A federal judge yesterday approved the government's plans to allow the public to hear hundreds of hours of White House tape recordings made by former president Richard M. Nixon.
In the same brief order, U.S. District Court Judge Aubrey E. Robinson Jr. dealt the former president a second major loss in his most recent attempts to limit access to his presidential materials by ruling that federal archivists can listen to Nixton's private diaries before returning them.
However, any public access to the tape could not occur before a review of the material is completed. That is expected to take at least four years.
The two issues lost by Nixon yesterday were his only remaining challenges to General Services Administration regulations concerning access to his tapes and documents.
Earlier this year, Nixon and the government had settled most aspects of almost five years of litigation over the tapes by agreeing to practically all of the regulations passed by GSA to deal with the issue.
However, after yesterday's ruling, Nixon attorney R. Stan Mortenson said Nixon may renew his challenge to the validity of the remaining regulations because of the government's alleged failure to abide by ground rules laid out in the settlement negotiations.
He said he viewed the government's most recent legal briefs in the case, in which it raised arguments it allegedly had promised to drop, "an absolute breach of the settlement agreement."
Whatever the status of the current settlement, it was clear before yesterday's ruling that Nixon's only remaining objections had been on two issues - the review of his "personal diaries" by archivists and the release of the tapes, not just transcripts, to the public at 12 GSA regional "listening centers" around the United States.
The diaries are contained on Dictabelts Nixon said he dictated at various times.The White House tapes are more than 900 reels of recordings of conversations in the Oval Office, in Nixon's hideaway office at the Old Executive Office Building and at Camp David, and were picked up by sound-activated microphones hidden in those offices.
Nixon said in affidavits filed in the case that the diaries, dictated by him between November 1971 and April 1973, expressed his "personal reflection, thoughts, ideas and concerns with regard to the activities, events and conversations of that day or of immediately preceding days."
The diaries were "never intended by me to assist in any way in the conduct of my duties as president," and reflected his "innermost thoughts and feelings," Nixon said. He and his attorneys said the diaries usually began with a "triggering phrase," such as the date, or the words "memorandum to the files," and that once an archivist heard such words he or she should not listen to the rest.
The government claimed, however, that archivists who have monitored more than 624 Dictabelt recordings of the type described by Nixon have found no such "triggering phrases," and that the diaries, as such, may not even exist in the form described by Nixon.
The government agreed that the diaries must be returned to Nixon if they are found and contain only personal matters, but contended that the only way to ascertain that was to listen to the tapes word for word.
Nixon also strongly argued against the release of his White House tapes to the public because they dealt with "one's voice, one's mannerisms, indeed, one's entire private personality."
"When [the president] enters the Oval Office to conduct this nation's business, he may not be entitled to cloak from public scrutiny the decisions he makes and the policies he formulates, but he is entitled, if he chooses, to shut the door on the press, the public, or members of his staff, and go about making the decisions he must make and issuing the decisions he must issue, in whatever personal and private mode he likes," Nixon's attorneys argued.
"If he elects to be profane with an adviser, solicitous to a particular congressman, or contemptuous of a political adversary, he can do so without being inhibited by the specter of the prying eye or uninvited ear," they said.
The government argued that the tapes will present a "more complete and detailed picture of Watergate" and other episodes in the Nixon presidency than merely the release of transcripts.
Also endorsing the release of the tapes were the Reporters Committee for Freedom of the Press, the American Historical Association and the American Political Science Association, which said the tapes "are by far the best evidence of what was said, and perhaps more importantly, how it was said."