dent of the United States. He did so in the midst of impeachment proceedingsthe first in more than one hundred years. Shortly before his resignation, the Committee on the Judiciary of the House of Representatives approved a bill of impeachment charging Mr. Nixon in three counts of having i) "prevented, obstructed, and impeded the administration of justice;" (ii) "acted in a manner contrary to his trust as President and subversive of constitutional government;" and (iii) "failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas." Report of the House Judiciary Committee on the Impeachment of Richard M. Nixon, 93d Cong., 2d Sess. 1-4 (1974). The events of the last two years which preceded and lead directly to Mr. Nixon's resignation need no review here. That resignation followed hard upon an order of the Supreme Court compelling him to release certain tapes and, consequently his release of a tape which demonstrated that the facts regarding his early knowledge of Watergate were "at variance with certain of [his] previous statements." (Statement of the President, August 5, 1974.) It was clear at that point, even to Mr. Nixon, that the political support he would have needed to remain in office had "disappeared." (Ibid.; New York Times, Wed., Aug. 7, 1974, p. 1, cols. 4, 5 and 7; New York Times, Fri., Aug. 9, 1974, p. 1, col. 8.)

It is evident that the circumstances of Mr. Nixon's departure from office are vastly different from those of every other President of the United States. This is underlined by the fact that on September 8, 1974, Mr. Nixon's successor in office granted, and Mr. Nixon accepted, a pardon for a variety of criminal acts, known and unknown, committed by Mr. Nixon while he was President. Even if there had been a tradition that departing Presidents are authorized to take certain public papers with them (and we think we have demonstrated that there is no such tradition), such a tradition would have been based on the respect that the American people traditionally have accorded former Presidents. That respect supported a presumption that the departing President would handle any papers taken by him with due regard for the public interest. It is evident that that tradition would not apply to Mr. Nixon in the circumstances of his departure from office.

In sum, there is simply no tradition "beginning with George Washington". which holds that all Executive Office materials are the private property of the President. On the contrary, Grover Cleveland was probably the first President to assert such a proposition (see H. G. Jones, The Records of a Nation 159 (1969)), and this memorandum has demonstrated that Cleveland's pronouncement did not reflect the practice of Presidents before him and was not followed by Presidents after him. Indeed, if at this point in our history there can be said to be a tradition at all with respect to Executive Office papers, it is that set by President Franklin D. Roosevelt and followed by Presidents Truman, Eisenhower, Kennedy, and Johnson. As Herman Kahn, Associate Librarian for Manuscripts and Archives at Yale University put it in recent congressional testimony: "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 upon departing the White House, have made their papers the property of the Federal Government." Statement before the Printing Subcommittee of the House Committee on Administration on H.R. 16902, p. 6 (October 4, 1974).

4. The historical tradition respecting Executive Office papers does not provide legal support for Mr. Nixon's arguments

Courts have acknowledged the examination of past practice as a valid tool in interpreting the legality and propriety of certain governmental activities, but this method of determination has been used with great care and only under limited circumstances. As Mr. Justice Frankfurter pointed out in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952), unauthorized Executive practice may achieve legitimacy by weight of tradition only where it is "systematic" and "unbroken." Moreover, the opinion in United States v. Mideast Oil Co., 236 U.S. 459 (1915) (relied upon by the Attorney General in his September 6, 1974 Opinion) states that a presumption of validity accrues when unauthorized executive acts are "so often repeated as to crystalize into a regular practice." 236 U.S. at 472-73.

Here, the historical precedent is far from the "systematic," "unbroken" and "regular practice" which may legitimize unauthorized acts by the Executive. As we have shown, (a) past Presidents have treated the official papers of their

administrations in disparate fashions, but many have transferred these materials to government archives without asserting any claim of ownership or ultimate control; and (b) the papers generated by prior Presidents are vastly different in nature and volume from those generated by the Executive Office during Mr. Nixon's Presidency. Thus, there exists no clear historical pattern, and the chronicle of past events may not accurately be described as an "unbroken precedent" in support of Mr. Nixon's claim of exclusive ownership of the "presidential papers." Under these circumstances, there is plainly no tradition rising to the level of law which supports Mr. Nixon's claims.

Thus, Mr. Nixon would rely on the acts of occasional Presidents who may have removed public documents for their own use despite a tradition at least equally. strong to the contrary. To this argument, Mr. Justice Frankfurter's rejoinder in Inland Waterways Corp. v. Young, 309 U.S. 517, 524 (1940), is particularly apt: "Illegality cannot attain legitimacy through practice." Sec also the opinion of Judge Pine of this Court in Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569 (D.D.C.), aff'd, 343 U.S. 579 (1952) :

"It is difficult to follow [the] argument that several prior acts apparently unauthorized by law, but never questioned in the courts, by repetition clothe a later unauthorized act in the cloak of legality." 103 F. Supp. at 575.

C. THE CLAIM OF "PRESIDENTIAL. PRIVILEGE" DOES NOT JUSTIFY SURRENDERING 42 MILLION GOVERNMENT RECORDS TO MR. NIXON

In support of his amended motion for preliminary injunction, Mr. Nixon argues that control over the "presidential materials" must be given to him so that he can "preserve" his alleged privilege regarding “presidential communications." (Amended Motion for Preliminary Injunction, Nixon v. Sampson, at pp. 14-16, dated Oct. 29, 1974.) This claim must be rejected because: (A) Claims of “executive privilege" must be asserted by the President, Gerald Ford, and cannot be made by Mr. Nixon; and (B) the courts have rejected the notion that "executive privilege” protects all of the millions of documents in the Executive Office of the .Government.

1. Claims of Executive Privilege Can Only Be Asserted by the President, Gerald Ford.

Mr. Nixon argues strenuously that United States v. Nixon,

-U .S.

94 S. Ct. 3090 (1974), grants him a constitutionally based privilege with respect to the "presidential materials." What this contention overlooks is the simple fact that Mr. Nixon is not the President. Executive privilege, to the extent that it exists, belongs to the office and not to the man.

The rule was stated by the Supreme Court in United States v. Reynolds, 345 U.S. 1. 78 (1935), as follows:

"[T]he principles which control the application of the privilege emerge quite clearly from the available precedents. The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." Emphasis added.)

This principle has been followed consistently by the courts. For example, in In re Investigation of World Arrangements with Relation to... Petroleum, 13 F.R.D. 280 (D.D.C. 1952), a number of oil companies moved to quash government subpoenas on the ground that they demanded privileged information which had passed between the movants and foreign sovereigns. The court held that the privilege could only be asserted by the appropriate government and not by the oil companies, even though they were parties to the confidential communications: "The privilege is one that must be exercised by the party entitled to assert it. "By the tenor of movants' own argument they admit the privilege belongs solely to the foreign sovereign. Accordingly, the privilege is one that must be asserted by the foreign sovereign. . . . Where this country possesses such a privilege the sole party having the power to exercise that privilege is a qualified representative of the United States Government." 13 F.R.D. at 285-86. (Emphasis added. )

Conversely, in Heine v. Raus, 399 F.2d 785 (4th Cir. 1968), the court rejected a claim that the Government lacked standing to appear in a private dispute for

the purpose of making a claim of executive privilege. The court relied on Reynolds, supra, and held that "[t]he privilege belongs to the Government and must be asserted by it; [the privilege] can neither be claimed nor waived by a private party." 399 F.2d at 788. See also, e.g., Firth Sterling Steel Co. v. Bethlehem Steel Co., 199 F. 353 (E.D. Pa. 1912).

This principle comports with the established practice of the Government, including the Administration of Richard Nixon. For example, in the prosecution of Daniel Ellsberg and the other individuals who publicized the Pentagon Papers, the Nixon Administration argued that the documents were the property of the Government, despite the fact that the papers had been prepared on a confidential basis under the Presidency of Lyndon Johnson. The Government did not deem it necessary to ask former President Johnson if he desired to assert or waive "his" executive privilege with respect to the papers.

Acceptance of Mr. Nixon's argument that he is the proper person to assert claims of executive privilege would produce an intolerable situation. Suppose, for example, that Mr. Nixon should die tomorrow. This would leave no one in a position to assert the privilege, unless, of course, Mr. Nixon contends that his “presidential privilege" is an asset that can be devised to his children or other designees. Or suppose that one of the Oval Office tape recordings contains a confidential communication from a foreign head of state. Certainly the law should not allow a private citizen, albeit a former President, to make the decision whether sensitive information bearing on the nation's foreign relations should be released. Or suppose that copies of a document are located both in Mr. Nixon's "presidential materials" and in the files of the Council of Economic Advisers, and someone makes a Freedom of Information Act demand for CEA's copy. Is it necessary for the agency to consult with Mr. Nixon or his heirs before releasing the document in order to determine whether he desires to assert a "constitutionally based" privilege?

Mr. Nixon's argument is that unless former Presidents are permitted to take millions of documents with them when they leave office, the willingness of presidential aides to render frank advice will be impaired, because of a fear that a hostile successor will disclose their confidential communications. There are several answers to this contention. First, it is based on the unfounded assumption that succeeding Presidents will have an "enemies" conception of Government and that they will devote their energies to embarrassing preceding Administrations. Second, it ignores the fact that current Presidents (all of whom will themselves leave office eventually) have a vested interest in maintaining the confidence of presidential communications. Third, the argument fails to recognize that confidential communications are never fully protected from the possibility of disclosure in any event." Fourth, it is inconsistent with the position that Mr. Nixon took while he was in office (e.g., in the Pentagon Papers and Ellsberg cases). Fifth, the contention sweeps far too broadly, for it asks that 42,000,000 documents be given to Mr. Nixon in order that he might be able to assert privilege claims with respect to the small percentage of documents as to which such claims would be plausible. Sixth, and most importantly, it fails to give weight to the compelling public interests in continued availability of the records as government documents.

The law is clear that claims of "executive privilege" belong to the Government and must be asserted by it." We cannot improve on the following statement of the rule:

"[A]s John Quincy Adams once declared, the right of withholding information pertains to the office and not to the man. Like all other presidential powers, it can always be used and may only be used by the individual who for the time being occupies the office of President.

89 Attorney General Saxbe's argument-i.e., that existing criminal statutes are a safeguard against the release of information respecting the national defense is not a satisfactory answer to this problem. Many of the records in question would not relate to the national defense, even though there might be a valid basis for asserting executive privilege with respect to them and the incumbent president might in fact wish to do so in the national interest. Most records (e.g., the Oval Office tapes) probably would not fall within the statutes protecting information respecting the national defense. 18 U.S.C. $$ 793, 794. 90A President's aides never can be sure that the President will not fire them and then attempt to embarrass them. Likewise, there is nothing that prevents former aides from revealing the content of confidential communications (except for the relative few containing genuine national security information).

See, e.g., Soucie v. David, supra, 448 F.2d at 1071 n.8; Mitchell v. Bass, 252 F.2d 513. 516 (8th Cir. 1958); Overby v. U.S. Fidelity & Guaranty Co., 224 F.2d 158, 162-63 (5th Cir. 1955); Thill Securities Corp. v. N.Y.S.E., 57 F.R.D. 133 (E.D. Wis. 1972); Cooney v. Sun Shipbuilding & Drydock Co., 288 F. Supp. 708, 714 (E.D. Pa. 1968).

"The idea that this power of the President to disclose or not disclose information in the presidential records should follow the individual 'into his retirement as a personal right to be exercised by him for the duration of his natural life and then to be descendable to his executors and heirs' is surely not justified under any constitutional principle, however much it may have been practiced in the past." H. G. Jones, The Records of a Nation at 162 (1969). (Emphasis added.)

Therefore, Mr. Nixon, who is no longer the President, lacks standing to claim that the records of the Government are protected by "executive privilege."

2. The courts have recently rejected the blanket claim of privilege that is asserted by Mr. Nixon in this litigation.

Mr. Nixon relies on the recent decision in United States v. Nixon, supra, as support for his demand for possession of 42 million documents relating to the business of the Government. This reliance is misplaced. The Supreme Court in Nixon emphatically rejected the claim that a President can arbitrarily withhold information in his possession in his absolute, unreviewable discretion. 94 S. Ct. at 3106-07. United States v. Nixon manifestly did not hold that everything that transpires in the Executive Branch is privileged from disclosure except in criminal cases. Such a result would be patently at odds with the policy of the Freedom of Information Act, which the Supreme Court has enforced in the face of “executive privilege" claims. EPA v. Mink, supra.

Furthermore, executive privilege claims, even if legitimate in some circumstances, can be outweighed by the needs of a party engaged in litigation with the Government. For example, in Center on Corporate Responsibility, Inc. v. Shultz, 368 F. Supp. 863 (D.D.C. 1973), this Court held that a party was entitled to obtain copies of any Oval Office tape recordings that might show that White House pressure led to denial of tax-exempt status to the party. And in Black v. Sheraton Corp. of America, 371 F. Supp. 97 (D.D.C. 1974), this Court specifically ruled that executive privilege claims are "not absolute" and must be balanced against other interests.

It may be that a valid claim of privilege might be asserted with respect to particular communications or classes of communications with close personal advisers. But many if not most of the communications and reports received by a President are not protected. For example, in Soucie v. David, supra, the Court of Appeals held that the factual material in a report made personally to the President by an agency to assist his policy deliberations could not be withheld on the ground that it was a "Presidential document."

13

Thus, even if Mr. Nixon were the proper person to assert claims of executive privilege, he could not rationally claim that all of the 42 million documents that accumulated in the White House between 1969 and 1974 are exempt from disclosure. As noted above, the vast majority of these records fall within the explicit terms of the Freedom of Information Act. We submit that Mr. Nixon should not be given millions of government records merely to facilitate his assertion of privilege with respect to a few of them.

V.

THE EQUITIES FAVOR GRANTING PLAINTIFFS' APPLICATION FOR PRELIMINARY INJUNCTION

The equities in this matter weigh heavily in favor of granting plaintiffs' application for preliminary injunction to permit careful development of the record and decision on the law in this important case.

(A) The burden of the injunction on defendants Sampson and Knight is virtually nonexistent. In fact, these defendants and the United States Government have not been a major party in this iltigation. In a sense they are simply

92 Mr. Nixon contends that the Supreme Court in Nixon recognized an absolute privilege which yields only to a "demonstrated. specific need for evidence in a pending criminal trial." (Amended Motion for Preliminary Injunction, Nixon v. Sampson, at 14, quoting from 94 S. Ct. at 3110.) The quotation from the Supreme Court's decision is misleading. While the Court emphasized that the case before it involved criminal proceedings, it specifically refrained from this reliance expressing an opinion on the merit of the "privilege" claim in other contexts. See, e.g., 94 S. Ct. at 3109 n.19.

93 In Black v. Sheraton Corp. of America, supra, this Court held that a claim of executive privilege requires "a specific designation and description of the documents within its scope as well as precise and certain reasons for preserving their confidentiality." 371 F. Supp. at 101. Mr. Nixon's demand for 42 million documents cleary does not satisfy this requirement.

holding the documents as everybody fights over them. In fact they should be vigorously defending the continuing governmental interests in these records against the injury that will result if the documents are transferred to California. Put simply, the Government of the United States resides in Washington, D.C.-not near San Clemente, California. To the extent that these documents deal with continuing matters of governmental concern, as Mr. Nixon admits they do, and are imbued with important public interests as described above, the Government will be injured by the transfer of the documents to San Clemente. The government's reason for supporting this transfer of vast records to private hands is revealed by the Statement of Presidential Counsel Buchen at his press conference of September 8, 1974, when he announced the Nixon-Sampson agreement. He said:

"it became fully apparent that unless this conflict [over disclosure, custody and control of the materials] was resolved, the present Administration would be enmeshed for a long time in answering the disputed claims over who could obtain information from the Nixon records, how requested information could, as a practical matter, be extracted from the vast volume of records in which it might appear, and how, and by whom its relevancy in any particular court proceeding could be determined, and at the same time to try satisfying the claims of Mr. Nixon that he owned the records," Press Conference of Philip Buchen, Counselor to the President, September 8, 1974, p. 2.

Therefore, Mr. Buchen continued, the present Administrator began negotiating with Mr. Nixon and his attorneys,

"... so that this Administration would not be caught in the middle of trying on a case-by-case basis to resolve each dispute over the right of access or disclosure." Ibid.

So single-minded was the administration in its determination to divest itself of the records that it assigned utterly no value to the importance of the recordsnot only for historians, but also for the American people and the future vitality of their Government.

"Q. Mr. Buchen, was any consideration given to the right of history? "Mr. Buchen: I am sure the historians will protest, but I think historians cannot complain if evidence for history is not perpetuated which shouldn't have been created in the first place." Id., at p. 29.

The decision concerning access to the records would be difficult, and no doubt politically inconvenient for a new administration which understandably wishes to avoid involvement with the problems of its predecessor." But these expendiencies plainly do not justify abandoning a great public treasure, obliterating the nation's memory of the past 5 years, and disregarding the important laws which protect the public's heavy stake in these records. Such is not the course of Executive Branch responsibility.

(B) The burden on Mr. Nixon of granting the preliminary injunction is also not very great. The injunction would mean that Mr. Nixon may not have the documents in California for a while. In view of his current debilitating illness, this is unlikely to be prejudicial. Mr. Nixon will be physically unable to make any practical use of the materials for two to three months at the earliest. (Affidavit of Herbert J. Miller. Jr., in U.S. v. John Mitchell, et al., in Crim. No. 74110, November 6, 1974, p. 3.) In any event, the Special Prosecutor has previously noted that the materials need not be removed to California to fulfill any need Mr. Nixon has to review them for his potential testimony at the Watergate coverup trial. (Memorandum of the Special Prosecutor in Opposition to the Motion of Richard M. Nixon for Modification of Temporary Restraining Order, October 29, 1974.) Mr. Nixon's counsel subsequently withdrew his motion to transfer portions of the materials to California for this purpose and acquiesced in this Court's order establishing copying procedures.

The lack of injury to Mr. Nixon from a preliminary injunction preserving the records in Washington is also evidenced quite dramatically by the fact that Mr. Nixon's request for a preliminary injunction, filed October 17th, did not request transfer of the records to California. He was content to have them remain in

94 Mr. Buchen had no hesitancy in revealing the government's fervent desire to wash its hands of the whole issue-and all the materials-as quickly as possible. Mr. Buchen stated: they will be moved to the California repository as soon as we can get rid of, or modification of the existing orders that require they be retained here." Id. at 19.