Nixon v. Sampson

• Decision Date: 31 January 1975
• Docket Number: 74-1533,Civ. A. No. 74-1518,and 74-1551.
• Parties: Richard M. NIXON, Plaintiff, v. Arthur F. SAMPSON et al., Defendants, Henry S. Ruth, Special Prosecutor, Intervenor, Jack Anderson, Intervenor. The REPORTERS COMMITTEE FOR FREEDOM OF the PRESS et al., Plaintiffs, v. Arthur F. SAMPSON et al., Defendants, Richard M. Nixon, Intervenor. Lillian HELLMAN et al., Plaintiffs, v. Arthur F. SAMPSON et al., Defendants, Sen. Sam J. Ervin, Jr., et al., Amici Curiae; Congresswoman Elizabeth Holtzman, Amicus Curiae.
• Court: U.S. District Court — District of Columbia

389 F. Supp. 107

Richard M. NIXON, Plaintiff, v. Arthur F. SAMPSON et al., Defendants, Henry S. Ruth, Special Prosecutor, Intervenor, Jack Anderson, Intervenor.

The REPORTERS COMMITTEE FOR FREEDOM OF the PRESS et al., Plaintiffs, v. Arthur F. SAMPSON et al., Defendants, Richard M. Nixon, Intervenor.

Lillian HELLMAN et al., Plaintiffs, v. Arthur F. SAMPSON et al., Defendants,

Sen. Sam J. Ervin, Jr., et al., Amici Curiae;

Congresswoman Elizabeth Holtzman, Amicus Curiae.

Civ. A. Nos. 74-1518, 74-1533, and 74-1551.

United States District Court, District of Columbia.

January 31, 1975.

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Herbert J. Miller, Jr., R. Stan Mortenson, Raymond G. Larroca, William H. Jeffress, Jr., Miller, Cassidy, Larroca & Lewin, Washington, D. C., for Richard M. Nixon.

Peter M. Kreindler, Counsel to the Sp. Prosecutor, Richard Davis; Kenneth S. Geller, Asst. Sp. Prosecutors, Watergate Sp. Prosecution Force, Washington, D. C., for the Special Prosecutor.

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

Carla A. Hills, Asst. Atty. Gen., Irving Jaffe, Deputy Asst. Atty. Gen., Irwin Goldbloom, Acting Deputy Asst. Atty. Gen., Jeffrey Axelrad, Dept. of Justice, Earl J. Silbert, U. S. Atty., Washington, D. C., for Arthur F. Sampson, et al.

Robert E. Herzstein, Mark J. Spooner, Andrew S. Krulwich, Jonathan D. Schiller, Leonard Simon, Arnold & Porter, Washington, D. C., for The Reporters Committee for Freedom of the Press et al.; David Bonderman, Lawrence C. Maisel, Thomas B. Wilner, Ivor C. Armistead, III, Washington, D. C., Peter T. Grossi, Jr., New Haven, Conn., of counsel.

Leon Friedman, Hofstra University School of Law, Hempstead, N. Y., John H. F. Shattuck, Melvin L. Wulf, American Civil Liberties Union, Telford Taylor, Columbia University Law School, New York City, for Lillian Hellman et al.

Thaddeus Holt, Breed, Abbott & Morgan, and William Sudow, Counsel, Subcommittee on Printing of the House Administration Committee, Washington, D. C., for amici curiae Senator Sam J. Ervin, Jr., et al.

Larry P. Ellsworth, Alan B. Morrison, Washington, D. C., for amicus curiae Congresswoman Elizabeth Holtzman.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

I. INTRODUCTION

These consolidated cases present a unique controversy, the heart of which concerns the ownership of and the right to assert or waive privilege with respect to the "Presidential materials and tape-recorded conversations"¹ of the Nixon Administration.

The suits comprise the following actions: a suit by former President Richard M. Nixon (C.A. No. 74-1518) for injunctive relief and a writ of mandamus against Arthur F. Sampson, the Administrator of General Services; Philip W. Buchen, counsel to President Gerald R. Ford; and H. Stuart Knight, Director of the Secret Service, as well as the Special Prosecutor, an intervenor-defendant, who has counterclaimed against Mr. Nixon for declaratory relief; a suit by The Reporters Committee for Freedom of the Press, et al. (C.A. No. 74-1533) for declaratory and injunctive relief against Messrs. Sampson, Buchen, and Knight; a suit by Lillian Hellman, et al. (C.A. No. 74-1551) for declaratory and injunctive relief against Mr. Richard M. Nixon and Messrs. Sampson, Buchen, and Knight; and a suit by Mr. Jack Anderson, an intervenor-plaintiff in C.A. No. 74-1518, for declaratory and injunctive relief against Mr. Nixon, by cross-claim, and against Messrs. Sampson, Buchen, and Knight for declaratory and injunctive relief.

These actions are before the Court on the following motions:² plaintiff Nixon's motion for a preliminary injunction; plaintiff Nixon's motions to dismiss the Hellman, et al., and Anderson suits for lack of standing; the government defendant's motion to dismiss all the actions, except that by the Special Prosecutor, on the ground that they are moot; and on motions for summary judgment or partial summary judgment by plaintiffs Anderson, The Reporters Committee for Freedom of the Press, et al., Lillian Hellman, et al., and the Special Prosecutor, on his counterclaim for declaratory relief, and as the intervenor-defendant in C.A. 74-1518.

II. BACKGROUND³

On August 9, 1974, President Richard M. Nixon resigned from Office and was succeeded by Gerald R. Ford.⁴ Shortly thereafter, on August 15, 1974, members of the Office of the Special Prosecutor⁵ informed Philip W. Buchen,⁶ counsel to President Ford, and J. Fred Buzhardt, counsel to former President Nixon, that the Special Prosecutor had a continuing interest in the Presidential materials and tape-recorded conversations of the Nixon Administration which are housed in the White House, the Executive Office Building, and elsewhere, that "might be relevant to investigations and prosecutions within the jurisdiction of the Special Prosecutor."⁷ Assurances were given to the Special Prosecutor that the files of former President Nixon and his staff members would not be removed from the White House or the Executive Office Building without the Special Prosecutor's approval.⁸ On August 22, 1974, Mr. Buchen requested an opinion from Attorney General William Saxbe on the issues of the ownership of the Presidential materials and tape-recorded conversations of the Nixon Administration and the responsibilities of the Ford Administration with respect to subpoenas or other court orders requiring the production of these materials and/or tape-recorded conversations.⁹ On August 29, 1974, Mr. Buchen received a preliminary opinion from Deputy Attorney General Laurence Silberman that the Presidential materials and tape-recorded conversations were to be regarded as belonging to the former President, but that the government had a right to use the materials for ongoing governmental purposes and would also have to respond to subpoenas or court orders relating to the materials and tape-recorded conversations.¹⁰ Thereafter, Mr. Buchen met with Mr. William Casselman, counsel to President Ford, and Mr. Benton L. Becker, a private attorney, concerning the disposition of the Presidential materials of the Nixon Administration.¹¹ On or about August 30, 1974, Mr. Buchen contacted Mr. Herbert J. Miller, attorney for former President Nixon, and raised the subject of the disposition of the materials.¹² Further discussions were held on September 3 and September 5, 1974, between Mr. Buchen, Mr. Miller and Mr. Becker.¹³ At the September 5 meeting, Mr. Miller presented a draft depository agreement for consideration.¹⁴ After some changes, it was finalized and signed by the former President on September 6, 1974.¹⁵ On the same day, a written opinion of Attorney General Saxbe was released.¹⁶ At or about 6:15 or 6:30 p. m. on September 7, 1974, Mr. Arthur F. Sampson, Administrator of the General Services Administration, met with Messrs. Casselman and Becker, who presented him with the depository agreement signed by former President Nixon.¹⁷ At approximately 7:10 p.m., Mr. Sampson signed the agreement,¹⁸ (hereinafter, the "Nixon-Sampson Agreement").

On September 10, 1974, Jack Anderson, a well-known newspaper columnist, filed an application with the General Services Administration, pursuant to the Freedom of Information Act,¹⁹ seeking access to the materials encompassed by the Nixon-Sampson Agreement. On October 2, 1974, Lillian Hellman and other members of the Committee for Public Justice filed a similar application, but restricted it to the tape recordings of conversations in the White House and Executive Office Building. Both applications were denied on the grounds that:

. . . (1) this agency does not presently have the requested materials in its possession; (2) deposited papers and other historical materials are not "records" within the purview of the Freedom of Information Act and, therefore, are not subject to its provisions; and (3) assuming, for the sake of argument, that the deposited papers and other historical materials are subject to the provisions of the Act, they are exempt from disclosure under the third exception to the mandatory public disclosure; i.e. ". . . matters that are . . . specifically exempted from disclosure by statute . . ." 5 U.S.C. 552(b)(3)). The pertinent statute is the Presidential Libraries Act of 1955, which provides that the Administrator of the General Services may accept for deposit on behalf of the United States papers and/or other historical materials which may be subject to restrictions upon access that have been accepted by the Administrator (44 U.S. 2107-2108).²⁰

Thereafter, the applicants exhausted their administrative remedies.²¹

On October 17, 1974, former President Nixon brought suit against Arthur F. Sampson, Philip W. Buchen, and H. Stuart Knight,²² seeking a temporary restraining order and a preliminary injunction to compel compliance with the Nixon-Sampson Agreement and preventing unauthorized access to the materials and tape-recorded conversation. On October 21, 1974, Jack Anderson, whose application for access to the materials had been denied on the basis, inter alia, of the Nixon-Sampson Agreement, moved to intervene, seeking temporary and preliminary injunctive relief to prevent its implementation. On the same day, the Special Prosecutor also moved to intervene in order to protect the interests of his office in the materials and tape-recorded conversations. Also on October 21, The Reporters Committee for Freedom of the Press, et al., filed suit against the government seeking relief similar to that sought by plaintiff-intervenor Anderson in C.A. 74-1518, as well as consolidation with the Nixon suit. After granting the Reporters' motion to consolidate, the Court held a hearing. On October 21, the Court, in order to preserve the status quo, issued a temporary restraining order which essentially prohibited the implementation of the Nixon-Sampson Agreement and set forth the access procedures to the materials...