Showdown Before the Justices

The case called The United States of America v. Richard Nixon raises an ostensibly simple question: Does Federal Judge John Sirica have the right to review 64 still-secret White House tape recordings for possible use in the Watergate trial of six former Nixon aides? In fact, the issue on which the U.S. Supreme Court begins final deliberations this week is far more complex and far reaching. The ultimate ruling--and how Nixon responds to it--may vitally affect the impeachment proceedings and conceivably could alter the constitutional relationship between the Judicial and Executive branches of government.

Despite the masses of evidence already on the public record, the 64 tapes are widely believed to hold answers to some of the Watergate mysteries still unresolved. That is why Special Prosecutor Leon Jaworski subpoenaed the material --and perhaps why the President refused to comply with Sirica's order to produce it for judicial inspection. The White House tried to take the case to the Circuit Court of Appeals, which would have meant still more delay. Jaworski persuaded the Supreme Court to take the case directly.

The high court then called for and received lengthy written briefs from both sides. After the oral arguments in the tense and jammed chamber--there were 6,000 requests for 300 seats--the wait for a decision begins.

The two legal camps have been working under intense pressure to meet deadlines for two rounds of written briefs, then to prepare for the oral arguments. The President's lawyers have been operating under serious handicaps. His chief Watergate counsel, James St. Clair, overburdened on multiple fronts, was tied down to regular attendance at the Judiciary Committee's impeachment hearings. As the Supreme Court asked for briefs, Nixon's chief constitutional consultant, Charles Alan Wright, was off on a Baltic vacation cruise. Another top Nixon lawyer, J. Fred Buzhardt, was disabled by a heart attack.

The result was a wordy and unpolished main brief, written primarily by junior staff lawyers who worked through two all-night sessions to meet the deadline. Too late for normal printing, it was photocopied--and initially rejected by the court because the type was too small.

The haste showed in the final printed copy too: the attorneys submitted the document "respectively," instead of "respectfully." By the time reply briefs were due, Wright was back at the White House temporarily, and under his direction the President's arguments were considerably strengthened.

The Jaworski staff had fewer problems. Although under the same time pressure, eight topflight lawyers divided the research chores by subjects and produced a more tightly reasoned and precedent-studded brief on time. Busy supervising the various Watergate investigations and prosecutions, Jaworski nevertheless gave the Supreme Court arguments his personal attention. He also had the skilled aid of Philip Lacovara, 30, his chief counsel and perhaps the sharpest mind on the 38-member legal staff. Despite the liberal image of the Jaworski team, Lacovara, a conservative, is a former Goldwater activist.

The oral arguments opposing the President before the Supreme Court were to be shared by Jaworski and Lacovara, both of whom had argued before the court previously. St. Clair, by contrast, was only admitted to practice before the Supreme Court last month and was to carry the full burden alone this week, apparently by his own choice.

However dramatic the lawyer-to-lawyer showdown, the written arguments were vitally important. Each side framed the questions differently, but the main constitutional issues were clear:

> Does the President have an absolute Executive privilege to withhold evidence in a criminal trial solely on his claim that it would not be in the public interest to produce it, or can such a claim be examined by a federal court to determine if it is proper?

> Are the courts powerless to issue a directive that the President comply with a subpoena because they may be unable to enforce such an order?

> Is a general claim of Executive privilege sufficient for the President to withhold confidential information when there is evidence that the President himself may have been a co-conspirator in the crime for which his former aides have been indicted?

> Did the Watergate grand jury have the legal right to name Nixon as an unindicted co-conspirator or, since its power to indict a President until after he leaves office is in doubt, was that act invalid?

The President's case depends heavily on a claim that the separation of powers among the branches of Government cannot be breached. The right to secret decision-making discussions within each branch is vital to that separation. If the courts can overrule Nixon's claims of privilege, this argument states, it would "impair markedly the ability of every President of the United States from this time forward to perform the constitutional duties vested in him."

Jaworski counters that no such absolute privilege exists, especially in a criminal case, and no future President is likely to be injured if the Supreme Court rules against Nixon. The Jaworski brief wryly observes: "Surely, there will be few occasions where there is probable cause to believe that conversations in the Executive Office of the President occurred during the course of a criminal conspiracy."

Many legal scholars feel that the Jaworski case will prove persuasive to a majority of the Justices if the court consents to rule on the constitutional issues. But the court under Chief Justice Warren Burger has sometimes been reluctant to flirt with history by tackling fundamental questions. Perhaps for this reason, both Jaworski and St. Clair have presented tantalizing arguments that could allow the Justices to rule on narrow grounds. Two short-cut routes to a pragmatic judgment are possible, providing a victory for either side. They are:

FOR NIXON. His best hope lies in challenging the jurisdiction of the courts to hear Jaworski's claim against the President. St. Clair argues that the dispute over the tapes is essentially an internal controversy wholly within the Executive branch of the Government. Under this reasoning, the President is the chief law enforcement officer and chief prosecutor. Therefore, only he has final authority to decide what evidence held by the Executive branch will be produced in a criminal case. Jaworski thus is merely an employee engaged in a quarrel with his boss. To argue otherwise would make the special prosecutor "a fourth branch of Government" and this would "destroy the tripartite form of government."

Jaworski replies that the President's role in criminal prosecution has been delegated to the Attorney General by Congress; both the Attorney General and the President have specifically further delegated to the special prosecutor complete independence, including the right to go to court to force evidence from the White House. Unless Jaworski is fired--and Nixon has pledged that he would seek the concurrence of congressional leaders before attempting that --his office amounts to "a quasi-independent agency." Thus there is an urgent "justiciable controversy."

FOR JAWORSKI. The special prosecutor contends that even if Nixon has the right to claim a general privilege to protect his conversations, he has legally waived that privilege in the Watergate scandal. He did so by permitting his aides to testify about those talks, by releasing 1,308 pages of edited tape transcripts to the public and by letting H.R. Haldeman, who became one of the indicted conspirators, listen to tapes after leaving the White House staff. Since the President has arbitrarily opened the door to selective conversations on this topic, Jaworski says that he cannot slam it shut. "He cannot release only those portions he chooses and then stand on the privilege to conceal the remainder. No privilege holder can trifle with the judicial search for truth in this way."

Material of Life. St. Clair's rebuttal is that there is a crucial difference between allowing someone to testify and releasing a tape. While testimony can be neatly confined to a relevant topic, "recordings are the raw material of life.

They contain spontaneous, informal, tentative and frequently pungent comments on a variety of subjects inextricably intertwined into one conversation." St. Clair ignores the fact that Sirica's order calls for screening by the court to delete such extraneous matter from the tapes.

St. Clair's brief plays upon the court's known reluctance to break new legal ground and warns that the Justices could, in effect, influence an impeachment process assigned solely by the Constitution to the Congress. Moreover, "there are blank spaces on the constitutional canvas that must be left untouched if the Constitution is to bear the same creative relation to our future that it has to our past."

The special prosecutor concedes that "the subpoenaed evidence may have a material bearing on whether he [the President] is impeached and, if impeached, whether he is convicted and removed from office." But that only means, according to Jaworski, that "the President cannot be a proper judge of whether the greater public interest lies in disclosing evidence subpoenaed for trial when that evidence may have a material bearing on whether he is impeached, and will bear heavily on the guilt or innocence of close aides and trusted advisers."

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