Albion Monitor /News

No Release of Nixon Tapes Expected Soon

by Page Miller

The Washington Post and the New York Times in recent articles describe "leaked information" about pending settlement discussions between the U.S. Government and the Nixon estate concerning a $26 million compensation to the Nixon estate for his presidential materials, but some close to this case speculate that the "deal" may unravel and stress that there is no agreement at this time.

To date, only about 264 of the almost 4,000 hours of tapes have been opened
In 1974, Congress passed the Presidential Recordings and Materials Preservation Act, which called for the tape recordings and the records of the Nixon administration to be seized by the government and placed under the custody of the National Archives. This legislation, which included provisions for protection of privacy and for the development of regulations for the processing of the material, had as its key point "the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of government power."

For the past two decades Nixon and his estate have periodically challenged the constitutionality of this law and various aspects of the implementing regulations and have been successful in greatly restricting the opening of the tapes and the records. To date only about 7 million documents, a small portion of the 44 million documents, and only 264 of the almost 4,000 hours of tapes have been opened.

Prior to 1974 a President's papers had been considered to be his personal property. Presidents from Hoover to Carter (excluding Nixon) donated -- receiving no compensation -- their personal papers to the National Archives by deed of gift which included various kinds of restrictions regarding access. In 1978, Congress passed the Presidential Records Act, which states that Presidential records that document the constitutional and statutory duties of the President are the property of the U.S. Government. Ronald Reagan was the first President whose papers are governed by this act.

President Nixon, in a long-running lawsuit with the U.S. Government -- which is represented by the Justice Department -- has sought compensation for the value of the presidential materials of his administration which had been seized by the government. In this case the U.S. Court of Appeals for the District of Columbia ruled in 1992 that the government owed compensation to Nixon for the seized materials. The case was then returned to the District Court to determine the appropriate value of the materials.

If the parties are unable to reach a settlement agreement, the District Court will hear, at a trial scheduled for this June, all the evidence, including testimony for expert witnesses for both parties, and will rule on the amount of money to be paid to the Nixon estate out of the U.S. Treasury. Information leaked to the Washington Post indicates that there is a possibility that a settlement will be reached prior to the June trial date.

Because the compensation in this case results from the government's seizure or "taking" of Nixon's property, the money will probably come from government's "unsatisfied judgment fund" which is administered jointly by GAO and the Treasury. One of many sticking points in the reported tentative agreement appears to be the Nixon family's concern about the tax implications of the compensation.

Many Presidential families have had a tendency to micro manage the libraries and to polish the President's image
An unexpected component of the compensation agreement, as reported in the April 5 Washington Post, is a provision to move the Nixon tapes and records from Archives II, the National Archives building in College Park, Maryland, to the Nixon Library in Yorba Linda, California. The Nixon estate would agree to turn over control of the privately run Nixon library in California to the National Archives. This relocation of the Nixon presidential material to the Yorba Linda Library, which opened in 1990 with no original presidential documents, would allow the Nixon Library to become like other Presidential Libraries, which are administered by the National Archives. The Nixon estate, according the Washington Post, would reportedly use about $8 million of the compensation to built a new facility on the grounds of the Nixon Yorba Linda Library to accommodate the transferred material.

There is considerable concern among researchers, however, about allowing the records to leave the Washington area. In the Presidential Library system, Library directors are rarely chosen without the consent of the President's family, who retain some indirect control over the operation of the libraries and over access to the records. Some researches note that many Presidential families have had a tendency to micro manage the libraries and to polish the President's image. Considering the Nixon estates' efforts over the past two decades to keep records closed, there is little evidence that they would facilitate the opening of the large majority of the records that have already been closed for too long.

Furthermore, the 1974 act states that custody of the Nixon material "shall be maintained in Washington, District of Columbia, or its metropolitan area, except as may otherwise be necessary to carry out the provisions of the title." While it appears that Archivist John Carlin favors the move of the materials to Yorba Linda, it is unclear why such a move is "necessary." Researchers who have voiced opposition to the terms of the leaked agreement have indicated that once the official agreement is released and they have had a chance to examine its provisions, they may consider legal steps to prevent the move of the Nixon materials to a Presidential Nixon Library in California.

In a separate matter, that by coincidence also surfaced this past week, U.S. District Judge Norma Holloway, in the case of historian Stanley Kutler v. the National Archives, ordered that the Archives return "all personal and private conversations" on the original Nixon tapes to the Nixon estate. The National Archives has contended that the original tapes are too fragile for the "personal and private" portions to be cut from the original, and thus they may be forced to return the original tape in its entirety. However, the National Archives would be able to keep a master copy, which has much better audio quality than the original, if the 819 hours of "personal and private" material are excluded from the 3,700 hours of tapes.

Page Putnam Miller is Director of the National Coordinating Committee for the Promotion of History. This article first appeared on the Internet Scholarly Editing Forum Mailing List.

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Albion Monitor April 10, 1997 (

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