A lawyer for Richard M. Nixon told the Supreme Court yesterday that White House tapes subpoenaed solely to "do justice" in the Watergate cover-up trial shouldn't be released to "every disc jockey, to the networks, to be played relentlessly."
Attorney William H. Jeffress Jr. said that release of the tapes - 22 hours of then-President's conversation mainly with Cabinet and staff - would be "embarrassing for the participants. It's going to cause them pain."
But Justice Thurgood Marshall suggested that the tapes legally were released in 1974 when they were played for the federal court jurors here who tried and convicted former Attorney General John N. Mitchell and top White House aides H. R. Haldeman and John D. Ehrlichman of obstruction of Justice and related charges.
Also, after the tapes were admitted as evidence an estimated 1,300 trial spectators also heard them, in whole or in part. For NBC, attorney Floyd Abrams argued that the public has as much right as the spectators to hear the tapes, in the form of broadcasts, phonograph records or cassettes.
Justice John Paul Stevens asked Edward Bennett Williams, representing Warner Communications, Inc., whether a judge could withhold an admitted exhibit simply because of the "pure embarrassment" might cause.
Replying "with no meannes of spirit," Williams said Nixon doesn't have "a right not to be embarrassed by the sound of his own inculpatory words solely because he was President."
By itself, prospective embarrassement to anyone is an inadequate justification for withholding, Williams said. He said a trial judge does have discretion to withhold admitted exhibits, but only if they fall tino a few restricted categories: contraband, pornography, derived from illegal wire-taps, or protected by copyrights or other property rights.
Nixon has been trying since 1974 to prevent the networks and others from making and selling reproductions of the tapes. A U.S. Court of Appeals ruled against him in October, 1976, saying "a substantial argument could be made that it is highly appropriate for recordings of conversations concerning the conduct of public business be marketed to the public . . ."
Some of the justices posed hypothetical "horribles" that might result from releasing courtroom tapes.
Chief Justice Warren E. Burger visualized a videotaped rape or murder trial in which a jury acquits a defendant whose "confession" was read into evidence. What if efforts to telecast the confession were made.
Williams said there should be no more restraint on an electronic transcript than on a written transcript.
The Chief Justice suggested key differences between spoken and written words.
Williams seized on that to suggest - as had the appeals court - that the oral record may be truer guide. He cited the expression "uh uh," saying that a transcript could fall to convey the intended meaning as reliably as a recording. As examples, he pronounced "uh uh" to give it a negative connotation, then to denote surprise, then to denote an acknowledgement.
Justice Lewis F. Powell wondered about releasing taped evidence in a hypothetical messy divorce proceeding involving an internationally prominent couple. Burger re-structured Powell's "facts" to assure that making the tapes available to the public would assure "super embarrassment" for the couple.
Justice William J. Brennan Jr. wondered about a trial recording laden with "expletives." The Chief Justice conjectured a tape of a trial judge excoriating a defendant, or a jury for a verdict. Stevens inquired whether embarrassment alone never would be a valid reason for withholding a tape admitted into evidence.
Williams' answers were consistent and unyielding: except for contraband and other materials within a judge's discretion, taped admitted evidence made available in written form for public use must also be made available in taped form, but the users lawsuits brought by persons who contend they're been harmed.
Brennan raised what NBC lawyer Abrams termed a "delicate" point: as usual, the Supreme Court was taping the instant argument - but only for a transcript that, in about 10-days, law-years and reporters can see in the court library. Even the taping, Justice Harry A. Blackmum noted pointedly, was an act of grace.
Abrams saw "strong case for making public this very proceeding." Williams said, "The public should have a right" to hear oral argument, "and there's a concurrent right to copy."
Williams fantasized about making an issue of it. But if he lost, he acknowledged wryly, "I'd have nowhere to go."