go unfulfilled
“would be inconsistent with the applicable law and regulation” (
From the very beginning
of the opinion, the Court had to skillfully navigate the constraints, namely jurisdiction
and justiciability, to put itself in a position to consider the exigence. To do
so, the Court used language that was concrete and left little room for
interpretation while saving Nixon from an embarrassing blow to his reputation.
Further, the Court cited binding federal regulations, binding precedent, and
the actions of the Executive and Legislative branch to help nullify imminent
criticism that they were practicing judicial statecraft. With the constraints
eliminated the Court turned its collective mind towards the exigencies of the
controversy.
In United States v. Nixon the Court was required to address profound
questions about the American political system. More specifically, the Court addressed
questions of institutional authority and the enforcement of long held
constitutional principles in determining how to treat the serving of a subpoena
duces tecum and the meaning and
extent of executive privilege. This required the Court to judge whether a
subpoena duces tecum has the power to compel presidential compliance, assess
its own power to review and limit executive action, and to confront Nixon’s
claim of an absolute executive privilege. These issues emerged from the
exigencies in the case, which, apart from the acts that instigated the general
Watergate crisis, are two in number: (1) how a subpoena issued against the
president should be evaluated and (2) the immense and immediate threat to the
Court’s ability to perform its constitutional duty by Nixon’s assertion of an
absolute executive privilege.
The special prosecutor
charged with investigating the Watergate scandal issued the subpoena to obtain
certain tapes or documents relating to precisely identified conversations and
meetings between the President and others involved in the indictment. President
Nixon responded by claiming that executive privilege protected the release of
these documents and tapes and thus moved to quash the motion. The conflicting
stances created an institutional imperfection—an exigence—that the Supreme
Court sought to relieve. The case before the Court, an appeal of the District
Court’s decision that had upheld the subpoena duces tecum, had to resolve the
question of the power and validity of the subpoena in order to determine if the
criminal case could proceed.
In responding to this
exigence the Court methodically addressed the possible reasons for quashing a
subpoena duces tecum, as set out in Federal Rule of Criminal Proceedings 17
(c). They refuted each possible objection to the subpoena’s enforcement and explained
why the reasons did not suffice in
Moreover, as United States v. Nixon was not the first
occasion the Court had to examine the power of a duces tecum subpoena in a case involving a president, the Court was
able to rely upon past doctrine in evaluating the power of the subpoena. In United States v. Burr, which concerned a
treason charge against former Vice President Aaron Burr, Thomas Jefferson
offered excerpts of a document that would guarantee Burr’s conviction. In
resolving the validity of a subpoena duces tecum in that case the Court ruled
that the president could not release only certain items as he wished, instead
demanding that he provide the whole text, or nothing (McGurn 14).
In resolving Nixon, the
Court references Burr a total of seven times in order to serve numerous functions.
First, the decision is cited to demonstrate that the Court was meticulous in
its review of the subpoena (702). Second, and more importantly, Burr is used to
assert that it is the Court’s “right and indeed duty to resolve” the issue (707,
708). Finally, and perhaps most interestingly,
Addressing the exigence
of executive privilege presented a potentially explosive institutional battle
between the executive and the judiciary and posed a threat to the Court’s
status similar to that encountered in Brown v. Board of Education and Bush v.
Gore. While the phrase “executive privilege” first appeared in 1958 in an opinion
by Justice Stanley F. Reed, presidents since George Washington, who denied the
House of Representatives the right to see papers related to the negotiation of
the Jay Treaty, have appealed to its existence (Biskupic and Witt 217).
However,
To accept Nixon’s claim
of a broad and absolute executive privilege would have barred the judiciary
from carrying out its duties under the Constitution (Fisher 214) and it would
have granted the Executive Branch a tool to hide nearly anything from the
reaches of review. At the same time, the desire to prevent an omnipotent chief
executive was balanced by fears of hampering the Executive Branch too much and
restricting the candor of advisors to the president. Such concerns demanded
that the Court not restrict the powers of executive privilege by too great of a
magnitude. This concern is demonstrated in footnote twenty of United States v. Nixon where the Court
suggested a parallel between the candor of a juror and the openness of a
presidential advisor. The note states:
A juror (or advisor in our case) of integrity and reasonable
firmness will not fear to speak his mind if the confidences of debate are
barred to the ears of mere impertinence or malice. He will not expect to be
shielded against the disclosure of his conduct in the event that there is
evidence reflecting upon his honor. The chance that now and then there may be found
some timid soul who will take counsel of his fears and give way to their
repressive power is too remote and shadowy to shape the course of justice.
(712)
Thus while the Court
considered the candor of advisors, concerns over candor did not determine their
final stance on executive privilege. After being weighed by the justices, the
potential constraint posed by hampering the executive with a partial privilege
was not deemed significant enough to outweigh the risks of an unfettered executive.