The President and the Courts

[Sustained tone] [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 of a book on legal procedures before the Supreme Court.

First Mr. Gressman, a subpoena orders someone to comply with a court's request. Does it carry a penalty for noncompliance? - Yes, as far as the ordinary citizen is concerned. If he disobeys a lawful subpoena, he runs the risk of contempt of court, which can carry with it a possible imprisonment, a fine or being left in jail until he does comply with the subpoena. But in the present case, I think everyone concerned has been reluctant to seek a contempt citation against the President of the United States. It would simply be too embarrassing to contemplate. - All right, Judge Sirica says he wants to hear the tapes in camera? What's in camera, Maine? - In camera, literally means in private before the eyes of the beholder only. And in this instance, when Judge Sirica holds an in camera proceeding, he alone will be in the room listening to the tapes.

No one else will be present: no lawyer, no law clerk, no secretary. He alone will determine what is on those tapes. - All right, we've already heard the term prima facie throughout these proceedings and I'm sure we'll hear it many more times in the future. What does it mean? - Prima facie is a common legal term, which simply means something on its face deserves further pursuit of the case. Now in this instance, we have the testimony of John Dean before the Senate Select Committee, which is said to have indicated prima facie that there was possible White House or presidential involvement in the Watergate incident. And in order to corroborate Dean's testimony or to clear the President, further testimony has been sought and now the tapes are being sought, all of which stems from the prima facie testimony of John Dean.

- All right, six days after Judge Sirica asked to hear these tapes, the President went over he said to the court of appeals and asked for a writ of mandamus. Tell us about a writ of mandamus. - Well, a writ of mandamus in ordinary situations is a court order directing or mandating a public official to perform his public duty. In this case, however, the writ of mandamus is being used as one of the techniques open to the to the lawyers to obtain an appellate court review of Judge Sirica's order and eventually review by the Supreme Court. Now this means in short that the White House attorneys are seeking a writ of mandamus from the court of appeals directing Judge Sirica to strike his entire order against the President. The prosecution, the prosecutor Cox on the other hand, is seeking a writ of mandamus from the court of appeals directing Judge Sirica solely to strike the in camera proceedings

and to permit the tapes to be delivered and heard directly by the grand jury. - All right, sir. The court of appeals heard arguments Tuesday and once both sides filed their final papers, they could come up with a ruling in about a week. That court appears to have three options. If it grants the writ, sought by the President, Judge Sirica's order will become invalid. If the writ is denied, Judge Sirica's order will remain in force or the court could come up with its own compromise. In the first case, Prosecutor Cox would appeal to the Supreme Court and the second the President would appeal and in the third instance, one or both parties might appeal. The Supreme Court's options get even more complicated. Essentially, it either has to uphold the appeals court ruling or reverse that decision. But at this point, we have to go back a step. We do not know which one of those rulings might uphold the grand jury's original subpoena forcing the tapes to be revealed, or it might choose to uphold the President's claim of executive privilege, allowing the tapes to remain secret.

There are other options for the Supreme Court, including allowing any of the three courts to hear the tapes in camera or secretly. Now going back to that first option, the grand jury getting its way, we are faced with another option, whether the ruling will be definitive, as the President has said it must be, or some sort of non-definitive ruling, perhaps a very closely split decision. Mr. Gressman, up to this point, we've been dealing with the writ of mandamus and that questions Judge Sirica's decision, if the judge is upheld and the President refuses to release the tapes, are there any more legal recourses or is the case actually stalemated? - Well, that depends, first of all, upon which option the Supreme Court selects. If the Supreme Court were simply to affirm Judge Sirica's order as it is presently written with the in camera proceedings to be held, it is entirely possible that following those in camera proceedings, which would occur before Judge Sirica, the White House or the President

would be able to appeal once again from Judge Sirica's future determination as precisely which tapes or which parts of the tapes should be released to the grand jury. That determination has not yet been made by Judge Sirica. That can only be made after a Supreme Court determination, and therefore it is entirely possible once Judge Sirica does make that determination that we would have another series of appeals all the way to the Supreme Court. - All right, thank you, Mr. Gressman. Before we turn to the substantive arguments on each side, let's take a quick look at these two courts we're dealing with. After all, these courts are groups of men, not marble buildings. Secen of the nine appeals court judges are hearing this case. They are Malcolm Wilkey, Spottswood Robinson, Carl McGowan, Chief Judge David Bazelon, J. Skelly Wright, Harold Leventhal, and George MacKinnon.

One Nixon appointee, Roger Robb, and one Johnson appointee, Edward Tamm, both declined to hear the case. This appeals court has handled other cases dealing with separation of powers, including a decision that congressmen cannot hold military commissions. And last year, they ordered that congressmen be allowed in camera to see documents relating to the atomic blast on the Alaskan island of Amchitka. That was reversed by the Supreme Court. The Supreme Court contains four Nixon appointees, justices William Rehnquist, Lewis Powell, Harry Blackmun, and Chief Justice Warren Burger, who moved up from the same appeals court. For the remaining justices, Thurgood Marshall is a Johnson appointee, Byron White, a Kennedy appointee, Potter Stewart and William Brennan, both are Eisenhower appointees, and William Douglas was named by President Roosevelt. Some observers suggest that William Rehnquist may disqualify himself because he was an architect of President Nixon's executive privilege stance while he was an assistant attorney general.

That remains to be seen. And to complete this brief look at the cast of characters, there are the distinguished law professors on each side. Charles Alan Wright, from the University of Texas, is arguing the president's case in each court. He is opposed by Archibald Cox of Harvard University, the Watergate Special Prosecutor. Now because court rules forbid participants from discussing pending cases, we have consulted outside experts to talk about it tonight, and Peter Kaye is with them now, Peter. - With us tonight are two law professors who are going to talk about the differing legal philosophies in this case, and they are Charles Black, who is Luce Professor of Jurisprudence at Yale University, and Jack Murphy, who is with us from the Georgetown Law Center. Gentlemen, it occurs to me that the central issue in this case is the need for presidential privacy on the one hand, and the grand jury's need for criminal evidence on the other. Do you see it that way, and if so, which of these issues do you think should prevail?

Mr. Murphy? - Well, I have no trouble coming out in favor of the grand jury in these limited circumstances. One of the reasons I approve of Judge Sirica's conclusion, although there may be differences about the particular language he used, is that it is in a very limited circumstance in which we are observing presidential privacy giving way to the grand jury's right. I think both Professor Black and I feel strongly that the integrity of the presidential office must be preserved, but I do not see it falling before an onslaught of invasions of privacy by all sorts of people in the limited circumstances of this case, upon which the ruling in this case would be based. - Professor Black? - Well, now I have an opposite view. Jack and I see the ultimate issue on the merits in this case, located at exactly the same point, I think. My own judgment is that this case will be hard to limit, that in itself it is an unjustified invasion of presidential confidentiality, and that will be very difficult in future to limit it, and prevent a very definite transformation in the

character of the presidential office. - Peter, we've said that on both sides of this argument, looking at the history of the courts', the Supreme Court's treatment and lower court's treatment of the question of privilege, you can summon very learned arguments on both sides, and finally the question is, what is a practical matter is the effect going to be by an adverse ruling that is adverse to the President? And I try and take a common sense approach to this. One of the arguments constantly made is that if I were a presidential adviser, wouldn't I feel inhibited in my conversations with the president knowing that at some point what was said might be disclosed? And I suggest that on the facts of this case that there will be a statistically tiny percentage of moments in presidential conversations when anybody is going to be inhibited in saying what's on their mind, because what we're talking about in the circumstances of this case are demonstrably criminal conversations or conversations that would directly bear on culpability involved in some already known criminal activity. - Well, I know you've also advocated a common sense approach here.

- [crosstalk] Yes, we all are thinking about... our own rule of common sense. The mind takes me in the other direction, I feel that this in itself is an unwarranted invasion, that it will almost inevitably lead to to further attempts at invasion, to the use... let's remember that this power on the part of prosecutors and others concerning subpoena powers, likely to lead its own abuses, because anybody can see subpoenaing the president as the high road to wide publicity. And so I'm afraid of it. - All right, now the case is going up through the appellate procedures, going first to the appellate court, where it is now, then on to the Supreme Court, Mr. Murphy, what do you think is going to happen in the appellate court and then in the Supreme Court? - I hesitate to make a prediction as to votes in those courts, but my suspicion is that again, stressing the limited circumstances in which this request for the subpoena is

made, that the courts are going to uphold the special prosecutor's request, the vote will be split, I'm certain, but I suppose looking at all the precedents that the legal arguments are on the side of Professor Cox, the special prosecutor, and again coming back to our point about common sense, I think the practicality is lying on his side as well. - Professor Black, what do you think will happen or for that matter won't happen? - I would not predict, wouldn't venture for the moment to predict, how the Supreme Court would at last sort out on this ultimate issue, there is another possibility, which I would like to raise at this term, see what Jack thinks about it, which has occurred to me and others, and that is to start... for the court to start a more fundamental question and ask where does the authority of the prosecutor in the grand jury come from, and query that authority. Now the authority comes very plainly from an act of Congress and from the rules

of criminal procedure. As far as I'm aware, the statutes and rules on which Mr. Cox is relying are totally general, are blandly general in that reference is to such things as "any witness." Now, I think it plain that Congress in passing this statute, and in letting these rules of criminal procedure lie for 60 and 90 days without overturning them, never thought, never had in focus for a moment the question of a high-level constitutional confrontation between the branches of government, and I think it would be well in line with the, again, let's say, the common sense criteria of statutory construction, which have been so often used in other cases, for the court to say, we will not decide this issue at all unless Congress assures us that it really wants it decided, that it really wants this kind of confrontation and assures us in language which is not simply blandly general.

For example, if you tell a man to stay away from women, you don't mean for him to stay away from his wife; that's a special situation, which isn't in mind when one uses general language like that. I think it's very reasonable to think, first that Congress should be required to state its wish, that this confrontation takes place before it actually be driven to the conclusion in the judiciary, and secondly, that it's quite reasonable to say that Congress by the use of merely general language about any witness ought not to be taken to have referred to such a special case with such special considerations as that of the President of the United States. - Mr. Murphy, would you like to comment on in this... - Yes, just two quick points, I think it's an intriguing idea as to how the case might be disposed of in its present posture. The only problem I see with the Supreme Court taking that tack is that as far as I know, Professor Wright, who is the Chief Counsel for the President, has not raised this argument in his papers, and any court is reluctant to rest its decision on issues which have not

been placed before it formally in the papers. Secondly, the notion is intriguing in a second regard because what the suggestion is is that Congress has the power to tell the President in effect that they do want him to submit to a subpoena. So you have a separation of powers question there coming up at some subsequent time. - May I speak to both those questions? I'll take the first and the last and probably forget about the second and meanwhile, it's not what I'm saying. I'm not saying that I would decide the case at this time by anticipation in favor of Congress. I'm saying that the court might use this device as it is used so many others to avoid crucial constitutional confrontations, as a means of waiting and seeing whether this is what's really desired, then the decision would remain to be made of whether Congress actually has this power. It would be a special case of the well-known device of so construing a statute as to avoid a crucial and very difficult and painful constitutional question which doesn't imply at

all that the question would be settled one way or another as it's raised. Now, as to Charles Wright not having raised this point in his papers or in the argument, I have examined neither. It's been such a short time and I've been beginning teaching this year. I think, however, that it's plain that in a case of this magnitude, an appeal court or the Supreme Court, would be fully justified in having recourse to its own researchers into the law and to its own ideas of the law. - Or they could ask for some kind of additional submissions. - It's actually a very close to the rule which is plain black letter law that a federal court takes notice sua sponte of its own defects in its own jurisdiction. It's not exactly that but I think the court has before and might very well again take notice of a point of law which it happened that one of the litigants had not raised if indeed he has not raised it. - Gentlemen, before we wander off in our own legal thicket which our viewers may not completely

understand, let me ask you a couple procedural and maybe one political question. If such a thing were to happen, if the Supreme Court were in effect to duck the issue saying that Congress hadn't really acted, would that mean that Judge Sirica's order would stand or would that mean... - It would mean that it would be reversed. It would be reversed. It would be a declaration of powerlessness on the part of the courts to issue, the subpoena because the statute enabling the grand jury to go forward did not comprehend grand jury power to ask the president for this kind of investigation. - So in effect it... -In effect it would be a reversal but not to, not if Congress wished to persevere a permanent reversal. - And not a reversal on constitutional grounds? - No. Quite. - A reversal on statutory grounds. - It would leave the question of executive privilege exactly where it has so healthily been for almost 200 years. That is indeterminate. - All right. Then let me ask the other political question. This also would mean that this issue would come before the Congress which would then rule on the issue in something other than an impeachment proceeding. Would that be healthy?

- That would be the way it would come before Congress. Now whether they would elect to do that or to go through impeachment route is another matter. No, that's certain. The next move would be up to Congress and the basis of this position is simply that if we're going to have this kind of determination of an almost supremely serious constitutional question, we ought to be darn sure that the Congress that granted authority to ask these questions really means it, means it as to the president. - Well, let's talk a bit about the role of Congress in an impeachment proceeding. It's been argued by Professor Wright and others from the White House that the only real limit on the president is the impeachment power, and yet on the other hand it's been argued by I know the Senate committee, by Prosecutor Cox and others that the president is not above the law and that in this case where there is the possibility of criminal action, he should be answerable to the law. - Well, could I... just a very brief statement of what the impeachment provisions are in the

Constitution. Article I believe section 7 it talks about impeaching the president. And then there's language about, "Nevertheless the person convicted can be indicted and tried" and so on. The language about indictment in other words follows the language about impeachment. Some people have said that because of that sequence in the Constitution it follows that only impeachment can be the first step. You cannot indict before you impeach. Professor Berger of Harvard, an eminent legal historian, has made a very strong case that the sequence of the language in the Constitution has nothing at all to do with the way the thing ought to operate, that the sequence of the language is explainable by the fact that at the time the Constitution was framed, the framers were aware of the English practice of impeaching and convicting for crime all in the same proceeding. And they use separate language in the Constitution to make it plain that if a man was impeached and disqualified and removed from office, he was nonetheless liable at law for his acts and that he couldn't plead that he'd already been tried and convicted by the House and was being subjected to double jeopardy when they brought him before the bar of a criminal

court. - All right, well let me --we don't have much time remaining--let me do ask this basic question about impeachment. Should the Supreme Court rule against the president, should the president not comply with the order, then do you think impeachment is first of all possible and second of all a logical course to go to? - I have steadfastly and almost from necessity, limited myself to the consideration of questions that actually have come up in this case. I haven't researched adequately or thought adequately about questions a long way in the future and I really would need, I think, above all to research the history behind the impeachment in a deeper way than I've really had a chance yet to do in order to speak to any of these points. - Well, I share that humility of Professor Black's. I have not done the kind of research which is necessary for this question. Very briefly, here is a problem. You have the failure of the president to comply with the court order.

That per se is not any kind of a crime and under the Constitution, impeachment lies for treason, bribery and other high crimes and misdemeanors to borrow the language of the Constitution. So at that point legally there's an argument as to whether or not he even qualifies for an impeachment or the accusation of wrongdoing. Now if the court went further and issued a contempt citation, at that point I believe a criminal contempt citation, at that point he's getting closer to being in violation of the criminal law and perhaps the language of the Constitution applies. But the final question is to whether a president has to commit some kind of a crime, like treason or bribery or high crime or misdemeanor before he can be impeached, has never been resolved despite the clear language of the Constitution on this question. - Well, I'll take it then that the research wouldn't do me any good on this. The word "misdemeanor" is the crucial word here. I would have a like to scotch the notion that anybody is contending that the president is above the law. Contentions by people like me simply have to do with what the law may be, what the correct law as to the presidency is rather than the president is above the law.

Of course he's not above the law, nobody's above the law. The question is what is the law that applies to him? - Gentlemen, thank you very much. Our time is about up. One subject we didn't get into was the position of the Senate Watergate Committee which we know feels that it has an equal claim on the tapes through its legislative responsibilities and that it too has its own case pending and expects to catch up with the other case. Gentlemen again, thank you very much. - As we noted earlier, the appeals court can come up with its own compromise. And late today, it gave some indications in that very direction. The court issued a surprise and very unusual memorandum, suggesting that prosecutor Cox sat down with the president and his attorneys and listened to the tapes. If the two sides cannot agree on turning over relevant parts of the tapes to the grand jury, then the court would settle the issue. Or the court suggests the prosecutor might find he does not need the tapes. The court, with the judges acting unanimously, gave both sides one week to respond. The judges added that such a compromise would avoid their having to decide the issue of

constitutional separation of powers. Prosecutor Cox said he would be willing to meet with the president. The White House said its lawyers are studying the idea. And in another development today, attorneys for John Mitchell also asked to hear those tapes. And thus, the story of the president and the courts continues. For our guest tonight and for Peter Kaye, at NPACT, I'm Jim Lehrer. Thank you and good night. From Washington, this has been an NPACT special, The President and the Courts. This program was made possible through grants from the Corporation for Public Broadcasting and the Ford Foundation. This has been a production of impact, a division of the Greater Washington Educational Telecommunications Association. Have a great week!