Editing Archibald Cox (section)

===White House tapes===
Herb Kalmbach, especially of interest to the illegal campaign contributions task force,{{efn|Kalmbach was Nixon's personal lawyer who specialized in raising large sums for Nixon's campaigns from large corporations. Even before the Watergate break-in Kalmbach was known as one from whom White House influence could be purchased for cash.<ref>{{cite news|url=https://www.nytimes.com/1972/02/16/archives/exclusive-coast-club-spurs-gifts-of-millions-for-nixon-and-gop.html|last=Holless|first=Everett R.|title=Exclusive Coast Club Spurs Gifts Of Millions for Nixon and G.O.P.|work=New York Times|date=February 16, 1972|pages=1, 20|access-date=April 24, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20170909054849/http://www.nytimes.com/1972/02/16/archives/exclusive-coast-club-spurs-gifts-of-millions-for-nixon-and-gop.html|archive-date=September 9, 2017|url-status=live|df=mdy-all}}</ref> Not only was he the chief fundraiser in the 1972 campaign he was one of very few who could draw on money from a "secret political espionage fund."<ref>{{cite news|url=https://www.nytimes.com/1973/02/11/archives/nixons-attorney-tied-to-fund-role-deposition-filed-in-court.html|last=Franklin|first=Ben A.|title=Nixon's Attorney Tied to Fund Role|work=New York Times|date=February 11, 1973|page=29|access-date=April 22, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20170909053358/http://www.nytimes.com/1973/02/11/archives/nixons-attorney-tied-to-fund-role-deposition-filed-in-court.html|archive-date=September 9, 2017|url-status=live|df=mdy-all}}</ref>}} was scheduled to testify before the Senate Watergate Committee on July 16. Instead, Haldeman's aide Col. [[Alexander Butterfield]] was inserted as a "mystery witness." During his 30-minute testimony he revealed the secret taping system that was installed in the Oval Office, the president's office at the Executive Office Building, and at Camp David)—a voice-activated mechanism designed to capture everything spoken by or to the president.<ref>{{harvnb|Emery|1994|pp=368–370}}; {{harvnb|Doyle|1977|pp=92–93}}; {{harvnb|Kutler|1990|pp=368–370}}.</ref> The existence of the tapes was the biggest piece of evidence unearthed by the Senate Watergate Committee; around it much of the remainder of the [[cover-up]] case would revolve.{{efn|Aside from Butterfield's testimony, all the testimony televised by the Watergate Committee had been developed by the federal prosecutors in the District of Columbia U.S. attorney's office.{{sfn|Kutler|1990|p=382}} Moreover, the presentation by the committee was largely inept in the opinion of the Special Counsel's staff. Dean, for example, escaped serious cross-examination. The committee allowed burglar [[Bernard Barker]] to testify without serious challenge to the patriotic motives of his cohorts, explaining that he believed that the Watergate Hotel contained evidence that [[Fidel Castro]] was sending money to Senator [[Edward Kennedy]]. And no one asked him how money from the Nixon campaign committee ended up in his bank account.{{sfn|Doyle|1977|p=97}} Nevertheless, without the disclosure of the tapes, the eventual outcome would have been in substantial doubt.}}

The materiality of certain tapes was self-evident. Tapes of conversations testified to by John Dean would either show that Dean's account was accurate, in which case the president was complicit in obstruction of justice, or false, in which case Dean committed perjury in his testimony to the Senate. The relevance of other tapes could be inferred from the proximity of meetings to Watergate-related events. Cox believed he could maximize his chance for a favorable ruling by limiting the scope of his initial request to material arguably important to the criminal proceedings. Once he obtained a ruling that executive privilege gave way to a compelling need in a criminal prosecution, he could ask for additional material later. So on July 18 Cox sent Buzhardt a written request for eight specific tapes.{{efn|One tape requested covered the meeting of Nixon, Haldeman, and Ehrlichman on June 20, 1972, their first meeting after the break-in. The remaining seven tapes covered meetings between Dean and Nixon in September 1972 and the spring of 1973. Since Dean had testified about these meetings with the permission of the president, Nixon arguably waived any privilege that may have attached to them.{{sfn|Doyle|1977|p=96}}}} On July 23, Wright responded in writing denying the request on grounds of executive privilege and separation of powers. That evening Cox had a grand jury subpoena demanding the eight tapes and three other items{{efn|The three additional items consisted of: a tape of a meeting on March 21; a memo of March 30 between two White House personnel employees concerning Hunt's employment; and memoranda between [[Gordon C. Strachan|Gordon Strachan]] and Haldeman from November 1971 to November 1972 concerning sale of ambassadorships. The second item had been voluntarily delivered to the FBI. Its inclusion was designed to bolster the waiver argument. The third group was designed to show that the White House interested itself in political matters and therefore privilege covering his "executive" function should not apply.{{sfn|Doyle|1977|pp=103–104}}}} served on Buzhardt who accepted on behalf of the president.{{sfn|Doyle|1977|pp=92–99, 101–105}}

On July 26, Chief Judge [[John J. Sirica]]{{efn|By virtue of being chief judge of the United States Court for the District of the District of Columbia Sirica handled all grand jury matters.{{sfn|Silbert|1992|p=78}} He also was the trial judge of the original Watergate break-in case.}} received a letter from Nixon himself responding to the subpoena in which he asserted that it would be as inappropriate for the court to compel him as it would for him to compel the court. He was therefore not producing the tapes. But he included a copy of the March 30 memo concerning Hunt's employment and promised to make available the Strachan political documents concerning ambassadorships. Within an hour Cox was before the grand jury, explaining the response to them; they voted to request Sirica to issue an order to Nixon to show cause why there should not be prompt compliance with the subpoena. Sirica had the members individually polled and issued the order.<ref>{{harvnb|Doyle|1977|pp=105–106}}; {{cite news|url=https://www.nytimes.com/1973/07/27/archives/nixon-contests-subpoenas-keeps-tapes-hearing-set-a-ug-7-on-historic.html|last=Apple|first=R.W.|title=Nixon Contests Subpoenas, Keeps Tapes, Hearing Set Aug. 7 on Historic Challenge|work=New York Times|date=July 27, 1973|pages=1, 8|access-date=April 24, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20170909052727/http://www.nytimes.com/1973/07/27/archives/nixon-contests-subpoenas-keeps-tapes-hearing-set-a-ug-7-on-historic.html|archive-date=September 9, 2017|url-status=live|df=mdy-all}}</ref>

Sirica allowed the parties a month to brief the issue, which came for a hearing on August 22. Wright took a broad, absolutist position claiming the president was the only person who could decide what materials to turn over to them. He relayed Nixon's feelings on national security, saying that Nixon told him that one tape had "national security information so highly sensitive that he did not feel free to hint to me what the nature of it is" despite Wright's full national security clearance. Wright said that the president's power was so inclusive that he could terminate the Special Prosecutor's office and have all the cases dismissed. Cox, on his turn, emphasized the peculiar situation here where there "is strong reason to believe the integrity of the executive office has been corrupted" and pointed out that the president had permitted his staff to testify about the meetings covered by the tapes but refused to turn over the tapes themselves,{{efn|A stark example was seen when Haldeman had been given access to the tapes to prepare his testimony and then having "refreshed his recollection" about the meetings testified before the Senate Watergate Committee.<ref>{{cite news|url=https://www.nytimes.com/1973/08/05/archives/an-unexpected-ploy-adds-a-question-to-a-dilemma.html| last=Weaver | first=Warren Jr. |title=An Unexpected Ploy Adds a Question to a Dilemma|work=New York Times|date=August 5, 1973|page=161|access-date=April 24, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20170909053349/http://www.nytimes.com/1973/08/05/archives/an-unexpected-ploy-adds-a-question-to-a-dilemma.html|archive-date=September 9, 2017|url-status=live|df=mdy-all}}; {{harvnb|Emery|1994|pp=370–372}}.</ref> ordinarily when a witness uses material to refresh his recollection, the cross-examiner is entitled to see it and have it received into evidence if he so moves. This tradition is reflected as for "writings" in Federal Rule of Evidence 612(b).}} which would be the better evidence of what transpired. As for the claim that the president could terminate his commission, Cox said (presciently in hindsight) that even if were true, then the president would have to accept the political repercussions that would follow exercising that power. After questioning Wright for about 17 minutes (and Cox only 8), the judge said he hoped to have a decision within a week.<ref>{{cite news|url=https://query.nytimes.com/gst/abstract.html?res=9B05E2D6103DE63ABC4B51DFBE668388669EDE| last=Weaver | first=Warren Jr. |title=Tape Case Argued in Federal Court: Sirica Will Decide in Week|work=New York Times|date=August 23, 1973|pages=1, 29|access-date=April 24, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20160512171049/http://query.nytimes.com/gst/abstract.html?res=9B05E2D6103DE63ABC4B51DFBE668388669EDE|archive-date=May 12, 2016|url-status=live|df=mdy-all}}</ref>

On August 29, the court ordered the president to deliver all the material to him for review. The decision amounted to a rejection of Wright's absolutist argument. Although not a complete victory for Cox,{{efn|The Special Prosecutor's office was particularly concerned with the sentence that "If privileged and unprivileged evidence are so inextricably connected that separation becomes impossible, the whole must be privileged and no disclosure made to the grand jury."{{sfn|Doyle|1977|p=113}} Cox was concerned that he would have no input into the decision; it would be made by a judge who was unfamiliar with how all the evidence connected. What made the decision to involve himself the more odd was that neither side had suggested or briefed the issue.{{sfn|Gormley|1997|pp=305–306}}}} Sirica ignored the national security argument, and the decision was widely considered as historic—the first time a court ordered a president to produce evidence since Chief Justice [[John Marshall]] in 1807 ordered President [[Thomas Jefferson]] to produce documents. The White House quickly announced that Nixon "will not comply with the order." Wright said that they were considering an appeal, but the statement "hinted that they might find some other method of sustaining the president's legal position."<ref>{{cite news|url=https://www.nytimes.com/1973/08/30/archives/a-historic-ruling-president-first-since-jefferson-directed-to-give.html| last=Weaver | first=Warren Jr. |title=A Historic Ruling: President First Since Jefferson Directed to Give Up Records|work=New York Times|date=August 30, 1973|pages=1, 21|access-date=April 24, 2016|archive-url=https://web.archive.org/web/20170909053330/http://www.nytimes.com/1973/08/30/archives/a-historic-ruling-president-first-since-jefferson-directed-to-give.html|archive-date=September 9, 2017|url-status=live|df=mdy-all}}</ref>

The president did appeal, but to the public irritation of Wright,{{sfn|Doyle|1977|pp=114–115}} the Circuit Court of Appeals ordered the proceedings expedited, scheduling argument for the following week before the entire circuit.{{efn|The appellate court moved up the schedule in light of the expiration of the grand jury in early December. A decision by the end of September would also give the Supreme Court a chance to hear the case upon its return on October 1.<ref name="CtExpid">{{cite news|url=https://query.nytimes.com/gst/abstract.html?res=9D03E6D9113DE63ABC4D53DFBF668388669EDE| last=Weaver | first=Warren Jr. |title=Appellate Court Orders Speed-Up in Tapes Dispute: Slates Argument Next Week Without Waiting for Filing of the President's Plea|work=New York Times|date=September 5, 1973|pages=1, 18|access-date=April 24, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20160512191101/http://query.nytimes.com/gst/abstract.html?res=9D03E6D9113DE63ABC4D53DFBF668388669EDE|archive-date=May 12, 2016|url-status=live|df=mdy-all}}</ref> A hearing before the entire circuit rather than the usual three-court panel also deprived the losing party from delay associated with a petition for hearing ''en banc''.}} At the argument on September 11 Wright again took the maximum view of executive privilege. In response to a question by Chief Judge [[David L. Bazelon]], Wright said that he could think of no circumstance that the tapes could be demanded by courts. He said, however, that the White House had made information available, waiving the privilege, but tapes constituted "the raw material of life," something essentially privileged. Wright maintained that the privilege survived even if abused, such as by the president engaging in fraud or other crime. Cox's approach, just as in the sit-in and reapportionment cases, was to avoid asserting a broad legal principle and instead show how the case was ''sui generis'', unlikely to establish a precedent soon relied on, and one that fit easily within existing principles of administration of justice. Observers believed Cox had won.{{sfn|Doyle|1977|pp=117–119}} Instead, the Court's decision two days later (even before the time the court had provided for post-argument briefs<ref name="CtExpid"/>) gave the parties one week to come up with a compromise.<ref name="CtRecom">{{cite news|url=https://query.nytimes.com/gst/abstract.html?res=9C0DE3D91030E63ABC4C52DFBF668388669EDE| last=Weaver | first=Warren Jr. |title=Appellate Court Asks Compromise in Tapes Dispute: Bids Nixon Voluntarily Yield Portions of Recordings to Cox and Wright for Study|work=New York Times|date=September 14, 1973|pages=1, 23|access-date=April 24, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20160512182825/http://query.nytimes.com/gst/abstract.html?res=9C0DE3D91030E63ABC4C52DFBF668388669EDE|archive-date=May 12, 2016|url-status=live|df=mdy-all}}</ref>