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Nixon - Papers Government Officials Memoranda (2)
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24824000
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Nixon - Papers Government Officials Memoranda (2)
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Philip W. Buchen Files
Philip Buchen's General Subject Files
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Nixon, Richard M. (Richard Milhous), 1913-1994
Watergate Affair, 1972-1974
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The original documents are located in Box 31, folder "Nixon - Papers Government Officials
Memoranda (2)" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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
Saturday 8/24/74
3:30 Mr. Buchen:
The package was sent to Mr. Wilderotter at Justice
by special me ssenger.
Attached are the originals of the materials we sent
him (from which I xeroxed copies) -- with a copy
of the memo you sent transmitting them.
I thought you might want these "originals" pulled
to go back with the original file on the separate suits.
If so, I have also attached a complete set of xeroxes
for your use.
We are holding a complete set to be given to Mr. Buzhardt
FORD & 037830 LIBRARY
THE WHITE HOUSE
WASHINGTON
August 24, 1974
MEMORANDUM FOR
The Honorable Laurence H. Silberman
Deputy Attorney General
Department of Justice
Subject: Matters related to subjects of opinion requested
August 22 from the Attorney General
Attached are copies of the following:
(1) Case pending in Charlotte, North Carolina, which
arises from incidents during Billy Graham Day on
October 15, 1971:
(a) Copy of memorandum from William Henkel, Jr.,
to Dudley H. Chapman dated August 22, 1974, with
attachment.
(b) Memorandum between same parties dated
August 23, 1974.
(2) Cases of U. S. V. Means & Banks (Wounded Knee''):
(a) Memorandum from Skip Williams to me dated
August 19, 1974, with attachment (please note that
this attachment relates to the order of August 13, 1974,
when there has since been a supplemental order of
August 15, 1974, of which we need a copy).
(b) Copy of memorandum dated August 13, 1974, from
U. S. Attorney Earl Kaplan to Roger Cubbage in your
Department.
(3) Case of U. S. V. John B. Connally: copy of letter to
J. Fred Buzhardt of August 15, 1974, from the Watergate
Special Prosecution Force.
FORD LIBRART
-2-
(4) Case of U. S. V. Mitchell, et al., Criminal No. 74-110,
which is set for trial in the District starting September 30,
1974:
(a) Three items of correspondence dated August 16,
August 19, and August 21, respectively.
(b) Copy of my memorandum to H. S. McKnight, dated
August 23, 1974.
(5) Case of H. Spencer Oliver V. Committee for Re-Election
of the President, et al., Civil Action No. 1207-73, in the
U. S. District Court for the District of Columbia: copies
of documents served on me August 23, 1974.
(6) Case of Democratic National Committee, et al. V.
James W. McCord, Jr., Civil Action No. 1233-72 in the
District Court for the District of Columbia: copies of
documents served on me August 23, 1974.
(7) Case of Allnutt V. Wilson, Civil Action No. 874-72, pending
in the United States District Court for the District of Columbia,
and other similar cases: copy of letter dated August 20, 1974,
from James H. Heller of Hydeman, Mason & Goodell to me.
(8) Copy of S. 2951 introduced by Senator Bayh in February.
(I have had a call on August 20 from Bill Heckman of the
Senate Judiciary Committee saying that Senator Bayh wants
to know whether the Administration would be able to move
forward on this bill during the current session of Congress.)
Also called to my attention recently has been the material appearing
in the report by the staff of the Joint Committee on Internal Revenue
Taxation dealing with the examination of former President Nixon's
tax returns from 1969-72 (House Report No. 93-966), at pages 28 and 29
and in Exhibit I-3, starting at page 16 of the Memorandum of Law
prepared by Attorneys Kenneth W. Gemill and H. Chapman Rose in
behalf of the then President Richard M. Nixon.
T.W.B.
Philip W. Buchen
GERALD FORD LIBRARY
Counsel to the President
Attachments
THE WHITE HOUSE
WASHINGTON
August 22, 1974
1:45 pm
MEMORANDUM FOR:
DUDLEY H. CHAPMAN
FROM:
WILLIAM HENKEL, JR
MB
SUBJECT:
REQUEST FOR WHITE HOUSE DOCUMENTS
Yesterday, I appeared in Charlotte, North Carolina, for a dep-
osition in the civil suit resulting from President Nixon's
attendance at Billy Graham Day on October 15, 1971.
As we discussed, I was ordered to produce, for inspection and
copying, any and all documents made or received during the
period from September 1, 1971, through April 1, 1972, regarding
the subject event. I, personally, do not have any documents in
my possession, however the Advance Office has a file on Billy
Graham Day. Based on your earlier guidance and my attorney's
interpretation of the 9 August 1974 memorandum (attached) re-
garding the files of the White House Office belonging to President
Nixon's Administration and recent decisions on the subject by
the White House Counsel's Office; I did not produce the requested
documents.
It is reasonable to conclude that Mr. George S. Daly, Jr., the
attorney for the plaintiffs, will approach United States District
Judge for the Western District of North Carolina, James B.
McMillan, on the subject and request further action.
Would you please apprise me at your earliest convenience as
to what steps or actions I should take on this matter. By mutual
FORD
consent, I will return to Charlotte on September 5th to complete
my deposition, which was begun yesterday.
GERALD
THE WHITE HOUSE
WASHINGTON
August 9, 1974
MEMORANDUM FOR THE WHITE HOUSE STAFF:
By custom and tradition, the files of the White House Office
belong to the President in whose Administration they are
accumulated. It has been the invariable practice, at the end of
an Administration, for the outgoing President or his estate to
authorize the depository or disposition to be made of such files.
President Taft in his book "Our Chief Magistrate and his
Powers, 11 made the following reference to this practice:
"The retiring President takes with him all the
correspondence, original and copies, which he
carried on during his Administration.
11
In the interest of continuing this practice, it has been directed
that, so long as President Nixon's files remain in the White House
Office, there is to be no intermingling of the files of the two
Administrations. This applies of course both to the Central Files
and the files in the offices of the various members of the staff.
Papers of the White House Office at the time of President Nixon's
resignation as well as those enroute at that time and intended for
him shall be considered as belonging to the Nixon Administration
files. Of course, some Nixon Administration files may be needed
for future reference. These files should be duplicated and placed with
all other papers accumulated after noon today which constitute a
new set of files for President Ford.
Specifically, please expedite the return of all withdrawals you
have made from Central Files. On Monday, August 12, archivists
under the supervision of John R. Nesbitt, Office of Presidential
Papers, will he available to assist in the collection and segregation
of President Nixon's papers for shipment. Meanwhile, please read
the attached instructions.
Terry (Perry Wones
BERALD FORD LIBRARY
BI. Jones
Special Assistant to the President
WHITE HOUSE OFFICE PAPERS
By custom and tradition, all White House Office
of newspapers or magazine clippings; and copies
papers are regarded as the personal property of
of records of a personnel nature relating to a per-
the President and subject to such control and dis-
son's employment or service. Personal files should
position as he may determine. At the close of the
not include any copies, drafts or working papers
Administration, the entire collection of papers now
that relate to official business or any documents or
being created may be expected to be deposited in
records, whether or not adopted, made or received
a Presidential library similar to the libraries that
in the course of official business.
preserve the papers of the last six Presidents. To
3. Each staff office shall forward regularly to
provide the President with a complete and accu-
Central Files three copies of all outgoing official
rate record of his tenure in office, the White House
business consisting of correspondence and TcTo-
staff must oversee the preservation of the papers
randa. One copy of all other outgoing related
it generates.
materials should also be filed.
The procedures set forth in this document rep-
4. Each staff office shall forward regularly to
resent the collective thinking of many members of
Central Files any incoming official business from
the staff as to how best to preserve papers and
sources other than White House staff offices after
documents for the President. Compliance with
action, if any, has been taken. Each staff office, if
these procedures is an expression of loyalty by the
it SO desires, may keep a copy of such incoming
staff to the President. For these procedures to be
official business for its own working files.
effective, it will require cooperation and assistance
5. Each staff office shall forward regularly to
of every staff member.
Central Files any originals of incoming official
The security classification of each document
business from other White House staff offices after
prepared in the White House is determined by the
action, if any, has been taken and if such originals
individual staff member writing it in accordance
were not intended to be returned to the sender.
with Executive Order 10501-or other applicable
If desired, a copy may be kept for the staff's work-
Executive Orders. He is responsible for insuring
ing files.
that the classification assigned to his work reflects
6. Each staff office shall forward to Central Files
the sensitivity of the material concerned, and also
at such times as it determines to be appropriate
for making certain that this classification is not
all working files of official business which are in-
excessively restrictive.
active and no longer needed. These files will be
stored by office as well as listed by subject matter.
White House Office Papers: Filing with Central
They will, of course, always be available for later
Files
reference.
7. Each staff office at its own discretion may seg-
1. It is requested that the maximum possible
regate any materials that it believes to be partic-
use be made of Central Files, and the procedures
ularly sensitire and which should not be filed by
listed below be followed. This will aid in the faster
subject matter. Such sensitive materiais should be
and more complete retrieval of current informa-
forwarded to the Staff Secretary on the same basis
tion, eliminate unnecessary duplication of files,
as outlined in paragraphs 3 through 6 in an en-
prevent excessive xeroxing, and maximize preser-
velope marked SENSITIVE RECORDS FOR
vation of White House papers.
STORAGE with the office or individual from
2. Each staff member shall maintain his per-
which they are sent marked on the outside and (as
sonal files separate from any working files he may
appropriate) a list of inventory in general terms
keep on official business and clearly designate them
attached. This list of inventory should also be
as such. Personal files include correspondence un-
sent to Central Files so that notations can be made
related to any official duties performed by the staff
in subject tiles that certain material is missing from
member; personal books, pamphlets and periodi-
the file. These materials will be filed in locked con-
cals; daily appointment books or log books; folders
tainers and will only be made available BERAFO to the ina ARADA
dividual or office from whom they were received.
3. A staff member, upon termination of employ-
8. No defense material classified under Execu-
ment, may at his discretion make copies for his
tire Order No. 10501 with a classification of TOP
personal use of a carefully chosen selection of the
SECRET or Restricted Data under the Atomic
following types of documents within his files:
Energy Act of 1954 should be forwarded to Cen-
(A) Documents which embody original intel-
trul Files. All such material should be forwarded
lectual thought contributed by the staff member,
to the Staff Secretary for storage.
such as research work and draftsmanship of
9. No exceptions to the above shall be made
speeches and legislation.
without the express consent of the Counsel to the
(B) Documents which might be needed in
President. Additional advice on the operation of
future related work by the individual.
Central Files may be obtained from Frank
4. No staff members shall make copies as per-
Matthews, Chief of Central Files (Ext. 2240).
mitted in paragraph three of any documents which
contain defense material classified as CONFI-
White House Office Papers: Disposition of Papers
DENTIAL, SECRET OR TOP SECRET under
Upon Leaving Staff
Executive Order No. 10501, Restricted Data under
1. Upon termination of employment with the
the Atomic Energy Act of 1954, or information
staff, each staff member will turn over his entire
supplied to the government under statutes which
files to Central Files with the exception of any
make the disclosure of such information a crime.
personal files he might have maintained.
5. Each staff member who decides to make copies
2. Personal files include: correspondence unre-
of such documents described in paragraph three
lated to any official duties performed by the staff
shall leave a list of all such documents copied with
member; personal books, pamphlets and periodi-
Central Files. This will enable retrieval of a docu-
cals; daily appointment books or log books; folders
mont in the event that all other copies of it and the
of newspaper or magazine clippings; and copies
original should be later lost.
of records of a personal nature relating to a per-
6. The discretionary authority granted in para-
son's employment or service. Personal files should
graph three is expected to be exercised sparingly
not include any copies, drafts, or working papers
and not abused. All White House Office papers,
that relate to official business; or any documents or
records, whether or not adopted, made or received
including copies thereof, are the personal property
in the course of official business. The White House
of the President and should be respected as such.
Office of Presidential Papers, staffed by represen-
Any copies retained by a staff member should
tatives of the National Archives, is available to
be stored in a secure manner and maintained
assist staff members in the determination of what
confidentially.
are personal files. Any question in this regard
7. All confidential and sensitive materials will
should be resolved with their assistance by con-
be protected from premature disclosure by specific
tacting John Nesbitt, supervisory archivist of the
provisions of the Presidential Libraries Act of
Office of Presidential Papers (Ext. 2545).
1955 (44 U.S.C. 2108).
FORD : LIBRARY QERALD
THE WHITE HOUSE
WASHINGTON
August 23, 1974
MEMORANDUM FOR:
DUDLEY H. CHAPMAN
FROM:
WILLIAM HENKEL, JR.
REGARDING:
REQUEST FOR WHITE HOUSE
DOCUMENTS
In my memorandum yesterday, I concluded that Mr. George
S. Daly, Jr., the attorney for the plaintiffs, would pursue
the matter of my not submitting White House documents
pertaining to Billy Graham Day. Mr. James D. Monteith,
the Department of Justice appointed attorney defending me,
informed me yesterday afternoon that Mr. Daly filed a
motion with U.S. District Judge James B. McMillan re-
questing that an order be issued requiring me to hold all
papers in safekeeping and not relinquish possession and
further that I be held in contempt.
As soon as I receive a copy of the motion, I will send it to
you. However, my attorney recommends that prior to re-
turning to Charlotte on September 5th or sooner if Judge
McMillan requests immediate action that the Department
of Justice and the White House provide me with documentation
and justification for my inability on August 21st and, at
present, to produce the requested documents. Until a
policy decision on the overall issue of possession of the
former President's papers is promulgated, it is my
understanding, that I cannot do anything on this matter.
FORD
LIBRARY
August 19, 1974
MEMORANDUM FOR:
PHILIP BUCHEN
FROM:
SKIP WILLIAMS Drw
SUBJECT:
Subpoena for Tapes in
Wounded Knee Trial
Attached hereto for your information is a copy of an order issued
August 13, 1974 in connection with the "Wounded Knee" trial in
St. Paul. The judge has ordered that the "prosecution and the
Executive Office of the White House" provide information under
oath concerning the existence of taped conversations of Richard
Nixon relating to Wounded Knee.
The scepe of the subpoena has been narrowed to a sixteen day
period (March 11-18 and March 26 - April 2, 1973).
The order also seeks access to any logs, indexes or transcripts
indicating the existence of taped conversations involving Wounded
Knee.
A draft affidavit for Fred Bushardt's signature is also attached.
You should also be aware that an order has been issued by the
judge in this proceeding directing the Executive Office of the
President to preserve the materials demanded by the subpoena.
FORD i LIBRARY GERALD
DRAFT AFFIDAVIT
J. Fred Bushardt, having served as Counsel to the
President under Richard Nixon, deposes and says:
1. I have read the order entered August 13, 1974, in
this proceeding.
2. I am unable to state whether or not any tape recordings
or transcripts thereef exist for conversations in which Richard
Nixon was a party to a discussion in which the subject of Wounded
Kneww was mentioned during the period March 11-18 and
March 26 - April 2, 1973. In order to confirm or deny the
existence of such recorded conversations one would have to listen
to all recorded conversations which occurred during the above -
described period.
3. There are no logs, indexes or other materials which
would indicate whether or not such a conversation took place
and was recorded during the period in question.
FORD i LIBRARY BERALD
UNITED STATES GOVERNMENT
DEPARTMENT OF JUSTICE
Memorandum
Roger Cubbage, Dept. of Justice
(8)
TO
:
Room 402 Fed. Triangle Bldg.
DATE:
315 9th St., N. W.
August 13, 1974
Washington, D.C. 20530
FROM : Earl Kaplan
U.S Attorney's Office (for S.Dak.)
EK
681 Fed. Bldg., 316 N. Robert St.
SUBJECT: St. Paul, Minn. 55101
Re: U. S. V. Means & Banks
Enclosed is order signed by Judge Nichol dated
August 13, 1974, dealing with the so-called White House
tapes. It is requested that you forward this order to the
White House so that they may respond in affidavit form.
I have already talked to Skip Williams in the White
House with regard to this order. He advises me that the only
logs that they have in the White House deal with meetings or
conversations or telephone conversations. The logs of such
conversations deal only with the time and duration of the
meeting and who was there. The logs do not contain the subject
matter of any conversations.
In regard to the tapes, Mr. Williams advises that there
are no logs of the tapes. The only time that they would review
tapes would be in response to a specific subpoena involving a
specific date, a specific conversation, and specific participants.
Therefore, he has no knowledge, nor is he aware of anyone else
who has knowledge of any logs concerning the subject matter
of Wounded Knee as it pertains to the tapes.
The information supplied to me should be the subject
of an affidavit and should satisfy the enclosed order. I would
appreciate receiving this affidavit as soon as possible.
GERALD FORD LIBRARY
DOJ-1973-04
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
invest
WESTERN DIVISION
WILLIAM I SASTEM
stock
By
United States of America,
Capity
Plaintiff,
CR73-5034
vs
CR73-5062
Dennis Banks,
Defendant.
United States of America,
Plaintiff,
CR73-5035
CR73-5063
vs
Russell Means,
Defendant.
ORDER
BERALD FORD VIBRARY
Upon the motion of the government to quash the subpoena
of Richard M. Nixon or his authorized resresentative commanding
the production of certain tape recordings in his possession
or under his control relative to events at Wounded Knee,
South Dakota, between February 27 and May 9, 1973, defendants'
motion for the issuance of an amended subpoena similarly directed,
and all the proceedings heretofore had herein, it is ordered
that the prosecution and the Executive Office of the White House
(1) disclose under oath whether any such tape recordings and
transcripts thereof exist, and (2) if so, furnish (a) to the
Court and the defendants any logs, indexes, lists or other
records of such recordings and transcripts as well as any logs,
indexes, lists or other records indicating the existence
and nature of any communication, conversations or meetings
relative to the subject matters specified in said subpoenas
and (b) to the Court in camera any tape recordings and trans-
cripts thereof for the dates March 11-18, and March 26-April 2,
1973.
Dated: August 13, 1974
Shw the U.S. District Court
Judge
ATLEST.
William Sister clerk
By is and Noteboom
deputy
WATERGATE SPECIAL PROSECUTION FORCE
United States Department of Justice
1425 K Street, N.W.
Washington, D.C. 20005
August 15, 1974
J. Fred Buzhardt, Esq.
Counsel to the President
The White House
Washington, D. C.
Re: United States V. John B. Connally
Dear Mr. Buzhardt:
In connection with the above-captioned criminal
prosecution, the attorneys for John B. Connally have
requested that the Special Prosecutor's office make
available, among other things, "White House tapes not
yet turned over to anyone." Their position is that
appropriate means must be found to see that such tapes
are turned over to the Court for determination of which
portions are relevant and therefore available to the
defendant under Rule 16 (a) (1) of the Federal Rules of
Criminal Procedure. The Special Prosecutor's office
has no knowledge of whether there are in fact any such
tapes.
We recognize that you have concluded that these
materials are the personal property of the former
President, but we request that, to whatever extent you
have any tapes falling within this request, they be
retained pending further developments in the case.
Thank you very much.
Sincerely,
Philip A. Lacovara
Counsel to the Special
Prosecutor
CC: Edward Bennett Williams, Esq.
Williams, Connolly & Califano
839 Seventeenth Street, N. W.
Washington, D. C.
FORD & LIBRARY OERALD
LAW OFFICES
HENRY J. FOX
ALBERT E. ARENT
EARL W. KINTNER
EDWIN L. KAHN
HARRY M. PLOTKIN
ROBERT B. HIRSCH
ARENT, Fox, KINTNER, PLOTKIN & KAHN
DAVID OSNOS
JOHN J. SEXTON
SAMUEL EFRON
GENE A. BECHTEL
ARTHUR L CONTENT
EARL M. COLSON
THOS. SCHATTENFIELD
JOSEPH M. FRIES
SIDNEY HARRIS
JOHN J. YUROW
JOEL N. SIMON
MARK R. JOELSON
CHARLES B. RUTTENBERG
MATTHEW S. PERLMAN
JACK LAHR
GEORGE H. SHAPIRO
FEDERAL BAR BUILDING
ALLEN G. SIEGEL
STEFAN F. TUCKER
GEORGE R. KUCIK
BURTON A. SCHWALS
STEPHEN J. WEISS
L.F. HENNEBERGER
M.J. SHEFFIELD, JR.
ROBERT H. NEUMAN
WILLIAM J. LEHRFELD
C.R. DONNENFELD
JOHN M. BRAY
JAMES B. HALPERN
1815 H STREET, N.W.
ARNOLD J. KOHN
JAMES P.MERCURIO
MICHAEL R. FLYER
EVAN R. BERLACK
JOSEPH E.CASSON
HOWARD KOLODNY
LEE MERMELSTEIN
PETER TANNENWALD
JOHN R. RISHER,JR.
DAVID A. SACKS
ARNOLD WESTERMAN
EUGENE J. MEIGHER
HOWELL J. REEVES
WASHINGTON, D. C. 20006
MICHAEL E. JAFFE
THEODORE D. FRANK
DANIEL C. SMITH
JACK L. LEWIS
DAVID F, TILLOTSON
JEROME P. AKMAN
JEFFREY R. REIDER
RUTH P. ROLAND
STEPHEN A. BODZIN
JOHN HARLLEE,JF
CHRISTOPHER SANGER
LINDA A.CINCIOTTA
CABLE: ARFOX, WESTERN UNION TELEX: 892672
WILLIAM B. SULLIVAN
MICHAEL H.LEAHY
DONALD M. BARNES
CYNTHIA H. MILLIGAN
RICK A. HARRINGTON
JAMES M. BOYLE
SALVATORE A. ROMANO
MARC L. FLEISCHAKER
J.CLAY SMITH,JR.
ANDREW H. LEVY
JAMES P. PARKER
ALAN R. MALASKY
DONALD .HADLEY
PAMELA M. NOLAND
RODNEY F. PAGE
202 347-8500
ROBERT W. GREEN
GARY M. EPSTEIN
EUGENE A.MASSEY
JOHN W. CURRIE
JOHN L. BURKE, JR.
LAWRENCE A. LEVIT
WARREN BELMAR
LARRY N. GANDAL
STEPHEN T. PHELPS
DONALD W. SAVELSON
MARTIN KALB
RONALD TISH
ERIC L. BERNTHAL
ROBERT P. BUNN
August 16, 1974
CHARLES F. PLENGE
DANIEL C. KAUFMAN
STEPHEN L. GIBSON
DONALD OSTEEN
MICHAEL B. ROSENBERG
E.RICK BUELL, II
CARTER STRONG
KEITH A.SEAY
MARK MATHIS
BENJAMIN GOLDMAN
JOHN C. FILIPPINI
STEPHEN B. FORMAN
DAVID L.COHEN
LEE CALLIGARO
RANDALL G. DRAIN
SAMUEL H. WEISSBARD
STANLEY J. BROWN
ERIC L.CUMMINGS
JAMES K. STEWART
MICHAEL M. EATON
JOSEPH P. GRIFFIN
BARRY R. SCHENOF
FRANCIS X.LILLY
DOUGLAS G. GREEN
Jack McCahill, Esq.
The White House
Washington, D. C.
Re: Gordon Strachan
Dear Mr. McCahill:
In view of the resignations of President Nixon, Mr.
St. Clair and Mr. Buzhardt, I would like to inquire whether
the White House policy has changed with respect to restrictions
on obtaining access to and copies of documents, notes and
memoranda written by or to my client, Gordon Strachan.
On July 31, while Mr. Strachan was in town for a pre-
trial hearing in United States V. Mitchell, et al. (D.D.C.
No. 74-110), he called Mr. St. Clair's office to inquire
whether he could review his files with counsel present and
was advised that the current policy prohibited his doing SO.
In the event that policy has been relaxed, I would appreciate
your letting me know. I would also appreciate your advising
me whether it is possible for me to come alone to review his
files since Mr. Strachan lives in Salt Lake City and would
have to make a special trip here to review the files.
I will await your response.
Sincerely,
John John M. Bray m. Bray
FORD & LIBRARY
LAW OFFICES
ROGER J. WHITEFORD 1886-1965
MARYLAND OFFICE
RING GOLD HART 1886-1965
WHITEFORD, HART, CARMODY & WILSON
7401 WISCONSIN AVENUE
JOHN J. CARMODY 1901-1972
BETHESDA, MARYLAND 20014
JOHN J. WILSON
815 FIFTEENTH STREET, NORTHWEST
301-656-5700
HARRY L. RYAN, JR.
JO V. MORGAN, JR.
FRANK H. STRICKLER
WASHINGTON, D. C. 20005
JO V. MORGAN, JR.
FRANK H. STRICKLER
WILLIAM E. ROLLOW
CHARLES J. STEELE
202-638-0465
WILLIAM E. ROLLOW
JOHN J. CARMODY, JR.
CABLE ADDRESS
CHARLES J. STEELE
JAMES EDWARD ABLARD
KEVIN W. CARMODY
WHITEHART WASHINGTON
COUNSEL
DONALD L. HERSKOVITZ
August 19, 1974
Philip W. Buchen, Esq.
Counsel to the President
White House
Washington, D.C.
Re: U.S. V. Mitchell, et al.
Criminal No. 74-110
Dear Mr. Buchen:
We are the attorneys for Mr. H.R. Haldeman, one of
the defendants in the above entitled proceeding. This morn-
ing Judge Sirica denied motions of the defendants for a post-
ponement. Thus, we are facing a trial which is scheduled,
as heretofore announced, for Monday, September 9.
The problem which I wish to present is urgent, and
I hope may have immediate consideration. I should like to
come over and discuss this matter with you, if possible,
today or tomorrow.
In the past the rule of the Nixon-White-House was
that Mr. Haldeman would be permitted to have unlimited ac-
cess to the room in the Executive Office Building in which
his files are kept, and that he could examine anything and
everything in those files, but a Secret Service man has al-
ways been present who would log him in and out, would permit
him to have access to whatever he chose in his files, but he
could neither have copies nor make copies of portions, nor
even to make any notes at all. The awkward procedure was
followed with the knowledge of the Secret Service that Mr.
Haldeman would examine a document, memorize portions or
points thereof, excuse himself from the room and make cryptic
notes in the hallway, and then was permitted to come back and
repeat this process as many times as he chose. The urgent
FORD
GERALD
LIBRARY
WHITEFORD, HART, CARMODY & WILSON
Page 2
problem arises that in this transition period he is not per-
mitted even to do this, thus preventing him from pursuing even
the preparation for trial heretofore afforded him.
I would like to present this matter in its full con-
text to you personally, and I hope that you will be able to
see me promptly.
Thanking you in anticipation of your immediate con-
sideration of our problem, and looking forward to the oppor-
tunity to meet you personally, I am
Sincerely yours,
June JOHN J. WILSON
JJW/bps
FORD LIBRARY &
LAW OFFICES
WM. SNOW FRATES
FRATES FLOYD PEARSON STEWART PROENZA & RICHMAN
ROBERT FLOYD
RAY H. PEARSON
LARRY S. STEWART
PROFESSIONAL ASSOCIATION
MORRIS C. PROENZA
GERALD F. RICHMAN
TWELFTH FLOOR CONCORD BUILDING
JAMES D. LITTLE
ALAN G. GREER
KENNETH J.WEIL
MIAMI, FLORIDA 33130
BERTHA CLAIRE LEE
ANDREW C.HALL
AREA CODE 305
JOHN M. BRUMBAUGH
IRA H. LEESFIELD
TELEPHONE 377-0241
STEPHEN N. ZACK
SHERRYLL MARTENS DUNAJ
August 21, 1974
BROWARD LINE 523-4297
WM. BRUCE HARPER, JR.
MARVIN E.CHAVIS
DENNIS L.WEBB
GEORGE E. SCHULZ, JR.
DONALD R.THOMPSON
PHILLIP E. WALKER
BILLIE J. SPENCER
Philip W. Buchen
Counsel to the President
Executive Office Building
Washington, D.C.
Re: United States V. Mitchell, Case No. 74-110
United States District Court for the District
of Columbia
Dear Mr. Buchen:
Yesterday I spoke with you to advise you that my client, John D.
Ehrlichman, a defendant in the above styled cause, was in Washington and
to request that he be permitted to examine his papers now stored in the
Presidential Archives of the White House. I further conveyed to you the
request that the previous procedure followed during the Nixon Administration
be amplified to allow Mr. Ehrlichman to have the effective assistance of
counsel during this examination by allowing defense counsel or any one of
them to examine these papers with Mr. Ehrlichman. To each of these requests
you replied that since the Ford Administration had just come to the White House,
my request could not be honored at this time but that you would employ your
best efforts to obtain a decision in the next few days. There is one additional
fact which should be conveyed. Trial in this major criminal prosecution is now
set for September 9, 1974. Motions for a continuance haved been denied by
the trial judge, John Sirica. Consequently, there is a very limited amount
of time available in which the defendants, including my client, can prepare
for trial. Each day that passes greatly predjudices their rights. Consequently,
I urge you to permit inspection as quickly as possible in order to avoid a
grave injustice which will occur if inspection is not permitted or is permitted
at a late date.
Sincerely,
FORD
Re
OTHER
Hall
LIBRARY
ANDREW C. HALL
THE WHITE HOUSE
WASHINGTON
August 23, 1974
MEMORANDUM FOR
H. S. Knight
Director, United States Secret Service
Per memorandum of Philip W. Buchen dated August 23, 1974,
this is to confirm authorization for Mr. H. R. Haldeman
to review his files in Room 522 on the afternoon of Friday,
August 23, 1974.
wair, Camor
William E. Casselman II
cc: Philip W. Buchen
FORD & GERALD LIBRARY
The
- HOUSE
WASHINGTON
August 23, 1974
MEMORANDUM FOR:
H.S. Knight
Director, United States Secret Service
SUBJECT:
Protection of White House Files
This memorandum will continue in effect the standing instructions
issued to you by J. Fred Buzhardt in his memorandum dated May 23,
1973, and by General Alexander Haig in his memorandum dated
June 21, 1974, regarding access to all of the files located in Room 522
and the files located in Room 84 of the Old Executive Office Building,
which files are under the protection of the United States Secret Service,
subject to the following clarifying amendments:
Strike all of the names listed in the first paragraph of the memorandum
dated May 23, 1973, and insert in lieu thereof the names listed in Exhibit 1,
attached hereto.
Strike the first sentence of numbered paragraph 3 of the memorandum
dated May 23, 1973.
Strike the name of Geoffrey C. Shepard wherever it appears in the
memorandum dated June 21, 1974, and insert in lieu thereof the name of
William E. Casselman II.
This memorandum will remain in effect until amended or revoked by
memorandum from the Counsel to the President to the Director of the
United States Secret Service. The continued access to Room 522 and
Room 84 under the terms of the May 23, 1973, and June 21, 1974,
memorandum is being undertaken by me with the concurrence of
Richard M. Nixon.
Budden
Philip Buchen
Counsel to the President
LIBRARY
Enclosure
CC: General Alexander M. Haig, Jr.
EXHIBIT 1
Patrick J. Buchanan
John J. Caulfield
Dwight Chapin
Charles Colson
John W. Dean III
Frank DeMarco
John D. Erhlichman
H. R. Haldeman
Larry Higby
Tom Huston
E. Howard Hunt
Herb Kalmbach
Kenneth Khachigian
Egil Krogh
Fred LaRue
G. Gordon Liddy
Jeb Stewart Magruder
John M. Mitchell
Richard Moore
Robert G. Odle
Bart Porter
Robert Reisner
Maurice Stans
Hugh Sloan
Gordon Strachan
David Young
EERALD FORD
ASHCRAFT & GEREL
ATTORNEYS AT LAW
1039
WASHINGTON, D. C. 20005
August 231974 23, 15-52 540
PAY TO THE
ORDER OF
Philip W. Buchen, Esq.
$ 20.80
Twenty and 80/100
DOLLARS
NS
NATIONALSAVINGS TRUST COMPANY
GERALD FORD LIBRARY
®
WASHINGTON,D.C.
FOR Witness Fee
⑆0540⑉0052⑆ 01⑉9⑉208032⑉3⑈
Jorgl,1. Kongl
STATIONERY
A
CIVIL SUBPOENA
United States District Court
for the
District of Columbia
R. SPENCER OLIVER
Plaintiff.
vs.
CIVIL ACTION No. 1207-73
THE COMMITTEE FOR THE RE-ELECTION
OF THE PRESIDENT, et al
Defendant.
To:
Philip W. Buchen, Esquire, Counsel to the President
1600 Pennsylvania Avenue, N. W., Washington, D. C.
You ARE HEREBY COMMANDED to appear in (the office of Joseph H. Koonz, Jr.
Esquire, 925-15th Street, N. W., Washington, D. C. (Fifth Floor)
)
to give testimony in the above-entitled cause on the 12th day of September
, 1974,
at 2:00 o'clock m. (and bring with you) all tapes, and transcripts of tapes, of con-
versations of Richard M. Nixon and/or his Aides recorded in the White House
for the period from May 26 through June 21, 1972.
and do not depart without leave.
JAMES F. DAVEY, Clerk
By Deputy Clerk.
Date August 23, 1974
Joseph H. Koonz, Jr.
Attorney for
Plaintiff.
Defendonx
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
P
19 , at
Dated
Subscribed and sworn to before me, a
SEAL this R. FORD VIERAGE
day of
, 19
NoTE.-Affidavit required only if service is made by a person other than a U.S. Marshal or his deputy.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
R. SPENCER OLIVER
:
Plaintiff
:
CIVIL ACTION
V.
:
NO. 1207-73
THE COMMITTEE FOR THE RE-ELECTION :
OF THE PRESIDENT, et al
:
Defendants
NOTICE OF TAKING DEPOSITION
Please take notice that on Thursday, September 12, 1974, at
2:00 P. M., in the office of Joseph H. Koonz, Jr., Esquire, 925-15th Street,
N. W., Washington, D. C., before a Notary Public of Friedli, Wolff and
Pastore, or any other authorized Notary Public, the plaintiff, through his
attorney, will take the deposition of Philip W. Buchen, Esquire, Counsel
to the President, by oral examination, pursuant to the provisions of the
Rules of Civil Procedure.
Joseph Joseph H. Koonz, Jr.
,).
925-15th Street, N. W.
Washington, D. C. 20005
Attorney for Plaintiff
CERTIFICATE OF SERVICE
LAW OFFICES
SHCRAFT AND GEREL
I hereby certify that a copy of the foregoing Notice of Taking
125 13TH STREET. N.W.
ASHINGTON. D.C. 20005
Deposition was mailed, postage prepaid, this 23rd day of August, 1974, to
783-6400
SUITE 201
Richard W. Galiher, Esquire, 1215-19th Street, N. W., Washington, D. C.
5830 CAMERON STREET
VER SPRING. MD. 20910
20036; James R. Stoner, Esquire, 1000 Connecticut Avenue, N. W.
583-1818
FORD
SUITE 220
Washington, D. C. 20006; Daniel E. Schultz, Esquire, 1990 M Street,
W.
660 KENMORE AVENUE
(LEXANDRIA, VA. 22304
Washington, D. C. 20036; Bernard Fensterwald, Esquire, 910 6th Street,
751-7400
-2-
N. W., Washington, D. C. 20006; Fred M. Vinson, Jr., Esquire, 800-17th
Street, N. W., Washington, D. C. 20006; William A. Snyder, Jr., Esquire,
1600 Maryland National Bank Building, Baltimore, Maryland 21202; Peter L.
Maroulis, Esquire, 11 Cannon Street, Poughkeepsie, New York 12601;
James J. Bierbower, Esquire, 1625 K Street, N. W., Washington, D. C.
20006; Walter J. Bonner, Esquire, 1001 Connecticut Avenue, N. W.,
Washington, D. C. 20036; Charles B. Murray, Esquire, 1025-15th Street,
N. W., Washington, D. C. 20005; William G. Hundley, Esquire, 839-17th
Street, N. W., Washington, D. C. 20006; and John J. Wilson, Esquire,
815-15th Street, N. W., Washington, D. C. 20005.
Joseph Gouph H. Koonz, 15. Jr.
LAW OFFICES
SHCRAFT AND GEREL
025 15TH STREET. N.W.
ASHINGTON. D.C. 20005
783-6400
SUITE 201
3930 CAMERON STREET
LVER SPRING, MD. 20910
538-1818
SUITE 220
4550 KENMORE AVENUE
ALEXANDRIA, VA, 22304
BERALD FORD LIBRARY
751.7400
NUMBER
FENSTERWALD AND OHLHAUSEN, ATTORNEYS
2681
DAY THE
any 23 1974
15-3/540
DATE
TORDER
Philip W. Buchen, Cannsel toke President
$ 21.00
twenty one 4
00/100 DOLLARS
:
FORD
The RIGGS NATIONAL BANK
of WASHINGTON, D.C.
GERAED
FENSTERWALD BIBRA AND OHLHAUSEN, ATTORNEYS
FEDERAL OFFICE
AUTH. SIG.
1750 PENNSYLVANIA AVENUE, N. W.
⑆0540⑉0003⑆ 11⑉07098530⑈
CIVIL SUBPOENA
United States District Court
for the
District of Columbia
Democratic National Committee, et al.
Plaintiff.
vs.
CIVIL ACTION No. 1233/72
James W. McCord, Jr.
Defendant.
To: Philip W. Buchen, Esquire, Counsel to the President,
1600 Pennsylvania Avenue, N.W., Washington, D.C.
You ARE HEREBY COMMANDED to appear in (this-court) (the office of Bernard Fensterwald,
Jr., Esquire, 910 16th Street, M.M., Washington, D.C.
)
give testin the above entitled cause on the 17th day of September
, 19 74,
at 10:00 o'clock am. (and bring with you) all tapes, and transcript of tapes,
of conversations of Richard M. Nixon and/or his aides recorded in the
White House: for the period from January 1, 1973 to January 31, 1973,
inclusive.
and do not depart without leave.
court
By James Robert F. Davey, L.Lene Clerk
Deputy Clerk.
Date August 23, 1974
Bernard Fensterwald, Jr.
Plaintiff,
Attorney for
Defendant.
UNITED AMERICA SOMOO STATESD
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
this
day of
, 19
NoTE-Affidavit required only if service is made by a person other than a U.S. Marshal or his deputy.
HYDEMAN, MASON & GOODELL
1225 NINETEENTH STREET, N.W.
ARTHUR K. MASON
WASHINGTON, D.C. 20036
LEE M. HYDEMAN
HAROLD E. MESIROW
TELEPHONE
JOHN M. BURZIO
JAMES T. LLOYD
August 20, 1974
202 659-3650
JAMES H. HELLER
CHARLES E. GOODELL
CABLE ADDRESS
HASTEN
OF COUNSEL
ALGER B. CHAPMAN
ALEXANDER M. LANKLER
Mr. Phillip W. Buchen
Counsel to the President
The White House
Washington, D.C.
Dear Mr. Buchen:
It was gratifying to learn that upon your appointment as Counsel
to President Ford you immediately undertook reconsideration of the decision
of your predecessor that the tapes of conversations between President
Nixon and others, apart from those already ordered produced in criminal
matters, would be deemed the property of Mr. Nixon and turned over to him.
I write you with some concern about this question because there is
a dimension which may not have been fully considered. That is the possible
relevance and evidentiary or discovery value of these tapes in pending civil
litigation to vindicate fundamental civil liberties.
It appears altogether likely that if the tapes are in fact returned
to Mr. Nixon they will either be destroyed within a short period of time or
will at least be put beyond the reasonable reach of persons who may have
need for those tapes in the course of such litigation.
I am volunteer counsel for the plaintiffs in one such class action
filed by the American Civil Liberties Union. That suit, Allnutt V. Wilson,
Civil Action No. 874-72 pending in the United States District Court for the
District of Columbia, is a damage action brought on behalf of more than
3200 persons who were arrested during the course of the so-called "Mayday"
demonstrations on Tuesday, May 4, 1971 next to the Justice Department building
here in Washington. To my knowledge there are at least three other class
actions pending which involve the so-called Mayday demonstrations. While
I have some general familiarity with those other suits, I can speak most
specifically with respect to the Allnutt case and the possible relevance of
taped Presidential conversations.
The May 4, 1971 arrests on 10th Street, N.W. between Constitution
Avenue and Pennsylvania Avenue alongside the Justice Department occurred in
the most suspicious manner and circumstances. I think it is fair to say
that almost every one of the more than 3200 persons arrested in that spot
GERALD FORD LIBRARY
Mr. Phillip W. Buchen
August 20, 1974
- 2 -
on that date believed they were peacefully demonstrating with the permission
of the Police Department until shortly before the time they were actually
arrested. A very large proportion of all of those persons had previously
congregated in Franklin Park in northwest Washington and had been peacefully
escorted by the police under Chief Wilson down through the streets of
Washington to the point alongside the Justice Department where they were
gathered when the arrests began. We have on file numerous affidavits
indicating that people were either caught by surprise when the warning to
disperse within five minutes was suddenly given, or didn't even hear the
warning, that they were either given no time to pass through the police
lines or were intimidated and in some cases even beaten when they sought to
leave the area. The entire block was walled off by policemen. During the
course of the arrests some FBI agents sortied from the Justice Department
and arrested selected leaders of the demonstration. As far as we know, no
more than a few demonstrators were actually able to leave the police cordons
and avoid the arrests, although many wished to do SO. You may also recall
newspaper photographs of Attorney General Mitchell watching the arrests from
a Justice Department balcony.
Thus, the situation immediately preceding the arrests and the arrests
themselves (ultimately thrown out of court) had the look of a police encircle-
ment and trap. It is of course possible that this is not true. It is also
possible that, if it is true, it was entirely conceived and carried out by
the Metropolitan Police of the District of Columbia themselves. However,
we do know that during the preceding evening after the Monday demonstrations,
Chief Wilson conferred with high Justice Department officials and there is
at least a plausible inference that the tactics used on Tuesday May 4, namely
the lulling of the demonstrators into a false sense of security, their
encirclement, and their arrest en masse, were part of a conceived plan.
We also know from the testimony of Mr. Mitchell and Mr. John Dean
during the Senate "Watergate" Committee hearings that President Nixon and
at least some of his advisors had an almost paranoid concern with political
demonstrations and demonstrators, and indeed that the Liddy plan, thrice
presented to Attorney General Mitchell and finally partly carried out,
originally had to do in Mr. Mitchell's mind with that very question, namely
how to deter and sabotage demonstrations.
In the Allnutt litigation we desire to know whether there were any
conversations in which the President was a participant which either directly
or indirectly led to White House orders to accomplish the encirclement and
arrests of May 4, 1971.
The tapes which are to be returned to Mr. Nixon if you do not reverse
the opinion of your predecessor, Mr. Buzhardt, may or may not contain
evidence that this suspicious mass arrest on May 4, 1971 was in fact ordered
in the White House. We do not know, but at the very least we would
to
GERALD
Mr. Phillip W. Buchen
August 20, 1974
- 3 -
have our day in court while the tapes are still in government hands and to
have access to any taped conversations relating to those demonstrations.
We have a long enough record of concealment and false statements on the
part of former Nixon Administration officials that we may never discover
this fact if the tapes themselves are not available.
In the next few days I expect to file in court a request for
production of any tapes bearing on this question. It is a matter of great
urgency from our viewpoint that the Presidential tapes be preserved as
property of the Federal government at least until it is clearly shown that
they no longer have any public usefulness. I myself do not understand
the notion that they could possibly be private property. It is of course
true that they may be privileged, although I do not read the Supreme Court
decision in United States V. Nixon to deal with this question in the context
of civil litigation undertaken to vindicate constitutional rights.
However, we are much more interested in possible orders given by or
in the name of the President than in advice given to him by his advisors.
It is hard to understand how anyone could say a priori that these tapes are
merely the private property of Mr. Nixon when they may contain the only record
of decisions he made as President which may in the future be of concern to
both the Congress and the courts of this country.
Thank you very much for your consideration of this letter.
Sincerely,
James H. Heller
BERALD R. FORD
93D CONGRESS
2D SESSION
S. 2951
IN THE SENATE OF THE UNITED STATES
FEBRUARY 4, 1974
Mr. BAYH introduced the following bill; which was read twice and referred
to the Committee on Government Operations
A BILL
To provide for public ownership of certain documents of elected
public officials.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Public Documents Act".
4
SEC. 2. (a) Title 44, United States Code, is amended
5 by adding at the end thereof the following new chapter:
6
"Chapter 39-PUBLIC DOCUMENTS OF ELECTED
7
OFFICIALS
"Sec.
BERALD FORD
"3901. Definitions.
"3902. Papers of elected officials.
"3903. Preservation of public documents,
"3904. Judicial review.
II
2
3
1
"§ 3901. Definitions
1
"§ 3902. Papers of elected officials
2
"For purposes of this chapter-
2
"Within one hundred and eighty days after an elected
3
" (1) 'elected official of the United States' means
3 official of the United States ceases to hold his office, the
4
the President, Vice President, Senator, and Member
4 Administrator of General Services shall obtain any objects
5
of (or Resident Commissioner or Delegate to) the
5 or materials of that elected official which the Administrator
6
House of Representatives, including any individual hold-
6 determines to be public documents within the meaning of
7
ing such office for any period by reason of appointment
7 section 3901 (2) of this title, and such elected official shall
8
to such office or succession to such office; and
8 transmit such documents to the Administrator.
9
" (2) 'public documents' means, with respect to an
9
"§ 3903. Preservation of public documents
10
elected official of the United States, the books, corre-
10
"The Administrator of General Services shall deposit in
11
spondence, documents, papers, pamphlets, models, pic-
11 the National Archives of the United States the public docu-
12
tures, photographs, plats, maps, films, motion pictures,
12 ments of each elected official of the United States obtained
13
sound recordings, and other objects or materials which
13 under section 3902 of this title. Sections 2101-2113 of this
14
shall have been retained by an individual holding elec-
14 title shall apply to all public documents accepted under this
15
tive office under the United States and which were pre-
15 section.
16
pared for or originated by such individual in connec-
16
"§ 3904. Judicial review
17
tion with the transaction of public business during the
17
"A decision by the Administrator of General Services
18
period when such individual held elective office and
18 that any object or material is a public document of an elected
19
which would not have been prepared if that individual
19 official of the United States within the meaning of section
20
had not held such office; except that copies of public
20 3901 (2) of this title shall be a final agency decision within
21
documents preserved only for convenience of reference,
21 the meaning of section 702 of title 5.".
22
and stocks of publications and of public documents previ-
22
(b) The table of chapters, preceding chapter 1 of such
23
ously processed under this title are not included.
23 title 44, is amended by adding at the end thereof the
24 following:
"39. Public Documents of Elected Officials
3901".
93D CONGRESS
2D SESSION
S. 2951
A BILL
To provide for public ownership of certain
documents of elected public officials.
By Mr. BAYH
FEBRUARY 4, 1974
Read twice and referred to the Committee on
Government Operations
THE WHITE HOUSE
WASHINGTON
August 27, 1974
MEMORANDUM FOR
The Honorable Laurence H. Silberman
Deputy Attorney General
Department of Justice
Subject: Further matters related to subjects of opinion
requested August 22 from the Attorney General
Confirming my report to you by telephone, I wish to advise of
a threatened action by Richard M. Cooper at Williams, Connolly &
Califano, attorneys for the Washington Post under the Freedom
of Information Act (5 U.S.C. 552) for access to documents
prepared by the White House Gift Unit during the Nixon administration
with respect to gifts given to former President Nixon and his family
by foreign governments or their officials and currently located in
packing boxes within the White House complex. By telephone,
Cooper has indicated he will defer action but only until I advise
him of what the position of the present administration will be after
we have received the opinion requested of the Attorney General.
On the matter you raised in our conversation of a letter to
Arthur F. Sampson, Administrator of GSA, dated August 14,
from Ralph Nader or a related party or law firm, I find that
William Casselman has no copy of this. He wonders if it was
related to the case of Brandon V. Sampson and G.S.A. on appeal
before the U. S. Court of Appeals for the District of Columbia.
We have had some indication that subpoena may soon be issuing,
which could relate to documents being dealt with in your opinion,
in the case of Institute for Policy Studies, et al. V. Mitchell, et al.,
U.S.D.C.(D.C.), Civil Action No. 74-316.
T.W.B.
BERALD R. FORD
THE WHITE HOUSE
WASHINGTON
To:
Mr. Buchen
From: Eva
This was sent to Mr. Silberman.
Do you want copies to --
Yes Gen. Haig ?
YES
Fred Buzhardt ?
Anyone else
Yes Casselman ?
GE3ALD R. FORD
THE WHITE HOUSE
WASHINGTON
August 27, 1974
MEMORANDUM FOR
The Honorable Laurence H. Silberman
Deputy Attorney General
Department of Justice
Subject: Further matters related to subjects of opinion
requested August 22 from the Attorney General
Confirming my report to you by telephone, I wish to advise of
a threatened action by Richard M. Cooper at Williams, Connolly &
Califano, attorneys for the Washington Post under the Freedom
of Information Act (5 U.S.C. 552) for access to documents
prepared by the White House Gift Unit during the Nixon administration
with respect to gifts given to former President Nixon and his family
by foreign governments or their officials and currently located in
packing boxes within the White House complex. By telephone,
Cooper has indicated he will defer action but only until I advise
him of what the position of the present administration will be after
we have received the opinion requested of the Attorney General.
On the matter you raised in our conversation of a letter to
Arthur F. Sampson, Administrator of GSA, dated August 14,
from Ralph Nader or a related party or law firm, I find that
William Casselman has no copy of this. He wonders if it was
related to the case of Brandon V. Sampson and G.S.A. on appeal
before the U. S. Court of Appeals for the District of Columbia.
We have had some indication that subpoena may soon be issuing,
which could relate to documents being dealt with in your opinion,
in the case of Institute for Policy Studies, et al. V. Mitchell, et al.,
U.S.D.C.(D.C.), Civil Action No. 74-316.
P.W.B.
BERRED FORD LIBRA
THE WHITE HOUSE
WASHINGTON
August 27, 1974
MEMORANDUM FOR
The Honorable Laurence H. Silberman
Deputy Attorney General
Department of Justice
Subject: Further matters related to subjects of opinion
requested August 22 from the Attorney General
Confirming my report to you by telephone, I wish to advise of
a threatened action by Richard M. Cooper at Williams, Connolly &
Califano, attorneys for the Washington Post under the Freedom
of Information Act (5 U.S. C. 552) for access to documents
prepared by the White House Gift Unit during the Nixon administration
with respect to gifts given to former President Nixon and his family
by foreign governments or their officials and currently located in
packing boxes within the White House complex. By telephone,
Cooper has indicated he will defer action but only until I advise
him of what the position of the present administration will be after
we have received the opinion requested of the Attorney General.
On the matter you raised in our conversation of a letter to
Arthur F. Sampson, Administrator of GSA, dated August 14,
from Ralph Nader or a related party or law firm, I find that
William Casselman has no copy of this. He wonders if it was
related to the case of Brandon V. Sampson and G.S.A. on appeal
before the U. S. Court of Appeals for the District of Columbia.
We have had some indication that subpoena may soon be issuing,
which could relate to documents being dealt with in your opinion,
in the case of Institute for Policy Studies, et al. V. Mitchell, et al.,
U.S.D.C. (D. C.), Civil Action No. 74-316.
T.W.B.
GERALD FORD
August 27, 1974
MEMORANDUM FOR
The Honorable Laurence H. Silberman
Deputy Attorney General
Department of Justice
Subject: Further matters related to subjects of opinion
requested August 22 from the Attorney General
Confirming my report to you by telephone, I wish to advise of
a threatened action by Richard M. Cooper at Williams, Connolly &
Califano, attorneys for the Washington Post under the Freedom
of Information Act (5 U.S.C. 552) for access to documents
prepared by the White House Gift Unit during the Nixon administration
with respect to gifts given to former President Nixon and his family
by foreign governments or their officials and currently located in
packing boxes within the White House complex. By telephone,
Cooper has indicated he will defer action but only until I advise
him of what the position of the present administration will be after
we have received the opinion requested of the Attorney General.
On the matter you raised in our conversation of a letter to
Arthur F. Sampson, Administrator of GSA, dated August 14,
from Ralph Nader or a related party or law firm, I find that
William Casselman has no copy of this. He wonders if it was
related to the case of Brandon v. Sampson and G.S.A. on appeal
before the U. 8. Court of Appeals for the District of Columbia.
We have had some indication that subpoena may soon be issuing,
which could relate to documents being dealt with in your opinion,
in the case of Institute for Policy Studies, et al. v. Mitchell, et al.,
U.S.D.C.(D.C.), Civil Action No. 74-316.
i
FORD
PWBuchen:ed
cc: General Haig
GERALD
Fred Buzhardt
LIBRARY
Bill Casselman
August 27, 1974
MEMORANDUM FOR
The Honorable Laurence H. Silberman
Deputy Attorney General
Department of Justice
Subject: Further matters related to subjects of opinion
requested August 22 from the Attorney General
Confirming my report to you by telephone, I wish to advise of
a threatened action by Richard M. Cooper at Williams, Connolly &
Califano, attorneys for the Washington Post under the Freedom
of Information Act (5 U.S.C. 552) for access to documents
prepared by the White House Gift Unit during the Nixon administration
with respect to gifts given to former President Nixon and his family
by foreign governments or their officials and currently located in
packing bexes within the White House complex. By telephone,
Cooper has indicated he will defer action but only until I advise
him of what the position of the present administration will be after
we have received the opinion requested of the Atterney General.
On the matter you raised in our conversation of a letter to
Arthur F. Sampson, Administrator of GSA, dated August 14,
from Ralph Nader or a related party or law firm, I find that
William Casselman has no copy of this. He wonders if it was
related to the case of Branden v. Sampson and G.S.A. on appeal
before the U. s. Court of Appeals for the District of Columbia.
We have had some indication that subpoena may soon be issuing,
which could relate to decuments being dealt with in your opinion,
in the case of Institute for Policy Studies, et al. v. Mitchell, et al.,
U.S.D.C.(D.C.), Civil Action No. 74-316.
PWBuchen:e d
cc: General Haig
Fred Buzhardt
Bill Casselman
LIBRARY GERALD R. FORD
August 27, 1974
MEMORANDUM FOR
The Honorable Laurence H. Silberman
Deputy Attorney General
Department of Justice
Subject: Further matters related to subjects of opinion
requested August 22 from the Atterney General
Confirming my report to you by telephone, I wish to advise of
a threatened action by Richard M. Cooper at Williams, Connelly &
Califano, atterneys for the Washington Post under the Freedom
of Information Act (5 U.S.C. 552) for access to documents
prepared by the White House Gift Unit during the Nixon administration
with respect to gifts given to former President Nixon and his family
by foreign governments or their officials and currently located in
packing bexes within the White House complex. By telephone,
Cooper has indicated he will defer action but only until I advise
him of what the position of the present administration will be after
we have received the opinion requested of the Attorney General.
On the matter you raised in our conversation of a letter to
Arthur F. Sampson, Administrator of GSA, dated August 14,
from Ralph Nader or a related party or law firm, I find that
William Casselman has so copy of this. He wonders if it was
related to the case of Branden v v. Sampson and G.S.A. on appeal
before the U. 8. Court of Appeals for the District of Columbia.
We have had some indication that subpeena may seen be issuing,
which could relate to documents being dealt with is your opinion,
in the case of Institute for Policy Studies, et al. v. Mitchell, et al.,
U.S.D.C.(D.C.), Civil Action No. 74-316.
PWBuchen:e d
cc: General Haig
Fred Bushardt
LIBRARY GERALD R. FORD
Bill Casselman
August 27, 1974
MEMORANDUM FOR
The Honorable Laurence H. Silberman
Deputy Attorney General
Department of Justice
Subject: Further matters related to subjects of opinion
requested August 22 from the Atterney General
Confirming my report to you by telephone, I wish to advise of
a threatened action by Richard M. Cooper at Williams, Connelly &
Califano, atterneys for the Washington Post under the Freedom
of Information Act (S U.S.C. 552) for access to documents
prepared by the White House Gift Unit during the Nixon administration
with respect to gifts given to former President Nizon and his family
by foreign geveraments or their officials and currently located in
packing baxes within the White House complex. By telephone,
Cooper has indicated he will defer action but only until I advise
him of what the position of the present administration will be after
we have received the opinion requested of the Attorney General.
On the matter you raised is our conversation of a letter to
Arthur F. Sampson, Administrator of GSA, dated August 14,
from Ralph Mader or a related party or law firm, I find that
William Casselman has no copy of this. He wenders if it was
related to the case of Brandon V. Sampson and G.S.A. on appeal
before the U. s. Court of Appeals for the District of Columbia.
We have had some indication that subpeena may soon be issuing,
which could relate to documents being dealt with in your opinion,
in the case of Institute for Policy Studies, et al. V. Mitchell, et al.,
U.S.D.C. (D.C.), Civil Action No. 74-316.
PWBuchen:ed
LIBRARY GERALD R. FORD
cc: General Haig
Fred Bushardt
Bill Casselman
Draft/8/29/74
DRAFT OF PROPOSED LETTER FOR PRESIDENT
TO SEND ATTORNEY GENERAL
Dear Mr. Attorney General:
By this letter, I am requesting your legal opinion con-
cerning papers and other historical materials prepared and
maintained in the White House office during the Administra-
tion of former President Richard M. Nixon and still located
in the Executive Office Building or in the White House.
We have been advised that certain of the items involved
are required by former President Nixon in order that he may
complete the task of complying with the subpoena directed
to him in connection with the pending case of United States
V. Mitchell, et al, which is presently set for trial on
September 30, 1974. We are further advised that certain
items will be needed by former President Nixon for other
purposes relating to that case, wherein he has been sub-
poenaed as a witness, and for other litigation now pending
or in contemplation.
I would like your advice concerning the ownership of
these materials; the obligation of the Government to deliver
FORD
them to former President Nixon at his request; [the right of
the Government to examine them for evidence of criminal
wrongdoing;] and the obligations of the Government with
respect to subpoenas or court orders heretofore or hereafter
issued pertaining to them.
Sincerely,
GREATS B FORD LIBRARY
I. Ownership of the Materials.
Beginning with George Washington, every President of the
United States has regarded all the papers and historical
/
materials- which accumulated in the White House during his
administration, of a private or official nature, as his own
/
property
In Folsom V. Marsh, 9 Fed. Case 342, 2 Story 100,
108-109 (D.C. D. Mass 1841), Mr. Justice Story, while sitting
in circuit, held 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.
/ The term "historical materials" is used here as it is defined
in 44 U.S.C. 2101 to cover:
"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 com-
memorative value."
Statement of Dr. Grover, Archivist of the United States,
during the House Hearings on the Joint Resolution of August 12,
1955, supra, To Provide for the Acceptance and Maintenance of
Presidential Libraries, and for Other Purposes. Hearing before
a Special Subcommittee of the Committee on Government Opera-
tions, House of Representatives, 84th Cong., 1st Sess., on
H.J. Res. 330, H.J. Res. 331, and H.J. Res. 332 (hereafter
referrred to as 1955 Hearings), pp. 28, 45.
/ The official documents involved in that 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 the expected war with France. 2 Story, at
104-105.
FORD LIBRANT
A classic exposition and explanation of the status of
Presidential papers, private and official, 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 dur-
ing his administration. Taft, The Presidency, pp. 30-
31 (1914). [Emphasis supplied.]
It is true that section 507 of the Federal Records Act
of 1950, 64 Stat. 587, the predecessor to the Joint Resolution
of August 12, 1955, 69 Stat. 695 (now codified in 44 U.S.C.
2101, 2107 and 2108) seemed to distinguish between official
and personal papers of a President (compare subsection (a)
dealing with the records of an agency with subsection (e)
relating to the personal papers of a President). A memorandum
prepared in the Office of the Assistant Solicitor General
(now Office of Legal Counsel) on April 6, 1951, on the sub-
ject of the President's papers, indicated that such a dis-
tinction was inconsistent with historic precedents, and that
the dichotomy would be difficult if not impossible to
effectuate.
In any case, the 1955 Joint Resolution, which serves
as the permanent basis of the Presidential Library system,
clearly rejects the distinction and proceeds on the premise
that a President has title to all the documents and
historical materials--whether personal or official-which
accumulate in the White House during his incumbency.
LIBRARY
I I 2
This appears first from the omission of the word
"personal" from 44 U.S.C. 2107 (a), the equivalent to section
507 (e) of the 1950 Federal Records Act of 1950. Thus, the
current law covers the deposit of all Presidential papers,
not only personal ones. Second, during the debate on the
Joint Resolution on the floor of the House, Congressman 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. [Emphasis
supplied.
]
So far as we are aware, no members of Congress disagreed.
Finally, the hearings on the Joint Resolution before a
Special Subcommittee of the House Committee on Government
Operations indicate full congressional awareness that all
Presidential papers are the private property of the President.
1955 Hearings, PP. 12, 20, 28, 32, 52, 54, 58.
The most recent discussion concerning ownership of
Presidential papers appears in the report prepared by the
staff of the Joint Committee on Internal Revenue Taxation
involving the examination of President Nixon's tax returns.
H.Rept. 93-966. The report pointed to the practice of
Presidents since Washington /treating of their papers, both
private and official, as their personal property; and to the
congressional ratification of the practice in the 1955
library legislation. It concluded that the historical prece-
dents, taken together with the provisions of the Presidential
FORD
- 3 -
Libraries Act, indicated that the papers of President Nixon
should be considered his personal property.
II. Disposition of Materials Subject to Court Orders and
Subpoenas.
Even though the government is merely the custodian and
not the owner of the subject materials, it can properly be
subjected to court directives relating to them. 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 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). Fed. R. Civ. P. 34(a). In addition, in
both criminal and civil cases, a subpoena may be issued dir-
ecting 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).
The question arises as to the status of court orders or
subpoenas issued before former President Nixon resigned his
position. With respect to those directed against the United
States there is no question of continued applicability, since
- 4 -
the United States remains in custody of the materials in
question. With respect to the subpoena that issued in United
States V. Nixon,
U.S.
,
if any portions of that
subpoena remain uncomplied with the answer is far less
clear. Prior to the adoption of Fed. R. Civ. P
,
the rule was that a law suit against a government official
would not continue in effect against his successor in
office, and that a substitution of parties would be
necessary (cite of cases). There is no such curative
statute with respect to subpoenas, which are presumably
no less personal than party status in a law suit. On the
other hand, we are aware of no case law on the subject,
and it is possible that ruling on the precise issue in
modern times without restrictive case precedent a court
might reach the contrary conclusion. This is particularly
the case with respect to a subpoena as well publicized as
one directed to the President of the United States. On
balance, we are inclined to believe that the old subpoena
would not be effective, but until the matter is definitively
resolved it would be wise to assure the retention of materials
responsive to that earlier subpoena. (During the period of
such retention, former President Nixon and his representatives
would have to be allowed access to the materials, with
appropriate safeguards against removal.
- 5 -
GERARD
LIBRARY
We conclude, therefore, that those portions of the docu-
ments and materials in question which are the subject of
court orders or subpoenas issued before August 9 and addressed
to the United States or to Richard M. Nixon, President of the
United States, must be treated and disposed of in accordance
with the terms of those orders or subpoenas. Such obligation
would supersede any demand by President Nixon for return of
the materials subject to those orders or subpoenas, though
he would, of course, be able to petition the appropriate
courts to substitute orders and subpoenas directed to him,
so that the materials might be returned to his control. He
would also be able to challenge the validity of these orders
and subpoenas on constitutional or other grounds. See, e.g.,
Schwimmer V. United States, supra, 232 F.2d at 861.
5(a)
Optional Paragraph, end of PART II.
The foregoing conclusions would be altered if the
Government were not the custodian of the materials in
question. This would be the case if the materials were
contained in offices provided to the former President
pursuant to the Presidential Transition Act of 1963. In
that event, the United States in our view would be no
more subject to court orders or subpoenas with respect to
the documents in question than would the owner of an office
building be subject to a subpoena with respect to materials
contained in the premises of one of his tenants. We do
not understand, however, that the materials are preserved
in premises that are subject to the exclusive and unrestricted
use of the former President, which in our view makes it
clear that the Presidential Transition Act is not the basis
of the present arrangement.
GERMEN
III. Disposition of Materials not Subject to Court Orders
or Subpoenas.
Those portions of the materials which are not subject
to court order or subpoena, being the property of former
President Nixon, should generally speaking be disposed of accord-
ing to his instructions. These materials are, however,
affected by public interest which may justify subjecting the
absolute ownership rights of the ex-President to certain lim-
itations 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 lib-
erty 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."
It was recognition of this limitation on private use of private
papers containing government information which caused President
Truman to omit "certain material" from his memoirs on the
grounds of national security. Harry S. Truman, Memoirs,
Vol. I, Year of Decisions, p. X. Upon the death of Franklin
D. Roosevelt during the closing months of World War II,
despite the accepted view that all White House papers belonged
- 6 -
GERALD
to the President and evolved to his estate, some of the papers
dealing with prosecution of the War (theso-called "Map Room
Papers") were kept by President Truman in "protective
custody" for security reasons until December 1946. Matter of
Roosevelt, 190 Misc. 34, 344, 73 N.Y.S. 821, 825 (1947), Eighth
Annual Report of the Archivist of the United States as to
the Franklin D. Roosevelt Library (1947), P. 1. Because
of these historical precedents, and almost from the necessity
of the matter, we would conclude that there might be withheld
from immediate possession of former President Nixon any
materials currently needed for operation of the Government
and any materials which the President might deem it essential
to preserve in federal custody for national security reasons.
Beyond possible limitations of this sort upon the
property right of the ex-President, limitations deriving
from the very nature of the documents as records of govern-
ment activitiy, it is our opinion that the Government has no
right to examine the documents without court order, or to
withhold them from the former President against his wishes
More specifically, it would not in our view be proper for
the Government to search the materials without court author-
ization for evidence of a crime. While the United States
may make custodial or caretaking inspections of the property
of another temporarily in its custody, Harris V. United States,
390 U.S. 234 (1968), Cady V. Dombrowski, 413 U.S. 433 (1972),
it may not undertake a search for evidence of a crime without
a warrant unless the property was seized or otherwise
acquired in the course of a criminal investigation, Preston V.
United States, 376 U.S. 364 (1946). To the extent that there
LIBRA
- 7 -
materials in question may be relevant to further criminal
investigation, they may, of course, be subjected to further
subpoenas by the Special Prosecutor.
As to the place of custody of the materials: Pending
a request by former President Nixon for their return, the
materials may be kept in their present location. They may
also be removed to other safe locations subject to Govern-
ment control, unless a condition of the custody of which we
have not been advised would require their retention in their
present locations. In the latter event, removal to new
locations could still be achieved by advising former President
Nixon of the Government's unwillingness to continue custody
unless this is permitted.
Some question exists as to the ability of the Government
to continue its custody with the permission of former President
Nixon indefinitely, without any appropriations for that
purpose under the Presidential Transition Act,
,
and without any donation of the materials or expression of
intention to donate the materials under the Presidential
Archives Act, 44 U.S.C. § 2101-08. The public interest in
the documents alluded to above, however, would seem to
justify dedication of government facilities to this purpose
for a reasonable period.
- 8 -
GERALD 0.1080
REDRAFT/AS/dp
8/31/74
Dear Mr. President:
You have requested my opinion concerning those papers
and other historical materials prepared in or transmitted
to theWhite House Office during the administration of
former President Richard M. Nixon and still located in the
Executive Office Building or in the White House. 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 officers
pertaining to them.
To conclude that such materials are not the property
of former President Nixon would be to reverse the almost
unvaried understanding of all 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. According to testimony of the
Archivist of the United States in 1955, every President
of the United States beginning with George Washington had
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.
1/
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; here-
inafter 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.
FORD
GERALD
In Folsom V. Marsh, 9 Fed Case 342, 2 Story 100, 108-
109 (D.C. D. Mass 1841), Mr. Justice Story, while sitting
found
in circuit,/,stated that President Washington's letters,
including his official correspondence, 2/ were his private
property which he could bequeath, which his estate could
alienate, and in which the purchaser could acquire a copyright.
A classic exposition and explanation of the status of
Presidential papers, private and official, 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,
pp. 30-31 (1914).
It is true that section 507 of the Federal Records Act
of 1950, 64 Stat. 587, the predecessor to the Presidential
2/
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 (officialy 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) later is arguably
subsequently converted to dictum by Justice Story 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 -
BERALD FORD LIBRARY
Libraries Act seemed to distinguish between official and
private papers of a President (compare subsection (a), dealing
with the records of an agency, with subsection (e), relating
to the "personal" papers of a President) A memorandum
prepared in the Office of the Assistant Solicitor General
(now Office of Legal Counsel) on April 6, 1951, on the
subject of the President's papers, indicated that such a
distinction was inconsistent with historic precedents, and
that the dichotomy would be difficult if not impossible to
maintain.
In any case, the 1955 Presidential Libraries Act, which
serves as the permanent basis of the Presidential Library
system, clearly rejects the distinction and must reasonably
be regarded to proceed on the premise that a President has
title to all the documents and historical materials- whether
personal or official--which accumulate in the White House
during his incumbency. This appears first from the omission
of the word "personal" from 44 U.S.C. 2107(1), the equivalent
to section 507 (e) of the Federal Records Act of 1950. Thus,
the current law covers the deposit of all Presidential materials,
not only personal ones. During the debate on the Joint
3/
The conclusion that this language is intended to make such
a distinction seems preferable but is perhaps not inevitable.
The Staff Report prepared by the Joint Committee on Internal
Revenue Taxation concerning former President Nixon's tax
returns draws precisely the opposite conclusion, citing the
1950 Act as evidence of Presidential ownership of all White
House materials. H. Rept. 93-966, pp. 28-29. This inter-
pretation evidently assumes that the word "found" was prefixed
to the phrase "Presidential papers" not as a qualifier but
merely to emphasize Presidential ownership.
"personal"
- 3 -
BERALD FORD LIBRARY
Resolution on the floor of the House, Congressman 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.
No H
The legislative history of the Act reflects no disagree-
ment 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 full
congressional awareness of the Act's assumption that all
Presidential papers are the private property of the President.
1955 Hearings, pp. 12, 20, 28, 32, 52, 54, 58.
The most recent discussion concerning ownership of
Presidential materials appears in the report prepared by the
staff of the Joint Committee on Internal Revenue Taxation
involving the examination of President Nixon's tax returns.
H. Rept. 93-966. The report pointed to the practice of
Presidents since Washington of treating their papers, both
private and official, as their personal property; and to the
congressional ratification of the practice in the 1955
library legislation. It concluded (pp. 28-29) that "the
historical precedents taken together with the provisions of
the Presidential Libraries Act, suggest that the papers of
President Nixon are considered his personal property rather
than public property."
- 4 -
toko is LIBRARY GERALD
One of the objections sometimes raised 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."
An objection based upon this provision is circular, 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 to the
blank typing paper and materials, their value is of course
negligible. In any event, the Constitutional provision can
simply not be interpreted with the degree of literalness that
the argument requires. An eminent authority on the subject,
Edward S. Corwin, 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, note 53, p. 348.
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 common objection to Presidential ownership of
the materials in question is based upon their character as
public documents, often secret and sometimes necessary for
the continued operation of government. Without speaking to
FORD
5 -
GERALD
the desirability of the established property rule (and there
is presently pending in the Congress legislation which would
apparently alter it--s. 2951, "A Bill to Provide for Public
Ownership of Certain Documents of Elected Public Officials"),
I may point out that accommodation of such concerns can be
achieved whether or not ownership of the materials in question
rests with the former President. It has consistently been
acknowledged 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."
That portion of the Criminal Code dealing with the transmission
or loss of nation security information, 18 U.S.C. § 793,
obviously applies to Presidential papers even when they are
4/
within the possession of the former President.
Section 11 of Executive Order 11652 makes explicit provision
for declassification of Presidential material that has been
deposited in the Archives.
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GERALD
NO H
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 evolved 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. 34, 344, 73 N.Y.S. 821, 825 (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, both
precedent and logic demonstrate 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.
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BERALD FORD
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 Consti-
tution 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 by leaving
the materials 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.
I conclude, therefore, that these materials are the
property of former President Nixon, in your personal custody;
in my view, it is lawful and appropriate, because of the
special governmental interest in these materials, to accept
such custody for a reasonable time. You may, of course,
delegate custody to a responsible subordinate officer in
the White House. You may also transfer custody to the
Administrator of General Services, pursuant to 44 U.S.C.
§ 2107. This provision clearly contemplates the deposit of
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BERALD R.FORD
papers and other historical materials without an accompanying
transfer of title to the United States. Compare section 2107
("the Administrator of General Services
may accept for
deposit
papers and other historical materials of a
President or former President") with section 2108 ("the
Administrator of General Services
may accept
land,
buildings, and equipment offered as a gift
and take
title"). See also Rep. No. 998, 84th Cong., 1st Sess
p. 4. I would also advise that any transfer to the custody
of an individual not a part of the White House staff, or
to any location outside of the White House and Executive
Office Building, should not be effected without the consent
of former President Nixon.
Finally, as to the obligations of the Government with
respect to subpoenas and court orders, heretofore or hereafter
or iTs officials
directed to the Government with respect 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).
Fed. R. Civ. P. 34.(a). In addition, in both criminal and
civil cases, a subpoena may be issued directing a person to
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BERALD FORD LIBRARY
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 documents heretofore or hereafter subpoenaed
or iTs custodial officials
from the Government included within the subject materials
must be produced; and that none of the materials can be
moved or otherwise disposed of contrary to the provisions
or iTs custodial officials
of any court order against the Government pertaining to them.
advise IS
to
gry of
by
w
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