U.S. told to pay Nixon for his files Court says compensation is due for 42 million items seized in 1974

November 18, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- In a ruling that may lead to millions of dollars in payments to Richard M. Nixon, a federal appeals court decided yesterday that U.S. presidents own all the papers and ** tapes they make or use in office, and must be paid if the government takes them away.

Former President Nixon's White House files -- including the famous Watergate scandal tape recordings that led to his downfall -- were seized from him by an act of Congress in 1974.

The U.S. Circuit Court of Appeals here ruled that all of the Nixon files were his personal property, that the seizure interfered with his rights to some 42 million items in those files, and that he must now be paid for them.

Even though Mr. Nixon has full access to his files, and is free to use them for such things as writing memoirs, he must be paid for them because access is not the same as owning them outright, the court made clear.

Under constitutional law, private property taken by the government for official reasons or use is forbidden -- unless the government pays "just compensation," as measured by the full market value of the item to the owner.

If every one of the 42 million Nixon items is now given a market value, and Mr. Nixon is actually awarded that value, he stands to be be paid very high compensation -- probably running into many millions.

Official letters, typed with only a signature by Mr. Nixon as president, have been selling recently for between $150 and $300 apiece in the collector's market, according to Selby Kiffer, American manuscript specialist at Sotheby's in New York See City, the art auctioneering firm. Notes or letters fully handwritten by Mr. Nixon are "excessively scarce" in the auction market, that expert said, but would have a much higher value than most typed and signed items.

The market value of any paper, Mr. Kiffer said, "depends on the contents and the condition." The value of handwritten presidential items can go very high, according to Sotheby's manager of auctions, Matthew Weigman, who cited a recent sale of a Thomas Jefferson letter on religious intolerance for $360,000.

The two Sotheby's representatives said there was no way to know what market value Mr. Nixon's tape recordings would have, because those kinds of items have not come up for auction.

The Circuit Court put no value on Mr. Nixon's files yesterday, noting that making that calculation will involve "difficult questions."

It sent the Nixon case back to U.S. District Judge John Garrett Penn to face those questions first -- a process that one of the appeals judges predicted would take years. That process could be delayed even further if, as expected, the government appeals the case to the Supreme Court.

Judge Penn had ruled last December that Mr. Nixon did not have to be paid at all, because he was not the owner of his White House files. Those materials, Judge Penn ruled, were held by the president as "a trustee for the American people."

The Circuit Court overturned that ruling, declaring that presidents since George Washington have controlled their own papers, and every president up to and including Jimmy Carter regarded their White House papers as their private property.

"History, custom and usage . . . indicate unequivocally that president papers have been treated as the president's private property," the three-judge panel declared. The appeals court said there is "robust tradition of private ownership," and that even Congress has recognized it.

Mr. Nixon's spokesman could not be reached yesterday, and his lawyers declined to comment on the ruling.

Congress in 1978 passed a law declaring that future presidents -- those after Mr. Carter -- would not own their official papers as personal property. Even so, the presidents since then -- Ronald Reagan and George Bush -- are likely to have complete control over their papers, at least to make sure they wind up in presidential libraries.

Yesterday's ruling said nothing about the 1978 law abolishing presidential ownership of papers, except to note that the law was not at issue in the Nixon case.

But the ruling declaring the long history of presidential ownership as a constitutional matter might raise some doubts about the validity of the 1978 law, should it be challenged.

The Circuit Court said that it is routine for presidents or their families to gather up virtually everything in the files and remove it. The court opinion noted that Dwight D. Eisenhower, on becoming president in 1953, found the White House files bare except for "a single page of instructions to be used in the event of a national crisis," plus some national security papers.

Some presidents, the court remarked, were so completely in control of their papers that they felt free to destroy them -- as Chester A. Arthur did with nearly everything, burning his files in three large garbage cans.

Other presidents or their families have felt free to sell their papers, as the heirs of Andrew Johnson did for $7,500, according to the court.

Although modern presidents have been putting most if not all of their files in presidential libraries, that did not settle the ownership issue. Mr. Nixon first raised that issue directly in 1974, after Congress ordered his files seized -- partly to make sure that evidence needed in Watergate cover-up trials would be available.

Mr. Nixon and the government have been fighting over his papers almost from the day he resigned in August 1974, but the ownership issue was not settled in any prior court rulings.

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