Nixon v. Administrator of General Services/Concurrence-dissent White

MR. JUSTICE WHITE, concurring in part and concurring in the judgment.

I concur in the judgment and, except for [433 U.S. 425#468 433 U.S. 462] (1965) (WHITE, J., dissenting). I also append the following observations with respect to one of the many issues in this case.

It is conceded by all concerned that a very small portion of the vast collection of Presidential materials now in possession of the Administrator consists of purely private materials, such as diaries, recordings of family conversations, private correspondence — "personal property of an kind not involving the actual transaction of government business." Tr. of Oral Arg. 55. It is also conceded by the federal and other appellees that these private materials, once identified, must be returned to Mr. Nixon. Id. at 38-40, 57-59. The Court now declares that

"the Government [without awaiting a court order] should now promptly disclaim any interest in materials conceded to be appellant's purely private communications and deliver them to him."

Ante at [433 U.S. 425#459 433 U.S. 459] n. 22. I agree that the separation and return of these materials should proceed without delay. Furthermore, even if, under the Act, this process can occur only after the issuance of regulations under &sect; 104 that are subject to congressional approval, surely regulations covering this narrow subject matter need not take long to effectuate.

Also, &sect; 104(a)(7) suggests that the private materials to be returned to Mr. Nixon are limited to those that "are not otherwise of general historical significance." But, as I see it, the validity of the Act would be questionable if mere historical

significance sufficed to withhold purely private letters or diaries; and in view of the other provisions of the Act, particularly &sect; 104(a)(5), it need not be so construed. Purely private materials, whether or not of historical interest, are to be delivered to Mr. Nixon. The federal and other appellees conceded as much at oral argument. [433 U.S. 425 * ]

Similarly, although the Court relies to some extent on the statutory recognition of the constitutional right to compensation in the event it is determined that the Government has

confiscated Mr. Nixon's property, I would question whether a mere historical interest in purely private communications would be a sufficient predicate for taking them for public use. Historical considerations are normally sufficient grounds for condemning property, United States v. Gettysburg Electric R. Co., [/us/160/668/case.html 160 U.S. 668] (1896); Roe v. Kansas, [/us/278/191/case.html 278 U.S. 191]

(1929); but whatever may be true of the great bulk of the materials in the event they are declared to be Mr. Nixon's property, I doubt that the Government is entitled to his purely private communications merely because it wants to preserve them and offers compensation.

*

"QUESTION: Well now, suppose Mr. Nixon has prepared a diary every day and put down what, exactly what he did, and let's suppose that someone thought that was a purely personal account. Now, I can just imagine that someone might think that it nevertheless is of general historical significance."

"MR. McCREE: May I refer the Court to need No. 5?"

"The need to protect any party's opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials."

"And I submit that this Act affords Richard M. Nixon the opportunity to assert the contention that this diary of his is personal, and has not the kind of general historical significance that will permit his deprivation; and that would then have to be adjudicated in a court."

"QUESTION: Well, do — "

"MR. McCREE: And ultimately this Court will answer that question."

"QUESTION: Well, how do you — so you would agree, then, that 104 must be construed — must be construed to sooner or later return to Mr. Nixon what we might call purely private papers?"

"MR. McCREE: Indeed I do."

"QUESTION: Can you imagine any diary — thinking of Mr. Truman's diary, which, it is reported, was a result of being dictated every evening, after the day's work — can you conceive of any such material that would not be of general historical interest?"

"MR. McCREE: I must concede, being acquainted with some historians, that it's difficult to conceive of anything that might not be of historical interest. But — "

"[Laughter.]"

"QUESTION: Yes. Archivists and historians, like journalists, — "

"MR. McCREE: Indeed they are."

"QUESTION: — think that everything is."

"[Laughter.]"

"MR. McCREE: But this legislation recognizes that a claim of privacy, a claim of privilege must be protected, and if the regulations are insufficient to do that, again a court will have an opportunity to address itself to a particular item such as the diary before it can be turned over."

"And for that reason, we suggest that the attack at this time is premature, because the statute, in recognizing the right of privacy, is facially adequate. And the attack that was made the day after it became effective brought to this Court a marvelous opportunity to speculate about what might happen, but the regulations haven't even been promulgated and acquiesced in so that they have become effective."

Tr. of Oral Arg. 380.

"[Mr. HERZSTEIN, for the private appellees:]"

"But there's just no question about the return of personal diaries, Dictabelts, so long as they are not the materials involved in the transaction of government business."

"Now, the statute, I agree, could have been drafted a little more clearly, but we think there are several points which make it quite clear that his personal materials are to be returned to him."

"One is the fact that statute refers to the presidential historical materials of Richard Nixon, not to the person[al] or private materials."

"The second is that, as Judge McCree mentioned, criterion 7 calls for a return of materials to him, and if you read those two in conjunction with the legislative history, there are statements on the Floor of the Senate, on the floor of the House, and in the Committee Reports indicating the expectation that Nixon's personal records would be returned to him."

"QUESTION: Could you give us a capsule summary of the difference between what you have just referred to as Nixon's personal records, which will be returned, and the matter which will not be returned?"

"MR. HERZSTEIN: Well, yes. Certainly any personal letters, among his family or friends, certainly a diary made at the end of the day, as it were, after the event — "

"QUESTION: Even though the Dictabelt was paid for out of White House appropriations?"

"MR. HERZSTEIN: That's right. That doesn't bother us. I think it's incidental now. But we do have a different view on the tapes, which actually recorded the transaction of government business by government employees on government time and so on. The normal tapes that we've heard so much about."

"The Dictabelts, Mr. Nixon has said, are his personal diary. Instead of writing it down, in other words, he dictated it at the end of the day. And we think that's — "

"QUESTION: I want to be sure about that concession, because this certainly is of historical interest."

"MR. HERZSTEIN: That's right, it is, but we do not feel it's covered by the statute. We have acknowledged that from the start."

"QUESTION: Is this concession shared by the Solicitor General, do you think?"

"MR. HERZSTEIN: We believe it is."

"QUESTION: What about that?"

"MR. McCREE: About the fact that the paper belongs to the government and so forth, we don't believe that makes a document a government documen[t]. We certainly agree with that."

"Beyond that, if the Court please — "

"QUESTION: What about the Dictabelts representing his daily diary?"

"MR. McCREE: I would think that's a personal matter that would be — should be returned to him once it was identified."

"QUESTION: Well, is there any problem about, right this very minute, of picking those up and giving them back to Mr. Nixon?"

"MR. McCREE: I know of no problem. Whether it would have to await the adoption of the regulation, which has been stymied by Mr. Nixon's lawsuit, which has been delayed for three years, — "

"QUESTION: How has that stymied the issuance of regulations, Mr. Solicitor General?"

"MR. McCREE: One of the dispositions of the district court was to stay the effectiveness of regulations. Now, I think it held up principally the regulations for public access. The other regulations are not part of this record, and I cannot speak to the Court with any knowledge about them."

Id. at 57-59.