The President and the Courts (1973)

[Muffled static] [Music] Once it is known that a conversation that is held with the President can be subject to a subpoena by a Senate committee, by a grand jury, by a prosecutor, and be listened to by anyone, the principle of confidentiality is thereby irreparably damaged. [Music] From Washington, NPACT presents a special program, The President and the Courts, a legal analysis of the White House tapes' case. Here is NPACT correspondent Jim Lehrer. Good evening.

When the Senate Watergate committee recessed a month ago, President Nixon urged Watergate be turned over to the courts. Now it appears he was trading in one crisis for another. Mr. Nixon says he must refuse to give up the tapes in order to preserve the presidency. If the tapes are kept secret, his legal opponents argue that may affect criminal cases involving as many as nine Watergate figures. Tonight we're going to trace the path of this crucial legal case as it goes through a maze of courtrooms and legal arguments. Joining me will be attorney Eugene Grestman, NPACT correspondent Peter Kaye and law professors Charles Black and Jack Murphy. The resolution of the case will decide who, if anybody, should be allowed to hear tape recordings of presidential conversations, and that decision might lead to a major redefinition of the American governmental concept of separation of power. This aspect of the Watergate case began two months ago when Senator Ervin's committee brought White House aid, Alexander Butterfield in for questioning.

- Mr. Butterfield, are you aware of the installation of any listening devices in the Oval Office of the President? - I was aware of listening devices. Yes, sir. - Are you aware of any devices that were installed in the executive office building office of the President? - Yes, sir. At that time. - Were they installed at the same time? - They were installed at the same time. President Nixon immediately ordered the Secret Service not to release the tapes, so the Committee reluctantly voted to subpoena the President, asking him to produce the tapes. - I am certain that the doctrine of separation of powers does not impose upon any President either the duty or the power to undertake to separate a congressional committee from access to the truth concerning alleged criminal activities. I was in hopes that the President would exceed the request of this committee for these

tapes and these papers. - A similar subpoena sought by special prosecutor Archibald Cox and the Watergate grand jury was also contested. The President did, however, turn over two White House memos, Cox wanted. At Cox's request, Judge John Sirica ordered the President to explain why he did not have to comply with the subpoena. On August 15th, Mr. Nixon explained his reasons to the public. - The presidency is not the only office that requires confidentiality. A member of Congress must be able to talk in confidence with his assistants. Judges must be able to confer in confidence with their law clerks and with each other. For very good reasons, no branch of government has ever compelled disclosure of confidential conversations between officers of other branches of government and their advisors about government business. This need for confidence is not confined to government officials. The law has long recognized that there are kinds of conversations that are entitled to be kept confidential, even at the cost of doing without critical evidence in the legal proceeding.

- But Judge Sirica was only partially convinced and on August 29th he ordered the President to respond to a compromise. Sirica would listen to the tapes in camera and then decide if the tapes contained evidence that was necessary for the grand jury's investigation. Now paralleling the Cox request has been the Urban Committee lawsuit on a slightly different legal tack. Their subpoena is issued on legislative authority, but they went to Judge Sirica to ask him to direct Mr. Nixon to comply with it. Judge Sirica will hear arguments on that second subpoena September 24th in Federal District Court. To help us now track these two courses is Eugene Gressman, Washington attorney and author