PRESIDENTS AND THEIR PAPERS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP93B01194R001200140001-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 28
• Document Creation Date: December 20, 2016
• Document Release Date: January 9, 2008
• Sequence Number: 1
• Publication Date: December 1, 1983
• Content Type: PAPER

Approved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
'43.3?? i i~~~ ~f Le'vr~rl 1 ~ar~i>7twd irl ~OLi. fur?trra}_.
~flpyrsc~klt ~c7 ~iclrles~t'~:;~ k~aw ~e~rle~! 39$3,
r~i'i'rrrr~e~cr~.'a i'atu ~tev it~ra
~lecember~ 39kx3
~r3 ~1.r~C1. t.. ,, ReY. tfC1~3
LF ~Ik~.T 3~ . 3. a ~,.~,.~ ~laa r wt.s.
A~TICi.~.: F~re~;idx~rtt a.rr~~ ''heir #~~=~~~twr.s. ~
?~ Tsll~: sta~~er I~ 3.tased ctrl tale atlttlc-s?'~., ~zllllam ~?u k_o~`4t~lart 1_e~:.tt.lre ds~3lvered
C~rwi~tzt~~~r fh~ ~S~~Z.- at_ t.i7p ~Jl1i'~prsii~~r t~f 4~4i?1r~e5rata s_a,~ Br,Ft+~r.~Z.
~a~ ~~?"+f,r~.r ri?I!?C?~t?I?t ..,l,?.rt~.~,, rtrl3 t5.''Gl ~*~~tLS t?.~i.{,-r'~ ~,tf ~.~?~,t#'~'t ~ ~~tt? t~iR ~t~~.tr i C~t ~tI"
Or~7.um4~ia i:irct~it.
T~'XT:
I ~T#~O:OLt~:T I tlhl.
I~arl~d :!~? tki~' t:~rlyd t1e~?a.de t.~f '~~SL' rllnt~teectttl Gerltltr'y.~ ~ tw??'rlt~t-flVe~-~~~r-ct~.d
Fr>:.>r~cl?7 mac~i~'~rdter A:~exis d~ Tac;t~t.~evilie, came 'ta the k.lniLpd 9ta'tes on ;art
ot=f=lclal rs4:t55lcl~l tL1 ex~lmirlE' Its ~lri5crrl fac?II.itles. NI5 pI,15~rv~3'~:tC-tl5 Of fllir
5!?CI.F'r,lr {'2r~7~levEC'r ranked ~didely ~tt''yC]t7d 1111.5 Zi~titerl pt,~rp~se, CRrfli>Yinatirtr.~ itl 3$35
wItl1 the ~~s.lkl~.Ira't:Il:~n ctf I13ti ~l~crkN Demc~cr~ary In Amerlr..a, n3 stI1.1 er~n~.Ide~rQd a
r~~E/f~r.~~, i~t1tl IIt''1"r~'L1"atirlt~ z3Cfa7.V525 t7f t41e 5tr~'11r~thS atld -~Jea4{i1e55Wti CJf Qtr!" ~v5fem l:1f
gc~'v~f~r'rlmer~tt'k As to I'i:~: t~eakrle.s5esw rlcttEllrst~ Tc1t~t~t~evll~le said c-c~rltlrrr.~ed t:.t:t kae mare
flert?.nen#: t:l~art these word,t;:
rt??, ~,. ~~ "C~1r(~t..1~:~}il?1_.~:; fi~:.~fE~E'F+ACY ?~1. ~!yi~RIOA (C;. Lawrence trans. 19~~,) ?
~'Trt Amerl.r;a,, t1 r:! rlri~.>I 17trt.i'~er5 atrnr.~~w ~rrta.t.:. wa=~ dr.~rre i:reFur~: Eris t:.i.~e. 1+fu metf~c~r~
ir, ~tt1~: zn his wi.3.lr tJaSi~in.gtc-n Elevised hi.s paraers
ttl his t1rr'pi~ew..r fit.#~".`e!t'.?~ Cr~t.:r`t 3!.lSt:lCf? FSL15}lrild !~?a5hinetorr. nt'r
rt7> 8r"e Eet~man~ The i:.vol-atiran .and Valt.te ctf Presidential EwiCtrarip5~ in THfr
PRE xIDEN~.:`r' Af~D I.~lFOi~MATIt1Ai POiYICY 8Ct t}~i. Re:t.~ea ed. 19A1 l .
.,4Eastice ktasE7in~tun prr3ved unthinkingl.~? n,eneroEas in providinE, access t!~ thaw
~3~er.s. i-iis l,~ck of d7.54;rr%'tiflt't in ti't15 regal^d reSE~ltt7d iri ?wi.des4{lread di.5,oerSal..
ctf the tapers, !:s t7 m4,lCh 4L'ty indesd~ tYl~t ml~ch csf "the pl1i3.~iC`5 heritage ended
LE~`(1 c ~u~ ~~~~c ~ ~ ~~~~c rur~
\ A roved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2 ~)A(I
pp
 Approved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
tc) 1~innesota l..aw t~~7viewr D~~cemttt/rr 19,3
tip in pri.va't:t~ hands>" n9 h}t.~st [tf what remained in Jttstic;e Washins~ton'S hands __.
mainly official records -- were sold in 183?G b?~ his nerrhew and heir, ~;r~?t:srgt?
(;t~rtzin Wasttin~ta.n a, tr! the Ifni ted States government for ~~S ,fJgG7. n1 q ~ i fteen
ut?ar~5 laterr Cr~nc~ress r~ur?cha.sed the .late President`s remainirtr~ ,ariv~ate? ,r~a~rers
frcfim the same satkrce for ~1q;:ggq. r711
n4E). I[~. For a disctt.ssion ~,f President Washington's treatment Qf his papers ;.
.see McDannugh, Hnxie ~ ~.lacrths, Whu t3wns Presidential Paf~ers?, 23 MANUSCRIPTS 2
n11. t:ermanY supra note 7s at 81.
to making these purchases r, Congress apparently assumed that the papers were
;nri~tatel;i owned. United States Presidents follawi~~ Washington Shared that
vi~~w~ r~emt:~ving their papers either upon tlepartirtt~ from the White Huuse nr
immediatel.;a thereafter. n12 Congress strengt}~ened this assuttt~tion dv ctur?chasit3~
additional presitfential, papers fram their "owners.." Casually Presidents' heirs.
n12. See Fridley,. Shotald Ptablic Papers Be Private Property?,. ~t4 MINk`f. taI5T.
3~ (1974).
n13. Iti. For example.. the tatalk of Thomas Jefferson`s papers were purchased in
188 dv the De,rrartment of State from the President `s executer, 'fhamaa Jeffersorr
Rarrdalp}'t Y. far ~2q.;.gOC1. Congress appropriated tG2llfClgq to ptarchase James hionroe's
~a~ers ir; 18?/9. Dcil~.;v hiadi,~on, James Madi.san's t~airiaw, Bald a ,rrartinn csf his
papers tt~ the Department of State in 187 for ~ZS.,ggq ar-d a second installment
1.n 1848 for t!'te ~a??t~ amount. xirShCln, The r~o~~,r :Acce55ltil.lltV and F11.~storv of
P res i den .t i al Papers .. 1 Gf~V' T PUEsL I CRT I OWS RSV . 363, 3~8-79 (1974) .
The assum~rtion of ;arivate ea~ataership made the collection and ,areservation of
pre~ider-tial records a difficult task. Fur example.;. one hundred seperate
acquisitions caet^e made in the cotarsr_ of the government's efforts to acr~taire the
scattered haldinr~s of the papers of Rndrew Jackson. n14 Furthermore., the private
rwnership concept Presented a rea:I. threat to the physical inteyrit}r of these
invaluakz3e records. Mast of William Henry }iarrisan's papers went t.ap in flames
when the Harrisart hoasse irx North Dend, rJhiop accidentally darned dawn. n15 The
fprtunes pf war accounted for a sut~statial loss of Jahn Tyler`s papers when
Rich~raazd, ~~irgixtia, +,JaS darned in 1865. n16
n14. E~errman, supra note ?* at 81.
n15. Id.
r?16. Ic}~
Same ~t>~esidential papers -~ere destroyed on ~-tar~pose rather than by acs:ident.
n1? Fraa~~.l.in Piea~ce a,a,aarently destra;ued the ,t:ra,t:ter.s fram his four years in
affit;e. n18 Shortly aefnre his deaths Chester R. ~+rthur ordered the hulk of his
official and personal. pagers dtarrted. r~19 Mrs. tJarren G. Ftardiny attem~rted to
de~~troy all.. of her husband`s c~rrrespandence;. thatar~,h her efforts were not
entirely staccessftal. n2q Rodert Todd t.in~ccsl.n aaas catt~ht destra~~inr~ his father`s
Ci'v'il War t:arrespandence. n21
~ c 1V~~~lIC / ~~~11C iuc
L~~~~I \ A roved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
~~A~I
pp
 Approved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
Sc) h?innesota Law Review; December, 1933
n1?. I am indebted to Pau7?, T. Heffran~ Assistant Chief of the Library of
Cangressp t~arruSCript Divisionp for clarification of 5a~re Of th8 d~'tails ~r"!
presidential de5trtlctlon Cif records arld for information wl'tkr respect to the
Library's acgliisitians in this area.
n18. Ier`marl~. str~ra Hate 7.r at ~~.
n19. Hi rshan p sttypra rrote 1 .s p at ~~' ~"} .
n2t], E;ermarr;~ .str~tra nt~te '?,. at S1.
rr21. Id. ,4rr heir^ of President ~tashingtan was more well-rrleanir~g i~ only
slightly :l~3ss destrur.tive:
I am rrr.`~w cutting tap fragments Pram r_zld letters ~ accutrnts, same of 1760.
to supply the raZ3. f~rr Any thing that bears the im~rress of his venerated hand.
one of my. correspondents says send me urrly ?khe dot of an i ar the crass of a t~
made by kris hand p ~ I w i 11 be Carr tent .
Letter from George Waskring~ton Parke Curtis to ,~uhn Pickett tApr. 17.. 1857) q,
quoted in Ihll)EX TO THE GEORGE dJASHING'TON PAPER5 kVi 11964) .
The attitude taken by nineteen?tkr-cents:ry P!~r*sidents rec;,arding oaanership of
pre~,iderttial gapers is n~s~here better illustrated ti'rari by Grover Cleveland's
respgnse to a Serrate request for an executive file: .
I rr?r~ard the ,pacers arZd doctr~rer'rts aaitkrheld and addressed to me or intended
for my rase and actiar~. purely unofficial and private, nut infrequently
confidential, and kraving refer~ertce to the ,performance of a dut;.~ e~clusivrw:?1.y
urine. , I suppose if I desired to take them int>:r my custody I might dq sa
taith ent_ir?e ,prapr~ietyp and if I saw fit to destro;r thertr no one cr~uld ccr~rplain.
n2,~
n22. t_e?tter from President Graver Cleveland ?tu tt?re i~r7ted States Senate (hfar.
1 : 1880 p reprinted ire 8 ~ COf~PILATIOii QF THE NtE55AG.E5 A~lD t~APERS OF THE
PREGIDEIVT':~t 1"1~'?-1~i~7w at 3~8 t,J. ~E3chardson ed. 19L~Q),
An additional hindrance to the callectian and ,preservation of ,presidential
{gapers was the absence of an ap~rropriate official depasitgry. Presidents who
might have been inclined to leave their ,pa,oers to the public were dissuaded from
dr:ri ng so by the lack of any des igrrated e:ullect i on site . ~' or example, P res idea t
Denjamin Harrisgnp bequeathing his gapers to his wife, said i.rr his will that hr=~
ktat'.) intended to keep his papers intact and ultimately available fur historical
research, but there wasp a5 he pint itp "na suitable place or organization .
now available hare." n23
nib. MILLS Of THE U.S. PRESIDEhtTS 153 tH. Collins ~ Lr? heaver eds, 1976).
This perceived difficulty was greatly rrritigated in 1897 by tyre eetablishmerrt
cf the Mantascript Division crf the Library of Congress. nZ?4 The Nanuscr?ipt
Division ,presea~tl,i embraces a significant portion of the ,capers of twenty-three
Pr?esidentsK from George Washfnr~ton to Calvin Caalid~~,e. n15 't'hese papers have
Cgme into the government`s pas:,es5ian both by purchase and by gift, Tkreodare
RC~rssevelt and his heirs deposited papers with this facility, a5 did William
Howard Taft and his family. nZ6 hir^s. ~~lc~crdr^crw Wilson dar~ated her t;~t~sbarrd's
LE)`' c ru~~~~ic ~ ~~~~~c roc
A~~\ A roved For Release 2008/01/09 .CIA-RDP93B01194R001200140001 2
pp ~~~~~
 Approved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
fc} t~innes.ota Law Review; December, 1983
papers ~tta thre Manuscript Division fifteen years after his death. n27
n?~4. McBanough, Haxie & Jacobs, .supra Hate 10, at 5.
n25. DermanK stapr?a nt'ate 7g at 92.
n26. Hirshon, supra Hate 13, at 396.
n27. gee FINA:. REPORT OF TtiE hlATI4NAL STUDY C(~MMI55IOt~l ON RECORDS AND
D#?CUMEtdTS ~1F FEDERAL OFFICIALS 13 t1~77} Chereinafter cited as FINAL REPORTI;
Hi rshon, stapra note 13, at ;386.
The private o~rters~hip principle, hawever~ has impaired the campl,eteness of
these collections and their accessibility tv the public. Presidents Dave
asserted ?khEir? pat~rer taf t~~cnership to select and to limit access to the papers
actually deaasited. When Calvin Coolidge returned to private life in 129, he
have to the Manuscript Division a lame number of his papers, but his widow and
his Se'CrE'tar;P Subsegztently admitti"~d that President COllid~e had Yl3luntai"ily
destroyed many papers before delivery. r-28 Woodrow G}ilsan`s papers could Hat be
seen without his ~aidow'S consent urttil I~er? death in 1861, n29 and ttae papers of
~erf.~c]min 4~arri5an artd William Howard Taft also Were cirCUmscrlbed by ~
requirement of priar? family permission u~~til. 19.45 and 1953, respectivel,;~. n3Q
Presider-~t t_incaln`s papers were not opened until. 1'~4?~ eighty-two years after
his death. n31
n28. F DIAL RE#~ORT, supra note 27, at 13.
n2~3. Id.
n3?. It~.~ Hirshon, st.apra note 13., at 385.
n31. Hirshan, supra note 13, at 383.
8 . THE DEVELOPMENT QF PRES I DE1V'T I A!. L I BRAR I E5
The ~rresidential library U5#9et"ed in a nedd era in the care of ,presidential
pavers. Franklin D. Raasevelt Was the first tt7 e5tdbli5fi Such a libraryg n32
and his example was later followed by his predecessor, Herbert Hoover. rt33 Eae.h
President thereafter has sought to establish a presidential library and; With
the exce,otian of Presidents Nixon and Carter, n3~t eact'a Haw has such a library.
n32. See infra text accompanyincl Hates 3R-4D.
n33. "The? Hoover Presidential t_ibrarv was established at West DrancFr, Iowa .
FEartdS ti3 erect the building were provided tag The Hooter Birthplace
Foundation." Hir?shan, supra t'tgte 13, at 397.
n34. Ncawever~ plans have been made grid sites selected far the Carter library
in Atlanta, feargia, see N.Y. Times, July 16, 1982, at B?4, col. 5, and the Nixon
library in San Clemente, California, see N.Y. Times} May 28} 1~t83~ at A6s cal.
1.
The presidential library has taeen a response by latter day incumbents raf the
office Hat only to the itttportance of preserving our historical. heritage, but
al~~u to ~tt're sheer magnitude of the materials involved. This increase in
c Luc ~~~~c ~ r ~~~ic Luc
LE).~Cl\ A roved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
.~,.(/
pp
 Approved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
tc) Minnesota Laaa Review; Decerrrberr X983
materials mirrors the enormous increase this cerrtur~f has seen in ttre scape of
the functions rf the Executive Branch, President Gram's staff r~u~rtiered six
per?sons* with an anrtual budget of ~13,80Q~ as recently as President Caolidge's
times ar~7.v for^t;r-six ~reor~le a~lortt~ed ir3trttediately far the Pr^esiderrt, on a trud~et of
~'3~.3,5gQ. n35 The Execrative Office of the President, created in 1939, has car.rsed
an er;oa^mous ~r?~rwth of th~* Presidency h;r ~lacirrg rlut~erau5 agencies under the
President's direct power. n36 ~y 1971 its staff was in excess of S;~gOO persons..
acrd i n fiscal 1973 its budget ex deeded X664, OQC1, t7C10 . r737
n35. tit tCALL~,N~~ACH, THE AMERICAN. rH1EF EXECfJTIVE 444?-41 (1966) ,
n36. Exec. Order No. 824$, 3 C.F.R. 576 t1938~-43 camp,). Tl~e order set up
fhw EX?Ct,,?ti`,re 4}tfzce ~f the Prc~ydnrtt~ ~twfteri G!?,tth Sly 3d":.'?'i5tr^~~riye
;~ssistar}ts, The t'res?idei?}t made the CriJCia? ~deci.~i?arr ?t?~ .trar`;?SFar .the? Li l,r'e31~ of
trre Rudge~t from the Treasr.iry to the Executive Office where it rapidly grew to
become the "general staff" to the entire executive branch. See W. GaLt1SMITH,
TtiE GROWTH OF PREaIDF'NTIAL POWER 1532-33 (1974). Strbsegr.~ently~ key as~encie5
sr,rc~ as the Cor~se collections have generated r.apon federal archi~ral res~o~rrc~~s are almost
intolerable, mandating separate facilities for their indi~rid;,al admirsistration.
n3~. FINAL REPOR7", supra note ~?~ at 14.
Orr President Roosevelt's initiative, ~ ,point congressional resolrrrticsn irr 19;~~'
n.~i3 ar~thr3rized the United ~tatBS Archivist to receive Roosevelt`s papers} as
hell a5 related historical materials donated b}t other persons. Under t~'rE'
resolrartian~ these materials Caere to be adt}}inistered in a building tq be erected
t3:.th ~rrivate funds crn 5ixt'een acres of land Ro~tsevelt dor'iated from kris H;4rde Park
estate, n4U Ry the Presidential Libraries Act of 1955} n41 4:r:rngresa at~tktr~rized
similar dispositions #!f 43tkfer'' Presidents' papers.
n39. tea, U.Res. 11$? 5~3 Stat. 147~a2 41`33'3) .
n4D. 8e rman, sr,rpr"a note ~, at 8,3.
n41. P~sb. L. S~tr, 373 6~a Stat. E>95 4codified as amended at 44 Lr.S.C. x?13
2143-214J8 41976) } W
The e:stabliskzment csf presidential libraries, however had no effect on the
r~uestinn of private ownership of presidential materials. Roosevelt's transfer^
of papers to his library was viewed as a gift. n42 The Presidential Libraries
Act only provided for acceptance of any papers a President voluntarily chose to
leave with the United States ArchiYi5t~ sr,Jtl~ject ttr any restrictions the
President deemed appropriate; it did not establish Qovernment ownership of the
materials. n43 Thuss the assumptir~n that Presidents own their personal papers
~~ \ A roved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
pp ~~~~I
 Approved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
tcJ P~ini~esa'ta Law Review; December, 1993
was oat change by this statute} nor was it to change for another twenty-three
years. n44
n4~. Id. !~lpG. ,.tones, however} n-~ted that "Roosevelt made his mast significant
departure . b}~ recognizing the paramount right of the public and try
sut:rt~rdina'tinc~ this private claim to public ettstody, supports and management
under the direction of civil servants governed b;~ professional Standards. This
. fell. short of the natural and logical goal. Dut it was a long,
unprecedented step forward that na president thenceforth would be likely ?ta
d i S repo rd . " H. G ~ ,.tt)N~S s 1't~E RECtIRDS 4F A NAT I ON 147 t 14f~9) .
n43. See 44 U.S.C. 5 2107 t1976). The Act allowed the President to leave his
dac.raments +~+ith ttse united 5?tates Archivis't~ it did not rectuire that the
documents be turned aver,
n44, This is not to Say that the assumption of presidential ownershi~a had
previously Bane unquestioned. indeed, in 19b9 a study of the American
Historical Association called the notinri "a lingering vestige of the attributes
of monarchy, not an appropriate ar~ compatible concept . far the head of a
demacr;~tic; state." Fridley supra note 12~ at 37. Earlier conclusions to the
same effect are set out in Coak, Private Papers of Public Officials, 3g AM.
ARL:.HIVIS'T 3gfl-D1 t147S?.
Ii. CONGRESSIgNAL EXAMINATIUI~ rJF PRIVATE QWN~RSHIP
A. PRESIDENTIAL RECt3RDI~IGS AND MATERIALS PRESERVATION ACT
When President Richard Nixon resigned an August 4, 1974, he avowedly
intended to tape with him the over 4L1,t7DCi,Opq pages of documents and 88f3 tape
r~t~carding,s he had acctrmt~lated while in office. n4S Gover~nmer~t archivists even
began to collect these materials and pack them for shipment to a government
facility near his t;.alifornia home. When the Watergate Special Prosecutor
expressed his continuing need For these materials, however, the rtew ford
administration, after negotiations with ,lodge Sirica, the ,~~ustice Department,
and the Special p~?asecutor, ordered preparations, for shipment of the dacuments~
stepped. n46 Simultaneously President Ford asked for his Attorney General's
opinion as to the ownership of these materials. Attorney General Saxbe?
responded that the practice of former Pr?esidents~ and the absence of any statute
to the contf"aru, generally 5tipparted ownership by the President. n47
n45, Gee FINAL REPt1RT, supra note 27, at ~.
n47. 4;~ Op. Att'y Gen. No. 1 t5ept. 6, 1974).
Thereafter, on September 7, 1'474, General Services Administr~atar Arthur F.
Sampson entered into an agreement with t~ir. Nixon under which the ex-President
retained "all legal and equitable title? to the materials, which were to be
"deposited ?tempararily" near the Nixon home in Californiay but in an "existina~
fac:i.lity belonging to the United S'tates." n49 The agreement stated Mr. Nixan's
intention 'to "donate" the materials to the United States, sub;feet to
:'appropriate restrictions. ? n49 Na acre was to have access to the materia~.s,
except Mr. Nixon and the United States Archivist upon Nixon `s authorization. nSfl
Mr. Nixon agreed "oat to withdraw Fram deposit any originals of the Materials"
LEA: c ru~~~~~c ~ ~ ~~~~c uc
CI,
A roved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2 ~~A~~
pp
 Approved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
Ec} Minnesota Law Review; December, 19c~3
for? a period of three years, after which he could exercise ?the right to
withdraw from deposit without formality any ar all of the Materials and to
rsrt:ain . Cthem~ far any purpose." n51
n4II. Letter of Agreement Between Farmer~ President Nixon and the Administrator
ctf General Services 7p YIEEKLY CORP. PRFS. DOG. 1104 11014 (Sept. 8, 1974}.
nSCI. Id. It does Hat appear that the Archivist played any rate in the
ne.gcatiatian of the agreement, and he apparer-rtly had 1'ra advance knowledge of it.
See id, a't 11Q4-OS.
The agreement made special provision for tha tape recordings; they were to be
donated to the lJnited States "effective September 1, 1979." n52 In the meantimr=r,
the- recorclirrgs were to remain deposited with Nixan's papers, although only Mr.
Nixon tar persan5 he authorized} was to have access t0 then(. n53 Of critical
importance was a provision that, after September 1~ 1974x "the Administrator
shall destroy such tapes as CMr. Nixon? may direct" and in any event the tapes
"s!'iall be rlestrayed at the time of CMr. Nixan's] death rar an September 1, 1984,
whichever event sha11 first occur." n54 TFte tapes were otherwise Hat to be
witP-drawrsg and reproduction of ?:hem could be made only by "mutual agreement."
nay
nSZ. ~d.
rt53 . T d . at 11 #~4-E~5 .
rr54, I ~? . at 11014.
n55. Id. at 110]5.
Cangres,sianal reaction to the public: announcement of this agreement was as
speedy as it was emphatic. t~ithin teri days a bill was introduced which was
deK~igned;, amar~g rather things to abrogate the sa--called Nixon-Sampson agreement.
n56 legislative actiar~r an the bill was complete by December 9, 1874, artd it was
signed irt~tr~ law by President Far?d ten days later, n57
n56. See S. RFP. NO. 1181, 93d Cang., Zd Sess. E19~4}r S. RGP. NO. 11t~z, '~3d
Cang., 2d 'Bess. (19741. Far a discussion of the legislative history of the
bill, see Nixon v. Richey, 513 E'.2d 4301, 439-445 ED. C. Cil^, 1975}.
n57. Presidential Recordings and Materials Preservation Act, Pub. L. Na.
93-526, 8B Stat. 1695-5'4, 17(]1 Ecodified as amended at 44 IJ.S.C. 6~ 2107 Hate,
3315-3324 (19761}. The statute is divided into two titles; title I, 44 U.S.C. ~
21(;17 note, addresses the disposal of the Nixon presidential papersy title II, 44
t1.a.C. I~~ 3315-3324, establishes the N.a'tianal Study Commission on Records and
Documents of Federal Officials.
The statute was called the Presidential Recordings and Materials Preservatian
Act. n53 Title I, specifically aimed at Mr. Nixarr, directed tine Administrator of
Grxneral Services, na~twithstanding any agreement ar law to the cantrary~ to seize
and retain pcrssessictn of the tape recordings and the other documentary
L ~ c ru~~~~ic ~ ~~~~~c rum
~~~~~\ A roved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
pp ^~~~I
 Approved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
tc) Minnesota L.aw Re'wiew; December, 1933
materials accumulated dtaring the Nixan administration. n59 These materials were
not to be destr?oved except as might later be provided by law. n6Q Subject to
applicable defenses ar privileges, these dactaments were to be available in
response to subpoena ar other legal process, with priority accorded to the
Watergate Special Prosecutor. n61 Mr. Nixan, ar his designee, was to have
access to the documents for? any pur,pase consistent with the Act. n62 The
Administrator's immediate task under the Act was to isstae regtrlatian5 covering
these matters, and, mast im~aortant, to screen the materials to determine which
were official and which were personal. Thane determined to be personal were to
be returned to Mr. Nixan. rr63 f:ongres5ianal approval of these initial
regulatic~rrs was not required.
n53. 44 ki.S.C. ~? 2107 Hate, 3375-3324 11976?.
n59. Prr~siderrtial Recordings and Materials Preser~ratian Act ~ 109 ; 44 k1.S.C.
~ 2107 note f 19'76) .
n60. Id. ~ 3~32fa).
n61 . Id. ~
102 fbl .
n62. Id. ~
102fC) .
n63. Td. ~
104fa)f7).
kinder the terms of the Act} eventual public access try any materials the
Administrator permanentl}- retained was to be governed by regulations ~rcrmulgated
by the Administrator. ra64 These proposed regulations were to be submitted
initially to f:anr~res5 where either the House or the Senate catald, by resalutiara
within ninety days, disapprove them, n65 in formulating such regulations, the
Act directed the Administrator to take into account seven enumerated factors.
n64. :fd. ~ 1g4fa).
n65. Id. ~ 1ki4fb) f1); see infra Hate 11~.
n66. Bec'kian 1f~4fa) of the Act set out the factors:
f1) the need to provide the ptablic with the full truth, at the earlier t
reasonable dates of the abuses of gaveJrnmental power popularly identified under
the generic term Watergate' ;
fZ) thF' raced to make such recordirrgs and materials available for use in
jtdicial proceedings;
f3) the need to prevent general access except in accordance with appropriate
prc-cedure5 established for use ire judicial proceedings, to information relating
to the 1~atian's security;
f4) the need 'ka protect every individual`s right to a fair and impartial
trzal;
t5) the need to protect any party`s opportunity to assert any legally ar
cranstitutionally based right ar privilege which would prevent ar atherwirt~
LE)`' c ~u~~~~ic ~ ~ ~~~:i xon n87 -- the famous ~Ei xon tapes case -- the Cattrt had
r~etagriized the existence of such a privilege, but held that the privilege=?
yielded ~fi:e:i the n~*eds of the judicial branch. n8~ to the instant case} however,
t1r. Nixon Was a55erting the priVi.I.ege against the Ekete~tlve Earanth itself,
insi5tin~ that any breach in this case Would "adversely affect the ability e3f
future presidents to obtain the Candid advice necessary far effective
de~;isiorimaE{ing." n89 Once again, the Court theaught it significant that neither
President Ford nor President Carter had supported ter. Nixan's claim. i19Q
Corrceivin~ that it was dealing only Witty "the bare claim that the mere screening
of the materials by the archivists Will impermissibly interfere With candid
te:~mmunir~ation of views by Presidential advisers t" n91 the Court found the
question easy to resolve. Remarking that Mr. Mixon had not "called into
gttelstian the District Court`s finding that the archivists' 'record far
distretiarc ire handling confidential materials is unblemished,"' n92 and finding
adepuate ;jtt~;tificati~ans for "this limited intrusion irate executive
confidentiality," n93 the Court concluded that the Act an its face did n[it
virilate presidential privilege, n94
1786. Id. at 446.
n87. 41 B U.S. 683. ~ 1974) .
n8s. Ia. at ~~~.
c ru~~~~~c ~ ~~~ See supra text accompanying note 6'~.
r1~1. 433 U.S. at 451.
n~Z. xd. at 451-52 tqugting ritixon V. Administr?atgr of Gen. SerVS., 4018 F.
Sapp. 321, 347 tD.D.e. 19767 tthree-judge Caurtl).
np3. Id. at 452.
n~4. Id. at 45~r.
h4r. t~ti xl~n fqunded his third challenge r,~pgn the fundamental, rights of
expression and privacy guaranteed by the first, fourth, and fifth amerrdmerrts to
ttre 4Jnite~! 'hates Oarrs~itution; although he admittedly surrendered some ~rrivacy
wHen he entered public life, He argued t11at his private and personal matters
urrrel.ated trr his official duties deserved prgtection. n~5 Tyre Court pginted out,
However, trrat a principal purpose of the screening process, as directed by
Ct~rrgress irr the ,4et~ was to identify acrd to return to Mr. ~tixcrn any such
persatlal items. r1~& conceding tai Dixon a legitimate expectatio~l Qf privacy in
His perSCrnal Ci3mrrS4trriC3tl#lnS4 tyre Dcrurt neVertHeleSS Con~:lltded;
The cr~rsstztutao~al~ty of the ~4ct must be V3ewekl zn the context of tyre l~mated
intrusion of the screening process, of [ter. ~lixon`sl status as a public figure
ttf tri5 lack of any expectation of {privacy in the gVerwhelmirrg majority of the
materials, . and Of the virtual impassibility of segregatirlg thG small
q!lantity of private materials witHout co~mpretlensive Screening. n97
TtreSe Cir~?lam.stanCeSs wHen Considered together wit~'r the Vital public plirr~oses
animating ~Cingres5 t0 legl,5late as It did, prolrtpted the Court tt7 find Nixan's
privacy claim witHout merit. n~8
Nixon derived His for.~rth contention frr~m His pgsition as head ref a national
political party, which Had necessitated His devoting a 5igrlificant a1xCrllrrt of His
working time during His presidency to partisan political matters. rr99
Consequently, He argued that since his papers included records relating to these
political activities, any archival 5creeninq would necessarily invade rights of
a5sociational privacy and political 5peecil protected by the first amendment.
n 1 tt0
!n the t:ourt's View, however, this Claim was to be measured by the
inescapable fact tHat "110 leS$ restrictive way tHan archival screering has,
~,~Cl,
A roved For Release 2008/01/09 : CIA RDP93B01194R001200140001-2 ~~~~~
pp
 Approved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
fC) Min11e5ota t_aw REView; >7ecember, 19$3
besen Suclr~ested as a means fur identification of materials to be returned to CfEr.
Nixon]." n101 'tile Court character'~ized the extent of any ,such ~rurden on ter. Nixon
are "5pectala'tiYe" in YleW of the Act'S protections against improper public
discla5lares gild provision for judicial review; in any event, any bul^den coos
qu'tWeighed by the important ggYernmental interests t#IE ACt adVanCed. rt102
More'G1Ver, the CCturt Was not intpres5ed by Mr. Nixon `~, c011cern for the ACt `~
irtfribitirrg effect on the political activity of future Presidents, which he
Claimed would thereby reduce the quantity and diversity of the political. Speech
an~1 association 'the nation would receive from its lEaders. n103 The Court
d1.5m1.55ed 51JCh CCinCerri with the single C0111ment that It had not de"erred
President ford from giving his approval to the law tar President Carter from
defEnding it in court. n1D4
n1 q1. id. at 46'7.
n102. 7d. at 467-68.
ri 103. I d . a t ?468 .
n1CJ4. Id. See stapra Hates 817, ~tC#, and accompanying text.
trir. Nixon `5 last Constitutional contention was that the Act con5tittated a
bill, of attainder and therefore fell within the proscription in article I,
section 9 of the Constitution against any law that legiSlatiYely determi-res
guilt and imposes punishment upon an identifiable individual without a ,judicial.
trill. 11105 MI^. Nixon submitted that CongreS5 had acted an the premlSE that he
had engaged in "misconduct," was an "unreliable Custodian" of his own papers
and was deserving of a "le,giSlative judgment of blameworthiness." n1D6 This
arr~tament Was in some respects similar to the et~taal protection Claim he had
raised tanStaCCeSSfully in the district court but which, although inCltadeti in thc~
jtarisdiCtional statement, was Hat pressed in the Supreme Court. n107 The Stapr`eme
Court expressly Voted this Similarity by saying that "[h]owever expansive the
pr~3hibitiC3r1 against bills of attainder, it Surely was not irstEnded to serve a5 a
Variant of the Egta81 protection doctrine, InYalidating eYery Act of C~angre55 or
the states that legislatively burdens some persons a5 groups blot not all other
plausible individuals." n108 In partiCtalar, the district court had earlier
ctancluded that article I, section 4 does not limit Congress "to the Choice of
legislating for the universe, or legislating only benefits, or not legislating
at all." ri109
n105. Article t provides: "No 13111 of Attainder . shall be passed. .
U.S. CONST. art. I, ? ~, cl. 3.
n1Qb. 433 U.S. at 4b8 (emphasis deleted),
n107. See Nixon v. Adntini5trator of Gen. Servs., 408 ~.Supp. 321, 3+59-71
fB.D.C. 1~7b) (three-;fudge Court); 45 U.5.k..W. ;31776 tU.S. ,Italy 27, 1976)
(questions presented).
n1Ct8. 433 U.S, at 471 (footnotes omitted).
n1fl9. Id.
The 5ta~7reme Court found a number of reasons jtastifying Congress`s decision 'to
limit the At;t'S immediate reach to President i~iixon'S papers. first, t~nly
LE `' c ru~~~~~c ~ ~~~~~c Luc
~~~I\ A roved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
.~.-C/
pp
 Approved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
tc) MinneSOta Law Review; 8ecember?, 1983
tPrcrse papers needed immediate attention, since the papers of all farmer
PreSident5 From F#oove~~ to Johnson were reposing in presidential Z.ibrarie~~.
Furthermore, Congress had Special -?- and ample ,-~- reason to be concerned about
the preservation of the Nixon materials because he alone had entered iirta an
agreement wtriCh, by its terms, called for the destruction ctf some of them. "In
short," said the Court, "tMr. Nixon] constituted a legitimate class of nne,"
thr:>reby jirstlfying C~rngre55'S decision "to proceed with dlSpatCh with re$pect tCt
his m~terial5 while accepting the status of his predecessors' papers and
ordering the further et~n5ideration of generalized standards 'to govern his
successors." n11Ci Alternatively, the Court held that. the Act's commitment of the
Nixon materials to the c{r5tody af, arrd to screening by, t~crvernment archivists
pending further regulations governing public? access did not constitute an
inflictis~rr crf pirnistrr>,ent wit#~irr tyre ct~rrStitir:,ia~n?a1 ,;~~~s~;~a.;4~rY?a-, ~f r~.l?s, u_f
.at~tair:de:^. ni ? 9
n91'3. iii. at, !~~.
n111. ?'d.
~ . Ni x swn v.. F ree~:an
:fin ~ece~;~er 1w, 9977, the General ,eruace.s Ad:tltr.xwtrat~an a;:nac~nCed that
regulations governing public access to the Mixon p~~esidential srateria;.s ts3d
firrall;+ became effective after several earlier prwp:~sed regulations were
rejected. n112 5hortl;~ thereafter, !~ir. Nixon Sued the Administrator in ttse
y?nited States IIistriCt Court for ttte I~istriCt of Coltambia to im:alidate certain
r3f tine regulations. n113 Tine court granted defendant-intsrven~r Status to tt;e
?epr~rters Cam~;ittee far Fre~edam of 'the Press, the A!?~eriC3n Flistarical
!:SSOCZa? iwn, tf're Amer.Can Pali t:Cal SC:.enCC A.~.MQClati'Qn, and a numbeM of
inr~ividt:al. jcw~rnalistl and wr,:holars. n19 tin Febr'uarx 14, 1~??~, after prclan~,ed
settlement negotiations, an agree~;rent was reached :~hiCh called f^r amendments ?t:~
fire reg:~la?Giarrs and, ir, additic~;;, diseased of all bt.t two of h4r. Nixon's
Challenges. n915 The agreemer~t also provided that neither Side wai:ld rely on the
Act?'s one-HQUSe vets prQUisian to argue either' far Qr against thQ
con5tit;.~ticrnalit;. of the regulations. rr11~ The revised regulatiana rescalting
from tt:F ~gC'e~'l~:t?n't became ~ffeCtitee, wi'tt3Qilt ,retQ Fj~~ eit~ser !-!QLISe, Gn ~~rCt1 ~?,
1 gta0? n117
n912. See ~+~ ~'ed. F?eg. ;~3,62~ t1?771 tcadified as amended at !1 C.F.P.. ~
1t,~~.~3 t1q$~)~~ Supra notes 53-55, 66, and aCCampan,~ing text,
n913. See Nixon v. Freeman, 57{~ F.2d 34u, 3rg_8G tD.C. Cir, 1'?8'??, cert.
denied, 103 u. Ct, ~.~.~ t1?S?~. 'the district court opinion was not repr~rted.
rr914. See id. at 349.
n915. See id. at 344-5Q.
rr995. See id, at 350 n.5, Officiall wYre; .ser4{ed ~rnder presideCtt Nixon,
however, did Challenge the regulations as uncanstit~;tianal because' of the?
an?-Hawse veto prQVision. t!n ~eCemt:er 3i~, 9493, reLler'31 ~iltrict t;aur`t "~wge
Thomas F?, t?agan held the regulati;~ns invalid because the Presidential Re?co;~dinys
and t'!': terial5 Preser~.ation ACt of 9974 under wrrict: t?t:e}r were pro~:itlgated
aLrtt;Qrized eitk~er? hai~le of Cor,Mress to veto them. ^llen v. Carmen, P!Q, 83_3paca
ft1.II,C. :.sec. 3n, 9983. JL:dg~ Wagon's r;.ling was based Qn tha Supreme Ca~~wrt',
c ru~~~~ic ~ ~~~~~c rum
LE).-(/.
A roved For Release 2008/01/09 .CIA-RDP93B01194R001200140001 2 ~)~~I
pp
 Approved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
yy {{ tt~~ y F ~r,l Mlnnesota 1r3W f(?+ye,,'1 ~i.(e~l~tt ~ecemi;e r, 1 q^}~1'x q ~,,
veva.~.rlr~ir s.kX r~iri3ir 1. ~i.C+ eta.. ri~Qr 1~: .1 ~~~'v Y~? 1~ilui.i3 iirS ~:.}x ~. ~~. i~b~L f }~}~r~..~ p iii ~.c >. ~~~~~c ruc
~,.C/.
A roved For Release 2008/01/09 .CIA-RDP93B01194R001200140001 2 ~)A(I
pp
 Approved For Release 2008/01/09 :CIA-RDP93B01194R001200140001-2
(c) i~lnne5nta LaW ReYiew; December, 1983
tape reYeal,ed it to be a diary the review ulcauld proceed no further. Un
occasion, however, the archiYists might find it necessary to listen longer in
r~rder to be sure of their determination, mindful always that the regulations
i?equired the taking of all reasonable steps "tn minimize the degree of ir~tru5ion
into priYate or personal materials." n125
n125. 41 C.F.R. ~ 105.b3.401~2ta) t1983i.
Nnt persEladed that the district court had erred in holding for the
government, the court of appeals affirmed, in an opinion issued in February
1gF~2, n12b The Stt~rreme Gourt denied certiorari. n127 Presumably} now that the
legal questions hate been resolved, the final processing of these materials can
gn fnrwartl to completion in accnrdans:e with the Act. n128
n12b. Nixon v, Freeman, 670 F.2d 346 ff~.C. Cir. 1982), cert. denied, 9013 5.
Ct . 445 ?1 ~$2) .
n128. 1` or a discttssinn of the corrtintrinq attempts to block release of the
documents, See Supra note 116.
IIT. ~lt1i7ICIAL 1rXAhtINATI4N QF PRIVATB OWNERSHIP
The question of the legal owner"ship of pre5ide~~tial documents, howeYe r,
regains in limbo, a legal question which fnr lack of cnrytrollinq ;#udiGial
authority has remained unresnlYed Since the beginning of the Republic. T'he
re:x.evant rva5es are, at best, tangential iri their impact. In 184# ~ Supreme Court
Justice ,.rn5eph Story, sitting on a federal circuit court, upheld the validity of
a eopyrigh~t nn official letters George Washington had written while he was
President. n129 These were the Same ~.etters that b7a5hingtnn had bequeathed to
hip nephew,. Justice 8ushrnd Washington, and that Congress had later purchased --
5even years before the copyright case arose. n130 1efore Congress bought the
letters, F~nweYer, Chief Justice NarShall and Jared Sparks had acquired an
interest in the letters and Sparks had published atwelve-volume work reprinting
many of circuit court's decision held only that Spark's cnpyric~ht in the work
barred private parties from pirating the materials fnr sale; although this
established that t~ashington initially had one farm of ownership of his official
papers, the court further held that this was not an ownership right that could
be c355er'ted against the goYerriment. n132 Cnrli~res5 cnllld publish tk'le papers nYer
the copyright holder's Ob,~eCt10r1, Story Said, or could require that the
dSr'iS~EJmentS be kept Secret if cirGUmStance5 required. n133
n129. FnlSam v. Harsh, ~ F. Cas. 342 tC.C.D. h1a55. 1841) ~Na. 4,9t71).
n13t1. !gee supra antes 8-1 E7 and acc~nmparrying text.
n131 , t~arshal3. was allowed to use the original papers from 18Q4 tQ 18i?7,
w1'~ile atri'k:ing his i_ife of Ger~rcle Wastringtnn, WaShinc~tnn's nephew gate ,.eared
Sparks, editor of the lVorttr American Reaiew, permission to use eight boxes of
the forme r Presiderrt'S papers to help Sparks prepare 7'he Writings of George
Washington, published in 1858. 'Thane eight boxes remained in Spa rks's
pt~5.sess#on fnr the next ten years. Kerman, supra note 7, at 81.
LE ~ c >~>~ ~~~1