Rejecting Nixon's Absolutes

The showdown nears. The stage has been set for a final confrontation between Executive and judiciary, between President Nixon and the U.S. Supreme Court. By a 5-to-2 majority last week, the U.S. Court of Appeals for the District of Columbia upheld U.S. District Judge John J. Sirica's decision that the President must let him examine the Watergate tapes to decide which to submit to the Watergate grand jury.

Trying to head off a constitutional clash, the court of appeals had asked the President's attorneys and Special Prosecutor Archibald Cox to try to work out a compromise. No agreement could be reached; so the court ruled. Its decision was a sharp, skillfully crafted rebuke to the President's claims of absolute immunity from the judicial process and absolute Executive privilege.* To uphold these positions, said the court, would dangerously strengthen the presidency at the expense of the other branches of Government.

Acknowledging that its decision applied only to the "precise and entirely unique circumstances of the case," the court made a ringing declaration that the President must answer to the law no less than the average citizen. "The Constitution," said the court, "makes no mention of special presidential immunities. Indeed, the Executive Branch generally is afforded none. This silence cannot be ascribed to oversight."

"Lacking textual support," the court continued, "counsel for the President would have us infer immunity from the President's political mandate or from his vulnerability to impeachment or from his discretionary powers. These are invitations to refashion the Constitution, and we reject them. Though the President is elected by nationwide ballot and is often said to represent all the people, he does not embody the nation's sovereignty. He is not above the law's commands. Sovereignty remains at all times with the people, and they do not forfeit through elections the right to have the law construed against and applied to every citizen."

Throughout history, said the court, there have been frequent conflicts between the independent organs of Government. "Our constitutional system provides a means for resolving them --one Supreme Court." If the President was granted the power to decide what constitutes Executive privilege, there would be a "mixing" of Executive and judicial functions rather than a separation. "The Constitution mentions no Executive privilege, much less any absolute Executive privilege." If the President's claims were accepted, the Executive Branch might deny public access to all documents. "Support for this kind of mischief simply cannot be spun from incantation of the doctrine of separation of powers."

Powerful Showing. The opinion quoted Nixon's own words against him. Last May, before the existence of the tapes was known, the President declared: "Executive privilege will not be invoked as to any testimony concerning possible criminal conduct in the matters presently under investigation, including the Watergate affair and the alleged cover-up." Confidentiality, the court continued, had been destroyed by public discussion of the contents of the tapes. The court was doubtless alluding to H.R. Haldeman's mention of them in his appearance before the Senate Watergate committee. Finally, said the court, claims for Executive privilege fail "in the face of the uniquely powerful showing made by the special prosecutor."

The two dissenting judges took the opposite position from the majority. Denying the President's claim of absolute Executive privilege, they maintained, would decisively weaken him in his dealings with the other two branches of Government. "The ultimate issue," wrote Judge George MacKinnon, "is the effect that our decision will have upon the constitutional independence of our President for all time." If he cannot be assured that his conversations will remain confidential, he may be prevented from formulating programs and strategies.

Said Judge Malcolm Wilkey: "To put the theoretical situation and possibilities in terms of 'absolute' privilege sounds somewhat terrifying until one realizes that this is exactly the way matters have been for 184 years of our history, and the republic still stands."

The court of appeals granted a stay of its decision for five days to give the President an opportunity to appeal to the Supreme Court--an option he is certain to take. The Supreme Court is expected to hear oral arguments in early December. If its decision is as definitive as that of the appeals court, Nixon will have no choice but to turn over the tapes he has so diligently guarded or risk a constitutional crisis that could well be resolved by his impeachment.

*With two of the judges disqualifying themselves, the court was unanimous in upholding its jurisdiction over the case. But two judges, George MacKinnon and Malcolm Wilkey, both Nixon appointees, supported the President's refusal to release the tapes.

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