President Refuses to Turn Over Tapes; Ervin Committee, Cox Issue Subpoenas

President Nixon set the stage yesterday for a major constitutional confrontation by refusing to turn over presidential tape recordings to either Senate Watergate committee or to Special Prosecutor Archibald Cox.

Cox immediately served a subpoena for the tapes on presidential counsel J. Fred Buzhart, who must respond in federal court by Thursday. The Senate Committee followed suit, serving two subpoenas on another presidential lawyer, Leonard Garment.

The committee chairman, Sen. Sam Ervin (D-N.C.), reacted to the President's decision with an emotional statement, saying:

"I deeply regret that this situation has arisen, because I think that the Watergate tragedy is the greatest tragedy this country has ever suffered. I used to think that the Civil War was our country's greatest tragedy, but I do remember that there were some redeeming features in the Civil War in that there was some spirit of sacrifice and heroism displayed on both sides. I see no redeeming features in Watergate."

The committee's vice chairman, Sen. Howard H. Baker (R-Tenn.), expressed disappointment at being "on the brink of a constitutional confrontation between the Congress and the White House." He added that the material sought by the subpoenas is "essential, if not vital, to the full, thorough inquiry mandated and required of this committee."

It seemed certain last night that the confrontation between the President and the investigators ultimately would have to be decided in the Supreme Court. How the court might rule on the central issues -- executive privilege and the separation of governmental powers -- is unknown.

The President made no concessions on those issues in a letter to Ervin yesterday. He would reply "at an appropriate time" to the issues raised by the Watergate affair and to charges concerning this own involvement, Mr. Nixon said in the letter. But "the special nature of tape recordings of private conversations is such that these principles (of executive privilege) apply with even greater force to tapes of private Presidential conversations than to Presidential papers," he declared.

The tapes in question were made secretly and involved alleged conversations between Mr. Nixon and various of his assistants on matters relating to the Watergate break-ins and the subsequent efforts to cover up that crime.

The President said that contrary to the Ervin committee's assumptions, the "tapes would not finally settle the central issues before your committee. Before their existence became publicly known, I personally listened to a number of them.

"The tapes are entirely consistent with what I know to be the truth and what I have stated to be the truth. However, as in any verbatim recording of informal conversations, they contain comments that persons with different perspectives and motivations would inevitably interpret in different ways.

"Furthermore, there are inseparably interspersed in them a great many very frank and very private comments on a wide range of issues and individuals, wholly extraneous to the Committee's inquiry."

Thus the stage was set for a great constitutional struggle between a President determined not to give up executive documents and materials and a Senate committee and a federal prosecutor who are determined to get them. The ultimate arbitration, it was believed, would have to be made by the Supreme Court. Even if the court were to rule against the President, it has no independent power to compel him to act. He is, however, subject to the impeachment powers of Congress.