Nixon v. Administrator of General Services Motion for Leave to File and Brief Amicus Curiae

    In the

S u p m u ?  ffimtrt u f %  llu itcii S ta te s

O ctober T e r m , 1976 

No. 75-1605

R ich ard  N ix o n ,

Appellant,
v.

A d m in istra to r  of G en e r a l  S ervices, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

MOTION FOR LEAVE TO FILE BRIEF 
AS AMICUS CURIAE

Public Affairs Associates, Inc., hereby moves for leave 
to file the attached brief as amicus curiae.

Public Affairs Associates is an educational publishing 
corporation which specializes in publications related to 
current events, including publications based on govern­
ment prepared materials. Amicus was the plaintiff in 
Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111
(1962), which is relied on by counsel for the parties in this 
action.

The annexed brief is intended by amicus to provide the 
Court with additional material on the question which 
underlies this appeal but which has not been adequately 
briefed by the parties—who owns the papers, documents



2

and other records generated within or received by the 
office of the President. That issue was the subject of a 
detailed and well reasoned opinion by the District Court 
at an earlier stage of this litigation, Nixon v. Sampson, 
389 F.Supp. 107 (D.D.C. 1975), which concluded that the 
records, etc., at issue in this case were and always had 
been the property of the United States. Notwithstanding 
Rules 15(1) (a) and (h) and 40(1) (a), appellants did not 
mention the existence of this opinion in either their Juris­
dictional Statement* or Brief, or reproduce it in their 
Jurisdictional Statement. The government’s brief refers 
to the existence of “an opinion” at 389 F.Supp. 107, but 
does not discuss its nature or relevance. Brief for the 
Federal Appellees, p. 10.

Appellant asserts that he owns some 42,000,000 docu­
ments and tapes, and that he therefore should be free to 
destroy, alter, or sell them on the open market. Although 
Judge Richey, below, concluded that these materials be­
longed to the United States, the Solicitor has declined to 
assert that the government owns the records or to discuss 
the matter at all. We do not contend that the Solicitor 
General’s silence on this issue is in any wav improper 
On the contrary, we note that the Department of Justice 
also declined an express invitation to take a position as 
to whether the government owned the materials at issue 
in Public Affairs Associates v. Richover, 3G9 U.S. I l l  113

A decision that the disputed records are the property 
of̂  the United States will, for the reasons set out in our 
brief,_ be dispositive of the issues presented by this appeal. 
I f  this appeal is affirmed on the more complex grounds

uie Jurisdictional Statement noted that the original agreement

» X U a T i ' X * ' t  t A t ' nis,rator ™  repro<,n“ a * * 389



3

suggested by the Solicitor General, it will be but a prelude 
to a new round of litigation between Mr. Nixon and the 
General Services Administration regarding assertions of 
privilege and claims for monetary compensation; a deci- 
sion on the question of ownership will pretermit most such 
litigation and issues. More importantly, such a decision 
will bring to an end the surreptitious conversion of gov­
ernment property by public officials at all levels. Although 
the practices of outgoing Presidents and other federal 
employees has varied widely over the years, permanent 
employees of the executive branch have been uniformly 
unwilling to protect the government files from such pillage. 
In most cases the permanent employees aware of the 
proposed removal of federal documents are subordinates 
ot the officials taking the materials, and are naturally 
reluctant, as are colleagues who may wish to engage' in 
similar practices, to assert that the materials are gov­
ernment property. Private parties not unwilling to make 
such an assertion may lack the requisite standing. This 
is one of the few circumstances in which the question of 
ownership of presidential and other official papers is 
squaieh pioscnted, and it should now be decided.

We are not insensitive to the fact that a decision on own­
ership will, to some extent, touch on the practices of past 
and present members of this Court. Were there other cir­
cumstances in which the issue could be decided without that 
complication, it might be wise to defer decision until such 
a case arose, but any case presenting the issue of ownership 
will have simliar ramifications. There is no alternative 
judicial forum in which this difficulty will not exist. Com­
pare Laird v. Tatum, 409 U.S. 824, S37-38 (1972) (Rchn- 
quist, ,7.).

This Court has in recent years adopted a salutary prac­
tice of requiring that a motion for leave to file a brief



4

amicus curiae be filed no later than the date on which the 
brief for the side supported by the amicus is due. Rule 
42(3) states that such a motion must be “ timely” , a require­
ment consistent with the Court’s general practice but con­
templating that the timeliness of a particular motion be 
assessed in light of the specific circumstances involved. In 
the instant case the amicus could not know that the Solici­
tor General would decline to address the ownership issue 
until after the government’s brief had been filed and the 
date on which it was due had passed. In addition, on the 
question of whether a former president can assert a privi­
lege against the disclosure of official documents we are 
opposed to the position taken by both the Solicitor General 
and the appellants. Under the circumstances we believe 
the instant motion is timely with the meaning of Rule 
42(3).

W h e r e f o r e , Public Affairs Associates, Inc. respectfully 
prays that this motion be granted and that the attached 
brief be filed.

Respectfully submitted,

E ric Sou n affer  
Suite 2030 
10 Columbus Circle

New York, New York 10019 
Counsel for Amicus Curiae



In the

i ’ltprrmr CEmtrt nf tlir luitrii Btatvs
O ctober  T e r m , 1976 

No. 75-1605

R ich ard  N ix o n ,

v.
Appellant,

A d m in istra to r  of G en era l  S ervices , e t al.,

Appellees.

on  appeal  from  t h e  u n it e d  states d istrict  court

FOR THE DISTRICT OF COLUMBIA

BRIEF AMICUS CURIAE OF 
PUBLIC AFFAIRS ASSOCIATES, INC.

ARGUMENT

I.

The Disputed Presidential Records, etc., Are the 
Property of the United States.

The central issue underlying this appeal is whether ap­
pellant owns all or any of the materials placed in the per­
manent custody of General Services Administration by 
the Presidential Recordings and Materials Preservation 
Act, Certain materials left by appellant in the White 
House and temporarily held by the appellees are not cov- 
eied b\ (lie Act and are, subject to appropriate procedures 
to separate them from the other items, available to up-



2

pellant. Possession and control is permancntlv vested in 
the Administrator only of “ the Presidential historical mate­
rials of Richard M. Nison” . Although “ historical mate­
rials” is broadly defined by 44 U.S.C. § 2101, the qualifica­
tion “Presidential” excludes from the Act objects or docu­
ments that deal exclusively with appellant’s personal life, 
such as notes from or discussions with his wife and daugh­
ters, his responsibilities as a leader of the Republican 
Party, such as memoranda regarding internal party pol­
itics, or other activities unrelated to his official respon­
sibilities and activities as President of the United States. 
The only materials to be retained by the Administrator are 
those relating to the conduct of government business and 
the exercise by appellant of his duties under the Constitu­
tion and laws of the United States. Appellant asserts that 
these records and objects are his personal property, and it 
is only as to them that the dispute regarding ownership 
exists.

The materials now claimed by appellant to be his per­
sonal property were indisputably the property of the 
United States at one time. Certainly that was the case, 
as to documents, when the millions of sheets of paper were 
purchased with government funds. Thereafter the sheets 
were used to record government business by being placed 
in government-owned typewriters, typed by government- 
paid secretaries who typed words written by other govern­
ment employees, xeroxed, read, edited and signed by other 
government employees, and ultimately placed in govern­
ment-owned filing cabinets by government-paid clerks. 
Appellant, who personally saw less than 1% of the result­
ing millions of documents, and wrote even fewer, asserts 
that, sometime between this initial acquisition and the date 
of his resignation as President, title to all the materials 
v as transferred from the United States of America to



3

him. Precisely when, where, and how this transfer of title 
is alleged to have occurred is not clear.

Tins assertion is inconsistent on its face with two sep­
arate and unequivocal provisions of the Constitution. Sec­
tion 3 of Article IV provides that “ The Congress shall have 
the Power to dispose of and make all needful Rules and 
Regulations respecting the Territory or other Property 
belonging to the United States.” The authority to sell or 
give away government property is exclusively in the hands 
of Congress; the President and other officials of the execu­
tive bianch cannot impair government ownership of gov­
ernment property without express statutory authorization. 
Thus, unlike the ordinary rule regarding real or personal 
property, federal title cannot be lost through abandonment 
or through acquiescence by executive officials not acting 
under congressional mandate.1 Similarly, absent an ex­
press statutory transfer of specilic property to one or all 
formci 1 lCsidents, title thereto cannot be acquired by a 
species of historical adverse possession. Congress has pro­
vided substantial sanctions for federal employees who con­
vert or remove any record, document or other thing of 
value belonging to the United States. 18 U.S.C. §§ 641, 2071.

Section 1 of Article II, generally known as the Emolu­
ments Clause, provides that “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.” The salary of the President, at 
the beginning of the term for which appellant was elected,

1 Beaver v. United States, 350 F.2d 4 (,9th Cir 19G5) cert do 
nred 383 U.S. 937 (I960); United States v P ennsyLnlaetc 
Dock m v m  (0th Cir. 1921); VnitcdStales 
84 ?-S»PP- (D.N Mex. 1900) ; United States v. City of Colum­

bus, ISO F.Supp. 77o, 777 (S.D. Ohio 1959). '



was $200,000 a year. 3 U.S.C. § 102. The Emolument 
Clause would clearly be violated if a President were per­
mitted to augment his statutory salary by seizing title to 
any number of “presidential documents” , whose creation, 
assemblage, number and dollar value were largely con­
trolled by the President himself.

The conduct of past Presidents does not, we believe, 
support appellant’s claim of ownership. Past Presidents 
have frequently insisted publicly that officially generated 
papers were government property. In 1782 Reverend 
William Gordon, then at work on a history of the nation’s 
origin, wrote to General Washington seeking access to 
the latter’s Revolutionary War records. Washington de­
clined to make the records available on the ground that 
they were public property and only Congress could open 
them for private use.

“ [T]he Papers of the Commander-in-Chief . . .  I con­
sider as a species of Public property, sacred in my 
hands . . . .  When Congress then shall open their 
registers, and say it is proper for the Servants of the 
public to do so, it will give me much pleasure to afford 
all the Aid to your labors and laudable undertaking 
which my papers can give; ’til one of those periods 
arrive I do not think myself justified in suffering an 
inspection of, and any extracts to be taken from my 
Records.” -

President Roosevelt in 1941 described the White House 
papers as “ the people’s record” and announced that they 
would be placed, on the completion of his presidency, in

" J.C.. Fitzpatrick, The Writings of George Washington from 
Tiie Original Manuscript Sources, v.25, pp. 288-89 (1931-40). In 
1783 Washington again wrote Gordon assuring him that. “ All my 
Records and Papers shall be unfolded” when “ the Sovereign 
Power” authorizes it. Id., v. 27, p. 52.



5

a government authorized library in Hyde Park.3 4 Roose­
velt’s written instructions contemplated that the library 
and its contents would become part of the National A r­
chives, which is what occurred. In 1947 the Christian 
Science Monitor described the views of President Truman 
on this subject:

President Truman plans to set a precedent for Presi­
dents. He will not, repeat not, take with him his state 
papers when he leaves the White House. . . . The 
President feels strongly about this; he has for a long 
time. The public papers of any top official, from the 
President on down, should remain the property of the 
government, he holds.'*

On September 16, 1974, President Ford announced a simi­
lar position regarding the papers of his presidency:

As far as I am personally concerned, I can see a 
legitimate reason for Presidential papers remaining 
the property of the government. . . .  In my own case, I 
made a decision some years ago to turn over all of 
my Congressional papers, all of my Vice Presidential 
papers to the University of Michigan archives. As 
far as I am concerned, whether they go to the archives 
for use or whether they stay in the possession of the 
government, I don’t think it makes too much difference. 
I have no desire personally to retain whatever papers 
come out of my administration.” 5

3 The Public Papers and Addresses of Franklin D. Roosevelt, p. 
(i30 (1941) ; II.G. Jones, The Records of a Nation, 157, 162 n ’ 25 
(1969).

4 January 29, 1947.

3 Weekly Compilation of Presidential Documents, September 23 
1974, p. 1160.



6

The actions of past Presidents are more varied, and 
their precedential significance obscured by the lack of rec­
ords of what occurred and why, and by the absence of an 
officially designated depository for the systematic reten­
tion and preservation of presidential documents. After 
leaving the Presidency, for example, George Washington 
wrote to the Secretary of the Treasury about the need of 
facilities “ for the security of my Papers of a public nature” 
and engaged in correspondence with the Secretary of War 
regarding suitable “ accommodation and security of my 
Military, Civil and private Papers” . Since provisions for 
official storage were never made, and Washington had no 
choice but to leave them in the custody of his heirs.6 Pres­
ident Jefferson “ deposited in the various departmental 
offices— State, Treasury, War, Justice, and Post Office— 
every document having any relation to the conduct of pub­
lic business or being in any sense official in nature” ,7 but 
owing to the informal practices of the era many of these 
documents were later acquired by private collectors. There­
after, in the continuing absence of any specifically desig­
nated depository, some Presidents left official documents 
in the possession of whichever department they thought 
most likely to preserve them,8 while others took with them 
some documents the number and nature of which is not 
known. Beginning about 1905, when the Library of Con­
gress intensified its interest in assembling and preserving 
presidential papers, large numbers of such documents were 
deposited with the Library by former Presidents Theodore 
Roosevelt, Taft and Coolidge and the heirs of Presidents

6 J.C. Fitzpatrick, The Writings of George Washington from 
the Original Manuscript Sources, v. 27, p. 155, v. 32 pp 15 41 
v. 35, pp. 430-31 (1931-40).

7 Nixon v. Sampson, 3S9 F.Supp. 107, 141 (D .D.C. 1975).

8 See Exhibit A A , p. v ; Exhibit BB, p. vii.



7

Y an B^ ren’ Wllliam Henry Harrison, Polk, Lincoln, 
rant Garfield, Cleveland, Benjamin Harrison, McKinley 

and Wilson.3 Since the adoption of the National Archives 
Act m 1934 every former President has placed such rec­
ords as he removed from the White House in an officially 
designated library maintained by the National Archives 
and Records Service. These varying practices suggest 
not a uniform assumption that a former President owned 
whatever materials he could physically remove from the 

ntc House, but differing efforts to find suitable deposi­
tories for documents recognized to be public in nature.

. Even if tllG record ^voaled a pattern of Presidents act­
ing as if they owned such papers, selling or copyrighting 

em foi financial gam, that would not constitute the sort 
of practice deserving of precedential significance, for the 
instances of such conduct have been essentially surreptitious 
m nature. The public was not in the past aware whether, and 
even now the parties are in dispute as to the extent to 
which, former Presidents have been treating officially gen­
erated papers as their private property. The practice of 
some public officials of donating public papers back to the 
government, or to other institutions, in return for a tax 
deduction caused a public scandal of major proportion 
when it was first exposed in 1969 by the Wall Street Jour-
I-* ’ ° Both tlie 0̂  Congress, the recipient of these
donations” , and over a dozen alleged donors refused to 

disclose whether or which federal officials had engaged in 
such a practice. Appellant never publicly disclosed that 
he had used Ins Vice-Presidential papers in this manner, 
and the country only learned of it through a story in the 
Providence Journal on October 3, 1973. The Treasure De-

of thoTlouse0'C o m 'S >.ntial pibl‘irics hy “  Subcommittee
1st Sm,  pp 39 44 (1955) Gover" mc" t Options, 84th Cong.,

May 22, I960 ; 115 Cong. Rec. 20462-63 (1969).



8

partment employee responsible for that disclosure was dis­
missed; the use of those papers to pay virtually no income 
taxes in 1970 and 1971 was a subject of the subsequent 
House impeachment inquiry, led to criminal convictions 
of an appraiser and attorney involved, was subsequently 
disapproved as inconsistent with the Internal Revenue 
Code by the Treasury Department. Practices of the sort 
which have survived only when hidden from the scrutiny 
of public opinion are not the “ deeply embedded traditional 
ways of conducting- government” to be relied on in con­
struing the Constitution. Youngstoivn Sheet & Tube Co. v. 
Saivyer, 343 U.S. 579, 611 (1952).

As Judge Richey noted below, Folsom v. Marsh, 9 Fed. 
Cas. No. 4,901 (C.C.D. Mass. 1841), expressly noted that 
any rights of a former President to papers prepared or 
received by him were subservient to the rights and inter­
ests of the government, and Folsom thus supports the 
constitutionality of the Presidential Recordings and Mate­
rials Preservation Act. 389 F.Supp. at 139-140. Insofar 
as Justice Story’s opinion in Folsom concludes that a for­
mer President has a fungible property right, as against 
other individuals, in such papers, we believe Justice Story’s 
personal interest and involvement in the publication at 
issue in Folsom was so substantial as to vitiate any prece­
dential significance of that decision.

Folsom concerned the validity of a copyright of a multi­
volume collection of George Washington’s presidential and 
other papers, edited by Jared Sparks and published by 
Charles Folsom. In 1826 Sparks approached Justice Bush- 
rod Washington, the former President’s nephew who was 
in possession of many of the latter’s letters, etc., and sought 
his cooperation in assembling the proposed collection. In 
soliciting Justice Washington’s cooperation, Sparks turned 
for aid to Justice Story, whom lie had known since the



9

early lS20’s. In a letter of January 16, 1826, about bis 
plans for the project, Sparks advised Justice Washington 
“ For further information as to my purposes and qualifi­
cations, permit me . . .  to refer you to Judge Story, with 
whom I have conversed on this subject, and who manifests 
a lively interest in the plan of collecting into one body all 
the writings of General Washington” .11 On January 20, 
1S26, Justice Story wrote to Sparks:

I think your project of collecting the works of Wash­
ington a noble project and deserving of universal en­
couragement. I know not into whose hands the task 
could better have fallen. Your letter to Judge Wash­
ington is excellent both in matter and manner, and 
develops your plan in such a way as cannot but com­
mand approbation.12

On January 26, 1826, Sparks wrote a second letter, this 
one to Justice Washington and Chief Justice Marshall, 
which Story delivered on Sparks’ behalf.13 14 On February 
23, 1826, Justice Story reported to Sparks with regret that 
“Judge Washington does not incline to favor your proj­
ect.” u

When Washington remained unresponsive, Sparks again 
took up the matter with Justice Story, advising him of his 
determination to proceed anyway, explaining in a letter 
of March 4, 1826, that the publication might still be pos­
sible without Bushrod Washington’s aid. “All the impor­
tant materials may be obtained from other quarters, though

n H .B . Adams, The Life and Writings of Jared Sparks, v. I, p 
401 (1S93).

12 Id., pp. 401-02.

13 See id., pp. 404, 405.

14 Id., pp. 402-03.



10

with '‘Teat trouble. 'Washington’s public letters and papers 
are the property of the nation.” 15 After assembling a mas­
sive number of these papers, largely from oflieial tiles, 
Sparks again wrote to Justice "Washington, threatening to 
publish without his aid, but promising a share of the profits 
if he were granted access to the documents in Justice 
Washington’s possession.16 Eventually Sparks was per­
mitted to use these materials in return for an agreement 
that the resulting profits were to be divided evenly between 
Sparks, Justice Washington, and Chief Justice Marshall.17 *

Justice Story was substantially involved thereafter in 
the commercial aspects of the publication of President 
Washington’s papers. On June 1, 1827 he wrote to Sparks 
of his support for the project and suggested another source 
of profit. “ What do you mean to do as to England ? You 
ought, if possible, to secure some of the profits of an edi­
tion there. On this subject we must talk . . . . ” 16 Sparks’ 
diary for March 6, 1827, notes that after meeting with 
Justice Washington to discuss their contract he

passed half an hour with Judge Story. lie has taken 
an ardent interest in this work from the beginning and 
has assisted me much in bringing the matter to its 
present issue. He advises by all means to make pro­
vision for a sale in England— thinks many will sell and 
that a vigorous effort should be made to extend the 
circulation there.19

15 Id., p. 404.

10 Id., p. 409.

_ 17 “Articles of Agreement, March 7, 1S27” , in Manuscript Collec­
tion of Morristown, New Jersey, National Historical Park.

ls H .B . Adams, The Life and Writings of Jared Sparks, v. II 
p. 205 (1893).

19 Id., p. 8. Sparks and Story discussed the editing of the papers 
on January 20, 1827. Id., p. 3.



11

To promote advance orders for the forthcoming compila­
tion, Justice Story and Sparks cooperated in a series of 
letters from Sparks to Justice Story which described the 
project and were used to obtain press coverage of the 
letters. The letters appeared in the summer of 1S27 in the 
nation’s leading newspapers, including the front page of 
the National Intelligencer20 owned by the Supreme Court 
printer, and caused Justice Story “unmixed satisfaction.” 20 21

Justice Story’s relationship with Sparks and Folsom did 
not end with the publication of Washington’s papers. In 
1829 Story became a part-time professor of law at Har­
vard, where he continued his close friendship with Sparks, 
who also served on the faculty, and presumably remained 
in contact with Folsom, who was Harvard’s printer.22 
Story, Sparks and Folsom still held these positions in 1841 
when Justice Story decided Folsom v. Marsh. The decision 
in that case was based on a factual record developed by one 
George Hillard as Master in Chancery j Hillard was a paid 
contributor at the time to a series edited by Sparks, the 
Library of American Biography.23

Under these circumstances the Court should not attribute 
to Folsom v. Marsh the precedential significance that would

20 The letters are set out in id., pp. 236-264. After their publica­
tion Justice Washington wrote to Sparks “Your letters to Mr. Jus­
tice Story have excited but one sentiment everywhere so far as I 
can understand, and that, the most favorable to your undertaking.” 
Id., p. 266. The letters were later reprinted in a pamphlet winch 
was used as a prospectus. Id., p. 236.

21 Id,, p. 265.

22 See A. Johnson and D. Malone, Dictionary of American Bi­
ography, v. I l l ,  p. 493, v. IX , pp. 106, 431-33 (1930).

•3 G. Hillard, Captain John Smith (c. 1840). Hillard was a con­
tributor to the North American Review edited by Sparks, as was 
Story. A. Johnson and D. Malone, Dictionary of American B i­
ography, v. V , p. 50 (1930) ; H .B. Adams, Life and Works of 
Jared Sparks, v. I, p. 311 (1893).



12

be due the decision of a judge who, unlike Justice Story, 
was not an active instigator and proponent of the work 
whose copyright was challenged, was not a personal friend 
of all the parties in interest on one side, and did not have 
extensive personal knowledge of and participation in the 
events giving rise to publication.

Since the ownership asserted by appellant is not acquired 
in any of the manners, such as purchase or bequest, known 
to the common law, there seems no intelligible limit on 
what he owns or could acquire as President. Appellant 
asserts his property includes everything in the White 
House Office, regardless of what it is or how it got there,!24 
and appears unwilling to accept ownership limited to docu­
ments he wrote, documents he signed, documents he read, 
documents he knew existed, documents prepared in the 
White House, or documents involving privileged material 
Sustaining such an assertion would be an invitation to a 
President to direct that documents be transferred to the 
White House Office in order to convert them into his per­
sonal property. Even were the scope of ownership more 
restricted, a President could direct government employees 
to create documents and other materials for his personal 
use and ultimate removal from the White House. The for­
mer Special Prosecutor has suggested that the tapes in 
this case were made for just such personal gain by appel­
lant.”  Members of Congress have upon occasion copy 
righted materials, or charged fees for giving speeches 
written by congressional employees on office time.

The principle of Ownership asserted by appellant is not 
limited to former Presidents. Appellant earlier claimed 
similar ownership of his Vice Presidential papers, and here * *

-4 Brief for Appellant, pp. 25-31.

L. Jaworski, The Right and The Power, p. 272 (1976)



13

suggests officially prepared documents are also the per­
sonal property of congressmen and members of this Court.26 
Recently government documents have been removed for 
Personal use, presumably under a similar claim, by White 
House aides and cabinet and sub-cabinet officials.27 In 
eailiei yeais similar assertions of ownership of officially 
piepared papers or their contents have been made, gen­
erally unsuccessfully, by a Vice-Admiral,28 * a Senator,23 
a court reporter of written decisions,30 a sailor who tra­
veled with Commodore Perry to Japan,31 32 and an assistant 
to the Secietary of the Interior.3- Recognition of such 
claims would seriously impair the completeness and in­
tegrity of government files, and would ultimately embroil 
the courts in disputes as to whether, for example, a memo­
randum is "owned” by the author, the intended recipient, 
other readers, the person or persons discussed, or any of 
the supervisors of these individuals.

I he public interest requires that a former President or 
other departing officials not be free to remove at will files 
kept in or for their offices. The history of this intermit­
tent practice reveals the extent to which it can impede the 
operations of the national government. Among the docu­
ments which thus disappeared with the outgoing officials,

Report of the Joint Committee on Internal Revenue Taxation, 
Examination of President Nixon’s Tax Returns for 1969-79 n 1 
(1974) ; Brief for Appellant, p. 92.

‘ 7 Brief of Appellees The Reporters Committee for Freedom of 
the Press, p. 38, n. 30.

-!> Public Affairs Associates v. Kickover, 369 U.S. I l l  (1962).

3 9 5 * 9 4 7  ^  F '2d 701, 708 (D 'C' Cir' ) cert dcnied

20 Wheaton v. Peters, 8 Peek. (33 U.S.) 591, 660 (1834).

31 Heine v. Appleton, 11 F.Cas. 1031 (C .C.D.N.Y. 1857).

32 Sawyer v. Crowell, 46 F.Supp. 471 (S.D .N .Y. 1942) aff’d 149 
F.2d 497 (2d Cir. 1944).

$
feu



14

and whose absence led to serious problems, were tbe offi­
cial copy of tbe Treaty of Versailles,33 tbe sole copy of a 
State Department cable regarding assurances to France 
during tbe 1956 Suez Crisis,34 and tbe only copy of a memo­
randum from Secretary of State Dulles assuring the 
Israelis of aid if the Egyptians blockaded tbe straits of 
Tiran.35 American officials only learned of the latter docu­
ment when it was relied on by the Israeli Foreign Minister 
during negotiations with President Johnson on tbe eve of 
tbe 1967 Arab-Israeli war. Even where incumbent officials 
know documents exist, their predecessors are not always 
willing to supply them; thus appellant refused to permit 
examination of any relevant presidential papers by Presi­
dent Ford’s Commission on CIA Activities within tbe 
United States.36 These problems are inevitable because, 
once they leave office, the concerns of former Presidents 
and other former officials are not solely, or primarily, the 
effective conduct of government affairs by their succes­
sors, but foreseeably and not improperly include protect­
ing their standing in history and advancing the political 
and financial interests of themselves and their party.

33 B. Murray, “How Harding Saved The Versailles Treaty”’, 
American Heritage, pp. 66-67 (December, 1968).

34 “ Governing in the Dark” , Washington Star, January 16, 1977.

36 Id.
36 Report of the Commission on CIA Activities Within the 

United States, p. 172 (1975).

ii m il mum-



15

II.

The Presidential Recordings and Materials Preserve 
tion Act Is Constitutional.

The government’s ownership of the materials conveyed 
to the Administrator by the challenged statute is, we be­
lieve, dispositive of the other issues raised by appellant. 
Such ownership necessarily carries with it the right of offi­
cials of the executive branch to hold, examine, and use 
the government property in question, and appellant could 
have no privilege exercisable against the lawful owners 
of the disputed papers and tapes. To the extent that an 
incumbent President concludes that public disclosure of 
these or any other documents is consistent with or required 
in the national interest, his decision cannot be reviewed 
or countermanded by any of his predecessors. Appellant, 
having co-mingled his own property, personal and political" 
with that of the government cannot reasonably object if 
responsible government officials, at the behest of Congress, 
seek to examine the resulting admixture to extract what 
is public property. The Presidential Recordings and 
Materials Preservation Act does not single out appellant’s 
property, alone among all Presidential papers, for expro­
priation^ the property interest appellant asserts was 
neither lus nor that of bis predecessors or successors. To 
the extent that the Act guarantees appellant access to and 
copies of all the disputed papers it confers upon him le«-al 
lights which he did not previously enjoy.

That documents produced or received bv officials h, 
the executive or, for that matter, legislative or judicial 
branches, are not their personal property does not mean 
^ at the custody and secrecy of such materials cannot be 
controlled, or that public access must bo granted prema-

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I n  t h e

Supreme ©curt nf tlip lilniteit Sta tes
October T eem, 1976 

. No. 75-1605

R ichard Nixon,

v.

Appellant,

A dministrator of General Services, et al.,

Appellees.

o n  a p p e a l  f r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t

FOR THE DISTRICT OF COLUMBIA

i

MOTION FOR LEAVE TO FILE AND BRIEF 
AMICUS CURIAE OF PUBLIC AFFAIRS 

ASSOCIATES, INC.

E ric Schnappee 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Amicus Curiae

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