(2 of 11)
Ostensibly, Nixon's no-win choice in the face of an adverse decision would be to yield the tapes and their damaging contents or defy the Supreme Court. Theoretically, he could also, of course, take the embarrassing step of pleading his Fifth Amendment privilege against selfincrimination.
Failure to comply with the court would seem a certain route to impeachment in the House and conviction in the Senate. Even Vice President Gerald Ford, who contends that the prospect of impeachment has been diminishing, concedes that defiance of the court would create "a whole new ball game." Yale Law Professor Alexander Bickel, who has been both critical of and sympathetic toward various Nixon legal claims, declares, "I don't know anyone who argues that when you get to a court decree after adjudication there is any kind of moral or legal right to defy it." Nixon's rationale for intransigence would doubtless be based on the separation-of-powers principle expressed in briefs already submitted—that he must not subordinate the Executive Branch to the will of the judiciary in a matter he considers essential to the effective functioning of the presidency.
No President has ever explicitly defied a direct order of the Supreme Court when it was acting as a body. Franklin Roosevelt was apparently prepared to do so "to protect the economic and political security of this nation" in 1935, when the court was expected to rule that holders of Government bonds were entitled to payment in gold. But the court surprised him by voting, 5 to 4, to uphold his position. Andrew Jackson in 1832 sharply objected to a ruling that federal authorities, rather than the state of Georgia, should take jurisdiction over the case of a missionary to the Cherokee Indians who was imprisoned by the state. Jackson reputedly said, "Well, [Chief Justice] John Marshall has made his decision; now let him enforce it." That ruling, however, did not specifically require Jackson to take any action. Other Presidents have bowed to decisions they considered wholly wrong. When Harry Truman's seizure of strikebound steel mills during the Korean War was declared unconstitutional, he yielded to the Supreme Court ruling. "I have no ambition," he said, "to be a dictator."
Yet noncompliance by Nixon now remains at least a small possibility. St. Clair told reporters after the Supreme Court arguments that he did not know whether the President would yield. It would seem more politically expedient, and more in keeping with previous tactics, for Nixon to cooperate in principle—and then delay actual delivery of the tapes as long as possible. St. Clair seemed to suggest that possibility when he said that it might take two months for the 64 tapes to be submitted for screening by Federal Judge John J. Sirica if Sirica's original order to produce the tapes is sustained by the Supreme Court. Special Prosecutor Leon Jaworski is now thinking in terms of a few days.
If the tapes are produced, the White House might report, as it has in the past, that some recordings mentioned in the subpoena simply were never made. So far the White House has said that 13 tapes previously sought do not exist. Others may contain gaps, like a 19-minute blank reported last week by the Special