Nixon v. Administrator of General Services

Nixon v. Administrator of General Services, 433 U.S. 425 (1977), argued 20 Apr. 1977, decided 28 June 1977, by vote of 7 to 2; Brennan for the Court, White, Stevens, Blackmun, and Powell concurring, Rehnquist and Burger in dissent. Subsequent to President Richard Nixon's resignation in 1974 to avoid impeachment, he reached an agreement with the General Services Administration (GSA), by which they shared control of his presidential papers for three years after which they were to be at his disposal. The tapes of his White House meetings, which were a key element in proving his complicity in the Watergate cover‐up, were to remain with the GSA. Except for those he requested destroyed after five years, all tapes were to be kept for ten years or until his death. Although ex‐presidents had exercised full authority over their papers, Congress moved to protect those historically important papers and tapes by vesting complete control in the GSA subject to “any rights, defenses or privileges which the federal government or any person might invoke.”

The day after the Presidential Recordings and Materials Act was signed into law, Nixon challenged the act as violating the separation of powers and his personal privacy rights. Since earlier presidents had retained rights to their papers, he also claimed the act was a bill of attainder. The district court and court of appeals sustained the act against those challenges.

Justice William Brennan's opinion rejected the government's contention that since President Gerald Ford signed the act and President Jimmy Carter affirmed it, Nixon had no right to assert executive claims. On the merits, though, Nixon's claims were rejected. Reaffirming a flexible doctrine of separation of powers and qualified immunity and privilege, the Court noted the safeguards and opportunity for challenge by Nixon built into the statute. As to both privilege and privacy, archivists were to have access, but this was not more obtrusive than in camera inspection by judges, as in United States v. Nixon (1974).

Finally, the Court rejected the bill of attainder argument, finding it neither functionally nor in intent a punishment. Given the circumstances, Congress could reasonably infer a public need to know more and conclude that Nixon was an improper custodian of what historically have been regarded as public papers in ex‐presidents' hands.

Justice Byron *White concurred but was troubled by the taking of what has in effect been treated as presidential property even though the act preserved Nixon's right to claim compensation. Justice John Paul Stevens also concurred, specifically finding that Nixon constituted “a legitimate class of one.”

Chief Justice Warren Burger and Justice William Rehnquist dissented separately. The chief justice emphasized that U.S. v. Nixon had authorized only narrow, need‐to‐know incursions on executive privilege. The invasion of privacy here was almost untrammeled and the government seemed to him to have to bear a heavier burden to justify it. Finally, he found the act in form and fact a bill of attainder. Rehnquist's opinion vigorously argued that the decision left all presidential papers available for seizure by future acts of congress, a policy that he opposed.

Samuel Krislov