Understanding the legal fight over the Nixon tapes

As regular readers of this newsletter know, we’ll occasionally do a deep dive on some front-page news item on this date from way back when. This week, we’re looking at a report from July 30, 1973, that Sens. Sam Ervin Jr. (D-N.C.) and Howard Baker (R-Tenn.), the chair and vice chair of the Senate Watergate committee, respectively, had offered a compromise whereby they and the special prosecutor in the Watergate criminal case, Archibald Cox, would review the Nixon tapes privately and screen out material unrelated to Watergate before public release.

Reading the story, I realized that I had only a generalized knowledge of the year-long legal fight, on multiple fronts, to secure the Nixon tapes and that it’s difficult to find a handy, pocket-sized summary of that history. So here goes.

Past presidents had dabbled with audio recordings in the White House, including President Franklin Roosevelt, who had the Oval Office wired to record his press conferences, and Lyndon Johnson, whose recording apparatus Nixon inherited when he took office in 1969. Nixon initially removed that equipment but — interested, in part, in having a record for his memoirs — changed his mind in 1971. At Nixon’s instruction, the Technical Services Division of the Secret Service wired locations in the White House with microphones in February 1971 and installed similar equipment in the Eisenhower Executive Office Building and at Camp David over the next 16 months.

The recording system was voice-activated. Nixon wore a device like a pager that would trigger the recording when Nixon approached a microphone and started speaking. The existence of the taping was kept very close. Only Nixon, Chief of Staff Bob Haldeman, Nixon aide Alexander Butterfield, and Secret Service personnel knew of its existence.

On June 17, 1972, five men were arrested for breaking into the headquarters of the Democratic National Committee. Subsequent reporting established connections between the burglars and the Committee for the Re-election of the President, often called “CREEP,” and the Watergate scandal began an increasingly rapid snowball over the next two years.

Following the Watergate burglary trial, the Senate in February 1973 established the Senate Select Committee on Presidential Campaign Activities, commonly known as the Senate Watergate committee. On July 16, 1973, during live hearings of the committee, Butterfield confirmed the existence of the Nixon tapes. Those tapes were potentially explosive, as they could corroborate former White House counsel John Dean’s testimony that Nixon was involved in the coverup early on. And the fight for the tapes began.

The confusing piece of this history is that there were several different elements vying for access to the tapes, and Nixon tried to hold them all at bay with different stratagems to selectively withhold incriminating tapes or transcripts.

Nixon successfully stonewalled the Senate. Immediately after the Butterfield revelations, the committee asked the president for the tapes. Famously declaring that he had listened to the recordings and that they “are entirely consistent with what I know to be the truth,” Nixon refused, leading the Senate to issue a subpoena. (The July 30 proposed compromise noted above was an effort to get the tapes without having to go to court.)

Then there was special prosecutor Cox, who had been appointed by Attorney General Elliot Richardson. During his confirmation, Richardson promised the Senate that he would guarantee the special prosecutor’s independence.

Cox also subpoenaed certain tapes and the president again refused to comply. The special prosecutor’s office litigated the matter first in front of Judge John Sirica of the U.S. District Court for the District of Columbia, who rejected the president’s claims of executive privilege and ordered that the tapes be turned over for his review in chambers, and then the U.S. Court of Appeals for the D.C. Circuit, which, in October 1973, affirmed.

That case, Nixon v. Sirica, set up the “Saturday Night Massacre.” Nixon had to find a way to comply with the D.C. Circuit’s order and he and his aides came up with the “Stennis compromise,” where Sen. John Stennis (D-Miss.) would review transcripts of the tapes, compare the transcripts with the audio, and verify the accuracy of the transcripts. (Stennis was famously hard of hearing.) Cox rejected the plan, leading Nixon to insist that Richardson fire Cox. Richardson resigned instead, as did the second in line, William Ruckelshaus. Solicitor General Robert Bork then became acting attorney general and agreed to carry out the order.

The Saturday Night Massacre backfired spectacularly. Among other things, news coverage of FBI agents sealing Cox’s offices didn’t go over well with the public. On Nov. 1, Bork appointed Leon Jaworski as another special prosecutor for Watergate. Jaworski then subpoenaed tapes of 64 conversations in connection with the investigation into Nixon’s former senior aides. That case, United States v. Nixon, went all the way to the U.S. Supreme Court, which ruled unanimously, in July 1974, that Nixon had to produce the tapes.

The tapes included a recording of a meeting on June 23, 1972, six days after the break-in, where Nixon and Haldeman discussed using the CIA to shut down the FBI investigation. That “smoking gun” tape confirmed that Nixon had lied about being involved in the cover up and led to almost certain impeachment in the House and conviction in the Senate.

Nixon resigned on Aug. 9, 1974, one year and 24 days after the revelation of the tapes.

Like what you’ve read? Sign up to get The Nuance newsletter delivered straight to your inbox!

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.