Nixon's Date with the Supreme Court

"Dragging out Watergate drags down America."

--Richard Nixon, March 19

Despite repeated assurances that the President wants a prompt, thorough investigation, the White House has fought blatantly and with marked success to drag out Watergate, to stall the impeachment process by every possible means. Nixon's lawyers last week maneuvered in court to slow the case and kept stonewalling against the House Judiciary Committee's request for more evidence, to which it is entitled under the Constitution. The committee's impeachment timetable continued to slip badly.

At the same time, Nixon seized the welcome opportunity to escape from Watergate into the world. He announced with understandable satisfaction Henry Kissinger's diplomatic coup in the Middle East. The President planned to capitalize on this major achievement by preparing a grand triumphal tour of the Middle East, probably beginning next week, to be followed by another trip to Moscow. While the Middle East tour is unnecessary in any practical sense, it would dramatize America's reviving leadership in an area where it had long been losing ground.

There is a rhythm in the history of Watergate. Periodically, the President has managed to stem the tide of investigation and indignation, partly because of his own tactics, partly because of sheer fatigue among his critics and in the country. But inevitably something would occur to weaken his cause further, and that seemed to be happening again last week when, on Friday, the Supreme Court dealt a sharp blow to Nixon's defense. The court announced that it would take the unusual step of bypassing the circuit court of appeals in order to speed a final decision on whether the President had the right to withhold 64 tapes from Special Prosecutor Leon Jaworski. While the short-run impact on the pace of the Rodino committee's work was unclear, the week's events may well have defined the outer limits of the President's ability to string out the proceedings.

I. THE CRUCIAL RULING

There was remarkably little disagreement among the Supreme Court Justices in making their decision to grant Jaworski's petition (entitled United States of America v. Richard M. Nixon, President of the United States, et al.) to take immediate jurisdiction over the tapes case. Written briefs are to be filed by June 21 and arguments will be given on July 8. A decision would presumably be rendered a week or two later.

The Justices were apparently persuaded by Jaworski's appeal that the issues involved in the case were "of imperative public importance." Among the main issues now to be decided, according to the Jaworski brief: 1) whether the President is subject to normal judicial process; 2) whether he or the courts have final authority over what evidence can be excluded from judicial proceedings on grounds of Executive privilege; 3) whether Executive privilege can be claimed in a criminal case; 4) whether the President had effectively waived privilege in the Watergate affair by his own selective release of evidence; and 5) whether Judge John Sirica's order that Nixon must comply with the Jaworski subpoenas was proper.

In opposing Jaworski's petition for bypassing the appeals court, Presidential Consultant Charles Alan Wright agreed that the issues were "exceedingly important" but argued in vain that this only meant that the dispute must "be decided wisely" rather than "hurriedly." Warning against any "rush to judgment," Wright's brief cited the irritation of the Justices when they were pushed into quicker than normal decisions. In one instance, a "rushed decision" was later reconsidered by the court and changed. The Justices, however, apparently saw an overriding public duty to act with dispatch this time. Another consideration: the court would have put itself in a highly unfavorable light if it had adjourned until the fall while so important a case remained unresolved.

Ostensibly, this first Watergate case to reach the Supreme Court deals only with procuring evidence in the criminal trial of seven former Nixon agents charged with conspiring to conceal the origins of the Watergate burglary. But even the White House brief conceded that "intrinsically related matters" are involved in the impeachment inquiry.

Nixon's unprecedentedly lavish use of the claim of Executive privilege --based on the theory that he can only get candid advice from aides if he keeps their conversations with him confidential--is at the core of his defense. Obviously, if the Supreme Court rules that Nixon's claim of Executive privilege to protect his tapes is not valid in the criminal case of his former associates, it would have no validity at all in the transcending circumstances of impeachment.

In the criminal case, Jaworski wants the tapes both for prosecution purposes in the trial and to comply with the right of defendants to have access to any evidence held by the Government that would tend to help their defense. Jaworski thus is not bound by any need to protect the secrecy of grand-jury proceedings. He might be free to give it to the Rodino committee voluntarily--or certainly if asked or subpoenaed to do so.

It is likely that the court will rule against Nixon and that soon after his return from the Soviet Union in July he will face a no-win choice: surrender tapes that are widely assumed to be incriminating to him, or ignore an order of the highest court. Either move would hasten impeachment. Refusal to comply would leave him in direct defiance of both the Legislative and Judicial branches of Government. "He'd be impeached and impeached fast," said Illinois Republican Tom Railsback, a member of the Judiciary Committee. While Nixon once had promised to comply with any "definitive" Supreme Court decision, without explaining what he meant by the term, his aides will not renew even that vague pledge now. Such refusal to acknowledge that the President "is subject to the rule of law" last week was termed "shocking" by Chesterfield Smith, president of the American Bar Association.

II. THE ELLSBERG CASE

Another judicial showdown was expected this week over Nixon's refusal to supply White House files to his former aides, Charles Colson and John Ehrlichman, who are among five men charged with conspiracy in the burglary of the office of a psychiatrist consulted by Pentagon Papers Defendant Daniel Ellsberg. Federal Judge Gerhardt Gesell had sternly warned the President's lawyer, James St. Clair, that the documents must be produced or he might have to dismiss the case. Gesell expressed strong suspicion that Nixon might be deliberately acting to get the case thrown out by withholding the evidence, and he ordered St. Clair to find out if that was the President's intention.

Responding in writing last week, St. Clair contended that "the President is not desirous of having these, or, in fact, any indictments of former governmental officials dismissed without a full and fair trial." Nevertheless, wrote St. Clair, Nixon may withhold some such documents on the basis of national security, even if this leads to dismissal. St. Clair offered a vaguely worded proposal under which Colson, Ehrlichman and their lawyers could inspect the files at the White House and indicate which documents they wanted produced for their defense. Nixon would then decide what to release. Whether the special prosecutor's staff also could inspect these files and select incriminating material, or could only see documents which the President had approved, was not clear.

It seemed unlikely that Gesell would accept this procedure as proposed after oral arguments in his court this week. He has already ruled that the security argument cannot be used as a defense in the case. There may indeed be valid national-security secrets in some of the documents sought by the defendants, but Gesell wants to be able to pass on the relevancy of such information to the trial. It would be a huge paradox, not to say injustice, if Nixon's former aides escaped trial because he would not release evidence, while others who have cooperated with prosecutors and already pleaded guilty go to jail.

III. THE COMMITTEE SLOWDOWN

The House Judiciary Committee completed its closed-door staff briefings on the Watergate coverup, and some members sounded uncertain about the evidence. "The hearings on Watergate ended with a thud rather than a crescendo," observed Presidential Counsellor Dean Burch. No member of the Judiciary Committee claimed that the evidence cleared Nixon of involvement in the coverup. But several Congressmen said that the evidence fell well short of proof of guilt. "It most assuredly is not an overwhelming case," declared Republican Charles Wiggins, a consistent Nixon defender.

Most Democrats, however, saw a prima-facie case against the President, at least in the taped remarks directing the payment of hush money to Watergate Conspirator E. Howard Hunt. Only in a trial must guilt be proved beyond reasonable doubt, according to pro-impeachment committee members.

The Rodino committee was in agreement, however, that the President was openly defying its authority and preventing its conclusive determination of his Watergate role by withholding pivotal evidence. Eight (out of 17) Republicans joined all but one of the committee's Democrats in voting, 28 to 10, to dispatch a sharp letter of protest to Nixon. It warned that "it is not within the power of the President to conduct an inquiry into his own impeachment, to determine which evidence, and what version or portion of that evidence, is relevant and necessary to such an inquiry." Committee members may draw "adverse inferences" from his withholding of evidence, the letter said, and might conclude that such refusal "constitutes a ground for impeachment." The vote indicated a deterioration in Nixon's position, since a similar but weaker protest letter was approved five weeks ago along nearly straight party lines.

Dull Show. Spurning a White House request, Republicans also joined in keeping the committee's staff briefings closed until all the basic evidence is presented. St. Clair had urged that the hearings be opened to television coverage. The motives on both sides were diverse. Televised hearings would doubtless move even more slowly than the closed sessions. Both St. Clair and many committee members feel that the briefings presented by Counsel John Doar and Albert Jenner--as opposed to the interrogation of witnesses that is to come later--would quickly bore a television audience. St. Clair argues that the hearings are not "substantial" and would not hurt Nixon's case, while leaks of information are unfair to his position. Still retaining control of the committee, Chairman Rodino intends to pursue inquiries into such areas as the ITT and milk price support controversies in closed meetings.

While the committee's general course now seems clearer, its timetable has slipped badly. Originally, it had hoped to complete its work by the end of April; now late August seems the earliest possible period for sending its report to the House. That would still allow the House ample time in the current session to either approve or reject articles of impeachment.

If the House does vote such articles, however, there might not be enough time remaining to complete a trial in the Senate. Although the matter is in some dispute, the predominant parliamentary interpretation in Congress is that the Senate, as a continuing body, could start a trial in the current session and conclude it in the next. There is ample precedent for that.

Of greater significance than the parliamentary situation is the political impact of such a drawn-out process. TIME Congressional Correspondent Neil MacNeil detects a subtle shift in the mood of the House Republican leadership. It apparently stems from a vague feeling that Nixon may have "bottomed out" after widespread criticism of his released transcripts, is now recovering, and might yet survive. One sign of the change was Republican Leader John Rhodes' complaint that the Judiciary Committee ought to stop chasing tapes and call witnesses to pin down any uncertainties in the evidence it already holds. Earlier Rhodes had been among the Republicans suggesting that Nixon might have to consider resignation.

If the impeachment vote in the House falls after the election, both lame-duck Congressmen and those safely re-elected will feel freer to vote their consciences rather than worry about their constituents' reaction. The incoming Senate probably will have fewer Republican members than the present one, to Nixon's disadvantage.

Long before the end of the current congressional session, however, the Supreme Court will have ruled on Nixon's claims of Executive privilege. If his position is supported, the impeachment inquiry may be thwarted in its quest for the full Watergate story. The criminal cases against Nixon's aides also might have to be dismissed. If the court rejects Nixon's claims, on the other hand, the criminal trials will proceed--and the President's strategy of survival by stonewalling will be effectively demolished.

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