The United States v. Richard M. Nixon, President, et al.

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intra-branch argument by increasing the independence of the office of Special Prosecutor and by relinquishing the unilateral power to fire Jaworski.

II. PRIVILEGE IS ABSOLUTE

St. Clair contended that the Constitution grants the President, at least as an implied power, an unqualified right to maintain the confidentiality of his conversations with his advisers. Only he can decide which conversations he will make public, and the courts cannot challenge that decision. It is a political decision and, if abused, the only remedy is impeachment. Burger and White wondered if the subpoenaed conversations did not at least have to deal with official duties, and St. Clair agreed. Powell then elicited the catch-22 kind of circuitous reasoning that characterizes much of the St. Clair argument.

Powell: What public interest is there in preserving secrecy with respect to a criminal conspiracy?

St. Clair: The answer, sir, is that a criminal conspiracy is criminal only after it's proven to be criminal.

Powell: What is the public interest in keeping that secret?

St. Clair: To avail the President, if your honor please, of a free and untrammeled source of information.

Marshall attacked the point by posing a hypothetical conversation involving the sale of a judgeship. Should the President be entitled to confidentiality?

St. Clair: Absolutely . . . The remedy is that he should be impeached.

Marshall: How are you going to impeach him if you don't know about it? You're on the prongs of a dilemma, huh? [When St. Clair demurred, Marshall pushed on.] If you know the President is doing something wrong, you can impeach him. But the only way you can find out is this way, so you don't impeach him. You lose me some place along there.

St. Clair: Human experience has not demonstrated that's a fact. Very few things forever are hidden.

III. JAWORSKI HAS INSUFFICIENT NEED

St. Clair argued that Jaworski has not demonstrated a need for the subpoenaed conversations sufficient to overrule the President's presumed privilege. Procedural rules place a burden upon Jaworski to specify his reason for wanting each tape; he did so in a 49-page memo to Judge Sirica. Lacovara contended that since Sirica had found the explanations satisfactory, the Justices could only involve themselves in the question if they believed Sirica had abused his discretion. "This Prosecutor [Jaworski] has a plethora of information," countered St. Clair. "He says he wants to try the case with all the evidence. Nobody tries any case with all the evidence. You would be buried in minutiae." Later, St. Clair accused Jaworski of really wanting the tapes to aid in the impeachment inquiry and not for the trial.

Marshall asked how St. Clair could be certain that the subpoenaed tapes should be protected by privilege when the President's lawyer readily admitted that he had not heard them himself. St. Clair claimed that it was enough to know that they were conversations between the President and his advisers. White wanted to know how Jaworski could be expected to specify what the conversations involved.

White: He's never listened to the tapes. He doesn't know precisely what's on them. You would say that he could never subpoena a tape unless he had already gotten it.

St. Clair: