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The Cox Demand. Any attempt by Nixon to withhold the recordings from the staff of Special Watergate Prosecutor Archibald Cox would be even less defensible. Cox is charged with investigating crimes, and his office was created by the Executive Branch; thus there is no separation-of-powers reason for denying the tapes to his staff. Cox has already formally requested tapes relevant to his investigations, but at week's end had not yet received a reply. If his request is refused, Cox is expected to protest publicly, creating more pressure on the President.
If Cox does obtain the tapes, the Ervin committee could be stymied in its desire to see them speedily, since Cox apparently, if he would use them publicly at all, would do so only in the trials of indicted former Nixon aides. Such trials could be months away. If the President will not voluntarily give the tapes to Ervin, the committee will undoubtedly try to subpoena them. If that is resisted by the White House, it could take months for the committee to fight the issue through all the courts.
In the end, the practical question of whether Nixon can withstand the political pressure to release the tapes seems far more crucial than the legal issue. Says Ervin: "I think the American people are not so much concerned with the constitutional arguments as they are in the willingness of the President to assist the committee in its search for truth."
By all accounts, the sudden and dramatic injection of the controversy over the Nixon tapes came about almost accidentally. As the Watergate committee's chief counsel, Sam Dash, explained it, his staff was working methodically on a "proximity investigation"—checking out everyone close to the key figures in the affair. Thus a routine private staff questioning of Alexander P.
Butterfield, a former aide to Haldeman and now administrator of the Federal Aviation Administration, was scheduled for Friday, July 1 3—and the staff, as one member put it, "just lucked out."
The meeting was considered of such little importance that a junior staff Republican counsel, Donald Sanders, was interviewing Butterfield about White House record-keeping procedures. No Senator or top counsel was present.
Nothing of interest had been learned when, at the very end, Sanders tossed out a throwaway question. Noting that Dean had testified that on one occasion he thought the President was taping a conversation with him, Sanders asked whether "conversations in the President's office are recorded."
No Leaks. "Oh God," replied Butterfield, "I was hoping you wouldn't ask that." He put his hand to his head and seemed shaken. He said that he was worried about violating national security and Executive privilege, but could not evade the question. Then he revealed that Nixon had ordered the Secret Service to install recording devices that would pick up any conversations in his Oval Office and his working quarters in the Executive Office Building.