Court Rules Some Nixon Tapes Are Private

The long-running legal battle over Richard Nixon’s secret White House tapes hit another milestone Tuesday when a federal appeals court ruled that 820 hours of the recordings are personal. A spokesman for the estate said they probably will be destroyed.

As a result, conversations captured by Nixon’s elaborate taping system--including intimate chats between the president and his family, talks with his physician and some private political conversations--may never be available to historians.

The contentious fight over the rightful resting place for Nixon’s tapes and papers has spanned 24 years, since his resignation in 1974 after the Watergate scandal.

Though the issue of the Watergate tapes first reached the U.S. Supreme Court in the 1970s, it is still not over. In November, a trial is scheduled to determine how much Nixon’s estate should be paid for the 880 tapes and 42 million pages of documents the government confiscated after he left office.

“It’s a shame the estate had to go through the effort to get the government to do 20 years later what it should have done in the first place,” said R. Stan Mortenson, a lawyer for the Nixon estate.

How valuable scholars would find these tapes is open to question. Because Nixon’s taping system was sound-activated, the tapes picked up “a lot of room noise, from vacuum cleaners to toilets flushing,” said Susan Cooper, a spokeswoman for the National Archives.

Stanley Kutler, a University of Wisconsin history professor who sued to have the tapes released, has said, “Anything that is done [on Nixon] without those papers will lack completeness.”

In all, about 3,700 hours of conversations were recorded during one of the most historically significant periods of American history. So far, about 545 hours have been released; minus the personal recordings, the rest will be made available in five stages by 2000.

About half of the released tapes concern what historians call Nixon’s “abuse of power” conversations, the balance involve discussions with his Cabinet.

Some of the recordings captured Nixon urging tax audits of wealthy Jewish contributors to his Democratic rivals. “Are we going after their tax returns?” Nixon asked aide John D. Erlichman. “I can only hope that we are, frankly, doing a little persecuting.”

Whether similar conversations occurred on the 820 hours of tapes in question may never be known.

John H. Taylor, director of the Nixon Library and Birthplace in Yorba Linda and an ardent defender of the former president, said Nixon “had not listened to these tapes, he did not know what was on them, and he did not seem preoccupied by them. But he did want his property back.”

Nixon died in April 1994.

Material on the tapes will be divided into two categories by anything clearly personal and other conversations considered to be political but still private, Taylor said, adding that he and the family would determine whether portions of those conversations will be released.

“The personal and family discussions I feel certain [the estate] will go ahead and destroy,” Taylor said, as part of the “solemn promise made . . . to [Nixon] that they won’t be listened to or ever played in public.”

Taylor, a coexecutor of Nixon’s will, said the other material, which he described as “private discourses as head of the [Republican] Party . . . ought to be judged differently.”

Whether the tapes will end up at the Nixon library, Taylor added, is a “custodianship” issue that has yet to be determined.

Tuesday’s ruling stems from an objection that Nixon filed in U.S. District Court in Washington in 1993 shortly after the National Archives announced that it would make available more Watergate-related portions of the tapes. About 60 hours of tapes used in Watergate prosecutions were released earlier.

Nixon obtained an injunction against the further release until the archives returned to him the “private portions” of the tapes. In 1994, the archives returned the 820 hours deemed personal and removed them from a master copy of all 3,700 hours.

But the archives retained the originals and a copy and promulgated a regulation in 1996 providing that “no physical part of any original tape recordings . . . shall be transferred to [Nixon] or his heirs.”

Although the archives and Nixon’s estate entered into an agreement for the release of all but the personal and private snippets, the archives maintained that it had a legal duty to keep the original tapes and the uncut copy, and it refused to return them.

The matter went back to court where a district judge ordered the archives to erase the personal matters from the tapes it held. The archives appealed.

In unambiguous language, the three-judge appellate panel wrote Tuesday: “We hold that . . . the archivist must return to the estate all existing tapes and copies of conversations that do not shed light upon the Watergate affair and lack ‘general historical significance.’ ”

The archives “must now do what the Supreme Court instructed over 20 years ago and what this court repeated 16 years ago . . . return the material immediately [to the Nixon estate],” the judges said.

Nixon scholar Harry Jeffrey, a professor at Cal State Fullerton, said the seemingly endless legal battles have frustrated historians for a quarter of a century.

Why has it taken so long? Shortly after Nixon resigned, Congress passed the Presidential Recordings and Materials Preservation Act of 1974 to take custody of Nixon’s materials.

“I think he felt stung by that law,” Jeffrey said, “because other presidents had total control over their material . . . and so he fought it tooth and nail.”

Whenever the rest of Nixon’s tapes and papers are made available, Jeffrey said, “I believe they will be very valuable because the Nixon administration was about much more than Watergate.”

Times staff writer Robert L. Jackson contributed to this story from Washington.

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Tale of the Tapes

Of the 3,700 hours taped by Nixon, 820 have been ruled personal and will be turned over to Nixon’s estate; 545 hours of Nixon tapes are available to the public through the National Archives. A timeline of Nixon presidential tapes litigation:

1974: President Nixon resigns; Nixon-Sampson Agreement gives Nixon control over his presidential materials, including White House tapes

1976: Court rules Nixon’s constitutional rights are not violated by government archivists processing materials

1978: Nixon vs. Solomon challenges regulations allowing government to process Nixon materials

1978-79: 4,000 hours of White House tapes duplicated and rewound

1980: 12 1/2 hours of Watergate trials tapes released

1982: Court of Appeals affirms District Court ruling that regulations did not infringe on Nixon’s rights

1992: 60 hours of tapes played at Watergate trials released

1993: Nixon objects to pending release of Watergate-related tapes

1996: Settlement reached for release of taped public conversations

1998: Appeals Court rules unanimously that 820 hours of the recordings are personal and must be returned to Nixon’s estate

Source: National Archives