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

Burger said Jaworski was able to show where each of the 64 conversations fits into the prosecution's case aided by White House logs, testimony from last summer's Watergate hearings and grand jury evidence.

Burger said St. Clair's "most cogent objection to the admissibility of the taped conversations" was that they were "hearsay" statements by individuals "who will not be subject to cross-examination" at trial.

It was here that the chief justice appeared to acknowledge that President Nixon could be treated as a co-conspirator for purposes of admitting his statements in evidence, even if the President was correct in contending that the grand jury lacked power to label him a conspirator in a formal vote. Burger said:

"Declarations by one defendant may also be admissible against other defendants upon a sufficient showing, by independent evidence of a conspiracy among one or more other defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy."

Burger said a blend of deference to the trial judge and to the President was appropriate in handling this delicate question. Trial judges are afforded wide discretion in ordinary cases, he noted, but added that reviewing courts "should be particularly meticulous to insure that the standards" of criminal law have been correctly applied "where a subpoena is directed to a President of the United States.

The justices have examined the record, including some grand jury material that is still under seal, and they are satisfied that Judge Sirica met the standards in evaluating the question of probable admissibility, Burger said.

Finally, Burger reached the heart of the dispute and he quickly found that President Nixon was wrong in arguing that courts must honor without question any presidential claim of executive privilege.

Burger repeatedly said the court had the utmost respect for the other branches of government but was obliged to reach its own judgment on whether the President's need for confidentiality was as great as the judiciary's need for the evidence.

Acknowledging that each branch of government "must initially interpret the Constitution and the interpretation of its powers by any branch is due great respect from the others," Burger then quoted and reaffirmed a classic phrase from the 1803 opinion of Chief Justice John Marshall in the case of Marbury vs. Madison:

"It is emphatically the province and duty of the judicial department to say what the law is."

Burger also acknowledged Jaworski's argument that "executive privilege" isn't mentioned in the Constitution although some enumerated privileges have been given restricted scope by the high court. But he accepted St. Clair's argument instead and declared that "certain powers and privileges flow from the nature of enumerated powers. The protection of the confidentiality of presidential communications has similar constitutional underpinnings."

But, said Burger, "when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises." Without a plea to protect military, diplomatic or national security secrets, he said, "we find it difficult to accept" the argument that confidentiality would be significantly diminished by a turnover.

"We cannot conclude," he said, "that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution."