MEMORANDUM OPINION OF UNITED STATES
DISTRICT JUDGE CHARLES R. RICHEY
James W. McCord, Jr., the plaintiff in this action, was arrested on June 17, 1972 in the course of the now-infamous break-in at the offices of the Democratic National Committee (DNC) in the Watergate Office Building in Washington, D.C. McCord was convicted on January 30, 1973 for various offenses arising out of the break-in.
The conviction was affirmed in full by the United States Court of Appeals for the District of Columbia on December 12, 1974.
The Supreme Court has denied McCord's petition for writ of certiorari.
Also as a result of the break-in, the DNC filed, on June 20, 1972, a civil suit for damages against McCord, others involved in the break-in, and the Committee to Re-elect the President [Richard M. Nixon].
In the course of that suit, McCord filed a cross-claim against the Committee to Re-Elect the President and several officials and agents of those organizations, seeking money damages because they had allegedly caused harm to McCord's reputation and had caused him to suffer severe physical, mental, and emotional strain. While the original suit has since reached settlement, McCord's cross-claim remains before this Court.
The instant action was filed on November 15, 1974. In the first count of his complaint, plaintiff challenges the validity of a certain agreement entered into on September 7, 1974, between former President Nixon and Arthur F. Sampson, Administrator of the General Services Administration, on behalf of the United States Government. The agreement pertained to control and ownership of various papers, and tape recordings made or retained in the White House during Mr. Nixon's Presidency.
Plaintiff McCord alleges that the transfer of the tape recordings outside of the District of Columbia, pursuant to the agreement, would injure him by hindering his "legitimate defense and appeal" in the criminal proceedings against him and prejudicing the pursuit of his cross-claim in the civil suit before this Court noted above.
Plaintiff accordingly requests that this Court declare the agreement null and void, enjoin defendant Sampson and his servants from carrying out the terms of the agreement, and compel defendant William Simon, Secretary of the Treasury, to order the Secret Service to maintain custody of and preserve the tapes in question.
In the second count of his complaint, plaintiff challenges the validity of the pardon granted to Mr. Nixon on September 7, 1974, by defendant President Gerald R. Ford for any and all unspecified crimes which Nixon committed or may have committed during the entire period of his Presidency.
Plaintiff asserts that Mr. Nixon's acceptance of President Ford's pardon amounts to an admission of guilt to unspecified, Watergate-related crimes. Such an admission by the alleged chief co-conspirator in the Watergate offenses will, McCord maintains, taint him with a presumption that he, too, is guilty of such crimes and therefore prejudice his attempts to obtain relief from his criminal conviction. Plaintiff also asserts a right under the Ninth Amendment to the Constitution of the United States to vindicate "the right of the people to be dealt with fairly by their elected or appointed officials and . . . to expect that wrongdoing by persons in public positions of trust will be exposed and that justice will be done . . ."
Accordingly, plaintiff seeks from this Court a declaration that the pardon is null and void.
The case is currently before the Court on defendants' motion to dismiss and plaintiff's opposition thereto. This Court grants defendants' motion because plaintiff has not, with respect to his alleged need for protection in collateral court proceedings, presented a justiciable case or controversy to this Court; and because plaintiff does not have standing to maintain his challenge of the pardon as a "private attorney general" seeking to protect the public's interest.
A. WITH RESPECT TO HIS ALLEGED NEED FOR PROTECTION IN COLLATERAL COURT PROCEEDINGS, PLAINTIFF HAS NOT PRESENTED A JUSTICIABLE CASE OR CONTROVERSY.
Plaintiff raises constitutional claims of potentially great import in his complaint seeking a determination that the tapes and papers agreement and the Presidential pardon are invalid. But, as the Supreme Court has remonstrated, even constitutional questions must be presented "in the context of a specific live grievance."
The Constitution requires nothing less in extending the federal courts' judicial power only to specified cases and controversies.
As Chief Justice Hughes framed the issue:
"A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical character . . . . The controversy must be definite and concrete . . . . It must be a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."