Tape Tie-Up

Nixon wins a delay

As the transcripts of the Watergate tapes tell it, when John Dean warned Richard Nixon against getting involved in a coverup, the President answered: "No--it is wrong, that's for sure." But just what inflection was in Nixon's voice when he made this remark, or the many other similarly intriguing but ambiguous bits of dialogue quoted in the transcripts? The public will have to wait to find out. Last week the Supreme Court refused to turn over the 22 hours of Nixon tapes that were played at the Watergate cover-up trial to Warner Communications, the broadcasting networks, public television, and a news directors association, which had been seeking them since 1974.

The decision does not mean that the tapes, expletives and all, will remain deleted from public hearing forever. Rather, the court left it to the General Services Administration, subject to congressional approval, to release them. By a strong 7-to-2 vote, the court reversed a lower-court decision to release the tapes for public listening. Recognizing the public right to inspect and copy court records, Justice Lewis F. Powell Jr., who wrote the majority opinion, acknowledged that the tapes could add to public understanding of Watergate, despite the already widespread dissemination of printed transcripts. But he also noted Nixon's argument that the tapes had been turned over to the special prosecutor for evidence in litigation, not for public titillation.

How should the balance be struck? The court never answered. Instead, it found an "additional unique element that was neither advanced by the parties nor given appropriate consideration by the courts below." That "element" was the 1974 Presidential Recordings and Materials Preservation Act, under which the GSA took custody of Nixon's presidential papers and recordings in order to preserve them for public access. By empowering the GSA to set the terms for that access, wrote Powell, Congress took the tapes decision out of the courts' hands.

In dissent, Justices Thurgood Marshall and John Paul Stevens argued that the court had used the Presidential Recordings Act to frustrate the law's own purpose. Congress clearly intended, Marshall wrote, to ensure the American people "full access to all facts about the Watergate affair." Added Stevens: "For this court now to rely on the act as a basis for reversing the trial judge's considered judgment is ironic, to put it mildly."

The majority's interpretation of the act came as a surprise even to Richard Nixon's lawyers, who in a post-argument brief maintained that the 1974 law did not apply in this case. His lawyers had contended that Nixon had a property interest in the tapes, and that allowing broadcasters and recording companies to copy the tapes would violate his right to privacy. Commercial recordings would be used at "cocktail parties . . . in comedy acts or dramatic productions . . ." to the former President's "embarrassment and anguish."

The decision was at least a temporary victory for Nixon, his first in a case concerning the White House tapes. In 1973 he had failed to keep the tapes from the Watergate probers, and in 1977 he had unsuccessfully challenged the constitutionality of the Presidential Recordings Act. Still, the battle for the tapes is far from over. The GSA's attempts to set rules for public access promise to bog down in further litigation. Only one thing is for sure: no Nixon recordings are likely to be seen rising on the pop charts any time soon.

This file is automatically generated by a robot program, so viewer discretion is required.