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Nixon-Sampson Agreement - History
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1126649
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Nixon-Sampson Agreement - History
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Benton L. Becker Papers
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The original documents are located in Box 2, folder "Nixon-Sampson Agreement - History"
of the Benton L. Becker Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Benton Becker donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 2 of the Benton Becker Papers at the Gerald R. Ford Presidential Library
May 4, 1978
Dear Trever:
Enclosed is my promised Annotated
History of the Nixon-Sampson Agreement
for use by you as you see fit.
Looking forward to seeing you in
June when I return, albeit temporarily,
to the nation's Capitol.
Benton
GERALD R. FORD LIBERATOR
UNIVERSITY OF MIAMI
SCHOOL OF LAW
MEMORANDUM
TO:
Trever Ambruster
FROM:
Professor Benton L. Becker
DATE:
May 3, 1978
SUBJECT: Annotated History of the Nixon-Sampson Agreement
In addressing itself to the constitutionality of the "Presi-
dential Recording and Materials Preservation Act, "1 the United
States Supreme Court in Nixon V. Administrator of General Services
(Nixon II) 2 ruled for the first time on the permissible extent of
congressional authority to regulate the disposition of official
records and papers of a former chief executive. By its action,
the Court undertook to reverse two hundred years of practice by
past presidents. 3
When Richard M. Nixon resigned as President of the United
States, 4 there remained behind forty-two million pages of White
House documents⁵ and eight hundred eighty tape recorded conversa-
tions. 6 Before releasing these materials to Nixon, then-president
Gerald R. Ford requested and received from the Attorney General
of the United States an opinion respecting ownership of the mater-
ials. The Attorney General concluded that title rested with Mr.
Nixon by virtue of historical practice and the absence of any
statute to the contrary. 7 However, he further advised that Nixon's
ownership claim was limited by public interest rights in the docu-
ments as records of government activity⁸ and that the materials
were subject to court orders and subpoenas. 9
Following receipt of this opinion, the Administrator of
General Services, Arthur F. Sampson, executed a depository agree-
ment with the former President (Nixon-Sampson Agreement) 10 Under
the terms of this agreement, Nixon retained title to all the mater-
ials but agreed to deposit them with the General Services 11 Adminis-
tration in accordance with the Federal Records Act. Neither
party could gain access to the materials without consent of the
other. The arrangement further provided that Mr. Nixon could not
withdraw originals of any written documents for three years, after
which time he could either retain them for himself or donate the
materials to the United States Government. Similar provisionsofor
GERALD
review of the tape recordings were established with the time
period extended to five years, following which time Nixon was
free to destroy any or all of the tapes. 12 In any event, all
of the taped conversations were to be destroyed at the expira-
tion of ten years 13 or upon Nixon's death, 14 whichever occurred
first.
Implementation of the Nixon-Sampson Agreement was delayed
at the request of the Watergate Special Prosecutor who informed
President Ford that he had a continuing need of the presidential
materials for the successful prosecution of pending criminal
15
cases.
Nixon then sued to compel specific performance of the
Agreement
16 His case was consolidated with various other actions
17
by private plaintiffs seeking to set aside the Nixon-Sampson Agree-
ment and gain direct access to the presidential materials under the
Freedom of Information Act. 18
While these combined actions were pending, Congress enacted
the challenged statute which was specifically designed to abrogate
the Nixon-Sampson Agreement 19 The bill directed the Administrator
of General Services to take custody of the presidential papers 20
and devise regulations for the screening of the papers by executive
branch archivists and for future distribution. 21 The following day,
Nixon commenced action 22 for declaratory and injunctive relief
against enforcement of the Act on the grounds that it was a viola-
tion of his constitutional rights and, unfairly, applied only to
23
him.
A three-judge United States District Court for the District of
Columbia 24 rejected each of Mr. Nixon's challenges to the constitu-
tionality of the Act. 25 On direct appeal 26 the Supreme Court
affirmed, holding only that granting custody of the presidential
materials to the Administrator of General Services and permitting
their archival screening did not render the statute unconstitutional
on its face. Writing for a majority of seven, Justice Brennan de-
fined Nixon as a "legitimate class of one 27 and a proper target
for special treatment by Congress. The concurring opinion of Justice
Stevens reasoned that such a distinction was justified because of
the unique circumstances regarding Nixon's premature departure from
office and his immunity from criminal prosecution due to his pardon. 28
These circumstances and the danger that he might destroy evidence
necessary to the Watergate investigation made Nixon a proper target
for special treatment by Congress.
Though no specific law governed the ownership of documents and
materials accumulated while in office, 29 departing presidents for
two centuries have consistently considered their papers personal
property, whether private or official in nature, and have taken such
papers with them.
30 Prior to the abrupt termination of the Nixon
Administration, the right of a former president to determine the
disposition of his official communications and govern their public
access had never been challenged. Considering this historical
precedent, Appellant Nixon asserted that the executive branch 31
was immune from all congressional regulation of its papers.
Traditionally, every president, congressperson, and justice
of the Supreme Court, i.e., each constitutional office holder,
has had the right to determine the disposition of his or her own
papers.
32 The practical importance of this tradition has its
basis in separation of powers principles. 33 Congress has seem-
ingly sanctioned this practice of former presidents by repeatedly
appropriating funds for the purchase of various presidents'
papers.
34 Such appropriations would appear to indicate congres-
sional recognition of the legitimacy of a president's title in
the papers compiled during his term in office. As late at 1955,
with the passage of the Presidential Libraries Act, 35 Congress
seemed to assume that the president retained ownership of his
papers since that Act was designed to encourage the voluntary
donation of such papers to the government. 36
FORD
F.
GERALD
FOOTNOTES
1. The statute is divided into two titles. Title I, 44 U.S.C.
§ 2107 (Supp. V 1975) (Pub. L. No. 93-526, 88 Stat. 1695
(1974) ) is the Act herein challenged. Title II, 44 U.S.C.
§§ 3315-3324 (Supp. V 1975) (Pub. L. No. 93-526, 88 Stat.
1698 (1974)) establishes the National Study Commission of
Records and Documents of Federal Officials.
2. 97 S. Ct. 2777 (1977).
3. J. McDonough, Who Owns Presidential Papers?, 27 Manuscripts 2
(1975).
4. The exact date was August 9, 1974. It is interesting to note
that his resignation came less than two weeks after a unanimous
recommendation by the House Committee on the Judiciary that he
be impeached. House Comm. on the Judiciary, Impeachment of
Richard M. Nixon, President of the United States, H.R. Rep.
No. 93-1305, 93rd Cong., 2d Sess. (1974).
5. Mr. Nixon was personally familiar with only two hundred thousand
documents. 97 S. Ct. at 2798.
6. These conversations were recorded at Camp David and various
White House offices such as the Oval Office and the Executive
Office Building. 44 U.S.C. § 2107 (Supp. V 1975) (Pub. L. No.
93-526, tit. I, § 101 (a) (2)
7. 43 Op. Att'y Gen. 1 (1974).
8. Id.
9. Id.
10. See 10 Weekly Comp. of Pres. Doc. 1104 (Sept. 16, 1974) and Nixon
V. Sampson, 389 F. Supp. 107, 160-62 app. A (1975).
11. 44 U.S.C. §§ 2101-2108 (1970).
12. Nixon-Sampson Agreement, note 10 supra.
13. That date was specified in the Agreement as September 1, 1984.
14. A prime motivating factor for sudden enactment of the challenged
statute may have been congressional knowledge that during this
time period Mr. Nixon suffered an ailment commonly called, ORD
phlebitis, an illness which can be fatal.
LIBRARY
15. On November 11, 1974, Watergate Special Prosecutor Henry Ruth
and President Ford entered an agreement allowing the Special
Prosecutor access to the materials for investigation and prose-
cution pruposes. 97 S. Ct. at 2784.
16. Nixon V. Sampson, 389 F. Supp. 107 (D.D.C. 1975).
17. Hellman V. Sampson, id.; Reporter's Comm. for Freedom of the
Press V. Sampson, id.
18. 5 U.S.C. § 552 (1970).
19. 44 U.S.C. § 2107 (Supp. V 1975) (quoting Pub. L. No. 93-526,
tit. I, § 101). See also Nixon V. Sampson, 389 F. Supp. 107 app.
(D.D.C. 1975).
20. 44 U.S.C. § 2107, (Supp. V 1975) (quoting Pub. L. No. 93-526,
tit. I, § 101).
21. 44 U.S.C. § 2107, (a) (Supp. V 1975) (quoting Pub. L. No. 93-526,
tit. I, § 104).
22. At the time of filing his complaint, Nixon also made an applica-
tion for a three-judge district court under 28 U.S.C. §§ 2282-2284
(1970). Judge Richey of the United States District Court for the
District of Columbia declined to rule on the application. Nixon
filed a petition for writ of mandamus to compel the District Court
to act on the motion. That petition was denied, Nixon V. Richey
513 F.2d 427 (D.C. Cir. 1975) on the assumption that Judge Richey
would proceed in accordance with 28 U.S.C. §§ 2282-2284 (1970).
However, Judge Richey failed to rule on the application and filed
an opinion. Nixon V. Sampson, 389 F. Supp. 107 (D.D.C. 1975).
The Court of Appeals for the District of Columbia stayed the entry
of judgment to enable a three-judge district court to hear the
issues. Nixon V. Richey, 513 F.2d 430 (D.C. Cir. 1975).
23. Nixon attacked the constitutionality of Title I as a violation of
(1) separation of powers, (2) presidential privilege doctrine,
(3) Nixon's privacy interests, (4) Nixon's first amendment associa-
tional rights, and (5) the Bill of Attainder Clause. 97 S. Ct. at
2783. Nixon included the charge of violation of his equal pro-
tection rights under the fourth and fifth amendments in Nixon V.
Administrator of Gen. Services, 408 F. Supp. 321 (D.D.C. 1976),
but he did not raise that issue on appeal here.
24. 44 U.S.C. § 2107 (Supp. V 1975) (quoting Pub. L. No. 93-526, tit.
I, § 105 (a)) (exclusive jurisdiction vested in the United States
District Court for the District of Columbia).
GERALD
25. Nixon V. Administrator of Gen. Services, 408 F. Supp. 321 (D.D.C.
1976).
26. Pursuant to 28 U.S.C. § 1253 (1966) direct appeals to the U.S.
Supreme Court are available after the three-judge district court
hands down rulings which grant or deny interlocutory or permanent
injunctions in civil proceedings.
27. 97 S. Ct. at 2805.
28. Id. at 2814 (Stevens, J., concurring).
29. The issue of ownership of presidential papers has still not been
settled. Though the court in Nixon V. Sampson, 389 F. Supp. 107
(D.D.C. 1975) declared that title lies with the government, that
opinion was stayed in Nixon V. Richey, 513 F.2d 427 (D.C. Cir.
1975). The Supreme Court has determined that the issue of legal
title to the materials is irrelevant to the constitutionality of
the statute since 44 U.S.C. § 2107 (1977) provides for just com-
pensation if anyone's economic interests are involved. 97 S. Ct.
at 2806, 2810.
30. See J. McDonough, Who Owns Presidential Papers?, 27 Manuscripts 2
(1975)
31. 97 S. Ct. at 2789.
32. See Inland Waterways Corp. V Young, 309 U.S. 517 (1940). "Consti-
tutional power, when the text is doubtful, may be established by
usage." Thus, even with no statutory sanction, consistent his-
torical practice may define ownership of property or determine
the existence of a power. Id. at 525.
33. U.S. Const. art. II.
34. The most notable cases include George Washington, Thomas Jefferson,
James Madison, James Monroe, and Andrew Jackson. J. McDonough,
Who Owns Presidential Paper?, 27 Manuscripts 2, 4 (1975).
35. 44 U.S.C. §§ 2101, 2107, 2108 (1970).
36. Legislative history shows that Congress fully considered the
question of ownership when debating the Presidential Libraries
Act and determined that title rests with the President. 2 U.S.
Code Cong. & Ad. News 3041 (1955).