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a study of this whole question of the disposition of papers of federally elected officials.
I merely want to say that to emphasize the interest of historians and scholars throughout the country in the question your bill addresses itself to.
Thank you, Mr. Brademas.
You indicated in the last sentence of your statement your pleasure at the fact that the bill, H.R. 16902, does provide for a representative of the American Historical Association to serve on the proposed Commission. In the event the bill is enacted, would the AĦA be in a position to make the kind of commitment called for! Mr. THOMPSON. In terms of personnel, yes.
I have discussed this with my council. We have, as you might expect, a process for producing candidates for a position of this type. We feel so strongly about this that I can guarantee you would get a prompt recommendation of a competent person.
Mr. BRADEMAS. You have indicated in your statement that you have just come from a meeting of the AHA. Given the circumstances that triggered the hearings we are having here today and actions of both the House and Senate, I wonder if the AHA has taken a position with respect to the agreement announced on September 8 by President Ford ?
You will perhaps recall that Dr. Rhoads, at my request, read into the record the text of the resolution which, on the 20th of September, the National Historical Publications Commission adopted. Has any action in respect to that agreement been taken by the AHA!
Mr. THOMPSON. You are talking now about the disposition of the President's papers?
Mr. BRADEMAS. Of Mr. Nixon's papers.
Mr. THOMPSON. Our position is there should be a hold on the disposition of those papers until either legislation or court decision can make a more decent decision.
We feel very strongly on that question and we are prepared to join other learned societies in litigation which would result in a restraining order as to disposition of those papers. I am not talking about the private versus public ownership. That is another matter. but I can speak with confidence on the council's view on the issue of preservation.
Mr. BRADEMAS. I am pleased to hear you say that.
Mr. BRADEMAS. Mr. Koch?
Mr. BRADEMAS. The Chair would like to state that the final witness we have scheduled, J. Frank Cook, has been delayed in arriving in Washington.
However, the Chair will insert into the record at this point Mr. Cook's statement and a paper he will deliver before the Society of American Archeologists on October 1, 1974. Mr. Cook's paper is entitled “Private Papers of Public Officials: an Analysis of the Archivist's dilemma.”
[The documents follow:]
SUMMARY STATEMENT J. Frank Cook, Director of University of Wisconsin Archives, Madison, Wis. consin 53706 Council Member, Society of American Archivists; Vice President, Midwest Archives Conference.
The fundamental issue before this committee is the right of ownership to the documents produced by public officials in the performance of their duties.
In the absence of any clear statutes on the subject, a haphazard system of public and private ownership of presidential records has developed.
Presidents since George Washington have treated their papers as private property. But Washington, himself, regarded his papers as a "species of Public property, sacred in my hands" and he retained control of their disposition because there was no appropriate public depository. Each president since Franklin Roosevelt has donated his papers to a presidential library. This system has made magnificent contributions to historical scholarship, but it has failed to resolve the fundamental question of ownership.
The recent disclosures about the disposition of ex-President Nixon's papers shows how critical the issue is. Unless the Government retains these papers and tape recordings, the judicial process will be violated and the public may never know all the facts about that Watergate-stained administration.
Prominent legal scholars including Gerhard Casper, professor of constitutional law at the University of Chicago Law School; Raoul Berger, Senior Fellow of American Legal History at Harvard Law School; and Alexander Bickel, professor of constitutional history at Yale Law School, have all questioned the traditional assumptions. In Casper's phrase, it is a "curious and dubious practice. Just because it's been done for 200 years doesn't make it legal."
It is my conviction that all records produced by any public official for public purposes at public expense are clearly the property of the United States. Even in a monarchy, the crown jewels belong to the realm and not the ruler. Legislation clearly requiring public officials to turn over their papers to the National Archives and Records Service or some other publicly controlled archives would resolve the basic question in the public interest and avoid the prolonged litigation which might result if the issue were forced into the courts without clear legislative intent. To insure compliance, the legislation must include penalties such as a large fine and/or barring from future public office.
Even after the public's ownership is clearly established, problems will remain, particularly in the area of confidentiality of sensitive information or matters related to the genuine security of the nation. Archives preserve inactive records. Therefore papers need not be deposited until the official has left office. In addition, it is possible to restrict access to portions of the papers if necessary. The validity of a request for restriction should be determined by a qualified panel of archivists, scholars, and public officials rather than by the donor alone.
With the support of this proposed legislation, The Society of American Archivists and the archival profession could turn its efforts solely to the care and preservation of the nation's historical records. Archivists would no longer have to beg and bargain with potential donors of public papers who would sacrifice to their own purposes, the right of the public to be fully informed about the actions of their government. I urge you to act favorably on this legislation which is essential to guarantee to the American people the right to their own history.
[The attached paper will be delivered Wednesday, October 2, at the Annual Meeting of the Society of American Archivists in Toronto, Canada.] “PRIVATE" PAPERS OF PUBLIC OFFICIALS: AN ANALYSIS OF THE ARCHIVIST'S
(By J. Frank Cook, Director of University of Wisconsin Archives, Madison, Wis.)
The archival profession received more public attention in 1974 than in all the forty years that have passed since the establishment of the National Archives. This publicity resulted, of course, from the interest of the American people in the controversy surrounding President Nixon's transfer of his Vice-Presidential papers to the National Archives. What appeared at first to have been a routine operation became a major political issue, contributing to the pressures that led to Mr. Nixon's resignation. The resignation of President Nixon depended on larger and more important issues than the matter of the legality of a tax deduction for the donation of "personal" papers. But for the archival profession the implications of this one issue raise questions of paramount importance.
Other speakers at today's program will present a variety of points of view and to prevent any misunderstanding or confusion it is best that I frankly state my position: the papers of public officials belong to the people and any legislative acts, legal interpretations, administrative policies or hoary traditions to the contrary have not been in the public interest. F. Gerald Ham, Archivist of the State of Wisconsin and president of the Society of American Archivists, put it well in an interview for Time magazine last December: "I think it is a fiction that those are private papers. The very great bulk of these papers originate from one activity only—that of serving in a public capacity. I think they should be public papers." i H. G. Jones made the same point even more bluntly in his book, Records of a Nation. After asserting that President Franklin D. Roosevelt clearly established the people's claim to ownership of their chief executive's files, Jones declared : “... the prerogative assumed by his predecessors in asserting private title was in fact only a lingering vestige of the attributes of monarchy, not an appropriate or compatible concept of archival policy for the head of a democratic state to adopt."
Unfortunately, there is an equivocating corollary : Even if the public nature of the records of public officials were conceded, the long established custom of allowing public officials to determine for themselves what is and is not public information may be almost impossible to change, and any attempt to enforce new laws forbidding private ownership of public files might lead to the illegal destruction of records by officials unwilling to sumbit their careers to complete public scrutiny. In short, I view the archivist as being in a dilemma which will require much careful consideration if a solution is to be found. I would like to examine with you today: (1) Nixon's donation of his Vice-Presidential papers, (2) the effect on manuscript donations of changes made in the tax laws in 1969, and (3) the potentially disastrous consequences of the National Archives and Records Service's position that a president owns his presidential files.
Just as it did in the case of the illegal entry into the Watergate headquarters of the Democratic Party, the Washington Post broke the story of Nixon's donations of his Vice-Presidential papers. Articles detailing the alleged irregularities and apparent violations of tax laws by the White House in making the donation appeared on the 10, 12, and 16th of June, 1973. Reporter Nick Kotz declared that the President and his advisors tried to beat the 1969 deadline on deductions for donating one's own papers and as a result used "markedly different procedures from previous presidential gifts.” * Little if any investigation of the issues raised by the Post accounts took place until the President revealed portions of his income tax records following his November 17 press conference.' Provided now with some fiscal documentation, others began to investigate Nixon tax returns. Taxation With Representation, a Washington, D.C. based group who regard themselves as “Tax Experts Representing the Public Interest," prepared an exhaustive study entitled The President's Papers Deductions. In addition to reprinting the Post articles, the report contains seven commentaries by prominent tax lawyers—all of which criticized the President's deduction. The volume also reprinted an excellent legal analysis by Ira D. Tannebaum of Tax Analysts and Advocates, a public interest law firm in Washington, D.C., entitled "Income Tax Treatment of Donation of Nixon Pre-Presidential Papers.”
The investigations concentrated on the issue of whether or not the President had met the legal requirements for a deduction. Questions focused on (1) the validity of the deed, (2) whether it had been signed by both the President and a representative of the National Archives before the deadline for such deductions, (3) the legality of a donor restricting access to a gift, (4) the possibility that the papers to be deeded as opposed those on deposit there had not been properly delivered in 1969, (5) the possibility of fraud, and (6) the efforts of the White House to lobby against the 1969 tax law which ended deductions for donating personal papers. A detailed examination of all these points is beyond the scope
1 Time, December 31, 1973, p. 12. 2 H. G. Jones. Records of a Nation (New York : Athenum, 1969), p. 155. 3 Washington Post, June 16, 1973, p. 1. * New York Times, December 18, 1973, p. 1. 5 Taxation with Representation, The President's Papers Deductions (Washington, D.C.), pp. 1-97.
of this paper but the consensus was that Nixon had failed to meet the requirements of the tax law. Senator Lowell Weicker, Jr. (Republican, Connecticut), a member of the Senate committee investigating Watergate, sent the Commissioner of the Internal Revenue Service a long memorandum in December, 1973 which also accused the President of not meeting the legal requirements for a valid deduction.' CBS News reported in May, 1974 that Special Prosecutor Leon Jaworski's staff was investigating the possibility that Nixon in 1971 approved the extensive taping of his conversations because he had been told that the provisions of the 1969 tax law applied only to paper records. Apparently, Ralph Newman, who appraised Nixon's Vice Presidential papers, had so advised Nixon's tax lawyers. At least one member of the House Ways and Means Committee proposed to submit legislation outlawing such a deduction, but such a step became unnecessary when the Internal Revenue Service ruled such deductions to be illegal. The White House denied intending to claim a deduction for the tapes.
Fortunately, most archivists have been able to avoid making appraisals of documents and manuscripts. Appraisal is a complicated matter with few guidelines for making a rational and objective evaluation of fair market value. The events surrounding the appraisal of Nixon's Vice-Presidential papers do not increase one's confidence in the practice. The evidence turned up clearly indicates that only a casual estimation of value was made, and even that effort was not completed until almost nine months after the July 25, 1969 deadline for a deduction. Some evidence exists to suggest that Nixon wished to keep open all possible options of donation and sale in order to reap the maximum personal economic benefit from his Vice Presidential papers. To this end materials stored in the National Archives, but not yet deeded to the public, were segregated according to value at the very time the Senate Finance Committee struggled with the section of the Tax Reform Act of 1969 which regulated deductions for gifts of personal papers. The Senate's recommendation to make the effective date for this legislation retroactive to December 31, 1968 threatened any hope of a Nixon tax deduction. The Congressional compromise on an effective date of July 25, 1969 presented problems but not an impossible task. In March and April, 1970, Ralph Newman dealt with a cautious and troubled Mary Walton Livingston, a supervisory archivist at the National Archives, about "Nixon's 1969 gift” and the separation of 17 boxes containing "very important people files" and correspondence with foreign dignitaries. Donation of these 17 boxes would have greatly enriched the scholarly value of the collection to be given to the National Archives. On the other hand the monetary worth of this section may have suggested to Nixon and Newman the desirability of replacing them with a larger volume of much less valuable material in order to provide the amount
& Joint Committee on Internal Revenue Taxation (report prepared by staff), Ewamination of President Nixon's Tax Returns for 1969 Through 1972 ,(April 3, 1974), 93rd Congress, House Report No. 93-966 (Union Calendar No. 439), pp. 1-94 and A-1 through A-329 (exhibits) is the most detalled account.
Washington Post, November 25, 1973, p. C7; St. Louis Post-Dispatch, November 29, 1973, p. 1; Washington Star-News, December 10, 1973, p. 1; New York Times, December 11, 1973, p. 40; Washington Star-News, December 13, 1973; Nero York Times, December 20, 1973, P. 39; Nation, 217. (December 24, 1973) : 674-6; New Republic, 169 (December 29, 1973) i 13-15; Newsweek, January 28, 1974, pp. 20-1; Capital Times (Madison, Wis.), January 29, 1974 editorial page : New York Times, January 31, 1974, p. 33; Washington Star-News, February 1, 1974; Capital Times, February 25, 1974, p. 26; Capital Times, March 5, 1974, p. 4; Wisconsin State Journal (Madison, Wis.), March 12, 1974, p. 2 and 11; New York Times, April 8, 1974, p. 26 ; Chicago Sun-Times, August 22, 1974, p. 84. For articles in the New York Times on President Nixon's tax deduction for his Vice Presidential papers from the time he opened his tax returns to the public in November, 1973 through the report by the Joint Committee on Internal Revenue Taxation see; November 18, 1: 6 & 8, December 6, 19: 1; 11, 44: 1; 12, 28: 4; 20., 39: 1; 22, 22:1; 23, IV, 10: 5; 25, 19: 6; 28, 29 : 2 ; January 8, 32:1 & 4; 13, 57: 1; 18, 1:2; 19, 28: 4°; 21, 18: 6; 24, 26: 1; 26, 1:6; 27, 44: 3; 27, IV, 1:1; 30, 34: 5; 31, 33:1; February 23, 10:5; 2;6, 1:6; March 22, 38:4; 24, 1:6; 4, 1:7 & 8; 4, 41 : 5; 5, 19: 2; 5, 36:1; 8, 26 : 3; May 1.44 : 2;9.31:1; 10, 17:5; 19, IV, 19:1; 21, 24 : 5. See also New York Law Journal, July 17 & 19, 1974 : Stars and Stripes, February 25, 1974.
7 Memorandum, Sen. Lowell Weicker, Jr. to Commissioner of Internal Revenue Service, December 12, 1973. This memorandum, together with 26 related exhibits, may be found in the Congressional Record-Senate, December 12, 1973, pp. 522634–49. Several of these exhibits deal with the effect of 1969 tax law and are not duplicated in the staff report of the Joint Committee on Internal Revenue Taxation (see footnote 6).
8 New York Times, May 9, 1974, p. 31 ; May 10, 1974, p. 17, May 21, 1974, p. 24.
of papers necessary to offset Nixon's tax liability. Such an arrangement would allow the possibility of either selling the V.I.P. files or donating them in a future year should Congress reinstate deductions for personal papers.'
We can all take pride that a member of our profession, Mary Walton Living, ston, thrust into a position of responsibility far beyond her usual authorized duties, resisted efforts to have her participate in this possibly fraudulent scheme. Instead, she explained the matter to her superior, and later testified before the staff of the Joint Committee on Internal Revenue Taxation. This committee's investigation eventually led to the IRS disallowing the deduction. As one columnist described her, she is "a burocrat [sic] who serves the public ... [not] the White House.'
The year 1969 marked a critical change in the nation's tax laws regulating income tax deductions for charitable contributions. Prior to that date an individual could deduct the appraised fair market value of contributions to a maximum of 30% of his or her annual income in the year the gift was made with any excess deduction being applied against taxes for a maximum of the next five years. During these years the deduction could amount to 50% of the annual income. These deductions could be taken without paying any capital gains tax on the appreciated value of the contribution. Because the contribution represented the donor's own work it was not subject to the ordinary income tax in the years before the gift was made. The 1969 tax law revision almost completely ended this type of deduction by denying any tax write-off for a contribution of manuscripts prepared by or for the taxpayer. The Internal Revenue Service would now deny a deduction on what it called "an unrealized appreciation in value” (i.e. the value increase which resulted not from costs incurred or from goods and services subject to taxes, but only because the market price of the item had increased). As a result, a tax deduction could only be taken for the cost of the materials themselves. In the case of a manuscript collection retained by its creator (i.e. Nixon's Vice-Presidential papers retained by the ex-President), this system of accounting would allow a deduction only for the cost of the paper and ink used in their preparation."
This summary oversimplifies the provisions of the tax law revision of 1969," but illustrates the area of primary concern to the archival profession. The willingness of donors to continue to contribute their papers without a deduction is a critical matter for all archivists. Unfortunately, the effect of the new law has been to largely dry up contributions from those who formerly made use of the deduction,
The Library of Congress accessioned no important collections in its manuscripts division from the time the law went into effect through the end of 1973.13 Ending the deduction apparently had less effect on the National Archives, especially the Presidential Libraries, than it did on the Library of Congress. Reports indicate that a comparable amount of material has been received after 1969 as before. Herman Kahn, former director of the FDR Presidential Library and later the Assistant Archivist for Presidential Libraries, explained in a letter to me that "no President has ever taken a tax deduction for a donation of Presidential papers."
." 14 and undoubtedly the fact that the core of each Presidential Library continued to be accessioned without any consideration
Ralph G. Newman, "Appraisals and 'Revenooers': Tax Problems of the Collector," Manuscripts 17.(Spring, 1965): 14-21; Seymour V. Connor, "A System of Manuscript Appraisal.” Antiquarian Bookman, November 14, 1966; Robert F. Metzdorf, “The Economics of Distribution," Manuscripts, 20 (Winter, 1968): 52, General Services Administration Memorandum, Sherrod East' to Assistant Archivist, May 27, 1969; Nero York T'imes, December 6, 1973; "Mr. Newman's Sense of Values," Waủ Street Journal, Janu. ary 16, 1974 ; "Appraising in Credibility Gap,"_Chicago Daily News, January 26-27, 1974 ; "Tie Nixon Papers to '70," and "Nixon Papers Expert Waits Jaworski Quiz, Chicago Daily News, April 5, 1974 ; Milwaukee Journal, December 12, 1973, p. 17; New York Times, December 197 p. 29; Congressional Record-Senate, December 12, 1973, P. 22635; Joint Committee on Internal Revenue Taxation, Examination of President Nixon's Tax Returns for 1969 Through 1972, pp. A243-9.
10 Joint Committee on Internal Revenue Taxation, Examination of President Niron's Tad Returns for 1969 Through 1972, pp. A248 and A250 ; "A Burocrat Who Serves the Public," Chicago Today, April 15, 1974, p. 22.
11 Congressional Record, (Senate), 1969, pp. 23744 and 29866; Nero York Times, December 23, 1973, IV, p. 10 ; January 18, 1974, p. 32; and January 30, 1974, p. 34.
12 See I.R.S. Publications : Income Tax Deduction for Contributions (#526) and Valua. tion of Donated Property (#561).
13 St. Louis Post-Dispatch, December 24, 1973, p. 9A ; "Effect of the 1969 Tax Law on Manuscript Repositories," The Ohio Archivist i (Spring, 1970): 10; New York Times, December 25, 1973, p. 19.
14 Herman Kahn to JFC, February 26, 1974.