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This file contains material relating to the Ralph Newman appraisal; documents from the case; and correspondence.
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1126650
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Nixon v. Sampson (1)
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1126650
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Nixon v. Sampson (1)
description
This file contains material relating to the Ralph Newman appraisal; documents from the case; and correspondence.
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collections
Benton L. Becker Papers
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Nixon papers
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1126650
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11
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1974
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1969-01-01
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1969
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The original documents are located in Box 2, folder "Nixon V. Sampson (1)" of the
Benton L. Becker Papers 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. Benton Becker 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States of America his copyrights in all of his unpublished writings in National Archives collections.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.
Digitized from Box 2 of the Benton Becker Papers at the Gerald R. Ford Presidential Library
File... 10
Papers relating to
Nixon v. Sampan lity 75
NIXON VS. SAMPSON
A.st (for 3c. Julg
(gost goodow) he used
Richey
Nispon Nispon Pardon Pardon
FORD
GERALD
TELEPHONE WHITEHALL 4-3085
ABRAHAM LINCOLN BOOK SHOP, INC.
Fine Arts Appraisers
18 EAST CHESTNUT STREET
CHICAGO, ILLINOIS, 60611
Richard Milhous Nixon
The White House
Washington, D. C. 20500
1969
GERALD R. FORD
APPRAISAL
STATE OF ILLINOIS
SS
COUNTY OF COOK
Ralph G. Newman
being first duly sworn, upon oath deposes and states as
follows:
1. He is the president
and the duly authorized agent in this behalf of Abraham
Lincoln Book Shop, Inc., and he makes this affidavit in its behalf and under its lawful authority. He
has full personal knowledge of all of the matters and things-hereinafter set forth.
2. Said Abraham Lincoln Book Shop, Inc., was duly authorized and created and exists under
and by virtue of the laws of the State of Illinois and it is duly authorized to and does transact business
in the State of Illinois and throughout the United States.
3. Among the purposes and businesses of said Abraham Lincoln Book Shop, Inc., is the buy-
ing, selling and dealing in and general appraisal of libraries, collections of rare books, autographs, let-
ters, documents, drawings, prints, paintings, etchings, broadsides, historical objects, mementos and
curiosities and other allied printed, pictorial and manuscript materials.
4. Said Abraham Lincoln Book Shop, Inc., its officers, employees and agents, and its prede-
cessor companies have been doing business as appraisers of libraries, collections of rare books, auto-
graphs, letters, documents, drawings, printing, paintings, etchings, broadsides, historical objects, me-
mentos and curiosities and other allied printed, pictorial and manuscript materials since the year 1933,
in Illinois and in various other states of the United States of America and have been called upon as
consultants in such matters by many of the leading private collectors, libraries, museums and public
and private institutions of this country.
5. The said Abraham Lincoln Book Shop, Inc., through its employees, agents and officers
did, from the sixth to the eighth day of April
1969
and on Nov. 3, Nov. 17 through 20, and December 8
1969, examine the
PAPERS OF RICHARD MILHOUS NIXON, PART II
being the property of
Richard Milhous Nixon
The White House
Washington, D. C. 20500
and found that the reasonable and fair and true market value thereof in money was
Five Hundred Seventy-Six Thousand and no/hundredths
Dollars
( $576,000.00 ) as appears from the annexed schedule attached hereto and made a part thereof.
This deponent verily believes the said valuation to be the fair and reasonable and true market
value.
known
Subscribed and sworn to before me, a Notary Public, this
sixth
1970
of expires Cook County, September Illinois. day 30, cf 1971 April
GERALD R LIBRARY FORD
Notary Public
My commission
APPRAISAL
Abraham Lincoln Book Shop, Inc., an Illinois corporation having its principal place of business
in Chicago, Illinois, does hereby certify that, through its officers, agents and employees, it is familiar
with and has carefully examined and appraised:
THE PAPERS OF RICHARD MILHOUS NIXON, PART II
This material is the property of
Richard Milhous Nixon
The White House
Washington, D. C. 20500
and is listed in the schedule herewith following and attached to this statement and expressly made a
part thereof. There has been recorded, together with the listing of each item, figures representing the
fair and reasonable and true market value thereof, in money, as by it known, estimated and believed
as of the twenty-seventh
March
day of
1969
In witness whereof Abraham Lincoln Book Shop, Inc. has appended hereto the affidavit of its
president
Ralph G. Newman
,
and has caused
these presents to be signed in its behalf by its president
and attested by its
secretary, Margaret H. April
and its corporate seal to be hereunto affixed
this sixth
day of
April
1970
ABRAHAM LINCOLN BOOK SHOP, INC.
an Illinois corporation
By howman
president
Attested:
By Margaret H. secretary april
FORD a LIBRARY UERALD
PROPERTY OF RICHARD MILHOUS NIXON
The White House
Washington, D. C. 20500
APPRAISAL
THE PAPERS OF RICHARD MILHOUS NIXON
PART II
Part II of The Papers of Richard Milhous Nixon was
delivered to the Office of Presidential Papers of
The National Archives and Records Service, Washington,
D. C., March 24 to 27, 1969.
These papers were transferred from their original
containers to standard archives boxes by the members
of the staff of the Office of Presidential Papers.
In identifying the papers our reference to boxes is
to these standard archives boxes.
The papers and documents covered by this document
are divided into five (5) general divisions, and are
so identified.
GERALD A LIBRARY FORD
-2
RICHARD MILHOUS NIXON
PROPERTY OF
The White House
Washington, D. C. 20500
THE PAPERS OF RICHARD MILHOUS NIXON
PART II
I.
GENERAL CORRESPONDENCE
AS VICE PRESIDENT, 1953-1961
Aandahl through Zwieng
[National Archives Boxes #18
through #845]
828 boxes
414,000 items
II. APPEARANCE FILE
1948-1962
[National Archives Boxes
#1 through #173]
173 boxes
87,000 items
III. CORRESPONDENCE
RE: INVITATIONS AND TURN-DOWNS
1954-1961
[In unnumbered National Archives Boxes]
56 boxes
27,000 items
BERALD R. FORD LIBRARY
PROPERTY OF RICHARD MILHOUS NIXON
The White House
Washington, D. C. 20500
IV. FOREIGN TRIP FILES
AS VICE PRESIDENT, 1953-1961
[In unnumbered National Archives
Boxes]
116 boxes
57,000 items
V.
VISIT OF NIKITA S. KHRUSCHEV
TO THE UNITED STATES, 1959
[In unnumbered National Archives
Boxes]
3 boxes
15,000 items
Total number of boxes; Part II;
The Richard Milhous Nixon Papers ---- 1,176
Total number of items; Part II,
The Richard Milhous Nixon Papers -- 600,000
GERALD LEBRANT R FORD
PROPERTY OF RICHARD MILHOUS NIXON
The White House
Washington, D. C. 20500
The appraised fair market value of The Richard
Milhous Nixon Papers, Part II, as of the twenty
seventh day of March, One Thousand Nine Hundred
Sixty Nine, is Five Hundred Seventy Six Thousand
and no/hundredths Dollars ($576.000).
GERALD R. FORD LIBRARD
-5-
RALPH GEOFFREY NEWMAN -- QUALIFICATIONS
(See biographical sketch from WHO'S WHO IN AMERICA, attached)
Ralph Geoffrey Newman has been engaged in the buying and selling,
appraisal, and authentication of rare books, manuscripts, films, photographs,
prints, archives, and historical and literary properties, etc. since 1933.
He has been recognized internationally as an authority in his field and
has been honored for his work with degrees from James Millikin University,
Lincoln College, Iowa Wesleyan College, Knox College, and Rockford College.
He has also been the recipient of many honors from learned societies,
universities, and other organizations including the Freedoms Foundation at
Valley Forge, the Independence Hall Association, Lincoln Memorial University,
Friends of American Writers, the Civil War Round Table, the Royal Society
(London), Lincoln Group of Washington, the Manuscript Society, Lincoln
College, and others.
He has acted as a consultant in the assembling of some of the major
collections in the United States, both private and public. His clients include
the Library of Congress, the United States Army Military History Research
Collection, the National Archives, the Chicago Historical Society, Notre Dame
University, the State Historical Society of Wisconsin, Yale University Library,
Cornell University Library, Lincoln National Life Foundation, Oregon Historical
Society, David Wolper Productions, Walt Disney Productions, the Bell and
Howell Company, and many distinguished individuals, including the Presidents
of the United States, members of the Supreme Court, the Senate and House of
Representatives of the United States, leading industrialists, collectors,
authors, and historians.
He has appraised collections for all of the above and for hundreds of
others, including banks, insurance companies, attorneys, and business firms.
He has been president of the Illinois State Historical Society, the
Adult Education Council of Greater Chicago, the Civil War Round Table, and
is currently president of the Board of Directors of the Chicago Public Library.
He is a member of the Library Council of Notre Dame University, a trustee of
Lincoln College and of Lincoln Memorial University, and a director of the
Abraham Lincoln Association. He served as chairman of the Illinois Commission
for the New York World's Fair and as chairman of the Illinois Sesquicentennial
Commission. Currently, he is a member of the Illinois Special Events
Commission. He was special consultant to the Secretary of the Interior for
the opening of Ford's Theatre in Washington and is chairman of the Board of
Directors of the Ford's Theatre Society.
FORD A. LIBRARY GERALD
RALPH GEOFFREY NEWMAN - QUALIFICATIONS
(continued)
He is president of the Abraham Lincoln Book Shop, Inc. and of
Ralph Geoffrey Newman, Inc. Both of these firms specialize in the buying,
selling, and appraisal of rare books, manuscripts, and materials in the
field of communication.
He has served as special consultant for a variety of business firms,
including Encyclopaedia Britannica, Broadcast Music, Inc., WGN Continental
Broadcasting Company, Automatic Retailers of America, and the Parker Pen
Company. In 1969, he supervised the planning and construction of a Lincoln
and American History exhibit which he took to Japan and Australia under the
auspices of the United States Department of Commerce.
Allan Nevins, America's leading historian and twice winner of the
Pulitzer Prize for history, has characterized Newman as "a national resource."
The late Carl Sandburg called him a "unique and useful American."
Since 1950 his work has concentrated on the field of appraisals and
he has been widely recognized as one of the most qualified persons in the
field. He is a member of the American Society of Appraisers and the
Appraisers Association of America. His articles on appraisals have appeared
in many publications including the ANTIQUARIAN BOOKMAN, MANUSCRIPTS,
AMERICAN HERITAGE, and the ASSOCIATION FOR STATE AND LOCAL HISTORY
BULLETIN.
Newman is the author of several works including THE AMERICAN
ILIAD, EYEWITNESS, THE CIVIL WAR DIGEST, LINCOLN FOR THE AGES, and
999 QUESTIONS AND ANSWERS ON AMERICAN HISTORY. His articles have
appeared in the country's leading publications and he has been the subject
of articles in the SATURDAY EVENING POST, READER'S DIGEST, HOLIDAY,
and other nationally known periodicals. He writes a weekly column for
the CHICAGO TRIBUNE, "Do You Remember?" which has been a popular
feature for almost ten years.
At a ceremony in Washington a few years ago, when tribute was paid
to Newman, Dr David C. Mearns of the Library of Congress referred to him
as "Acknowledged authority
preceptor of the past for the enlightenment
of the future."
CORALD LIBRAT FORD
Some items in this folder were not digitized because it contains copyrighted
materials. Please contact the Gerald R. Ford Presidential Library for access to
these materials.
FROM WHO'S WHO IN AMERICA
Volume 35,
1968
-
1969
NEWMAN, Ralph Geoffrey, bookseller, pub.; b.
Chgo., Nov. 3, 1911; S. Henry and Dora (Glick-
man) N.; Litt.D., James Milliken U. (Lincoln Coll.),
- --- m
LAW OFFICES
KALMBACH, DEMARCO, KNAPP & CHILLINGWORTH
44TH FLOOR NORTH TOWER ATLANTIC RICHFIELD PLAZA
HERBERT W KALMBACH
NEWPORT CENTER OFFICE
FRANK DEMARCO,JR.
515 SOUTH FLOWER STREET
SUITE 900 NEWPORT FINANCIAL PLAZA
SHERWOOD C CHILLINGWORTH
LOS ANGELES. CALIFORNIA 90071
550 NEWPORT CENTER DRIVE
HAROLD BERAL
ALEXANDER BOWIE
NEWPORT BEACH, CALIFORNIA 92550
RICHARDS D. BARGER
TELEPHONE (213) 680-2811
TELEPHONE (714) 644-4111
ROBERT H. MOPRISON
RICHARD C GREENBERG
THOMAS D PECKENPAUGH
OF COUNSEL
ALAN R.WOLEN
LARRY 8 THRALL
August 22, 1973
JAMES R.KNAPP
TERRY L RHODES
WILLIAM P. MILLER
OAKLEY C FROST
RALPH J. MORGAN
WESTON L.JOHNSON
BRUCE E HAPRINGTON
A.DWAIN WHITE
ROBERT H FORWARD, JR
RICHARD S. CROWLEY
F SCOTT JACKSON
HOWARD S. SLUSHER
THOMAS J. BARRACK,JR.
JACK B. ANDERSON
Coopers and Lybrand
1251 Avenue of the Americas
New York, New York 10020
Gentlemen:
In connection with your engagement to examine
and report on the statement of assets and liabilities
as of May 31, 1973 of our clients Richard M. Nixon
and Patricia R. Nixon, you have requested our opinion
respecting the gift of certain pre-Presidential private
papers of Richard M. Nixon to the United States of America
on March 27, 1969 and the treatment of such contribution
as a deductible item for income tax purposes as claimed
on the Federal income tax returns filed by the clients.
for the years 1969 through 1972.
In connection therewith, we have made a factual
examination of the circumstances of the transaction, the
law applicable thereto and such other and further matters
as we have deemed pertinent to the inquiry and to the
delivering of this opinion, and based upon such examination
and the applicable law, it is our opinion that on March 27,
1969, the client made a valid gift to the United States
of America of certain of his personal private papers having
at the date of such gift a fair market value of $576,000;
that deductions claimed by the said taxpayer on his Federal
income tax returns for the calendar year 1969 were in all
respects proper and valid; that the facts and circumstances
of the gift were fully disclosed in the 1969 return as
filed; that subsequent deductions for those allocable
portions of the market value of the gift claimed by the
taxpayer in subsequent federal income tax returns filed
for the calendar years 1970, 1971 and 1972 were: and are
proper and valid deductions against income.
GERALD THE FORD
LAW OFFICES
KALMBACH, DEMARCO, KNAPP & CHILLINGWO
Coopers and Lybrand
April 22, 1973
Page Two
Our examination of the facts and circumstances
of the transaction show that immediately prior to March 27,
1969, the taxpayer declared an intention to make a gift
of the subject private papers to the people of the United
States and that at his direction, his personal counsel,
Edward L. Morgan, directed and supervised the removal of
such private papers from the taxpayer's personal dominion
and control at the Executive Office Building, Washington,
D.C., and caused the same to be delivered to the National
Archives in Washington, D.C. on said date where said
materials have remained for an uninterrupted period.
At all times subsequent to March 27, 1969, the materials
constituting the subject matter of the gift were under
the exclusive dominion and control of the National Archives.
On or about April 6, 7 and 8, 1969, the material constituting
the subject matter of the gift was examined and segregated
from other materials by an appraiser duly appointed by
the taxpayer to appraise the market value of the said
papers, and the same thereafter were maintained, cataloged,
segregated, sorted and identified by members of the staff
of the National Archives in accordance with filing and
cataloging procedures established by the National Archives
and as to which the taxpayer had no element of control.
The materials constituting the gift thereafter were, after
a period of time extending from April 6, 1969 through
March 27, 1970, individually itemized and appraised by
the appraiser, and as a result of said appraisal, the
market value ascribed to the gift was certified to by
an affidavit executed by said appraiser on April 6, 1970.
While, in our opinion, the law is clear that an
instrument of deed is not a necessary requisite to a gift
of personal property, the duly appointed and constituted
attorney-in-fact and agent of the taxpayer did on
April 21, 1969 execute an instrument of gift reciting
and declaring the intent of the donor to make such gift;
that said gift had in fact been made on March 27, 1969
and the subject matter thereof delivered to the National
Archives. The instrument contained a clause reserving
to the donor only a right of access to himself to inspect
and copy the materials. In our opinion, the law is clear
GERALD R FORD
LAW OFFICES
KALMBACH, DEMARCO, KNAPP & CHILLINGWO
Coopers and Lybrand
August 22, 1973
Page Three
that the reservation of such right of access for inspection
and copying by the donor did not constitute a sufficient
retention of ownership in the material to anyway vitiate
the gift.
Very truly yours,
KALMBACH, DE MARCO, KNAPP & CHILLINGWORTH
By
FRANK DE MARCO, JR.
FDM:gem
R. FORD LIBRARY
OERALD
EMBARGOED FOR RELEASE UNTIL
DECEMBER 8, 1973
4:00 P. M., EST, SATURDAY
DECEMBER 8, 1973
EMBARGOED FOR WIRE TRANSMISSION
UNTIL NOON, EST, DECEMBER 8, 1973
Office of the White House Press Secretary
THE WHITE HOUSE
STATEMENT BY THE PRESIDENT
With the documents and papers released today, I am making a full disclosure
of my financial affairs as President of the United States. No previous Presi-
dent, to my knowledge, has ever made so comprehensive and exhaustive a
disclosure as I am making today, with regard to assets and liabilities, expenses
and income, during his tenure of office.
The purpose of my release of these papers is to answer questions that have
arisen, to remove doubts that have been raised and to correct misinformation
that currently exists about what I have earned, and what I own.
To the open-minded, the papers and documents provided today, the facts
they contain and the figures they reveal, will lay to rest such false rumors as
that campaign contributions were converted to my personal use, that campaign
funds were used in the purchase of my home in San Clemente, that I have
hidden away a secret $1 million investment portfolio, that I sheltered the
income on which my daughter, Tricia, should have paid taxes, and that
$10 million in Federal funds was spent on my homes in Key Biscayne and
San Clemente.
In conducting my private affairs in public office, I have proceeded in a manner
I thought both prudent and in the best interests of my family. And even though
both American law and tradition protect the privacy of the papers I am releasing
today, these documents are being made public -- because the confidentiality
of my private finances is far less important to me than the confidence of the
American people in the integrity of the President.
Questions and controversies may continue as a consequence of these disclo-
sures. Even the men who have advised me in these matters and who have
prepared my financial records, statements and tax returns have disagreements
of professional opinion among themselves. But most of the questions out-
standing in the public mind today should be put to rest with the publication of
these documents.
With regard to my tax returns -- the contents of which will be made public
today -- the accountants who prepared them listed all of the deductions to
which they believed I was entitled, and only those deductions -- as any
accountant would and should do on behalf of his client.
The following are ainong the papers being released today:
The figures from the Federal Income tax returns which my wife and I filed for
the years 1969, 1970, 1971 and 1972.
(MORE)
- 2 -
An independent audit of my private financial affairs, since January 1, 1969,
conducted by one of the nation's largest and most respected accounting firms,
Coopers & Lybrand of New York City.
The significant documents relating to the major financial transactions since
my first Inauguration, including the purchase of my home in San Clemente,
and the sale of stock and real estate owned at the time I became President.
Tax Review by Congressional Committee
Even with these disclosures, there may continue to be public questions about
the tax consequences of two of the transactions shown. One is the gift of my
papers to the United States Government in 1969. As permitted by the Internal
Revenue Code, I have taken tax deductions for the value of that gift, but some
have asked whether the procedures used to make the donation met the technical
requirements of the gift law. The second transaction was the sale in 1970 of
a large portion of the beneficial interest my wife and I held in our property at
San Clemente. No capital gain was declared on that sale for tax purposes,
and there has been speculation in the press that the transaction was inaccurate-
ly reported.
The tax lawyers and accountants who assisted me in the preparation of my
Federal Income tax returns advised me that both of these items were correctly
reported to the Internal Revenue Service. My tax attorneys today are giving
me similar advice. Furthermore, when it conducted an examination of my
tax returns for 1971 and 1972, the Internal Revenue Service reviewed both
items and advised me that they were correctly reported.
Nevertheless, questions will continue on these matters and because they are
complex transactions, it will not be easy to resolve public doubts without an
independent review. For that reason, I have asked the members of the Joint
Congressional Committee on Internal Revenue Taxation to examine the pro-
cedures relating to both matters and to decide whether, in their judgment,
my tax returns should have shown different results. I will abide by the
Committee's judgment.
Government Spending at San Clemente
Another concern of mine has been the degree of public misunderstanding
about Government expenditures at my home in San Clemente.
The perception is now widespread that the Government spent anywhere from
$6 million to $10 million on improvements at my home. One myth breeds
another, so many observers also believe that the Government improvements
have vastly enriched me personally.
Those views are grossly inaccurate. More than 20,000 manhours have now
been expended by the General Services Administration to track down every
penny of spending. Their findings establish three points:
-- Total GSA spending on my San Clemente home was $68,000. That
money was spent almost entirely on fire and smoke detection systems, interior
electrical systems for protection and security, and the installation of an
electric heating system that the Secret Service thought necessary for safety
purposes.
(MORE)
- 3 -
-- The GSA spent approximately $635, 000 on the grounds surrounding
my home. That work consisted largely of the installation of lighting and alarm
systems for security purposes, construction of walls and guard posts, and
extensive re-landscaping to restore areas torn up when the protective devices
were installed.
-- By comparison, almost $6 million has been spent by the military
services to construct and maintain the Western White House Office complex.
That complex is not on my property, but on Government property, and when
it is not in use for the White House staff, it is frequently employed as a
conference center for public and civic groups.
Unfortunately, the American people have been misled into believing that the
funds for the office complex were spent on my home. The fact that the total
spent on my home was $68,000 has been ignored; the fact that my wife and I
spent ourselves three times as much as that, $187, 977 out of our own funds,
for real improvements to our homes, has been lost altogether. I trust that
with the release of these documents the impressions can be erased and the
truth of this matter firmly established.
Future of the Western White House
As public misunderstandings over San Clemente expenditures pass away in
the future, we should recognize that the Western White House complex will
continue to be a valuable asset for the Nation.
I have always been concerned that over the course of a single man's eight
years in office, the country probably will not derive from that complex bene-
fits proportional to the Government investment there. The office facility
would, of course, remain available for public use after my term ends, but
the usefulness of San Clemente as a conference center, guest facility for
visiting foreign dignitaries, and working base for future Presidents would be
far greater in the coming decades if what is now my private residence,
La Casa Pacifica, could also be part of that complex.
Accordingly, at the time of my death or that of my wife, which ever is later,
we intend to make a gift to the people of the United States of my home at
San Clemente.
I have directed my attorneys to take the necessary steps to accomplish this,
so that future Administrations and future generations can take advantage of
this beautiful Western setting to help maintain a truly national perspective
for the Presidency.
#
#
#
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD M. NIXON, individually
)
and as the former President
)
of the United States
)
San Clemente, California
)
(202) 456-1414
)
)
Plaintiff,
)
)
V.
)
)
ARTHUR F. SAMPSON, individually
)
and as Administrator of
)
General Services
)
F Street between 18th & 19th, N.W.
)
Washington, D. C.
)
(202) 343-6161
)
)
PHILIP W. BUCHEN, individually
)
and as Counsel to
)
President Gerald R. Ford
)
The White House
)
Washington, D. C.
)
(202) 347-4704
)
)
H. STUART KNIGHT, individually
)
and as Director of the
)
Secret Service
)
1800 G Street
)
Washington, D. C.
)
(202) 456-1414
)
)
Defendants.
)
)
COMPLAINT
Plaintiff, Richard M. Nixon, for his complaint against
defendants alleges the following:
Introductory Statement
1. This 18 suit fox an injunation to the
constitutional right and duty of the former President of the
GERALD LISA FORD
United States to ensure, to the extent consistent with law, the
confidentiality of the presidential materials of the Nixon
Administration. Planneif, right to relief arises both from
the Constitution and laws of the United States and from a contract
between the plaintiff and defendant Sampson. The relief requested
in this suit does not affect compliance by the defendants with
subpoenas duces tecum for portions of the materials served by
any person prior to the filing of this complaint, nor does it
affect compliance by the defendants with any subpoena which has
been or may be served for production of presidential materials
for use in the Watergate conspiracy trial now in progress. Apart
from those exceptions, the requested injunction would ensure to
the former President the right to respond to legal process
demanding production of the materials, and to prohibit disclosure
of the materials except pursuant to such legal process.
Jurisdiction and Venue
2. The jurisdiction of this Court to hear this action
is founded upon Title 28 U.S.C. $1332 (Diversity of Citizenship);
Title 28 U.S.C. $1331 (Federal Question) and Title 28 U.S.C.
$1361 (Action in Nature of Mandamus). The amount in controversy,
exclusive of interest and costs, exceeds the sum or value of
$10,000. Many of the acts hereinafter alleged to have been
committed were committed in the District of Columbia.
Parties
3. Plaintiff, Richard M. Nixon, is a citizen of the
State of California, residing in San Clements, California, and
- 2 -
GERALD LLGRARY FORD
President of the United States, having served as
Ident from January 20, 1939, to August 9, 1974.
4. Defendant, Arthur F. Sampson, is a citizen of the
State of Pennsylvania, residing in the District of Columbia, and
is the Administrator of General Services for the United States,
and at all times relevant to the allegations contained herein
acted in his official capacity as Administrator and as agent for
or representative of the United States.
5. Defendant, Philip W. Buchen, is a citizen of the
State of Michigan, residing in the District of Columbia, and is
Counsel to Gerald R. Ford, President of the United States and
at all times relevant to the allegations contained herein acted
in his official capacity and as agent for or representative of
the United States.
6. Defendant, H. Stuart Knight, is a citizen of the
State of Virginia, residing in Virginia, and is Director of the
Secret Service and at all times relevant to the allegations
contained herein acted in his official capacity and as an agent
for or representative of the United States.
Nature of the Claim
The Presidential Materials
In Question
7. On November 5, 1968, Richard M. Nixon was elected
to the Office of President of the United States. He assumed
that office on January 20, 1969.
8. On November 7, 1972, Mr. Nixon was reelected to the
Office of President of the United States. The second term of his
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GERALD FORD LIBRARY
commenced on January 20, 1973, and ended on August 9,
his resignation from office.
9. During his term as President, Richard Nixon main-
tained many of his personal files, including family and law
practice records, memorabilia and other items which cover periods
of time prior to his Presidency, at the White House and, upon
information and belief, such records are still located at the
White House and, despite requests, have not at this time been sent
to the former President.
10. In addition to the personal materials referred to
above, Richard Nixon and members of his staff, during the period
Mr. Nixon served as President, generated and retained within the
White House, the Old Executive Office Building ("OEOB"), parts
of the New Executive Office Building ("NEOB") and other Executive
Offices a substantial number of documents, papers, tapes, photo-
graphs, notes or other items (herein referred to as "presidential
materials").
11. All of these presidential materials are the property
of former President Nixon. The Attorney General of the United
States has given an opinion to that effect.
12. Many of the presidential materials embody communica-
tions between President Nixon and his aides relating to the
conduct of the Office of the President. The Constitution of the
United States affords to the former President a privilege of
confidentiality as to such materials subject to exception only
upon demonstration of a specific need for relevant evidence in a
criminal
prosecution.
The
of
the
Chicod
DR FORD
1817
1d that the basis of this privilege is "the necessity for
protection of the public interest in candid, objective, and even
blunt or harsh opinions in presidential cscisionmaking," as well
as "the values to which we accord deference for the privacy of
all citizens."
13. Because of the national interest in a swift but
orderly transition from the Presidency of Richard Nixon to the
Presidency of Gerald Ford, there was not adequate. time when
President Nixon resigned on August 9, 1974, to arrange for trans-
fer of all of the former President's presidential materials and
his personal records to his California residence or storage
facility in the vicinity.
14. President Nixon directed that his presidential
materials and personal records be immediately transferred to
California when he departed from the White House so that he could
personally review the materials or cause them to be reviewed
under his direction, and thereafter make arrangements for their
care and handling. Contrary to that direction, the presidential
materials and personal records have not been transferred to
California.
15. On information and belief, all of the presidential
materials of the Nixon Administration and Mr. Nixon's personal
records which are within the metropolitan area of the District
of Columbia are presently stored within the White House, the
"OEOB", or the National Archives.
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Proposal for Deposit of
the Former President's
interials.
16. On or about September 4, 1514, defendant Buchen
and representatives of the former President entered into discus-
sions concerning the presidential materials and the possible
deposit of all or part thereof with the United States for some
period under conditions whereby the safety of the materials would
be assured and whereby access could be gained upon lawful judicial
order or other legal processes directed to the former President.
17. On or about September 3, 1974, representatives of
the former President learned from defendants or their agents that
William Saxbe, the Attorney General of the United States, had
been requested to give an opinion concerning the legal ownership
of the presidential materials and that the Attorney General had
concluded that title to the presidential materials referred to
herein is vested in former President Nixon, as has been the case
with the papers, documents and effects of every President of the
United States. (A copy of the text of the Attorney General's
opinion is attached as Exhibit A.)
Agreement to Deposit the
Presidential Materials.
18. On September 6, 1974, Mr. Nixon and defendant
Sampson, pursuant to the authority of Title 44 U.S.C. $2107,
signed an agreement whereby former President Nixon agreed to
place on deposit with the General Services Administration all of
his presidential materials located within the metropolitan area
of
the
of
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terms and conditions contained in the agreement. (A copy of the
depository agreement is attached as Exhibit B.)
Some of the Terms and
Conditions of the
Depository Agreement.
19. The depository agreement, inter alia, provides that
defendant Sampson will transfer the presidential materials and
personal items to California and deposit them temporarily in an
existing facility belonging to the United States located near the
residence of the former President, where they will remain on
deposit, under stated terms and conditions, until a permanent
presidential archival depository is established.
20. The depository agreement provides that access to
Mr. Nixon's presidential materials within both the temporary and
permanent presidential archival depository will require use of
two keys, one to be given to the former President, as custodian
of the materials, and the other to be given to the Archivist of
the United States or to members of his staff.
21. The agreement further provides that all of the
presidential materials (except tape recordings of conversations
in the White House and Executive Office Buildings) will remain
on deposit for a period of three years under terms and conditions
specified in the depository agreement. Upon agreement of the
parties, the personal materials may be removed without limitation
as to time.
22. With respect to the tape recordings of conversations
the agreement provides that such recordings will remain on deposit
until September 1, 1979. In no event will the tape recordings
be destroyed prior to that date. Thereafter, the agreement;
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provides that the former President will and by the agreement did
donate to the United States (such gift to be effective September
1, 1979) all of the tape recorded conversations. This gift was
conditioned upon the former President's right to order destruction
of such tapes as he then might direct and upon the further con-
dition that the tapes will be destroyed at the time of the former
President's death subsequent to September 1, 1979 or on September
1, 1984, whichever should first occur.
23. In specific recognition of the fact that the presi-
dential materials should remain available for some period for
production in connection with lawful judicial orders or other
legal processes, the agreement provides that in the event produc-
tion of the materials is demanded by subpoena or other order
directed to an official or employee of the United States, the
recipient thereof shall notify the former President so that he,
as owner and custodian of the materials, with sole right of access
thereto, can respond to the demand and, if appropriate, assert
any privilege or defense available. The parties recognized that
the former President, as owner and physical custodian of the
presidential materials, will be subject to service of process
demanding production of the materials and therefore any legally
recognized need for the materials or part thereof can be accommo-
dated.
Interference With the
Parties' Agreement.
24. On or about September 9, 1974, members of the
Watergate Special Prosecution Force agreea with defendant Buchen
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not to permit any of the former President's presidential materials
to be moved from their present location without the prior approval
of the Special Prosecutor. Among other things, undertreet of
this agreement was to interfere with the contractual rights of
former President Nixon and to inhibit the former President's
ability to protect the constitutionally based privilege of con-
fidentiality in his presidential materials and to raise other de-
fenses or privileges available under the Constitution or laws of
the United States.
Attempts to Modify the
Depository Agreement.
25. In an effort to bring about implementation of
the depository agreement, representatives of the former President
have participated in negotiations with members of the Watergate
Special Prosecution Force concerning implementation of the
depository agreement in whole or in part. These negotiations have
not resulted in even a limited implementation of the depository
agreement and members of the Watergate Special Prosecution Force
have stated that they intend to serve a subpoena duces tecum on
defendant Buchen demanding production of Mr. Nixon's presidential
materials.
26. In addition to the subpoena referred to above, at
least six other requests for access to the materials have been
made by persons engaged in civil litigation against the United
States or officials of former officials thereof. Some of these
requests have subsequently been made by subpoenas duces tecum
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and others will no doubt be made by subpoenas duces tecum in the
near future.
The Demand for Compliance
With the Depository Agreement.
27. On September 13, 1974, the former President request-
ed that steps be taken immediately to implement the depository
agreement as to all of the presidential materials not then sub-
ject to subpoena or other court order. As to those materials
which could not be immediately transferred to California because
of then outstanding subpoenas or court orders, he requested that
arrangements be made for storage of such materials in the District
of Columbia under conditions whereby access could be gained only
by means of the two key arrangement described in the depository
agreement.
28. Subsequent demands for implementation of the
depository agreement have been made orally to defendant Buchen
and to members of his staff.
Refusal To Implement
the Depository Agreement.
29. No person may gain access to Mr. Nixon's presiden-
tial materials without defendant Buchen's written authorization
to defendant Knight, who, upon receipt of such authorization,
will order members of the Secret, Service who guard the presiden-
tial materials to permit access in accordance with defendant
Buchen's instructions. Without defendant Buchen's consent,
defendant Sampson will not implement the depository agreement.
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Impairment of
Constitutional
Privileges.
30. The Constitution of the United States vests in the
President the privilege of maintaining in confidence the communi-
cations engendered in the conduct of his office. To preserve
that privilege, both during and after his term in office, the
President must maintain the right of control, subject to court
order, over disclosure of the presidential materials of his office
The former President must also have available to him personally
the presidential materials of his office in order to facilitate
review of the materials in determining whether to assert presi-
dential privilege.
31. On information and belief, defendants presently
intend to comply, in whole or in part, with subpoenas duces tecum
or other demands for production of the presidential materials.
Such compliance will be in derogation of rights and privileges
afforded the former President by the Constitution.
32. Compliance by defendants with demands for produc-
tion of presidential materials will necessitate a search of the
materials for those items requèsted. Any search not authorized
by former President Nixon will be in derogation of rights and
privileges afforded the former President by the Constitution and
therefore is in violation thereof.
33. The agreement between defendant Buchen and the
Watergate Special Prosecution Force not to implement the deposi-
tory agreement and thereby retain the former President's
materials
within
GERALD LIBRARY FORD
President's ability to exercise the rights and privileges afforded
him by the Constitution and therefore is in violation thereof.
34. The agreement between defendant Buchen and the
Watergate Special Prosecution Force also impairs the ability of
the former President to assert other constitutionally based de-
fenses to production and disclosure of the materials and therefore
is in violation of the Constitution.
Failure to Perform
Statutory Duties.
35. Title 44 U.S.C. §§2107 and 2108 (the Presidential
Libraries Act of 1955) authorize the Administrator of General
Services to enter into agreements providing for the deposit of
presidential historical materials and further authorize the Admin-
istrator to accept the materials for deposit upon conditions im-
posed by the donor and require him to abide by such restrictions.
This Act represents Congressional recognition of the importance
of maintaining presidential confidentiality.
36. Pursuant to this statutory authorization, defendant
Sampson entered into a depository agreement with former President
Nixon whereby the former President agreed, among other things:
(a) to deposit certain presidential historical materials with the
General Services Administration, (b) to donate at a future date
a substantial portion of his presidential materials to the United
States, (c) to donate as of September 1, 1979 the tape recorded
conversations made within the White House and the Executive
Office Building and (d) to limit his own right of access to the
materials under conditions set forth in the depository agreement.
37. In turn, pursuant to the statutory authorization of
Title 41 U.S.C. S2107, defendunt Summeon among other
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LIBERTY
things: (a) to accept the materials for deposit, (b) to transfer
the materials to a storage facility within the State of California,
(c) to provide access only upon the terms and conditions specified
in the depository agreement and (d) to protect the materials from
loss, destruction or access by unauthorized persons.
38. Defendant Sampson has failed to comply with the
terms and conditions of the depository agreement. He therefore
has violated the depository agreement and the requirements of
Title 44 U.S.C. $2107 and thereby has failed to perform those
duties owed by him to the former President.
Failure to Comply With
the Depository Agreement.
39. Defendant Buchen continues to refuse to permit the
presidential materials to be transferred pursuant to the deposi-
tory agreement without the prior consent of the Special Prosecutor.
This failure to permit transfer of the materials and implementa-
tion of the agreement constitutes a refusal to abide by the terms
of the depository agreement.
40. Compliance by defendants with demands for produc-
tion of all or part of the presidential materials will violate
the terms and conditions set forth in the depository agreement.
41. A search of the materials by defendants pursuant
to a demand for production thereof, without authorization by
the former President, will violate the terms and conditions of
the depository agreement.
42. The continued failure of defendants Buchen and
Chapson implement the depository has jeopardiz
former President's legal and equitable title to the materials and
FORD
GLRALD
has impaired his rights thereto.
43. The continued failure of defendants Buchen and
Sampson to implement the depository agreement has impaired the
former President's ability to comply with the subpoenas duces
tecum served on him demanding production of portions of the
materials. Such impairment is in violation of the terms and
conditions of the depository agreement.
44. The continued failure of defendants Buchen and
Sampson to implement the depository agreement has impaired the
former President's own access to the presidential materials which
impairment is in violation of the terms and conditions of the
depository agreement.
Injury to Plaintiff
45. The injury suffered by former President Nixon be-
cause of defendants' actions in failing to implement the deposi-
tory agreement and in impairing his constitutional rights and
privileges is imminent and irreparable and cannot be compensated
by an award of damages. The only adequate remedy is mandamus or
injunction in the nature of specific performance of the depository
agreement by defendant Sampson, uninhibited by defendants Buchen
and Knight. Specific performance will not work a hardship upon
defendants.
46. The possible production of the presidential materials
to persons other than the former President, and the search of such
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materials by persons not authorized by the former President,
Doses an immediate threat to the former President's constitutional
rights and privileges. This threat constitutes a significant and
irreparable injury which cannot be remedied by an action at law
but can only be remedied by injunction.
Relief Requested.
WHEREFORE, plaintiff requests this Court:
(a) to preliminarily enjoin defendants from taking any
action to produce or to give access to any person other than
plaintiff, or those whom he authorizes, the presidential materials
of the Nixon Administration presently located within the metro-
politan area of the District of Columbia, except (1) pursuant to
subpoenas duces tecum served or court orders issued prior to the
time of filing of this complaint, or (2) pursuant to subpoenas
duces tecum or court orders demanding production of materials to
be used in criminal trials now in progress;
(b) to permanently enjoin any defendants from taking any
action inconsistent with the terms and conditions of the deposi-
tory agreement;
(c) to order defendant Sampson to perform those duties
owed to the former President with respect to implementation of the
depository agreement pursuant to Title 44 U.S.C. $$2107 and 2108
and prohibiting defendants Buchen and Knight from taking any
action inconsistent therewith;
(d) alternatively to (b) and (c), to direct defendants
to return to the former President all presidential materials
referred to herein; and
ERALD LIBRARY FORD
(e) to grant such other and further relief as this
Court deems warranted in the circumstandes.
Heckull Herbert J. MeMer, Jr.
Raymond G. Larroca
Jeffress,
R. Stan Mortenson
MILLER, CASSIDY, LARROCA & LEWIN
1320 19th Street, N.W., Suite 500
Washington, D. C. 20036
(202) 293-6400
VERIFICATION
District of Columbia, SS:
R. STAN MORTENSON, being first duly sworn on oath says
that the foregoing is a just and true statement of the facts upon
which plaintiff bases his claims for relief.
R. Stan Mortenson
Attorney for Plaintiff
Subscribed and sworn to before me this 16th day of October , 1974
My Commission April 30, 1273
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Office of the White House Press Secretary
THE WHITE HOUSE
TEXT OF A LEGAL OPINION
BY THE ATTORNEY GENERAL
September 6, 1774
The President,
The White House,
Dear Mr. President:
You have requested my opinion concerning papers and
other historical materials retained by. the White House
Office during the administration of former President
Richard M. Nixon and now in the possession of the United
States or its officials. Some such materials were left
in the Executive Office Building or in the White House at
the time of former President Nixon's departure; others had
previously been deposited with the Administrator of General
Services. You have inquired concerning the ownership of
such materials and the obligations of the Government with
respect to subpoenas and court orders addressed to the
United States or its officials pertaining to them,
To conclude that such materials ATC not the property
of former President Nixon would be to reverse what has
apparently been the almost vavaried enderstanding of att
EXHIBIT A
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GERALD
three branches of the Government since the beginning of
the Republic, and to call into question the practices of
our Presidents since the earliest times. I0: Foisom v.
Marsh, 9 F. Cas, 342 (No. 4901), 2 Story' 100, 108-109
(C. C.D. Mass. 1841), Mr. Justice Story, while sitting in
circuit, found that President Washington's letters,
1/
including his official correspondence, were his private
property which he could bequeath, which his estate could
alienate, and in which the purchaser could acquire a
copyright. According to testimony of the Archivist of
the United States in 1955, évery President of the United
1/ The official documents involved in the case were:
Letters addressed by Washington, as commander-
in-chief, to the President of Congress.
Official letters to governors of States and
speakers of legislative bodies.
Circular letters.
General orders.
Communications (official) addressed as President
to his Cabinet.
Letter accepting the command of the army, on our
expected war with France. 2 Story at 104-105.
The clear holding on the property point (Id. at 108-09)
is arguably converted to dictum by Justice Story's
later indication, in connection with another issue,
that copyright violation with respect to the official
documents did not have to be established in order to
maintain the suit, (Id. at 114).
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GERALD
States beginning with George Washington regarded all the
papers and historical materials which accumulated in the
White House during his administration, whether of a private
21
or official nature, as his own property. A classic
exposition of this Presidential view was set forth by
President Taft in a lecture presented severalyears after
he had left the White House:
The office of the President is not a record-
ing office. The vast amount of correspondence that
goes through it, signed either by the President or
his secretaries, does not become the property or a
record of the government unless it goes on to the
official files of the department to which it may be
addressed. The President takes with him all the
correspondence, original and copies, carried on
during his administration. Taft, The Presidency
30-31 (1916).
Statement of Dr. Wayne C. Grover, Archivist of the
United States, during the House Hearings on the Joint
Resolution of August 12, 1955, 69 Stat. 695, To provide
for the acceptance and maintenance of Presidential
libraries. and for other purposes (now codified in 44
U.S.C. 2101, 2107 and 2108; hereinafter referred to as
the "Presidential Libraries Act"), Hearing before a
Special Subcommittee of the Committee on Government
Operations, House of Representatives, 84th Cong., 1st
Sess., on H.J. Res. 330, H.J. Res. 331, and HJJ. Res. 332
(hereafter referred to as "1955 Hearings"), PP. 28, 45.
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Past Congressional recognition of the President's title is
evidenced by the various statutes providing for Government
purchase of the official and private papers of many of our
early Presidents, including Washington, Jeffersom, Madison,
Monroe and Jackson. See 1955 Hearings at 28, 39-42.
Even if there were no recent statutory sanction of
Presidential ownership, a consistent history such as that
described above might well be determinative. As the Supreme
Court said in United States V, Midwest Oil Co., 236 U.S.
459 (1915):
[G] overnment is a practical affair intended for
practical men. Both officers, law-makers and
citizens naturally adjust themselves to any long-
continued action of the Executive Department -- on
the presumption that unauthorized acts would not
have been allowed to be so often repeated as to
crystallize into a regular practice. That pre-
sumption is not reasoning in a circle but the
basis of a wise and quieting rule that in
determining the meaning of a statute or the
existence of a power, weight shall be given to
the usage itself -- even when the validity of the
practice is the subject of investigation, Id, at
472-73.
[W]hile no
express authority has been granted
[by Congress], there is nothing in the nature of
the power exercised which prevents Congress from
granting it by implication just as could be done
by any other owner of peoperty under similar con-
ditions. Id. at 474.
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Moreover, with respectito the practice at issue here,
there is recent statutory sanction. The 1955 Presidential
Libraries Act, which serves as the permanent basis of the
Presidential Library system, constitutes clear legislative
acknowledgemeat that a President has title to 'all the docu-
ments and historical materials -- whether personal or official --
which accumulate in the White House Office during his incum-
bency. The Federal Records Act of 1950, 64 Stat. 587, which
was the predecessor of the Presidential Libraries Act,
authorized the Administrator of General Services to accept
for deposit "the personal papers and other personal historical
documentary materials of the present President of the United
States. " Section 507 (e), 64 Stat. 588, The word "personal"
might have been read as intended to distinguish between the
3/
private and official papers of the President. The corres-
ponding provision of the current law, however, 44 U.S.C. 2107 (1),
avoids the ambiguity. It envisions the President's deposit of
all Presidential materials, not only personal ones. During
3/ Compare Section 507 (e) with Section 507 (a), dealing with the
records of an agency. A memorandum prepared in the Office of
the Assistant Solicitor General (now Office of Legal Counsel) on
July 24, 1951 indicated that such a distinction between private
and official Presidential papers would be inconsistent with
historic precedents, and difficult if not impossible to main-
tain. It accordingly regarded the Records Act's use of the
term "personal" as intended merbly to the permanent
files of the Chief Executive Clerk discussed at page 12 below.
GERALD LIBRARY F FUND
the House debate on the Presidential Libraries Act, Congress-
man Moss, who was is charge of the bill, expressly stated:
Four. Finally, it should be remembered that
Presidential papers belong to the President, and
that they have increased tremendously in volume
in the past 25 or 30 years. It is no longer
possible for a President to take his papers home
with him and care for them properly, It is no
accident that the last three Presidents -- Hoover,
E.D. Roosevelt, and Harry Truman -- have had to
make special provisions through the means of the
presidential library to take care of their papers.
101 Cong. Rec. 9935 (1955).
The legislative history of the Act reflects no disagreement with
this position on the gart of any member of the Congress.
The hearings before a Special Subcommittee of the House
Committee on Government Operations indicate congressional
awareness of the Act's assumption that all Presidential
papers are the private property of the President. 1955
Hearings at 12, 20, 28, 32, 52, 54, 58,
A recent discussion concerning ownership of Presi-
dential materials appears in the report prepared by the
staff of the Joint Committee on Internal Revenue Taxation
involving the examination of President Nixon's tax returns.
H. Rept, 93-966, 93d Cong., 2d Sess, (1974). The report
points to the practice of Presidents since Washington of
treating their papers, both private and official, as their
FORD
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personal property; and to the congrassional ratification
of the practice in the 1955 library legislation. It
concludes that "the historical precedents taken together
with the provisions set forth in the Presidential Lisraries
Act, suggest that the papers of President Nixon are con-
sidered his personal property rather than public property. 11
Id. at 23-29.
An apparent obstacle to Presidential ownership of all
White House materials is Article II, section 1, clause 7
of the Constitution, which provides:
"The President shall, at stated times, receive
for his services 2 compensation, which shall neither
be increased nor diminished during the period for
which he shall have been elected, and he shall not
receive within that period any other emolument from
the United States, or any of them. "
But objection based upon this provision is circular in
its reasoning, except insofar as it applies to the blank
typing paper and materials upon which the Presidential
records are inscribed. For the records themselves are
given to the President as an "emolument" only if one
assumes that they are not the property of the President
from the very moment of their creation. As for the blank
typing paper and materials, which are of course of negligible
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GERALD
value, they can be regarded as consumables, like electricity
or telephone service, provided for the conduct of Presidential
business. In any event, the Constitutional provision can
simply not be interpreted in such 2 fashion as to preclude
the conferral of anything of value, beyond his salary, upon
the President. An eminent authority on the subject states
the following:
As 2 matter of fact the President enjoys many
more "emoluments" from the United States than the
"compensation" which he receives "at stated times"
--at least, what most people would recken to be
emoluments. Corwin, The President 348 N. 53.
He gives 2s examples of such additional emoluments provided
by the Congress the use of personal secretaries and the
right to reside in the White House. Id. at 348-49.
Another obstacle to Presidential ownership of the
materials in question is their character as public docu-
ments, often secret and sometimes necessary for the
continued operation of government. However, without
speaking to the desirability of the established property
rule (and there is pending in the Congress legislation
which would apparently alter it--S. 2951, 93d Cong., 2d
Sess., a bill "[t]o provide for public ownership of
certain documents of elected public officials"), it must
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GERALD
be conceded that accommodation of such concerns can be
achieved whether or not ownership of the materials in
question rests with the former President. Historically,
there has been consistent acknowledgement that Presidential
materials are peculiarly affected by 2 public interest
which may justify subjecting the absolute ownership rights
of the ex-President to certain limitations directly related
to the character of the documents as records of government
activity. Thus, in Folsom V. Marsh, subra, Mr. Justice
Story stated the following:
In respect to official letters, addressed to
the government, or any of its departments, by public
officers, so far as the right of the government ex-
tends, from principles of public policy, to withhold
them from publication, or to give them publicity,
there may be a just ground of distinction. It may be
doubtful, whether any public officer is at liberty to
publish them, 2°C least, in the same age, when secrecy
may be required by the public exigencies, without the
sanction of the government. On the other hand, from
the nature of the public service, or the character
of the documents, embracing historical, military, or
diplomatic information, it may be the right, and
even the duty, of the government, to give them
publicity, even against the will of the writers.
2 Story at 113.
That portion of the Criminal Code dealing with the trans-
mission or loss of national security information, 18 U.S. C.
5 793, obviously applies to Presidential even when
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LIBRARY
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4/
they are within the possession of the former President.
Upon the death of Franklin D. Roosevelt during the closing
months of World War II, with full acceptance of the
traditional view that all White House papers belonged to
the President and devolved to his estate, some 8 the
papers dealing with prosecution of the War (the so-called
"Map Room Papers") were retained by President Truman under
a theory of "protective custody" until December 1946
Matter of Roosevelt, 190 Misc. 341, 344, 73 N.Y.S. 821, 825
(Sur. Ct. 1947); Eighth Annual Report of the Archivist of
the United States as to the Franklin D. Roosevelt Library
(1947) P. 1. Thus, regardless of whether this is the best
way to approach the problem, precedent demonstrates that the
governmental interests arising because of the peculiar nature
of these materials (notably, any need to protect national
security information and any need for continued use of
certain documents in the process of government) can be
protected in full conformity with the theory of ownership
on the part of the ex-President.
4/
Section 11 of Executive Order 11652 makes explicit
provision for declassification of Presidential material
that has been deposited in the Archives.
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GERALD
Because the principle of Presidential ownership of
White House materials has been acknowledged by all three
branches of the Government from the earliest times; because
that principle does not violate any provision of the
Constitution or contravene any existing statute; and because
that principle is not inconsistent with adequate protection
of the interests of the United States; I conclude that the
papers and materials in question were the property of
Richard M. Nixon when his term of office ended. Any
inference that the former President abandoned his ownership
of the materials he left in the White House and the
Executive Office Building is eliminated by a memorandum to
the White House stafffromJerry H. Jones, Special Assistant
to President Nixon, dated the day of his resignation,
asserting that "the files of the White House Office belong
to the President in whose Administration they were
accumulated, " and setting forth instructions with respect
to the treatment of such terials until they can be
collected and disposed of according to the ex-President's
wishes. We are advised that the materials previously
deposited with the Administrator of General Services were
likewise transmitted and received with the understanding
- 11 -
GERALD
FORD
LIBRARY
of continuing Presidential ownership.
I must, however, exclude one category of documents from
the scope of this opinion concerning ownership and advise
you that their status cannot be definitively determined on
the basis of presently available information. Although the
fact is not recordéd in the published materials we have
examined, our inquiry indicates that at least in recent
memory certain "permanent files" have been retained by the
Chief Executive Clerk of the White House from administration
to administration. These include White House budget and
personnel material, and records or copies of some Presidential
actions useful to the Clerk's office for such purposes as
keeping track of the terms of Presidential appoi ntments and
A
providing models or precedents for future Presidential
action Retention of these materials by the Chief Executive
Clerk is of course not necessarily inconsistent with initial
Presidential ownership, In light of the otherwise uniform
practice with respect to much more important official
documents, relinquishment of these materials may reasonably
be regarded as a voluntary act of courtesy on the part of
the outgoing Chief Executive. // I cannot, however, make an
adequately informed judgment concerning these files without
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R FORD LIBRARY
GERALD
more extensive factual and historical inquiry, which your
need for this opinion does not permit. Of course, even if
such inquiry should show that these particular documents have
been regarded as Government property, that conclusion would
not support 2 generalization of Government ownership with
respect to the much more extensive other material covered by
this opinion, as to which the Presidential practice and con-
gressional acquiesence are clear.
As to the obligations of the Government with respect to
subpoenas and cour orders directed to the United States or
its officials pertaining to the subject materials; Even
though the Government is merely the custodian and not the
owner, it can properly be subjected to court directives
relating to the materials. The Federal Rules of Criminal
Procedure authorize the courts, upon motion of a defendant,
to order the Government to permit access to papers and other
objects "which are within the possession, custody or control
of the government.
" Fed. R. Crim. P. 16 (b). A
similar provision is applicable with regard to discovery in
civil cases involving material within the "possession,
custody or control" of a party (including the Government).
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FORD
LIBRARY
GERALD
Fed, R. Civ. P. 34(a). In addition, in both criminal and
civil cases, a subpoena may be issued directing 2 person to
produce documents or objects which are within his possession,
but which belong to another person. Fed. P. Crim. P. 17(c);
Fed. R. Civ. P. 45(b). See, e.g,, Couch V, United States,
409 U.S. 322 (1973); Schwimmer V, United States, 232 F, 2d
855, 360 (8th Cir., 1956), cert. denied, 352 U.S. 833:
United States V, Re, 313 , Supp, 442, 449 (S. D. N.Y. 1970).
I advise you, therefore that items included within the
subject materials properly subpoenaed from the Government
or its officials must be produced; and that none of the
materials can be moved or otherwise disposed of contrary
to the provisions of any duly issued court order against
the Government or its officials pertaining to them / Of
course both the former President and the Government can
seek modification of such subpoenas and orders, and can
challenge their validity on Constitutional or other grounds.
Respectfully,
Attorney General
R FORD LIBRARY
RALD
September S, 1974
Honorable Arthur E- Sampson
Administrator
General Services Administration
Washington, D. C.
Dear Mr. Sampsone
In keeping with the tradition established by other former
Presidents, it is desire to donate to the United States, 2È;2 future
substantialipor of Presidential materials which of
historical value to our Country In donating these PresidentiaP
materials to the United States, it will be my desire that they be made
available, with appropriate restrictions for research and study-
In the interim, SO that my materials may be preserved,
I offe to transfer to the Administrator of General Services (the
"Administrator"), for deposit; pursuant to 44 U.S. C. Section 2101,
et sec., all of my Presidential historical materials as defined in
14 U.S. C. Section 2101 (hereinafter "Materials"), which are located
within the metropolitan area of the District of Columbia, subject to
the following:
1.
The Administrator agrees to accept solely for
the purpose of deposit the transfer of the Materials,
and in so accepting the Materials agrees to abide
by each of the terms and conditions contained herein.
2.
In the event of my death prior to the expiration of
the three-year time period established in para-
graph 7A hereof, the terms and conditions contained
herein shall be binding upon and inure to the benefit
of the executor of my estate for the duration of
said period.
3.
I retain all legal and equitable title to the Materials,
including all literary property rights.
B
Sepsa 7/6.
Cosy ofd
FORD
LIBRARY
GERALD
4.
The Materials shall, upon acceptance of this
offer by the Administrator, be deposited
temporarily in 2= existing facility belonging
to the United States, located within the State
of California near my presekt residence. The
Materials scall remain deposited in the temporary
California facility until-such time 23 there may be
established, with my approval, 2 permanent
Presidential archival depository as provided for
in 14 U.S.C. Section 2103.
5.
The Administrator shall provide in such
temporary depository and in any permanent
Presidential archival depository reasonable.]
office space for my personal use in accordance
with AA U.S. Section 2108 (E). The Materials
in their entirety shall be deposited within such
office space in the manner described in para
graph 6 hereofs
6.
Within both the temporary and any permanent
Presidential archival depository, all of the
Materials shall be placed within secure storage
areas to which access can be gained only by use
of two keys. One key, essential for access, shall
be given to me alone as custodian of the Materials.
The other key may be duplicated and entrusted by
you to the Archivist of the United States or to
members of his staff.
7.
Access to the Materials within the secure areas,
with the exception of recordings of conversations
in the White House and the Executive Office
Building which are governed by paragraphs 8 and 9
hereof, shall be as follows:
FORD
LIVERY
GERALD
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A.
For 2 period of three years from the date
of this instrument, I agree not to withdraw
from deposit any originals of the Materials,
except 25 provided in subparagraph B below
and paragraph 10 herein. During said three-
year period, I may make reproductions of
any of the originals of the Materials and
withdraw from deposit such reproductions
for any use I may deem appropriate. Except
25 provided in subparagraph B below, access
to the Materials shall be limited to myself,
and to such persons 25 I may authorize from
timesto time in writing, the scope of such
access to be setforth by me in each said
written authorization. Any requestifor
access to the Materials made to the Administra
tor the Archivist of the United States as any
member of their staffs. shall be referred to me.
After three years I shall have the right to
withdraw from deposit without formality any
or all of the Materials to which this paragraph
applies and to retain such withdrawn Materials
for any purpose or use I may deem appropriate,
including but not limited to reproduction,
examination, publication or display by myself
or by anyone else I may approve.
B.
In the event that production of the Materials
or any portion thereof is demanded by 2
subpoena or other order directed to any
official or employee of the United States,
the recipient of the subpoena or order shall
immediately notify me so that I may respond
thereto, 2s the owner and custodian of the
Materials, with sole right and power of access
thereto and, if appropriate, assert any privilege
or defense I may have. Prior to any such
production, I shall inform the United States
so it may inspect the subpoenaed materials
and determine whether to object to its pro-
duction on grounds of national security or
FORD
GERALD
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S.
The tape recordings of conversations in the
White House and Executive Office Building
which will be deposited pursuant to this
instrument shall remain OR deposit until
September 1, 1979. I intend to and do hereby
donate to the United States, such gift to be
effective September 1, 1979, all of the tape
recordings of conversations in the White House
and Executive Office Building conditioned however
on my continuing right of access as specified in
paragraph 9 hereof and CR the further condition
that such tapes shall be destroyed at the time of
my death OF OZ September 1, 1984, whichever
event shallifirst OCCURE Subsequent to
September the Administrator shall
destroy such tapes as Imay direct Impos
this restriction 25 other Presidents have before
me to guard against the-possibility of the tapes
being used: to injure, embarrass, or harass any
person and properly to safeguard the interests of
the United States.
9.
Access to recordings of conversations in the
White House and Executive Office Building within
the secure areas shall be restricted as follows:
A.
I agree not to withdraw from deposit any
originals of the Materials, except as
provided in subparagraph B and paragraph 10
below, and no reproductions shall be made
unless there is mutual agreement. Access
to the tapes shall be limited to myself; and
to such persons as I may authorize from
time to time in writing, the scope of such
access to be set forth by me in each said
written authorization. No person may
listen to such tapes without my written
prior approval. I reserve to myself such
literary use of the information on the tapes.
B.
In
or any portion thereof is demanded by a
subpoena or other order directed to any
GERALD FORD LIBRARY
-5-
the recipient of the subpoena or order
shall immediately notify me so that I
may respond thereto, as the owner and
custodian of the Materials, with sole right
and power of access thereto and, if appro-
priate, assert any privilege oz defense I
may have. Pricr to any such production,
I shall inform the United States so it may
inspect the subpoenaed materials and
determine whether to object to its pro-
duction on grounds of national security
or any other privilege.
10
The-Administrator shall arrange and be responsible
for the reasonable protection of the Materials from
loss, destriction 02 access by unauthorized persons
and may upon receipt of 21 appropriate written
authorization from the Counsei to the President
provide for 2 temporary re-deposit of certain of
the Materials to 2 location other then the existing
facility described in paragraph 1/1 herein, provided
however that no dimunition of the Administrator's
responsibility to protect and secure the Materials
from loss, destruction, unauthorized copying or
access by unauthorized persons is affected by said
temporary re-deposit.
11.
From time to time as I deem appropriate, I intend
to donate to the United States certain portions of
the Materials deposited with the Administrator
pursuant to this agreement, such donations to be
accompanied by appropriate restrictions as authorized
by 44 U.S.C. Section 2107. However, prior to such
donation, it will be necessary to review the Materials
to determine which of them should be subject to
restriction, and the nature of the restrictions to be
imposed. This review will require 2 meticulous,
thorough, time-consuming analysis. If necessary
to fulfill this task, I will request that you designate
certain members of the Archivist's to assist
FORD
GERALD
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If you determine that the terms and conditions set
forth above are acceptable for the purpose of governing the
establishment and maintenance of 2 depository of the Materials
pursuant to 44 U.S. C. Section 2101 and for accepting the
irrevocable gift of recordings of conversations after the specified
five year period for purposes as contained in paragraph S herein,
please indicate your acceptance by signing the enclosed copy of
this letter and returning it to me. Upon your acceptance we both
shall be bound by the terms of this agreement.
Sincerely,
144
Accepted by:
Arthur F. Sampson
Administrator
General Services Administration
GERALD
FORD
LIBRARY
COPY
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.,
:
Plaintiffs
:
V.
C.A. No. 74-1533
:
ARTHUR F. SAMPSON, et al.,
:
Defendants
:
SUPPLEMENTAL ORDER
Upon consideration of the Temporary Restraining Order
issued yesterday, dated October 21, 1974 at 4:20 p.m., and
upon consideration of the parties' requests for certain
modifications thereof, and it appearing that the parties
consent to said modifications and that the same are con-
sistent with the ends of justice, and it appearing that the
aforesaid Order as well as this Supplemental Order are
necessary to preserve the status quo in the above-entitled
litigation, it is by the Court this 22nd day of October, 1974,
ORDERED, that the Court's Order of October 21, 1974, be
and the same is hereby amended and supplemented as follows:
ORDERED, that the Motions for a Temporary Restraining
Order be, and the same are hereby granted in part and denied
in part; and it is
GERALD R. FORD
LIBRARY
COPY
2
FURTHER ORDERED, that the Defendants, their superiors,
agents and assigns are, subject to the conditions hereinafter
described in the balance of this Order, hereby enjoined from
disclosing, transferring, disposing or otherwise making
known to any person, be he/she private citizen or public
official, the materials, including documents, tapes and
other papers, known as the "Presidential materials of the
Nixon Administration", that are presently in the custody and
control of the Defendants; and it is
FURTHER ORDERED, that the Defendants are hereby enjoined
from effectuating the terms and conditions of the "Agreement"
entered into by Richard M. Nixon and Arthur F. Sampson, on
or about September 6, 1974, and it is
FURTHER ORDERED, that the injunction shall not serve as
a bar to the production of said materials pursuant to a validly-
issued subpoena, discovery demand, or court order in any civil
or criminal case, either outstanding or while this injunction
is extant; or to the production of said materials in regard
to the ongoing Watergate criminal trial before United States
District Judge John Sirica; or to the production of said
material pursuant to requests by the Special Prosecutor, or
to a validly issued subpoena by a Grand Jury; or to the use
of said materials, with prior notification to counsel for
Plaintiff Richard M. Nixon and with the consent of Defendant
Philip W. Buchen, for purposes of current government business,
and it is
FURTHER ORDERED, that Plaintiff Richard M. Nixon, or
his attorney, shall be afforded access to said materials under
current access procedures established by Defendants for the
sole purposes of preparing to testify in the Watergate trial
and determining whether to raise any privileges or defenses
he believes he might have in opposition to production of said
materials for current government business or pursuant to
requests by the Special Prosecutor or to validly-issued sub-
poenas, discovery demand or a court order, and if Plaintiff
Richard M. Nixon shall be unable to physically do so, the
government Defendants shall provide copies of said materials
for such use, but he shall not disclose or divulge the contents
thereof except in regard to his testimony or in response to
validly-issued subpoenas, and said copies shall be returned
promptly to the Defendants when such purposes have been served;
and it is
R.
OF
FORD
COPY
3
FURTHER ORDERED, that any person either now or
previously a member of the White House staff shall be
afforded access under current access procedures established
by Defendants, with or without his/her attorney present,
to said materials which comprise or comprised his/her files
while a member of the White House staff, and be allowed to
take notes regarding the same, but not to make copies thereof,
all the above solely for any purposes relating to criminal
investigations or prosecutions; and it is
FURTHER ORDERED, that any search conducted for purposes
of producing or using said materials as provided in this
Order shall be conducted jointly by Defendant Philip W. Buchen,
or his agent, and counsel for Plaintiff Richard M. Nixon, or
his agent, and said persons shall take such steps as are
necessary to assure that the search for and copying of said
materials will in no way destroy or affect the original charac-
ter of any of the materials, including tapes, documents or
other papers referred to herein; and it is
FURTHER ORDERED, that the Plaintiffs shall not be
required to post any bond; and it is
FURTHER ORDERED, that this injunction shall be effective
for ten (10) days and shall be renewed upon proper application
of the parties.
/s/ CHARLES R. RICHEY
Charles R. Richey
United States District Judge
United States District Court
for the District of Columbia
A TRUE COPY
JAMES F. DAVEY, CLERK,
By /s/ ESTHER E. CREIDEN
October 22, 1974
Time 2:35 p.m.
GERALD R. FORD LIDIANA
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
:
ORDER
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,
GERALD LIBRARY FORD
- 2 -
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
LIBRARY GERALD FORD
(
- 3 -
twelve o'clock noon, Thursday, November 14, 1974.
Charles R. Richey
United States District Judge
November 7, 1974
-
FORD R. GERALD LIBRARY
DOBROVIR / OAKES / GEBHARDT /DUFFONE
2005 L Street, N.W.
Washington, D.C. 20036
I E NOV
1974
10.
701488
Beuten L. Becker Esq.
485 L'Enfant Plaza S.W.
Washing ton DC 20024
GERALD R. FORD
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD M. NIXON,
)
)
Plaintiff,
)
)
V.
)
No.
)
ARTHUR F. SAMPSON
)
PHILIP W. BUCHEN
)
H. STUART KNIGHT,
)
)
Defendants.
)
)
APPLICATION FOR TEMPORARY
RESTRAINING ORDER
Plaintiff Richard M. Nixon, through his undersigned
attorneys, hereby moves this Court pursuant to Rule 65, Federal
Rules of Civil Procedure, for an order temporarily restraining
the defendants, until such time as plaintiff's motion for a
preliminary injunction may be heard and determined, from pro-
ducing or disclosing the presidential materials of the Nixon
Administration to any person other than the plaintiff or his
designees, except as may be necessary (1) to comply with sub-
poenas duces tecum already served upon any defendant, or (2)
to comply with subpoenas duces tecum or court orders served
upon any defendant for materials for use in criminal trials
presently in progress.
This application is made upon the verified complaint
filed this day, on grounds more fully stated in the motion for
the points discussed in that motion, plaintiff shows as follows:
FORD
R.
GERALD
AMOUNT
-2-
1. The culpoenes and other demands for production
of the presidential materials already made, and the numerous
lawsuits presently pending in which similar demands may be made,
make it likely that a large number of subpoenas, Rule 34 demands,
and other demands for access to the presidential materials will
be made in the near future. In order to avoid interference
with the jurisdiction of courts out of which subpoenas have
already issued, plaintiff has not sought through this lawsuit
or the motion for a preliminary injunction to restrain the
defendants from complying with outstanding subpoenas. However,
this proviso in the requested injunction is likely to stimulate
parties contemplating subpoenas upon portions of the materials
to serve those subpoenas during the time prior to the hearing
on the motion for a preliminary injunction, in the hope of there-
by avoiding application of any injunction to their own requests.
2. In ruling on an application for a temporary re-
straining order the Court must consider the "probability of
irreparable harm, probability of success on the merits, the
balancing of interests and the preservation of the status quo
...
Palmigiano V. Travisono, 317 F.Supp. 776, 785 (D.R.I. 1970).
See United States V. Washington Post Co., 446 F.2d 1322, 1325
(D.C.Cir. 1971). The questions of irreparable injury and prob-
able success on the merits are fully discussed in our motion
for a preliminary injunction. Plainly, the relief requested
1.1 marely to preserve the status cruo; that is, to maintain the
existing confidentiality of the presidential materials and to
CHALD FORD
preserve plaintiff's right to control access thereto. Moreover,
plaintiff asks no immediate transfer of the materials or change
in the security arrangements as to their present storage.
sinally,
with regard to both the "status quo" and the "balance of interests,
we have sought to exempt from the relief requested all existing
subpoenas, and also any subpoenas that might be issued for the
purpose of the Watergate conspiracy trial now in progress as to
which particularly speedy compliance may be necessary. Therefore,
the requested relief will not injure the legitimate interests of
any other parties; it will simply force those who seek access to
the materials to make their demand upon Mr. Nixon rather than
officials of the White House.
3. Notice of this application has been given by tele-
phone call prior to its filing to the office of each of the
defendants as well as to the office of the United States Attorney
for the District of Columbia.
WHEREFORE, it is respectfully requested that this
application be granted and a temporary restraining order entered
in the form attached hereto.
Respectfully submitted,
Herbert HeRThll J. Miller) Jr.
Raymond G. Larroca
William H. Dyd Jeffress, Jr.
Stan
1320 19th Street, N.W., Suite 500
Washington, D. C. 20036
Attorneys for
GERALD THE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD M. NEMON
)
)
Plaintiff,
)
)
V.
)
No.
)
ARTHUR F. SAMPSON
)
PHILIP W. BUCHEN
)
H. STUART KNIGHT,
)
)
Defendants.
)
)
PROPOSED ORDER
Upon consideration of plaintiff's application for a
temporary restraining order, each party having received notice
thereof, and the Court having heard the parties, and it appearing
to the Court that plaintiff has shown a likelihood of success on
the merits and that irreparable injury will occur in the absence
of preliminary relief and that such an order is necessary to pre-
serve the status quo, it is this
day of
, 1974 hereby
ORDERED that until such time as a hearing is had on
plaintiff's motion for a preliminary injunction, the defendants
shall not produce or disclose, or permit the production or dis-
closure by others, of any presidential materials of the Nixon
Administration presently located within the District of Columbia
metropolitan area to any person other than Richard M. Nixon or
his designees, except (1) as may be necessary to comply with
subpoenas duces tecum served upon any defendant or other court
orders issued prior to the time of the filing of the complaint in
this action, and (2) as may be necessary to comply with subpoenas
duces tecum or court orders requiring production of materials for
use in criminal trials in prograss.
FORD
UNITED STATES DISTRICT GERALT JUDGA LIBRA
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA.
RICHARD M. NIXON,
)
)
Plaintiff,
)
)
V.
)
No.
)
ARTHUR F. SAMPSON
)
PHILIP W. BUCHEN
)
H. STUART KNIGHT,
)
)
Defendants.
)
)
MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Richard M. Nixon, through his undersigned
attorneys, hereby moves this Court for a preliminary injunction
restraining the defendants, pendente lite, from allowing access
to the presidential materials of the Nixon Administration except
(1) pursuant to subpoenas served upon the defendants prior to
the filing of this complaint, or (2) pursuant to subpoenas or
court orders, whenever served, requiring production of such
materials for use in criminal trials presently in progress, or
(3) as specifically authorized by plaintiff Richard M. Nixon.
This motion is made upon the verified complaint in this action
on grounds fully explained below.
I.
PRELIMINARY STATEMENT
Because of the widespread publicity and intense in-
terest given to matters having to do with Richard M. Nixon's
presidential materials, it is appropriate to emphasize at the outset
FORD
LIBRARP
GERALD
--2-
exactly what this lawsuit is about. This is not an action to
remove any of the materials beyond the reach of lawful process
of a court, grand jury, or any other body, nor to gain unrestric-
ted control over the custody, preservation, or location of the
materials. Rather, this suit is an effort only to secure to
Mr. Nixon the right to review the presidentian materials in
preparation for response to subpoenas or other demands for pro-
duction of the materials and to determine whether the consti-
tutional privilege of Presidential confidentiality should be
exercised. This is nothing more than was provided by the con-
ditions of an agreement previously entered into by the Admini-
strator of General Services -- an agreement which itself en-
sures preservation of the materials at a specified location,
and deprives Mr. Nixon of access to the materials without noti-
fication to and cooperation of the Administrator or his agent.
Mr. Nixon's purpose in seeking to control access to
the materials is to preserve the privilege of confidentiality
of Presidential communications, and to preserve his own rights
as a citizen to the privacy of his personal conversations and
correspondence. There may, of course, be lawful rights of ac-
cess to particular materials by particular parties, and those
rights will, under the relief sought by this lawsuit, be en-
forceable by legal process served upon Mr. Nixon. At the present
time, however, process has been and will continue to be served
upon present government officials, and Mr. Nixon has no way of
controlling their response to subpoenas or other requests --
-3-
or for that matter, controlling their ability to inspect, copy
or remove the materials without legal process.
The relief sought by this lawsuit, therefore, is de-
signed simply to obtain compliance by the defendants with their
legal and contractual duties, and the temporary relief sought
by the present motion is designed only to prevent the rights
of a former President from being irreparably destroyed until
such time as those duties are fully performed.
II.
STATEMENT OF FACTS
Richard M. Nixon served as President of the United
States from January 20, 1969 to August 9, 1974 at which time
he resigned from office. While President, Richard Nixon and
members of his staff generated approximately 42 million docu-
ments which are commonly referred to as "presidential materials."
These materials embody thousands of communications between the
former President and his aides and relate to topics covering
the enormous range of responsibilities which fall within the
functions of the Presidency. Some of the materials also con-
tain purely personal communications between the President and
his family and friends.
At the time Mr. Nixon resigned from office, he deter-
mined that it would be in the national interest to arrange for
a swift but orderly transition to the Presidency of Gerald Ford.
this transition there vus not adequate time for Mr. wixon's
presidential materials to be transferred to his California
residence or another facility. Therefore, President Nixon
instructed members of his staff to transfer the presidential
materials to California after his departure where he would
personally review the materials or cause them to be reviewed
under his direction.
On September 6, 1974, President Nivon entered into
an agreement with defendant Arthur F. Sampson, Administrator
of General Services, whereby the former President deposited
with the General Services Administration all of his presiden-
tial materials located within the metropolitan area of the
District of Columbia. In addition to placing the materials
on deposit, President Nixon agreed, among other things: (a) to
donate at a future date a substantial portion of the materials
to the United States, (b) to donate to the United States, as
of September 1, 1979, the tape recordings of conversations made
within the White House and the Executive Office Building; and
(c) to limit his own right of access to the materials under
conditions set forth in the depository agreement.
In turn, defendant Sampson, pursuant to the statutory
authorization of Title 44 U.S.C., $2107, agreed, among other
things: (a) to accept the materials for deposit, (b) to trans-
fer the materials to a storage facility within the State of
California, (c) to provide access thereto only upon terms and
conditions specified in the agreement, and (d) to protect the
materials from loss, destruction and access by unauthorized
persons. Contrary to widespread public. belief, none of the
-5-
materials may be removed from deposit or
period
of three years, and the famed White House tapes cannot be re-
moved from deposit or destroyed for at least five years. Con-
sequently, all of the materials will remain available for pro-
duction in connection with legal processes for. at least the
period indicated.
Within days after execution of this depository agree-
ment and before it could be implemented, members of the Water-
gate Special Prosecution Force initiated discussions with
defendant Buchen asking that the materials™ not be transferred
in accordance with the depository agreement but held in place
and made available to the Special Prosecutor at his request.
Defendant Buchen agreed not to permit implementation of the
depository agreement but did not consent at that time to pro-
duce the materials to the Special Prosecutor.
Since that time, attorneys for the former President
have asked both defendant Sampson and defendant Buchen to carry
out the terms and conditions of the agreement. With respect
to those materials which are currently subject to subpoena or
other court order demanding production thereof, the former
President has consented to such materials remaining in Washington
and has asked only that the other materials be transferred to
California. As for those materials subject to subpoena, the
former President either has taken steps already to comply with
the request for production or has sought or will seek to raise
in the issuing court whatever objections he may have to pro-
duction of the materials. This this suit relates only to
-6-
not presently subject to any compulsory process.
III.
ARGUMENT
The standard governing the grant or denial of a pre-
liminary injunction is succinctly stated in A Quaker Action
Group V. Hickel, 137 U.S. App. D.C. 176, 181, 421.F.2d:1111,
1116 (1969) :
The movant must show a substantial
likelihood of success on the merits,
and that irreparable harm would flow
from the denial of an injunction.
In addition, the trial judge must
consider the inconvenience that an
injunction would cause the opposing
party, and must weigh the public
interest as well.
The merits of this lawsuit concern two issues: (1)
whether Mr. Nixon is entitled to performance of the agreement
entered into on September 6, 1974, and (2) whether the Consti-
tutional privilege of confidentiality of Presidential communi-
cations requires that Mr. Nixon be in a position to control
any review of the presidential materials and to determine whether
the privilege should be exercised. We first discuss these issues
and then turn to the additional issues: irreparable injury
to plaintiff, lack of injury to defendants, and the overall
public interest.
A. Plaintiff Is Entitled to Performance
of the Depository Agreement
The agreement between Mr. Nixon and defendant Sampson
was entered into pursuant to U.S.C. $2107, which provaces
in relevant part as follows:
-7-
$2107. Material accepted for deposit.
When the Administrator of General
Services considers it to be in the pub-
lic interest he may accent for deposit
(1) the papers and other historical
materials of a President or former
President of the United States, or other
official or former official of the Govern-
ment, and other papers relating to and
contemporary with a President or former
President of the United States, subject
to restrictions agreeable to the Admini-
strator as to their use
Under 44 U.S.C. $2108, the restrictions as to avail-
ability and use of materials accepted by the Administrator for
deposit in a Presidential archival depository "shall be re-
spected for the period stated, or until revoked or terminated
by the donors or depositors or by persons legally qualified
to act on their behalf."
These provisions are part of the Presidential Libraries
Act of 1955, 69 Stat. 695. In Nixon V. Sirica,
U.S. App.
D.C.
, 487 F.2d 700, 744 (1973), Judge MacKinnon described
the purpose of this Act and its implementation by other former
Presidents as follows (footnotes omitted) :
By enacting the Presidential Libraries
Act of 1955, Congress recognized the import-
ance of maintaining presidential confidentiality.
The Act bestows an absolute privilege upon
papers and sound recordings deposited with
the Government-administered presidential
libraries by providing that presidential
papers and recordings may be accepted "sub-
ject to restrictions agreeable to the admini-
strator [of General Services] as to their use."
The presidential papers of Presidents Eisen-
restriction that "materials containing state-
ments made by or to" the President are to be
-8-
kept in confidence and held under seal and
not revealed to anyone except the donors
or archival personnel until "the passage of
time or the circumstances no longer require
such materials being kept under restriction."
Restrictions imposed by letters from Presi-
dent Eisenhower and from President Johnson
additionally prohibit disclosure to "public
officials" on the ground that "the President
of the United States is the recipient of many
confidences from others, and
the
in-
violability of such confidence is essential
to the office of the presidency
"
Thus Congress by statute has recognized the
confidential nature of presidential papers
and recordings, and has subjected them to
restrictions against disclosure. It would
be incongruous to accord a greater confidence
to the materials of a deceased President than
to the materials of a living, incumbent
President.
The agreement between Mr. Nixon and the Administrator
complied in every respect with the provisions of $2107, and
there can be no doubt as to its validity. Upon execution of
the agreement, the Administrator was bound to honor the re-
strictions contained therein. Those restrictions, inter alia,
guarantee to Mr. Nixon exclusive control over access to the
materials. For the Admininstator to permit, or for anyone else
to gain, access to the materials without authorization by Mr.
Nixon is, therefore, a violation of the agreement.
The duty of the defendants to carry out the agreement
derives both from normal contract principles and from the above-
quoted statutes. It is settled that when all the elements of
-9-
a valid contract are should an injunction will issue to
require specific performance where the remedies at law are in-
adequate or impracticable. Restatement of Contracts $361;
Shanks Village Committee Against Rent Increases V. Cary, 197
F. 2d 212 (2d Cir. 1952) ; Campbell Soup Co. V. Wentz, 172 F.2d
80 (3d Cir. 1949). Since the services which the Administrator
agreed to perform cannot be obtained from anyone else, and since
the interests in privacy and in preservation of the constitu-
tional privilege of confidentiality which Mr. Nixon sought to
protect through the contract are of a type not measurable in
money terms, this prerequisite to specific performance is plainly
met.
Furthermore, when an official of the United States
undertakes a duty by agreement with a private party which is
authorized by statute, an injunction in the nature of mandamus
will issue to compel the official to carry out that duty. A
case very close in point is Chapman V. El Paso Natural Gas Co.,
204 F.2d 46 (D.C. Cir. 1953), where the court directed the
Secretary of Interior to issue certain rights-of-way for a
natural gas pipeline. An earlier license granted by the Sec-
retary, after full negotiations and consideration of policy
questions, had promised that rights-of-way be issued upon
execution of a stipulation by the plaintiff. Later, the Sec-
retary attempted to impose additional conditions on the issuance
of the rights-of-way, contending that the authorizing statute
permitted him to do so. The court, however, held that the
-10-
original agreement of the Secretary was binding, and even though
the conditions in question might lawfully have been imposed
at the time the license was granted, they could not later be
added. The court stated, 204 F.2d at 53:
"By the granting of a license to El
Paso the Secretary necessarily made not
an ephemeral, reversible determination,
but he so exhausted and terminated what-
ever discretion he possessed with relation
to this particular controversy that it
thereafter became proper for the courts not
only to strike down illegal conditions
attached then or later but also to compel
the Secretary affirmatively, by mandatory
injunction, to perform whatever ministerial
duties remained to be executed by him in the
discharge of the initial policy decision."
See also Chapman V. Santa Fe Pacific Railroad Co., 198 F.2d
498, 502 (D.C. Cir. 1952).
The remedy of mandamus is appropriate where the act
compelled is ministerial rather than discretionary, and where
the duty is in the form of a positive legal command. United
States V. Walker, 409 F.2d 477, 481 (9th Cir. 1969). Both
these tests are satisfied here. For although, as in Chapman,
supra, the Administrator may have had discretion at the time
the agreement was made whether or not to accept its provisions,
he has no power now to repudiate the agreement itself, and the
execution of the agreement involves solely ministerial acts.
Furthermore, even putting aside the fact that the contract it-
self constitutes a positive legal duty on the Administrator
to carry out its provisions, the language of 44 U.S.C. §2108
specifically makes it his duty to abide by the restrictions
placed by the donors on materials deposited pursuant to the
-11-
statutory scheme.
There thus can be little doubt that plaintiff is en-
tritled to prevail on the merits of this litigation, and we
submit it is beyond question that there exists such a "likeli-
hood" of success as to entitle plaintiff to a preliminary
injunction protecting his rights under the agreement pending
final relief on the merits.
B. Control By The Former President
Over Access to The Presidential
Materials of His 0pm Administration
IS Necessary To Preserve The Con-
stitutional Privilege of Confidentiality.
The Supreme Court in United States V. Nixon,
U.S.
, 94 S.Ct. 3090 (1974), recognized a constitutionally-based
privilege protecting the confidentiality of presidential com-
munications, which yielded only to a "demonstrated, specific
need for evidence in a pending criminal trial." 94 S.Ct. at
3110. The Court described the basis for this privilege as
follows (94 S.Ct. at 3107) :
The expectation of a President to
the confidentiality of his conversations
and correspondence, like the claim of
confidentiality of judicial delibera-
tions, for example, has all the values
to which we accord deference for the
privacy of all citizens and added to
those values the necessity for protec-
tion of the public interest in candid,
objective, and even blunt or harsh opin-
ions in presidential decisionmaking. A
President and those who assis t him must
be free to explore alternatives in the
process of shaping policies and making
decisions and to do so in a wav many
privately.
-12-
The Court's reasoning makes it plain that the privilege is
one exercisable by a President as to the materials of his own
Administration, both during and after his term in office. A
guarantee of confidentiality that lasts only for the duration
of a President's term in office would be completely useless
in fostering the interests described by the Court The only
possible conclusion from the reasoning adopted by the Court --
and from its careful avoidance of the term "executive privilege".
is that the presidential privilege, like the attorney-client
and other privileges, is one that may be waived only by the
President in office at the time the communication was made.
The policy basis for the privilege also requires that
confidentiality be protected not only against Congressional
and judicial demands for disclosure of the President's materials,
I/
but also to access by subsequent Administrations. If unknown
future occupants and staff of the White House are permitted
to sift through the confidential communications of a former
President and his aides, in response to subpoenas or otherwise,
the expectation of privacy in such communications will be as
thoroughly destroyed, and the purposes served by the privilege
as effectively nullified, as if the same access were given to
It should be noted that we have no reason to believe that
any members of the current Administration intend to examine
the presidential materials for their own purposes. Nevertheless,
such examination will be required in order to comply with sub-
poenas served upon the defendants.
-13-
Congresses.
The right of Mr. Nixon to exclusive control of his
privileged Presidential materials -- subject, of course, to
lawful judicial process served upon Mr. Nixon --- is required
not only by his ownership of the materials, his agreement
with defendant Sampson, and the provisions of 44 U.S.C. §§ 2107
and 2108, but also by the same Constitutional principles which
underlie the presumptive presidential privilege of confidentiality
upheld in United States V. Nixon, supra. The imminent action
of the defendants, therefore -- both in searching or causing
searches to be made of the materials by persons not authorized
by Mr. Nixon, and by disclosing materials to others without
Mr. Nixon's consent will violate Mr. Nixon's constitutional
rights in his capacity as a former President, as well as his
contractual rights under the depository agreement.
C. In the Absence of a Preliminary Injunction
the Plaintiff Will Suffer Irreparable Injury,
While an Injunction Will Not Injure the
Defendants or the Public.
The threatened disclosure by third parties of pri-
vileged communications, or simply information made confidential
by contract, has always been viewed as an irreparable injury
justifying issuance of an injunction. See, e.g., Roe V. Doe,
42 A.D. 2d 559, 352 N.Y.S.2d 626 (1973), aff'd, 33 N.Y.2d 902,
352 N.Y.S.2d 626, cert. granted, 94 S.Ct. 2601 (May 28, 1974)
(injunction against physician's disclosure of patient's con-
sidential communications,
Oil
Co.
U.S.
, 94 S.Ct. 1879 (1974) (injunction against dis-
losure
of
Libble,
210
Mass.
599,
97
-14-
N.E. 109 (1912) (injunction against disclosure of private letters)
See also Bell V. Waterfront Comm'n of N. Y. Harbor, 183 F .Supp.
175, 177-178 (SDNY 1960), aff'd, 279 F.2d 853 (2d Cir. 1960) :
"The unauthorized seizure of one's papers, if unlawful, and
thus an injury, is an irreparable injury."
To our knowledge, three subpoenas have already been
served upon Mr. Buchen or Mr. Knight seeking production of some
of Mr. Nixon's Presidential materials, and Rule 34 demands for
production have been made in at least two civil suits to which
the United States is a party.
In order to avoid requesting this Court to interfere
with the jurisdiction of other courts from which subpoenas
have already been issued, we are not seeking in this motion
or in this action any relief with respect to compliance by the
defendants with those outstanding subpoenas. Furthermore, to
avoid any possibility of interference in a pending trial, we
seek no relief with respect to compliance by the defendants
with subpoenas issued by any party for materials to be used
in the trial in the case of United States V. Mitchell, et al.
These subpoenas are the following: (1) a subpoena by
John Ehrlichman for the purpose of the Watergate conspiracy
trial; (2) a subpoena by James McCord for the purpose of dis-
covery in a civil suit in the District of Columbia; and (3)
a subpoena by Spencer Oliver in a civil suit seeking damages
arising out of the bugging of the Democratic National Committee
headquarters at the Watergate. These subpoenas would not be
affected by the relief requested. Additionally, Rule 34-type
for
011 companies in a civil suit 111 the Court or Claims, and by
the three television networks in a civil antitrust action.
Production has been made in the former suit, and refused in
the lattor.
-15-
in the United States District Court for the District of Columbia.
The subpoenas already served and the Rule 34 demands
already made in a wide variety of lawsuits illustrate, however,
the wholesale threat to the confidentiality of the Presidential
materials that already exists and that, given the fashionable-
ness of such demands, may be expected to increase in the near
future. In the absence of relief by this Court, Mr. Nixon will
be unable to protect the confidentiality of the materials to
the full extent consistent with the constitutional privilege
by controlling production of his materials pursuant to these
demands, or repeated review of the confidential materials by
present White House staff necessary to comply with the demands.
For these reasons, the injury that Mr. Nixon will suffer in
the absence of a preliminary injunction is plainly substantial
and irreparable.
By contrast, neither the defendants nor any third
parties will be injured by the injunction. We repeat that
neither the depository agreement, this lawsuit, nor the pre-
liminary relief requested seek in any way to place the materials
beyond legal process, which is the only lawful means by which
any person may obtain access. We seek only to place control
over access in the hands of the party -- Mr. Nixon -- to whom
it lawfully belongs, and to ensure that he has the opportunity
to assert such privileges and defenses as he may have with
respect to those materials. While this relief may result in
denying certain persons unimpeded access to the Presidential
materials, it will not deprive of any legitimate rights
-16-
to production.
Finally, because the public interest is a relevant
factor in determining whether to issue a preliminary injunction,
we emphasize that the privilege of Presidential confidentiality
is not one designed to protect Presidents, but to protect
"the public interest in candid, objective, and even blunt or
harsh opinions in presidential decisionmaking." United States
V. Nixon, supra, 94 S.Ct. at 3107 (emphasis added). It is that
public interest, together with the interest in privacy which
Mr. Nixon shares with all citizens, which this motion seeks
to vindicate.
CONCLUSION
For the reasons stated herein, plaintiff respectfully
requests that the motion be granted and that a preliminary
injunction be entered in the form attached hereto.
Respectfully submitted,
Herbert J. Miller, Jr.
Raymond G. Larroca
William H. Jeffress, Jr.
R. Stan Mortenson
washington, D. C. 20000
Attorneys for the
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD M. NIXON,
)
)
Plaintiff,
)
)
V.
)
No.
)
ARTHUR F. SAMPSON
)
PHILIP W. BUCHEN
)
H. STUART KNIGHT,
)
)
Defendants.
)
)
PROPOSED ORDER
Upon consideration of plaintiff's motion for a pre-
liminary injunction and of the opposition thereto, and the Court
having heard the parties, and it appearing to the Court that
plaintiff has shown a likelihood of success on the merits and
that irreparable injury will occur in the absence of preliminary
relief, it is this
day of
, 1974, hereby
ORDERED that the defendants, during the pendency of
this lawsuit, shall not produce or disclose, or permit the
production or disclosure by others, of any presidential materials
of the Nixon administration presently located within the District
of Columbia metropolitan area to any person other than Richard
M. Nixon or his designees, except (1) as may be necessary to
comply with subpoenas duces tecum served upon any defendant or
other court orders issued prior to the time of the filing of the
complaint in this action, and (2) as may be necessary to comply
with subpoenas duces tecum or court orders requiring production
for
CERTIFICATE 8 OF SERVICE
I hereby certify that a copy of the attached Application
for Temporary Restraining Order and Motion for Preliminary In-
junction has been served this 17th day of October, 1974 upon the
following: Arthur F. Sampson, Administrator of General Services,
F Street between 18th & 19th, N.W., Washington, D. C.; Philip W.
Buchen, Counsel to President Gerald R. Ford, The White House,
Washington, D. C.; H. Stuart Knight, Director of the Secret
Service, 1800 G Street, Washington, D. C.; William B. Saxbe,
Attorney General, 10th & Constitution Avenue, N.W.; and Earl J.
Silbert, Acting United States Attorney for the District of
Columbia, United States Courthouse, Washington, D. C.
R. Stan Mortenson
Miller, Cassidy, Larroca & Lewin
1320 19th Street, N.W., Suite 500
Washington, D. C. 20036
(202) 293-6400
Attorneys for Plaintiff,
Richard M. Nixon
ARNOLD & PORTER
THURMAN ARNOLD (1691-1969)
PAUL A. PORTER
JAMES A. DOBKIN
MILTON V. FREEMAN
1229 NINETEENTH STREET, N.W.
STEPHEN .HESTER
NORMAN DIAMOND
MICHAEL N. SOHN
WILLIAM L. MCGOVERN
WASHINGTON, D. C. 20036
BROOKSLEY LANDAU
CAROLYN E. AGGER
PATRICK F. J. MACRORY
G. DUANE VIETH
ANDREW S. KRULWICH
REED MILLER
IRVIN B. NATHAN
ABE KRASH
ROBERT WINTER
WILLIAM D. ROGERS
TELEPHONE: (202) B72-6700
NANCY K. MINTZ
B. HOWELL HILL
CABLE: "ARFOPO"
NORTON F. TENNILLE,JR.
JULIUS M. GREISMAN
ROBERT D. ROSENBAUM
TELEX: 09-2733
EDGAR H. BRENNER
J. BRADWAY BUTLER
DENNIS G. LYONS
FREDERICK B. ABRAMSON
STUART J. LAND
November 8, 1974
RICHARD HUBBARD
ROBERT E. HERZSTEIN
KENNETH A. LETZLER
JAMES R. MCALEE
DOUGLAS G. ROBINSON
MITCHELL ROGOVIN
STEPHEN M SACKS
WALTER J. ROCKLER
THOMAS J. MCGREW
CLIFFORD L.ALEXANDER,JR.
MARK J. SPOONER
WERNER KRONSTEIN
G. PHILIP NOWAK
PAUL 5. BERGER
DAVID BONDERMAN
JAMES F. FITZPATRICK
STEVEN P. LOCKMAN
MELVIN C. GARBOW
JEFFREY A. BURT
BRUCE L. MONTGOMERY
CARY H. SHERMAN
JOHN D. HAWKE, JR.
JUDITH N. STEIN
MURRAY H. BRING
SIMON LAZARUS nr
DANIEL A. REZNECK
THOMAS E. SILFEN
GERALD M. STERN
IRVING B. YOSKOWITZ
MELVIN SPAETH
DANIEL M. LEWIS
DAVID R. KENTOFF
RONALD G. NATHAN
DAVID H. LLOYD
GARY G. GERLACH
RICHARD S. EWING
LANNY J. DAVIS
PETER K. BLEAKLEY
PAUL S. RYERSON
ALEXANDER E. BENNETT
THOMAS D. NURMI
RICHARD J. WERTHEIMER
JOHN M. FEDDERS
HARRY HUGE
RICHARD A.GOLDSTEIN
JACK L.LIPSON
PHILIP J. MAUSE
JEROME 1. CHAPMAN
THOMAS B. WILNER
MYRON P. CURZAN
DIANA D. CLARK
-
MARTIN RIGER
ROBERT PITOFSKY
Jeffrey F. Axelrad, Esquire
or COUNSEL
Civil Division
General Litigation Section
Department of Justice
Washington, D.C. 20006
Re: Reporters Committee, et al. V.
Sampson, et al.
Dear Jeffrey:
Attached is a Revised Notice of Deposition re-
flecting the schedule arranged by Bill Dobrovir and
yourself. It is our understanding that Messrs. Sampson,
Buchen, Casselman and Nesbitt will appear at the times
stated in the attached Notice, without the necessity
of serving them with subpoenas or other compulsory pro-
cess. It is our understanding that Mr. Becker has also
agreed to appear voluntarily for his deposition.
If this does not accurately reflect your under-
standing, please let me know immediately.
Sincerely yours,
Mark J. (gooner
Mark J. Spooner
Enclosure
CC w/encl: All Counsel
Benton Becker
GERALD R. FORD
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
RICHARD M. NIXON,
)
)
Plaintiff,
)
V.
) Civil Action
) No. 74-1518
ARTHUR F. SAMPSON, et al.,
)
)
Defendants,
)
)
and
)
)
THE REPORTERS COMMITTEE FOR FREEDOM
)
OF THE PRESS,
)
AMERICAN HISTORICAL ASSOCIATION,
)
AMERICAN POLITICAL SCIENCE ASSOCIATION,
)
et al.,
)
Plaintiffs,
)
V.
) Civil Action
) No. 74-1533
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
and
)
)
LILLIAN HELLMAN, et al.,
)
)
Plaintiffs,
)
V.
) Civil Action
) No. 74-1551
ARTHUR F. SAMPSON, et al.,
)
)
Defendants.
)
)
TO: Herbert J. Miller, Jr., Esq.
Jeffrey Axelrad, Esq.
1320 19th Street, N.W.
Department of Justice
Washington, D.C. 20036
Washington, D.C. 20530
Peter Kreindler, Esq.
Melvin L. Wulf, Esq.
1425 K Street, N.W.
410 First Street, S.E.
Washington, D.C. 20005
Washington, D.C. 20003
Leon Friedman, Esq.
22 East 40th Street
New York, New York 10016
GERALD FORD LIBRARY
- 2 -
REVISED NOTICE OF DEPOSITIONS
Please take notice that plaintiffs in #74-1533 and
plaintiff-intervenor in #74-1518 will take the depositions of
the following persons at the times and dates stated, at the
United States Department of Justice, First Floor, Briefing and
Conference Room (opposite Room 1350), Washington, D.C.:
1. Arthur F. Sampson, on Monday, November 11,
1974, at 10:00 a.m.
2. Philip W. Buchen, on Monday, November 11,
1974, at 3:30 p.m.
3. William E. Casselman, II, on Tuesday, Novem-
ber 12, 1974, at 10:00 a.m.
4. Jack Nesbitt, on Tuesday, November 12, 1974,
at 2:00 p.m.
The deposition of Benton L. Becker will be taken at the
offices of Arnold & Porter, 1229 Nineteenth Street, N.W.,
Washington, D.C. on Wednesday, November 13, 1974, at 10:00 a.m.
Each deponent shall bring with him any document, writing
or tape recording in his possession, custody or control, or that
of his subordinates and/or agents that reflects, relates to,
mentions or is otherwise pertinent to the agreement of Septem-
ber 7, 1974, between Richard M. Nixon and Arthur F. Sampson;
the implementation, proposed or attempted, of that agreement;
the negotiation of that agreement, and/or the events leading up
to the negotiation of that agreement, and any other events oc-
curring between August 9, 1974, and October 16, 1974, pertinent
to the foregoing.
GERALD LIBRARY FORD
- 3 -
Robert Mark E. Henzstein, Esquire
Mark J. Spooner
Arnold & Porter
1229 Nineteenth Street, N.W.
Washington, D.C. 20036
Attorneys for Plaintiffs in
#74-1533
William Widiam A. Dobrovir A. Dofrover by M.J.S.
Andra N. Oakes
2005 L Street, N.W.
Washington, D.C. 20036
Attorneys for Plaintiff-Intervenor
in #74-1518
DATED: November 8, 1974
LIBRARY GERALD R. FORD
VOLUME I
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
*X
:
RICHARD M. NIXON,
:
:
Plaintiff,
:
Civil Action
:
No. 74-1518
- vs -
:
:
ARTHUR F. SAMPSON, et al.,
:
:
Defendants,
:
:
- and -
:
:
THE REPORTERS COMMITTEE FOR
:
FREEDOM OF THE PRESS,
:
AMERICAN HISTORICAL ASSOCIATION,
:
AMERICAN POLITICAL SCIENCE ASSOCIATION,
:
et al.,
:
Civil Action
:
No. 74-1533
Plaintiffs,
:
:
- vs -
:
:
ARTHUR F. SAMPSON, et al.,
:
:
Defendants.
:
:
- and -
:
:
LILLIAN HELLMAN, et al.,
:
Civil Action
:
No. 74-1551
Plaintiffs,
:
:
- vs -
:
:
ARTHUR F. SAMPSON, et al.,
:
:
Defendants.
:
:
X
GERALD R FORD
(Appearances on next page)
Baker, Hames & Burkes Reporting, Inc.
202 347-8865
I-2
DEPOSITION OF PHILIP W. BUCHEN, taken on
November 11, 1974, at 3:30 p.m., before Craig L. Knowles,
Notary Public, at the United States Department of Justice,
First Floor, Briefing and Conference Room, Washington, D. C.,
pursuant to notice.
APPEARANCES:
HERBERT J. MILLER, JR., Esq.
R. STAN MORTENSON, Esq.
Miller, Cassidy, Larroca & Lewin
1320 Nineteenth Street, N. W.
Suite 500
Washington, D. C. 20036
Attorneys forNixon
IRWIN GOLDBLOOM, Esq.
Attorney for Defendant Sampson
MARK SPOONER, Esq.
DAVID BONDERMAN, Esq.
LAWRENCE MAISEL, Esq.
IVOR ARMISTEAD, Esq.
ANDREW KRULWICH, Esq.
Arnold &Porter
1229 Nineteenth Street, N. W.
Washington, D. C. 20036
Attorneys for Reporters Committee
For Freedom of the Press, et al.
WILLIAM A. DOBROVIR, Esq.
JOSEPH D. GEBHARDT, Esq.
ANDRA OAKES, Esq.
2005 L Street, N. W.
Washington, D. C. 20036
Attorneys for Plaintiff-Intervenor
in C. S. #74-1518
GERALD FORD
(Appearances continued on next page)
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APPEARANCES (Continued) :
DOUGLAS P. HINDS, Esq.
General Services Administration
Washington, D. C. 20405
H. S. (Ted) TRIMMER, Esq.
General Services Administration
Washington, D. C. 20405
RICHARD DAVIS, Esq.
CONTENTS
WITNESS
PHILIP W. BUCHEN
Examination by Mr. Dobrovir,
Page I-4
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PROCEEDINGS
2
Whereupon,
3
PHILIP W. BUCHEN
4
was called as a witness, and after being first duly sworn,
5
was examined and testified as follows:
6
EXAMINATION
7
BY MR. DOBROVIR:
8
Q.
Mr. Buchen, would you please state your name?
9
A.
Philip W. Buchen.
10
a
Your present position in the U. S. Government?
11
A.
Counsel for the President.
12
Q.
How long have you held that position?
13
A.
Since August 15, 1974.
14
a
Did you hold a Government position previous to that
15
time?
16
A.
I was on a consulting basis as executive director. of
17
Domestic Council Committee on the Right of Privacy from
18
March 15, until August 15, '74.
19
Q.
When was there first brought to your attention
20
or when did you first become aware of a matter of the
21
disposition of the records of the Nixon Administration?
22
A.
The afternoon of August 15 I attended a meeting
23
in Fred Bussard's office, which had been pre-arranged
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between him and certain members of the Special Prosecution
2
Force.
3
Q.
Who was at that meeting?
4
A.
I think Phil Lacovara, Peter Kreindler, and
5
Ben Veniste, I believe.
6
Q.
What happened at the meeting?
7
A.
The people from the Special Prosecutor's Office
8
came to discuss their future needs for access to -- or future
9
needs to see certain materials in connection with their
10
on-going investigations, and also sought some assurances that
11
the location of the materials would be preserved until such
12
time as their needs were accommodated.
13
Q
Was there any mention at that meeting of a
14
transfer of the records to California?
15
A.
Well, if my recollection is right, Fred Bussard
16
made the point that he would hope that the interests of the
17
Special Prosecutor could be so defined that the great bulk
18
of materials falling outside of that interest could be
19
transferred.
Q.
Was there any discussion about who owned the docu-
20
21
ments?
A.
Not that I recall.
22
a
Was it assumed that the documents belonged to
23
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Mr. Nixon?
2
A.
I certainly think Fred Bussard assumed that.
3
Whether the Special Prosecutor did or not, I on'trecall.
4
Q.
Did you have any assumption in that regard?
5
A.
No.
6
Q.
When was the next time that you dealt with the
7
question of the records of the Nixon Administration?
8
A.
Well, in one way or another, almost every day
9
after that.
10
Q.
I see. Well, perhaps it would shorten things up
11
if you would narrate as briefly as you can the events from
12
August 15 to September 7 within your knowledge or as reported
13
to you that led to the execution of the agreement of
14
September 7 between Richard M. Nixon and Arthur F. Sampson.
15
A.
Well, in the course of that period I learned of the
16
huge volume of documents we were talking about and approxi-
17
mate number of tape recordings.
18
Also, I learned that there had been various
19
procedures developed regarding access, and that steps had
20
been taken to bring the materials into storage areas within
21
the E.O.P; that these storage areas were under a variety
of different controls and devices.
22
I also learned over that period of time of certain
23
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outstanding court orders affecting disposition of the
2
documents, and I recall asking the people on the staff to give
3
me all the information they had and asking people at Justice
4
to do the same.
5
And I recall we learned that there was an out-
6
standing order in the Wounded Knee case in Minneapolis, one
7
involving an anti-trust suit against the networks in
8
California, a suit in one of the Carolinas that bore on the
9
documents.
10
In fact, I think there were two suits there; and
11
also received copies of correspondence and telephone calls
12
from various parties to litigation, including the Watergate
13
prosecution wanting to know what access procedures would be.
14
I received certain letters in that period of time.
15
Then ultimately that led to a verbal request to the Attorney
16
General to seek a legal opinion as to the ownership of the
17
documents and as to the effects on the White House of
18
subpoenas or court orders.
19
a
Who initiated the request for the legal opinion?
20
A.
I initiated the request verbally, I believe, on
21
August 22nd.
22
Q.
At the time you initiated the request, did you
23
have a view as to the ownership of the records of the Nixon
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Administration that were then in the White House complex
2
under GSA.
3
MR. MILLER: I object to the question, the form.
4
MR. DOBROVIR: Objection is noted.
5
MR. GOLDBLOOM: You may answer.
6
THE WITNESS: I did learn of a memorandum that had
7
gone through the White House staff on August 9th, which
8
enunciated the principles that the ownership of the presiden-
9
tial papers was in the former President and that it included
10
an archival memorandum that I was told had been drafted
11
during earlier Administrations, words to that effect.
12
And then I knew from general reading in the news-
13
papers that the historical precedent was that presidential
14
papers belong to the President. And I also became familiar
15
with the statutes involving the presidential libraries and
16
archives in which Congress had passed certain laws that, as
17
I read them, at least impliedly assumed that the ownership
18
was in the President, former Presidents.
19
BY MR. DOBROVIR:
20
Q
DO you have with you the memorandum of August 9th
21
to which you just referred and the archival memorandum to
22
which you just referred?
A.
Yes, it's in the documents.
23
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(Pause.)
2
MR. GOLDBLOOM: In connection with the request
3
for production of documents, I am afraid to say we have not
4
completed the categorization and separation of the documents
5
as of this moment. It's hopeful we will have it done by the
6
morning.
7
There are, I can say in advance, certain types of
8
documents as to which we will claim privilege, whether it
9
be attorney-client privilege or privilege regarding internal
10
Government communications. And I would hope we could postpone
11
until the morning the production of the documents so that
12
we can finish the separation and segregation of these
13
materials.
14
MR. DOBROVIR: Very well.
15
BY MR. DOBROVIR:
16
Q
Let me ask you, Mr. Buchen, on the basis of your
17
review of the two memoranda to which you referred, and
18
newspaper stories to which you referred on the presidential
19
Libraries Act, had you by August 22 formed a view that the
20
ownership of the records in question was in former President
21
Nixon?
22
A.
No, or I wouldn't have asked the Attorney General
23
for an opinion.
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Q.
I see. So that on the basis of your review of
2
these materials that you just referred to, you still have
3
not made up your mind?
4
A.
That's right.
5
Q.
Now, when you asked the Attorney General for an
6
opinion, did you do that in writing or orally?
7
A.
I did it orally, first; followed it later by a
8
letter from the President.
9
MR. DOBROVIR: I see.
10
Mr. Goldbloom, may I assume that that letter will
11
be the subject of the documentary production or claim of
12
privilege tomorrow?
13
MR. GOLDBLOOM: Yes.
14
MR. DOBROVIR: Very well.
15
BY MR. DOBROVIR:
16
Q.
To the best of your recollection, Mr. Buchen,
17
what questions did you ask the Attorney General orally and
18
in writing?
A.
19
The question of ownership and, second, however
he would answer that question, what our responsibilities
20
were as being --- because of the location of the documents in
21
the White House complex, to court orders and subpoenas.
22
23
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Q.
How did you phrase the question about ownership,
2
to the best of your recollection?
3
A.
Well, I would just say, "Who owns these papers,"
4
the substance of it.
5
Q.
Did you say, "Who owns these papers," period? or
6
did you say, for example, "Who owns these papers - Richard
7
Nixon or the United States?" I mean insofar as you can
8
recall.
9
A.
Well, I probably limited it to these two parties,
10
since I couldn't conceive of any others.
11
Q.
Did you intimate to the Attorney General any way
12
in which you might be leaning on the question?
13
A.
No, I don't think so, except I am sure I made it
14
clear that I was beginning to find it quite burdensome, so
15
that I was equally concerned with what our responsibilities
16
were for these documents. If he drew any inferences from
17
that, I don't know.
18
Q.
Now when were you first advised by the Attorney
19
General or by any of his subordinates what his opinion was
20
going to be on the question of ownership?
A.
I think a week later, about August 29.
21
Q.
And what was that advice?
22
A.
That the ownership was in the former President,
23
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subject to certain rights that the Government had for on-
2
going Government purposes, plus the fact that as custodians,
3
or if there was a balement of the documents, we as bailees
4
would have responsibility for responding to any court order
5
or subpoena from third parties.
6
And at that point I quizzed my informant that I
7
wanted to be sure that that really was a responsibility,
8
because it seemed an unusual burden to place on a new
9
Administration that knew nothing about the contents, or even
10
were documents were, to have to respond to subpoenas.
11
And I recall saying, "Have you got any case
12
involving something like the Mayflower Storage Company that
13
may have been the recipient of many, many files of some
14
person who put them there for storage? Is it actually the
15
law that the storage company, without any knowledge of the
16
contents, would be called upon to respond to subpoenas to
17
find particular documents?"
18
a
When did there first come to your attention
19
the possibility or idea of negotiating with former President
20
Nixon an agreement concerning the disposition of the records?
21
A.
Well, I first tried to figure out if there might
22
be some unilateral way that we could rid ourselves of the
23
responsibility, such as interpleading the documents in a
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court. Idiscussed that with people on the staff, and I
2
think I must have mentioned it to the Attorney General. And
3
I got no encouragement that any court would take that kind
4
of case.
5
When I couldn't get any encouragement, I could
6
realize the problems, that it was far different than paying
7
a sum of money into court and walking away from the case.
8
Then is when we decided we would take some sort of negotiations.
9
Q.
Do you recall when that was? Was it before or
10
after you requested the opinion of the Attorney General?
11
A.
Well, I started to think about the problem before
12
requesting it, obviously. It was only after I found out
13
definitely that there was no theory that they could offer me
14
that would allow us to escape the effects of court orders
15
or subpoenas or responsibility for responding.
16
Then after I found out there didn't seem to be
17
any unilateral way to get out of it is when I seriously
18
thought that negotiations were necessary. That would have
19
been toward the end of August, right after I got the informal
20
opinion.
21
Q
So it would be on or about or shortly after the
22
29th of August?
A.
Right.
23
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a
What steps did you take then? And if you could
2
go through this with as much detail as you can recall, it
3
would be very helpful to us.
4
A.
Well, for a long -- part of the problem and why
5
there was some delay is that, of course, Mr. Nixon had no
6
counsel who was representing him in this matter. And I think
7
it was only after August 30, or about that time, that I
8
received word that Mr. Miller would be acting as Mr. Nixon's
9
attorney.
10
I think in my first meeting with him, or first
11
telephone conversation, I mentioned that this was a problem.
12
Q.
Your first telephone conversation with Mr. Miller?
13
A.
Right. And I know that on August 30 I sent him
14
a copy of the existing order, or existing internal document
15
involving the protection of the documents in storage.
16
Q.
Is that different from the memorandum of August 9th
17
that you have already described?
18
A.
Yes, because the August 9th had nothing to do with
19
the protection of storage documents.
a
So this is another document?
20
21
A.
Right.
22
Q
Thank you. And did you then begin negotiations
with Mr. Miller?
23
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A.
No. The negotiations did not proceed, or did
2
not begin until I had begun to work on the pardon and was
3
advised by the President to approach Mr. Miller on that
4
subject. I brought up the other subject at the same time.
5
I think this occurred September 3rd.
6
Q.
What did you say to Mr. Miller with respect to the
7
subject of the records?
8
A.
I said that I was looking for some way that we could
9
develop a plan that would relieve us of responsibilities
10
to third parties for responding to subpoenas or future
11
court orders. And that in view of the fact that the law
12
seemed to put this burden on us because we had physical
13
possession and physical access to the documents, that I
14
would like to work out some arrangement whereby their condi-
15
tion would be preserved, physical integrity would be
16
preserved, and yet be relieved of that responsibility for
17
the current Administration.
18
Q.
Was there any discussion in that first conversa-
19
tion about the question of ownership, or did you both
20
assume that the ownership was in Mr. Nixon?
21
A.
By that time I knew what the Attorney General's
22
opinion would beon that subject.
23
Q.
Did you give any thought at that time to the
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subject of preserving the records for historical purposes?
2
A.
No, because I also was familiar with the steps
3
taken by previous Presidents. I had gained that familiarity
4
when I had been asked by the then Vice-President in my
5
capacity as a private attorney to consult with his then
6
counsel, Bill Casselman, as to what steps he should be taking
7
to rationalize the disposition of his own papers.
8
And Bill Casselman sent me a good deal of material
9
concerning the manner in which the four previous Presidents
10
had handled the disposition of their documents so that I
11
knew these were unilateral acts in a sense by the former
12
Presidents, and who had imposed various restrictions for
13
various kinds of documents and had provided various means
14
for handling those.
15
So I considered that the matter of preserving
16
them for history was largely a determination that had to
17
emanate from the former President.
18
Q
What did you have in mind at this point in time
19
as to what were the records that you by this time had been
20
advised were the property of Mr. Nixon?
21
A.
The ones I was concerned with were the ones that
22
had been set off in separate rooms, even though I had no
23
precise knowledge as to where the dividing line was between
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documents that had gotten into these rooms and the ones that
2
hadn't. I assumed that again was not a matter that could
3
be resolved necessarily by negotiations, because, again,
4
dependent upon what the law was, if he owned papers, he
5
owned them; if he didn't, he didn't own them.
6
Q.
Did you consider at this point in time that the
7
so-called restricted files of Mr. Haldeman and Mr. Ehrlichman
8
and Mr. Colson were the property of former President Nixon?
9
A.
All I had to go on was this archival memorandum
10
that draws rather hard to apply distinctions between, as to
11
the rights of a subordinate employee to particular papers.
12
I gathered that personal letters not connected
13
with official duties that happened to get into the files
14
were excluded by the archival definition. They also had
15
categories where a document might be the result of the
16
intellectual creativeness of a subordinate employee, that the
17
subordinate employee had certain rights to at least have
18
copies of those.
19,
But since I was not familiar with what files had
20
gone in precisely for any particular individual, I wasn't
21
able to say that this document did belong to the President
22
and that one didn't, or this file, because I didn't go into
23
any of the files.
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Q.
Did you have a view about a document which was
2
a record of the official business, the Government function
3
of, say, Mr. Ehrlichman as Chairman of the Domestic Council,
4
a Domestic Council memorandum as the private property of
5
Richard M. Nixon?
6
A.
No, I didn't zero in on it that directly.
7
Q
Is it fair to say - and I am not meaning to
8
mischaracterize your testimony, if I do - is it fair to say
9
that you had in mind that there was a great mass of material
10
that had been accumulated in the White House, that you were
11
not familiar with it, but that you had been advised that it
12
all belonged to Richard Nixon?
13
A.
With the minor exceptions of purely personal
14
items that were, I gathered, distinct from the category of
15
documents produced in relation to official functions.
16
Q.
This included communications between the Chairman
17
of the Domestic Council and the Department of Health,
18
Education & Welfare, for example, or communications between
19
the Chairman of the Domestic Council and the Chairman of the
20
Council of Economic Advisors?
21
A.
Assuming there was a copy retained in the White
22
House staff files, I assumed that was the property of the
23
President based on what I knew of the Attorney General's
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opinion.
2
Q
Coming back to the negotiations, after your
3
conversation with Mr. Miller, on September 3rd, what was
4
the next step that you took?
5
A.
May I look at a calendar?
6
Q.
Absolutely.
7
A.
I think we met again on the morning of the 5th
8
which was a Thursday, and it was then determined that
9
Mr. Miller would draft an initial proposal to get over to us
10
the same day, which he did.
11
Q.
That meeting was in Washington?
12
A.
Yes.
13
Q
Do you retain a copy of that initial proposal?
14
A.
Right.
15
MR. DOBROVIR: I take it we will hear something
16
about that tomorrow morning?
17
MR. GOLDBLOOM: Yes, sir.
18
BY MR. DOBROVIR:
19
Q.
What happened with respect to that proposal?
20
A.
Well, Benton Becker and I went over it. And then
21
he and Mr. Miller went out to California with the initial
22
proposal and results of my discussion with Mr. Becker.
a
After receiving the proposal, were there portions
23
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of it which you did not consider to be satisfactory from
2
the Government's point of view?
3
A.
Well, after I saw the form of the proposal, which
4
was made in reliance on the fact that it covered those
5
documents that Mr. Nixon had ownership of without necessarily
6
defining them, but using a definition from the statute as
7
to what were presidential materials, and because it was
8
framed as being an act by the owner to deposit the materials
9
with the General Services Administration, so that it had no
10
effect of giving him more rights than the law allowed, I was
11
less concerned because I knew the overriding governmental
12
interests that would have to be reckoned with.
So that I
13
became less concerned about the exact terms of the agreement,
14
knowing that this being the unilateral act on the part of
15
the former President; not involving anyone in the Administra-
16
tion except the persons involved as guardian of the deposi-
17
tories for Presidents, namely, the General Services Adminis-
18
tration, I did not have spelled out in any negotiations the
19
exact way in which the overriding governmental interest would
20
be asserted.
21
Q
Did Mr. Miller's proposal provide that, after
22
three years, all of the materials except the White House
23
tapes would revert to Mr. Nixon for him to do with as he
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saw fit?
2
A.
Well, the word "revert" was not used. The agree-
3
ment for this deposit would last by its terms only for three
4
years. But there was clear indication that in that period
5
the claimed owner of the documents would be making selections
6
of gifts that would be in fact donated.
7
The statute allows deposits by a depository or a
8
donor. And as to the documents other than the tapes, it was
9
purely an agreement between an owner and a temporary bailee.
10
Q.
So in your view, it was only a temporary bailment
11
for a period of three years
A
12
A.
Right.
13
Q.
Now, did Mr. Miller's proposal also provide for
14
the destruction of White House tapes at some point in time?
15
A.
It provided for a future gift of the tapes after
16
five years. And, subject to their being destroyed any time
17
after the first five years at the direction of the donor,
18
but in all events to be destroyed at the end of ten years
19
or death in the second five-year period.
20
Q.
Now, upon reading Mr. Miller's proposal, did you
21
consider that as part of the negotiations you ought to try
22
to get a present gift to the United States of these materials?
23
A.
We did, except we ran into the roadblock that
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unless the subject of the gift could be precisely defined,
2
I had read the report of the Joint Congressional Taxation
3
Commission on the problem of gifts to be selected afterwards,
4
and also I had recalled that the other Presidents had first
5
indicated an intention to make gifts, but never completed
6
them until they were able to designate this group of materials
7
was given and given subject to certain restrictions as to
8
that category.
9
And I didn't see how it would be possible to
10
negotiate an effective present gift with whatever conditions
11
might have to be put on, or the donor might want to put on
12
different categories, and with complete specifications as to
13
what documents fell into each category.
14
I could appreciate the fact that this couldn't be
15
done until a period of deposit when the ownership rights,
16
whatever they were, remained with the former President.
17
Q.
You were aware, were you not, and we are talking
18
now about Mr. Miller's proposal, in that in that proposal
19
there was no assurance except for the tapes that anything
20
would indeed be donated to the United States?
21
A.
No, but neither had there been in a lot of other
22
letters of intent until the gift was actually made. The
23
owner reserved the right to do anything he wanted, or had the
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right on the matter of reserving.
2
a
Was there in any of those other letters that you
3
saw, was there a provision that after three years, the
4
deposit would lapse and the materials would be at the sole
5
control of the person donating them, or depositing them,
6
rather?
7
A.
Well, they were, as I recall them, the depositor
8
retained the right to do anything he wanted from the day they
9
went in; could have pulled them back the next day. And that
10
was actually more restrictive in the sense that they would
11
be preserved in fact for this period which was not, as I
12
recall, customary in the other so-called letters of intent.
13
Q.
Did you have any changes that you proposed to
14
Mr. Miller's proposal?
15
A.
Yes.
16
Q.
Could you tell us what they were?
17
A.
Well, there were some technical changes, not much
.18
in substance, but then other provisions, that the differences
19
between the original proposal and the final proposal
20
represented the results of negotiations.
21
Q.
How did the final proposal -- strike that. Was
22
the final proposal something agreed upon between you and
23
Mr. Miller which Mr. Becker then carried out to California?
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A.
No. Becker went out with the incomplete document.
2
a
I see.
3
A.
And reported to me by telephone as different
4
provisions were settled on.
5
Q.
So in other words, the negotiations were continued
6
in California?
7
A.
Yes.
8
Q.
By Mr. Becker?
9
A.
Right.
10
Q.
Did Mr. Miller go out with Mr. Becker?
11
A.
Yes.
12
Q.
I see. What in particular were the substantive
13
changes that you wanted to see on the document, in the agree-
14
ment?
15
A.
Well, the one that got in was that we left the door
16
open for changing locations of depositories, even after the
17
agreement was implemented by my direction. That was one of
18
the significant changes that I recall.
19
Q.
Now, in Mr. Miller's proposal, was there the
20
language that remains -- that was in the document as executed
and which had been made public with respect to response to
21
22
subpoenas by Mr. Nixon?
A.
Yes.
23
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1
Q.
And with respect to the exercise of privileges by
2
Mr. Nixon?
3
A.
Yes.
4
Q.
Wasthere any discussion by you with respect to
5
the possibility that Mr. Nixon might exercise executive
6
privilege, as such; by you or with you?
7
A.
As against -- if he were called upon under the
8
agreement to produce any document ---
9
Q.
If a subpoena was served.
10
A.
Right. He could exercise whatever privileges he
11
thought he could prevail upon.
12
Q.
Did you discuss with Mr. Miller, anybody else,
13
executive privilege in particular?
14
A.
Yes, I am'sure that was mentioned.
15
a
And --
16
A.
But again, without passing on to what extent it
17
would be applicable.
18
Q.
But you did entertain the view that Mr. Nixon, as
19
a former President, might be able to exercise executive
20
privilege?
21
A.
I knew of the one precedent that Mr. Trumann at
22
one time after he was out of office had asserted it.
23
Q.
With respect to the House of Representatives.
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A.
Yes.
2
Q.
So on the basis of that precedent you did have
3
the view that Mr. Nixon had the right to interpose a claim
4
of executive privilege?
5
A.
Well, I considered that that again was an issue
6
that might finally have to be resolved in a court in a
7
particular situation.
8
Q.
I see. How was it that Mr. Becker, Benton L.
9
Becker ---
10
A.
Right.
11
Q.
--- became involved in these transactions?
12
A.
Well, at the time of the transition -- go back.
13
He originally helped the nominee for Vice-President during
14
the confirmation hearings.
That is where I first got to
15
know him.
16
Also, at the time of the change of Administration,
17
the Vice-President or his staff had asked him to perform
.18
certain services on a volunteer basis. And he had acquired
19
some knowledge of the condition of the documents and tapes
20
as a result of that, and that was before I became counsel
21
to the President.
22
So I knew he had some familiarity with it, with
23
the problem, and also knew he was a close friend of the
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President, the then President.
2
Q.
Now, you were aware, were you not, from your
3
understanding and knowledge of the Presidential Libraries
4
Act, that the responsibility with respect to obtaining and
5
preserving presidential historical materials belongs to the
6
General Services Administration?
7
A.
Right.
8
Q.
Did you at any time in the course of these
9
negotiations consult with the Administrator of General
10
Services?
11
A.
I consulted with Bill Casselman, former General
12
Counsel of General Services Administration, who was familiar
13
with the procedures of that Administration, and I personally
14
did not consult with Mr. Sampson.
15
Q.
Well, you were aware that Mr. Sampson was going
16
to have to sign any such agreement, isn't that right?
17
A.
Yes.
-18
Q.
But you did not -- did you consult Mr. Sampson at
19
any timeprior to the time on September 7 at approximately
20
6:15 p.m., when you presented him with the document as signed
21
by Richard Nixon?
22
A.
I came into the conference that Bill Casselman
23
had had much earlier on the 7th of September just at the
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time that Mr. Sampson was going to sign the agreement. But
2
I didn't participate in any discussions with him.
3
Q.
Well, to your knowledge, did Mr. Casselman consult
4
with Mr. Sampson at any time between, say, the 3rd of
5
September and the 7th of September?
6
A.
Not to my knowledge.
7
Q.
Let me rephrase the question. Do you know that
8
he did not consult with Mr. Sampson?
9
A.
No.
10
Q.
Is it your understanding, do you have any under-
11
standing whether he did or did not consult with Mr. Sampson?
12
A.
I don't believe he did until the 7th.
13
Q.
You did not instruct Mr. Casselman to consult with
14
Mr. Sampson?
15
A.
No. I knew the statute Section 107, which is the
16
deposits, where he deals not only with respect to the donor,
17
but the depositor; that he can accept the deposit of materials.
18
And I knew that from prior precedents, deposited materials
19
was made on much less restrictive conditions in the past than
20
went into this agreement, namely, that the deposit could have
21
been a momentary one, and that there were already papers of
22
the Nixon Administration held by the General Services
23
Administration, which were under no restrictions.
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There are materials held by the General Services
2
Administration that were just, I guess, called a deposit for
3
convenience.
4
Q.
Materials of the Nixon Administration?
5
A.
Yes.
6
Q.
That up until the time of the September agreement,
7
September 7 agreement, were under no restrictions?
8
A.
That's right.
9
Q.
And which by reason of the September 7th agreement
10
came under the restrictions of that agreement?
11
A.
Right.
12
Q.
But youdid not see fit to consult Mr. Sampson
13
about any of this?
14
A.
No.
15
Q.
Can you tell me why?
16
A.
Because Bill Casselman understood the law, I
17
believed, and that obviously, if Mr. Sampson did not want
-18
to sign, we wouldn't have had an agreement. It was not some-
19
thing we were going to force him to do. We tried to get the
20
best agreement we could and present it to him.
21
Q.
Well, I still don't understand why you didn't feel
22
it appropriate to bring him into these consultations,
23
discussions, negotiations which were, after all, for a matter
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that was within his statutory responsibility.
2
A.
Well, they were within his statutory responsibility.
3
But if he wanted to reject being a depository for these
4
materials, he could have. But I knew he had accepted the
5
custody of materials under no conditions whatsoever, and
6
that this did provide a means, I thought, for letting the
7
White House get out of having to respond indefinitely to
8
subpoenas from third parties.
9
Q.
What instructions did you give to Mr. Becker when
10
he went out to California to complete the negotiations?
11
A.
Well, I gave him some suggested language changes
12
and told him that I thought there should be additional
13
flexibility; that if the arrangements could be worked out,
14
that there may still have to be modifications later on.
15
And then I realized we couldn't cover all potential
16
modifications, so that we should achieve some flexibility
17
so that the agreement would work under a variety of circum-
,18
stances.
19
Q.
You didn't, then, instruct him to try to get an
20
agreement that provided for permanent possession of these
21
records for the nation?
22
A.
I considered we could only do that if we could
work out a present gift. I didn't think anything short of
23
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1
a present gift could possibly involve a permanent arrange-
2
ment.
3
Q
Did you instruct him to try to work out a present
4
gift?
5
A.
Well, that was discussed with Mr. Miller. And
6
he pointed out the impracticality of getting a present gift
7
because of the inability to designate exactly what materials
8
would go under the present gift under what conditions.
9
Q.
You indicated earlier that Mr. Becker and you had
10
some telephone conversations, long-distance telephone
11
conversations while he was in California. What were the
12
matters that arose to which those conversations related?
13
A.
Just the changes in the agreement from the origi-
14
nal draft.
15
Q.
I see. Did he read the entire final agreement
16
to you prior to agreeing to it?
17
A.
Just the changes.
,18
Q
Just the changes. So that you approved the final
19
text of the agreement as signed by Mr. Nixon by reason of
20
your approval of the changes that were made?
A.
21
No, I didn't approve it in any official sense.
22
I merely said, "Well, it looks as though you have covered
these points. Bring it back." I realized there were --
23
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one of the problems was they were running out of time.
2
Q.
Why were they running out of time?
3
A.
Well, because we preferred to get the agreement
4
signed before the pardon was granted. This was to avoid
5
trying to get one more step along the way so that there would
6
not have to be subsequent litigation over the terms under
7
which transfers should be made if the documents were to be
8
gotten out of the White House.
9
Q.
I am sorry, it's late in the day. I don't think
10
I understood your answer.
11
MR. GOLDBLOOM: Would this be a good time to
12
quit?
13
MR. DOBROVIR: Let's see if perhaps we can just
14
resolve this point.
15
MR. GOLDBLOOM: All right.
16
THE WITNESS: I looked upon any agreement that
17
we got as being better than we have; that if we didn't get
18
any arrangement for putting these materials in a place where
19
they would be outside the White House, properly protected,
20
that there was no way either that Mr. Nixon could begin to
21
sort through the materials and deal with them as he would
22
have dealt with them if he had had them deposited before he
23
left on August 9th.
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And anything that moved that process along looked
2
to me to put us in a better position than we were and would
3
give us plenty of time after that to workout the implementation
4
of the agreement and any modifications that the owner was
5
willing to make as to the disposition of the papers.
6
Q.
Was your principal objective with respect to the
7
timing of this to remove from you and your staff the obliga-
8
tion of having to respond to subpoenas and other kinds of
9
court discovery demands?
10
A.
That's right.
11
Q.
And that is why you were eager to get this document
12
signed and accepted and implemented?
13
A.
Right.
14
MR. DOBROVIR: I see. If it's all right with
15
everybody else, this is a good time for me to stop.
16
(Whereupon, at 5:35 p.m., the deposition in the
17
above-entitled was adjourned, to reconvene on Tuesday,
18
November 12, 1974, at 10:00 a.m.)
19
20
21
22
23
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CERTIFICATE
UNITED STATES DISTRICT COURT)
)
Civil Action Nos.
FOR THE DISTRICT OF COLUMBIA)
74-1518, 74-1533, 74-1551
I, Craig L. Knowles, Notary Public, before whom
the foregoing deposition was taken, do hereby certify
that the witness whose testimony appears in the foregoing
pages was duly sworn by me; that the testimony of said
witness was recorded by me by stenotype and thereafter
reduced under my direction to typewritten form; that said
deposition is a true record of the testimony given by said
witness; that I am neither counsel for, related to, nor
employed by any of the parties to the action in which this
deposition is taken; and further, that I am not a relative
of or employee of any attorney or counsel employed by the
parties thereto, nor financially or otherwise interested in
the outcome of the action.
Craig L. Knowles
Notary Public
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