Page images


[blocks in formation]

use in judicial proceedings, to information relating to the Nation's security;

(4) the need to protect every individual's right to a fair and impartial trial;

(5) the need to protect any party's opportunity to assert any legally or constitutionally based right which would prevent or otherwise limit access to the tape recordings and other materials;

(6) the need to prevent unrestricted access to tape recordings and other materials unrelated to the need identified in paragraph (1) above; and

(7) the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and








other materials which are unrelated to the need identified


15 in paragraph (1) above and are not otherwise of his16 torical significance.

(b) The regulations proposed by the Administrator in 18 the report referred to in subsection (a) above shall take 19 effect upon the expiration of ninety days after the submis20 sion of that report to the Congress. 21 SEC. 7. (a) The Federal District Court for the District 22 of Columbia shall have exclusive jurisdiction to hear chal23 lenges to the legal or constitutional validity of any provision 24 of this Act or of any regulation issued under the authority


1 granted by this Act. Such challenge shall be heard by a three2 judge court constituted under the procedures delineated in 3 section 2284, title 28 of the United States Code, with the 4 right of direct appeal to the United States Supreme Court. 5 Any such challenge shall be treated by the three-judge court 6 and the Supreme Court as a priority matter requiring im

mediate consideration and resolution.


(b) If, under the procedures delineated in subsection 9 (a) above, a judicial decision is rendered that a particular 10 provision of this Act, or a particular regulation issued under 11 the authority granted by this Act, is unconstitutional or

12 otherwise invalid, such decision shall not affect in any way

13 the validity or enforcement of any other provision or regula

14 tion.


SEC. 8. There are authorized to be appropriated such sums as may be necessary to carry out the provision of this


17 Act.

Passed the Senate October 4, 1974.




OPENING STATEMENT OF CHAIRMAN BRADEMAS Mr. BRADEMAS. H.R. 16902, which I introduced on Thursday, September 26, 1974, with the distinguished gentleman from Idaho, Mr. Hansen, would establish a special commission to undertake a comprehensive study of the disposition and preservation of records and documents of both elected and appointed Federal officials.

There are other bills pending before this subcommittee, introduced by Congressman Bingham of New York, Congressman Luken of Ohio, and Congressman Seiberling, which would require that all public papers, documents, and other related material of elected officials be turned over to the National Archives for preservation.

The important question of the disposition of official papers has, of course, taken on a special urgency because of the question of the disposition of the tapes and papers of former President Nixon.

Earlier this month, President Ford negotiated an agreement with Mr. Nixon based on the premise of private ownership of the tapes and papers. This agreement also included a provision which would require the destruction of the magnetic tapes and other materials at the time of Mr. Nixon's death or on September 1, 1984, whichever event shall first occur.

I am greatly troubled by this agreement, as are many Members of the House and Senate. First, I have serious reservations about the opinion of Attorney General Saxbe, on which the agreement is based, which concludes that the papers and tapes are Mr. Nixon's private property.

Further, the destruction of the Nixon tapes and papers will deprive the courts and parties to both civil and criminal actions of important evidence and will mean the destruction of material of special historical value. The material, moreover, is crucial to a full and accurate accounting of the spectrum of events we call Watergate.

The issue of the disposition of the Nixon tapes is of immediate urgency and we shall hear testimony on this subject. But the question before this subcommittee is also a much broader one-the problem of the preservation of papers and documents of all elected and appointed Federal officials.

Because this problem includes a range of varied and complex issues which I believe warrant a comprehensive study before any permanent legislation affecting all Federal officials is adopted, Mr. Hansen and I have introduced a bill that would establish a special blue ribbon commission to undertake such a study.

We are privileged to have with us, as our first witness today, the distinguished Archivist of the United States, Dr. James B. Rhoads. Dr. Rhoads also serves as the Chairman of the National Historical Publications Commission, of which I have the honor to be a member, and he will this week be sworn in as the president of the Society of American Archivists.

Dr. Rhoads will be followed by the Hon. Jonathan B. Bingham and the Hon. Thomas A. Luken, whose related measures, as I have said, are pending before this subcommittee.

They will be followed by Mack Thompson, executive director of the American Historical Association, and by J. Frank Cook, memberelect of the council of the Society of American Archivists and director of the University of Wisconsin archives.

We are very pleased to welcome you. Will you please, sir, proceed?



Dr. Rhoads. I wish to thank the chairman for inviting me to give testimony on H.R. 16902, a bill to establish a national study commission on Federal records and papers of elected officials.

We all know by now that the Nation's preoccupation of recent months has been especially related to documents and other forms of historical materials and particularly to those relating to the Presidency. Today the people of our Nation are still not sure that the record of the last few years has been or is being preserved adequately for historical interpretation. Consequently, bills have been introduced in the Congress and surely there will be more such bills—that are designed to change the status of papers of elected officials from that of private property to something described as public documents. The demand for such a change can be heard not only in the halls of Congress and in the journalism fraternity, but also within the professional societies of archivists and historians.

We in the national archival system are troubled by these efforts to change suddenly a 200-year-old tradition. I suppose this is partly because we are responsible for administering the present system, and because we have tried so hard to make it work that we believe in its essential soundness. But beyond that, we think that the changes now being proposed have evidentiary and constitutional implications that may bring results in the future which the authors of the pending bills do not anticipate and would not wish. Nonetheless, we archivists recognize the need for a thorough review of the traditional arrangements for the preservation of the records and other documentary sources of our national life.

During the last 60 years, we have experienced a paperwork explosion much larger than anything that could have been predicted by the Taft Commission of 1912; that Commission tried, among other things, to solve problems in paperwork caused by the invention of the typewriter. Today's explosion is hastened and complicated by the nearly infinite capacity of Xerox and other reproduction machines to multiply copies, to disseminate information, and to glut files. Furthermore, the tragic or at least hard-learned events of recent years have reminded us that we must respect the critical nature of documents as evidence of men's actions. Surely the traditional concepts for preserving and servicing archives cannot be expected to serve the expanded needs of the present and the future unless they are reviewed and up. dated from time to time.

Therefore, while we are disturbed by the clamor for a quick change in the nature of the personal papers of elected officials, we strongly support the call for a study commission to examine the foundations of historical evidence and the presumptions about what should be kept and how best to preserve it to serve the needs of the future. Our archival problems are both philosophical and procedural; a study commission can be a good approach to solving them, provided that the commission is well staffed, and provided also that it has a clear charter and a well. set agenda.

I think it is important to begin by expressing the two general principles which infuse and guide a national archival system and which

should also guide any study commission that is formed to review its conceptual problems. First, whatever arrangements we make must assure the maximum preservation of useful historical material; and, second, those arrangements must aim at the earliest practicable public accessibility of that historical material for researchers to use and interpret. There is a natural tension existing between these two principles; pressing the one discourages the other. We are interested in preserving the best evidence. Yet, if we pursue the public accessibility of that evidence with too much vigor or too much haste, we may discourage the creators of records from leaving adequate documentation for archivists to keep and historians to sift. We must therefore always seek a balance between these two general principles. We believe that when they are kept in balance they form the two parts of an axiom; mankind is entitled to its history, and history requires evidence.

Keeping these principles in mind, we think that the commission should examine the nature of public records as an adequate documentation of the affairs of Government, test our traditional definitions and practices regarding public records, examine the role of elected officers as they generate and retain files reflecting both politics and public administration, and seek to find the best and most equitable means for documenting their role in public affairs. In addition, the commission should not overlook the question of the nature and disposition of the records created by appointed officials such as Cabinet officers, White House and congressional staff, and Federal court justices.

From our experiences as archivists, we can suggest where many of the problems lie for this study commission, but I must point out that the solution to them is essentially a political one. The traditional view from the beginning of our Republic has been that elective offices are constitutional and that the public actions of the incumbents of elective office are effectively reflected in such public documents as the acts of Congress, proclamations, diplomatic letters, and so on. The traditional view holds that the files of an elective officer are in formal, not required to be kept, and not subject to statutes controlling Federal records, all because the elected official has a right and a need to protect the confidences that he allows to become a part of his files.

Let me examine for a moment the meaning of the personal property claim as it applies to the papers of elected officials. The claim arose at the end of George Washington's Presidency. Washington—relying on the British tradition that the sovereign's working papers were the sovereign's personal property—claimed that the files of his office which supported the official record of Government action were his personal files and thus his personal property. The files which he claimed consisted of correspondence, notes, drafts, and working papers—not official records of action. He felt that these supporting files were peculiar to himself and to his occupancy of the Presidency and that they should not rightfully pass to his successor. His distinction between personal papers and official records has remained to this day as the traditionalist view because we have found no better alternative for the protection of the political liberty of those who run for public office. When a man chooses to run for elective office and-more than that—to spend a lifetime in seeking, holding, and defending his elective office, he engages in a highly competitive and even an incendiary occupation. He is always in the public eye and pursued by a relentless

« PreviousContinue »