A Subpoena for Nixon

Before a surprised audience in Los Angeles Superior Court, Judge Gordon Ringer ordered Richard Nixon to appear as a material witness in the forthcoming conspiracy and burglary trial of ex-White House Domestic Affairs Adviser John Ehrlichman.

Ehrlichman's defense attorneys adroitly set the stage for this dramatic step. They maintained that the President had put Ehrlichman to work as a federal agent when he gave him the job of tracking down the source of such leaks as the Pentagon papers. In carrying out that assignment, runs the argument, "the plumbers" unit under Ehrlichman's supervision broke into the Los Angeles office of Daniel Ellsberg's psychiatrist in 1971. Ringer agreed that the President's testimony was a key element. Accordingly, he ordered Nixon to appear on behalf of Ehrlichman, David Young Jr. and G. Gordon Liddy, all of whom are scheduled to go on trial in Los Angeles on April 15.

A Republican appointed to the bench by Governor Ronald Reagan, Ringer acknowledged that his order was, to say the least, unusual. "It will be up to the President or counsel to show it would be a hardship to appear, or to assert Executive privilege," he said. The White House indicated that Nixon would refuse to appear on constitutional grounds, involving either Executive privilege or the separation-of-powers doctrine. But the President almost certainly will respond hi writing.

If precedent is a guide, the President has ample reason not to show up in person. As Judge Ringer noted: "U.S. v. Burr is commanding." At the time of the 1807 treason trial of former Vice President Aaron Burr, President Thom as Jefferson informed the Government attorney that he would not appear in court to testify, arguing that the separation-of-powers principle did not permit him to get involved in a series of court proceedings. But when Chief Justice John Marshall issued a subpoena or dering Jefferson to produce a batch of letters and documents, he submitted some of them. President James Monroe reacted in similar fashion when he was subpoenaed to testify at a court-martial in 1818. In a curious modern sequel, a California state judge ordered President John Kennedy to give evidence at a trial in 1961. Some delegates to the 1960 Democratic Convention had been injured while riding in Kennedy's car; to collect damages, they had to prove that they were engaged in business and were not simply guests. Kennedy supported their case in writing.

On the outside chance that the President refuses to provide testimony, the defense can ar gue that it is being denied due process of law because a vital witness is withholding information. But the defense expects Nixon to repeat in writing what he stated last May: even though he did not order the Los Angeles break-in and in fact disapproved of it, he believed that the plumbers were acting in the interest of national security. Ehrlichman and the other two defendants argue that they are the victims of "discriminatory prosecution"; that is, they are being prosecuted for an act (illegal breaking and entering) that other law-enforcement officers are allowed to get away with. Joseph Ball, one of Ehrlichman's California attorneys, told Judge Ringer: "We should find out if a police officer has ever been put on trial for kicking down somebody's door."

Whatever the President does in California may turn out to be irrelevant to Ehrlichman's future. If he were indicted by a federal grand jury in Washington before he went to trial in California, which is a distinct possibility, then the California charges against him would probably be dropped. That, presumably, would also be the case if Ehrlichman pleaded guilty to one federal charge in return for testifying against the President and former White House Chief of Staff H.R. Haldeman. At the moment, there is no sign of a rift be tween Nixon and Ehrlichman. Yet ultimately, Ehrlichman may be pushed into a position where he can harm the person on whom he is now counting for help -- the President.

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