is submitted. >> you have been listen to the oral arguments from july 8th, 1974, the case, the united states versus nixon. joining us from new york is evan davis who was part of the house judiciary committee impeachment staff in one of the leaders in the impeachment and water gate cover up task force. thanks very much for being with us. >> good to be here. >> as you look back at the oral arguments and the unanimous decision written by the chief justice, what was the significance of that? >> well, as a lawyer, i have owe say that this is one of the top ten decisions the supreme court of the united states has ever made. it's right up there with

marberry versus madison. indeed it sites it. it's a very fundamental decision. it's principal holding is that no man, person, is a bbove the law. that's the basic conclusion of the case of the just to very quickly go over the four issues i mentioned earlier. the court held that it did have jurisdiction. the court held that this was a totally proper dispute for the court to decide. the court held that the rule, the law governing subpoenas of this type had been complied with and the court held that there was no absolute executive privilege. that there was a need for balancing and that it would be appropriate for the need for this evidence in a criminal case to outweigh the interest of the president in the confidentiality

of his conversations with his aids. the ruling of the court was actually that the tapes would now be turned over to the district court, judge sirica for what is called in camera inspection. judge sirica would have the opportunity to look at their relevance and their importance and their need in the criminal case and to make a judgment that he should be particularly careful with anything involving foreign policy or national security or military or diplomatic secrets but that he would make a judgment after doing a careful review of the transcripts of the tapes and to the extent he needed to, listening to the tapes himself to be sure that they were accurate. as things developed right after that, that decision on july

24th, things move very quickly. much more quickly than anticipated. because on august 5th, the president rather than turning some of the key tapes over to judge sirica for inspection which could have taken quite a long time. instead on august 5th, decided to make them public. the document in which he decided to make those tapes public is a very interesting document because it has within it as i read it as a lawyer, the tone of the president's lawyer mr. st. clair being very concerned that the facts had not been accurately stated to the court or to the house judiciary committee in certain important respects. one senses from reading the document that perhaps the president was also willing to correct the record and turn these documents over immediately

but one senses some pressure from the president's lawyer mr. st. clair. mr. st. clair has never -- he never wrote a memoir. never gave interviews so we don't know for sure but it's my belief that he played a role in getting these tapes made public quickly. once they were public, everyone saw that the tape of june 23rd was a smoking gun that the president knew that mitchell as head of the committee from the re-election of the president was aware of this break in before it happened and that the president agreed with holderman's suggestion and interdeed reiterated it that the cia should be told to tell the fbi that this was something the fbi should stay out of. that strategy did not work.

the cia ultimately refused to go along with this approach but there was no question that the president was involved in deciding to ask them to do that. that led very quickly to the president's announcement on august 8th that he was going to re-sign and to his actual resignation on august 9th. so everything happened more quickly after the 8-0 decision. it was 8 because justice renquist had refused himself because he had been involved in the case while working for the executive branch and appropriately took himself out of the case. it was 8-0 written by the chief justice. the chief justice has the right to assign a decision to himself.

he did assign this to himself. as you read the opinion, you see that it is trying to accommodate various interests of the judges trying to come, i think, so my judgment, trying to come to a unanimous result which it does 8-0. i see in the wording, i am sure that various justices had suggestions about wording and i think that the chief justice was willing to accommodate all of those suggestions to get a unanimous result. >> and what was your reaction first of all to the fact that it was unanimous and also the reaction of the committee staff that you were working with at the time? >> well, i had clerked at one point on the supreme court. i clerked for potter stuart. it's so wonderful when the court speaks unanimously because when the court speaks unanimously the

opinion is the voice of law because everybody has agreed. as you know today so many of the opinions are 5-4 or 6-3 and to speak unanimously in this case as they also did in another one of the ten top cases brown v. board of education, is a great statement of the principles and law of the country. so i was pleased that it was unanimous. i think personally, i thought that the special prosecutor was likely to prevail but you couldn't be sure. i was surprised that the president went ahead and released the tape of what was later called the smoking gun tape as quickly as he did but it definitely brought a quick end to the process and the president's resignation. >> final question as you look back 40 years later, those students of history of law and of government power, what are the lessons from this time

period? >> well, the lesson of the time period, i think, is that the thing that is an impeachable offense is a clear abuse by the president of the powers that are unique to the president. here the president has the power, the overall power of directing the cia, the fbi, these are extremely powerful agencies of government and when they are used to commit an obstruction of justice which is what essentially what was established by the tapes. i should say also by the record even without the tapes because even without the tapes, the committee voted 27-11 to recommend the water gate impeachment article. out of those votes, six of the

17 republicans voted for the article so it had a measure of bipartisanship even without the tapes. with the tapes, everybody agreed. it became a forgone conclusion and the president resigned. so the lesson is we have a system that works to protect us against grave, serious, abuses of power by high ranking officials in government including the president and in the end, no man is a bbove the law. >> do you remember when you personally felt that richard nixon was not going to complete his term in office? >> i knew for sure when i read the transcript of the june 23, 1972 tape recording and i read that shortly after the president released it on august 5th.

>> evan davis, the house judiciary staff looking into the 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 c