Nixon Estate May Win Battle Over Tapes Judges Criticize Justice Department Arguments

A panel of three federal judges made clear Monday that they think former President Richard Nixon’s estate should have sole custody of 819 hours of “personal” conversations from his White House tapes even if the original recordings have to be mangled.

The three appeals court judges have yet to issue a formal ruling, but at a half-hour hearing Monday they repeatedly criticized the Justice Department’s contention that the 1974 law confiscating the tapes did not require the government to cut up the fragile originals in order to return the personal snippets to the Nixon estate.

Officials at the National Archives, which contends that important historical material will be destroyed as a result, said Monday that some 17,000 “edits” will be required on the 3,700 hours of original tapes.

At issue is a ruling last March by U.S. District Judge Norma Holloway Johnson ordering the archives to return all “personal and private” conversations on the original tapes to the president’s estate “forthwith.” She stayed the order pending appeal of the decision, which lawyers at Justice said would jeopardize virtually all of the 950 reels of tape from the Nixon presidency that Congress confiscated by law in 1974 to keep Nixon from destroying them.

But Chief Judge Harry T. Edwards said Monday he saw no reason to be alarmed over the damage that might be done to the originals because the archives has digital copies that have already been carefully edited to remove the personal fragments. “The record’s clear. There’s nothing lost,” Edwards said.

Speaking for the National Archives, Justice Department lawyer Freddi Lipstein said that new technology may make it possible to decipher portions of the originals that are labeled “unintelligible.”

Edwards dismissed that suggestion, saying it amounted to arguing that “there might be some technology 30 years from now which might make it possible to hear someone breathing heavily.”