No Release of Nixon Tapes Expected Soon

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.

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.