The Judge Commands the President

It was only fitting that John J. Sirica should decide the controversy over the Watergate tapes. It was Sirica who had presided over the original trial of the Watergate burglars. It was Sirica who had protested that the whole truth had not been told in his courtroom. It was Sirica who broke open the case last spring by threatening maximum sentences but offering to review the penalties if the defendants talked--as James McCord eventually did. Now, after studying the lengthy briefs and arguments presented by Special Prosecutor Archibald Cox and White House Attorney Charles Alan Wright, Sirica knew that the eye of history was on him.

Clearing his schedule of all other work, he rose as early as 4 a.m. at his brick, Cape Cod-style home in Northwest Washington, then drove to his office in the U.S. Court House to study law books and constitutional interpretations most of the day. He painstakingly revised his opinion several times, and not until noon of the day the opinion was to be delivered did he finally finish. Three hours later, his secretary handed out mimeographed copies to reporters in his wood-paneled chambers. Wearing a dark coat and gray slacks, Sirica stood by, shaking hands, extending polite greetings, but resolutely refusing to comment.

The decision spoke for itself (see excerpts page 17). He ruled, in principle, in favor of most of Cox's arguments --the most important being that no man, not even a President, is immune from a grand jury's demand for evidence. But it was not a clear-cut victory for Cox--not yet--because Sirica confessed that he could not rule on the President's claim of Executive confidentiality unless he heard the tapes himself. He therefore asked that the tapes be turned over to him so that he could hear them in his chambers. Sirica promised to keep "privileged portions" secret and excise the tapes so that no grand juror would hear them.

New Recordings. Just how Sirica would go about censoring the tapes--if he gets them--was left unclear. Court officials said that he would consult with "technical experts" before deciding on a course of action. Sirica probably would first listen to them alone, since he could hardly invite anyone, even a secretary, to share his in camera inspection. Then he could request typed transcripts, perhaps prepared by White House staffers, and snip out the non-Watergate portions. That, however, would leave out the sound of the voices and the inflections that might also constitute valuable evidence that the jurors should hear. Thus experts suggested that the more likely course would be for the judge to re-record those portions which he determined to be relevant to the investigation and give the new recordings to the grand jury.

There remained the possibility that Sirica would find nothing on the tapes so sensitive that the grand jury could not hear it. In that case, he could simply give the jurors the tapes in their entirety. On the other hand, Sirica said that if the tapes turn out to be irrelevant to the investigation--or if privileged material cannot be separated from the unprivileged--the tapes would be withheld, as Nixon has demanded all along.

In the course of his opinion, Sirica rejected many of the counterarguments that Wright had made on Nixon's behalf --arguments that Wright presumably will use once again before the court of appeals and ultimately the Supreme Court. Among the judge's main points:

> A President has only a limited right to secrecy. Sirica found in the history of the Constitution "a general disfavor of privileges" but noted that the Supreme Court in 1953 had recognized an Executive privilege for military secrets. Thus Sirica concluded, there are times when the President can refuse to produce evidence, and he promised to bear this in mind during his own judgment on the tapes. But he made it clear that Executive privilege does not cover conversations relevant to a criminal investigation and not involving performance of official duties.

> A President is not the final judge of what evidence can be kept secret, since the control over evidence in a case has rested with the judiciary throughout history. Abdicating this role to Presidents or anyone else, Sirica said in a footnote, "would dishonor the genius of our constitutional system and breed unbearable abuse." The judge admitted that his secret inspection of the tapes might "constitute a compromise of privilege" if the material turned out to be covered by the President's right to secrecy, but he said that it would be "an extremely limited infraction" and was "unavoidable" if the court was not to abridge its right to the control over criminal evidence.

> A court can order a President to obey a grand jury subpoena. Emphasizing that a grand jury derives its power from the people, not the courts, Sirica said that Nixon's separation-of-powers argument does not apply in this case. The grand jury has "a right to every man's evidence," Sirica said, and Nixon is exempt only if a court decides that his evidence is privileged.

> The grand jury has demonstrated a need for the tapes in order to complete its investigation. Sirica noted that Cox had detailed for the court what areas of "critical conflict" in the testimony on Watergate the jurors expected to be resolved by the tapes. As a result, the judge said, the court can "make an intelligent and informed analysis of the evidence."

Sirica's decision came, appropriately enough, in the twilight of his full-time career. Next March, when he reaches the age of 70, he must decide whether to go on senior status or retire. The son of an immigrant Italian barber, Sirica worked his way through Georgetown Law School by serving as an athletics instructor for the Knights of Columbus and engaging in occasional exhibition boxing matches. Both as a practicing lawyer in Washington and as a judge, he followed an early associate's advice: "Get the facts, John, and the law will take care of itself." Appointed to the federal bench by President Eisenhower in 1957, he sat with relative obscurity until he had the chance to designate a judge for the Watergate trial and chose himself as the best man to "get the facts."

Sirica's decision was widely applauded as a sensible compromise between the arguments of Wright and Cox. The Wall Street Journal, for example, called it a "reasonable and tenable position." The Atlanta Constitution said: "It was Judge Sirica as much as any single man who pressed for the truth." In the White House, of course, the reaction was somewhat different. The first official statement said flatly: "The President will not comply with the order." It added that Nixon's lawyers were "considering the possibility of obtaining appellate review or how otherwise to sustain the President's position." This seemed to imply that Nixon might simply ignore Sirica's order, thus raising the ugly prospect of a contempt proceeding against him and an ominous power struggle between the Executive and Judicial branches. The following day, however, the White House announced that after an hour-long conference in San Clemente, the President and his lawyers had decided to carry the case to the appeals court (see box). Judge Sirica had granted a stay pending completion of appeals, and the White House said that its lawyers would be ready to begin taking up the case this week.

Half-forgotten in the struggle was the fact that Senator Sam Ervin, who hailed Sirica's decision as a "great victory for the search for truth," has also been demanding the presidential tapes. His committee has filed a separate complaint in Sirica's court, and last week the White House lawyers fought back with a barrage of arguments far more pugnacious than the ones they had filed in opposition to Cox.

Criminal Trial. In imperious language, the White House answer declared that the Ervin committee not only had no right to the tapes but that its whole investigation was unconstitutional in the first place. It said that the committee probe "has been, in fact, a criminal investigation and trial conducted for the purpose of determining whether or not criminal acts have been committed and the guilt or innocence of individuals." Such a proceeding, the lawyers argued, exceeds Congress's constitutional powers. The answer asked Sirica to dismiss the committee's subpoena on a number of other grounds. It said that the court lacked jurisdiction over the President, that the Senate had not authorized the subpoena and that it was "unreasonably broad and oppressive."

The Ervin committee lawyers immediately fired back a motion for summary judgment, asking Sirica to rule on their request with a minimum of further proceedings. They noted that the committee had received evidence, principally from former White House Counsel John Dean, that the President was involved in a crime--the Watergate cover-up--but that he refused to give up the tapes and memoranda that might exonerate him. The committee insisted that the subpoena was well within its "mandate and responsibility to ferret out all the facts regarding the Watergate affair, both to aid the Senate in its legislative function and ... to inform the public." For good measure, the committee lawyers projected themselves as preservers of the entire republican system of government: "Once the President becomes so immune by privilege that he cannot be reached by force of law short of impeachment, he will become much as the monarch from whom our form of government constituted a revulsion."

Thus on two fronts the struggle over Nixon's tapes was slowly working its way toward final resolution by the Supreme Court. Still not fully answered was what might happen if that court ruled against Nixon. He has promised to abide by a "definitive ruling" of the Supreme Court. But, by implication, he would ignore anything short of that, and he has never explained what he would consider "definitive." As Wright pointed out in his arguments before Sirica, the courts have no way to force a determined President to obey. Still, Sirica did not see that possibility as any reason to duck the constitutional issues. He declared hopefully: "Regardless of its physical power to enforce them, the court has a duty to issue appropriate orders ... It would tarnish the court's reputation to fail to do what it could in pursuit of justice ... The courts have always enjoyed the good faith of the Executive Branch ... and there is no reason to suppose that the courts in this instance cannot again rely on the same good faith."

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