Four years ago in May, I searched for Leonard Garment, who died yesterday. I found him living a mile from NYU. I wanted to interview him for an article about a lawyer's responsibility for real evidence, in this case evidence of a possible crime. Richard Nixon's White House Tapes. There were never and will likely never be a legally more consequential piece of real evidence in U.S. history.
What kind of advice did Nixon get?
There had already been some reporting on the question but I had more questions. Garment told Nixon he could not destroy the tapes, relying on Judge Weinfeld's 1956 opinion in U.S. v. Solow. Others thought he could because no subpeona had yet issued, although it was apparent that one would be. (P.S. It is remarkable to me that the legal options offered Nixon depended on two lawyers working in the White House's own incomplete law library.)
Edward Bennett Williams later remarked that Nixon should have burned the tapes on the White House lawn, falsely citing national security.
In his riveting autobiography, Crazy Rhythm, Garment wrote that, law aside, Nixon probably could have destroyed the tapes and avoided impeachment. Nixon, not Ford, would then have chosen the Justice who replaced Douglas in 1975. It would not have been Stevens.
Nixon told the Times years later that the idea that he could not destroy the tapes was the "cock-eyed notion" of "well-intentioned lawyers." (I think Garment was right on the law then and today, with more obstruction statutes, would be even more right.)
In any event, Garment told me that Nixon would not have destroyed the tapes even if he could. They were "financially priceless" and they established his place in history. He also told me that it would not have been possible to do. No one would have helped him. White House aides, current and former, were already under investigation and there were some indictments. Nixon would have had to do it alone.
And, he said, they were the "old acetate real-to-real tapes," near to impossible for Nixon alone to lug outside an burn. It would have made a great photo op, though.