Court Orders Nixon to Yield Tapes; President Promises to Comply Fully

Burger said the pre-trial test of executive privilege was especially appropriate in this case because, although no President is "above the law," it would be "unseemly" to frame the dispute as a case of contempt for violating a court order.

The impact of the court's decision was increased by the fact that it was delivered by Burger, appointed to the nation's top judicial post by President Nixon.

Equally impressive was the court's unanimity on every issue in the case -- a tricky question of the court's jurisdiction, the enforcement of the subpoena under conventional criminal law standards and the merits of the executive privilege controversy.

The issue of jurisdiction, considered by some legal scholars to be St. Clair's strongest point, also raised a storm in Congress over whether the administration had reneged on its pledge giving Jaworski independence and the right to take the President to court over disputes on executive privilege.

St. Clair argued that the pledges, contained in published Justice Department regulations, did not and could not guarantee that the courts would have the legal power to decide contests between President Nixon and his executive branch subordinate, Jaworski.

Jaworski replied that this argument would make a "mockery" of his role, which was worked out to prevent a repetition of the "Saturday night massacre" firing last October of his predecessor, Archibald Cox.

Burger easily disposed of St. Clair's argument. He said the unique job security and authority granted to Jaworski under regulations having "the force of law" made the case far more significant that the mere "intra-branch" squabble St. Clair said it was.

Even assuming the President once had the power to order Jaworski fired, Burger said, he denied himself that authority with the regulations. And while "it is theoretically possible" to revoke the regulations, the attorney general "has not done so. So long as this regulation remains in force the executive branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it."

This reasoning also appears to mean it was illegal to fire Cox last fall, since a similar regulation was in force then. A decision in U.S. District Court here declaring the Cox firing illegal is currently on appeal.

Although Burger did not mention it, it is widely assumed that any move now to dismiss Jaworski would result in another "firestorm" of protest and hasten President Nixon's impeachment.

Burger said that looking beneath the formal titles of the parties and their formal relationship within the same branch of government, the case was clearly "the kind of controversy courts traditionally resolve," especially since it comes up in the course of a criminal trial in a federal court.

Moving to the propriety of the subpoena under ordinary criminal law rules, Burger said Judge Sirica clearly acted within his powers in finding the requested evidence relevant to the prosecution, probably admissible as evidence and sufficiently specific to avoid being characterized as part of a "fishing expedition."