Public Citizen’s role in obtaining Nixon Watergate tapes

June 3, 2005   

Many people played a part in the Watergate scandal, which is receiving new attention with the recent revelation of the identity of  “Deep Throat,” The WashingtonPost’s secret source, as former FBI official W. Mark Felt. Among those involved in this historic event was Public Citizen, which played a key role in two legal battles stemming from Watergate: the long fight to secure the public release of the secret White House tapes and the litigation challenging Nixon’s firing of Watergate Special Prosecutor Archibald Cox. The following are summaries of those battles. 

Forcing the Disclosure of the Nixon Tapes

Public Citizen played a pivotal role in forcing the National Archives to make public the “abuse of power” Nixon tapes, all but 63 hours of which had been kept secret prior to the completion of litigation in 1996. Because of Public Citizen’s 13-year legal battle, those tapes secretly recorded in the Nixon White House are now available to the public at the National Archives, providing a treasure trove of inside information about the Nixon presidency and the Watergate scandal.

These tapes were seized by the government when Nixon announced that he was stepping down in 1974 and were made subject to federal control with the passage of the Presidential Recordings and Materials Preservation Act of 1974 (the “Materials Act”). The Materials Act was intended to gain control of more than 42 million pages of documents and 880 tape recordings made during the Nixon presidency. The Materials Act directed the General Services Administration to process the materials with an eye toward prompt public release of materials relating to “the abuses of governmental power popularly identified under the generic term ‘Watergate.’ ” Congress intended that the statute would “provide the public with the full truth, at the earliest reasonable date, of the abuses of government power during the ‘Watergate’ period.”  In 1984, Congress established the National Archives and Records Administration and transferred the responsibility for processing and releasing the Nixon materials to the Archivist of the United States.

From the outset, the process of sifting through the Nixon records was fraught with difficulty. The Materials Act was not self-executing; rather, it   required the GSA (and later the Archivist) to issue regulations detailing the process by which the materials would be reviewed. The first set of regulations, however, was rejected by Congress, using the one-House legislative veto provision of the Act. Successive sets of regulations were challenged by Nixon’s lawyers. Public Citizen participated actively in some of those cases to try to ensure that the Act was implemented as Congress intended and that Nixon and his allies did not succeed in keeping the tapes secret.

One case is of particular importance. After many challenges to the rules had concluded, the Archivist submitted the final rules for clearance to the Justice Department. One key issue was whether the Archivist should defer to executive privilege claims raised by Nixon’s lawyers. Justice Department lawyers argued that it would be improper for a sitting president to reject executive privilege claims asserted by a former president. Thus, the Justice Department told the Archives that it could implement its new regulations if, but only if, it deferred completely to privilege claims raised on Nixon’s behalf. This ruling threatened to eviscerate Congress’ goal of making the abuse of power tapes public, since Nixon had routinely tried to keep the tapes secret by making extraordinarily broad claims of executive privilege.

Despite widespread public recognition that the Justice Department’s interpretation would thwart disclosure of the Nixon records, Public Citizen was the only organization to challenge it.  The organization did so in early 1985, just as the new regulations were put into final form, by filing Public Citizen v. Burke, a lawsuit contending that the Justice Department’s position was contrary to the Materials Act. Public Citizen also opposed the Department’s extraordinary claim that the Act and regulations would be unconstitutional if they did not require unconditional deference to the former president’s claims of executive privilege. After two and a half years of hard-fought litigation, Public Citizen prevailed in a unanimous ruling by the U.S. Court of Appeals for the District of Columbia Circuit. The Court held that although the statute permitted Nixon to raise objections on executive privilege grounds, the Archivist owed no deference to those claims and was free to reject them. Public Citizen expected that this 1988 ruling would pave the way for the prompt public release of the abuse of power tapes.

But four years later, little progress had been made in reviewing the tapes, largely because of the obstructive tactics used by Nixon’s lawyers. Public Citizen concluded that unless it sued to compel the Archives to complete the review process, the abuse of power tapes might never see the light of day. Public Citizen therefore filed Kutler and Public Citizen v. Nixon on March 19, 1992.  The legal theory was that, by failing to complete the review process in a timely way, the Archivist was violating his duty under the Materials Act and the Administrative Procedure Act. After several years of intensive litigation, in April 1996 an agreement was struck among the parties to set a timetable by which the Archivist’s review activities would be completed. That agreement resulted in the public release of the full “abuse of power” tapes (more than 200 hours) in November 1996 and hundreds of hours of the Cabinet tapes in October of 1998.  It also accelerated the process by which the remainder of the tapes, more than 3,000 hours recorded from 1971 to 1973, would be reviewed and made public.

The book “Abuse of Power: The New Nixon Tapes,” written by Public Citizen’s client, historian Stanley Kutler, has helped make the tapes comprehensible and accessible to the general public, as have detailed articles published in The New York Times and elsewhere. Those tapes are now available to the public for listening or copying at the National Archives in Washington, D.C., and transcripts are available on the Internet.

Throughout its 13-year campaign to secure the public release of the Nixon materials, Public Citizen’s goal was to bring to the American people the real story of Richard Nixon – one told in the president’s own words. 

Challenging Nixon’s Firing of Watergate Special Prosecutor Archibald Cox

On Oct. 20, 1973, President Nixon ordered Attorney General Elliot Richardson to fire Watergate Special Prosecutor Archibald Cox, who was pressing the White House to turn over Nixon’s secretly recorded tapes. Richardson refused and rather than be fired, he resigned. His deputy, William Ruckelshaus also refused and stepped down. Solicitor General Robert Bork finally carried out the order.

A little more than a week later, on October 29, the Public Citizen Litigation Group, then headed by Alan Morrison, filed suit against the administration. Named as the plaintiff was Ralph Nader, who had founded Public Citizen in 1971 and was then its president. (He left the organization in 1980 and has held no position there since.)

Nader v. Bork was based on Justice Department regulations, established on June 4, 1973, when Cox was appointed, that forbade the special prosecutor’s removal except for “extraordinary improprieties on his part.”

Fearing that Nader as plaintiff might not survive a challenge as to his legal standing to sue Bork, Morrison turned to members of Congress to become plaintiffs. Sen. Frank E. Moss of Utah, and Reps. Bella S. Abzug of New York and Jerome R. Waldie of California, all Democrats, agreed to sign on. The addition of these plaintiffs as an amendment to the suit proved critical.

At the first hearing on the case on November 9 (to address whether an injunction should be issued to reinstate Cox and decide whether the case should proceed to be considered on its merits), one of the first actions taken by Judge Gerhard A. Gesell was to drop Nader as a plaintiff, saying he was just a “volunteer” who had no legal standing. The judge also denied Public Citizen’s request for an injunction, noting that Cox had not joined the case and that a new special prosecutor, Leon Jaworski, had been appointed and sworn in on November 5. Judge Gesell stated that he felt “the public interest would not be served by placing any restrictions upon his [Jaworski’s] on-going investigation of Watergate-related matters.” But the judge did allow the case to continue, turning down the Justice Department’s claim that since a new special prosecutor had been appointed, the case was moot. On the contrary, the judge noted that a ruling in the case could have an effect, as claimed by congressional plaintiffs in their affidavits, on consideration of bills pending in Congress for an independent special prosecutor or of impeachment resolutions in the House.

On November 14, just a few days after the hearing, the court issued its ruling in the case: “The Court declares that Archibald Cox, appointed Watergate Special Prosecutor, was illegally discharged from that office.” The win did not get Cox his job back, but it served an important purpose. Notice was given loud and clear to the president and the country that Nixon had overstepped his bounds in ordering Cox fired. The hoped-for result was that it would ensure that such an action did not happen again.