The Presidential tapes
Louis Claiborne
President Nixon has now put forward the extreme claim that he is absolutely immune from a judicial summons. To borrow his vocabulary, that is " wholly inadmissible,' and I cannot suppose that the controversy over the disclosure of the Watergate tapes will long remain on that false level. For the fact is that the President's case against disclosure of the recordings is much stronger than that. And the force of his constitutional argument stands, however much we may decry the gross impropriety of making the recordings surreptitiously, or bewail the politically disastrous Presidential statement that the tapes are ambiguous, or suspect the worst about the motives behind the decision to refuse publication of the materials.
Let us consider the issue dispassionately for a moment. The doctrine of executive privilege is not an expedient inv'ention of recent Presidents — albeit it may have been exaggerated in the last decades. Nor is it restricted to " national security " secrets, The fundamental principle is simply that the effective operation of the Executive Branch requires some privacy, so as to permit free and frank discussion uninhibited by the prospect of subsequent publication. The governing considerations are really the same as those which argue for keeping confidential the informal deliberations of legislators in " private session " or of judges in camera." In sum, the rule is practical and necessary, and it implies no special prerogative unique to the Executive.
Whatever its outer boundaries, the privilegemustnormally protect from disclosure the very words exchanged between the President and his closest advisers on matters of state. In special circumstances, the rule of confidentiality must give way to a limited extent. Reasonable accommodation can usually be made by compelling production of a particular document or requiring answer to a specific question put to a live witness. But selective disclosure of non-stop recordings covering wide-ranging conversations presents more difficulty. The unique awkwardness of tapes like those at issue now is that they contain both too much and too little: the playback machine cannot be asked to speak only the pertinent parts, to rephrase overly candid remarks, or to supply sometimes necessary background or context. And, quite understandably, no one trusts the custodian of recordings to edit them, by deleting objectionable portions or adding explanatory notes. SO the argument for withholding disclosure of indiscriminate tapes of Presidential conversations is very strong indeed.
It is not dispositive that the recordings are relevant to a legitimate congressional investigation or to a judicial proceeding. That is, after all, the only time the privilege has any bite. If the material were sought by a body without subpoena power or were irrelevant to the subject under inquiry, it could be refused on that ground alone. Executive privilege comes into play precisely when a document or testimony which would otherwise be compellable is exempted from the normal process. So the question is not whether the Senate Committee or the Special Prosecutor legitimately wants the tapes. The test is quite different.
Senator Ervin has, I think, stated the matter correctly when he says the doctrine of executive privilege only shields the President while he is performing his constitutional duties. White House debates about the current football match are not privileged. Nor are discussions looking toward the President's reelection (even by wholly proper means) or the cover-up, afterwards, of campaign dirty tricks. And, almost needless to say, the privilege against disclosure does not apply to a conspiracy to pervert the course of justice. But it does not immediately follow, as Senator Ervin and Mr Cox apparently suggest, that the Watergate tapes are unprotected simply because they are sought to clear up allegations of th is sort. That is reason enough to ask for the materials; it does not require the President to comply. After all, the Presi
dent maintains that all his Watergate conversations were directed toward uncovering the truth with a view to cleansing his owo official house and bringing the criminals Le book — plainly constitutional responsibilities of the Executive. And if this version is accept' ed, then the privilege would seem to cover die tapes.
The upshot is that the validity of the claini of privilege turns on the content of the very materials sought to be discovered. Norman!, we would accept the President's character. isation of the conversations and resolve the issue on that basis. If that course is not ar propriate here it is only because the in hereal implausibility of White House statements en the subject and near-admissions in some them combine with sworn testimony to raise substantial doubts. In these extraordinary citcurnstances, it would be wrong to sustain tile privilege on the President's mere say-so. Nevertheless, if it is avoidable, the important privilege of the Executive ought not to be recklessly nullified by rushing to disclosure As it happens, there is a perfectly traditional solution for such a situation.
The present predicament — in smaller coil' pass, to be sure — is not unfamiliar in litigation. The proper remedy in an ordinary judicial proceeding is for the judge to require pro' duction to him alone of the disputed material, for his inspection in camera. After examination, he then orders disclosure (parthil or total) or return, according as he finds 1110 -the prospective evidence is or is not privileged. Arguably, the Ervin Committee or it5 Chairman could perform this function by5i,1' ting through the recordings in private. Mr Cox,as a more obvious adversary, would have a much weaker claim to screen the tapes. But. in both cases, it is surely more appropriate to leave the task to an independent judge. And there is no difficulty in invoking judicial arbitration, whether by proceedings for eaforcement, for contempt, or for a declaratory judgement initiated by those who issued the subpoenas, or by a Presidential application for a court order quashing them.
However the matter reaches the courts. the most probable first order will be one directing the President to produce the tapes to the judge for his private inspection. lAr Nixon will be reluctant to comply, if only because, once the recordings are in judicial cuStody, there will remain no way to prevent compliance with an order turning over portions of them to the Senate Committee and the Special Prosecutor. That issue of procedure is most likely to be fought up to the Supreme Court, which will, I predict, insist Oa hearing the tapes. If so, the President will really have no choice. I do not believe evea Richard Nixon will be so arrogantly defiant as to say to the Supreme Court, " I do no! trust you to make the correct constitutional decision on my claim of privilege" or "1 di' not trust you to preserve the confidentialW, of my tapes until you rule on the issue of pub lic disclosure."
What happens next is less predictable, ,W own guess is that the ultimate judicial deck sion will permit public access to some of thr materials. But, whatever the ruling, it must be accepted, however difficult it will be for the President and the Senate Committee Chairman to defer to the Judiciary — in principle a mere co-equal branch. For better or for worse, that is the American way: in a nation where compromise is deemed cowardice, the only possible course is to ask the judges to resolve constitutional confrontations, Let 1.1:' pray that Richard Nikon and Sam Ervin, both members of the Bar of the Supreme Court of the United States, will remember their oaths and abide by the judgement.
This concludes the present series of articles on Watergate bysLo.uis Claiborne, a former deputy Solicitor General ofthe (Inited States, who is returning to Washington .for .0 short term of duty at the Department of Justice.
Previous page
