The Battle for Those Tapes Begins

Momentarily overshadowed by Justice Douglas' abortive stay of the bombing of Cambodia, Nixon's more important court confrontation--over presidential tapes and documents relating to Watergate--was being joined. At 10 a.m. Tuesday, the White House was to deliver its legal brief to Judge John J. Sirica (see box), arguing that the President has the absolute power to decide when the national welfare is best served by the release of presidential documents. Therefore, went the argument, the President can ignore Special Watergate Prosecutor Archibald Cox's subpoena of tape recordings of seven presidential meetings and one telephone conversation about Watergate.

Then Cox will have five days to file a reply. He was expected to argue that there is no general concept of Executive privilege implied in the Constitution. Moreover, even if such a privilege exists, he was prepared to argue, Nixon waived it by 1) allowing past and present aides to testify before the Ervin committee about their private conversations with him, and 2) by permitting H.R. Haldeman, a private citizen since his departure as White House chief of staff, to listen to tapes of presidential meetings. After receiving the Cox reply and giving the White House an opportunity to rebut it, Sirica will schedule oral arguments in the case.

Some time this week, the Senate Watergate committee also intends to deliver to the same court its suit demanding that Nixon turn over tapes and other documents relevant to Watergate. Unlike Cox, the committee faces the possibility that the courts may duck its dispute with the President. Indeed, one leading professor of constitutional law, Yale's Alexander M. Bickel, considered the proposition so dicey that he recommended that the committee seek legislation giving the courts jurisdiction in the case. Ervin rejected this course, however, because it would be time-consuming and, as one committee staffer put it, "tantamount to an impeachment proceeding against the President."

As the lawyers on all sides prepared their briefs, interest in the tapes remained intense. Late last month, Sindlinger & Co., a public-opinion research firm in Swarthmore, Pa., queried a sampling of Americans by telephone and found that 51% thought the tapes should be released to the Watergate committee; 34% did not. As interpreted by Haldeman, the two tapes he heard demonstrate that Nixon knew nothing of the Watergate cover-up at the time of the meetings. Though unconvinced by Haldeman's testimony, the Senators suspected that they were walking into a White House trap in their quest for the tapes. One theory, called "Paranoid Scenario No. 1" by New York City's Village Voice, is that Nixon--despite his statements to the contrary--really wants the tapes made public because they support his version of events; his refusal to release them now is designed to build up the drama.

Thus all of the contenders were ready for the first courtroom engagement in what is expected to be a historic constitutional struggle. Although there was some speculation that Sirica might be able to reach a decision within three weeks on Cox's petition, the case is certain to reach the Supreme Court on appeal. Only a definitive decision by that court will be accepted as binding by the President, the White House has said, which means that the issue will probably not be resolved before fall unless a compromise is worked out along the way up the ladder of the courts.

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