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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-fles, 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 Attorney 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 apparatchik8—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 es 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 GSÅ 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. 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.
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.
Our next witness is Mr. Mack Thompson representing the American Historical Association.
STATEMENT OF MACK THOMPSON, REPRESENTING THE AMERICAN
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
ing council of the association concluded 3 days of meetings, in the course of which the council approved my appearance here today. And I want to convey to you this morning the thanks of the council for your invitation to testify before the Congress on a subject which is of critical importance to the Nation.
Bill H.R. 16902 proposes the creation of a National Study Commission on Federal Records and Papers of Elected Officials to give careful study to the ownership, control, disposition, and preservation of records and documents produced by or on behalf of elected Federal officials and to develop appropriate legislation recommendations and other appropriate rules and procedures with respect to these matters. I am authorized by the council of the association to say that we support the general purpose of House bill 16902 because it clearly fosters the purposes of the association under its charter and constitution.
The question of ownership, preservation, and access to records and documents of elected Federal officials poses difficult problems with precedents and traditions lending weight to arguments on both sides. It has been convincingly argued that records prepared at public expense in the course of performance of official duties are public property. This position is supported by respected legal opinions that assert that no law permits public officials to transform official documents into private property or to transfer property that one does not own. Documents and records created by public officials for elected officials at Government expense are, according to this line of argument, public property. This position would seem to be supported by the decision of the U.S. court of appeals in the Rickover case-Public Affairs A880ciates v. Vice Admiral Hyman G. Rickover, 1960—which ruled that Admiral Rickover's speeches would have belonged to the Government had they been produced by Rickover "in the course of * * * duties" at Government expense,
On the other hand, adherents to the view that elected Federal officials have title to their official papers cite the time-honored tradition of Presidents and other public officials who have taken their papers when they left office and disposed of them as they desired. The Federal Records Act of 1950 and the Presidential Libraries Act of 1955 authorize the General Services Administration to accept gifts of Presidential papers for deposit in the National Archives or in Presidential libraries. This legislation appears to give a statutory basis to the treatment of official papers as private property since the acts mention "donors” and papers "belonging to a President and give statutory recognition to the right of a President to impose restrictions on the use of papers he has donated to a Presidential library.
Historians on both sides of the argument agree that the desired goal is that public officials create full documentation of their official activities, that this documentation be appropriately preserved and that scholars be allowed equal and full access to this record. Here the agreement ends. Proponents of the view that the records and documents of elected Federal officials should be treated as public records argue that in the absence of legislation to achieve this purpose, officials will be free to sell their records to the highest bidder, keep them secret, or destroy them. The September 6, 1974, agreement between Richard M. Nixon and General Services Administrator Authur Sampson which grants to Mr. Nixon the power to destroy the Presidential
tapes after September 1, 1979, has heightened fears that without appropriate legislation, the historical record will not be preserved.
Opponents of this view argue that legislation making such papers public will not have the desired effect, but rather that records may be destroyed before the National Archives or some other appropriate body gains control over them, or more likely, important records may never be created in the first place. Furthermore, separating public and private records, for example, the records that a President generates as head of his party—which are private from those he generates as President of the United States official-would create great difficulty. A determination that papers of elected officials were public property would create serious questions about the status of such papers that are currently held by libraries and archives or are in private hands. Any resolution of the question of ownership will also have to examine and propose guidlines for retention and accessibility of access.
The American Historical Association recognizes that there is no simple answer to these questions. A subject of such importance to scholars and the general public should not be hastily resolved, but requires a full and comprehensive study of the issues and the careful development of policies and procedures to implement policies relating to the records and documents of elected Federal officials. H.R. 16902 wisely seeks to give these matters the scrutiny they deserve. Of all the learned societies in the United States, the American Historical Association is the one most directly concerned with the issues this legislation addresses, and we are particularly pleased to support this bill which in its current draft provides for a representative of the AHA to serve on the National Study Commission.
With your permission, Congressman Brademas, I would like to respectfully request you to consider adding one or two other people. I realize that the size of the Commission could get out of control eventually, but I think there are two other constituencies of the United States that might well be represented here or at least you might well want to consider their inclusion.
One is the library community. I think the public and private library communities would have something of real value to contribute to a Commission of this kind.
Also, the Organization of American Historians. The membership of the American Historical Association includes historians studying all parts of the world. But the Organization of American Historians has in its membership persons whose primary interest is American history. That is an organization you might want to call on for assistance.
I would merely recommend that.
I have one or two final comments. When I first heard that your committee was going to hold hearings on this bill, I was very pleased because, as executive director of the American Historical Association, I have been active in precisely this type of activity.
Last Tuesday I was in New York making inquiries of foundations as to how we might get funds for a long-range study of this type. Recently there was a joint meeting of historical organizations and Herman Kahn, the assistant archivist of Yale University, has been asked to draft a statement which would lay down some guidelines for