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 administration, 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.

To Reverend William Gordon.

VERPLANKS POINT, October 23, 1782.

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 accordance 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.

(The document follows:)

THE WHITE HOUSE, September 6, 1974.

TEXT OF A LEGAL OPINION BY THE ATTORNEY GENERAL

THE PRESIDENT,
The White House.

DEAR MR. PRESIDENT: You have requested my opinion concerning papers and other historical materials retained by the White House Office during the administration of former President Richard M. Nixon and now in the possession of the United States or its officials. Some such materials were left in the Executive Office Building or in the White House at the time of former President Nixon's departure; others had previously been deposited with the Administrator of General Services. You have inquired concerning the ownership of such materials and the obligations of the Government with respect to subpoenas and court orders addressed to the United States or its officials pertaining to them.

To conclude that such materials are not the property of former President Nixon would be to reverse what has apparently been the almost unvaried understanding of all three branches of the Government since the beginning of the Republic, and to call into question the practices of our Presidents since the earliest times. In Folsom v. Marsh, 9 F. Casc. 342 (No. 4901), 2 Story 100, 108-109 (C.C.D. Mass. 1841), Mr. Justice Story, while sitting in circuit, found that President Washington's letters, including his official correspondence,1 were his private property which he could bequeath, which his estate could alienate, and in which the purchaser could acquire a copyright. According to testimony of the Archivist of the United States in 1955, every President of the United States beginning with George Washhington regarded all the papers and historical materials which accumulated in the White House during his administration, whether of a private or official nature, as his own property. A classic exposition of this Presidential view was set forth by President Taft in a lecture presented several years after he had left the White House:

The office of the President is not a recording office. The vast amount of correspondence that goes through it, signed either by the President or his secretaries, does not become the property or a record of the government unless it goes on to the official files of the department to which it may be addressed. The President takes with him all the correspondence, original and copies, carried on during his administration. Taft, The Presidenncy 30-31 (1916). Past Congressional recognition of the President's title is evidenced by the various statutes providing for Government purchase of the official and private papers of many of our early Presidents, including Washington, Jefferson, Madison, Monroe and Jackson. See 1955 Hearings at 28, 39-42.

Even if there were no recent statutory sanction of Presidential ownership, a consistent history such as that described above might well be determinative. As the Supreme Court said in United States v. Midwest Oil Co., 236 U.S. 459 (1915):

[G]overnment is a practical affair intended for practical men. Both officers, law-makers and citizens naturally adjust themselves to any long

1 The official documents involved in the case were:

Letters addressed by Washington, as commander-in-chief, to the President of Congress.

Official letters to governors of States and speakers of legislative bodies.

Circular letters.

General orders.

Communications (official) addressed as President to his Cabinet.

Letter accepting the command of the army, on our expected war with France. 2 Story at 104-105. The clear holding on the property point (Id. at 108-09) is arguably converted to dictum by Justice Story's later indication, in connection with another issue, that copyright violation with respect to the official documents did not have to be established in order to maintain the suit. (Id. at 114).

2 Statement of Dr. Wayne C. Grover. Archivist of the United States, during the House Hearings on the Joint Resolution of August 12, 1955, 69 Stat. 695. To provide for the acceptance and maintenance of Presidential libraries and for other purposes (now codified in 44 U.S.C. 2101. 2107 and 2108; hereinafter referred to as the "Presidential Libraries Act"). Hearing before a Special Subcommittee of the Committee on Government Operations. House of Representatives. 84th Cong.. 1st Sess., on H.J. Res. 330, H.J. Res. 331, and H.J. Res. 332 (hereafter referred to as "1955 Hearings"), pp. 28, 45.

41-660 O-74-4

continued action of the Executive Department-on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle but the basis of a wise and quieting rule that in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself-even when the validity of the practice is the subject of investigation. Id, at 472-73.

[W]hile no

express authority has been granted [by Congress], there is nothing in the nature of the power exercised which prevents Congress from granting it by implication just as could be done by any other owner of property under similar conditions. Id. at 474.

Moreover, with respect to the practice at issue here, there is recent statutory sanction. The 1955 Presidential Libraries Act, which serves as the permanent basis of the Presidential Library system, constitutes clear legislative acknowledgement that a President has title to all the documents and historical maaterials-whether personal or official-which accumulate in the White House Office during his incumbency. The Federal Records Act of 1950, 64 Stat. 587, which was the predecessor of the Presidential Libraries Act, authorized the Administrator of General Services to accept for deposit "the personal papers and other personal historical documentary materials of the present President of the United States." Section 507 (e), 64 Stat. 588. The word "personal" might have been read as intended to distinguish between the private and official papers of the President. The corresponding provision of the current law, however, 44 U.S.C. 2107(1), avoids the ambiguity. It envisions the President's deposit of all Presidential materials, not only personal ones. During the House debate on the Presidential Libraries Act, Congressman Moss, who was in charge of the bill, expressly stated:

Four. Finally, it should be remembered that Presidential papers belong to the President, and that they have increased tremendously in volume in the past 25 or 30 years. It is no longer possible for a President to take his papers home with him and care for them properly. It is no accident that the last three Presidents-Hoover, F. D. Roosevelt, and Harry Trumanhave had to make special provisions through the means of the presidential library to take care of their papers. 101 Cong. Rec. 9935 (1955).

The legislative history of the Act reflects no disagreement with this position on the part of any member of the Congress. The hearings before a Special Subcommittee of the House Committee on Government Operations indicate congressional awareness of the Act's assumption that all Presidential papers are the private property of the President. 1955 Hearings at 12, 20, 28, 32, 52, 54, 58. A recent discussion concerning ownership of Presidential materials appears in the report prepared by the staff of the Joint Committee on Internal Revenue Taxation involving the examination of President Nixon's tax returns. H. Rept. 93-966, 93d Cong., 2d Sess. (1974). The report points to the practice of Presidents since Washington of treating their papers, both private and official, as their personal property; and to the congressional ratification of the practice in the 1955 library legislation. It concludes that "the historical precedents taken together with the provisions set forth in the Presidential Libraries Act, suggest that the papers of President Nixon are considered his personal property rather than public property." Id. at 28-29.

An apparent obstacle to Presidential ownership of all White House materials is Artcile II, section 1, clause 7 of the Constitution, which provides :

"The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them." But objection based upon this provision is circular in its reasoning, except insofar as it applies to the blank typing paper and materials upon which the Presi dential records are inscribed. For the records themselves are given to the Presi dent as an "emolument" only if one assumes that they are not the property of the President from the very moment of their creation. As for the blank typing

3 Compare Section 507 (e) with Section 507 (a), dealing with the records of an agency. A memorandum prepared in the Office of the Assistant Solicitor General (now Office of Legal Counsel on July 24, 1951 indicated that such a distinction between private and official Presidential papers would be inconsistent with historic precedents, and difficult if not impossible to maintain. It accordingly regarded the Records Act's use of the term "personal" as intended merely to exclude the permanent files of the Chief Executive Clerk discussed at page 12 below.

paper and materials, which are of course of negligible value, they can be regarded as consumables, like electricity or telephone service, provided for the conduct of Presidential business. In any event, the Constitutional provision can simply not be interpreted in such a fashion as to preclude the conferral of anything of value, beyond his salary, upon the President. An eminent authority on the subject states the following:

As a matter of fact the President enjoys many more "emoluments" from the United States than the "compensation" which he receives "at stated times" at least, what most people would reckon to be emoluments. Corwin, The President 348 N. 53.

He gives as examples of such additional emoluments provided by the Congress the use of personal secretaries and the right to reside in the White House. Id at 348-49.

Another obstacle to Presidential ownership of the materials in question is their character as public documents, often secret and sometimes necessary for the continued operation of government. However, without speaking to the desirability of the established property rule (and there is pending in the Congress legislation which would apparently alter it-S. 2951, 93d Cong., 2d Sess., a bill "[t]o provide for public ownership of certain documents of elected officials"), it must be conceded that accommodation of such concerns can be achieved whether or not ownership of the materials in question rests with the former President. Historically, there has been consistent acknowledgement that Presidential materials are peculiarly affected by a public interest which may justify subjecting the absolute ownership rights of the ex-President to certain limitations directly related to the character of the documents as records of government activity. Thus, in Folsom v. Marsh, supra, Mr. Justice Story stated the following:

In respect to official letters, addressed to the government, or any of its departments, by public officers, so far as the right of the government extends, from principles of public policy, to withhold them from publication, or to give them publicly, there may be a just ground of distinction. It may be doubtful, whether any public officer is at liberty to publish them, at least, in the same age, when secrecy may be required by the public exigencies, without the sanction of the government. On the other hand, from the nature of the public service, or the character of the documents, embracing historical, military, or diplomatic information, it may be the right, and even the duty, of the government, to give them publicity, even against the will of the writers. 2 Story at 113.

That portion of the Criminal Code dealing with the transmission or loss of national security information, 18 U.S.C. § 793, obviously applies to Presidential papers even when they are within the possession of the former President. Upon the death of Franklin D. Roosevelt during the closing months of World War II, with full acceptance of the traditional view that all White House papers belonged to the President and devolved to his estate, some of the papers dealing with prosecution of the War (the so-called "Map Room Papers") were retained by President Truman under a theory of “protective custody" until December 1946 Matter of Roosevelt, 190 Misc. 341, 344, 73 N.Y.S. 821, 825 (Sur. Ct. 1947); Eighth Annual Report of the Archivist of the United States as to the Franklin D. Roosevelt Library (1947) p. 1. Thus, regardless of whether this is the best way to approach the problem, precedent demonstrates that the governmental interests arising because of the peculiar nature of these materials (notably, any need to protect national security information and any need for continued use of certain documents in the process of government) can be protected in full conformity with the theory of ownership on the part of the ex-President.

Because the principle of Presidential ownership of White House materials has been acknowledged by all three branches of the Government from the earliest times; because that principle does not violate any provision of the Constitution or contravene any existing statute; and because that principle is not inconsistent with adequate protection of the interests of the United States; I conclude that the papers and materials in question were the property of Richard M. Nixon when his term of office ended. Any inference that the former President abandoned his ownership of the materials he left in the White House and the Executive Office Building is eliminated by a memorandum to the White House staff from Jerry H. Jones, Special Assistant to President Nixon, dated the day of his resignation, asserting that "the files of the White House Office belong to the President in whose Administration they were accumulated," and setting forth instructions