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December 13, 1991



The opinion of the court was delivered by: JOHN GARRETT PENN

The plaintiff, a former President of the United States filed this action "for just compensation under the Presidential Recordings and Materials Act and for deprivation of constitutional rights of privacy, speech and association." In his complaint, he states that he seeks "just compensation for (i) defendant's depriving plaintiff of his materials, (ii) the costs incurred in connection with the statutory and regulatory procedures for determining title, ownership, custody, possession, control, and accessibility of plaintiff's materials, and (iii) defendant's depriving plaintiff of his constitutional rights of privacy, speech, and association." This case is filed pursuant to Section 105 of the Presidential Recordings and Materials Preservation Act (Act), 44 U.S.C. § 2111, Note.

 Plaintiff was elected President of the United States in November 1968 and assumed that office in January 1969. He was reelected President in November 1972 and began his second term on January 20, 1973. He resigned from that office on August 9, 1974.

 Plaintiff states that "during his terms as President, plaintiff and members of his staff maintained and generated, within the White House and other presidential offices, many of plaintiff's personal materials (including family and law practice records, memorabilia, correspondence, materials related to his personal and political activities, and other items), and a substantial amount of material pertaining to plaintiff's position as president (including documents, papers, tapes, photographs, notes, and other items) all of which shall hereinafter be referred to as plaintiff's 'materials.'" Complaint par. 6. The plaintiff states that "as was the case with every President of the United States preceding and succeeding him through January 19, 1981, plaintiff was the owner and lawful custodian of his materials." Complaint par. 7. He notes that "on September 3, 1974, the Attorney General of the United States rendered an opinion that plaintiff, like all other former presidents, was the owner of his materials." Id. He further contends that by passage of the Presidential Records Act of 1978, 44 U.S.C. §§ 2201 - 2207, Congress recognized that the materials of those Presidents whose terms in office were before January 20, 1981, were owned by those Presidents. He complains that based upon the Act, which was enacted on December 19, 1974, the defendant has retained custody and control of his materials and has deprived him of its exclusive use, enjoyment and disposition and that this action was undertaken by the defendant "without just compensation." He notes that as the result of the regulations promulgated pursuant to the Act, defendants have exposed and made available to various persons plaintiff's material against plaintiff's will, and that all of the above activities by the defendant deprived him of his constitutional rights.

 The issue in this case is whether or not the materials, constitute the private property of the plaintiff and whether, under the Act, the defendant has deprived the plaintiff of that private property without just compensation.

 The case is now before the Court on cross motions for summary judgment filed by the parties. *fn1"


 The plaintiff contends that the property that is the subject of this case are files covering a period of five and one-half years and tape recordings of plaintiff's activities spanning approximately two and one-half years of his life. The plaintiff does not claim ownership of institutional government files such as those of the National Security Council, the Office of Emergency Preparedness or other such divisions of the President's Executive Office.

 Very briefly, the plaintiff alleges that when he assumed the Office of President, he discovered that his predecessor, Lyndon B. Johnson, had installed an elaborate taping system which was manually operated and which included microphones on telephones in the White House, Camp David, and the President's Offices in Johnson City and Austin, Texas. Although the plaintiff had determined that his activities at the White House would be the best chronicled in history, he nevertheless ordered the taping system removed. He chose instead to rely on his staff to prepare memoranda of every major meeting and event. The plaintiff found over a period of time that this alternative method proved cumbersome and ineffective and by February 1971, the plaintiff instructed his staff to reinstall a taping system. Rather than a manual system which would have depended upon the plaintiff arbitrarily selecting among conversations to record, the plaintiff chose a voice - activated system. He contends that as a result, from February 1971 until April 1973, virtually every conversation which occurred in the President's Offices in the White House, the Executive Office Building, the Cabinet Room, or on the telephones at Camp David and in the Lincoln Sitting Room was recorded, regardless of the persons involved or the subjects discussed. He notes that:

 It was my practice to discuss with my aides, other officials of government, members of Congress, representatives of different organizations, and private citizens, their opinions on such matters as the preparation of legislation, the signing or vetoing of enrolled bills, and even the commencement, continuation or termination of military action . . . Such discussions permitted me to explore the complete range of thoughts, opinions and options. For example, I would be able to elicit from my aides, Cabinet members, Congressmen and Senators, and others their feelings concerning not only the wisdom of a particular course of action, but their blunt assessments of possible ramifications upon foreign or domestic policy, as well as potential political effects.

 App. 9. The plaintiff went on to explain:

 On occasion, for example, I would meet with a member of Congress who I counted also as a close personal friend. During such a meeting we might discuss matters pending before Congress, political matters of interest to us both, or personal matters having to do with our families, our respective interests in business, or any other thing that was on our minds.

 App. 15. He stated:

 It was also my practice in my role as head of my political party to engage in extensive and frequent discussions with members of my staff, members of Congress, other officials of government, governors and state officials and personal friends and associates concerning a multitude of political matters. . . . Such discussions included, for example, whether I should support certain candidates for elected office and, if so, what form that support should take. In these discussions purely personal matters were often inextricably intermixed with political matters, and it would be virtually impossible to separate the various combinations of views and opinions expressed in them.

 App. 11.

 The plaintiff contends that the recorded conversations seized under the Act embody virtually every aspect of his daily life:

 From his concerned call to a missing congressman's wife, to his legislative strategy sessions with his staff; from his consideration of foreign policy initiatives, to his planning of weekend activities at Camp David; from his political brainstorming with party officials, to his telephone calls of condolences to families of prisoners of war. Every attitude, emotion, and privately expressed thought, every unguarded personal reference, and every confidential exchange of ideas have been captured on the recordings.

 Plaintiff's Brief at 7.

 The plaintiff notes that at the time he decided to record his conversations, he was aware that President Johnson had taken his tapes with him upon leaving office and "had treated them, along with all other White House files, as his private property." He notes that President Johnson had sent word to him that the tapes had been invaluable in preparing his memoirs and he contends that he had "an entirely reasonable expectation . . . that his recordings would similarly be exclusively his to dispose of or use as he deemed appropriate."


 The plaintiff resigned the Presidency on August 9, 1974, and instructed his staff to have his files shipped to California. The Ford administration, in an attempt to clarify the legal status of the property, requested the Attorney General's opinion on the matter. An opinion from the Attorney General indicated that the former President owned the materials. The Attorney General did note a caveat that certain documents may be needed for continued use or be subject to national security protections. He further indicated that those interests could be protected "in full conformity with the theory of ownership on the part of the ex-president." Due to the demands by the Watergate Special Prosecutor, the Ford administration refused to release plaintiff's materials until the Special Prosecutor was assured access to those items which might have been important to his investigations. Then on September 6, 1974, the plaintiff signed an agreement with the Administrator of General Services, Mr. Sampson; this agreement is often referred to as the Nixon - Sampson Agreement. App. 52. The agreement provided in substance that the materials would be deposited with the Government under a joint control arrangement in a California facility owned by the Government, that the plaintiff would retain all legal and equitable title and ownership rights to the property, that the tapes would be destroyed upon plaintiff's death or ten years from the date of the agreement whichever occurred first and that access to the materials would occur only with the plaintiff's consent or through judicial process. When the Ford administration did not implement the agreement, the plaintiff brought suit in this court for specific enforcement. See Nixon v. Sampson, 437 F. Supp. 655 (D.D.C. 1977), rev'd, 591 F.2d 944 (D.C. Cir. 1978). It was while the above case was pending that Congress enacted the Act. See Appendix.


 Before discussing the merits of this case, it is helpful to briefly review the history ...

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