Who Owns the Tapes?

Do former Presidents and other federal officials own the records they generated during their tours of public service? The answer is yes if tradition is the sole arbiter. Ever since George Washington carted home to Mount Vernon trunkloads of presidential papers, his successors and their executors have tightly controlled White House documents. The controversial agreement between representatives of Gerald Ford and Richard Nixon, giving Nixon shared control over his material and allowing him to destroy the records after five years, reaffirms past practice.

The Nixon case has raised the argument over that traditional practice in its most extreme form, since some of the Nixon material is relevant to ongoing criminal proceedings and perhaps to public inquiries and other lawsuits. If Nixon were to die, the papers and tape recordings not under subpoena could be destroyed immediately according to terms of the agreement. Therefore the ownership tradition--never settled either in Congress or the courts--is now under its most serious challenge yet.

Remarkable Inconsistency. This week the Senate Government Operations Committee is expected to approve a bill introduced by Senator Birch Bayh that would give all federal officials--including Nixon--180 days after they leave office to turn over to the General Services Administration any documents and tapes produced in Government service. The GSA would deposit the materials in the National Archives. As in the case of the Pentagon Papers, the documents would belong to the Government.

Former Attorney General Ramsey Clark has another approach. He proposed last week that the Government exercise its power of eminent domain and immediately take possession of Nixon's tapes and papers. The procedure would be similar to the taking of property for construction of a road. Therefore Nixon would have to receive fair compensation if the papers were considered his personal property.

Lack of a firm policy until now has led to remarkable inconsistency. In some cases, material was selectively destroyed. When Zachary Taylor died in 1850, his family shipped his papers home to the Taylor plantation in Louisiana, where they were later burned by Union soldiers. Lincoln's papers were turned over to the Government by his son with the stipulation that the letters would not be accessible to the public until 1947. Warren G. Harding's papers disappeared after his sudden death following the Teapot Dome affair, then turned up mysteriously years later in his home town of Marion, Ohio. Though 25 Presidents or their families handed over their documents to the Library of Congress free of charge, Congress paid at least $190,000 for the documents of some of the early Presidents. Chief Executives from Herbert Hoover on arranged to have their papers collected and controlled by elaborate libraries set up in their own names.

None of these actions were based on statute. In fact, there seem to be only two laws directly relevant to presidential papers. The Presidential Libraries Act of 1955 authorized the GSA to accept for deposit historical materials of any Chief Executive. The 1969 Tax Reform Act outlawed deductions for any official's papers donated to a library or archive.

The Constitution authorizes Congress to make rules and regulations about disposition of property belonging to the U.S. Though there has never been a court ruling putting presidential papers in that category, a 1959 case involving Vice Admiral Hyman Rickover may be relevant. Rickover sought to bar M.B. Schnapper, a historian and editor of the Public Affairs Press in Washington, from publishing speeches Rickover had made. In effect, he was asserting a property right. The court of appeals ruled that any speeches related to Rickover's work as a Government official belonged to the public domain. Thus Schnapper won the right to print them.

Growing Consensus. The Supreme Court could yet rule on the question of ownership. Leon Friedman, professor of criminal law at Hofstra University, points out that if Congress were to direct a GSA custodian to take possession of the papers and tapes and Nixon challenged the move, the question would then go to the courts. No matter who is given title, there may still be disputes over access to the material. If the Government is declared the owner, Ford could prevent the release of any materials not subpoenaed. Should Nixon be granted ownership, he could try to deny access by claiming Executive privilege, though Ford might claim that only he as President has that privilege.

Whatever the procedure, there is a growing consensus that official papers concerning public affairs and prepared at public expense indeed belong to the people. The fact that Presidents historically have disposed of material as they wished is not binding. As the Supreme Court noted in the 1969 case of Powell v. McCormack: "An unconstitutional action ... taken before surely does not render that same action any less unconstitutional at a later date."

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