action of public business during any period when such official holds elective office." All of these items would be subject to consideration under the provisions of the bill. The procedures set forth in the legislation authorizes the Administrator of the Gerenal Services Administration to make a determination, within 180 days after an elected official ceases to hold his or her position, as to what objects or materials held by the former official fall within the jurisdiction and provisions of the Public Documents Act. After this is done, one of three courses of action may follow. First, the former official may, within the 180-day period stipulated, designate an educational institution which he or she wishes to receive their public documents and materials. Providing the educational institution meets the act's understanding of that referral, the Administrator will follow this prescription. In addition to public or nonprofit private libraries, school, college, or university libraries might receive such public documents or materials. Presidential libraries, such as those now operated by the General Services Administration, are recognized here as "public" libraries, the only difference in arrangements being that a former President would not sort or otherwise retain any materials such as is presently done. In the absence of any specification of an educational institution to receive such documents and materials, the second course of action would automatically occur: the entire cache of items would be deposited at the National Archives. This does not, of course, preclude the possibility of a former President's materials being transferred at a later time to a Presidential library maintained by the General Services Administration. A third course of action possible under the bill is the return of some items to the former official. There is no reason to believe that every item obtained under the provisions of the Public Documents Act by the Administrator must be preserved. The professional archivists and historians of the National Archives and Records Service are extremely skilled in determining the materials worthy of retention. Anything which falls outside of this standard might be returned to the former official who generated it. The important factor is that, unlike present practice, it is a professional archivist who reviews virtually all of a former official's documents and materials and determines what is to be retained. There are details of administration which should be specified in the bill and not left to derivative regulations. The GSA may wish to have some statutory specification of the option to return material not worthy of retention to a former public official. No specification is made with regard to the manner in which sensitive material is to be administered. Items under a security classification or other legally authorized access restriction would be dealt with in accordance with current provisions of relevant law. We have a classification and declassification program which is applicable in such cases, and there is sufficient guidance available with regard to similar types of protected information such as trade secrets or financial data. A special problem may arise with regard to sensitive materials when a former official asks that certain papers be placed under a time seal to protect personal or professional reputations. At a time when we are particularly aware of privacy rights, it may be relevant and necessary to consider a manner in which this type of plea might be addressed either in a legislative provision or a derivative regulation. The urgency of this type of legislation is, of course, apparent each day as arrangements are made regarding the papers, tapes, and other materials of the Nixon Presidency. For the moment, the Nixon records remain under the joint control of the former Chief Executive and the General Services Administrator. I would urge that a version of H.R. 14939 quickly be enacted into law and applied to the materials of the Nixon era; section 5 of the bill specifically includes that period of time. The effects of the legislation would seem to be (1) no one other than archivists and specific Government personnel would engage in sorting or editing of this material, and (2) such a law would take precedence over the current agreement governing these items which allows the destruction of the famous tape recordings of White House conversations in 10 years. I do not share the opinion of the Attorney General that these materials are the personal property of Richard Nixon. It is my view that the destruction of these tapes would be the destruction of Government property. And it is my more specific view that any action to eliminate the tapes might well constitute a destruction of evidence on matters for which Richard Nixon has lately been given a Presidential pardon. Arthur S. Miller, professor of law at George Washington University, wrote a detailed analysis of the problem of ownership of the Nixon documents and materials which appeared on the Washington Post editorial page on September 21, 1974. I would like to submit that editorial for the record at this time. [The editorial follows:] [From the Washington Post, Sept. 21, 1974] (By Arthur S. Miller) WHO OWNS THE NIXON TAPES AND PAPERS? The question of who owns documents accumulated in the White House during a President's tenure has been thrown into sharp controversy by the "agreement" concluded between Richard Nixon and General Services Administrator Arthur Sampson. Two days before President Ford pardoned him, Mr. Nixon sent a letter to Mr. Sampson indicating that he desired "to donate to the United States at a future date, a substantial portion of my Presidential materials ..." In the letter Mr. Nixon flatly stated the materials, including tape recordings, were his "I retain all legal and equitable title to the Materials, including all literary property rights." Mr. Sampson agreed to the entire letter on Sept. 7, ceding to Nixon the power to destroy the tapes after Sept. 1, 1979. The letter purports to be a legal document, which binds both Mr. Nixon and Mr. Sampson (speaking for the government). Presumably, Mr. Sampson relied on an Attorney General's opinion sent to President Ford on Sept. 6, in which William Saxbe concluded Mr. Nixon was the owner of the "papers and other historical materials retained by the White House Office" during the Nixon administration. As is the custom with the "President's lawyers' lawyer," Mr. Saxbe found that a practice traceable to George Washington meant that the materials are "the property of former President Nixon." That conclusion seems more the result of reaching a desired decision than of a process of reasoning that could get by any middling competent law student. There are no Supreme Court decisions on this point. Nor is there any statute that expressly states that Presidents have legal title to White House documents. Mr. Saxbe relied on the Presidential Libraries Act of 1955 as a congressional "acknowledgement" of ownership by Presidents. But Congress did not say so; nor did it define what "presidential papers" are. The question of title to White House documents has never been examined by Congress. One federal court decision of modern vintage (Nichols v. United States, decided by the 10th Circuit Court of Appeals in 1972) holds that President Kennedy's executor could validly restrict access to X-rays and other materials of the Warren Commission, even though the materials were not owned by the Kennedy family. That case, not mentioned by Mr. Saxbe, does not recognize a property interest of Presidents in White House materials. It thus could not be used to justify the Saxbe conclusion. A proper analysis should begin with the Nixon-Sampson "agreement" itself. While Mr. Sampson had statutory authority to accept "papers and other historical materials" of a former President, nowhere is he given authority to agree to their destruction. Rather, 44 U.S. Code Sec. 2108 states in part that the GSA administrator, “in negotiating for the deposit of presidential historical materials, shall take steps to secure to the Government, as far as possible, the right to have continuous and permanent possession of the materials." The agreement about destruction thus is a legal nullity, for any public administrator has only the authority delegated to him by Congress. The extent of Mr. Sampson's power was to agree to restrictions as to the "use" of presidential materials. "Use" can hardly mean destruction. Anything that goes beyond the statutory language is, in legal parlance, ultra vires-and that is so whether or not, Mr. Nixon has title to the materials. Despite the Saxbe opinion, the question of legal title for Mr. Nixon is still very much an open question. Under the Constitution, Congress has express power to "make all needful rules and regulations respecting the . . . property belonging to the United States." The materials-files, papers, tapes, etc.-were produced by public money on public property by people paid with public funds and now rest in publicly owned files. To rely, as did the Aftorney General, on past practice to justify ownership by Richard Nixon is to put forth an untenable theory of law. Under that theory, whatever occurs for a period of time becomes part of American law simply by custom and usage. But can that be so, particularly with respect to presidential powers? The answer must be negative if one examines some analogous claims by Presidents about other powers. Several may be mentioned. President Nixon, both personally and through his minions in the Justice Department, maintained in 1973 that he had an unrestricted power to "impound" appropriated funds. Other than some flimsy statutory arguments, which do not hold up under scrutiny, the principal basis for the claim was past practice said to go back to President Jefferson. Federal judges disagree: Of the more than three dozen judicial opinions in impoundment cases in the last two years, the vast majority emphatically rejected the broad claim of presidential power. Presidents since at least the Hoover administration have engaged in wiretapping-with Nixon asserting an "inherent" power to do so without prior judicial approval. That claim was repudiated 8-0 by the Supreme Court in 1972. In like manner, extravagant claims about executive privilege have been made, again by Mr. Nixon or his cohorts and again based on a reading of history. The Supreme Court knocked back that claim of "absolute power" unanimously in July of this year. Both Presidents Johnson and Nixon asserted complete power to commit American troops to combat, under the "commander-in-chief" clause of the Constitution. Although the Supreme Court has consistently ducked that question, there can be little doubt that past practice would be rigidly examined and probably even rejected, should the Court ever rule on the merits. In 1952, President Truman seized the nation's steel mills during a strike. Among other arguments to justify the seizure, government lawyers cited a series of other seizures, including one in 1941 upheld by then Attorney General Robert Jackson. Jackson, as Associate Justice, saw the matter differently 11 years later, saying: "I do not regard it [the 1941 seizure] as a predecent for this, but even if I did I should not bind present judicial judgment with earlier partisan advocacy." (Italics added.) That, if nothing else, should put an effective quietus on the Saxbe opinion. Government lawyers, it should be remembered, are legal apparatchiks-paid to take orders. As President Andrew Jackson reportedly said when faced with an Attorney General who had doubts about Jackson's actions concerning deposits of U.S. funds: "Sir, you must find a law authorizing the act or I will appoint an Attorney General who will." Or, as Senator Sam Ervin often reminded executive branch lawyers, "We have had thievery and homicide for thousands of years but that does not make murder meritorious nor larcency legal." The Saxbe opinion and the Nixon-Sampson "agreement" as to ownership are at most interesting historical oddities without legal validity. But even so, that still does not definitively settle the question of legal title to "presidential" or "White House" materials. That could, and should, best be done by congressional action under its Article IV power over the property of the United States. Needed are two statutes. One, which should be enacted without delay, would vitiate the Nixon-Sampson "agreement" and place title where it belongs-in the government. If the former President contested that, a judicial ruling could then determine the question of legal title. Even if the courts ruled for Nixon, the papers and tapes could still be taken by eminent domain-provided, of course, that the constitutional requirement of "just compensation" was paid. It is highly doubtful that the courts would rule against an express congressional decision. Further, there need be no worry that it be held to be an ex post facto law and thus invalid. Since Calder v. Bull (1798), it has been settled that the ex post facto prohibition applies only to penal and criminal statutes. The second statute should be long-range. The Presidential Libraries Act should be amended to provide that all documents officially produced by or for a President or Vice President are the property of the United States. Custody could, as now, remain with the National Archivist. Perhaps more presidential libraries could be built, although a valid reason for them is hard to find-other than the quest for symbolic immortality by chief executives. Just before he left office, Lyndon Johnson "raided" the executive branch, gathered millions of documents-some say as many as 75 million-for deposit in the Johnson Library in Austin, Tex. How most of those documents can be called "presidential" is completely mysterious. It is time to halt such a practice, and the imbroglio over the Nixon tapes and files provides an unparalleled opportunity to do so. There are other relevant matters to be considered in formulating comprehensive legislation within this realm. For example, we assume the public documents which fall under the jurisdiction of this bill would be in the public domain. We must carefully evaluate, however, all materials which might hold a conflicting status, such as copyrighted material, to determine the proper final disposition. In conclusion, I wish to recommend this legislative proposal, the Public Documents Act of 1974, to my colleagues and ask their careful consideration of it. It will affect all of us who hold public office, and perhaps more important, it will remind us of the duties and obligations to the citizenry which we bear in exercising our public trust. Many of us will not wish to surrender our official papers. We have been led to believe for too long that they are our legacy for public service. It is time to recognize that view as false. Such materials are the legacy of the Nation; they belong to those whom we serve. It is time to establish this truth in law. Mr. BRADEMAS. Thank you very much. As I read your bill, you would give the Administrator of the GSA the power to make a determination 180 days after the official has left office as to what materials of that individual will be retained by the Government. Is that correct? Mr. LUKEN. Yes. Mr. BRADEMAS. I am troubled about that. Would it have been possible under your proposal for the GSA Administrator to have agreed to the kind of arrangement which President Ford announced on September 8 with respect to the Nixon materials? You give the GSA Administrator very few guidelines in your proposal. Mr. LUKEN. You are saying the guidelines are not sufficient? Mr. LUKEN. I think this agreement takes this position as to the papers on the basic assumption that they are not public property where, as the bill here sets forth, they are public property and the Administrator is only to determine the guidelines. I agree they should be enlarged as to what is public property. I think under this agreement the underlying concept is they are private property. Mr. BRADEMAS. Your legislation applies to elected officials only? Mr. LUKEN. Yes. Mr. BRADEMAS. Do you think appointed officials should be brought within the rubric of any bill which is written? Mr. LUKEN. I would say so. I just was not able to get to it and research it thoroughly enough to get to that point. I was thinking this was just the first step. Mr. BRADEMAS. Thank you very much. Mr. Jones. Mr. JONES. I have no questions. I thank Mr. Luken for being here. Mr. BRADEMAS. Mr. Koch? Mr. KOCH. I have no questions either, Mr. Chairman. I want to thank Mr. Luken for his legislation. You also have legislation concerning the Nixon tapes as well? Mr. LUKEN. Yes. It is in the pipeline. Mr. BRADEMAS. Thank you very much. Our next witness is Mr. Mack Thompson representing the American Historical Association. STATEMENT OF MACK THOMPSON, REPRESENTING THE AMERICAN HISTORICAL ASSOCIATION Mr. THOMPSON. Thank you very much, Mr. Chairman. I am very pleased to be here this morning. My pleasure was enhanced when I realized I would be preceded by people particularly able to delineate problems facing you in connection with this proposed legislation. My brief written comment took that into account and I would now like to read certain portions of my prepared statement and make a few extemporaneous comments, if I may. First, I think I shall note that the American Historical Association is the only learned society chartered by Congress. It was on January 4, 1889 that the Congress of the United States chartered the American Historical Association for "the promotion of historical studies, the collection and preservation of historical manuscripts, and for kindred purposes in the interest of American history, and of history in America." Since that time the association has maintained an active interest in the preservation and disposition of important Government records and in the rights of all historians to have access to these records and documents for scholarly research. The constitution of the association mandates that the AHA "encourage the collection and preservation of historical documents," "ensure equal access to information," and "foster the dissemination of information about historical records and research." Hearings on House bill 16902, and Congressman Brademas' invitation to testify were very timely. Only yesterday, Sunday, the govern |
