24 Years After Watergate, a New Fight Emerges Over Nixon Tapes

When Richard Nixon began battling the government over seizure of his secretly recorded White House tapes soon after his resignation, no one suspected that his legal fight would last 24 years--or that it would continue beyond his death.

But that is exactly what has happened.

In a nearly empty courtroom in the same U.S. courthouse where juries in an earlier era convicted Nixon’s top aides of Watergate-related crimes, the final drama of his 3,700 hours of recordings is quietly being played out.

Attorneys for the former president’s heirs are seeking as much as $213 million from the government, most of which would go to expand and improve the privately run Richard Nixon Library & Birthplace in Orange County, where his pre- and post-presidential papers are housed.

Better Understanding of Nixon Presidency

If copies of all the White House tapes are ever transferred to the Yorba Linda site, as many expect will happen, the funds would help provide better physical facilities for visiting scholars, historians and members of the public to achieve a deeper understanding of Nixon’s six-year presidency.

But whether the government will be ordered to pay a multimillion-dollar award is the subject of bitter legal arguments and expert testimony.

Washington attorneys Herbert J. Miller and R. Stan Mortenson, representing the Nixon estate, are comparing the tapes that led to Nixon’s downfall to the Gutenberg Bible and the Declaration of Independence as historic documents. Together with the former president’s photo collection and White House papers, they figure “just compensation” for these documents at $35.5 million in 1974 dollars--a sum with compound interest that amounts to more than $200 million.

They are bolstering their case with testimony from appraisers, writers and historians, including nationally known author Stephen E. Ambrose, the D-day historian who also has written a Nixon biography.

“Who are they kidding?” Justice Department lawyer Neil H. Koslowe responded in court. “Mr. Nixon is entitled to zero compensation.”

Koslowe, who is representing the government’s interest, said Nixon himself stated proudly at a 1973 news conference that “in all my years of public life, I have never profited . . . from public service,” and yet now his estate is seeking to “cash in on documents created by public officials at public expense on public equipment.”

A decision in this nonjury trial, which is expected to last until February, will be in the hands of veteran U.S. District Judge John Garrett Penn. The senior judge is well-versed in Nixon’s arguments but previously has shown little sympathy for them.

Penn once held that Nixon was custodian of his records as “a trustee for the American people” and not entitled to compensation when Congress passed a law confiscating them in late 1974 out of fear that he would destroy the incriminating recordings.

Papers Judged Private Property

But the U.S. Court of Appeals ruled against Penn, holding that presidents dating back to George Washington had treated their presidential papers as private property. The appellate judges sent the case back to Penn to determine what compensation is due.

Miller, the chief attorney for Nixon and his family for the last 25 years, has said the public should understand that none of the compensation will accrue to Nixon’s heirs. Except for past and current legal fees, all of whatever award is determined by Penn will go to the Nixon foundation and library in Yorba Linda, the lawyer said.

In a videotaped deposition shown in Penn’s court, Ambrose supported Miller’s case by testifying that the tapes are invaluable to historians. He said they add a dimension to Nixon’s presidency--for good or ill--that is missing from the terms of most other presidents.

Referring to the hundreds of hours he spent at the National Archives listening to available White House tapes, Ambrose said: “It’s just fascinating. It’s better than any drama. It’s better than Shakespeare.”

Aside from Nixon’s foreign policy achievements, “the sins . . . the crimes of the Nixon administration are also of fundamental historical importance,” he said. And Nixon’s tapes shed light on these, Ambrose testified.

The Nixon family lawyers also have called other writers, scholars and property appraisers to persuade Penn that Nixon was deprived of materials of great commercial value when his collection was seized by Congress in late 1974.

For example, Frank Gannon, a former Nixon White House aide who helped the former president write his memoirs, said federal regulations imposed after Congress took the records hampered him in doing research for Nixon’s books and articles.

But in a skillful cross-examination, Koslowe, the Justice Department lawyer, sought to show that Nixon, who died in 1994, did not intend to exploit his Watergate material commercially and may actually have benefited from organization and cataloging of his materials by the archives.

Nixon Sought to Curb Use

During his lifetime, Nixon filed a series of legal challenges to try to curtail public disclosure of his Watergate-era conversations. Since his death, his family has agreed to make public more than 200 additional hours of his “abuse of government” tapes.

But Karl Weissenbach, acting director of the archives’ Nixon project, said that to date only about 7 million of 44 million pages of text and only 427 hours of 3,700 hours of tapes have been opened to the public, largely because of decades-long delays caused by legal wrangling with Nixon and his family.

Justice Department lawyers, in fact, have introduced at the current trial a sampling of Nixon’s most controversial and inflammatory remarks--some of them never before heard--in an effort to show that he would never have offered the tapes commercially without restrictions that would have reduced their value.

Some of these tape segments show Nixon denouncing most of his Cabinet and staff as “a bunch of goddamned cowards,” accusing President Kennedy of having had South Vietnamese President Ngo Dinh Diem “murdered” and attacking U.S. military leaders as “a bunch of greedy bastards . . . not interested in this country.”

Koslowe argued that it is virtually impossible to place a “fair market value” on Nixon’s tapes and papers because there has never been “a willing seller and a willing buyer.” However, he told the court that Nixon, after his resignation, once negotiated with “a number of universities” to house his presidential materials but that “in no instance did the prospective university . . . agree to pay anything for the materials.

“Consequently, to the extent the materials have an ascertainable fair market value, that value is zero.”

Once the trial has concluded, Penn is expected to prepare a detailed written ruling to be issued in the spring.