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 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 40

"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