The unheard Nixon tapes

More than 6,300 people have lined up at the National Archives in the sweltering Washington summer for the first public playing of the 31 taped conversations that resulted in President Nixon's resignation.

They come from all over the country, and sit patiently in the gray granite building with the words "The Past is Prologue" engraved above its pillars. They ask for the tapes by name. "The Smoking Gun," they'll say, as though they're picking up tickets to a play -- a morality play, with that particular act dated June 23, 1972, the conversation revealing that the President had tried to obstruct justice in the Watergate investigation.

But the real drama may be still to come, an estimated three or four years from now, when close to 6,000 hours of previously unheard, secretly recorded tapes are released simultaneously by the National Archives.

The tapes now being heard at the Archives represtn 12 1/2 hours of conversations previously played as evidence for juries at the Watergate cover-up trial and the trial of former Secretary of the Treasury John B. Connally (who was found not guilty of accepting illegal payments in office).

But, unlike the trial tapes, which were carefully sifted for criminal activity by the Watergate Special Prosecution Force, these nearby 6,000 hours of tapes have never been checked for possible criminal violations by lawyers, law enforcement officials, or even journalists. Instead, they are being audited by archivists who have been warned not to look for criminal violations.

The Watergate trial tapes were used as evidence that led to the conviction of four Nixon administration officials -- John D. Ehrlichman, H. R. Haldeman, Robert Mardian, and John N. Mitchell -- on various charges of perjury, conspiracy, and obstruction of justice, while a fifth, Kenneth W. Parkinson, was acquitted.

When asked why law enforcement officials or lawyers aren't checking the mass of tapes that remain to be heard, an Archives spokesman said, "Now you're getting into a touchy legal issue." The spokesman is the keeper of the tapes, James Hastings, deputy director of the Nixon presidential materials project at the Archives. He explained, "At one time they [the archivists] would have been responsible for flagging the tapes for lawyers [to check for violations]. But that has been negotiated out. . . ."

The man who knows about the negotiations is Steven Garfinkel, previous legal counsel for the National Archives and now director of the Information Security Oversight Office of the General Services Administraton (GSA), which supervises the Archives.

Garfinkel acknowledges that possible evidence of criminal action in the Nixon administration could exist on the bulk of tapes still unheard, and even more important, that "it's possible only part of the Watergate situation was revealed in the trial. . . . No one has listened to all the tapes, and I think the public has assumed they did."

But he quickly adds that "it would all go down the drain if we're talking about the statute of limitations. . . ." The statute, he explains, prevents prosecution for most crimes after seven years have elapsed, and the last tapes date from July 1973.

When former President Nixon left office, tapes from his sound-activated recording systems in the Oval Office and executive Office Building were seized by the government and, following litigation, were given to the GSA, which formulated regulations for their public access at the National Archives. Mr. Nixon had argued that auditing of the tapes would be an invasion of his privacy, but the Supreme Court specified that would not be so if the examination of the tapes were limited to National Archives experts who have "an unblemished record of discretion."

In 1977, Garfinkel explains, the Supreme Court decided that for lawyers or law enforcement officials to listen to the Nixon tapes for the purpose of criminal prosecution would have been in effect "a warrantless search in vilation of the Fourth Amendment, which guarantees citizens freedom from unreasonable search and seizure of papers and effects."

When the regulations were first written, according to Garfinkel, they stipulated that "if the archivists came across material that they believed to be evidence of criminal activity, they were to report it to the administrator of the GSA for referring to the Attorney General." But, he explains, when the Supreme Court examined the statutes, it said that part was unconstitutional, since it made deputies of the archivists, requiring them to look out for criminal matters, a violation of the Fourth Amendment. Although this opinion was not part of the decision, the regulation was cut.

"It doesn't mean the archivists don't have to answer to their own consciences ," he continues. "To have the knowledge of the commission of a crime and withhold it would make you an accessory after the fact." This applies to crimes where the statute of limitations has not run out.

Thus he summarizes the unique Catch-22 mandate: The archivists may not listen for evidence of criminal acts, but are liable by law to prosecution as accessories if they fail to report it to law enforcement authorities.

Have any of the archivists come forth will questions of possible evidence of criminal acts on the tapes they're hearing?

"If it had happened, I would have known about it," Garfinkel says. "The archivists, I guess, haven't come across anything that in and of itself constitutes a crime. . . . Anything that Nixon had done, he's already been pardoned for, and the other people on the tape are the very same people who have already been convicted for thier crimes."

Under the law as now interpreted, could an archivist discovering what he believed to be evidence of a crime on the tapes legally be permitted to tell of it?

"Yes," Garfinkel responds. "If he had come across something so culpable so evidentiary, we couldn't tell him, 'No, you can't go squawk?"

The fate of the remaining tapes is still in litigation, with Nixon's position being that access should be through transcripts or some means other than listening.

"The litigation may delay release" of the remaining tapes, Garfinkel explains , but he estimates that otherwise, "the entire corpus of the tapes will be released at once, within four years. It will be a giant 'listen-in.'"

When asked why that enormous bulk of material should be released simultaneously, he explains it is again Nixon's legal position that is the reason.

"He has forever claimed that he has gotten a raw deal when snatches of conversation have been heard and released, and said you have to hear the whole story to know the full truth." So, in making the regulations, GSA agreed that while certain portions of the tapes are being flagged as off-limits by the archivists for reasons of possible invasion of privacy or national security, most will be made accessible in their entirety, as well as being released simultaneously.

But until three or four years from now, only the archivists will hear the tapes, because of Mr. Nixon's legal maneuvers. Richard Nixon, who swore on national television on a stack of abridged, blue transcripts that this was all, this was the whole story, there was no cover-up, has effectively kept lawyers and law enforcement officials from hearing the remaining tapes in their entirety , so taht now the time has run out on prosecuting punishable acts. Once again, Richard Nixon has had his way; he has stonewalled us.

Garfinkel doubts that bands of lawyers or journalists swooping down on release day will be able to gather material quickly. "If you wanted to do an in-depth analysis [as a journalist, lawyer, historian], you'd have to say, 'I'm going to devote the next 10 years of 10 years of my life to this.'" He explains that the 6,000 hours of tape involved contain many passages that are blurred, difficult to hear, that the expert archivists themselves have spent an average of 200 hours for evey hour of tape they've transcribed and cataloged. Garfinkel himself has heard about 30 of the nontrial tapes, the only lawyer to do so aside from the Watergate special prosecutor, Leon Jaworski.

So far, half the 6,000 hours of tapes have been heard by archivists, according to Mr. Hastings. He presides over the rpoject, which is budgeted at $ 750,000 a year, employes 40 people, and is processing 40 million pages of documents and 2.2 million feet of film of events, minor and major, of Mr. Nixon's presidency, in addition to the 950 tapes. He says they're halfway through the tapes and estimates release time at 3 years from now.

"We are supposed to be neutral archivists, and that played an important role in the litigation" by which the tapes ended up in their possession, Mr. Hastings stresses. He notes that the only exceptions to the archivists' hearing them are provisions for "special access" for parties in federal litigation, ongoing government business, or "by permission of Mr. Nixon. . . . [But] he doesn't seem inclined to do it," Mr. Hastings adds in archivistic understatement.

Just before the tapes went public at the end of May, Nixon's Washington lawyers, Miller, Cassidy, Larroca & Lewin, noted in a letter to the director of the project that "we view this limited dissemination of the tapes as constituting an infringement of Mr. Nixon's rights," but added that they considered the infringement "of a significantly different magni tude than the proposal" to make public the tapes of Nixon's conversations while in office, i.e., those not already played in court. That attitude may explain in part why the National Archives is handling this issue so gingerly.

Jaworski doubts that the Nixon tapes that haven't yet been made public contain any evidence of prosecutable criminal violations. He, too, cites the statute of limitations and says, "If there were any criminal violations they would be barred by [it]."

He adds, "I don't think there would be much chance of running into anything that would be a violation of law in relation to that [Watergate]." While he acknowledges that there could be some additional Watergate-related tapes, he doubts they would add much to the picture.

"It's just possible there were some criminal violations" not related to Watergate on the unreleased tapes, he says. "They wandered all over everywhere, you'd be surprised some of the things they talked about," Jaworski says. He listened to 100 of the tapes in his search for those related to the issues of the Watergate cover-up trial.

"There were sleazy things, unbecoming to the presidency, but they didn't involve criminal violations. Some talked about wanting . . . reprisals for what one individual or another had done to them, and there were a number of them that were conversations between Nixon and [presidential counsel Charles] Colson at nighttime. . . .

"I don't think the President had any conversations with Bebe Rebozo on tape," Mr. Jaworski adds, nothing that the President preferred to talk in Florida with his longtime friend, or away from the taping system in the Oval Office often on a cruise down the Potomac on the presidential yacht, Sequoia.

Speaking of what he's heard, Jaworski feels that "a lot of it is dull, but a lot of it is tremendously interesting and shocking. Ev eryone of those fellas, I think, tried to outdo each other," he suggests, in coming up with shocking new expressions, "not in common use, even in bull sessions."

The tapes being played in a three-day cycle at the archives are unexpurgated, no expletives deleted as they were in the transcripts. For this reporter, who covered the Watergate trial, the shock remains, not in the locker-room language but in the voices themselves, riddled with malice toward enemies, and a breezy sort of amorality toward the law in the highest office of the land.

I remember the first time I heard the tapes -- Oct. 17, 1974 -- when the doors of the blond wood US District Courthouse here swung open and the lawyers of the Watergate prosecutor's team passed out headphones from a supermarket cart.

"I'd like a picture of this," US District Judge John J. Sirica said as he glanced around the courtroom where jury, lawyers, defendants, and journalists sat looking like Martians in massive, padded earphones of khaki plastic. We heard the tapes in silent shock, as Richard Nixon praised John Dean on Sept. 15, 1972, for the skillful way he had put his "fingers in the dike every time that leaks have sprung here and sprung there" on Watergate.

I remember, too, as the tapes unwound on subsequent days in court, Charles Colson sitting in the witness seat, his chin, in his hand, looking like Rodin's "The Thinker" in a custom-tailored navy suit, listening to a tape of himself talking with Nixon. Along with the rest of the courtoom, Colson heard himself talking with Nixon about clemency for Watergate conspirator Howard Hunt. Colson had previously said he had no memory of any such conversaton. When the earphones were taken off, a lawyer cuttingly asked, "Does thatm refresh your recollection of the meeting?" "No, it does not," said Colson coolly. There was a gasp of disbelief in the courtroom.

Hearing the tapes again, there is the same frisson of shock that these words were actually said in these tones in the Oval Office. The transcripts don't do it. You have to actually hear the voices, hear Nixon saying to Clark MacGregor, his re-election campaign manager, on Sept. 15, 1972, "Get a goo dnight's sleep and don't bug anybody without asking me," followed by a round of laughter from the President's men. On hear John Dean, in a Cassandra-like voice, warning Nixon of the future: "You can spin out horribles," and Nixon replying, "Try to button it up as well as you can and hope for the best," three months after he has pressured the CIA into the "turnoff" of the FBI on a Watergate investigation , on June 23, 1972.

The three commercial networks, the Public Broadcasting System, and Warner Communications are arguing that the conversations should be made public, outside the archives, perhaps available on records or tapes. During one of the more tedious moments in the Watergate cover-up trial, reporters amused themselves one afternoon by passing around a mock-up of a record jacket one reporter had designed, titled "Richard Nixon's Biggest Hits," with songs based on his more quotable lines, like "Let It All Hang Out." That idea has never amused Richard Nixon, who argues that the tapes should not be available "to be played at cocktail parties and in satiric productions, and to enterprising and imaginative recipients."

Still, there is something clinical, removed, about hearing the tapes in this setting, the austere Archives chamber known as the East Search Room. It is a two-story, balconied room paneled in gold oak, with gold velour drapes and walls full of leather-bound collections -- the Centennial History of Washington, the Maryland Historical Magazine. Those who have queued up for tickets file in at the appropriate time, sit down at 32 numbered desks, and slip on black headsets connected to blue tape boxes. Notes may be taken, but all other possessions must be placed on the floor. A transcript bound in rust plastic is supplied. No copies are to be made; you can buy them later. (The tape transcript of Sept. 15, 1972 costs $6.50.)

You need the transcripts to follow many of the tapes: In parts, the sound is so poor that a consomme cup being put down sounds like sabers rattling, footfalls like tank treads, with voices overlapping and halting in mid-sentence, or blurred and indistinct, fogged with sounds of passing sirens or music or broadcasts of football games.

The morning the "Smoking Gun" tape was played, tickets were so scarce that one couple from Kansas City, Mo., doubled up on earphones, she listening to the left, he to the right phone. Like many of those waiting to hear the tapes, they were so young when Watergate happened that it was only a continuing headline their parents talked about. She is Laura Kipnes, a history major at Brown; he is David Duncan, an English and journalism graduage of Vassar. Both are working as summer interns on the Hill.

Listening to the tapes, she says, "Makes them more real -- it's hard to believe [reading the transcripts] they'd say thos things. . . . When you read them, it doesn't seem as vicious. . . ."

What surprised David Duncan most was "that Nixon kept saying we're going to get this one and that one, we're going to get everyone who has done anything against us. It seems incredibly petty and vindictive for the President of the United States to be trying to slam down on everybody who said anything he didn't like. . . . You really get the idea of the closed-in fortification of the White House."

It is difficult to realize that, for students like this, Watergate may be as remote as the Battle of Hastings or the seige of Dunkirk.

But a Harvard freshman who wasn't even 10 when Watergate broke has done his homework before listening to the tapes.

"I've read Magruder's book and 'All the President's Men' because I'm interested in the historical significance," Marco Quazzo, a dark-haired New Jerseyite who's also an intern on the Hill, says. He expected worse than he heard.

"I will expected the swearing or people agonizing on decisions [to be bad], but it was relatively calm." Still, he doesn't think the rest of the tapes should be released. "Friends of mine say they should be released so it doesn't happen again. But I think [hearing them] undermines the presidency and the faith of people in the government. . . . I don't think it's good for morale. . . ."

William Santry, head of the social studies department at the high school in Woodbury, N.J., lined up to hear the tapes "out of curiosity, and because it would be a conversation piece back home." Afterward he said, "They weren't as bad as I might have expected."

A high school history teacher from Monument, Colo., Mary Lou Newburn, says most of her students would have been very young at the time of Watergate and are "very disinterested in politics." She was spending just one hour with the tapes. "I'm sure I couldn't stand listening to Nixon for a wholey day," she said.

Kent Mount, a self-described "bureaucrat" from Denver, is here on a temporary assignment for the department of Labor. He had just finished Kissinger's memoirs of his White House years and wanted to hear the tapes "because I was interested in seeing basically what happened in that period, what goes in that office, how power is used."

A student at the University of Nebraska Law School, Wendy Wysong, says that listening to the tapes made her think "about what my legal training is good for, how it can be distorted and not applied to justice anymore, only to support the position of the client. . . . It's easy to see how people who get caught up in a government scandal pervert the ideals they learned in law school."

Some Washingtonians, faced with the usual summer onslaught of friends and family who want to tour Washington, kid about sending them off to the Archives to let Richard Nixon entertain them. But most of those waiting patiently in the national conscience. Mrs. Lucille Strom, a retired teacher from Sun City, Ariz. , brought her two grandsons along because she wanted them to learn the history and civics lesson they were too young to be aware of when it happened. The lesson? The importance of "truth in politics. Truth in everything, but especially in politics."

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