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Nixon - Papers Court Cases - Nixon v. Sampson (3)
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24823989
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Nixon - Papers Court Cases - Nixon v. Sampson (3)
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Philip W. Buchen Files
Philip Buchen's General Subject Files
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General Services Administration. (07/01/1949 - )
Nixon, Richard M. (Richard Milhous), 1913-1994
Watergate Affair, 1972-1974
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The original documents are located in Box 29, folder "Nixon - Papers Court Cases - Nixon
V. Sampson (3)" of the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD M. NIXON
:
Plaintiff
:
V.
: C.A. No. 74-1518
ARTHUR F. SAMPSON, et al.,
:
Defendants
:
and
:
FILED
THE REPORTERS COMMITTEE FOR FREEDOM OF
:
NOV 7 1974
THE PRESS
JAMES F. DAVEY; Clerk
:
Plaintiffs
:
V.
:
ARTHUR F. SAMPSON, et al.,
Defendants
:
and
:
LILLIAN HELLMAN, et al.,
Plaintiffs
:
V.
:
ARTHUR F. SAMPSON, et al.,
:
Defendants
:
OR.DER
Upon consideration of the Motion for Leave to Take
Depositions and to Inspect Storage Areas Prior to the Expiration
of 30 days After Service of Summons, pursuant to Rules 30 (a) and
34 (b) of the Federal Rules of Civil Procedure, the Points and
Authorities in support of and in opposition thereto, and it
appearing to the Court that waiver of the 30-day rule would be
in the best interests of a fair and proper disposition of the
issues but that an inspection of the storage areas would not be
proper at this time, it is, by the Court, this 7th day of
November, 1974,
GREAT URO LIESTER
Digitized from Box 29 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
ORDERED, that leave to take depositions be, and the same
is, hereby granted, said depositions to commence on Friday,
November 8, 1974, and terminate at the close of business on
Wednesday, November 13, 1974; and it is
FURTHER ORDERED, that the time, place and person to be
deposed shall be by the agreement of the parties; and it is
FURTHER ORDERED, that the deponents shall bring to the
depositions the requested materials, and may raise any
privilege as to any or all of the materials at that time; and
upon the assertion of any such privilege, the dispute shall be
presented to the Court for resolution on November 15, 1974, or
before, as an emergency matter if essential to the fair
administration of justice, along with the materials in question,
which shall be under seal; and it is
FURTHER ORDERED, that counsel for all of the parties
shall be given the opportunity to be present at the depositions;
and it is
FURTHER ORDERED, that the Motion to Enter and Inspect
Storage Areas Containing the Materials in Dispute be, and the
same is, hereby denied, but in lieu thereof, the Defendants, in
conjunction with counsel for Mr. Nixon, shall file with the
Court and serve on all counsel any existing lists or statements
categorizing and/or describing the materials in issue, but which
do not reveal the contents thereof, and if such lists or state-
ments do not exist, the Defendants, in conjunction with counsel
for Mr. Nixon, shall prepare a statement which describes, with
as much particularity as is reasonably possible in the time
available, the categories of the materials, said statements to
FORD
be filed with the Court and served on all parties on or before
- 3 -
twelve o'clock noon, Thursday, November 14, 1974.
Charles R. Richey
United States District Judge
November 7, 1974
LIBRARY
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD M. NIXON
:
Plaintiff
:
V.
:
C.A. No. 74-1518
ARTHUR F. SAMPSON, et al.,
:
Defendants
:
and
:
EILED
THE REPORTERS COMMITTEE FOR FREEDOM OF
:
NOV 7 1974
THE PRESS
JAMES E. DAVEY; Clerk
:
Plaintiffs
:
V.
:
ARTHUR F. SAMPSON, et al.,
Defendants
:
and
:
LILLIAN HELLMAN, et al.,
Plaintiffs
:
V.
:
ARTHUR F. SAMPSON, et al.,
:
Defendants
:
OR,DER
Upon consideration of the Motion for Leave to Take
Depositions and to Inspect Storage Areas Prior to the Expiration
of 30 days After Service of Summons, pursuant to Rules 30 (a) and
34 (b) of the Federal Rules of Civil Procedure, the Points and
Authorities in support of and in opposition thereto, and it
appearing to the Court that waiver of the 30-day rule would be
in the best interests of a fair and proper disposition of the
issues but that an inspection of the storage areas would not be
proper at this time, it is, by the Court, this 7th day of
FORD
November, 1974,
ORDERED, that leave to take depositions be, and the same
is, hereby granted, said depositions to commence on Friday,
November 8, 1974, and terminate at the close of business on
Wednesday, November 13, 1974; and it is
FURTHER ORDERED, that the time, place and person to be
deposed shall be by the agreement of the parties; and it is
FURTHER ORDERED, that the deponents shall bring to the
depositions the requested materials, and may raise any
privilege as to any or all of the materials at that time; and
upon the assertion of any such privilege, the dispute shall be
presented to the Court for resolution on November 15, 1974, or
before, as an emergency matter if essential to the fair
administration of justice, along with the materials in question,
which shall be under seal; and it is
FURTHER ORDERED, that counsel for all of the parties
shall be given the opportunity to be present at the depositions;
and it is
FURTHER ORDERED, that the Motion to Enter and Inspect
Storage Areas Containing the Materials in Dispute be, and the
same is, hereby denied, but in lieu thereof, the Defendants, in
conjunction with counsel for Mr. Nixon, shall file with the
Court and serve on all counsel any existing lists or statements
categorizing and/or describing the materials in issue, but which
do not reveal the contents thereof, and if such lists or state-
ments do not exist, the Defendants, in conjunction with counsel
for Mr. Nixon, shall prepare a statement which describes, with
as much particularity as is reasonably possible in the time
available, the categories of the materials, said statements to
be filed with the Court and served on all parties on OR before
- 3 ---
twelve o'clock noon, Thursday, November 14, 1974.
Judge
November 7, 1974
GENALE ? FORD
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD M. NIXON
:
Plaintiff
:
V.
: C.A. No. 74-1518
ARTHUR F. SAMPSON, et al.,
:
Defendants
:
and
THE REPORTERS COMMITTEE FOR FREEDOM OF
:
THE PRESS, et al.,
FILED
:
Plaintiffs
NOV 71974
:
V.
JAMES E. DAVEY, Clerk
:
ARTHUR F. SAMPSON, et al.,
:
Defendants
:
and
LILLIAN HELLMAN, et al.,
:
Plaintiffs
:
V.
:
ARTHUR F. SAMPSON, et al.,
:
Defendants
:
ORDER
Upon consideration of the Motions for Modification of the
Order of the Court of October 31, 1974, the Points and Authorities
in support of and in opposition thereto, and it appearing to
the Court that the provision in the Order of the Court of
October 22, 1974 (page three, lines nine and ten), as amended
by the Order of the Court of October 31, 1974, which provides
that access "shall be afforded under current access procedures
established by Defendants", is no longer viable due to the
confusion on the part of the parties as to what these procedures
entail, it is, by the Court, this 7th day of November, 1974,
ORDERED, that the first full paragraph of page three of
the Supplemental Order of the Court of October 22, 1974,
as amended by the Order of the Court of October 31, 1974,
be, and the same is, hereby further amended to provide as
follows:
"FURTHER ORDERED, that any person either now
or previously a member of the White House Staff, or
any defendant in the Watergate criminal trial, now
pending before the Honorable Judge John J. Sirica,
or the Special Prosecutor, shall be afforded access,
solely for purposes relating to criminal investi-
gations or prosecutions, under the following
procedure:
1. a request for access shall be delivered
to Mr. Philip W. Buchen, or his designated
agent, who shall advise counsel for Mr.
Nixon and the Special Prosecutor, as well
as this Court, of the request; and
2. upon receiving the consent of counsel
for Mr. Nixon, said person shall be given
access, in the presence of an agent of
the Secret Service, to said materials which
comprise or comprised his or her files while
a member of the White House staff, with or
without his or her attorney present, and
shall be allowed to review and make notes
regarding said materials; and
3. any person having access under this
procedure who wishes to make photostatic
copies shall designate and itemize those
materials and serve notice of same upon
counsel for Mr. Nixon, Mr. Buchen, or his
designated agent, the Special Prosecutor, and
this Court; and
4. counsel for Mr. Nixon or Mr. Buchen, or
his designated agent, shall give or withhold
their consent, and if consent is withheld by
either or both, photostatic copies shall not
be made, and in such instances, the reasons
for withholding such consent shall be given
to the person requesting such copies and the
Court; and
5. when photostatic copies are provided, they
shall be returned promptly to the Defendants
when the purpose for which they have been made
has been served; and it is
"
and it is
FURTHER ORDERED, that any person who has been given
access under the above procedure prior to this Order and has
made photostatic copies shall forthwith comply with provisions
4 and 5 of the above procedure, and upon the withholding of
consent to any item, said photostatic copy shall be
immediately returned to Mr. Philip Buchen, or his designated
agent; and it is
FURTHER ORDERED, that the Orders of the Court of
October 22, 1974 and October 31, 1974 shall remain in
full force and effect except as herein modified.
Charles R. Richey
United States District Judge
November 7, 1974
FORD is LIGHARD "IVE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD M. NIXON
:
Plaintiff
:
V.
: C.A. No. 74-1518
ARTHUR F. SAMPSON, et al.,
:
Defendants
:
and
THE REPORTERS COMMITTEE FOR FREEDOM OF
:
THE PRESS, et al.,
FILED
:
Plaintiffs
NOV 71974
:
V.
JAMES E. DAVEY, Clerk
:
ARTHUR F. SAMPSON, et al.,
:
Defendants
:
and
LILLIAN HELLMAN, et al.,
:
Plaintiffs
:
V.
:
ARTHUR F. SAMPSON, et al.,
:
Defendants
:
ORDER
Upon consideration of the Motions for Modification of the
Order of the Court of October 31, 1974, the Points and Authorities
in support of and in opposition thereto, and it appearing to
the Court that the provision in the Order of the Court of
October 22, 1974 (page three, lines nine and ten), as amended
by the Order of the Court of October 31, 1974, which provides
that access "shall be afforded under current access procedures
established by Defendants", is no longer viable due to the
FORD
confusion on the part of the parties as to what these procedures
entail, it is, by the Court, this 7th day of November, 1974,
ORDERED, that the first full paragraph of page three of
the Supplemental Order of the Court of October 22, 1974,
as amended by the Order of the Court of October 31, 1974,
be, and the same is, hereby further amended to provide as
follows:
"FURTHER ORDERED, that any person either now
or previously a member of the White House Staff, or
any defendant in the Watergate criminal trial, now
pending before the Honorable Judge John J. Sirica,
or the Special Prosecutor, shall be afforded access,
solely for purposes relating to criminal investi-
gations or prosecutions, under the following
procedure:
1. a request for access shall be delivered
to Mr. Philip W. Buchen, or his designated
agent, who shall advise counsel for Mr.
Nixon and the Special Prosecutor, as well
as this Court, of the request; and
2. upon receiving the consent of counsel
for Mr. Nixon, said person shall be given
access, in the presence of an agent of
the Secret Service, to said materials which
comprise or comprised his or her files while
a member of the White House staff, with or
without his or her attorney present, and
shall be allowed to review and make notes
regarding said materials; and
3. any person having access under this
procedure who wishes to make photostatic
copies shall designate and itemize those
materials and serve notice of same upon
counsel for Mr. Nixon, Mr. Buchen, or his
designated agent, the Special Prosecutor, and
this Court; and
4. counsel for Mr. Nixon or Mr. Buchen, or
his designated agent, shall give or withhold
their consent, and if consent is withheld by
either or both, photostatic copies shall not
be made, and in such instances, the reasons
for withholding such consent shall be given
to the person requesting such copies and the
Court; and
5. when photostatic copies are provided, they
shall be returned promptly to the Defendants
when the purpose for which they have been made
has been served; and it is "
and it is
FURTHER ORDERED, that any person who has been given
access under the above procedure prior to this Order and has
made photostatic copies shall forthwith comply with provisions
4 and 5 of the above procedure, and upon the withholding of
consent to any item, said photostatic copy shall be
immediately returned to Mr. Philip Buchen, or his designated
agent; and it is
FURTHER ORDERED, that the Orders of the Court of
October 22, 1974 and October 31, 1974 shall remain in
full force and effect except as herein modified.
Richey
District Judge
November 7, 1974
3 FORD LIGRARY
MR. BUCHEN
Department of Justice
Washington, D.C. 20530
ASSISTANT ATTORNEY GENERAL
CIVIL DIVISION
November 12, 1974
William E. Casselman II, Esq.
Office of Counsel to the President
Old Executive Building
Washington, DC
Mr. Thomas P. Wolf
Office of Presidential Papers
Old Executive Office Building
Washington, DC
Re: Richard M. Nixon V. Arthur F. Sampson,
et al., C.A. No. 74-1518
The Reporters Committee for Freedom of
the Press, et al. V. Arthur F. Sampson,
et al., C.A. No. 74-1533
Lillian Hellman, et al. V. Arthur F.
Sampson, et al., C.A. No. 74-1511
Gentlemen:
Enclosed find the following documents for your files
in connection with the above-entitled consolidated actions:
1.
Memorandum in support of the Joint Motion of
Defendants and the Special Prosecutor for
Modification of the Temporary Restraining
Order.
2.
Opposition to Motion for Preliminary Injunction
in C.A. No. 74-1533; Opposition to Motion for
Preliminary Injunction in C.A. No. 74-1511;
Memorandum in support of Defendants' Opposition
to Motions for Preliminary Injunction; Proposed
Order.
3.
Memorandum of Lillian Hellman, et al. in support
of the Motion of The Reporters Committee for
Freedom of the Press, et al. for a Preliminary
Injunction and in Opposition to the Motion of
Richard M. Nixon for a Preliminary Injunction.
-2-
4.
Memorandum of the Special Prosecutor in Response
to Motions for Preliminary Injunctions.
5.
Memorandum of Intervenor in Opposition to Motion
of Richard M. Nixon for Preliminary Injunction
and in support of Motions of Intervenor and the
Reporters' Committee et al. for Preliminary
Injunction.
6. Motion of Plaintiff Nixon to Dismiss Complaint
of Intervenor - Anderson.
7. Brief on Richard M. Nixon on Motions for Preliminary
Injunctions.
8. Appendix to Brief of Richard M. Nixon.
9. Affidavit of Mack Thompson.
10. Affidavit of Clement E. Vose.
11. Affidavit of James MacGregor Burns.
12. Memorandum of Plaintiffs, The Reporters Committee
for Freedom of the Press, American Historical
Association, American Political Science Association,
et al., in support of Motion for Preliminary
Injunction
Sincerely,
Beverly Posey
Beverly Posey, secretary to
CARLA A. HILLS
Assistant Attorney General
Civil Division
bp
Enclosures
FORD LIURARY
Saman
THE WHITE HOUSE
WASHINGTON
November 13, 1974
Dear Carla:
Finally I have had a chance to study the legal memoranda
filed this week with Judge Richey for the Federal defendants
in the Nixon-Sampson litigation.
You and your colleagues have done superb work in preparing
these memoranda, and I am most grateful to all of you. It
is hard for me to believe that any group of lawyers could
produce such complete and well-reasoned, well-documented
and well-written arguments even if they were given a much
longer time than you had. I consider your accomplishments
a true legal miracle, and my esteem for your skills and
alacrity is boundless.
Again, many thanks and warmest regards.
Sincerely yours,
Thil
Philip W. Buchen
Counsel to the President
The Honorable Carla A. Hills
Assistant Attorney General
Room 3143
Department of Justice
Washington, D.C. 20530
cc: Attorney General Saxbe
FORD
Larry Silberman
Volume 1
THE WHITE HOUSE
WASHINGTON
November 13, 1974
Dear Mr. Goldbloom:
Following are my corrections of transcript Volume I of my
Deposition taken November 11, 1974, at 3:30 p.m., re
Nixon, et al., V. Sampson, et al., CA Nos. 74-1518,
74-1533, and 74-1551:
Page 4, line 11 - change "for" to "to"
Page 4, line 23; page 5, line 15; page 6, line 2 - -
change "Bussard" to "Buzhardt"
Page 6, line 21 - - change "P" to "B"
Page 7, line 10 - insert at end of line the word "I"
Page 7, line 13 - - insert "," after "prosecution"
Page 8, line 11 - strike ", " and "words"
Page 8, line 16 - change "in" to "on"
..
Page 10, line 2 - - change "have" to "had"
Page 10, line 21 - strike "as being"
Page 10, line 22 - strike ", "," and replace with "__"
Page 12, line 3 - - correct spelling of "balement" to
"bailment"
Page 12, line 7 - - strike one "that"
Page 12, line 10 - correct spelling of "were" to "where"
GERALD LIBRARY ? FORD
-2-
Page 16, line 12 - strike "and"
Page 17, line 10 - strike "between" and ","
Page 20, line 12 - strike the word "that" at both
places
Page 21, line 16 - strike "." and the "And" and run
sentence together
Page 22, line 1 - - replace ", 11 with "."
Page 22, line 18 - strike one "in that"
Page 23, line 9 - - strike "that" and replace with
"the Nixon agreement"
Page 23, line 18 - strike second "," and replace
with word "also" followed by "." and strike "that"
and capitalize first letter of "the"
Page 24, line 15 - strike the first "the"
Page 28, line 15 - the number should be "2107"
Page 28, line 16 - replace "the" with small "a"
and strike "," at end
Page 28, line 17 - replace the first "the" with "also to"
Page 28, line 18 - replace "deposited" with "deposit of"
Page 28, line 23 - strike ","
Page 30, line 14 - strike "that"
Page 30, line 16 - strike "so"
FORD & LIBRARY OFRALD
-3-
Page 32, lines 4 and 5 - - strike "avoid trying"
and replace with "try"
Page 32, line 17 - replace "have" with "had"
Page 32, line 20 - strike "either that"
Sincerely yours,
Thily W. Buden
Philip W. Buchen
Counsel to the President
Honorable Irwin Goldbloom
Acting Deputy Assistant
Attorney General
Room 3607
Department of Justice
Washington, D.C. 20530
FORD à 07V830 LIBRARY
THE WHITE HOUSE
WASHINGTON
November 13, 1974
Dear Mr. Goldbloom:
Following are my corrections of transcript Volume I of my
Deposition taken November 11, 1974, at 3:30 p.m., re
Nixon, et al., V. Sampson, et al., CA Nos. 74-1518,
74-1533, and 74-1551:
Page 4, line 11 - change "for" to "to"
Page 4, line 23; page 5, line 15; page 6, line 2 -
change "Bussard" to "Buzhardt"
Page 6, line 21 - change "P" to "B"
Page 7, line 10 - insert at end of line the word "I"
Page 7, line 13 - insert "," after "prosecution"
Page 8, line 11 - - strike ", " and "words"
Page 8, line 16 - change "in" to "on"
..
Page 10, line 2 - - change "have" to "had"
Page 10, line 21 - strike "as being"
Page 10, line 22 - strike "," and replace with "__"
Page 12, line 3 - - correct spelling of "balement" to
"bailment"
Page 12, line 7 - strike one "that"
GERALD "wher B. FORD
Page 12, line 10 - correct spelling of "were" to
-2-
Page 16, line 12 - strike "and"
Page 17, line 10 - strike "between" and ","
Page 20, line 12 - strike the word "that" at both
places.
Page 21, line 16 - strike ". " and the "And" and run
sentence together
Page 22, line 1 - - replace ", 11 with "."
Page 22, line 18 - - strike one "in that"
Page 23, line 9 - - strike "that" and replace with
"the Nixon agreement"
Page 23, line 18 - strike second ", " and replace
with word "also" followed by ". " and strike "that"
and capitalize first letter of "the"
Page 24, line 15 - - strike the first "the"
Page 28, line 15 - the number should be "2107"
Page 28, line 16 - - replace "the" with small "a"
and strike "," at end
Page 28, line 17 - replace the first "the" with "also to"
Page 28, line 18 - replace "deposited" with "deposit of"
Page 28, line 23 - strike ","
Page 30, line 14 - strike "that"
Page 30, line 16 - strike "so"
LIBRARY GERALD = FORD
-3-
Page 32, lines 4 and 5 - - strike "avoid trying"
and replace with "try"
Page 32, line 17 - replace "have" with "had"
Page 32, line 20 - strike "either that"
Sincerely yours,
Thily W. Buden
Philip W. Buchen
Counsel to the President
Honorable Irwin Goldbloom
Acting Deputy Assistant
Attorney General
Room 3607
Department of Justice
Washington, D.C. 20530
Volume II
THE WHITE HOUSE
WASHINGTON
November 14, 1974
Dear Mr. Goldbloom:
Following are my corrections of transcript Volume II of my
Deposition taken November 12, 1974, at 10:15 a. m., re
Nixon, et al., V. Sampson, et al., CA Nos. 74-1518,
74-1533, and 74-1551:
Page 8, line 15 - change "Keuper" to "Kauper"
Page 16, line 7 - - delete "to--"
Page 16, line 13 - insert "and" after comma
Page 23, line 4 - change "seeing" to "saying"
Page 30, line 16 - change "Saxby" to "Saxbe"
Page 34, line 23 - delete the word "or" and move
next quotation mark to just before "in"
Page 35, line 1 - - move first quotation mark to just
before "in"
Page 35, line 2 - drop the "s" from"seems"and add
"s" to the word "letter"
Page 42, line 18 - delete "of the fact"
Page 44, line 16 - change "B. 11 to small "v."
Page 45, line 12 - insert comma after "or"
Page 46, line 6 - delete "to"
Page 59, line 19 - insert comma after "or"
-2-
Page 63, line 20 - change "But" to "What"
Page 64, line 11 - delete "principle" and insert
"principal one"
Page 65, lines 8, 9 and 10 - delete and change to
read as follows: "gan, but I am temporarily here --
I mean I don't know how long I'm here -- at the
Jefferson Hotel."
Page 65, lines 15 and 16 - delete "on the Committee
to - - the Domestic Council Committee"
Page 71, line 10 - insert before dash "I could"
Page 77, line 8 - change "memorandum" to "memoranda"
Page 79, line 6 - change "Raleigh" to "Rowley"
Sincerely yours,
Thily W.Buchen Philip W. Buchen
Counsel to the President
Honorable Irwin Goldbloom
Acting Deputy Assistant
Attorney General
Room 3607
Department of Justice
Washington, D.C. 20530
LIBRARY
THE WHITE HOUSE
WASHINGTON
November 14, 1974
Dear Mr. Goldbloom:
Following are my corrections of transcript Volume II of my
Deposition taken November 12, 1974, at 10:15 a. m., re
Nixon, et al., V. Sampson, et al., CA Nos. 74-1518,
74-1533, and 74-1551:
Page 8, line 15 - change "Keuper" to "Kauper"
Page 16, line 7 - - delete "to--"
Page 16, line 13 - insert "and" after comma
Page 23, line 4 - change "seeing" to "saying"
Page 30, line 16 - change "Saxby" to "Saxbe"
Page 34, line 23 - delete the word "or" and move
next quotation mark to just before "in"
Page 35, line 1 - - move first quotation mark to just
before "in"
Page 35, line 2 - drop the "s" from'seems"and add
"s" to the word "letter"
Page 42, line 18 - delete "of the fact"
Page 44, line 16 - change "B. " to small "v. 11
Page 45, line 12 - insert comma after "or"
Page 46, line 6 - delete "to"
Page 59, line 19 - insert comma after "or"
-2-
Page 63, line 20 - change "But" to "What"
Page 64, line 11 - delete "principle" and insert
"principal one"
Page 65, lines 8, 9 and 10 - delete and change to
read as follows: "gan, but I am temporarily here --
I mean I don't know how long I'm here -- - - at the
Jefferson Hotel."
Page 65, lines 15 and 16 - delete "on the Committee
to - - the Domestic Council Committee"
Page 71, line 10 - insert before dash "I could"
Page 77, line 8 - change "memorandum" to "memoranda"
Page 79, line 6 - change "Raleigh" to "Rowley"
Sincerely yours,
Thily W.Buchen Philip W. Buchen
Counsel to the President
Honorable Irwin Goldbloom
Acting Deputy Assistant
Attorney General
Room 3607
Department of Justice
Washington, D.C. 20530
THE WHITE HOUSE
WASHINGTON
November 14, 1974
Dear Mr. Goldbloom:
Following are my corrections of transcript Volume II of my
Deposition taken November 12, 1974, at 10:15 a. m., re
Nixon, et al., V. Sampson, et al., CA Nos. 74-1518,
74-1533, and 74-1551:
Page 8, line 15 - change "Keuper" to "Kauper"
Page 16, line 7 - delete "to--"
Page 16, line 13 - insert "and" after comma
Page 23, line 4 - change "seeing" to "saying"
Page 30, line 16 - change "Saxby" to "Saxbe"
Page 34, line 23 - delete the word "or" and move
next quotation mark to just before "in"
Page 35, line 1 - move first quotation mark to just
before "in"
Page 35, line 2 - drop the "s" from "seems"and add
"s" to the word "letter"
Page 42, line 18 - delete "of the fact"
Page 44, line 16 - change "B. " to small "v. 11
Page 45, line 12 - insert comma after "or"
Page 46, line 6 - delete "to"
Page 59, line 19 - insert comma after "or"
-2-
Page 63, line 20 - change "But" to "What"
Page 64, line 11 - delete "principle" and insert
"principal one"
Page 65, lines 8, 9 and 10 - delete and change to
read as follows: "gan, but I am temporarily here --
I mean I don't know how long I'm here -- at the
Jefferson Hotel."
Page 65, lines 15 and 16 - delete "on the Committee
to - - the Domestic Council Committee"
Page 71, line 10 - insert before dash "I could"
Page 77, line 8 - change "memorandum"" to "memoranda"
Page 79, line 6 - change "Raleigh" to "Rowley"
Sincerely yours,
Thily W.Buchen Philip W. Buchen
Counsel to the President
Honorable Irwin Goldbloom
Acting Deputy Assistant
Attorney General
Room 3607
Department of Justice
Washington, D.C. 20530
11/29
ARNOLD & PORTER
POTALS
1229 NINETEENTH STREET, E.W.
WASHINGTON, D.C. 20036
NANC
TELEPHONE: (202) C70-6-00-
CABLE: "ARFORO"
TELEX: 00-2733
November 15, 1974
DAVID
STEVEN
CARY
SIMON
THOMAS
JAMES
DANIEL
MEDIS
RONALD
DRUCE
CARY GENLACH
JOHN
LANNY DAVIS
MURRAI
PAUL 5 RYERSON
ONNEL PERNICK
THOMAS 0 NURMI
GERALD STERN
LANRENCE C.MAIS
MELVIN БРАСТИ
JOHN PASSERS
DAVID
RICHARD A.GOLDE
DAVID
RICHARD SEVING
THOMAS WILNER
PETER BLEASEY
DIANA D. CLASS
STEVEN PROPERT
RICHARD GERTHEIMER
IVOR C ARMISTEAD
HARRY HUGE
JAMES W JONES
JACK 1 LIPSON
STEVEN MUSCHATE
JOHOME CHAPHAN
ROBERT THORPE
MYBON CONTAN
ROBIRT - KOOD
JAMES
ROSALING COME
STENDEN EXPENSER
MICHAEL N. SOAN
PAUL ,PEICHLER
LINDA E. GEDMENFE
LEONARD M. BLEKE
Hon. Charles R. Richey
MART'N RIGER
United States District Judge
ROBERT PITCERT
OF COUNSEL
United States Courthouse
Washington, D.C.
Re: Nixon V. Sampson, et al., C.A. No. 74-1518;
The Reporters Committee for Freedom of the
the Press, et 01. V. Sampson, C.A. No.
74-1533; Hellman V. Sampson, C.A. No. 74-1551
Dear Judge Richey:
For the convenience of those using our brief,
I am enclosing a Table of Authorities for the Memorandum
of Plaintiffs, The Reporters Committee for Freedom of
the Press, American Historical Association, American
Political Science Association, et al., in Support of
Motion for Preliminary Injunction.
Sincerely yours,
19 1974
DIVISION
Robert E. Herzstein
Enclosure
145-171-133
DEPARTMENT
R
33
NOV 19 1974
FORD is LIBRARY QENALD
Non. Charles R. Richey
November 15, 1974
Page Two
CC: Jeffrey F. Axelrad Esquire
Civil Division
U.S. Department of Justice
Room 3627
Washington, D.C.
20530
William A. Dobrovir, Esquire
2005 L Street, N.W.
Washington, D.C. 20036
Herbert J. Miller, Esquire
Miller, Cassidy, Larroca & Lewin
1320 19th Street, N.W.
Washington, D.C. 20036
Peter Kreindler, Esquire
Counsel to the Special Prosecutor
1425 K Street, N.W.
Washington, D.C. 20005
Melvin L. Wulf, Esquire
410 First Street, S.E.
Washington, D.C. 20003
Leon Friedman, Esquire
American Civil Liberties Union
Foundation
22 East 40th Street
New York, New York 10016
FORD LIBRAFT
- vi -
TABLE OF AUTHORITIES
Cases:
Page
Amalgamated Meat Cutters & Butchers
Workmen of North America V. Connally,
337 F. Supp. 737 (D.D.C. 1971)
45, 81
American Mail Line, Ltd. V. Gulick,
133 U.S. App. D.C. 382 411 F.2d 696
(1969)
18, 42
Ashwander V. TVA, 297 U.S. 288 (1936)
......
37
Association of Data Processing Service
Organizations, Inc. V. Camp, 397 U.S.
150 (1970)
17
Barlow V. Collins, 397 U.S. 159 (1970)
.....
17
Benson V.. General Services Administration,
289 F. Supp. 590 (W.D. Wash. 1968),
aff'd, 415 F.2d 878 (9th Cir. 1969)
19, 59
Black V. Sheraton Corp. of America, 371
F. Supp. 97 (D.D.C. 1974)
68, 120, 121
Brandon V. Sampson, Civ. No. 73-2232
(D.D.C. April 24, 1974), appeal
pending, No. 74-1503 (D.C. Cir.)
48-49
Brattleboro Publishing Co. V.
Winmill Publishing Corp., 369 F.2d
565 (2d Cir. 1966)
26
Bristol-Myers Co. V. FTC, 138 U.S. App.
D.C. 22, 424 F.2d 935, cert. denied, 400
U.S. 824 (1970)
39
Center on Corporate Responsibility, Inc.
V. Shultz, 368 F. Supp. 863 (D.D.C. 1973). 45, 68, 120
Coleman V. Commonwealth, 25 Grattan
(66 Va.) 865 (1874)
26
Cooney V. Sun Shipbuilding & Drydock Co.,
288 F. Supp. 708 (E.D. Pa. 1968)
119
Cowles Communications, Inc. V. Department
of Justice, 325 F. Supp. 726 (N.D.
Cal. 1971)
42
GERALD FORD LIBRABY
Cuneo V. Schlesinger, 157 U.S.
D.C. 368, 484 F.2d 1086 (1973
Cutler V. CAB, 375 F. Supp 722
(D.D.C. 1974)
Dellums V. Powell, Civil Action
No. 2271-71 (D.D.C.)
Ditlow V. Volpe, 362 F. Supp. 1321
(D.D.C. 1973), rev'd on other
grounds,
U.S. App. D.C.
, 494 F.2d 1073 (1974)
Dowse V. Federal Rubber Co., 254
F. 308 (N.D. Ill. 1918)
EPA V. Mink, 410 U.S. 73 (1973)
Epstein V. Resor, 421 F.2d 930
(9th Cir.), cert. denied, 398
U.S. 965 (1970)
Firth Sterling Steel Co. V.
Bethlehem Steel Co., 199 F.
343 (E.D. Pa. 1912)
Fisher V. Renegotiation Board,
153 U.S. App. D.C. 398, 473 F.24
109 (1972)
Flast V. Cohen, 392 U.S. 83 (1968)
Folsom V. Marsh, 9 Fed. Car. 342
(No. 4,901) (C.C.D. Mass. 1841)
Frankel V. SEC, 460 F.2d 813 (1970)
cert. denied, 409 U.S. 889 (1972)
Freeman V. U.S. Dept. of Agriculture.
350 F. Supp. 457 (D.D.C. 1972)
GSA V. Benson, 415 F.2d 878 (9th CITY
1969)
Garrison V. Louisiana, 379 U.S. #
(1964)
Getman V. NLRB, 146 U.S. App. p.c.
209, 450 F.2d 670 (1971)
LIBRARY GERALD ? FORD
Page
Green V. Kennedy, 309 F. Supp. 1127,
1132 (D.D.C. 1970) (three-judge court),
appeal dismissed, 400 U.S. 986 (1971)
....
13, 14
Grip Nut Co. V. Sharp, 150 F.2d 192
(7th Cir. 1945), cert. denied, 326
U.S. 742 (1945)
26
Grumman Aircraft Engineering Corp. V.
Renegotiation Board, 138 U.S. App.
D.C. 147, 425 F.2d 578 (1970)
59
Harbolt v. Alldredge, 464 F.2d 1243
(10th Cir.), cert. denied, 409 U.S.
1025 (1972)
60
Hass V. Henkel, 216 U.S. 462 (1910)
27
Hawkes V. Internal Revenue Service,
467 F.2d 787 (6th Cir. 1972)
20, 42
Healy V.. Edwards, 363 F. Supp.
1110 (E.D. La. 1973), probable
jurisdiction noted, 94 S. Ct.
1405 (1974)
18
Heine V. Raus, 399 F.2d 785
(4th Cir. 1968)
115
Hoblitzell V. Howard, 25 N.J.
Super. 397, 96 A.2d 446 (1953)
32
In re Pacific Automation Products,
224 F. Supp. 995 (S.D. Cal. 1964)
48, 56
Inland Waterways Corp. V. Young,
309 U.S. 517 (1940)
113
In re Investigation of World
Arrangements with Relation to
... Petroleum, 13 F.R.D.
280 (D.D.C. 1952)
115
International Union of Elec.
Radio & Machine Workers V.
NLRB, 289 F.2d 757 (D.C.
Cir. 1960)
56
Kleindienst V. Mandel, 408 U.S.
753 (1972)
127
Kreindler V. Department of Navy, 363 F.
Supp. 611 (S.D.N.Y. 1973)
19, 42
LÉBRARY GERALD R. FORD
1X -
Page
Lamont V. Postmaster General, 381
U.S. 301 (1965)
127
Le Fiell V. United States, 162 Ct. Cl.
865 (1963) (citing numerous cases)
31
M.A. Schapiro & Co. V. SEC, 339 F.
Supp. 467 (D.D.C. 1972)
43
Manning V. Mercantile Securities Co., 242
Ill. 584, 90 N.E. 238 (1909), aff'd,
217 U.S. 597 (1910)
32
Martin V. Carl, 213 Md. 564, 132 A.2d 601
(1957)
32
McElree V. Darlington, 187 Pa. 593, 41 A.
456 (1898)
32
Mitchell V. Bass, 252 F.2d 513 (8th
Cir. 1958)
119
Montrose Chemical Corp. V. Train,
U.S. App. D.C. , 491 F.2d 63 (1974)
...
39
NLRB V. Getman, 404 U.S. 1204 (1971)
19
Nancy Lee Mines, Inc. V. Harrison, 93
Idaho 652, 471 P.2d 39 (1970)
32
National Cable Television Ass'n, Inc. V.
FCC, 156 U.S. App. D.C. 91, 479 F.2d
183 (1973)
43
National Parks & Conservation Ass'n V.
Morton,
U.S. App. D.C.
, 498
F.2d 765 (1974)
42
Nelson V. Radio Corporation of America,
Inc., 148 F. Supp. 1 (S.D. Fla. 1957)
....
26
Nichols V. United States, 460 F.2d 671
(10th Cir.), cert. denied, 409 U.S. 966
(1972)
20, 54, 55
Nixon V. Sirica, 159 U.S. App. D.C. 58,
487 F.2d 700 (1973)
33
Overby V. U.S. Fidelity & Guaranty Co., 224
F.2d 158 (5th Cir. 1955)
119
LIBRARY GERALD : FORD
Pa
Petkas V. Staats,
U.S. App. D.C.
, 501 F.2d 887 (1974)
Philadelphia Newspapers, Inc. V. HUD,
343 F. Supp. 1176 (E.D. Pa. 1972)
4
Potomac Oil Co. V. Dye, 102 P. 677
(Cal. Ct. of App. 1909)
3:
Public Affairs Associates V. Rickover,
268 F. Supp. 444 (D.D.C. 1967)
27, 28, 29, 46
Quaker Action Group V. Hickel, 137 U.S.
App. D.C. 176, 421 F.2d 1111 (1969)
13
Renegotiation Board V. Bannercraft
Clothing Co., 415 U.S. 1 (1974)
22, 39, 43
Red Lion Broadcasting Co. V. FCC, 395
U.S. 367 (1969)
127
Robertson V. Butterfield,
U.S. App.
D.C.
, 498 F.2d 1031 (1974)
19, 43, 52, 54
Rose V. Department of Air Force, 495
F.2d 261 (2d Cir. 1974)
42
Sawver V, Crowell Publishing Co., 46 F.
Supp. 471 (S.D.N.Y. 1942), aff'd,
142 F.2d 497 (2d Cir. 1944), cert.
denied, 323 U.S. 735 (1944)
26, 27, 29, 30
Scherr V. Universal Match Corp., 417 F.2d
497 (2d Cir. 1969), cert. denied, 397 U.S.
936 (1970)
25, 27, 29
Schlesinger V. Reservists Committee to
Stop the War,
U.S.
, 94 S. Ct.
2925 (1974)
18
Sierra Club V. Morton, 405 U.S.
727 (1972)
17
Skolnick V. Parsons, 397 U.S. F.2d
523 (7th Cir. 1968)
18
Soucie V. David, 145 U.S. App. D.C.
144, 448 F.2d 1067 (1971)
18, 19, 41, 44
45, 46, 47
119, 121
GERALO FORD LIBRARY
xi
Page
Stanley V. Georgia, 394 U.S. 557 (1969)
127
Sterling Drug, Inc. V. FTC, 146 U.S.
App. D.C. 237, 450 F.2d 698 (1971)
.......
43
Stern v. Richardson, 367 F. Supp. 1316
(D.D.C. 1973)
18, 42
Stretch V. Weinberger, 495 F.2d 639
(3d Cir. 1974)
42, 52, 53, 54
Stokes V. Brennen, 476 F.2d 699
(5th Cir. 1973)
42
Tax Analysts & Advocates V. Internal
Revenue Service, 362 F. Supp. 1298
(D.D.C. 1973)
42
Tennessean Newspapers, Inc. V. Federal
Housing Administration, 465 F.2d 657
(6th Cir. 1972)
19, 42
Thieblbeule V. M/S Nordsee Pilot, 452
F.2d 1230 (2d Cir. 1971)
56
Thill Securities Corp. V. N.Y.S.E., 57
F.R.D. 133 (E.D. Wis. 1972)
119
United States V. Chadwick, 76 F. Supp.
919 (N.D. Ala. 1948)
27,28
United States V. City and County of
San Francisco, 223 F.2d 737 (9th
Cir. 1955), cert. denied, 350 U.S.
903 (1955)
37
United States V. Dubilier Condenser
Corp., 289 U.S. 178 (1933)
26
United States V. First Trust Co.
of St. Paul, 251 F.2d 686 (8th
Cir. 1958)
27, 28, 29
United States V. Lee, 106 U.S. 196 (1882)
33
United States V. Mideast Oil Co., 236
U.S. 459 (1915)
112
BERALA FORD LIBRARY
Page
United States V. N.B.C., Inc., No. 72-819-
RJK, C.D. California 9-27-74, BNA
Antitrust & Trade Reg. Rptr. 10/8/72
at A-10
68
United States V. Nixon,
U.S.
, 94
S. Ct. 3090 (1974)
114, 119, 120
United States V. Richardson,
U.S.
, 94 S. Ct. 2940 (1974)
18
United States V. Reynolds, 345 U.S. 1 (1953)
114, 116
United States V. Russo, Cir. No. 9373,
(C.D. Cal.)
118
United States V. SCRAP, 412 U.S. 669 (1973)
16, 17, 18
United States V. Shlom, 420 F.2d 263
(2d Cir. 1969), cert. denied, 397 U.S.
1974 (1970)
32
Vaughn V. Rosen, 157 U.S. App. D.C. 340
F.2d 820 (1973), cert. denied, 415 U.S.
977 (1974)
19, 43
Virginia Petroleum Jobbers Association V.
FPC, 104 U.S. App. D.C. 106, 259
F.2d 921 (1958)
13
Virginian Ry. V. System Federation No. 40,
300 U.S. 515 (1937)
14
Washington Research Project, Inc. V.
HEW, 366 F. Supp. 929 (D.D.C. 1973)
......
42
Wellford V. Hardin, 444 F.2d 21
(7th Cir. 1971)
19, 42
Williams V. IRS, 345 F. Supp. 591 (D. Del.
1972), aff'd, 479 F.2d 317 (3d Cir.),
cert. denied, 415 U.S. 1024 (1973)
60
Wine Hobby, USA, Inc. V. United States
Bureau of Alcohol, Tobacco & Firearms,
363 F. Supp. 231 (E.D. Pa. 1973)
18
Yakus V. United States, 321 U.S. 414 (1944)
14
Youngstown Sheet & Tube Co. V. Sawyer, 103
F. Supp. 569 (D.D.C.), aff'd, 343 U.S. 579
(1952)
112, 113
LIBRARY GERALD ? FORD
Statutes
Pag
5 U.S.C. § 133
App. 1, p.
5 U.S.C. § 551
40, 44, 4
5 U.S.C. § 552
15, 38, 45, 46
49, 52, 5
5 U.S.C. § 701 (b) (1)
4
18 U.S.C. § 793
61, 63, 64, 11
18 U.S.C. § 1905
60, 6
40 U.S.C. § 472
35, 36, 81, 8
42 U.S.C. $ 4321
App. 1, p.
42 U.S.C. § 1306 (a)
5
42 U.S.C. § 1982
12
44 U.S.C. § 1501
8
44 U.S.C. § 2101
7
44 U.S.C. § 2103
79-80, 86, 8
44 U.S.C. § 2104
80, 83, 8
44 U.S.C. § 2107
48, 50, 80, 8
44 U.S.C. § 2108
48, 49, 71, 8
44 U.S.C. § 2701
71, 72, 73, 7
44 U.S.C. SS 2901-3314
35, 36, 5
44 U.S.C. § 3105
3
44 U.S.C. § 3303
3
44 U.S.C. § 3314
3
53 Stat. 561
App. 1, p.
79 Stat. 1185
5
86 Stat. 646
App. 1, p.
89 Stat. 1185
App. 1, p. 5
FORD & GERALD LIBRARY
xiv
Constitution
Article II; Section 3
33
Article II, Section 1, Clause 6
74, 75, 76, 77
Article IV, Section 3, Clause 2
37
Regulations and Executive Materials
FTC Procedures and Rules of
Practice, 16 C.F.R. § 4.11
60
Executive Order 11,652
3 C.F.R. § 339 (1974)
61, 62, 63, 64
Presidential Proclamation 4311, 39
Fed. Reg. 32,601
2-3
United States Government Manual
1973-74
App. 1, pp. 3,
4, 5, 6, 7,
8,9,11,
Legislative Materials
Documents Illustrative of the
Formation of the Union of the
398, 69th Cong., , 1st Sess. (1927)
33, 76
S. Rep. No. 1621, 90th Cong.,
2d Sess. (1968)
80
S. Rep. No. 2140, 81st Cong.,
2d Sess. 16-17
85
H.R. Rep. No. 1497, 89th Cong., 2d
Sess. (1966)
59
H.R. Rep. No. 998, 84th Cong., 1st Sess.
(1955)
87, 88, 91
Hearings on H.J. Res. 330 Before A
Special Subcommittee of the House
Committee on Government Operations,
84th Cong., 1st Sess. (1955)
88, 90, 91, 93
1950 U.S. Cong. and Adm. News p. 3561
73
is
FORD
GERALD
LIBRARY
Articles
Page
Berger, Administrative Arbitrariness: A
Synthesis, 78 Yale L.J. 965 (1969)
45
Davis, Administrative Arbitrariness -- A
Postscript, 114 U. Pa. L. Rev. 823
(1966)
45
Davis, The Information Act: A Preliminary
Analysis, 34 U. Chi. L. Rev. 761 (1967)
...
20
Freedom of Information Act and the
Exemption for Intra-Agency Memoranda,
86 Harv. L. Rev. 1047 (1973)
39
Freedom of Information Act: A
Seven Year Assessment, 74 Colum. L.
Rev. 895 (1974)
39
Freedom of Information Act -- The
Parameters of the Exemptions, 62 Geo.
L.J. 177 (1973)
39
Jaffee, The Right to Judicial Review,
71 Harv. L. Rev. 401 (1958)
45
Reform in the Classification and
Declassification of National
Security Information: Nixon
Executive Order No. 11,652, 59
Iowa L. Rev. 110 (1973)
62
Relyea, The Management of Presidential
Papers: A Brief Overview, App. I
99
Books & Misc. Sources
Fletcher, Cyclopedia Corporations, Vol. 5
p. 717 (perm. ed. 1967)
32
E. Hargrove, The Power of the Modern
Presidency, 80-81 (1974)
App. 1, p. 2
H. G. Jones, The Records of a Nation
162 (1969)
100, 102,
111, 119
Memoirs of John Quincy Adams Vol. 3 (]874)
:
99
B.
GERALD
LIBRARY
The Public Papers and -Addresses of
Franklin D. Roosevelt, Vol. 7, p. 630
(1941)
102
Webster's New Collegiate Dictionary
(1973 ed.)
75
Wildavsky, The Presidency (1969)
App. 1,
p. 2
William Howard Taft Papers (1972)
101
The Writings of George Washington, Vol. 25,
p. 288 (1938)
97
FORD a GREATO LIBRARY
by 73 9 AM '?'!
DEPT. JUSTICE
MAIL
UNITED STATES DISTRICT COURT
ONON
FOR THE DISTRICT OF COLUMBIA
)
RICHARD M. NIXON,
)
)
Plaintiff,
)
)
)
V.
)
Civil No. 74-1518
)
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
)
18/1/21 110 NOV Rt: 25 1974 0
THE REPORTERS COMMITTEE FOR
)
FREEDOM OF THE PRESS, et al.,
)
)
DIVISION DUCKE, Unit
Plaintiffs,
)
)
V.
)
Civil No. 74-1533
)
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
)
LILLIAN HELLMAN, et al.,
)
)
Plaintiffs,
)
)
V.
)
Civil No. 74-1551
)
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
REPLY MEMORANDUM OF THE SPECIAL PROSECUTOR
IN SUPPORT OF MODIFICATION OF THE
TEMPORARY RESTRAINING ORDER
The Special Prosecutor submits this reply memorandum in
support of the Joint Motion of the Special Prosecutor and
defendants Arthur F. Sampson, Philip W. Buchen, and H. Stuart
Knight for modification of the temporary restraining order of
this Court to allow implementation of the November 9, 1974
Agreement reached by those parties.
145-171-133
INSPARSMENT
R
That Agreement is premised upon the personal determina-
tion of President Gerald R. Ford that the public interest 00 1074 and
GERAL RELIBARY
- 2 -
the due administration of justice require that the Special
Prosecutor have prompt and effective use of those presidential
materials of the Nixon Administration that are relevant and
important to investigations and prosecutions within the juris-
diction of the Watergate Special Prosecution Force. Pur-
suant to the Agreement the Special Prosecutor may conduct
limited searches for those materials under specified procedures.
Since implementation of the Agreement is dependent upon modi-
fication of this Court's temporary restraining order, defendants
and the Special Prosecutor moved on November 11, 1974 for a
modification of that Order.
As we have argued to the Court, the incumbent President
has a right to use the materials compiled during the Adminis-
tration of a former President. This right exists whether or
not the former President is deemed the "owner" of the
material. See Folsom V. Marsh, 9 Fed. Cas. 342, 347 (D.
Mass. 1841).
This principle is central to the rights and obligations
of the incumbent President under Article II of the Constitution
to "take Care that the Laws be faithfully executed," and it
consistently has been followed by past Presidents as a
necessary accommodation to the overriding needs of the govern-
ment. For example, as was pointed out in the memorandum in
support of the Joint Motion, after President Roosevelt's
death President Truman had unrestricted use of the papers of
1/ Counsel for Mr. Anderson has expressed the view that we
can have the right to use these materials only if the Government
is deemed their owner. This is obviously incorrect since the
very case relied on to establish ownership in the President--
Folsom V. Marsh--is the same case which sets forth the prin-
ciple we are urging here. This right, clearly a limited
property right to the information in the materials, has been
likened to an easement in real property.
LIBRARY GERALD R. FORDI
- 3 -
the Roosevelt Administration concerning the conduct of World
War II. See In re Roosevelt's Will, 73 N.Y.S.2d 821, 825
(Surr. Ct. Dutchess Co. 1947). More recently, President Nixon
was given access to papers stored in the Lyndon B. Johnson
Library in Austin, Texas when such materials pertained to
current government functions. Indeed, as the letters from
defendant Buchen to counsel to Mr. Nixon (attached to Nixon
Exhibit No. 5) clearly indicate, copies of many files and
other documents of the Nixon Administration presently are being
used by President Ford and his subordinates to conduct the
business of the United States. Those copies are now treated
as files of the Ford Administration.
In opposing the Joint Motion, plaintiff Nixon has not
challenged the principle of Folsom V. Marsh, supra; nor has be
denied that the principle has been followed by previous
Administrations as well as by President Ford. Plaintiff
opposes implementation of the November 9 Agreement, however,
on the ground that implementation would constitute an
unreasonable search and seizure in violation of the Fourth
Amendment.
The notion that the government could be prohibited by
the Fourth Amendment from having.access to materials (a) which
are lawfully within its possession, (b) which were produced
in the course of official government business by government
employees using government facilities, and (c) which the
President of the United States has asserted are presently 16"
quired for the conduct of ongoing government business is
frivolous. Simply stated, no illegal "search" or "seizure"
occurs when officials of the federal government are given
access to materials in the lawful possession and control or
QERALD FORD LIBRARY
- 4 -
the federal government. See, e.g., Burdeau v. McDowell, 256
U.S. 465 (1921).
The Fourth Amendment, as the Supreme Court has repeatedly
held, protects an individual against unjustified intrusions
into areas where there is a reasonable expectation of privacy.
See, e.g., Couch V. United States, 409 U.S. 324, 335-36 (1973)
Combs V. United States, 408 U.S. 224, 227 (1972) United State
v. White, 401 U.S. 745, 752 (1971); Mancusi V. De Forte, 392
U.S. 364, 368 (1968) Katz V. United States, 389 U.S. 347
(1967). It is difficult to perceive of a situation in which
there is a less justified expectation of freedom from governme
intrusion than the present. First, Mr. Nixon's "presidential
materials" all lawfully came into the possession of the govern
ment, and all are housed in a government building. See
United States V. Donato, 269 F. Supp. 921, 923-24 (E.D. Pa.),
aff'd., 379 F.2d 288 (3d Cir. 1967) (employee of United States
Mint has no greater expectation of privacy in goverment-owned
locker than he was given by the government); Jafree v. Scott,
372 F. Supp. 264, 273-74 (N.D. Ill. 1974). See also United
States V. Blok, 188 F.2d 1019 (D.C. Cir. 1951), where the
court stated that the superiors of a federal employee "might
reasonably have searched the desk [of the employee] for
The authorities cited by Mr. Nixon address only the ques-
tion of who has standing to protest a search and seizure and
seek suppression, not what constitutes an unlawful search
or seizure. See, e.g., Combs V. United States, 408 U.S. 224
(1972) ; Mancusi V. De Forte, 392 U.S. 364 (1968) ; Jones V.
United States, 362 U.S. 257 (1960). The distinction is far
from illusory. For example, if the Department of Health,
Education and Welfare or the Department of the Treasury were t.
allow officers of the Department of Justice access to a citi-
zen's social security or tax file, one may assume that the
citizen would have "standing" to protest the action. But any
suggestion that an illegal search and seizure occurred, with-
in the meaning of the Fourth Amendment, would be absurd.
LIBRARY GERALD FORD
- 5 -
official property needed for official use." Id. at 1021.
In addition, while the litigants in these consolidated
actions have offered divergent views as to who has title to
the Nixon "presidential materials," no one disputes that the
overwhelming bulk of them were generated as part of the
official business of the Executive Branch of the federal
government and that the materials are, therefore, affected
with a public interest. The Opinion of the Attorney General
dated September 6, 1974, for example, while concluding
that these documents and tapes are the property of the former
President, nevertheless recognizes that "historically, there
has been consistent acknowledgment that Presidential materials
are peculiarly affected by a public interest***." See also
Hearing before a Special Subcommittee of the Committee on
Government Operations, 84th Cong., 1st Sess. 12, 28 (1955)
(statements of James N. Milne and Wayne C. Grover). There
can be no legitimate expectation of privacy from government
intrusion for documents which are the records of that govern-
ment over a five-and-one-half year period. Indeed, the
Supreme Court has recognized that the strictures of the Fourth
Amendment do not apply with their usual force when public as
opposed to private papers are involved. See Davis V. United
States, 328 U.S. 582, 589-91 (1945); Wilson V. United States,
221 U.S. 361 (1911); Boyd V. United States, supra, 116 U.S. at
623-24. In Davis, for example, Justice Douglas upheld as
reasonable the warrantless search and seizure of gasoline ration
coupons, relying on "the public character of the property."
328 U.S. at 593.
It should be emphasized that the only materials to which
the November 9, 1974 Agreement applies are tapes and docu-
ments created or compiled in the course of official duties.
FORD is GERALD LIBRARY
- 6 -
It does not apply to documentation of personal, private
affairs of Mr. Nixon, including medical or financial records
3
or communications with his family or priest. Moreover,
the Court will be able to determine from the subpoenas sub-
mitted under seal (Nixon Exh. No. 2) that very few of the
42 million documents constituting the Nixon presidential
materials will be involved in the procedure provided by the
November 9, 1974 Agreement.
Contrary to the impression which Mr. Nixon seeks to
leave, the Agreement authorizes no general search, nor is it
a throwback to the writs of assistance. Indeed, unlike the
situation emphasized by the Supreme Court in Boyd V. United
States, 116 U.S. 616 (1886), there will be no rummaging through
a citizen's private papers.
In conclusion, the government has an information right
to the Nixon "presidential materials" that are necessary to
ongoing government business. Mr. Nixon has no justifiable
expectation of privacy from the government for those documents
in the government's custody which undisputably are records
of the Executive's operation during Mr. Nixon's term in office.
Respectfully submitted,
HENRY S. RUTH, JR.
Special Prosecutor
PETER M. KREINDLER
Counsel to the Special Prosecutor
3/ As the Special Prosecutor stated at the hearing before
this Court on November 15, 1974, there would be no objection
to Counsel for Mr. Nixon segregating these private materials
under appropriate procedures. It also should be noted that
they are not part of the res that is the subject matter of
this litigation.
LIBRARY GENALD OFF
- 7 -
RICHARD J. DAVIS
Assistant Special Prosecutor
KENNETH S. GELLER
Assistant Special Prosecutor
Watergate Special Prosecution
Force
1425 K Street, N.W.
Washington, D. C. 20005
Dated: November 22, 1974
FORD a 070839 LIBRARY
CERTIFICATE OF SERVICE
I hereby certify that I have caused to be served by
mail, postage prepaid, this 22nd day of November, 1974, on
the attorneys listed below a copy of the foregoing Reply
Memorandum Of The Special Prosecutor In Support Of Modifi-
cation Of The Temporary Restraining Order:
Jeffrey F. Axelrad, Esq.
Civil Division
U. S. Department of Justice
Room 3627
Washington, D. C. 20530
William A. Dobrovir, Esq.
2005 L Street, N.W.
Washington, D. C. 20036
Robert E. Herzstein, Esq.
Arnold & Porter
1229 19th Street, N.W.
Washington, D. C. 20036
Herbert J. Miller, Jr., Esq.
Miller, Cassidy, Larroca
& Lewin
1320 19th Street, N.W.
Washington, D. C. 20036
John H. F. Shattuck, Esq.
American Civil Liberties Union
22 East 40th Street
New York, New York 10016
PETER M. KREINDLER
LIBRARY GERALD = como
by 23 q AM
DEPT.OF JUSTICE
MAIL
UNITED STATES DISTRICT COURT
0.007
FOR THE DISTRICT OF COLUMBIA
)
RICHARD M. NIXON,
)
)
Plaintiff,
)
)
)
V.
)
Civil No. 74-1518
)
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
)
THE REPORTERS COMMITTEE FOR
)
DUCKET NOV RE 25 will 12/11/11 1974 of
FREEDOM OF THE PRESS, et al.,
)
)
Plaintiffs,
)
)
V.
)
Civil No.
)
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
)
LILLIAN HELLMAN, et al.,
)
)
Plaintiffs,
)
)
V.
)
Civil No. 74-1551
)
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
REPLY MEMORANDUM OF THE SPECIAL PROSECUTOR
IN SUPPORT OF MODIFICATION OF THE
TEMPORARY RESTRAINING ORDER
The Special Prosecutor submits this reply memorandum in
support of the Joint Motion of the Special Prosecutor and
defendants Arthur F. Sampson, Philip W. Buchen, and H. Stuart
Knight for modification of the temporary restraining order of
this Court to allow implementation of the November 9, 1974
Agreement reached by those parties.
145-171-133
IDEPARTMENT
R
That Agreement is premised upon the personal determina-
tion of President Gerald R. Ford that the public interest 1074 and
DIV.
seneral Litigation B. FOND %
BERALD
LIBRERA
- 2 -
the due administration of justice require that the Special
Prosecutor have prompt and effective use of those presidential
materials of the Nixon Administration that are relevant and
important to investigations and prosecutions within the juris-
diction of the Watergate Special Prosecution Force. Pur-
suant to the Agreement the Special Prosecutor may conduct
limited searches for those materials under specified procedures.
Since implementation of the Agreement is dependent upon modi-
fication of this Court's temporary restraining order, defendants
and the Special Prosecutor moved on November 11, 1974 for a
modification of that Order.
As we have argued to the Court, the incumbent President
has a right to use the materials compiled during the Adminis-
tration of a former President. This right exists whether or
not the former President is deemed the "owner" of the -
material. See Folsom V. Marsh, 9 Fed. Cas. 342, 347 (D.
Mass. 1841).
This principle is central to the rights and obligations
of the incumbent President under Article II of the Constitution
to "take Care that the Laws be faithfully executed," and it
consistently has been followed by past Presidents as a
necessary accommodation to the overriding needs of the govern-
ment. For example, as was pointed out in the memorandum in
support of the Joint Motion, after President Roosevelt's
death President Truman had unrestricted use of the papers of
1/ Counsel for Mr. Anderson has expressed the view that we
can have the right to use these materials only if the Government
is deemed their owner. This is obviously incorrect since the
very case relied on to establish ownership in the President--
Folsom V. Marsh--is the same case which sets forth the prin-
ciple we are urging here. This right, clearly a limited
property right to the information in the materials, has been
likened to an easement in real property.
FORDO is 07V330 LIBRARY
- 3 -
the Roosevelt Administration concerning the conduct of World
War II. See In re Roosevelt's Will, 73 N.Y.S.2d 821, 825
(Surr. Ct. Dutchess Co. 1947). More recently, President Nixon
was given access to papers stored in the Lyndon B. Johnson
Library in Austin, Texas when such materials pertained to
current government functions. Indeed, as the letters from
defendant Buchen to counsel to Mr. Nixon (attached to Nixon
Exhibit No. 5) clearly indicate, copies of many files and
other documents of the Nixon Administration presently are being
used by President Ford and his subordinates to conduct the
business of the United States. Those copies are now treated
as files of the Ford Administration.
In opposing the Joint Motion, plaintiff Nixon has not
challenged the principle of Folsom v. Marsh, supra; nor has he
denied that the principle has been followed by previous
Administrations as well as by President Ford. Plaintiff
opposes implementation of the November 9 Agreement, however,
on the ground that implementation would constitute an
unreasonable search and seizure in violation of the Fourth
Amendment.
The notion that the government could be prohibited by
the Fourth Amendment from having access to materials (a) which
are lawfully within its possession, (b) which were produced
in the course of official government business by government
employees using government facilities, and (c) which the
President of the United States has asserted are presently re-
quired for the conduct of ongoing government business is
frivolous. Simply stated, no illegal "search" or "seizure"
occurs when officials of the federal government are given
access to materials in the lawful possession and control of
BERALD FORD LIBRARY
- 4 -
the federal government. See, e.g., Burdeau V. McDowell, 256
U.S. 465 (1921).
The Fourth Amendment, as the Supreme Court has repeatedly
held, protects an individual against unjustified intrusions
into areas where there is a reasonable expectation of privacy.
See, e.g., Couch V. United States, 409 U.S. 324, 335-36 (1973)
Combs V. United States, 408 U.S. 224, 227 (1972); United State
v. White, 401 U.S. 745, 752 (1971); Mancusi V. De Forte, 392
U.S. 364, 368 (1968) ; Katz V. United States, 389 U.S. 347
(1967). It is difficult to perceive of a situation in which
there is a less justified expectation of freedom from governme
intrusion than the present. First, Mr. Nixon's "presidential
materials" all lawfully came into the possession of the govern
ment, and all are housed in a government building. See
United States v. Donato, 269 F. Supp. 921, 923-24 (E.D. Pa.),
aff'd., 379 F.2d 288 (3d Cir. 1967) (employee of United States
Mint has no greater expectation of privacy in goverment-owned
locker than he was given by the government); Jafree V. Scott,
372 F. Supp. 264, 273-74 (N.D. Ill. 1974). See also United
States V. Blok, 188 F.2d 1019 (D.C. Cir. 1951), where the
court stated that the superiors of a federal employee "might
reasonably have searched the desk [of the employee] for
2/ The authorities cited by Mr. Nixon address only the ques-
tion of who has standing to protest a search and seizure and
seek suppression, not what constitutes an unlawful search
or seizure. See, e.g., Combs V. United States, 408 U.S. 224
(1972) ; Mancusi V. De Forte, 392 U.S. 364 (1968) ; Jones V.
United States, 362 U.S. 257 (1960). The distinction is far
from illusory. For example, if the Department of Health,
Education and Welfare or the Department of the Treasury were to
allow officers of the Department of Justice access to a citi-
zen's social security or tax file, one may assume that the
citizen would have "standing" to protest the action. But any
suggestion that an illegal search and seizure occurred, with-
in the meaning of the Fourth Amendment, would be absurd.
suno
GERALD
LIBRARY
- 5 -
official property needed for official use." Id. at 1021.
In addition, while the litigants in these consolidated
actions have offered divergent views as to who has title to
the Nixon "presidential materials," no one disputes that the
overwhelming bulk of them were generated as part of the
official business of the Executive Branch of the federal
government and that the materials are, therefore, affected
with a public interest. The Opinion of the Attorney General
dated September 6, 1974, for example, while concluding
that these documents and tapes are the property of the former
President, nevertheless recognizes that "historically, there
has been consistent acknowledgment that Presidential materials
are peculiarly affected by a public interest***.' See also
Hearing before a Special Subcommittee of the Committee on
Government Operations, 84th Cong., 1st Sess. 12, 28 (1955)
(statements of James N. Milne and Wayne C. Grover). There
can be no legitimate expectation of privacy from government
intrusion for documents which are the records of that govern-
ment over a five-and-one-half year period. Indeed, the
Supreme Court has recognized that the strictures of the Fourth
Amendment do not apply with their usual force when public as
opposed to private papers are involved. See Davis V. United
States, 328 U.S. 582, 589-91 (1945); Wilson V. United States,
221 U.S. .361 (1911); Boyd V. United States, supra, 116 U.S. at
623-24. In Davis, for example, Justice Douglas upheld as
reasonable the warrantless search and seizure of gasoline ration
coupons, relying on "the public character of the property."
328 U.S. at 593.
It should be emphasized that the only materials to which
the November 9, 1974 Agreement applies are tapes and docu-
ments created or compiled in the course of official duties.
FORD is LIBRA,
- 6 -
It does not apply to documentation of personal, private
affairs of Mr. Nixon, including medical or financial records
or communications with his family or priest. Moreover,
the Court will be able to determine from the subpoenas sub-
mitted under seal (Nixon Exh. No. 2) that very few of the
42 million documents constituting the Nixon presidential
materials will be involved in the procedure provided by the
November 9, 1974 Agreement.
Contrary to the impression which Mr. Nixon seeks to
leave, the Agreement authorizes no general search, nor is it
a throwback to the writs of assistance. Indeed, unlike the
situation emphasized by the Supreme Court in Boyd V. United
States, 116 U.S. 616 (1886), there will be no rummaging through
a citizen's private papers.
In conclusion, the government has an information right
to the Nixon "presidential materials" that are necessary to
ongoing government business. Mr. Nixon has no justifiable
expectation of privacy from the government for those documents
in the government's custody which undisputably are records
of the Executive's operation during Mr. Nixon's term in office.
Respectfully submitted,
HENRY S. RUTH, JR.
Special Prosecutor
PETER M. KREINDLER
Counsel to the Special Prosecutor
3/ As the Special Prosecutor stated at the hearing before
this Court on November 15, 1974, there would be no objection
to Counsel for Mr. Nixon segregating these private materials
under appropriate procedures. It also should be noted that
they are not part of the res that is the subject matter of
this litigation.
FORD i LIBRARY GERALD
- 7 -
RICHARD J. DAVIS
Assistant Special Prosecutor
KENNETH S. GELLER
Assistant Special Prosecutor
Watergate Special Prosecution
Force
1425 K Street, N.W.
Washington, D. C. 20005
Dated: November 22, 1974
FORD is 07V839 LIBRARY
CERTIFICATE OF SERVICE
I hereby certify that I have caused to be served by
mail, postage prepaid, this 22nd day of November, 1974, on
the attorneys listed below a copy of the foregoing Reply
Memorandum Of The Special Prosecutor In Support Of Modifi-
cation Of The Temporary Restraining Order:
Jeffrey F. Axelrad, Esq.
Civil Division
U. S. Department of Justice
Room 3627
Washington, D. C. 20530
William A. Dobrovir, Esq.
2005 L Street, N.W.
Washington, D. C. 20036
Robert E. Herzstein, Esq.
Arnold & Porter
1229 19th Street, N.W.
Washington, D. C. 20036
Herbert J. Miller, Jr., Esq.
Miller, Cassidy, Larroca
& Lewin
1320 19th Street, N.W.
Washington, D. C. 20036
John H. F. Shattuck, Esq.
American Civil Liberties Union
22 East 40th Street
New York, New York 10016
PETER M. KREINDLER
FORD : 07V830 LIBRARY
RECEIVED
UNITED STATES DISTRICT COURT
Nov 27 8 29 AM 174
FOR THE DISTRICT OF COLUMBIA
DEPT
MAIL ROOM
0808
KICHARD M. NIXON,
)
)
Plaintiff,
)
)
V.
)
Civil No. 74-1518
)
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
and
)
)
THE REPORTERS COMMITTEE FOR
)
FREEDOM OF THE PRESS, et al.,
)
)
Plaintiffs,
)
)
V.
Civil No. 74-1533
ARTHUR F. SAMPSON, et al.,
Defendants.
and
DEPARTMENT 1911110 RECEIVED NOV 29 y to ) 1974 CIVIL DIVISION voil TEXTS
LILLIAN HELLMAN, et al.,
Plaintiffs,
)
)
V.
)
Civil No. 74-1551
)
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
)
STIPULATION
1. It is hereby stipulated and agreed between
counsel for plaintiffs and counsel for defendant Richard M.
Nixon that the time within which said defendant may answer,
145-171-133 DEPARTMENT 0F
33
NOV 27 1974
R
R.A.O.
D
CIVIL
D.Y.
General Litigation $3
FORD & 03RV70 LIBRARY
move or otherwise plead with respect to the complaint herein
be and t is hereby extended to December 13, 1974.
2. Defendant Nixon asserts that he does not waive
any defenses, including lack of personal jurisdiction over
the defendant by this stipulation.
3. John H. F. Shattuck, counsel for plaintiffs
has authorized counsel for defendant Nixon to sign his name
to this stipulation.
Respectfully submitted,
HERBERT
J. MILLER, IndeJ JR. bynk
RAYMOND G. LARROCA
William have
WILLIAM H. JEFFRESS JR.
R. Ston Intense 6,12/12
R. STAN MORTENSON
MILLER, CASSIDY, LARROCA & LEWIN
1320 19th Street, N.W., Suite 500
Washington, D. C. 20036
JOHN John H. F. H SHATTUCK Shaltuch by REL
Counsel for Plaintiffs
Dated: November 25, 1974
FORD is LIBRARY GERALD
CERTIFICATE OF SERVICE
I hereby certify that a copy of the attached
Stipulation was mailed this 25th day of November, 1974,
first class mail, postage prepaid, to the following:
Jeffrey F. Axelrad, Esquire
Civil Division
General Litigation Section
Room 3627, U. S. Department of Justice
Washington, D. C. 20530
Peter Kreindler, Esquire
Counsel to the Special Prosecutor
1425 K Street, N.W.
Washington, D. C. 20005
Robert E. Herzstein, Esquire
Arnold & Porter
1229 19th Street, N.W.
Washington, D. C. 20036
William A. Dobrovir, Esquire
2005 L Street, N.W.
Washington, D. C. 20036
John H. F. Shattuck, Esquire
American Civil Liberties Union
Foundation
22 East 40th Street
New York, New York 10016
RAYMOND G. LARROCA
FORD : GIVEN LIBRARY
thy 73 q 38 AM "?"
DEPT. JUSTICE
MAIL
UNITED STATES DISTRICT COURT
CHOP
FOR THE DISTRICT OF COLUMBIA
RICHARD M. NIXON,
)
)
Plaintiff,
)
)
)
v.
)
Civil No. 74-1518
)
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
)
THE REPORTERS COMMITTEE FOR
)
UNITED 110 DUCKE, NOV Rt: 25 will INSTITIT 1974 0
FREEDOM OF THE PRESS, et al.,
)
)
Plaintiffs,
)
)
V.
)
Civil No.
)
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
)
LILLIAN HELLMAN, et al.,
)
)
Plaintiffs,
)
)
V.
)
Civil No. 74-1551
)
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
REPLY MEMORANDUM OF THE SPECIAL PROSECUTOR
IN SUPPORT OF MODIFICATION OF THE
TEMPORARY RESTRAINING ORDER
The Special Prosecutor submits this reply memorandum in
support of the Joint Motion of the Special Prosecutor and
defendants Arthur F. Sampson, Philip W. Buchen, and H. Stuart
Knight for modification of the temporary restraining order of
this Court to allow implementation of the November 9, 1974
Agreement reached by those parties.
145-171-133
R
That Agreement is premised upon the personal determina- To:
tion of President Gerald R. Ford that the public interest 67- 1074 and
$4
LIGRAST GERALD ?
- 2 -
the due administration of justice require that the Special
Prosecutor have prompt and effective use of those presidential
materials of the Nixon Administration that are relevant and
important to investigations and prosecutions within the juris-
diction of the Watergate Special Prosecution Force. Pur-
suant to the Agreement the Special Prosecutor may conduct
limited searches for those materials under specified procedures.
Since implementation of the Agreement is dependent upon modi-
fication of this Court's temporary restraining order, defendants
and the Special Prosecutor moved on November 11, 1974 for a
modification of that Order.
As we have argued to the Court, the incumbent President
has a right to use the materials compiled during the Adminis-
tration of a former President. This right exists whether or
not the former President is deemed the "owner" of the
material. See Folsom V. Marsh, 9 Fed. Cas. 342, 347 (D.
Mass. 1841).
This principle is central to the rights and obligations
of the incumbent President under Article II of the Constitution
to "take Care that the Laws be faithfully executed," and it
consistently has been followed by past Presidents as a
necessary accommodation to the overriding needs of the govern-
ment. For example, as was pointed out in the memorandum in
support of the Joint Motion, after President Roosevelt's
death President Truman had unrestricted use of the papers of
1/ Counsel for Mr. Anderson has expressed the view that we
can have the right to use these materials only if the Government
is deemed their owner. This is obviously incorrect since the
very case relied on to establish ownership in the President--
Folsom V. Marsh--is the same case which sets forth the prin-
ciple we are urging here. This right, clearly a limited
property right to the information in the materials, has been
likened to an easement in real property.
FORD LIBRARY 078839
- 3 -
the Roosevelt Administration concerning the conduct of World
War II. See In re Roosevelt's Will, 73 N.Y.S.2d 821, 825
(Surr. Ct. Dutchess Co. 1947). More recently, President Nixon
was given access to papers stored in the Lyndon B. Johnson
Library in Austin, Texas when such materials pertained to
current government functions. Indeed, as the letters from
defendant Buchen to counsel to Mr. Nixon (attached to Nixon
Exhibit No. 5) clearly indicate, copies of many files and
other documents of the Nixon Administration presently are being
used by President Ford and his subordinates to conduct the
business of the United States. Those copies are now treated
as files of the Ford Administration.
In opposing the Joint Motion, plaintiff Nixon has not
challenged the principle of Folsom V. Marsh, supra; nor has he
denied that the principle has been followed by previous
Administrations as well as by President Ford. Plaintiff
opposes implementation of the November 9 Agreement, however,
on the ground that implementation would constitute an
unreasonable search and seizure in violation of the Fourth
Amendment.
The notion that the government could be prohibited by
the Fourth Amendment from having.access to materials (a) which
are lawfully within its possession, (b) which were produced
in the course of official government business by government
employees using government facilities, and (c) which the
President of the United States has asserted are presently re-
quired for the conduct of ongoing government business is
frivolous. Simply stated, no illegal "search" or "seizure"
occurs when officials of the federal government are given
access to materials in the lawful possession and control of
GERALD FORD LIBRARY
- 4 -
the federal government. See, e.g., Burdeau v. McDowell, 256
U.S. 465 (1921).
The Fourth Amendment, as the Supreme Court has repeatedly
held, protects an individual against unjustified intrusions
into areas where there is a reasonable expectation of privacy.
See, e.g., Couch V. United States, 409 U.S. 324, 335-36 (1973)
Combs V. United States, 408 U.S. 224, 227 (1972); United State
v. White, 401 U.S. 745, 752 (1971); Mancusi v. De Forte, 392
U.S. 364, 368 (1968) ; Katz V. United States, 389 U.S. 347
(1967). It is difficult to perceive of a situation in which
there is a less justified expectation of freedom from governme
intrusion than the present. First, Mr. Nixon's "presidential
materials" all lawfully came into the possession of the govern
ment, and all are housed in a government building. See
United States v. Donato, 269 F. Supp. 921, 923-24 (E.D. Pa.),
aff'd., 379 F.2d 288 (3d Cir. 1967) (employee of United States
Mint has no greater expectation of privacy in goverment-owned
locker than he was given by the government); Jafree V. Scott,
372 F. Supp. 264, 273-74 (N.D. Ill. 1974). See also United
States V. Blok, 188 F.2d 1019 (D.C. Cir. 1951), where the
court stated that the superiors of a federal employee "might
reasonably have searched the desk [of the employee] for
2/ The authorities cited by Mr. Nixon address only the ques-
tion of who has standing to protest a search and seizure and
seek suppression, not what constitutes an unlawful search
or seizure. See, e.g., Combs v. United States, 408 U.S. 224
(1972) ; Mancusi V. De Forte, 392 U.S. 364 (1968) ; Jones V.
United States, 362 U.S. 257 (1960). The distinction is far
from illusory. For example, if the Department of Health,
Education and Welfare or the Department of the Treasury were to
allow officers of the Department of Justice access to a citi-
zen's social security or tax file, one may assume that the
citizen would have "standing" to protest the action. But any
suggestion that an illegal search and seizure occurred, with-
in the meaning of the Fourth Amendment, would be absurd.
FORD = BERALD LIBRARY
- 5 -
official property needed for official use." Id. at 1021.
In addition, while the litigants in these consolidated
actions have offered divergent views as to who has title to
the Nixon "presidential materials," no one disputes that the
overwhelming bulk of them were generated as part of the
official business of the Executive Branch of the federal
government and that the materials are, therefore, affected
with a public interest. The Opinion of the Attorney General
dated September 6, 1974, for example, while concluding
that these documents and tapes are the property of the former
President, nevertheless recognizes that "historically, there
has been consistent acknowledgment that Presidential materials
are peculiarly affected by a public interest***. See also
Hearing before a Special Subcommittee of the Committee on
Government Operations, 84th Cong., 1st Sess. 12, 28 (1955)
(statements of James N. Milne and Wayne C. Grover). There
-
can be no legitimate expectation of privacy from government
intrusion for documents which are the records of that govern-
ment over a five-and-one-half year period. Indeed, the
Supreme Court has recognized that the strictures of the Fourth
Amendment do not apply with their usual force when public as
opposed to private papers are involved. See Davis V. United
States, 328 U.S. 582, 589-91 (1945); Wilson V. United States,
221 U.S. 361 (1911) ; Boyd V. United States, supra, 116 U.S. at
623-24. In Davis, for example, Justice Douglas upheld as
reasonable the warrantless search and seizure of gasoline ration
coupons, relying on "the public character of the property."
328 U.S. at 593.
It should be emphasized that the only materials to which
the November 9, 1974 Agreement applies are tapes and docu-
ments created or compiled in the course of official duties.
LIBRAR GERALD ? FORD
H:
- 6 -
It does not apply to documentation of personal, private
affairs of Mr. Nixon, including medical or financial records
3/
or communications with his family or priest. Moreover,
the Court will be able to determine from the subpoenas sub-
mitted under seal (Nixon Exh. No. 2) that very few of the
42 million documents constituting the Nixon presidential
materials will be involved in the procedure provided by the
November 9, 1974 Agreement.
Contrary to the impression which Mr. Nixon seeks to
leave, the Agreement authorizes no general search, nor is it
a throwback to the writs of assistance. Indeed, unlike the
situation emphasized by the Supreme Court in Boyd V. United
States, 116 U.S. 616 (1886), there will be no rummaging through
a citizen's private papers.
In conclusion, the government has an information right
to the Nixon "presidential materials" that are necessary to
ongoing government business. Mr. Nixon has no justifiable
expectation of privacy from the government for those documents
in the government's custody which undisputably are records
of the Executive's operation during Mr. Nixon's term in office.
Respectfully submitted,
HENRY S. RUTH, JR.
Special Prosecutor
PETER M. KREINDLER
Counsel to the Special Prosecutor
3/ As the Special Prosecutor stated at the hearing before
this Court on November 15, 1974, there would be no objection
to Counsel for Mr. Nixon segregating these private materials
under appropriate procedures. It also should be noted that
they are not part of the res that is the subject matter of
this litigation.
FORD is QERALD LIBRARY
- 7 -
RICHARD J. DAVIS
Assistant Special Prosecutor
KENNETH S. GELLER
Assistant Special Prosecutor
Watergate Special Prosecution
Force
1425 K Street, N.W.
Washington, D. C. 20005
Dated: November 22, 1974
LIBRARY GERALD R. FORD
CERTIFICATE OF SERVICE
I hereby certify that I have caused to be served by
mail, postage prepaid, this 22nd day of November, 1974, on
the attorneys listed below a copy of the foregoing Reply
Memorandum Of The Special Prosecutor In Support Of Modifi-
cation Of The Temporary Restraining Order:
Jeffrey F. Axelrad, Esq.
Civil Division
U. S. Department of Justice
Room 3627
Washington, D. C. 20530
William A. Dobrovir, Esq.
2005 L Street, N.W.
Washington, D. C. 20036
Robert E. Herzstein, Esq.
Arnold & Porter
1229 19th Street, N.W.
Washington, D. C. 20036
Herbert J. Miller, Jr., Esq.
Miller, Cassidy, Larroca
& Lewin
1320 19th Street, N.W.
Washington, D. C. 20036
John H. F. Shattuck, Esq.
American Civil Liberties Union
22 East 40th Street
New York, New York 10016
PETER M. KREINDLER
LIBRARY GERALD R. FORD
RECEIVED
)
UNITED STATES DISTRICT COURT
Nov 27 8 29 AM 174
FOR THE DISTRICT OF COLUMBIA
DEPT
LOS:
MAIL ROOM
CROP
RICHARD M. NIXON,
)
)
Plaintiff,
)
)
V.
)
Civil No. 74-1518
)
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
and
)
)
THE REPORTERS COMMITTEE FOR
)
FREEDOM OF THE PRESS, et al.,
)
)
Plaintiffs,
)
)
V.
Civil No. 74-1533
ARTHUR F. SAMPSON, et al.,
Defendants.
and
181 1911110 NOV 29 ) 1974 STATE July
LILLIAN HELLMAN, et al.,
Plaintiffs,
)
)
V.
)
Civil No. 74-1551
)
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
)
STIPULATION
1. It is hereby stipulated and agreed between
counsel for plaintiffs and counsel for defendant Richard M.
Nixon that the time within which said defendant may answer,
145,171-133 DEPARTMENT OF
LIBRARY GERALD : FORD
33
NOV 27 1974
R
R.A.O.
D
CIVIL DIV.
Goacral Lidgation Set
move or otherwise plead with respect to the complaint herein
be and t is hereby extended to December 13, 1974.
2. Defendant Nixon asserts that he does not waive
any defenses, including lack of personal jurisdiction over
the defendant by this stipulation.
3. John H. F. Shattuck, counsel for plaintiffs
has authorized counsel for defendant Nixon to sign his name
to this stipulation.
Respectfully submitted,
Halny J. India bynes
HERBERT MILLER, JR.
RAYMOND G. LARROCA
William bares
WILLIAM H. JEFFRESS JR.
R. STAN MORTENSON
MILLER, CASSIDY, LARROCA & LEWIN
1320 19th Street, N.W., Suite 500
Washington, D. C. 20036
JOHN John H. F. H SHATTUCK Shaltreek by REL
Counsel for Plaintiffs
Dated: November 25, 1974
LIBRARY GERALD ? FORD
CERTIFICATE OF SERVICE
I hereby certify that a copy of the attached
Stipulation was mailed this 25th day of November, 1974,
first class mail, postage prepaid, to the following:
Jeffrey F. Axelrad, Esquire
Civil Division
General Litigation Section
Room 3627, U. S. Department of Justice
Washington, D. C. 20530
Peter Kreindler, Esquire
Counsel to the Special Prosecutor
1425 K Street, N.W.
Washington, D. C. 20005
Robert E. Herzstein, Esquire
Arnold & Porter
1229 19th Street, N.W.
Washington, D. C. 20036
William A. Dobrovir, Esquire
2005 L Street, N.W.
Washington, D. C. 20036
John H. F. Shattuck, Esquire
American Civil Liberties Union
Foundation
22 East 40th Street
New York, New York 10016
RAYMOND G. LARROCA
R.
FORD
GTVN3D
LISAARY