Last week's leak about the Supreme Court's deliberation on the appeals of convicted conspirators H. R. Haldeman, John Ehrlichman and John N. Mitchell has placed the court in a ticklish dilema from which the nine justices will not, easily escape.
The news report said the court had voted 5 to 3 not to review the cover-up convictions of the three former Nixon administration officials.
The report said all three justices voting to review the convictions were among the four appointed to the court by Richard M. Nixon. And it said Chief Justice Warren E. Burger, a Nixon appointee, had delayed an official announcement of the outcome because he hoped to convince some justices to switch their votes in favor of hearing the appeal.
The news story, reported last Thursday by Nina Totenberg of National Public Radio, but not officially confirmed, has become news in itself because leaks of the court's secret votes on which appeals to hear are extremely unusual.
Moreover, according to lawyers in the Watergate case and other court observers observed, the report could conceivably influence the outcome of the case.
Lawyers representing the three former Nixon aides scheduled a meeting today to consider how to deal with the development.
They said that if the court does deny review in the case, they would be likely to file a petition asking for a rehearing on grounds that the decision was tainted by the report of the initial vote.
The publicity problem is particularly serious in the Watergate case, because the defendant's chief grounds for appeal are that the trial judge, John J. Sirica, and the jury were unduly influenced by the massive publicity surrounding the Watergate case.
If the justices refuse to hear those arguments, the defendants may contend that the Supreme Court, the nation's last arbiter of legal disputes, was itself improperly affected by a publicity in the case.
On the other hand, if the court grants review (known to legal jargon as "certiorari"), that would inevitably creat suspicion that Burger had, in fact, worked among his colleagues to reverse an earlier vote against review.
"To grant certiorari now would be like Roger Maris' 61st home run," said Prof. Arthur Miller, of George Washington University's Law School. "Whether the story is true or not, there's always going to be an asterisk saying, 'But there was another vote . . . "
Miller, who has often criticized the secrecy of the court's proceedings, said the leak was "appalling, but it shows you what can happen when the court insists on keeping its cert votes secret."
The court's final opinion normally reveal how each justice voted on the case, but decisions on granting or denying certiorari are usually reported without a breakdown of the vote without the court.
Totenberg's report, which was distributed by her editors to other media and widely reported, has prompted the predictable speculation about the source of the leak.
A gossip column in yesterday's editions of the New York Post said the "most popular choice as the story's original source was Justice Potter Stewart, said to be a close friend of Tottenberg's."
Totenberg was quoted in the gossip column as saying, "As for the inquiries about Potsy, I think this is sexist."
"Potsy" is Potter Stewart's nickname. The justice's secretary, Helen Dwyer, said Stewart was "of course" not the source. She said he is not responding to questions on the incident.
Totenberg said in an interview yesterday that no one actually "leaked" the news to her.
"I wouldn't have gotten the story if I didn't go after it," she said. She said she has several friends on the court and contacts among people in various staff offices at the court.
Totenberg said she had previously received advance notice of some court opinions, but had not reported then because "there's no profit in it except self-glorification."