impeachment inquiry of president richard nixon. thank you very much for being with us from new york. we will continue our programming next week as cspan 3 american history t.v. focuses on the resignation of richard nixon 1974, 40 years later. again, that is next sunday here on cspan 3 on 8:00 eastern time, 5:00 for those of you on the west coast. tuesday night on american history tv, more water gate with the house judiciary committee's impeachment hearings against president nixon. we'll get opening statements from members of the committee starting with its chairman. new jersey congressman peter ridino starting tuesday night at 8:00 p.m. eastern here on cspan 3's american history tv. >> with live coverage of the u.s. house on cspan here on cspan 3 we compliment that

coverage by showing you the most relevant congressional hearings and public affairs events. on week ends we're the home to american history t.v. with programs that tell our nation's story including six unique stories. the civil war's 150th anniversary visiting battlefields and key events. american artifacts, touring museums and historic sites to discover what artifacts reveal about america's past. the presidency, looking at the policies and leg assies of our nation's command errs in chief. lectures in history and our new series real america featuring archival government and educational films from the 1930s through the 70s. cspan 3 created by the cable tv industry and funded by your local satellite provider. like us on facebook and follow us on twitter. >> saturday mashes the 40th anniversary of nixon's

resignation of president as the united states. this week american hift riff tv looks back at the summer of 1974 and president nixon's last days in office. in a few moments evan davis, a lawyer for the house judiciary committee as impeachment inquiry. he talks about the supreme court u.s. versus nixon pt at issue with nixon's claim that executive privilege refuallowed to refuse to hand over recordings. join s ing us from new york is n davis as we look back forward years at a key u.s. supreme court ruling on the water gate case. mr. davis, thanks very much for being with us here on american history television. >> i'm glad to be here. >> take us back to the supreme court oral arguments july 1974. what was the issue that the court was about to decide and

who were some of the key players? >> well the basic issue the court was going to decide was whether the president had to turn over tape recordings that had been made of conversations in the white house that had been subpoenaed by the special prosecutor. so the special prosecutor was one of the key players. another key player was the house judiciary committee chair bid peter ridino because they had subpoenaed many of these same tape recordings and they were also eager to get those recordings. the third key player was the president and his counsel james st. clair who were resisting the production of these tape recordings. since your listeners are going to be listening to the oral argument, let me just very quickly review the four issues that the court is going to be deciding. the first question is whether

the court has jurisdiction overthis dispute. normally the court doesn't hear a case until it's entirely over. this was a subpoena that dealt with production of evidence prior to trial. the case was not entirely over. so the president was arguing that because the order was not final, it should not be reviewed at this time. the court did not have jurisdiction. the special prosecutor was arguing that there was such jurisdiction. the next issue is an issue of what is called justiceability. a big word that basically means is this a proper subject for the court to decide? the president's lawyer mr. st. clair was arguing that this was basically an internal dispute in the executive branch between the president and the department of justice. it was not a question that was fit for judicial resolution. the special prosecutor was arguing because he had explicit

independent authority to seek this document, these documents an tapes that this was a proper question for the court to decide. the third issue was whether under the applicable rule governing the subpoena called rule 17, the standards for the issuance of a subpoena had been met. the president's lawyer was arguing those standards had not been met. the special prosecutor was arguing that they had. after all of that, you reach the $64 question or maybe $64 million question. what is the scope of executive privilege? the president was arguing through his lawyer that he had absolute privilege that the court did not have any right to demand information about presidential conversations. they were governed by executive privilege, period.

the special prosecutor was arguing that there was no absolute right of executive privilege and what right existed was outweighed by the need for the evidence. so those were the four basic questions presented to the court. the case was argued and i believe july 8th, i think. it was a long argument. it's very unusual for the court to hear argument in the month of july. that's generally their summer break it's very unusual for the court to hear argument directly from the district court rather than waiting for the intermediate appellate court to decide. that happened here, too. the court said there was a public interest in the prompt resolution of the matter. that's why they expedited it in this way. >> let me come back to that final point the issue of executive privilege because it was the point that we heard throughout 1973 and 1974 by then

president richard nixon. what's the genesis of executive privilege? we know how the court decided it was a unanimous decision against the president but explain that point. >> well, part of the working of executive privilege sometimes called deliberative process privilege. the idea is that while the president is having conversations with the advisors, deciding what to do and what not to do, there has to be some scope of confidentiality in order to encourage the advisors to be candid and not fear that publication of their advice is going to cause them a problem and therefore they'll be lectured at it. that is the notion behind executive privilege. the court was considering first is that a valid notion? secondly, if this does exist,

what is its scope. what would outweigh it in a particular circumstance? remember i said the president was arguing it's absolute. he says it's privilege. it's a conversation with them. that's the end of it. the special prosecutor was arguing it was outweighed by the interest of obtaining evidence for a criminal prosecution. >> william renquist refused hcu himself from this argument, why? >> it is common practice if ai justice has worked on a matter prior to joining the court. renquist was in the office of the attorney general and had worked on this matter. it would be common in those circumstances for a lawyer who had worked on a matter for one side or the other and renquist had essentially worked for the department of justice and/or the

president, to take themselves out of the case. so his recusing himself was not unusual. it's what lawyers would have expected him to do. >> did it make any difference in the outcome. could it have been potential been a 8-1 decision instead of unanimous. >> well, that's one of the things we'll never know because he was not in the case. he did not participate in the argument. he did not vote. i am sure he followed the rules and did not try to influence other justices in their vote. so we'll never know the answer to that question. however, i think since it was an 8-0 judgment, it would have required extremely strong feelings to make it a 8-1 because one would stand out in a particularly strong way. >> the special prosecutor this this case, from his standpoint

what was at stake? >> so he needed this information. that's what he told the court. he needed this information to prosecute his cases against white house subordinates. there's been an indictment. there was going to be a trial. he needed all of the evidence he could get that was relevant and appropriate so that he could present that to the jury and the jury could determine what the truth is. i think like any prosecutor, he has a little bit of a bias in hoping that he's going to win his case and believing this evidence is relevant and will probably help him win. the main point from the court's point of view is that it will help the jury arrive at the truth. >> evan davis, you soererved one house judiciary staff back in 5 1974. as you look back 40 years later to the audience listening to the oral argument, what should they look for. >> they should look for the

thinking of the judges and their attitude about whether the president deserves special protection. if he deserves special protection, how much special protecti protection? i think as you listen to the argument, you'll see that most of the justice thought the president deserved some degree of special protection. you'll see in their questions that they do not think the president should be treated just like any other person. that there's special responsibility. special rules and deserves some level of special protection. but you also have to listen for their thoughts are about the limits of that special protection. it's the limits that will determine the outcome. are they agreeing with the president that the protection is absolute, unconditional, will always be given? or are they saying that there are circumstances in which this

must give way to some other public interest of the united states. >> evan davis who was part of the staff of the house judiciary committee in the summer of 1974 he was also the leader of the water gate cover aup task force. now the oral arguments from july 1974 the supreme court decision that came just a few weeks later in the case of the u.s. versus nixon. >> we will hear arguments in 73, 1766, the united states of america against nixon n. the house competition richard m. x nixon against the united states, there has been request for additional time. the court grants additional time

of half an hour as i understand. that will be allowed each side. we will not interrupt the argument with any recess. we will go right through also chairman of the committee to re-elect the president. another hrhaldermon was the president's chief of staff. another was assistant to the president for economic --

domestic affairs. the others were either on the president's staff or held responsible positions on the re-election committee. in the course of the deliberations, the grand jury voted unanimously with 19 members concurring. the course of events in the formation and continuation of the conspiracy was such that president nixon among a number of others should be identified as an unindicted coconspirator in the bill of particulars to be filed in connection with the o pretrail proceedings. although this particular decision and determination on the part of the grand jury occurred in february, it was a well kept secret for 2 1/2

months, the grand jury of course knew it. the member of the prosecution staff knew it. it was done so to avoid affecting the proceedings in the house judiciary committee. it was so kept during this 2 1/2 months until it became necessary to reveal it as a result of the president's motion to squash the subpoena as i will indicate subsequently in my argument. now, to obtain additional evidence which the special prosecutor has good reason to believe is in a possession of and under the control of the president which it is believed by the special prosecutor is quite important to the development of the government's proof at the trial. the special prosecutor on behalf of the united states moved for a

subpoena. it is the subpoena here in question. the district court order the subpoena to issue return on may the 2nd. it called for the production of tape recordings in september the 9th 1972. this was done to allow time for litigation in the event litigation was going to ensue over the production of the tapes and also for transcription and authentication. >> now april the 30th, the president released to the public and submitted to the house judiciary committee 1,216 pages of edited transcripts of 43 conversations dealing with water gate.

portions of 20 of the subpoenaed conversations were included among the 43. on may 1, the president by his counsel filed a special appearance. a formal claim of privilege and a motion to squash the subpoena. for the united states to conduct a full and appropriate hearing on a motion to quash the subpoena, it became necessary to reveal the grand jury's finding regarding the president. this was first done by the special prosecutor calling on the chief of staff, general alexander hay and the president's counsel mr. st. clair and advising they will of what had occur 2 1/2 months prior. on the following morning advising judge sirika of what

happened in-camera and pointing out the necessity of this being used in connection with the arguments on the motion to quash because the relevance and the necessity of these matters being made a part of the proceeding. now, the special prosecutor joined counsel for the president in urging that the matter be heard in camera which was done. three of the defendants had joined the special prosecutor in moving for the subpoena. all of the defendants at the time of argument in camera to the judge opposed the motion to quash. >> i don't see the relevancy of the fact that the grand jury indicted the president as a coconspirator to the legal issue as to the duty to deliver

pursuant to the tape that the subpoena that you are asking for. >> the only relevance mr. justice lies in it being necessary to show under rule 17 c that there is some relevance to the tmaterial that we were seeking to subpoena. >> 17 c presupposes a subpoena running against a party. the president is not a party. he's not a dependent in one of these cases. that's correct sir. it was also felt that it would be necessary to show why in order to prove this conspiracy and in order to provide all of the links in the conspears agen, conspiracy it was necessary to show that the president was a coconspirator. >> i thought this was the knowledge, information of the house judiciary committee. >> no, sir. that is not correct, sir.

it became very important mr. justice for us to have that as a part of proceedings so that we could use the various links in the testimony as to that show that the conversations were such to make it admissible against a coconspirator. >> the grand jury sent it to the house committee didn't it. >> the grand jury sent nothing of an accusatory nature to the house committee. no, sir. what they sent was the evidence that had been accumulated and it very carefully excised from it anything by way of the grand jury's interpretation or anything along that line mr. justice. >> in the opinion in order of may 20. >> it would still be here whether or not the president had been named a unindicted coconspirator. >> that gives you another string to your bow isn't that about it. >> it admits that evidence would otherwise not be admissible. >> right but even had the president not been named, you

would still have subpoenaed at least part of this subpoena. >> there's no question about that. >> and you'd still be here. >> that's right sir. in order to present the full picture and in order to present that also is a part of it. denying the motion to quash and the motion to expunge. >> no one yet has ever suggested that during a criminal trial, conspiracy trial. the evidence is offered of an out of court statement of someone whose alleged to have a coconspirator that it's enough for the prosecution to then show that the grand jury and naming the coconsmepirator -- that nev gets you over the -- >> well, we don't so contend. >> that was the direction of your -- >> no, this was in connection with the subpoenaing of this evidence mr. justice. in other words, this was in

connection with showing that we had the right to this evidence. >> oh, i understand that. >> yes, sir. that was the point. >> but you do not suggest that that's all you need to show is that it. >> no, sir, of course not. >> you don't suggest that the grand jury 9edding is binding on the court or not? >> i do suggest that it makes a prima facie case. i think under the authorities it so does. >> let me understand this. you don't suggest that you're like ness depends upon the president's name as an unindicted conspirator so for the purpose of our decision we could lay that fact aside could we? >> what i was really doing. >> well, could we. >> yes. primarily in order to show a reason for the grand jury's action. there's also before this court a motion to expunge the act of the

grand jury in naming the president as an unindicted coconspirator. i was trying to lay before the court the entire situation that warranted that action. >> as i understand your brief, you go beyond what you have addressed so far. i think you say that the mere fact that the president was named as an unindicted coconspirator forecloses his name of privilege on page 91 of my brief. >> we certainly make that one of the points which i contend to discuss at a later point. >> well that reduces him and of itself to the status of any other person accused in crime. >> i don't say that it forecloses. i think what we suggest is that it does present a situation that should not make the application of executive privilege appropriate. we do say that.

>> well, only prima facie. >> prima facie. that's direct. >> when you get to the matter of balancing interest, we do feel that that particular situation is a factor that is important and this is why we lay stretch on it. the court's order, of course, was to deliver the court the originals of all subpoenas items as well as an index and analysis of those items together with taped copies of those portions of the subpoena recordings for which transcripts have been released to the public by the president on april the 30th. this case presents action for review by the lower court. before i get to the jurisdictional points, may i briefly state what we consider to be a bird's-eye view of this ca

case. in almost 500 pages of brief when boiled down this case really presents one fundamental issue. who is to be the arbiter of what the constitution says. basically this is not a novel question although the factual situation involved is of course unprecedent unprecedented. there are corollary questions to be sure but in the end after the rounds have been made, we return to face these glaring facts that i want to briefly review for the final answer. in refusing to produce the evidence sought by the subpoena in the criminal trial of the seven defendants, among them former chief aids the president invokes a provision of the constitution. his counsel's brief is replete with references to the constitution as justifying his

position. in his public statement we all know the president has embraced the constitution as offering him support for his refusal to supply the subpoenaed tapes. now, the president may be right in how he reads the constitution. but he may also be wrong if he is wrong, who is there to tell him so? if there's no one then the president, of course, is free to pursue his course of erroneous interpretations. what then becomes of our constitutional form of government. so when counsel for the president and his brief states that this case goes to the heart of our basic constitutional system, we agree. because in our view, this

nation's constitutional form of government is in serious jeopardy. if the president, any president, is to say that the constitution means what he says it does and that there's no one not even the supreme court to tell him otherwise. >> the president went to a court. he went to the district court with this notion quash and he filed a cross petition here. he's asking the court to say that his position is correct as a matter of law is he not? >> he's saying his position is correct because he interpreted the constitution that way. >> correct. he's submitting his position to the court and asking us to agree with it. he went first to the district court and he has petitioned in this court. he has himself invoked the judicial process and he is -- >> well, that's not entirely correct mr. justice.

>> well didn't he file a motion to quash the subpoenas in the district court of united states. >> sir, he has also taken a position that we have most standing in this court to have this issue heard. >> as a matter of law he's asking the -- he's making that argument to a court as a matter of constitutional law he is correct. >> so that, of course this court could then not pass upon the constitutional question of how he interprets the constitution if his position were correct that i have presented. >> as a matter of law if his position is correct then he is the soul judge. he's asking this court to agree with that proposition as a matter of constitutional law. >> but what i'm saying if he is the sole judge and if he's considered to be the sole judge and if is in error of his int interpretition then he goes on being in interpretation. >> well then this court will tell him so. isn't this what this case is about. >> well, that's what i think, yes, sir. >> he's submitting himself to the judicial process in the same

sense that you are, is that not so? >> well, i can't see. >> you take one position and he takes another. >> well, mr. chief justice in my view, frankly, it is a position where he says the constitution says this and nobody is going to tell me what the constitution says because up to this point, up to this point, he says that he and he alone is the proper one to interpret the constitution. there's no way to escape that because the briefs definitely point that out time after time. >> i think this matter may be one of semantics. each of you is taking a different position on the basic question and each of you is submitting for decision to this court. >> maybe sir. >> well start with a constitution that does not contain the words executive privilege is that right. >> that's right sir. >> so why don't we go on from there. >> all right sir.

that other things need to be discussed as much as they've been raised. >> perhaps it would further narrow the area if as i take it from your briefs you do emphasize there is no claim here of typical military secrets or diplomatic secrets or what in the bir case were referred to as state secrets. none of these things are in this case is that right. >> that is correct, sir. we do point to the authorities to show that there is a difference in the situation here. i do think that it's proper as much as i regret to have to do it, to point that the president's interpretation of what his action should be in this particular set of circumstances, it's one that really requires judicial

intervention perhaps more so than a normal one would. i think that we realize that there is at stake, the matter of the supplying of evidence that relates to -- excuse me two formal close aids. i think we're aware of the fact that the president had publically stated that he believed that these two aids of his, would come out all right in the end. added to that, the fact that the president has sensitivity of own involvement is also a matter that calls for the exercise of the question to which mr. justice douglas eluded as one that is somewhat unusual. turning now to jurisdiction. before the court are the two question of statutory jurisdiction. the court directed the parties to brief for the argument. >> at this point help me over

one hurdle. do you feel that the mandamus case as here -- >> yes, we do sir. >> i search your petition for certificate yary to find even a mention of it. i wonder -- what is your position of the issues in any event that are here that the case is -- >> yes, sir. we say it's here not only because of the appeal itself but because also of the competition for mandamus. now we did mr. justice discuss that in one of the briefs. now it may be that it wasn't originally when we filed the original brief on jurisdiction. >> you mentioned it in your second brief on the merits. >> yes. >> but not at all in your competition for certairi. >> well, it was in the footnote on page two for the competition for writ of certiari mr.

justice. >> i would think so. there really is no issue on the parties on jurisdiction. of course while the parties can't agree on it, i must say that on three different base ees, the jurisdiction does exist as we see it. i'm not yet getting to the position of the interexecutive matter that has been raised but i am discussing the statutory matter of jurisdiction. to answer your question directly sir, this is direct. we are standing upon not only the matter that this appeal properly had been in the court of appeals and more that reason has been moved up here properly under 1254.1. we also say that the court has jurisdiction over the

competition and cross competition under 1254.1 because they present for review all questions raised by the president's competition. we also say that in addiction to that, the act gives this court the jurisdiction to proceed. >> in a mandamus action judge sirica would be the respondent. he's not a respondent in this case. >> as far as i'm concerned no, sir. but it was brought up by the president in their petition for mandamu surk mandam mandamus. it raises the same questions that were raised in the matter. >> you notice the appeal from judge sirica's order was the

first step taken to get to the court of appeals. >> while that was tending i gather the president's petition for mandamus was written the last step was that you filed a competition to bypass. >> right sir. >> that competition to bypass i gather to whatever case was pending in the court of appeals. >> that's correct sir. >> at that time the case pending was both the appeals from the judge and the president's competition. >> correct. >> you feel they are not two cases. >> no, sir. they raise the same questions. >> you could bring each up separately if you so chose. >> could have. yes, sir. >> seems to me they are two cases. >> but in as much as they present the same questions, it occurred to us that was appropriate to rely upon the jurisdiction as to both of them. >> i would suggest again that with respect to the mandamus action one of the parties isn't here in court represented by counsel.

he is the party, respondent. >> well, i don't have the record before me but i must say that in -- i will not make an outright representation that judge sirica is. that's where i hesitated a few minutes ago, was made a party after all it was brought up by the president but i am advised by note passed to me that the judge is a party to that proceeding. >> who represents him here? >> i don't know of anyone re representing him here. >> has he filed any brief or made an appearance at all in any sense. >> so far as i know none. >> all right. >> well fin any event, it was a appealable order. >> that's correct. >> if you're correct in that submission. >> no, it would not. we were pointing out that the

jurisdiction rests on a three pronged basis. >> mandamus is not your action. >> it's not, no, sir. >> you're not obliged to defend it. >> that's correct sir. we were however pointing out that the same issues were raised if the competition is brought before the court. now if there are nor furth furt questions object mn the matter statutory jurisdiction, i would like to pass to the matter of executive dispute. first we recognize of course that jurisdiction cannot be waved and nothing here is presented with the idea of suggesting even remotely that there's any wave with respect to the questions of jurisdiction. but we do say that the contention that there is an inexecutive dispute and for that reason this court cannot pass upon these questions is not sound. before discussing the case, i

think it would be appropriate for us to undertake a place that's in the right perspective. let me say first that we stand upon two basises. first the orders that were entered creating the special prosecutor. even his original orderer at the time my predecessor was acting as special prosecutor had the force and affect of law. we also point to the fact that the arrangement made itself with the acting attorney general that i made if i may point to it and one reason i have no problem in raising the points that have been transpire offd. the situation is one of the arrangement itself where the acting attorney general points to with respect to the matter of independence having been

discussed by him with the president thus meaning that the president himself had approved the setting up of this particular office and the rights and responsibilities that it has under this charter. now, let me -- we set this out in the pending, of course, pointing precisely so to what t authority and responsibilities and obligations of the special prosecutors are. one of the expressed duties that's delegated to the special prosecutor is that he shall have full authority for investigating and prosecuting among other allegations involving the president and the delegation of authority expressly states in particular the special prosecutor shall have full authority to determine whether or not the contest, the assertion of executive privilege

or any other testimony or privile privilege. in any instance of my appointment unlike the appointment that had been made prior there to, there was an amended order. it referred to assurances given by the president to the attorney general that the president will not exercise his constitutional powers.