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of the nature of the legislative jurisdiction of this subcommittee, I would only voice my strong disagreement with that agreement. If one looks at what the other body is doing, both Senators and Representatives, Republican and Democrats, are overwhelmingly opposed to that provision regarding the destruction of materials which the former President said himself, by way of defending the practice of taping, had been carried out for historical purposes.
The other night on television I recaīl having seen a documentary on World War II. Having seen some films of the burning of books in Ğermany by the Nazis, instantly there came to my mind the offense against history which I believe the agreement announced on September 6 represents.
I want to express my own very strong view that Congress can abrogate this agreement. At the same time I believe it is essential we establish a Commission of the type that we are discussing, to study the whole spectrum of problems that are posed by the matter of the disposition of records and tapes of Federal officials which over the long run, are complex and so varied.
I have just a couple of other questions before I yield to my colleagues, Dr. Rhoads, in your statement you said you felt it necessary to have a clear charter. Would you elaborate on that?
Dr. Rhoads. For the Commission to be productive and arrive at well reasoned conclusions in the time set forth in the bill, it is essential that early in the life of the Commission, perhaps almost as an initial step, it define as clearly as it can the various matters it should look into.
In my prepared statement I tried to suggest what I thought some of those matters were; there may very well be others. I make no claim that I have laid out the complete charter for the Commission, but perhaps I have suggested some of the matters which should be taken up.
Mr. BRADEMAS. How much money, in your view Dr. Rhoads, do you think the Commission would require to perform this work and report to the President and Congress no later than December 31, 1975?
Dr. RHOADS. I must confess I have not given that matter any careful thought. It seems to me the quality of the staff is, of course, more important than the sie of the staff. It would seem to me that perhaps a good staff of approximately 10 people, with the right kind of background and experience might be sufficient, and I would
imagine that would price out to something like $200,000 or $250,000. Those are just ball park figures.
Mr. BRADEMAS. I would be very grateful if later on we could consult with you again to get a more specific judgment.
Dr. Rhoads. We will give that some serious thought in anticipation of that, Mr. Chairman.
Mr. BRADEMAS. I have many other questions but we have other witnesses so I will yield to my colleague from Tennessee, Mr. Jones.
Mr. JONES. I have no question at this time but I appreciate the fact he has been here to testify on this subject which is of great importance.
I yield the balance of my time to you, Mr. Chairman.
Mr. Koch. I was struck by your basic argument. You make the major point that the person involved has to be protected from public scrutiny in this sense. That is to say, he might run again. You point out that others have run after leaving the Presidency. That is one of the
points of view, to protect this individual. But that is another view you had not touched upon. If he were not to be protected, you would destroy the papers ?
Dr. RHOADS. An official might destroy sensitive portions of his files or else he might not create or retain such documentation from the outset.
Mr. Koch. I am very much interested in legislation which relates to right of privacy so one cannot always see the dossiers as kept on individuals. There is a privacy bill which hopefully might come to the floor before we go into recess. I am very supportive of the position that these documents should be made available notwithstanding the problems raised and, hopefully, the commission will find a way to deal with them because they are legitimate problems.
The chairman pointed out this bill will not assist us in connection with the Presidency, involving the former President.
The Judiciary Committee had a meeting as to what to do with the former President's papers. That was by way of background. I wanted to ask if you have a point of view on it. Is the agreement entered into by, I guess GSA, with the former President, is that agreement in your judgment binding since the destruction of papers? As I have read the legislation covering the disposition of Government papers, there was nothing in any legislation that I am aware of which permits the destruction of papers.
The agreement with former President Nixon did permit this. Do you have any comment on that?
Dr. Rhoads. First of all, I might say I am not a lawyer but when I read the agreement for the first time, I must confess this question had occurred to me also.
I think that is a matter for persons other than me to make a final determination on.
Mr. Koch. I yield back my time to the chairman. Mr. BRADEMAS. Thank you. If I am not mistaken, the agreement regarding former President Nixon's tapes and other materials would simply not permit a destruction of those materials, rather there is a stipulation requiring the destruction of those materials.
Dr. RHOADS. That is correct.
Mr. BRADEMAS. This requirement of the destruction of the materials seems to me to be so outrageous on its face that I am very gratified that the National Historical Publications Commission, in the resolution which you quoted, called for remedial action with respect to this requirement.
I may seem too tough on that matter by making a comparison of the burning of books by the Nazis but I am also reminded of the Soviet Union. Every time the Soviet encyclopedia came out, they rewrote it according to the views of the person who had been in charge of history. That was against all reasoning of common decency.
I do hope you will allow us to consult with you further as we consider this legislation.
Dr. Rhoads. Thank you.
Mr. BRADEMAS. Our next witness is the distinguished Jonathan Bingham, who has introduced legislation on this subject.
STATEMENT OF HON. JONATHAN BINGHAM, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW YORK
Mr. BINGHAM. Thank you, Mr. Chairman. I would like to commend you for holding these hearings on what as you have pointed out is a most important matter.
If I may, I would like to read the prepared statement with some interpolations as I go along.
The September 6, 1974, agreement on the disposition of Presidential papers between former President Richard Nixon and Mr. Arthur Sampson, Administrator of the General Services Administration, is an appalling abuse of historical precedent. It must not be allowed to take effect. I commend you and your subcommittee for the priority consideration you are giving to this urgent matter.
This agreement rests on a mushy foundation of tradition, not law. It presumes that Presidential papers, documents, and tapes are the personal property of the President during whose tenure of office they are produced. The agreement therefore proposes to maintain these materials in the custody of the Federal Government at a storage facility near Mr. Nixon's home in California, while giving him complete control of access to the materials, and the right to withdraw and destroy any and all papers after 3 years, and tape recordings after 5 years.
As you pointed out, the tapes would all be destroyed if Mr. Nixon should die before the 5-year period had elapsed. While the right of access to the materials through court subpena is specified in the agreement, no provision is made for third party supervision, which could allow the former President to make undisputed claims that certain subpenaed evidence simply does not exist.
Since the former president can certainly be expected to resist any court subpena for these materials, there is a clear and present danger that this agreement may be the final act of coverup in the Watergate affair. It could well prevent the full story of the Nixon administration's violations of the law and the Constitution from full disclosure, leaving history and the American people with an incomplete understanding of the traumatic events of the last few years and the lessons they must teach. Worse still, since that limited understanding is based on a record that is replete with gaps and unanswered questions, it is quite possible that Richard Nixon will resurrect his claims of innocence in the years ahead and appeal to those who believe he was driven from office by partisan furies and the news media.
In these circumstances, I do not believe the Nation should meekly sacrifice the national interest in completing the investigation of Richard Nixon's administration because of historical precedents under which former Presidents have been allowed to retain their papers.
I have introduced legislation which has been referred to the Committee on House Administration, and perhaps which would establish by statute that the official papers of all Federal elected officials are the property of the American people.
It would require the Administrator of General Services to obtain all public documents of Presidents, Vice Presidents, Senators and Members of the House within 180 days after they cease to hold office, whereupon these documents would be deposited in the National Archives of the United States.
Public documents are defined as books, correspondence, documents, papers, pamphlets, models, pictures, photographs, plats, maps, films, motion pictures, sound recordings, and other objects or materials which shall have been retained by an individual holding elective office under the United States and which were prepared for or originated by such individual in connection with the transaction of public business.
I am convinced that there is ample justification for establishing by statute the principle of public ownership of elected officials' documents. These materials have been prepared by people on Government payrolls, on Government time, with Government materials, pursuant to Government business. These materials are clearly part of the official history of the United States and should not be subject to the risks of loss or destruction if placed in private hands. The Library of Congress has the papers of 23 former Presidents, none of which are complete, often because prior custodians destroyed portions of them. Attorney General Saxbe's opinion on the question of ownership leans heavily on the largely unchallenged practice of prior Presidents who have taken their
papers with them on leaving the White House. It is important to note, however, that many Presidents have immediately deposited their papers with the Library of Congress. Moreover, the tradition of private ownership began with George Washington who apparently took his papers with him principally because the Government had no place to store them at the time. The Library of Congress did not exist in the early days of the Republic, so Washington retained his papers, acknowledging that they were "a species of public property sacred in my hands."
Mr. Chairman, I would like to say at that point I think one of the things the commission would recommend is just what George Washington did. I was interested in what Dr. Rhoads had to say on the subject of Washington's position. There is also a question as to the significance of Washington's reference to "a species of public property, sacred in my hands".
I first learned of this quote that I have used, the "species of public property, sacred in my hands,” from a statement by Senator Mansfield. It turned out he was quoting the Christian Science Monitor. I now find the quote is authentic, but it appears in a letter written to Rev. William Gordon on October 23, 1782, before Washington became President. He was writing as Commander in Chief, not as President.
(The letter referred to follows:) DISCOVERY OF A GEORGE WASHINGTON LETTER ON PUBLIC OWNERSHIP OF OFFICIAL
DOCUMENTS (By M. B. Schnapper, editor of Public Affairs Press) George Washington considered his papers "a species of Public property, sacred in my hands." He said just that in a letter dated October 23, 1782, to Rev. William Gordon.
The text of the lettter (see attached copy) appears in Volume 25 of "The Writings of George Washington”, a work issued by the Government Printing Office in 1938.
Although his letter doesn't completely scotch the myth that official documents have traditionally been considered the private property of outgoing Presidents, it raises some serious questions about the credibility of the statement by Attorney General Saxbe released by the White House on September 7, 1974. In that statement Mr. Saxbe advised President Ford that Mr. Nixon was in effect free to sell,
conceal, or destroy White House tapes and documents because "every President of the United States beginning with George Washington regarded all the papers and historical materials which accumulated in the White House during his ádministration, whether of a private or official nature, as his own property."
George Washington never stated that he considered any official documents his private property. He did retain copies or originals of some official documents at the end of his Presidency, but other papers were left in the archives of the State Department.
Section 3 of the Constitution's fourth article gives Congress sole "power to ... make all needful rules and regulations respecting ... property belonging to the United States.” Congress has never enacted a law sanctioning the personal ownership of official documents by Presidents or ex-Presidents. On September 30, 1974, the House Committee on Printing and Documents will hold hearings on a bill about this matter introduced by Rep. John Brademas last Thursday.
VERPLANKS Point, October 23, 1782. To Reverend William Gordon.
DEAR SIR: I have been honored with your favor of the 2d. Instt. and thank you for the extract of Mr. Adams's letter.
I never was among the sanguine ones, consequently shall be less disappointed than People of that description, if our Warfare should continue. From hence (it being the opinion of some Men that our expectations have an accoraance with our wishes) it may be infered that mine are for a prolongation of the War. But maugre this doctrine, and the opinion of others that a continuation of the War till the Powers of Congress, our political systems, and general form of Government are better established, I can say, with much truth, that there is not a Man in America that more Fervently wishes for Peace, and a return to private life than I do. Nor will any man go back to the rural and domestick enjoyments of it with more Heart felt pleasure than I shall. It is painful to me therefore to accompany this declaration with an opinion that while the present King can maintain the influence of his Crown, and extort Men and Money from his Subjects, so long will the principles by which he is governed push him on in his present wild career. The late change in his Ministry is an evidence of this; and other changes which I suspect will soon take place, will convince us, I fear, of the falacy of our hopes.
It appears to me impracticable for the best Historiographer living, to write a full and correct history of the present revolution who has not free access to the Archives of Congress, those of Individual States, the Papers of the Commander in Chief, and Commanding Officers of separate departments. Mine, while the War continues, I consider as a species of Public property, sacred in my hands; and of little Service to any Historian who has not that general information which is only to be derived with exactitude from the sources I have mentioned. When Congress then shall open their registers, and say it is proper for the Servants of the public to do so, it will give me much pleasure to afford all the Aid to your labors and laudable undertaking which my Papers can give; 'till one of those periods arrive I do not think myself justified in suffering an inspection of, and any extracts to be taken from my Records.
You will please to accept my sincere and grateful thanks for the kind wishes, and generous Sentiments you express for me. My best respects to Mrs. Gordon. I am etc.
Mr. BINGHAM. Not only is the historical precedent for private ownership of Presidential papers a dubious one, it has never been incorporated in public law.
Attorney General Saxbe, in his opinion, refers to congressional “recognition," "sanction,” and “assumption” of this principle, but nowhere is there a law (much less a provision in the Constitution) which declares that Presidents or other elected officials own the papers and documents they produce while in office.
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