Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
24824002
label
Nixon - Papers Government Officials Memoranda (3)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
24824002
sourceUrl
contentType
document
title
Nixon - Papers Government Officials Memoranda (3)
citationUrl
collections
Philip W. Buchen Files
Philip Buchen's General Subject Files
subjects
Nixon, Richard M. (Richard Milhous), 1913-1994
Law and legislation
Watergate Affair, 1972-1974
Employees
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
24824002
coverageEndDate
logicalDate
1974-10-01
month
10
year
1974
coverageStartDate
logicalDate
1973-05-01
month
5
year
1973
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
8065a0cc1ef42d1d
ocrText
The original documents are located in Box 31, folder "Nixon - Papers Government Officials
Memoranda (3)" of the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 31 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
9/6/74
To:
Larry Silberman
From: Phil Baches
As we discussed.
GERALD
FORD LIBRARY is
September 6, 1974
MEMORANDUM FOR
The Honorable Laurence H. Silberman
Deputy Attorney General
Department of Justice
Attached is the request of President Ford for your
legal opinion concerning papers and other historical
materials retained by the White House during the
administration of former President Richard M. Nixon
and now in the possession of the United States or its
officials.
Also attached is the subpoena served OR
H. S. Knight, Director of the United States Secret
Service, on September 4, 1974.
Philip W. Buchen
Counsel for the President
Attachments
CC: Gen, Haig
Mr. Buzhardt
FORD & QERALD LIBRARY
THE WHITE HOUSE
WASHINGTON
August 22, 1974
Dear Mr. Attorney General:
By this letter I am requesting your legal opinion
concerning papers and other historical materials
retained by the White House 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.
I would like your advice concerning ownership of these
materials and the obligations of the government with
respect to subpoenas or court orders issued against the
government or its officials pertaining to them.
Sincerely,
Gerald R. Ford
The Honorable William B. Saxbe
The Attorney General
Washington, D. C.
GERALD
LIBRARY
Department
to Mr. Buchen
of the Treasury
Office of the
9/6/74
room
date.
General Counsel
Attached is a copy of the
subpoena served on September 4
on Mr. Knight, the Director of the
Secret Service, at the request of
the attorneys for Mr. Ehrlichman.
R.R.A.
General Counsel
Richard R. Albrecht
room 3000
ext. 2093
GERALD
NEW 12/71
Subpoena to Produce Document or Object
Cr. Form No. 21 They, 10-511
United States District Court
FOR THE
DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
No. 74-110
Y.
JOHN M. MITCHELL, et al,
To H. S. KNIGHT, Director, United States Secret Service,
as Custodian of Presidential Papers (White House Files),
The White House
Washington, D. C.
You are hereby commanded to appear in the United States District Court for the
District of Columbia
at John Marshall and Constitution in the city of
Washington, D.C. on the 16th
day of September
1974 at 10:00 o'clock A. M.
to testify in the case of United States V. Mitchell, et al
and bring with you
(SEE ATTACHED)
This subpoena is issued upon application of the¹ Defendant. Ehrlichman.
August 29
, 1974
ANDREW C. HALL Bird C. Hell
JAMES F. DAVEY
Attorney for John D. Ehrlichman
66 W. Flagler Street
By Robert Clork.
Miami, Florida 33130
Deputy Clerk.
B Insert "United States," or "defendant" as the case may be.
RETURN
Received this subpoena at
on
and on
at
served it on the within named
by delivering a copy to h
and tendering to h
the fee for one day's attendance and the mile-
age allowed by law.2
Dated:
DERAL FORD
, 19
By
Service Fees
Travel
$
Services
Total
$
,
Fees and mileage need not be tendered to the witness upon service of a subpoena issued in bennit 01 the united State
or an officer or egency thereof. 25 USC 1825.
AC11:ch
ATTACHMENT TO SUBPOENA TO PRODUCE
1.
Notes of Presidential conversations of John D. Ehrlichman from
June 17, 1972 to and including May 1, 1973, which are stored in
reddish-brown binders.
2.
The chronological file of correspondence and memoranda of John D.
Ehrlichman from June 17, 1972 to and including May 1, 1973.
3.
All personal papers of John D. Ehrlichman prepared or received
from June 17, 1972 to and including May 1, 1973 which refer to or
relate to the following:
(a)
The Watergate burglary.
(b)
The proposal for the development of and the implementation
of intelligence gathering activities for the Committee for
the Re-election of the President.
(c) The activities of Donald Segretti.
(d) The investigation and activities in connection therewith
of the "Watergate affair".
(e) All tape recordings of Presidential conversations involving
a discussion of the "Watergate matter".
(f)
The logs of telephone calls received or placed by Richard M.
Nixon from June 17, 1972 to and including May 1, 1973.
(g)
The logs of telephone calls received or placed by H. R.
Haldeman from June 17, 1972 to and including May 1, 1973.
(h)
The logs of telephone calls received or placed by John D.
Ehrlichman from June 17, 1972 to and including May 1, 1973.
(i)
The visitors' logs and/or appointment logs of Richard M. Nixon
from June 17, 1972 to and including May 1, 1973.
(j)
The visitors' logs and/or appointment logs of H. R. Haldeman
from June 17, 1972 to and including May 1, 1973.
(k)
The visitors logs and/or appointment logs of John D.
Ehrlichman from June 17, 1972/and including May 1, 1973.
(1)
Any and all records of any person, maintained at the White
House, which refer to or relate to the "Watergate matter"
from June 17, 1972 to and including May 1, 1973.
Office of the Attorney General
PRO
SEQUITUR
Mashington, D.C.
JUSTITIA
September 6, 1974
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 are not the property
of former President Nixon would be to reverse what has
apparently been the almost unvaried understanding of all
=
FORD
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. In Folsom 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,
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, every President of the United
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).
- 2 -
GERALD FORD LIBRAS
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
or official nature, as his own property.
A
classic
exposition of this Presidential view was set forth by
President Taft in a lecture presented several years 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).
2/
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 H.J. Res. 332
(hereafter referred to as "1955 Hearings"), pp. 28, 45.
- 3 -
4330 & CERALD LIBRARY
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, Jefferson, 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]overment 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 property under similar con-
ditions. Id. at 474.
- 4 -
FORD i LIBRARY
Moreover, with respect to 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
acknowledgement 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
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 merely to exclude the permanentfoRD
files of the Chief Executive Clerk discussed at page 12 BERAL Below.
- 5 -
the House debate on the Presidential Libraries Act, Congress-
man Moss, who was in 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,
F. 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 part 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
FORD
involving the examination of President Nixon's tax returns BERALD
H. Rept. 93-966, 93d Cong., 2d Sess. (1974). The report
LIBRARY
points to the practice of Presidents since Washington of
treating their papers, both private and official, as their
- 6 -
personal property; and to the congressional 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 Libraries
Act, suggest that the papers of President Nixon are con-
sidered his personal property rather than public property."
Id. at 28-29.
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 a 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
LIBRARY GERALD R. FORD
typing paper and materials, which are of course of negligible
- 7 -
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 a 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 a 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 reckon to be
emoluments. Corwin, The President 348 n. 53.
He gives as 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
FORD
certain documents of elected public officials"), it must GEMALD
LIBRARY
- 8 -
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 a 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, supra, 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, at 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.
§ 793, obviously applies to Presidential papers even when
- 9 -
FORD & GERALD LIBRARY
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 of 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.
- 10 -
=
FORD
GERALD
LIBRARY
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 staff from Jerry 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 materials 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
BERALD FORD LIBRARA
- 11 -
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 a 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 court 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
LIBRARY GERALD ? FORD
- 13 -
Fed. R. Civ. P. 34(a). In addition, in both criminal and
civil cases, a subpoena may be issued directing a person to
produce documents or objects which are within his possession,
but which belong to another person. Fed. R. 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, 860 (8th Cir., 1956), cert. denied, 352 U.S. 833;
United States V. Re, 313 F. 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,
Wm B Saybe
Attorney General
LISEARY GERALD ? FOOD
- 14 -
THE WHITE HOUSE
WASHINGTON
September 10, 1974
Dear Mr. Attorney General:
You are hereby authorized to release for publication
your opinion rendered to me on September 6, 1974
concerning the ownership of certain papers and other
historical materials retained by the White House Office
during the administration of former President Nixon.
Sincerely,
Counsel to the President
Honorable William B. Saxbe
The Attorney General
Department of Justice
Washington, D. C. 20530
FORD in OERALD LIBRARY
1
THE WHITE HOUSE
WASHINGTON
September 10, 1974
Re: United States V. National Broadcasting Company, Inc.,
(Civil 72-819-RJK C.D. Cal. ); United States V. Columbia
Broadcasting System, Inc., et al., (Civil 72-820-RJK
C.D. Cal. ); United States V. American Broadcasting
Companies, Inc., (Civil 72-821-RJK C.D. Cal.)
Dear Mr. Kauper:
Your letter to me of this date requests answers to five questions
which are needed for your response to the court's order in the
above referenced case on September 16, 1974. As I am sure you
are aware, it has not been possible to furnish the information
in question until their legal status was determined by the Attorney
General's opinion of September 7, 1974 and the letter of agree-
ment between former President Nixon and GSA Administrator
Sampson dated September 6, 1974 ("Nixon-Sampson Agreement").
Accordingly, the files in question are not within the custody or
control of the White House and can only be provided in accordance
with the above Nixon-Sampson Agreement, which, of course,
makes provision for compliance with court orders.
The answer to your first question ("Does your staff, or anyone,
have the necessary access to the documents and tapes that is
required for an answer?") is that only Mr. Nixon or his auth-
orized representative now has such access.
Your second question is: "Approximately how many documents
and how many tapes, sent or received during the period October 17,
1969 to December 31, 1972, are involved?" No one on the White
FGRO is GERALD LIBRARY
-2-
House staff now or, I am informed, at any time since the court's
order issued, has had the knowledge or information necessary to
answer this question. Given the very broad scope of the information
sought in the interrogatories set forth in Mr. Silberman's letter of
June 13, 1974 to Mr. Buzhardt, it would be impossible to answer
this question without examining virtually every document and tape
covered by this time period.
Your third question is whether there is "a subject matter index to
the files in question. " There is a subject matter index to the
central files of the Nixon White House but the index itself would
not necessarily be in sufficient detail to disclose the existence of
all the information sought in the interrogatories. That index by
no means covers all of the Nixon papers for the time period involved,
for which there is no comprehensive index to my knowledge, and
Mr. Buzhardt has informed me that he is not aware of any such index.
Your fourth question is whether there is a subject matter index to
the tapes. The answer is no.
Sincerely,
Philip
Counsel to the President
Honorable Thomas E. Kauper
Assistant Attorney General
Antitrust Division
Department of Justice
Washington, D. C. 20530
FORD is GERALD LIBRARY
9/10/74
Original
went to
Dundley
chapinen
/
I pulled
this cg,
for onfo
FORD it 03RALO LIBRARY
SEP 10 1974
Honorable Philip W. Buchen
Counsel to the President
The White House
Room 106, Old Executive Office Bldg.
Washington, D.C. 20500
Attention: Dudley H. Chapman, Esquire
Re: United States v. National Broadcasting Company,
Inc., (Civil 72-819-RJK C.D. Cal.); United States
V. Columbia Broadcasting System, Inc., et al.,
(Civil 72-820-RJK C.D. Cal.), United States V.
American Broadcasting Companies, Inc., (Civil
72-821-RJK C.D. Cal.)
Dear Mr. Buchen:
Reference is made to the Department's letters of June 13,
June 21, June 22, August 5, and August 21, 1974, concerning
the above cases. These letters all related to the Court's
order of July 17, 1974, directing the Government to respond
to defendants' interrogatories concerning White House documents
and tapes relating to specified matters. We requested that
the information sought in the defendants' interrogatories be
furnished to us BO as to comply with the Court's order.
In view of the Attorney General's opinion of September 7,
1974, and the letter agreement between former President Nixon
and GSA Administrator Sampson dated September 6, 1974, it is
now requested that your office provide us with a statement which
will deal with the feasibility of your staff's providing us with
a response to defendants' interrogatories. In that connection,
it would be appreciated if the statement would deal with the
following questions:
(1) Does your staff, or anyone, have the necessary
access to the documents and tapes that is required for
an answer?;
(2) Approximately how many documents and how many
tapes, sent or received during the period October 17, 1969,
to December 31, 1972, are involved?;
(3) Is there a subject matter index to the documents
in question? and
(4) Is there a subject matter index to the tapes?
Since some response must be made to the Court and defendants
by next Monday, September 16, 1974, it would be very much appre-
ciated if you would give these questions your urgent attention.
Sincerely yours,
THOMAS E. KAUPER
Assistant Attorney General
Antitrust Division
FORD 2. GERALD LIBEARY
THE WHITE HOUSE
WASHINGTON
September 10, 1974
Re: United States V. National Broadcasting Company, Inc.,
(Civil 72-819-RJK C.D. Cal. ); United States V. Columbia
Broadcasting System, Inc., et al., (Civil 72-820-RJK
C.D. Cal. ); United States V. American Broadcasting
Companies, Inc., (Civil 72-821-RJK C.D. Cal.)
Dear Mr. Kauper:
Your letter to me of this date requests answers to five questions
which are needed for your response to the court's order in the
above referenced case on September 16, 1974. As I am sure you
are aware, it has not been possible to furnish the information
in question until their legal status was determined by the Attorney
General's opinion of September 7, 1974 and the letter of agree-
ment between former President Nixon and GSA Administrator
Sampson dated September 6, 1974 ("Nixon-Sampson Agreement").
Accordingly, the files in question are not within the custody or
control of the White House and can only be provided in accordance
with the above Nixon-Sampson Agreement, which, of course,
makes provision for compliance with court orders.
The answer to your first question ("Does your staff, or anyone,
have the necessary access to the documents and tapes that is
required for an answer?") is that only Mr. Nixon or his auth-
orized representative now has such access.
Your second question is: "Approximately how many documents
and how many tapes, sent or received during the period October 17,
1969 to December 31, 1972, are involved?" No one on the White
LIBRARY DEBALD ? FORD
-2-
House staff now or, I am informed, at any time since the court's
order issued, has had the knowledge or information necessary to
answer this question. Given the very broad scope of the information
sought in the interrogatories set forth in Mr. Silberman's letter of
June 13, 1974 to Mr. Buzhardt, it would be impossible to answer
this question without examining virtually every document and tape
covered by this time period.
Your third question is whether there is "a subject matter index to
the files in question. " There is a subject matter index to the
central files of the Nixon White House but the index itself would
not necessarily be in sufficient detail to disclose the existence of
all the information sought in the interrogatories. That index by
no means covers all of the Nixon papers for the time period involved,
for which there is no comprehensive index to my knowledge, and
Mr. Buzhardt has informed me that he is not aware of any such index.
Your fourth question is whether there is a subject matter index to
the tapes. The answer is no.
Sincerely,
Philip
Counsel to the President
Honorable Thomas E. Kauper
Assistant Attorney General
Antitrust Division
Department of Justice
Washington, D. C. 20530
FORD & GERALD LIBRARY
9/6/74
!
Original
went to
Dandley
chapmen -
I pulled
this cy,
for onfo.
LIBRARA SERALD ? FORD
SEP 10 1974
Honorable Philip W. Buchen
Counsel to the President
The White House
Room 106, Old Executive Office Bldg.
Washington, D.C. 20500
Attention: Dudley H. Chapman, Esquire
Re: United States V. National Broadcasting Company,
Inc., (Civil 72-819-RJK C.D. Cal.); United States
V. Columbia Broadcasting System, Inc., et al.,
(Civil 72-820-RJK C.D. Cal.); United States V.
American Broadcasting Companies, Inc., (Civil
72-821-RJK C.D. Cal.)
Dear Mr. Buchen:
Reference is made to the Department's letters of June 13,
June 21, June 22, August 5, and August 21, 1974, concerning
the above cases. These letters all related to the Court's
order of July 17, 1974, directing the Government to respond
to defendants' interrogatories concerning White House documents
and tapes relating to specified matters. We requested that
the information sought in the defendants' interrogatories be
furnished to us so as to comply with the Court's order.
In view of the Attorney General's opinion of September 7,
1974, and the letter agreement between former President Nixon
and GSA Administrator Sampson dated September 6, 1974, it is
now requested that your office provide us with a statement which
will deal with the feasibility of your staff's providing us with
a response to defendants' interrogatories. In that connection,
it would be appreciated if the statement would deal with the
following questions:
(1) Does your staff, or anyone, have the necessary
access to the documents and tapes that is required for
an answer?;
(2) Approximately how many documents and how CERTIS many
LIBRA
tapes, sent or received during the period October 17, 1969,
to December 31, 1972, are involved?;
(3) Is there a subject matter index to the documents
in question?; and
(4) Is there a subject matter index to the tapes?
Since some response must be made to the Court and defendants
by next Monday, September 16, 1974, it would be very much appre-
ciated if you would give these questions your urgent attention.
Sincerely yours,
THOMAS E. KAUPER
Assistant Attorney General
Antitrust Division
LIBRARY GERALD R. FORD
THE GENERAL COUNSEL OF THE TREASURY
WASHING ron. D.C. 20220
evel,
September 13, 1974
Re: U.S. V. Mitchell, et al,
United States District Court
for the District of Columbia
No. 74-110
Dear Mr. Jaworski:
I understand that the subpoena in the above matter served on
E. S. Knight, Director, United States Secret Service, on September 4,
1974, has been referred to your office for action. This letter vill
constitute your authorization to represent Mr. Knight in connection
with the subpoena and to make an appropriate motion to quash the
subpoena.
Sincerely yours,
(Signed) Richard R. Albrecht
Richard R. Albrecht
Mr. Leon Jaworski
Watergate Special Prosecutor
1425 K Street, N. W.
9th Floor
Washington, D. C. 20005
ATTN: Mr. Philip Lacovara
FORD is 0ERALD LIBRARY
WATERGATE SPECIAL PROSECUTION FORCE
United States Department of Justice
1425 K Street, N.W.
Washington, D.C. 20005
September 13, 1974
Honorable Philip W. Buchen
Counsel to the President
The White House
Washington, D. C.
Dear Mr. Buchen:
I am writing to set forth our understanding of the
situation as it was discussed and agreed during the meet-
ing yesterday afternoon attended by Messrs. Ruth, Voren-
berg and Kreindler of our Office, Messrs. Silberman and
Wilderotter of the Department of Justice, Mr. Casselman
of the White House legal staff, and the two of us.
At that meeting we explained our objections and
reservations concerning the basis and thrust of the
Attorney General's opinion dated September 6, 1974, and
the validity and effect of the letter agreement between
former President Nixon and General Services Administrator
Sampson, also dated September 6, 1974. Specifically, we
noted that, even assuming the correctness of the Attorney
General's opinion on the private ownership question, the
opinion implies but does not develop a basis for guaran-
teeing the government's right to utilize those materials
for the present legitimate interests of the public. The
letter agreement, however, makes no effort to secure or
protect these public interests but rather purports to
cede to Mr. Nixon the right of exclusive access to all
tapes and documents and authorizes him to withdraw or
destroy any or all of the tapes and documents without
ever making them available for review by the government
or people of the United States. We explained our reasons
for believing that the September 6 agreement violates
various provisions of the Presidential Libraries Act, on
which it is apparently based, as well as the spirit of
that statute.
&
FORD
CERALD
LIBRARY
- 2 -
In light of these serious problems, I believe you
have granted our request that no further action that might
possibly affect adversely the interests of this Office
will be taken pending further discussions. In particular,
none of the files compiled during the Administration of
former President Nixon will be moved from their present
locations nor will any steps be taken to implement the
arrangement of September 6, such as by giving either Mr.
Nixon or Mr. Sampson any "keys" to those files or any other
access to them.
I believe it is important to state this agreement in
the clearest terms possible. On August 14, 1974, I wrote
to Mr. Buzhardt, then Counsel to the President, that "the
status quo should be maintained and no materials of any
type should be relinquished from the custody or control of
the White House. " (A copy of this letter is attached.)
On August 15, 1974, members of our Office met with you and
Mr. Buzhardt to discuss this request and it was agreed at
that time that none of the files in question would be moved
pending further discussions. You authorized us to release
a public statement to that effect and we did so, explaining
that we were satisfied with that arrangement.
Nevertheless, the agreement of September 6, 1974, about
which we were not consulted in any way, purports to recog-
nize that Mr. Nixon was, as of that date, the "custodian"
of the files "with sole right and power of access thereto."
Apart from the questions we have raised about the legal
validity of that agreement, it purports to have transferred
legal custody of the tapes and documents to Mr. Nixon and,
if valid, may seriously complicate our ability to obtain
prompt and effective access to evidence necessary to in-
vestigations under our jurisdiction.
Thus, until we can pursue the alternatives that were
discussed at yesterday's meeting for clarifying or altering
the terms or effect of the September 6 letter agreement, we
would appreciate it if the physical arrangements existing
at present not be modified in any way. It is our under-
standing that you have agreed to this request.
GERALD FORD LIBRARY
- 3 -
Please let me know if the agreement set forth above
does not coincide with the discussions as you understand
them.
Sincerely,
Philip
Counsel to the Special
Prosecutor
Enclosure
CC: Honorable Laurence H. Silberman
Deputy Attorney General
Department of Justice
Washington, D. C. 20530
FORD if
WATERGATE SPECIAL PROSECUTION FORCE
United States Department of Justice
1425 X Street, N.W.
Washington, D.C. 20005
PAL:sek
August 14, 1974
J. Fred Buzhardt, Esq.
Counsel to the President
The White House
Washington, D. C.
Dear Mr. Buzhardt:
When members of our office met with you and Mr. St.
Clair yesterday you indicated that the process of tran-
sition between Administrations would involve a supple-
mental appropriation and the appointment of a liaison
official between the President and government agencies,
including the White House and the Special Prosecutor's
office. It was our understanding that this process
would take some time, and that in particular no documents
or materials to which the former President might be
entitled would be or could be removed from the White
House files until that time. You also then advised us of
your judgment that, by custom, materials in the White
House files become the "private property" of a former
President when he leaves office.
As you know, materials in the White House files are
of extreme importance to a number of investigations within
the jurisdiction of this office. In fact, at the time of
President Nixon's resignation, there were outstanding a
considerable number of unresolved requests from us for
access to specific tapes or documents or to categories of
tapes and documents. The scope of a former President's
entitlement to materials that, during his incumbency,
were official White House files is, in our judgment, not
free from doubt. Regardless of that question, however,
the government, including the Special Prosecutor's of-
fice and the grand jury, certainly has a legitimate
interest in access to these materials to the extent that
they relate to continuing business of the government.
&
FORD
GERALD
LIBRARY
- 2 -
We therefore request that, until White House counsel,
representatives of the former President, and this office
can explore and hopefully agree upon procedures for
assuring access to relevant evidence now located in White
House files, the status quo should be maintained and no
materials of any type should be relinquished from the
custody or control of the White House.
We understand that, on the basis of your discussion
with General Haig, he will explore this matter further
with the Special Prosecutor and that for the present
there will be no change in the status or location of the
materials in question.
Sincerely,
Philip A. Lacovara
Counsel to the Special
Prosecutor
GERALD ? FORD
THE WHITE HOUSE
WASHINGTON
September 20, 1974
Dear Mr. Rhoads:
Confirming our recent conversation, in which William Casselman also
participated, I set forth the following points concerning the
letter agreement between former President Nixon and Administrator
Arthur F. Sampson of the General Services Administration dated
September 6, 1974:
1) A principal reason that I had recommended acceptance of this
agreement as to disposition of tape recordings which are
covered by paragraphs 8 and 9 was based upon my understanding
of the clandestine nature of their origin. It is my belief
that such recordings made of conversations engaged in by
persons of whom one or more were unaware of the recordings
are so offensive and contrary to their interests in personal
privacy and in freedom of expression as to justify or even
require treatment different from that accorded other
materials covered by the agreement. The different treat-
ment specified in the agreement, while allowing for Court-
ordered disclosure to appropriate parties over a 5-year
period, does preclude other access except as conducted or
directed by the former President in accordance with
specified safeguards involving the General Services Adminis-
tration and otherwise allows, and ultimately requires,
destruction of the tapes over a second 5-year period.
2) You correctly pointed out that this different treatment of
such tape recordings results in cutting off the possibility
for historians to learn the conversational contents of the
tapes at some future time, even so far in the future as to
make it unlikely any persons involved would then be living.
You also expressed your opinion that this was a very
objectionable result from your point of view and from that
of other archivists and historians. I assured you that you
were under no obligation to refrain from expressing this
opinion freely so long as you hold it, and that I would
be willing to assure anyone to that effect who inquires.
Also, you may use this letter to overcome any possible
TORD
LIBRARY
Honorable James B. Rhoads
September 20, 1974
Page 2
implication that your undertaking or authorizing steps to
implement the agreement as written, whether in the initial
5-year period or afterwards, may constitute a retreat from
the opinion you expressed.
3) I suggested to you that the historical and archival community
may wish to consider fully, under appropriate organizational
auspices, the problems posed by the surreptitious use of
modern recording techniques to make a "record for history"
of private conversations. The problem occurs when not all
parties to the conversation have been made aware a recording
is in process and also when none of the parties is aware the
conversation is being recorded. We discussed generally the
concerns to be addressed and their relations to problems,
present and future, going far beyond those caused by only the
tape recordings covered by the agreement in question. However,
those are matters which you and others who may want to take
up the suggestion would independently want to determine.
Thank you very much for our meeting and for your thoughtful attention
to the points raised.
Sincerely yours,
Thily W. Buchen
Philip W. Buchen
Counsel to the President
The Honorable James B. Rhoads
Archivist of the United States
General Services Administration
8th and Pennsylvania Avenue, N.W., Room 111
Washington, D. C. 20408
cc: William Casselman
Administrator Arthur F. Sampson
FORD
LIBR
LAW OFFICES
MILLER, CASSIDY, LARROCA & LEWIN
1220 19TH STREET. N.W. . SUITE 500
WASHINGTON. D. C. 20036
AREA CODE 202
TELEPHONE 293-6400
ERBERT J. MILLER. JR.
JOSEPH S. MCCARTHY
OHN JOSEPH CASSIDY
COURTNEY A. EVANS
AYMOND G. LARROCA
OF COUNSEL
ATHAN LEWIN
ARTIN D. MINSKER
ILLIAM H. JEFFRESS. JR.
HOMAS D. ROWE. JR.
RAYMOND RANDOLPH. JR.
STAN MORTENSON
September 20, 1974
Philip W. Buchen, Esquire
Counsel to the President
The White House
Washington, D. C. 20500
Dear Mr. Buchen:
This letter is in reference to a letter dated Septem-
ber 18, 1974, to J. Fred Buzhardt, Jr., Esquire, from Richard
Ben-Veniste, Assistant Special Prosecutor, and a letter dated
September 13, 1974, to yourself from Mr. Richard Ben-Veniste.
With reference to the letter of September 18, as the
attorney for former President Richard Nixon I have no objection
to your making available to Mr. Ben-Veniste the five dates
specified from President Nixon's daily diary. I would object
to an informal turning over of the tape recording of the conver-
sation between President Nixon and John W. Dean, February 28,
1973. Since a copy of that tape has already been furnished to
the Special Prosecutor it would seem that the proper way to pro-
ceed would be for a subpoena to be served on President Nixon to
produce that tape at which time it could be produced pursuant to
the procedures which have already been established pursuant to a
prior subpoena issued by the Special Prosecutor.
With respect to the items requested in the September 13,
1974, letter, I have no objection to turning over and hereby
designate Mr. Jerry Jones, Staff Secretary, White House, to ob-
tain the documents in Item Nos. 1, 2, 3 if available, 5 and 6.
Once they have been located and after I have examined them
FORD
LIBRARY
Philip W. Buchen, Esquire
September 20, 1974
Page Two
I believe I will have no objection to their being turned over.
With respect to Item No. 4, reflecting the manifest
of Air Force One, if there are security problems involved in
making such information available then I would, of course, ob-
ject to turning over that information.
With respect to Item No. 7 which will require a sub-
stantial amount of work, I designate Mrs. Gertrude T. Fry,
Librarian, White House, to examine the documents and obtain
the information there requested. Again upon my examination it
is believed that there will be no objection to it being turned
over.
With respect to Item No. 8 which is the blanket request
for the President's daily diary from June 17, 1972 through
December 31, 1973, I would, of course, object to such a blanket
request but would be available to discuss any specific requests
for diaries as to specific meetings or dates.
If you have any questions concerning the above, please
do not hesitate to contact the undersigned.
HJM/psb
FORD in LIBRARY OFRALD
WASHINGTON. D.C. 20343
B-149372
September 20, 1974
The Honorable Joseph M. Montoya, Chairman
Subcommittee on Treasury, Postal Service
agreement
and General Government
Committee on Appropriations
United States Senate
Dear Mr. Chairman:
This refers to your letter of September 12, 1974, wherein you
request our views on certain questions arising in connection with
the Subcommittee's consideration of two proposed appropriations to
the General Services Administration (GSA) which would provide
services, facilities, and benefits for former President Richard M.
Nixon.
Our opinion is requested concerning the eligibility of former
President Nixon for services and facilities under the Presidential
Transition Act of 1963; limitations upon nonreimbursable details
provided to him under the Presidential Transition Act; and the
validity of an agreement between the GSA Administrator and former
President Nixon regarding the preservation of the latter's Presi-
dential historical materials. Each of these questions in the order
here presented is treated separately below.
Eligibility of former President Nixon under
the Presidential Transition Act
We have reviewed the correspondence between GSA and the Depart-
ment of Justice which was enclosed with your letter to us. In a
letter to the Attorney General dated August 12, 1974, the GSA Adminis-
trator expressed the view that the Presidential Transition Act does
apply in former President Nixon's situation, and requested the
Attorney General's opinion on this point. In a letter to the Adminis-
trator dated August 15, 1974, the Acting Assistant Attorney General,
Office of Legal Counsel, held that the Transition Act is applicable
to former President Nixon. While this matter is by no means clear,
we agree, for the reasons stated hereinafter, with the conclusion
LIBRARY GERALD R. FORD
expressed by GSA and the Department of Justice.
SEP 2 0 974
SENATE COMMITTEE ON APPROPRIATIONS
The purpose of the Presidential Transition Act of 1963, approved
March 7, 1964, Pub. L. 88-277, 78 Stat. 153, 3 U.S.C. 102 note, as
stated in section 2 thereof, is "to promote the orderly transfer of
the executive power in connection with the expiration of the term of
office of a President and the inauguration of a new President.' To
this end, section 3(a) authorizes the Administrator of General
Services to provide, upon request, to each President-elect and each
Vice-President-elect, for use in connection with his preparations
for the assumption of official duties, necessary services and facili-
ties including (1) suitable office space appropriately equipped and
furnished; (2) compensation for office staffs, including the detail
of Federal employees; (3) payment of experts or consultants or organi-
zations thereof; (4) travel and subsistence allowances, including
rental of Government or hired motor vehicles; (5) communications
services; (6) printing and binding expenses; and (7) reimbursement to
the postal revenues for the value of mailing privileges authorized
under subsection 3(d). Section 4 of the Act provides in part:
"The Administrator is authorized to provide, upon
request, to each former President and each former Vice
President, for a period not to exceed six months from
the date of the expiration of his term of office as
President or Vice President, for use in connection with
winding up the affairs of his office, necessary services
and facilities of the same general character as author-
ized by this Act to be provided to Presidents-elect and
Vice-Presidents-elect.
Section 5 authorizes the appropriation of such sums as may be necessary
for carrying out the purposes of the Act but not to exceed $900,000
"for any one Presidential transition * *."
There are certain fairly specific limitations upon the applica-
bility of the Presidential Transition Act. For example, under the
definitions of "President-elect" and "Vice-President-elect" contained
in subsection 3(c), services and facilities are available only to
persons to accede to such offices as successful candidates in a
general Presidential election. Alsa, incumbent Presidents and Vice
Presidents who are reelected are not eligible for transition services
and facilities; nor would a new Vice-President-elect who is the running
mate of a reelected incumbent President. Cf., H. Rept. No. 301,
88th Cong., 1st sess., 5; S. Rept. No. 448, 88th Cong., 1st sess., 3.
In general terms, and even beyond that portion of the stated
purpose in section 2, quoted previously, it is obvious from the basic
- 2 -
GERALD FORD HIBRARY
statutory scheme and legislative history that the Transition Act was
enacted only in consideration of a transition occurring through the
normal electoral processes. Clearly, no thought was given to the
possibility of a Presidential resignation, and, accordingly, it may
fairly be said that Congress never specifically intended to make
transition services and facilities available to a former President
who had resigned. This observation might reasonably be considered
sufficient to justify the conclusion that former President Nixon is
not eligible for such services and facilities. However, we believe
that the absence of a specific affirmative legislative intent in this
regard need not be considered dispositive provided that the furnishing
of transition services and facilities to a former President by resigna-
tion, albeit not foreseen as a possibility, may nonetheless be con-
sidered consistent with the express terms of the Transition Act and
its general purposes. We further believe that both of these conditions
are satisfied.
As noted previously, section 4 of the Transition Act authorizes
the provision "to each former President" of services and facilities
of the same general character as those authorized for Presidents-elect
and Vice-Presidents-elect for a period not to exceed six months "from
the date of the expiration of his term of office * *." While the
Transition Act itself does not elaborate upon the quoted language,
consideration must be given in this regard to the so-called "Former
Presidents Act," approved August 25, 1958, Pub. L. 85-745, 72 Stat
838, as amended, 3 U.S.C. 102 note. This statute authorizes the
provision to each former President of a pension, office space, and
staff allowances for the remainder of his life. A pension is also
provided for the widow of a former President.
The relationship between the Transition Act and the Former Presi-
dents Act appears significant in several respects. First, subsection (f)
of the Former Presidents Act defines a "former President" as an indi-
vidual who has held the office of President and whose service in that
office terminated other than by removal through impeachment and con-
viction. Secondly, section 4- of the Transition Act expressly provides
that the Former Presidents Act, except for the pension provisions,
shall not become effective with respect to a former President until
six months after the expiration of his term of office as President.
This six-month delay in the operation of the Former Presidents Act was
included on the assumption that a former President would, for the first
six months after he leaves office, receive services and facilities
under the Transition Act, and, therefore, was designed to avoid duplica-
tion and confusion resulting from the simultaneous operation of both
acts during the six-month period. See H. Rept. No. 301, supra, 2-3;
S. Rept. No. 448, supra, 4.
- 3 -
FORD + LIBRARY GERALD
In view of the integral relationship between the two statutes,
we believe it is reasonable that the definition of "former President"
contained in the Former Presidents Act should be considered applicable
as well under section 4 of the Transition Act. Former President Nixon
would, of course, fall within this definition since he was not actually
removed from office by impeachment and conviction.
A related matter is whether former President Nixon's "term of
office" has expired for purposes of the Transition Act. The concept
of "term of office" has different meanings in different contexts.
See generally 67 C.J.S., Officers, $42, P. 196; 41 Words and Phrases,
"Term of Office," pp. 621-628. While none of the contexts presented
in the cited references are particularly analogous to the present
consideration, there is some authority to the effect that a fixed term
of office expires when the occupant leaves that office. See, for
example, the following passage from the opinion of the New Jersey
Supreme Court in Board of Chosen Freeholders V. Lee, 76 N.J.L. 327,
70 A. 925, 926 (1908):
"The words 'term of office' may in a sense be used
to indicate the statutory period for which an officer is
elected. We speak of the term of office of the President
of the United States and the term of office of the Gover-
nor of the state, meaning that the first was four years
and the latter three years; but the words 'term of office'
may also mean a period much shorter than that for which
the particular officer was elected. His term of office
may be terminated before the expiration of the statutory
period for which he was elected by impeachment, or resigna-
tion, or death of the particular officer. The happening
of these contingencies is an implied limitation upon the
right of the elected officer to continue in office for
the period for which he would otherwise be entitled to
hold. When such a contingency occurs, the officer's
term expires, there is a vacancy, and upon the appoint-
ment or election to fill the vacant office the term of
another officer begins. To assert that a term of office
of an impeached or deceased officer continues is to
assert that there may be two terms of office running
together, although the office can be filled but by a
single person. * * *"
- 4 -
GERALD LIGRARY ? FORD
It seems to us that the relationship between the Former Presidents
Act and the Transition Act sheds further light upon this matter.
Former President Nixon's term of office either expired on the date
of his resignation or it must, in effect, be viewed as continuing
until January 20, 1977. The latter approach would produce the in-
congruous result, by literal application of section 4 of the
Transition Act, that he would not qualify for application of the
Former Presidents Act, other than the pension provision, until six
months after January 20, 1977. Even if former President Nixon's
term of office is considered to have expired on the date of his
resignation, section 4 of the Transition Act would by its terms
still delay operation of the Former Presidents Act in his case,
other than the pension, for six months. This result, coupled with
a holding that the substantive provisions of the Transition Act do
not apply, would also be incongruous since, as noted previously,
the only basis for the six-month delay is the assumption that a
former President is receiving services and facilities under the
Transition Act during this period.
For the foregoing reasons, we believe that former President Nixon
may be considered eligible for services and facilities consistent with
the express terms of the Transition Act; and, as indicated above, the
opposite conclusion would seem to produce results which appear clearly
at odds with a reasonable construction of the two statutes taken
$
together. It is also our view that provision of transition services
and facilities to a President who has resigned would be consistent
with the general objectives of the Transition Act. As noted pre-
viously, section 2 of the Act states its purpose to be to promote
the orderly transfer of executive power "in connection with the expi-
ration of the term of office of a President and the inauguration of
a-new President.' Section 2 goes on to state, in part:
"* The national interest requires that such
transitions in the office of President be accomplished
so as to assure continuity in the faithful execution
of the laws and in the conduct of the affairs of the
Federal Government, both domestic and foreign. Any
disruption occasioned by the transfer of the executive
power could produce results detrimental to the safety
and well-being of the United States and its people.
Accordingly, it is the intent of the Congress that
appropriate actions be authorized and taken to avoid
or minimize any disruption. * *
FORD
- 5 -
Simply stated, we can perceive of no reason why a transition resulting
from the resignation of a President would be any less significant in
terms of the foregoing considerations as stated in section 2 than a
transition following a general election; nor does it appear that the
needs of a former President for services and facilities in connection
with winding up his official affairs would be any less severe merely
because he had resigned. On the contrary, such considerations and
needs might even be considered more compelling following a Presiden-
tial resignation.
In sum, while former President Nixon's resignation gives rise
to a unique situation in consideration of the Presidential Transition
Act, it is our view that, on balance, a holding that he is eligible
for transition services and facilities is less troublesome in terms
of the design, operation, and general objectives of the Act than
would be the contrary conclusion.
The analysis and conclusions expressed above do not take into
account the particular circumstances leading to former President Nixon's
resignation since such circumstances are, in our view, irrelevant to
the legal issues presented. Thus the legal issues would necessarily
be the same regardless of the reasons for a President's resignation.
Finally, it is noted that the Presidential Transition Act is essen-
tially operative on the basis of appropriations made pursuant to
the authorization of section 5. Whether or to what extent appro-
priations are actually justified in the case of former President Nixon
is a separate matter which must, of course, be determined by the
Congress.
&
FORD
- 6 -
BALO
FORD
LIBRA
LTBRARY
Nonreimbursable details provided to former
President Nixon pursuant to the Presidential
Transition Act
You also request our comments concerning the amount of nonreim-
bursable details under that portion of paragraph 3 (a) (2) of the
Presidential Transition Act which states, with reference to staffing
for Presidents-elect and Vice-Presidents-elect:
"* * Provided, That any employee of any agency of any
branch of the Government may be detailed to such staffs
on a reimbursable or nonreimbursable basis with the con-
sent of the head of the agency; and while so detailed
such employee shall be responsible only to the President-
elect or Vice-President-elect for the performance of his
duties: Provided further, That any employee so detailed
shall continue to receive the compensation provided
pursuant to law for his regular employment, and shall
retain the rights and privileges of such employment
without interruption. * *" (Emphasis added.)
The same authority to detail Federal employees clearly applies to a
former President or Vice President under section 4 of the Act since
it is a service "of the same general character as authorized" for
the incoming officials; and, in fact, section 4 expressly provides:
"* * * Any person appointed or detailed to serve a former
President or former Vice President under authority of
this section shall be appointed or detailed in accordance
with, and shall be subject to, all of the provisions of
section 3 of this Act applicable to persons appointed or
detailed under authority of that section. * *"
The basic issue which arises in this regard concerns the relationship
between the provision for nomreimbursable details and the overall
$900,000 limitation upon appropriations authorized by section 5 of
the Act, which provides:
"There are hereby authorized to be appropriated
to the Administrator such funds as may be necessary for
carrying out the purposes of this Act but not to exceed
$900,000 for any one Presidential transition, to remain
available during the fiscal year in which the transition
occurs and the next succeeding fiscal year. The President
shall include in the budget transmitted to the Congress,
for each fiscal year in which his regular term of office
will expire, a proposed appropriation for carrying out
the purposes of this Act."
FORD
GERALD
- 7 -
LIBRARY
B-149372.
Thus the question is whether the cost or value of nonreimbursable
details, in terms of the salaries represented, is subject to the
$900,000 appropriation authorization limitation under section 5 or,
more specifically, any amount which is actually appropriated under
section 5.
Absent an overall monetary limitation upon appropriations under
the Transition Act, the express authority to detail employees on a
nonreimbursable basis would clearly operate without restriction in
terms of cost or value. In clusion of the appropriation authorization
Hmitation and the legislative history of the Act in this regard
are somewhat perplexing in this respect. The original version of
the Transition Act legislation included the authority to detail on
a reimbursable or nonreimbursable basis. On the other hand, the
original bill did not impose a limitation upon appropriations,
authorizing instead appropriation of "such funds as may be necessary
for carrying out the purposes of this Act. See H.R. 4638, 88th
Cong., 1st sess., as introduced on March 7, 1963. The House Com-
mittee on Government Operations added a $1.3 million appropriation
authorization limitation in the version of the bill which it re-
ported; and some monetary limitation remained in the legislation
thereafter. See H.R. 4638 as reported May 15, 1963. However, we
find no indication that the Congress ever considered the effect of
a monetary limitation upon the provision expressly permitting non-
reimbursable details.
At the same time, the legislative history clearly demonstrates
that throughout consideration of this legislation the appropriation
authorization limitation was viewed as representing the full scope
and value of services and facilities under the Act. Thus the House
Committee on Government Operations, in adopting a $1.3 million
limitation, observed, H. Rept. No. 301, 88th Cong., 1st sess., 4:
"The limitation of $1,300,000 for expenditures
in any one fiscal year seems reasonable in view of
the estimates presented. This can be changed by
future legislation if experience so dictates. Any
request for funds must, of course, be strictly
justified before the appropriation is made by
Congress."
During floor consideration, Congressman Fascell, the sponsor of the
bill, stated, 109 Cong. Rec. 13350 (July 25, 1963)
"The committee added to the bill a limitation on
expenditures of $1,300,000 for all of the purposes of
the bill in any one fiscal year. This seems a reasonable
=
figure considering both incoming and outgoing Presidents
FORD
GERALD
LIBRARY
- 8 -
and Vice Presidents and was based on the best estimates
available to us. Of course, the specific figure to be
appropriated in any year must be fully justified before
the Appropriations Committee."
Thereafter the following colloquy occurred, id. at 13351:
"Mr. GROSS. * * Can the gentlemen from Florida
tell me, if he will, please, how many $100-a-day
consultants it is expected will be employed to take
care of the incoming President and Vice President in
1964?
"Mr. FASCELL. I may say to the gentleman from
Idwa whatever the President can substantiate in his
budget request and whatever he can get out of the
Committee on Appropriations and whatever may be
necessary or required within the limitation of the
authorization under this act.
"Mr. GROSS. It is wide open insofar as this bill
is concerned, and insofar as the committee is concerned,
that is, the Committee on Government Operations?
"Mr. FASCELL. No, I would not say it is wide open
at all. We do have a limit on the authorization and we
do follow the normal appropriation procedure."
The Senate Committee on Government Operations retained the House-
passed $1.3 million limitation in the version of the bill which it
reported. The Senate Committee incorporated the explanation of the
House report in this regard. See S. Rept. No. 448, 88th Cong., 1st
sess., 3. The Senate report also set forth, as had the House report,
recommendation No. 8 of the President's Commission on Campaign Costs,
which read in part:
"We endorse proposals to 'institutionalize" the
transition from one administration to another when the
party in power changes. Important reasons for doing
so exist wholly aside from the costs to the parties.
The new President must select and assemble the staff
to man his administration, and they in return must
prepare themselves for their new responsibilities.
"We recommend that the outgoing President be autho-
rized to extend needed facilities and services of the
Government to the President-elect and his associates.
We also recommend that funds be appropriated, to be spent
- 9 -
GERALD FORD
through normal governmental channels, for that purpose."
Id. at 2. (Underscoring supplied.)
During floor consideration in the Senate, an amendment was adopted
which reduced the appropriation authorization limitation to $500,000,
109 Cong. Rec. 19737 (October 17, 1963); and the conferees agreed
upon a compromise figure of $900,000. H. Rept. No. 1148, 88th Cong.,
2d sess., 2.
Remarks during consideration of the conference report in each
House again reflect the understanding that the limitation was compre-
hensive. In the Senate, Senator Miller observed with reference to the
limitation, 110 Cong. Rec. 3397 (February 24, 1964):
the Senator from Washington pointed out, in
the conference, that this amount is a ceiling; it is not.
necessarily the amount of money that will be appropriated.
This is an authorization bill; and the Appropriation Com-
mittees may not approve amounts up to the ceiling thus
set. The expenditures may not come anywhere near that
amount. So perhaps the Senator from Georgia and I will,
later, have an opportunity together to do something about
getting this amount back to the amount which we think it
really should be."
Senator Jackson added:
"I desire to point out that we feel that this is
definitely a ceiling; and in my judgment-speaking only
for myself, although I am sure I also speak for the Senator
from Iowa [Mr. Miller]--they can get along with well under
the $900,000 figure.' Id.
On the House side, Congressman Fascell stated, 110 Cong. Rec. 3539
(February 25, 1964):
* In the conference we agreed on $900,000 as
a reasonable amount, with the expectation that if expendi-
tures went higher than that amount, as we had anticipated
in the authorization of the House bill, we could by way
of supplemental request take care of the needed additional
appropriation."
Again, a colloquy occurred between Congressman Gross and Congress-
man Fascell, id. at 3540:
- 10 - -
LIBRARY GERALD = Forg
"Mr. GROSS. Is the $900,000 to cover both the
President-elect and Vice-President-elect?
"Mr. FASCELL. Yes.
"Mr. GROSS. Would this cover the cost of jet
planes and the Cadillacs to be assigned to them
during the interim period?
"Mr. FASCELL. If such were assigned to them, I
would assume they would be covered in the budget request.
"Mr. GROSS. This will not be in addition thereto?
"Mr. FASCELL. Whatever the services are, itemized
in the bill, are authorized and which would be covered
by the appropriation. Since the authorization fixes
those services, one could not go beyond that."
As indicated previously, the legislative history leaves no doubt
that the appropriation authorization limitation was enacted with the
intent that it would cover all services and facilities provided under
the Transition Act. This intent is further reflected in the second
sentence of section 5, relating to budget submissions. We believe
that this manifestation of congressional intent is sufficient to over-
come any implicit authority under the provisions of the Act to furnish
services or facilities other than the detail of Federal employees on
a nonreimbursable basis. Nevertheless, we must conclude that this
legislative history is simply inconsistent with the Act's express
grant of authority for nonreimbursable details. Accordingly, it is
our opinion that nonreimbursable details under the Transition Act
are not subject to monetary limitations under section 5 or any amount
appropriated pursuant to section 5. Since, for the reasons stated
above, it appears that this result may not have been intended, the
Congress might wish to consider amending paragraph 3(a) (2) of the
Transition Act to delete the reference to details on a nonreimbursable
basis.
In this regard, it is our understanding that nonreimbursable
services and facilities in addition to the detail of employees-such
as use of existing Federal office space, equipment, and communications
- 11 -
BERRAD FORD LIBRARY
D-149372
facilities-have in the past been provided under the Transition Act.
While our decision at 48 Comp. Gen. 786, 789 (1969), referred to in
the text hereinafter, might be considered as implicitly approving
such additional nonreimbursable services and facilities, this was not
intended and that decision should not be so viewed.
Notwithstanding the absence, in our view, of a monetary limita-
tion, details of Federal employees are clearly subject to certain
other conditions and restrictions under the Transition Act. First,
as stated in the first proviso of paragraph 3(a) (2), such details may
be made only with the consent of the head of the employing agency;
although we know of no particular formalities which would apply in
this regard.
Second, definite time limitations apply. By virtue of section 3(b),
a Federal employee could be detailed to the staff of a President-elect
or Vice-President-elect only for a period commencing on the day after
a general Presidential election and ending not later than the date of
inauguration. In the case of a former President or Vice President,
the detail would be limited by section 4 to a period not to exceed
six months following the date of expiration of the term of office, or,
in former President Nixon's case, the date of his resignation. These
time limitations would apply even if appropriations under the Act were
made available for a longer period. See 48 Comp. Gen. 786, 789, (1969)
(copy enclosed).
Finally, such details would be subject to the general limitations
upon the purposes for which any services or facilities are provided
pursuant to the Transition Act. In the case of a President-elect or
Vice-President-elect, section 3(a) authorizes necessary services and
facilities "for use in connection with his preparation for the assumption
of official duties as President or Vice President * Section 4
limits provision of services and facilities to a former President or
Vice President to those necessary "for use in connection with winding
up the affairs of his office * *." See 48 Comp. Gen. 786, 789, supra;
and our letter of September 11, 1974, to Congressman Joseph P. Addabbo,
B-149372, page 2 (copy enclosed). In this regard, we feel constrained
to suggest that the Subcommittee carefully review the list of Federal
employees presently detailed to former President Nixon and the functions
which they are to perform. For example, GSA's list of employees now
detailed to former President Nixon (Revised Justification, dated Septem-
ber 10, 1974) includes a "butler" and a "maid" who are on the payroll
of the Park Service, as well as three "military drivers.' It is not
apparent to us how such employees would be used by a former President
in connection with winding up the affairs of his office.
FORD
- 12 -
GERALD
LIBRARY
B-149372
Validity of an agreement between the GSA
Administrator and former President Nixon
regarding the preservation of the latter's
Presidential historical materials
The September 6 agreement between former President Nixon and the Admin-
istrator of GSA provides in some detail for the disposition of Mr. Nixon's
Presidential historical materials. The term "historical materials" in
the agreement is assigned the meaning given it by 44 U.S.C. 2101, as
including-
"books, correspondence, documents, papers, pamphlets,
works of art, models, pictures, photographs, plats, maps,
films, motion pictures, sound recordings, and other objects
or materials having historical or commemmorative value."
The stated purpose of the agreement is to preserve the materials until
such time as Mr. Nixon's intention to donate a "substantial portion"
thereof to the United States is consummated. His desire, in making the
donation, is said to be that the materials be available, with appropriate
restrictions, for research and study.
In 1950, legislation was first enacted authorizing 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, his successor, heads of executive depart-
ments and such other officials of the Government as the
President may designate * * *,"
subject to restrictions specified by the depositors. Section 507 (e)
of the act of September 5, 1950, chapter 849, 64 Stat. 578, 588. The
intent of this provision was to make it possible for the documents in
question to be preserved by the Government with related official
records and to be available for scholarly research. H. Rept. No. 2747,
81st Cong., 2d Sess., 15 (1950). Such materials had in the past often
been dispersed and, sometimes, lost.
As enacted, the 1950 law did not provide for the Administrator
to accept for deposit the papers of a former President, nor was
there any provision for the establishment of depository libraries
for Presidential papers apart from the National Archives. In 1955,
legislation was enacted to achieve both these purposes. Act of
August 12, 1955, ch. 859, 69 Stat. 695. Section 1 of the act of
August 12, 1955, as amended, 44 U.S.C. 2107, authorizes the Admin-
istrator to accept for deposit--
FUND
GERALD
- 13 -
LIBRARY
B-149372
"the papers and other historical materials of any
President or former President of the United States ***
subject to restrictions agreeable to the Administrator
as to their use *."
The act also provides that:
"The Administrator, in negotiating for the deposit
of Presidential historical materials, shall take steps
to secure to the Government, as far as possible, the
right to have continuous and permanent possession of
the materials * *." 44 U.S.C. 2108(c).
The House Government Operations Committee report on H. J. Res. 330,
84th Congress, the derivative source of the act of August 12, 1955,
states that:
"The enactment of the resolution into law would
end the lack of a systematic arrangement for the pre-
servation and use of Presidential papers that has re-
sulted in irreparable loss or dispersion of important
bodies of Presidential documents during the 166 years
of our Nation's existence. It would enable our
Presidents and former Presidents to plan for the pre-
servation of their papers at the place of their choice
with the knowledge that the Government has made pro-
vision to receive them in the archives of the Nation
with adequate provisions for their preservation, with
proper safeguards for their administration, and with
restrictions on their use that recognize and protect
the President's rights." H. Rept. No. 998, 84th Cong., 1st. sess. 2
(1955).
The act reflects the recognition that papers and other materials
generated and collected by a President in the course of his official
duties may become his personal property. We note that the Attorney
General has opined, in a letter to the President dated September 6, 1974,
that it has apparently been "the almost unvaried understanding of all
three branches of Government since the beginning of the Republic" as
reflected in "the practices of our Presidents since the earliest times"
that the papers and other materials of a former President are his
personal property, subject only to certain limitations directly re-
lated to the character of the documents as records of Government
activity such as, for example, security classification.
:
FORD
GERALD
- 14 -
LIBRARY
B-149372
Under the September 6 agreement, Mr. Nixon retains legal and
equitable title to the materials and sole control of access to and
use of them for the present. He makes a gift to the Nation of the
White House recordings effective September 1, 1979, although they
are all to be destroyed September 1, 1984, or at his death, whichever
first occurs, and he can order any of them destroyed after September 1,
1979. He expresses his intention to donate a portion of the other
materials to the Nation, after he has reviewed them.
The various restrictions on the use of and access to the materials
deposited with the Administrator are very broad. However, in nego-
tiating such agreements the Administrator, it seems clear, is to be
guided by the legislative goal, which is to secure to the Nation to
the extent possible the use of Presidential historical materials, and
to prevent their dispersion into private hands, or their loss,
In view of this responsibility of the Administrator, and of the
broad discretion given him by 44 U.S.C. 2107 and 2108(c) we cannot
say that the September 6 agreement is not valid. We have no basis
to assume that the Administrator did not diligently seek to achieve
the statutory objectives, or that it would have been possible to
negotiate an agreement more favorable to the United States, particularly
since the alternative may have been that Mr. Nixon would make no deposit
of the materials but rather would assert his recognized right of owner-
ship of them to the exclusion of any right of access by the United
States. Accordingly, we consider the September 6 agreement to be a
valid exercise of the Administrator's authority.
We trust that the foregoing is of assistance to the Subcommittee
in its consideration of the pending appropriation requests.
They Sincerely yours B. Diasts
Comptroller General
of the United States
Enclosures
FORD
GERALD
- 15 -
LIBRARY
WHITE HOUSE STAGING AREAS
CENTRAL FILES MATERIAL
4052 Cubic Feet on 168 shipping pallets
OEOB Rooms 430, 431, 432, 433, 435, 437, 439
Key Lock; GSA Area Manager Dan Spaulding has the only key
CENTRAL FILES MATERIAL & WHITE HOUSE STAFF OFFICE FILES
1644 Cubic Feet on 69 shipping pallets
OEOB Rooms 423, 425, 427, 428
Key Lock; GSA Area Manager Dan Spaulding has the only key
WHITE HOUSE STAFF OFFICE FILES
1580 Cubic Feet on 74 shipping pallets
OEOB Rooms 417, 419, 421, 428
Key Lock; GSA Area Manager Dan Spaulding has the only key
WHITE HOUSE STAFF OFFICE FILES
312 Cubic Feet on 13 pallets
OEOB Room 438
Key Lock; Access Restricted to Office of Presidential Papers Personnel
CENTRAL FILES "CONFIDENTIAL FILE" (Under Alarm System)
1104 Cubic Feet on 46 pallets
OEOB Rooms 434-436, 443-445
Key Lock; Access Restricted to Office of Persidential Papers Personnel
WHITE HOUSE STAFF OFFICE "SENSITIVE" FILES (Under Alarm System)
424 Cubic Feet unpalletized
OEOB Room 405
SERALS
Key Lock; Access Restricted to Office of Presidential Papers Personnel
September 20, 1974
Office of Presidential Papers
WHITE HOUSE VAULT AREAS
SPECIAL FILES
1053 cubic feet
OEOB Rooms 84-84 & 522
Gertrude Brown Fry is custodian
STAFF PERSONNEL FILES
105 cubic feet
OEOB Rooms 41-43
Jane Dannenhauer is custodian
NSC NIXON PRESIDENTIAL FILE
450 cubic feet (estimate)
OEOB 205
Ed Roberts is custodian
R.FORD
GERALD
NATIONAL ARCHIVES BUILDING
(All material in vaulted stack areas 1W2 & 2W2 unless otherwise noted)
WHITE HOUSE CENTRAL FILES AND WHITE HOUSE STAFF OFFICE FILES
5224 cubic feet (3392 cubic feet of total now on 141 pallets in "Trevor Alley"
and basement storage area)
PRE-PRESIDENTIAL PAPERS OF RICHARD NIXON
1675 cubic feet
DONATED PERSONAL PAPERS AND DONATED AUDIOVISUAL MATERIAL
357 cubic feet
REPUBLICAN NATIONAL COMMITTEE NIXON MATERIALS
377.5 cubic feet (329 cubic feet on 14 pallets in "Trevor Alley" and basement storage area)
COMMITTEE TO RE-ELECT THE PRESIDENT
1466 cubic feet
STAFF, COMMISSION, COMMITTEE, ETC. FILES (NON-WHITE HOUSE)
132 cubic feet
WHITE HOUSE COMMUNICATIONS AGENCY NIXON MATERIALS
1273 cubic feet
NAVAL PHOTO CENTER AUDIOVISUAL NIXON MATERIALS
104 cubic feet
BOOKS, PUBLICATIONS, AND AUDIOVISUAL MATERIALS PURCHASED/OWNED BY U.S. GOVERNMENT
637 cubic feet (586 cubic feet on 25 pallets in "Trevor Alley" and basement storage area)
WHITE HOUSE PHOTO OFFICE NIXON MATERIAL
Combination access to stack areas 1W2 & 2W2:
168 cubic feet on 8 pallets in 2W2
Richard A. Jacobs, Deputy Assistant archivist for Presidential
Adricnne Thomas, Assistant to Deputy Archivist
Terry W. Good, Office of Presidential Libraries
Jo Ann Williamson, Office of Presidential Libraries
GERAL
Richard E. McNcill, Office of Presidential Libraries
James B. Byers, Office of Presidential Libraries
Howard McNoill, Office of Presidential Libraries
September 20, 1974
Access to "Trevor's Alley" and receiving area: NARS service personnel during
Office of Presidential Papers
daytime hours, areas secured after hours.
NATIONAL ARCHIVES BUILDING
(All material in vaulted stack areas 1W2, 2W2, and 19E3)
GIFTS
6,000 cubic feet (estimated)
Combination access to stack areas 1W2, 2W2, and 19E3:
Richard A. Jacobs, Deputy Assistant Archivist for Presidential Libraries
Adrienne Thomas, Assistant to Deputy Archivist
Terry W. Good, Office of Presidential Libraries
Jo Ann Williamson, Office of Presidential Libraries
Richard E. McNeill, Office of Presidential Libraries
James B. Byers, Office of Presidential Libraries
Howard McNeill, Office of Presidential Libraries
FORD
A
September 20, 1974
Office of Presidential Papers
HALD
SUITLAND STAGING AREAS
GOVERNMENT PUBLICATIONS
1406 cubic feet
WHITE HOUSE SUPPLY
2009 cubic feet (includes 432 cubic feet in transit from EOB)
STATE DEPARTMENT BULK MAIL
619 cubic feet
September 20, 1974
Office of Presidential Papers
Revised Estimate
of. Materials still
In GSA Custody
to be received
as of Sep 18
by GSA
WH Central Files in EOB
6,908
0
WH Central Files in NARS
5,517
a
WH Staff Office Files (estimated)
2,244
1,025
WH Special Files (in vaults)
&
1,600
Other Materials in NARS courtesy storage (e.g. CRP;
4,613
&
Audiovisual Materials (WHCA, NARS, and NPC)
1,987
205 (NPC)
WH Photo Office (estimated)
168
Q
Government Publications at Suitland
4,042
0
Gift Materials in NARS
0
25,379
2,830
31,379
(with 6,000 cubic Feet
of gifts)
THE WHITE HOUSE
WASHINGTON
October 1, 1974
MEMORANDUM FOR:
H. STUART KNIGHT
FROM:
PHILIP BUCHEN
P.W.B.
SUBJECT:
Access to White House Files
This is to authorize Mr. Jerry Jones to enter the room in the
Executive Office Building where the Presidential tapes are
stored and to locate and remove for review a copy of the
tape for the Executive Office Building for April 19, 1973.
Mr. Jones is also authorized to re-enter to replace the copy
of the tape after the review is completed. The sole purpose
for removal is to allow Herbert J. Miller, Jr., attorney for
Richard M. Nixon, to listen to the tape.
cc:
Jerry Jones
J. Fred Buzhardt
FORD & GERVED LIBRARY
THE WHITE HOUSE
WASHINGTON
October 9, 1974
Miller, Cassidy, Larroca & Lewin
1320 19th Street, N. W.
Fifth Floor
Washington, D. C.
Attention: Mr. Herbert J. Miller, Jr.
Gentlemen:
You have already been furnished, as I am told, with a copy of
a Subpoena duces tecum directed to me and captioned
United States of America V. John N. Mitchell, et al., D. D. C.,
Criminal No. 74-110, which was issued upon application of
defendant John D. Ehrlichman, I enclose an additional copy,
reproduced from the original in my possession, to serve as notice
of the subpoena to you and your client, the Honorable
Richard M. Nixon, in accordance with paragraph 9B of the
September 6, 1974, Agreement between your client and the
Administrator, General Services Administration,
The Agreement contemplates that your client will respond to any
such subpoena. So I trust that, if you intend to raise no timely
objections in Court, you will work out timely and satisfactory
arrangements for production of the documents, consistent with the
present circumstances that the documents are still located here
under appropriate safeguards. Since the Agreement specifies that
you will determine whether to object to production of materials,
and will inform the United States if you determine not to object so
that it may inspect the materials for the limited purpose stated
in the Agreement, I intend to take no action to quash the Subpoena
duces tecum and will abide by any Court order as it may affect me.
Sincerely,
Counsel to the President
bcc: Larry Silberman
Enclosure
Irving Jaffe
Leon Jaworski
Bill Casselman
FORD
NEW 12/71
Subpoena to Produce Document or Object
Cr. Form No. 21 (P.ev. 10-51)
United States District Court
FOR THE
DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
No.
74-110
V.
John N. Mitchell, et al
To PHILIP BUCHEN
The White House
Washington, D. C.
You are hereby commanded to appear in the United States District Court for the
District of Columbia
at John Marshall & Constitution,
in the city of
Washington,
on the 1st
day of October,
19⁷⁴ at 9:30 o'clock A.M.
to testify in the case of United States V. Mitchell, et al,
and bring with you
the documents and tapes described on the attached schedule.
This subpoena is issued upon application of the1 Defendant, John D. Ehrlichman.
September 26,
, 1974
Andrew C. Hall
JAMES F. DAVEY
Attorney Defendant Ehrlichman
Twelfth floor, Concord Building
66 West Flagler Street
By Robert Line Clerk.
Miami, Address Florida 33130
Deputy Clerk.
1 Insert "United States," or "defendant" a3 the case may be.
(305) 377-0241
RETURN
Received this subpoena at
on
and on
at
served it on the within named
by delivering a copy to h
and tendering to h
the fee for one day's attendance and the mile-
age allowed by law.2
Dated:
,
, 19
By
,
Service Fees
Travel
$
Services
GERALL
IBRARY
Total
$
2
Fees and milagre need not no tendered to the witness upon service of = subpoons issued in behalf of the United States
or an officer or agency thereof. 23 USC 1825.
FFI-LK-S-14-62-120M-995
1.
John D. Ehrlichman's handwritten report of April 14, 1973 of his
inyestigation of Watergate and Watergate-related activities.
2. A proposed newspaper advertisement dealing with Watergate
allegations and facts concerning those allegations, prepared sometime
between the Democratic National Convention and Labor Day, 1972.
3. Notes of a draft statement dictated by then President Richard M.
Nixon, waiving executive privilege.
[Items 1 through 3 are located in a folder marked, "April, 1973
Watergate Notes". ]
4.
Notes of Presidential conversations with John D. Ehrlichman for
the following dates:
November 27, 1972
November 28, 1972
November 30, 1972
December 8, 1972
December 11, 1972
December 18, 1972
February 7, 1973
February 14, 1973
February 16, 1973
February 17, 1973
February 23, 1973
February 24, 1973
February 27, 1973
March 17, 1973
March 20, 1973
March 21, 1973
March 23, 1973
LAN OFFICES FRATES FLOYD PEARSON STEWART PROENZA & RICHMAN, PROFESSIONAL ASSOCIATION, TWELFTH FLOOR CONCORD BUILDING, MIAMI.FLORIDA
March 29, 1973
March 30, 1973
March 31, 1973
April 2, 1973
April 3, 1973
April 4, 1973
April 12, 1973
April 15, 1973
April 16, 1973
April 17, 1973
April 18, 1973
April 19, 1973
April 20, 1973
April 25, 1973
April 26, 1973
April 27, 1973
August 26, 1972
November 1, 1972
5. Memorandum dated June 26 or 27, 1972 from the Central Intelligence
Agency to the Federal Bureau of Investigation indicating the results
of an intra agency review made by the Central Intelligence Agency
as to the involvement of persons alleged to be connected with the
break in of Democratic National Headquarters.
6. The tape of the Presidential conversation on or about July 28, 1972
wherein the President of the United States asked John Ehrlichman
to cause a deposition to be taken of Maurice Stans in lieu of testimony
by Mr. Stans before the Grand Jury.
FORD it LIBRARY 038870
-2-
LAW OFFICES FRATES FLOYD PEARSON STEWART PROENZA & RICHMAN PROFESSIONAL ASSOCIATION, TWELFTH FLOOR CONCORD BUILDING MIAMI, FLORIDA
7. The tape recording produced by the White House Communications
Agency of a meeting in the State Dining Room of the White House
on September 12, 1972 between the President, Vice-President,
Members of the Cabinet, Republican Congressional leadership,
and White House Staff.
8. All news summaries prepared by the White House for use by the
President or the Presidential staff from June 17, 1972 to and
including July 21, 1972.
FORD : LIBRARY 07V830
-3-
THE WHITE HOUSE
WASHINGTON
10/9/74
Phil,
Here is the language worked out
by Irv Jaffe on the Ehrlichman
subpoena. I have no problem
with it.
RU
Bill Casselman
Street R. BORD LIBRAST
DRAFT
Honorable Richard M. Nixon
San Clemente, California
Dear Mr. Nixon:
I am enclosing a copy of a Subpoena directed
to me and captioned United States of America V.
John N. Mitchell, et al., D. D.C., Criminal No.
74-110. This subpoena was issued upon application
of defendant John D. Ehrlichman.
In accordance with paragraph 9B of the
September 6, 1974 Agreement between you and the
Administrator, General Services Administration, I
am notifying you of the enclosed Subpoena duces
tecum SO that you may respond thereto as you deem
appropriate, in keeping with the Agreement. Since
the Agreement specifies that you will determine whether
to object to production of materials, and will inform
the United States if you determine not to object so
that it may inspect the materials, I intend to take
no action to quash the Subpoena duces tecum and will
abide by any Court order concerning the materials
subpoenaed.
Sincerely,
PHILIP W. BUCHEN
Counsel to the President
CC: Herbert J. Miller, Esq.
1320 19th Street, N.W.
Washington, D.C.
GERALD R. FORD LIBRARY
WATERGATE SPECIAL PROSECUTION FORCE
United States Department of Justice
1425 K Street, N.W.
Washington, D.C. 20005
October 17, 1974
William Casselman, II, Esq.
Counsel to the President
The White House
Washington, D. C.
Dear Mr. Casselman:
This is to confirm our telephone conver-
sations last evening during which you informed me
that Herbert J. Miller, Jr., counsel to former
President Nixon, had indicated that he would file
an action this morning seeking specific performance
of the letter agreement between Mr. Nixon and
Arthur G. Sampson, Administrator of the General
Services Administration, dated September 7, 1974.
You assured me that the tapes and documents
compiled during the administration of former
President Nixon, now stored in various areas of the
Executive Office Building and within the physical
control of Mr. Buchen, would not be moved pending a
determination of any court proceedings relating to
ownership and custody of the materials. It is my
understanding that this assurance merely carries
forward the agreement between this office and the
White House that the physical arrangements for the
Nixon materials would not be changed, and the
September 7 letter agreement would not be implemented
pending discussions between this office and the White
House concerning the Special Prosecutor's continuing
interest in these materials for ongoing investigations
and prosecutions.
Sincerely,
FORD
PETER M. KREINDLER
LIBRARY
Counsel to the
Special Prosecutor
CC: Philip W. Buchen, Esq.
Counsel to the President
THE WHITE HOUSE
WASHINGTON
October 25, 1974
Dear Mr. Silberman:
Service has been made upon me of the attached
Subpoena duces tecum and check with respect
to the case of Dellums, et al., V. Powell, et al.,
D. D. C., Civil Action No. 2271-71.
This is to request that the Department of Justice
handle this matter on my behalf. If additional
information or assistance is required, please
contact William E. Casselman II of this office.
I would appreciate very much your sending this
office copies of any materials you file with the
Court in this matter.
Sincerely,
Philip W. Buchen
Counsel to the President
Honorable Lawrence Silberman
Deputy Attorney General
Department of Justice
Washington, D. C.
FORD
GERALO
LIBRARY
BY ENDORSEMENT THIS CHECK WHEN PAID IS ACCEPTED
IN FULL PAYMENT OF THE FOLLOWING ACCOUNT
DATE
AMOUNT
LAW OFFICES OF
MELROD, REDMAN & GARTLAN
No. 19456
SUITE 1100-K
1801 K STREET. N. W.
WASHINGTON. D. C. 20006
Oct. 24 1974 15.55 540
AY
TO THE
ORDER OF
Philip Buchen
$ 21.00
DOLLARS
MELROD. REDMAN & GARTLAN
IIIII AMERICAN SECURITY
AND TRUST COMPANY
WASHINGTON, D.C. 20013
Juny and
⑆0540⑉0055⑆ 13⑉858 46 483⑈
IF INCORRECT PLEASE RETURN. NO RECEIPT NECESSARY
AMERICAN **** STATIONERS in
L
GERALD
FORD
LIBRARY
CIVIL SUBPOENA
United States District Court
for the
District of Columbia
HON. RONALD V. DELLUMS, et al.,
Plaintiff.
vs.
CIVIL ACTION No. 2271-71
JAMES M. POWELL, et al.,
Defendant.
To: PHILIP BUCHEN, Counsel to the President
White House, 1600 Pennsylvania Avenue, N. W., Washington, D. C.
You ARE HEREBY COMMANDED to appear in (this court) (the office of MELROD, REDMAN &
GARTLAN, 1801 K Street, N. W., Suite 1100K, Washington, D. C. 20006
)
to give testimony in the above-entitled cause on the 1st day of November
, 19 74 ,
at 3:00 o'clock P.m. (and bring with you) all tapes and transcripts of White
House conversations during the period of April 16 through May 10, 1971,
at whih "May Day" demonstrations (5/3-5/7/71) were discussed,
and do not depart without leave.
James F. Davey, Clerk
By Robert Line
Deputy Clerk.
Date October 24, 1974
Warren K. Kaplan
Attorney for
Plaintiff. S
Defendaxx
RETURN ON SERVICE
Summoned the above-named witness by delivering a copy to h
and tendering to h
the fees
for one day's attendance and mileage allowed by law, on the
day of
,
19
, at
Dated
Subscribed and sworn to before me, a
, 19
this BERAVED R. FORD ITBRART ay
of
NorE.-Afidavit required only if service is made by a person other than a U.S. Marshal or his deputy.