The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In July, 1973, Alexander Butterfield, a virtually unknown White House staffer, revealed, in testimony before the Senate Special Watergate Committee, that President Nixon had installed a secret taping system in the White House, and that all of Nixon's conversations were recorded, automatically, on tape.
The White House had released a document to the Committee staff that was intended to defend the President by impugning and rebutting public testimony that Presidential Counsel John Dean had given the month before. The document contained extensive quotations from conversations between Nixon and Dean, and Committee staffers started to wonder how, exactly, these lengthy quotations were obtained. They began routinely asking interviewees whether they knew of a taping system. When they asked Butterfield, he replied with one of the great sentences in US legal and political history: "I was wondering when you would ask that." "Yes," he continued; "there is tape in the White House."
It is difficult to convey, to those of you too young to remember the Watergate episode, how electrifying Butterfield's revelations were. It's one of the very few "people remember where they were when they heard …" moments that did not involve loss of life (Pearl Harbor, the Kennedy Assassination, 9-11). At the time of his testimony, the Watergate hearings had been going on for months, and there had been charges and counter-charges and counter-counter charges involving what the President had been told, and what the President had said, in connection with the Watergate break-in. And then suddenly, seemingly out of the blue, it turned out that there was a record of everything that people had told Nixon, and everything Nixon had told them.
It was a true bombshell. If there is a single moment that represents the beginning of the end of Nixon's presidency, this was it. The tapes were at the center of the Saturday Night Massacre; Special Prosecutor Archibald Cox demanded their production as part of his investigation, and Nixon ordered Attorney General Elliot Richardson to fire Cox; when Richardson refused, Nixon fired him, and ordered Deputy AG (and, at least for the moment, Acting AG) William Ruckleshaus to fire Cox; when Ruckelshaus refused, Nixon fired him, until he finally found someone in the chain of command—Robert Bork, in his first starring role—willing to do as ordered. The Saturday Night Massacre then led directly to the House Impeachment hearings and passage of the Articles of Impeachment.
And it was Nixon's subsequent refusal, the following year, to turn over the tapes to Judge Sirica (DDC) to be used as evidence in criminal cases brought by the new Special Prosecutor, Leon Jaworski, that led to an epic confrontation between the Executive and Judicial Branches. On July 24, 1974 a unanimous Supreme Court ordered Nixon to turn over the tapes in (the aptly-named) US v. Nixon, and, fortunately for the country, he did so. Two weeks later, transcripts were released by Judge Sirica, including the famous "smoking gun": the conversation between Nixon and his top aides on June 23, 1972—six days after the Watergate break-in—in which Nixon approves the plan to try to get CIA Director Richard Helms to tell FBI Director L. Patrick Gray to halt the Bureau's investigation into the Watergate break-in on the grounds that it was a "national security matter," when it was, in fact, purely a matter of protecting Nixon's rear end.
Once the "smoking gun" transcript was made public, Nixon's political support vanished more-or-less overnight. The Republicans jumped ship en masse; the 10 Republicans on the House Judiciary Committee who had voted against the Articles of Impeachment (compared to the seven who had voted for impeachment) all stated publicly that they would change their vote when the Articles came up on the House Floor, and, famously, a delegation of prominent Republican senators—including Sens. Goldwater, Baker, Scott men of real character and patriotism and dignity, who understood the need to put the needs of the country before the needs of their party—visited the Oval Office and gave Nixon the bad news: they wouldn't support him anymore, and he would lose an impeachment vote in the Senate.
Is it just me, or are others starting to have that "deja vu all over again" feeling? I'm not the only one who thinks that there just might be—might be—a more detailed account of exactly what President Trump said in that July 25th phone call, am I? I am aware that Nixon himself ordered the White House taping system dismantled, and that subsequent presidents, Democrats and Republicans alike, have been loath to re-install it precisely because of the hot soup in which it had landed Nixon and could land them. At the same time, in 2019 it is difficult to imagine—for me, at least—that the highest levels of our government rely entirely on mid-20th century stenographic technology to make a record of who said what to whom.
When the Wall Street Journal first reported on Trump's July 25th phone call, the reporters, quoting "people familiar with the matter," observed that Trump "repeatedly pressured the president of Ukraine to investigate Joe Biden's son, … urging Volodymyr Zelensky about eight times to work with Rudy Giuliani on a probe that could hamper Mr. Trump's potential 2020 opponent." But the "memorandum" released by the White House with a "summary" of the conversation doesn't have eight references to Biden or to Giuliani. Makes you wonder, no?