Struggle for Nixon's Tapes

At exactly 9:40 a.m., the opposing teams of lawyers entered the ornate, high-ceilinged federal courtroom and took up their positions at neighboring walnut tables. On one side sat six lawyers for President Richard Nixon, headed by University of Texas Professor Charles Alan Wright; on the other, the special Watergate prosecutor, Harvard Law Professor Archibald Cox, and three assistants. For 20 minutes they sat waiting in their blue leather chairs. Wright adjusted his tweed vest. Cox toyed with his half-moon spectacles. Finally, at 10, to the bailiff's ceremonial cry of "God save the United States of America and this honorable court," Judge John J. Sirica strode in, sat down in his red leather chair, and called on Wright to step to the lectern in front of the bench.

There ensued, before a packed courtroom, 2 1/2 hours of calm and gentlemanly debate over one of the most fundamental constitutional controversies in U.S. history. Cox, though nominally an employee of Nixon's Administration, had subpoenaed nine of the President's secret tape recordings, all containing presidential conversations concerning the Watergate break-in and coverup. Wright was there to defend the President's refusal to surrender them. Both sides had thoroughly covered the legal ground in written briefs --totaling 50 pages by Wright, 68 by Cox--delivered to the court during the two weeks before the hearing. Still, the oral arguments last week gave a fresh perspective to the questions being debated. The most important points in dispute spelled out in the oral arguments and the written briefs:

DOES A PRESIDENT HAVE THE RIGHT TO

WITHHOLD EVIDENCE OF A CRIME?

Wright maintains that "the threat of potential disclosure of any and all conversations would make it virtually impossible for President Nixon or his successors ... to function." Therefore, he argues, the President has the "power and privilege" to refuse to produce evidence if he decides that disclosure is not in the public interest. For example, Wright says, one tape contained "national security material so sensitive" that the President would not discuss it even with him. Wright concludes: "Getting to the truth of Watergate is a goal of great worth, [but] there may well be times when there are other national interests that are more important than the fullest administration of criminal justice."

Cox concedes that a President can keep confidential military and diplomatic secrets and policy deliberations, but he insists that a President has "no absolute and arbitrary power" to conceal "evidence of criminality." Moreover, because "there is strong reason to believe the integrity of the Executive office has been corrupted," the President cannot be an impartial judge of whether the public interest requires him to keep the tapes secret. That determination, the prosecutor argues, can be made only by the courts. He adds: "The evidence on the tapes also may be material to public accusations against the respondent [Nixon] himself, a question to which he can hardly be indifferent."

CAN THE COURTS COMPEL THE PRESIDENT

TO PRODUCE EVIDENCE?

Wright describes the judiciary as a "coequal but not a superior branch of Government." Thus a prosecutor may subpoena evidence from a President, but the courts cannot compel him to obey such a subpoena. A President can be impeached and removed from office by Congress--or voted out by the people--but as long as he is in office, Wright argues, he is immune to court orders or even criminal prosecution.

Cox retorts that describing the battle over the tapes as a conflict between the Executive and Judicial branches creates a "false conflict." In fact, he argues, the tapes are being sought by a federal grand jury, which Cox considers to be an organ of the people, not of the courts. "Unlike a monarch, the President is not sovereign," Cox continues. Thus, "like the humblest citizen," he has the legal duty to turn over evidence to a grand jury if a court determines that doing so is in the public interest.

CAN NIXON INVOKE EXECUTIVE PRIVILEGE

TO KEEP THE TAPES SECRET?

Wright argues that the President has the privilege of releasing--or not releasing--confidential information. He maintains that Nixon still has that right even though he permitted former White House aides to testify before the Ervin committee about what happened at the tape-recorded meetings and even though he allowed former Chief of Staff H.R. Haldeman to listen to two of the tapes. Says Wright: "Whenever the President has confidential information, he is free to disclose it to those persons, in and out of Government, in whom he has confidence and from whom he seeks advice."

Cox, while not conceding that Nixon has such a sweeping right to Executive privilege, argues that since the testimony broke the tapes' confidentiality, it "no longer exists." The President allowed "a flood of incomplete and contradictory testimony" about the meetings but now "asserts a privilege to withhold the most complete record available." Declares Cox: "The law is not so capricious."

HOW IMPORTANT ARE THE TAPES?

Cox warns that if the tapes are not turned over to the grand jury, a defendant could move for dismissal on the grounds that the Government was withholding evidence that might prove his innocence. Wright insists, however, that nothing of the sort could happen because the principle applies only if the evidence is available to the prosecution, and the tapes are not. Furthermore, says Wright, the tapes are not necessary to Cox's investigation because "there is much other evidence available." They also would be poor evidence, according to Wright, because "the margin for error is too great" for an outsider to distinguish accurately between chance remarks and relevant statements. But Cox believes that no testimony by participants at the presidential meetings can take the place of the tapes as evidence. The tapes could "supplement faulty recollections, resolve contradictions and fill in important details."

MIGHT THE RELEASE OF THE TAPES SET A DANGEROUS PRECEDENT?

No court has ever compelled a President to produce records of his private conversations. If Judge Sirica rules against Nixon, Wright insists that the precedent would be "not one that would be confined to Watergate." He holds out the prospect that such a ruling might open the way for any federal judge to demand access to White House documents relevant to any civil or criminal case.

On the contrary, replies Cox, the court's enforcement of the subpoena for the tapes would "set only a narrow precedent" because a similar scandal involving "high presidential assistants ... is unlikely to recur." It would be of "historic importance," however, "reaffirming the American constitutional tradition that no man is above the law."

Throughout the arguments, the 350 people, mainly lawyers and reporters, who jammed the spectators' benches sought hints of where Sirica's sympathies might lie. Some counted judicial yawns (twice while Wright talked, once during Cox's argument); others measured the length of his questioning (a total of 17 minutes for Wright, eight for Cox). Still others noted that Cox's argument, by being limited mainly to matters of criminal liability, seemed to allow the judge room for a decision of narrow impact, which courts traditionally find more attractive than the sweeping judicial ruling that Wright's argument seemed to require. Such speculation in advance of Sirica's decision was risky, however; the judge's ruling may be unpredictable. He promised a decision this week.

Whatever the outcome, few legal experts expect Sirica's ruling to be the last word. Nixon has said that he will abide by a "definitive order" of the Supreme Court. Appeals to that court, after it reconvenes Oct. 1, seem almost certain.

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