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Conversation 037-116

TapeTape 37StartThursday, March 15, 1973 at 9:20 AMEndThursday, March 15, 1973 at 10:05 AMParticipantsNixon, Richard M. (President);  Ziegler, Ronald L.;  Dean, John W., IIIRecording deviceWhite House Telephone
AI Summary

President Nixon, Ronald Ziegler, and John Dean consult on how to manage anticipated press inquiries regarding a potential subpoena of Dean in a Common Cause civil suit. They weigh the legal implications of executive privilege, discussing whether Dean's testimony would pertain to his official duties as White House Counsel or extraneous matters. The group decides to adopt a strategy of denial, maintaining that Dean has not been served and emphasizing the lack of information regarding the basis for any potential legal action.

Executive privilegeCommon CauseJohn DeanSubpoenaWhite House CounselDeposition
AudioNARA Description

On March 15, 1973, President Richard M. Nixon, Ronald L. Ziegler, and John W. Dean, III talked on the telephone at an unknown time between 9:20 am and 10:05 am. The White House Telephone taping system captured this recording, which is known as Conversation 037-116 of the White House Tapes.

Nixon Library Finding Aid
Conversation No. 37-116

Date: March 15, 1973
Time: Unknown between 9:22 am and 10:05 am
Location: White House Telephone

Ronald L. Ziegler talked with John W. Dean, III. The President can be heard in the background.

       Preparation for press briefing
              -Subpoena of Dean in Common Cause suit
                      -Dean's response
                      -Reason for subpoena
                               -Dean as President's counsel
              -Subpoenas of Congressional aides
                      -Thomas J. Dodd
                      -Daniel Brewster
                      -Clark R. Mollenhoff's response
              -White House staff depositions in civil suits
                      -Precedents
                              -Charles W. Colson
                                      -Type of questions
              -Mollenhoff
                      -Congressional aides' immunity
              -Colson's deposition
                      -Judicial executive privilege
                      -Legislative executive privilege
                                             - 83 -

                           NIXON PRESIDENTIAL LIBRARY

                                        (rev. Sept-09)

                            -Differences
                    -Reasons for appearance
                            -E. Howard Hunt, Jr.
              -Samuel J. Ervin, Jr.
                    -Senate committee
                            -Colson's deposition
                    -Speech on executive privilege
Transcript (AI-Generated)

This transcript was generated automatically by AI and has not been reviewed for accuracy. Do not cite this transcript as authoritative. Consult the Finding Aid above for verified information.

Mr. Dean.
John, what is your thinking this morning on how to handle a question regarding your subpoena before the civil suit, common cause suit?
For the president?
I'll say first of all, I'm informed that Mr. Dean has never been served.
You have not been served yet.
And all we have is press speculation, or just all we have is a press statement that was going to happen.
So what if you are served, John?
If I am served?
We'll have to find out why they're... Mr. Dean doesn't know why they're calling him, doesn't know the relevancy of his testimony, what capacity they're calling him in.
No, but John, even if you don't know why they're serving, let's just suppose they do serve you from a constitutional standpoint.
Well, if it's serving me for something that's unrelated to my capacity as counsel of the president...
And that's what really the judgment will be, if you can separate my hats.
In other words, if you're called to testify in an area unrelated to your capacity as counsel to the president, then you would have to go.
That's right.
But if you were called to testify on a matter related to your capacity as counsel, then you would, under separation of power, not go.
That's correct.
Then there would be a test on that, I suppose.
That is correct.
The court takes a test on that.
That's right.
Okay, but you have not been served, and you have no idea.
I've not been served, and I think that's the way to leave it, right?
I don't think the president ought to get into it until we get well postured on which position it falls in.
Right.
To say that, gentlemen, I understand from Mr. Dean, he has not been served.
Just knock that right.
Well, gentlemen, he hasn't been served.
He doesn't know what he's going to be served about.
He doesn't know the nature, privy to the reasons they're calling him, even.
Didn't they say in their press release what you were being... No.
And I've been unable to find out why they want me.
So you don't know why they want you.
Did you check to see if any assistant to a congressman or senator, administrative assistant, or anyone has ever been called to appear before a court?
Yeah.
Who and what?
The aides to the Dodd.
Aides and Brewster.
Brewster.
Yeah.
I would stay out of that analogy to the right.
And Mollenhoff would just come in with 10 feet deep on that.
He's really hot on that one, using that analogy.
Haven't members of the White House staff given depositions in civil suits?
How do we distinguish?
Well, I didn't go into the questions that were asked.
Mr. Colson did not relate in any way to his official functions.
It's my understanding.
He did not relate to official functions.
John?
I know it's tough.
We've got a tough situation with Colson having given that deposition.
He wanted to.
Tell me, what is Mollenhoff?
What's his analogy?
Are you in your office?
No, I'm here.
Mollenhoff does not like the use of the analogy that congressional aides are immune from any investigative by the executive branch.
He's got a half a point, and he's so adamant it's not worth getting into the argument with him.
in a press conference.
Right.
We understand that.
Yeah.
Now, on the exception of Colson in a civil suit, there's a tremendous difference between judicial executive privilege and legislative executive privilege, which there is.
There's case law, there are different precedents, and the whole thing.
Colson wanted to appear in this deposition.
It was very early in the political fray, and no one objected to him appearing.
The point is it did not relate to his function, and Colson's case did not relate to his function here at the White House, right?
That's correct.
What did it relate to?
Well, they asked him questions about Howard Hunt.
And he tried to establish that Howard Hunt had never worked for him, i.e.
it didn't relate to his functions.
Wouldn't the Urban Committee hearing be asking about matters that don't relate to their White House function?
The question is how, if they...
how will they draw the line when they get if they get a chuck colson up there sure they wouldn't they wouldn't stop with those two or three questions in his deposition his counsel interposed and didn't let him answer those questions so he responded only to information relating to hunt that's right okay
Apparently Sam Irwin was going to give a speech this morning that they were heralding as a major statement on executive privilege, but I just got a notice back that he is not giving it.
So just to wipe out.
So if you do the same thing, just cancel it.
Okay, good.
Okay.
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