THE PRESIDENCY: Richard Nixon Stumbles to the Brink

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Cox's somewhat fey professorial manner conceals a backbone of steel. Summoning newsmen the morning after Nixon's statement on the tapes, he declared: "I'm certainly not out to get the President. I hate a fight." Contending that the legal argument must not degenerate into a clash of personalities, Cox insisted that Nixon's refusal to provide any of the tapes or documents was just another in a series of "repeated frustrations" in his attempts to get vital information from the White House.

The strongest Cox argument against Nixon's proposal was that no trial court would be satisfied with a summary of evidence when the complete tapes and documents existed. Failure by the prosecution to produce them would allow defense attorneys to seek dismissals on the ground that evidence was being withheld by the Government.

Such an impasse could lead to a complete perversion of justice in the varied Watergate crimes. The Watergate figures who have cooperated with prosecutors, admitted some of their own illegal acts and already entered guilty pleas, could wind up as the only principals to face punishment. Thus John Dean, Jeb Stuart Magruder and Fred LaRue, for example, might be jailed, while such adamant professors of innocence as John Ehrlichman, Bob Haldeman and John Mitchell might go free. While this outcome might not displease the White House, it would hardly reassure the public.

Nixon certainly did not see the situation that way as he presented his case for evading the court's directives. Citing "this critical hour" in world affairs, Nixon argued that "there are those in the international community who may be tempted by our Watergate-related difficulties at home to misread America's unity and resolve in meeting the challenges we confront abroad." The Middle East crisis, he contended, made it imperative that the lingering tapes controversy be settled promptly.

Thus, said Nixon, he had decided to take "decisive action that will avoid any possibility of a constitutional crisis." To carry an appeal to the Supreme Court would eventually bring a decision favorable to his claims of Executive privilege, he concluded, contrary to the estimates of most constitutional scholars. Yet that would take too long. So he was acting now "with the spirit" of the appeals-court decision by offering a "compromise." It was only "with the greatest reluctance" that he was permitting "a breach in the confidentiality that is so necessary to the conduct of the presidency" and allowing Senator Stennis to monitor the tapes.

Nixon then anticipated a most appropriate question. "Why, if I am willing to let Senator Stennis hear the tapes for this purpose, am I not willing merely to submit them to court for inspection in private?" Nixon's unpersuasive answer: "To allow the tapes to be heard by one judge would create a precedent that would be available to 400 district judges."