denly these questions are receiving as much attention as anyone could ask for, more, perhaps than we bargained for when we asked that attention be given to them. Many persons are now coming forward with idea, prosposals, slogans, and proposed legislation. Archivists and historians are gratified by this interest but we are not so certain that the many quick and easy solutions being proposed are wise. In some cases, they do not stand very close examination.

For instance, I have just come from a professional meeting where a group wanted to adopt a resolution which maintained that the papers of the President are automatically public property because their creation is paid for by taxpayers' money. I pointed out that if this principle were to be adhered to, it must also be true that the research notes, files, and writings of any professor who receives a Federal grant or fellowship would be Federal property. They had not thought of that. The fact is that with the permeation of Federal financial support into innumerable activities, and the giving of Federal funds for almost every aspect of our cultural life, adherence to the principle that Federal ownership follows Federal funding would be destructive of many of our most cherished institutions.

My own experience persuades me that much of the debate now going forward on this subject is of small value because the persons engaged in the debate have little reason to have knowledge of the true character of the Presidential papers they are talking about. My own views on the subject have been profoundly influenced by close daily contact for 20 years with the White House papers and files of every President from Franklin Roosevelt to Lyndon Johnson. This was a marvelous education for me. I came to realize that the basic fact that really shapes the issues inherent in this matter and which shape the nature of the President's papers, is almost never mentioned in the debate. That fact arises from the truism that in this country we have not only a written Constitution, but an unwritten Constitution, and that it has been a part of our unwritten Constitution since the days of John Adams that the President of the United States is not only Chief Executive, Commander in Chief, and Chief of State, but is also a head of a political party. This is a fundamental requirement for the successful operation of our political system. But it is a corollary of that fact that at least 50 percent, probably more, of what we call the President's papers are political rather than governmental in character. I use the word political here not in any derogatory sense but in its truest and highest sense, as meaning public leadership, the successful functioning of party activities, and the marshalling of public and political support for the President's policies, programs, views, and the issues that he lays before the public. These are not records of governmental action. They are ancillary to and related to Government as all politics is related to Government, but they are not governmental records in the sense that they are records created by the President in the course of carrying out acts of Congress or otherwise acting in his formal constitutional capacity as Chief Executive or Commander in Chief. Because of the nature of his office, political matters inevitably are diffused through a very large part of what we call the papers of the President. Let us be thankful that in this country the political parties are not agencies of the Government. I think that no one has ever suggested that the files of our political parties are official records of the Government, but in many

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respects they differ very little from much of the material in the papers of a President. I am convinced it is the lack of understanding of this fact which has led many well-intentioned people to take the position that all of the President's files ought to be treated as official public records.

Something else which ought to be pointed out is that most of the people who believe that all the President's papers are or ought to be treated as official public records seem to believe that this would mean the papers would be more quickly available for public inspection. The fact of the matter is that under our present system, ever since the death of Franklin D. Roosevelt, 85 percent of each President's papers have been made available for public use within 5 to 8 years after he left the White House (in some cases even sooner). Yet we must wait 30 years to see the records of the Department of State and for similar long periods in the case of other Government Departments. The reason we are able to make the papers of the President so quickly available is because they have been treated as private papers.

I do not want to give you the impression that I believe that the present method of handling the President's papers is perfect. The Presidential Libraries Act was written almost 20 years ago and should be looked at carefully. Personally, I think it needs some changes, but these changes should not be made in haste and in anger, but only after careful study.

There are other aspects of the problem of personal papers almost as important as the problem of the President's papers and just as baffling. What has troubled me the most is the question of what is proper policy in dealing with the papers of the President's White House aides. This is a question which has also been much in the public prints recently and is one which needs very careful study. A closely related problem is the matter of the files of temporary White House committees and commissions paid for from White House funds.

Many of us in the archival business have also, for many years, felt that a close look ought to be taken at the longstanding and widespread practice found in the office of every Cabinet officer and many of his subordinates, whereby two sets of files are kept. One is called, official records, and the other, personal papers. This is inevitable, but it needs more policing, more oversight than it has received in the past. And certainly I know from experience that many Members of both Houses of Congress have asked for assistance and advice in connection with the disposition of their own files. These are not easy questions and I feel strongly that they should not be dealt with by a meatax approach.

Archivists and historians have a twofold interest in this matter. First, they are interested in creating and maintaining conditions in public offices that will result in the production of a full, frank, and rich record that will show how officers have discharged their duties. I find that many persons assume that there is in the office of every official a machine which grinds out documentation independently of the wishes, knowledge, or activities of the officer in charge. The fact is that the creation of a good and full documentary record is intimately associated with the characteristics of the officer himself and with his feeling as to how this documentation will be used and by whom and when it will be seen. And it is practically impossible to

force an official to create a full and frank record if he is not personally inclined in that direction.

Dean Acheson coined the phrase "waffle papers" to define the kind of documentation which is wordy, bland and inconsequential, the kind of letters and memoranda an official tends to write if he feels that someone is looking over his shoulder as he writes. A Government file filled with waffle papers will be of small use to historians. What we want is something which reveals the facts and true motives behind policies, not things put on paper for the sake of making the officer look well to the press or to future generations.

The second interest of scholars is that, after the papers have been created, they should be preserved properly in a suitable depository and made available for investigation and research use as soon as possible.

The events of the past year have not been happy ones but we who have been wrestling with these problems for many years cannot help but feel great satisfaction that it appears that we are now going to have a thorough, scholarly, and dispassionate study of these gravely important questions. I am happy that this bill you are discussing here today is now before the Congress a proposal that these questions be given careful examination before any new legislation on the subject is enacted. The provisions of this bill are a guarantee that such new legislation will be soundly based on knowledge and careful study. It is for that reason that I am glad to be here and be able to give my enthusiastic support to the bill this subcommittee is now studying.

May I say one thing more. I was requested to come here when I was at the point of leaving home, and I had very little opportunity to work on a statement. But I have read the bill carefully and there is one thing in it that worries me. That is the fact that you have written into the section which requires the submission of a report by the Commission-section 3322-a specific date for the submission of that report. But as you know, sometimes after authorizing legislation has been passed, there is a long period before there is an appropriation. In that interval, the Commission is nothing but a letterhead organization. I would suggest that the date for the submission of the report be tied somehow to the date this Commission will receive an appropriation. Perhaps it could be provided that the report should be submitted not later than 15 months after the date on which the President of the United States has signed an act containing an appropriation for this Commission. That would prevent the possibility of having to write in 2 or 3 months, or even less.

Thank you very much.

Mr. BRADEMAS. Thank you very much for your statement and for your suggestions, the last one in particular. We shall certainly take them into consideration.

I put this question to you in a hypothetical way: Would it not be true to say that in making their papers available both President Roosevelt and Eisenhower in effect made those papers official Federal documents?

Mr. KAHN. In a sense, yes. I said we had an unwritten constitution. It is my feeling that since President Roosevelt's time it has become a part of our unwritten constitution that a President cannot do other

than to immediately leave all his White House papers to the Government when he leaves the White House. All of them, immediately on departing the White House, have made their papers the property of the Federal Government. Though the papers of the Presidents are considered to be their property, this is undoubtedly a kind of property that is affected with a public interest, as the lawyers say. The Government has a right to regulate that kind of property and should do so. But the fact that we continue to treat them as private property means that the papers of each of the former Presidents have been given to the Government by means of an instrument of gift, and because it is a formal instrument or gift, the President has been able to make stipulations as to how his gift may be used. Just as when one gives a piece of land to a city or State, one may stipulate that he is giving this land on condition that it will always be used as a public park, the President may say in the deed of gift that "I give these papers provided that-" Each of these deeds has contained a stipulation in standard formalized language about the protection of privacy and so forth. This has given the President the necessary assurance that their papers will not be used for malicious purposes and has enabled them to open the great majority of the papers at once. So they are in effect, being used as public papers though they once were private, and the Presidents are assured they will not be misused. Each President since Roosevelt's time has said that he wanted his papers dealt with as Roosevelt's were, and there has been no serious complaint about this.

Mr. BRADEMAS. It is true that Mr. Nixon has departed from the practice of which you speak, at least in one respect where in his letter of September 6, 1974, to Arthur Sampson, the Administrator of General Services Administration, Mr. Nixon said, "I will retain all legal and equitable title to material, including literary copyrights." Mr. KAHN. As I understand it, that letter was not an instrument of gift but a letter of intent. He said it was his intention to give to the Government his papers later. It was an indication of what he planned to do. I may be mistaken about that, but from the language you have just read I think that is the case.

Mr. BRADEMAS. Letting that language hang in limbo for a moment, I go on to the agreement announced by President Ford which provides for the mandatory destruction of the Nixon tapes.

Mr. KAHN. The question of the tapes has poisoned the whole recent discussion of proper policy for Presidential papers. They are unique, they are unprecedented. The creation of such a body of material would have been unthinkable in the past and I think we can be certain that such a record will never be created again. The question is further exacerbated by the fact that these materials apparently contain evidence of alleged crime. This is again unprecedented in the whole matter of Presidential papers. I would prefer to confine this discussion of Presidential papers to matters of which I have some knowledge. I would say we ought not radically to modify institutions which have worked well since almost the beginning of our history because of a new, unprecedented development which we hope will never be repeated in the future. I am not prepared to give advice or to answer questions on this question of the tapes because they are outside my experience. Mr. BRADEMAS. I appreciate your comment, but in all candor, I am not much illuminated by it. You are an expert in this field, I am not.

Do you really expect me to accept that reply? You are one of the top experts in this field. Do you think it wise policy for officials of the United States to enter into agreements with former Presidents of the United States which mandate the destruction of documents? That was the intent of my question.

Mr. KAHN. No, sir. I believe that was unwise and I think it should be challenged. I was deeply shocked when I heard that.

Mr. BRADEMAS. How can we guarantee that Presidential papersand I will turn aside from the Nixon tape problem-remain intact: How do we keep persons who are agents of the former President from coming in and removing papers?

Mr. KAHN. While they are in the White House they are subject to the same kind of hazard that anyone else's files are. However, it would be possible to have a White House official who would act as a sort of a guardian of the papers while they are there. But since 1945 the papers of the Presidents have become the property of the Government immediately upon the President's leaving the White House and it has been the responsibility of the appropriate officials of the Government to see that no one lays hands on them who might do them harm. I think that responsibility has been very faithfully carried out.

Mr. BRADEMAS. The only other point I would make, Mr. Kahn, is I found it difficult to understand your explanation of the use of your terms "political papers" and "governmental papers." I do not understand that at all.

Mr. KAHN. To bring it close to home, the President has correspondence with Governors which has no bearing on his duties in connection with the execution of the laws. They have a bearing on the health of the political parties in the United States.

Mr. BRADEMAS. I am really quite astonished, as a political scientist as well as a Congressman. I was always brought up to believe the President of the United States had lots of hats. As a matter of fact, you indicated your acceptance of that view.

Mr. KAHN. True.

Mr. BRADEMAS. I just do not understand how in 1974, one can take the position that makes that distinction between a President who is a politician and a President who is also a chief executive.

Mr. KAHN. That part of his activities that he carries on as head of a political party is not a part of his official constitutional duties, but it is a part of what is required of him while in office.

The official files of the Republican National Committee and Democratic National Committee are in some ways concerned with the same kinds of things as a part of the President's correspondence is concerned with, yet I would think you would agree that those files should not be considered public records.

Mr. BRADEMAS. Our conversation on this matter is quite disquieting. The position you are taking leads me to the conclusion that Franklin Roosevelt's correspondence with Jim Farley on any matters outside the Post Office of the United States are not relevant to the Presidency of Franklin Roosevelt.

Mr. KAHN. The political parties in this country, thank goodness, are not governmental agencies

Mr. BRADEMAS. They are not legal agencies.

Mr. KAHN. Well, all right.