Nixon's heirs expected to pursue fight for tapes

April 26, 1994|By New York Times News Service

WASHINGTON -- Richard M. Nixon's heirs plan to continue his 20-year-old fight to control more than 3,000 hours of White House tapes and 150,000 pages of presidential papers, his lawyer said yesterday.

But legal experts said Mr. Nixon's death may speed the release of the records, which are locked away at the National Archives and have never been made available to scholars or journalists.

The tapes and papers were a crucial battleground in Mr. Nixon's struggle to re-establish his reputation. Starting two months after he resigned as president in 1974, he filed lawsuits to stop the release of the records. The last suit was filed about 10 days ago.

But unless his family fights as hard and as well as he did, historians may soon be mining rich new veins of Mr. Nixon's hidden history.

"We can safely assume that Richard Nixon's tenacity in fighting this for 20 years does not mean that these materials will exonerate him," said Stanley Kutler, a University of Wisconsin historian who has sued to release the records. "They will solidify and enhance his complicity in the Watergate affair and in the whole record of what his attorney general, John Mitchell, was fond of calling 'the White House horrors.' "

Only 63 hours of the tapes, provided to the federal grand jury in the Watergate affair, have been made public. Their famous passages include Mr. Nixon's advice that his aides "stonewall" federal investigators and his response to demands for hush money from the men arrested in the June 1972 break-in at Democratic Party headquarters in the Watergate office building: "You could get a million dollars. And you could get it in cash. I know where it could be gotten."

Patti Goldman, a lawyer representing Mr. Kutler, said "the struggle is over who will control the tapes, who will control what the public will see and hear." She added: "Nixon really didn't want the tapes out. I don't know if his goal was to delay their release until he died or longer. It may be that he accomplished what he wanted."

But Mr. Nixon's lawyer, R. Stan Mortenson, said the battle will not end with Mr. Nixon's death.

"The suits will continue," he said. Mr. Mortenson said Mr. Nixon had a right to privacy even after death, although he could not cite a legal basis for that concept. Other legal experts said the claim of privacy would diminish after Mr. Nixon's demise.

"Nixon's death weakens the privacy claim substantially," said Burt Neuborne, a professor at law at New York University. Laurence H. Tribe, a professor of law at Harvard University, has said that while there has been no definitive ruling by the U.S. Supreme Court on privacy after death, other courts have held that the claim for privacy does not follow substantially beyond the grave.

Mr. Mortenson also said delays in the release of the materials were the fault of the National Archives, which "failed to do what it promised for 20 years" -- segregate Mr. Nixon's private and purely political words from the records and return them to him. A spokeswoman for the National Archivist, Trudy Peterson, said she could not comment on matters in litigation.

Mr. Nixon incurred "a substantial cost" in fighting the release of the records, Mr. Mortenson said, but he would not be more specific.

A 27,000-page index of the tapes prepared by the National Archives shows they hold at least 200 more hours of conversations about the Watergate affair and hundreds of discussions of foreign policy, the foundation upon which Mr. Nixon's reputation as a statesman rests.

Mr. Kutler said topics covered in the 150,000 pages of presidential papers include former Secretary of State Henry A. Kissinger's discovery that the Joint Chiefs of Staff had sent an officer to spy on him; Mr. Nixon's 1972 presidential campaign, which many believe was shot through with dirty tricks and illegal contributions; the president's comments on members of the Supreme Court; and a wealth of foreign-policy matters.

"Our history is largely what Nixon and Kissinger have chosen to give us," Mr. Kutler said. "Historians have to go far beyond the first draft of history. They live by documents. It's time to say: 'The envelope, please.'"

The struggle over the records began in October 1974, when Mr. Nixon sued for complete control, saying only he could make the delicate judgments on what should be kept secret and what should be made available.

Congress responded with a law ordering the National Archives to maintain the records and "provide the public the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term 'Watergate.' "

But it took until 1991 for the Archives to release the first set of tapes given to the Watergate grand jury.

In litigation and negotiations over the papers, Mr. Nixon sought to bar their publication until the Archives withdrew files he found to be personal or political. Then he sued to block release of the remaining 200 or more hours of Watergate tapes.

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