Nixon v. Administrator of General Services

Decision Date01 April 1976
Docket NumberCiv. A. No. 74-1852.
PartiesRichard M. NIXON, Plaintiff, v. ADMINISTRATOR OF GENERAL SERVICES et al., Defendants, and The Reporters Committee For Freedom of the Press, et al., Intervenor-Defendants.
CourtU.S. District Court — District of Columbia






Herbert J. Miller, Jr., Raymond G. Larroca, Martin D. Minsker, William H. Jeffress, Jr., R. Stan Mortenson, Washington, D. C., for plaintiff.

Rex E. Lee, Asst. Atty. Gen., Irwin Goldbloom, Deputy Asst. Atty. Gen., David J. Anderson, Jeffrey F. Axelrad, John T. Boese, Dept. of Justice, Washington, D. C., for defendants.

Robert E. Herzstein, Andrew S. Krulwich, Mark J. Spooner, Simon Lazarus, III, Peter T. Grossi, Jr., Leonard B. Simon, Washington, D. C., for Reporters Committee for Freedom of the Press, and others.

William A. Dobrovir, Andra N. Oakes, Washington, D. C., for Jack Anderson.

Leon Friedman, Hempstead, N. Y., and John H. F. Shattuck, Melvin L. Wulf, American Civil Liberties Union, New York City, for Lillian Hellman, and others.


In this action, plaintiff Richard M. Nixon has challenged the constitutionality of Title I of the Presidential Recordings and Materials Preservation Act. The Act directs the Administrator of General Services to take custody of Mr. Nixon's presidential papers and tape recordings, and to promulgate regulations that would provide for the orderly processing of such materials for the purpose of returning to Mr. Nixon such of them as are personal and private in nature, and of determining the terms and conditions upon which public access may eventually be had to those remaining in the Government's possession. In designing such regulations, the Administrator must consider the need to protect the constitutional rights of plaintiff and other individuals against infringement by the processing itself or, ultimately, by public access to the materials retained. Title II of the Act establishes a Commission to study the final disposition of the records of federal officials generally, and to report its recommendations to Congress. The court concludes that there is no constitutional infirmity in the Act on its face requiring its enforcement to be enjoined.

Scope of Inquiry

The court, responding to its duty to avoid constitutional questions whenever possible, considers only those questions of the Act's constitutional validity that are immediately ripe for resolution. As no regulations have yet taken effect, and as such regulations once effective are explicitly made subject to judicial review, the court considers only the injury to constitutionally protected interests of Mr. Nixon that is allegedly worked by the taking of his presidential materials into custody and their screening by government archivists. Op. at 340-343 infra.

Claims Relating to the Separation of Powers

The court finds nothing in the separation of powers doctrine to support the contention that the legislature may not pass a statute in any way touching upon the prerogatives of the Executive. The only genuine separation of powers claim is that the Act might invade the presidential privilege that attaches to the small fraction of the materials that genuinely implicate presidential confidentiality. Although the court thinks it doubtful that a former President, rather than the incumbent, may assert such privilege, at the very least such a claim is entitled to relatively less weight in the balance of competing considerations. And the infringement upon presidential confidentiality caused by screening by trained and discreet government archivists, who have been employed to perform identical tasks for the materials of every President since Herbert Hoover, is very slight. The court finds, on the other hand, that Congress had ample reason to mandate screening by government archivists rather than control by Mr. Nixon, who lacks their expertise and disinterestedness. The two most important of the interests served by preservation and responsible treatment of presidential materials are (1) maintaining a complete and accurate historical record and (2) assuring the availability of the materials potentially needed for continuity in executive policymaking. Other interests served by the Act include informing the public about the Watergate matters and ensuring the availability of materials that may be relevant to legislative investigations or judicial proceedings. Because of the manner in which personal materials are intermingled with official ones, comprehensive screening represents the only feasible manner of protecting these important interests. The court finds that the slight inroad on presidential confidentiality caused by such screening is outweighed by the need to further these important legislative objectives. Op. at 340-357 infra.

Claims Relating to Privacy

It appears from the record that plaintiff can validly claim a privacy interest in only a small fraction of the materials. Yet due to the historical practice of de facto control by Presidents of presidential materials, the court finds that regardless of where ownership of the materials lies — a question that need not be reached — plaintiff has a reasonable expectation of privacy in these materials, an interest that is infringed even by mere screening by government archivists conducted under legislation with retroactive application. In light of the intermingled nature of the materials, the court finds such infringement of privacy interests to be an inescapable concomitant of any attempt to serve the important legislative objectives underlying the Act. The private materials are far out-numbered by those that are non-private and related to those objectives. The court further finds that any invasion of privacy caused merely by archival processing — rather than by public access, which need not yet be considered — is not wide-ranging. In addition, less justification is needed when, as may be the case here, any invasion of privacy constituting a search and seizure does not serve law enforcement objectives. In light of these factors and the unavailability of less intrusive means of furthering the important legislative ends, the court concludes that any intrusion upon plaintiff's privacy interests has adequate justification. Op. at 357-367 infra.

Freedom of Speech and Association

Plaintiff's First Amendment claim is predicated upon the assumption that all materials — including those implicating privacy in political association — will be open to public access. The court finds no basis for that assumption. Rather, reaching only that infringement of First Amendment interests caused by screening by government archivists, the court finds any injury to protected interests arising from a confidential review process to be insubstantial. Op. at 367-369 infra.

Equal Protection

The court finds that any difference in treatment between plaintiff and other Presidents is adequately justified. As respects immediate past Presidents, their papers had already been deposited in presidential libraries where, on the whole, their availability to promote important governmental interests was assured. As respects current and future Presidents, legislating with respect to them risked disrupting current executive policymaking, and would be unwise before the Commission study of the sensitive and complex problems involved in regulating the records of federal officials had been completed. Only plaintiff has finished his service as President but has not yet established a presidential library. Prompt congressional action was reasonably deemed necessary to assure that the materials would remain preserved, and to begin the lengthy process of reviewing and classifying them. Finally, Congress could legitimately consider plaintiff to be less likely than his immediate predecessors or successors to dispose of the materials responsibly. Op. at 369-371 infra.

Bill of Pains and Penalties

There is, in the court's view, no evidence in the legislative record to support the claim that the Act was designed to impose, or constitutes, punishment within the meaning of the Bill of Attainder Clause. The court finds there are other legislative objectives served by the Act which Congress could legitimately — and did — consider. Rather than possessing traditional indicia of a punitive enactment, the Act includes provisions that indicate a concern for plaintiff's interests, provisions that are wholly inconsistent with the hypothesis of punitive intent. Op. at 371-374 infra.

Before McGOWAN and TAMM, Circuit Judges, and ROBINSON, District Judge.


McGOWAN, Circuit Judge:

On December 20, 1974, plaintiff filed this suit, alleging that the Presidential Recordings and Materials Preservation Act, Pub.L. 93-526 (Dec. 19, 1974), 88 Stat. 1695, 44 U.S.C.A. §§ 2107 note, 3315-24 (Supp. I, Feb. 1975), hereinafter "the Act" is unconstitutional and seeking injunctive and declaratory relief. Jurisdiction was premised on section 105(a) of the Act, which grants the United States District Court for the District of Columbia exclusive jurisdiction to hear challenges to the constitutional validity of the Act. A three-judge district court was, on plaintiff's motion, eventually convened pursuant to 28 U.S.C. §§ 2282, 2284 (1970), as the action sought on constitutional grounds to enjoin the enforcement of a federal statute. Plaintiff alleges that the Act infringes the powers of the President; invades his presidential privilege; infringes his constitutional rights of privacy, free speech, and free association; is an unconstitutional search and seizure; denies him equal protection of the laws; and is an unconstitutional bill of pains and penalties. For the reasons appearing below, we hold that there is no constitutional defect apparent from the face of the Act requiring us to enjoin its operation.


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