The Gazette 1974

The Legal background to Mr. Nixon's battle over White House tapes .

HOW PRIVILEGE PROTECTS THE PRESIDENT

By PROF. ARTHUR GOODHART

"The forced publication of confidential recordings seems

to be a doubtful innovation"

It is in the best American tradition that the present

bitter concict between President Nixon, the Senate

Committee, and the Grand Jury sitting in Washington

should be centred on an apparently simple question :

has the President a legal privilege not to disclose the

tape recordings that were made in the White House

both before and after the Watergate breakin took place?

To understand this legal question it is necessary to

begin with a definition of the word "privilege", al-

though this has been avoided by most of the news-

paper commentators. A legal privilege is a provision

that evidence which is compellable as a general rule

can be excluded on special grounds either by the judge

or on the motion of one or more of the parties. A person

who claims a privilege is not attempting to break the

law, as has sometimes been said : he is asking that an

exception, to which he is entitled, should be recognized.

These privileges are not based on the content of the

questions, but on the relationship between the parties.

They are few in number, and may change from time to

time, but they have given rise to difficult problems, as

in the present case.

The most romantic privilege is the matrimonial

privilege. Both English and American law provides

that, as a general rule, neither a husband nor a wife

can be required, in a criminal case, to give evidence

against the other. This privilege has given rise to a

failure of justice in a number of cases, especially those

in which a marriage takes place shortly before a trial

so as to shut out evidence that would lead to a con-

viction, but nevertheless this is better than the suffering

that might be caused if one spouse were forced to

denounce the other.

A second privilege arises in the lawyer-client relation-

ship provided that there is no conspiracy between them

to commit a crime. Thus the privilege can be claimed

even if the client confesses to his lawyer that he has

committed a murder.

Here again the privacy of the lawyer-client relation-

ship is regarded as being so important that it is en-

forced even though it leads to injustice in a particular

case.

The third privilege arises out of the relationship

between a priest and a person making a confession.

Here there is a difference in theory between English

and the American law, but, in fact, the relationship

is regarded as conclusive in both systems. Professor

Wigmore, whose

Law of Evidence

has been recognized

as the leading authority on this subject, quoted at

length from Jeremy Bentham's famous

Rationale of

Judicial Evidence :

"The basis of the enquiry is, that this institution is

an essential feature of the Catholic religion, and that

the Catholic religion is not to be suppressed by

force. . . . To all individuals of the profession, it

would be an order to violate what by them is num-

bered amongst the most sacred of religious duties. In

this case, as in the case of all conflicts of this kind,

some would stand firm under the persecution, others

would sink under it. . . . The advantage gained by

the coercion—gained in the shape of assistance to

justice—would be casual, and even rare; the mischief

produced by it, constant and all extensive."

When we turn to the Watergate cases we find that it

is difficult to discover any agreed principles. Thus it has

been said that the privilege does not extend to the

criminal law. I disagree with Professor Bickel who said

(The Times,

September 3, p. 12) : "Whatever else the

privilege may cover, it can never have been intended to

cover evidence of crime." It is true that the evidence of

a crime on a tape recorder is not the same as oral

evidence of a crime given in court but this is a dis-

tinction which is hardly a reasonable one. In the privil-

eges mentioned above the purpose almost always is "to

cover the possible evidence of crime."

It has also been said that an order issued by a Grand

Jury for the submission of relevant evidence is an abso-

lute one, so that even a President must obey it. The

answer to this is that not all orders issued in the name

of the Grand Jury are absolute as is shown by the privi-

leges against self-incrimination and against a spouse's

evidence in matrimonial cases which need not be obeyed.

It is reasonable, therefore, to hold that a privilege

against the disclosure of confidential tape recordings

will not necessarily be invalidated because it is made

by a Grand Jury.

This brings us to the central question of the present

case in regard to the nature of the President's privilege

concerning confidential documents in his control. It is

a privilege (a) strictly limited to matters of national

security or to (b) matters relating to the public in-

terest, or (c) a privilege relating to all documents in his

possession which he regards as being confidential? Un-

fortunately there is no direct evidence concerning the

correct answer as the Constitution is silent on this

point. This is hardly surprising as the Constitution,

and its first 10 amendments, is in the nature of an

outline : it occupies less than 10,000 words. Article 1

sect. 6 provides in part, that no member of either

House shall "be questioned in any other place" for any

speech or debate in either House, but it says nothing

about confidential papers.

We must, therefore, turn to the precedent cases and

debates regarding the Presidential privilege, but we

find that they are so limited that they can be counted

on the fingers of one hand. There is hardly any

emphasis on "national security" and no attempt to

define its meaning.

It is the second phrase "matters relating to the pub-

lic interest" which finds greater support. This is broader

than "national security" which has become increasingly

difficult to define under modern conditions as it may

depend on constant changes not only in armaments but

also in political allies and in financial support. It is,

therefore, more realistic to accept the third test based on

the President's possession of the documents and his

decision that they are of a confidential nature, and of

possible public concern. The all-important point here is

that the decision must be made by the President, and

not by a Senate committee, or the Senate or the House

of Representatives, or a court of law. It is here that

common sense must govern because there are no