433 U.S. 425 (1977)
The events leading to this litigation began on June 17, 1972, when agents of the Committee to Re-elect the President were arrested in the Democratic National Committee offices in the Watergate office complex in Washington, D. C.1
The ensuing investigation revealed that the break-in was part of a widespread campaign of political espionage and sabotage conducted on behalf of the Committee to Re-elect the President during the 1972 presidential campaign.2 The investigation also revealed that President Nixon had installed a secret taping system in the Oval Office and other locations in the White House that had recorded many of his conversations.3
In May 1973, the Attorney General appointed a Special Prosecutor to investigate the Watergate matter.4 A subpoena duces tecum was issued to the President requiring production of certain tape recordings.5 This Court upheld the subpoena in United States v. Nixon.6 Meanwhile, the House Judiciary Committee began an inquiry into whether President Nixon should be impeached and subpoenaed additional tapes and documents.7 On August 9, 1974, President Nixon resigned.8 On September 8, 1974, President Ford granted a pardon to former President Nixon for any offenses against the United States that he might have committed while in office.9
Upon his resignation, appellant directed Government archivists to pack and ship the materials to him in California.10 This shipment was delayed when the Watergate Special Prosecutor advised President Ford of his continuing need for the materials.11 The Attorney General advised that historical practice supported ownership in the appellant, subject to a possible limited exception reflecting a public interest in the materials.12 On September 8, 1974, the Administrator of General Services signed a depository agreement with appellant under the authority of 44 U. S. C. § 2107.13 The agreement recited that appellant retained all legal and equitable title to the materials.14 The materials were deposited temporarily in a secure United States facility near appellant's California home.15 Access was restricted to appellant or persons authorized by him.16 The tape recordings were to be destroyed at the time of appellant's death or on September 1, 1984, whichever occurred first.17
Public announcement of the agreement was followed ten days later by the introduction of legislation designed to abrogate the agreement.18 On December 19, 1974, Congress enacted the Presidential Recordings and Materials Preservation Act.19 The Act directed the Administrator of General Services, notwithstanding any other law or agreement, to take complete possession and control of all original tape recordings of conversations recorded or caused to be recorded by any federal officer or employee involving former President Nixon or other federal employees during the period beginning January 20, 1969, and ending August 9, 1974, in the White House or the office of the President in the Executive Office Buildings located in Washington, District of Columbia; Camp David, Maryland; Key Biscayne, Florida; or San Clemente, California. The Act also directed the Administrator to take possession of all papers, documents, memorandums, transcripts, and other objects and materials constituting the Presidential historical materials of Richard M. Nixon covering the same period.20
The Act prohibited destruction of the materials except as provided by law.21 It made the materials available in response to court subpoena or other legal process or for use in judicial proceedings. It afforded appellant access subject to regulations.22 It provided for access by executive agencies for lawful government use.23 It directed the Administrator to promulgate regulations governing public access that took into account seven specified factors.24 The regulations were to be submitted to Congress and would take effect unless disapproved by either House.25
The materials at issue consist of some 42 million pages of documents and some 880 tape recordings of conversations.26 On December 20, 1974, appellant filed suit in the District Court for the District of Columbia challenging the constitutionality of the Act on multiple grounds and seeking declaratory and injunctive relief.27 A three-judge District Court was convened pursuant to 28 U. S. C. §§ 2282, 2284.28 Because regulations governing public access had not yet become effective, the District Court limited its review to the facial constitutionality of the statute's custody and screening provisions and upheld the Act in all respects.29 This appeal followed, and the Supreme Court noted probable jurisdiction.30
Whether the Presidential Recordings and Materials Preservation Act violates the separation of powers?31
The separation of powers does not require the branches to be hermetically sealed from one another.32 The question is whether the Act unduly interferes with the functioning of the Executive Branch.33 The Act is limited in scope, affects only one former President, and does not alter the functioning of the Executive Branch generally.34
No. The Act places custody and screening of the materials within the Executive Branch itself through the Administrator of General Services and career archivists, rather than Congress or an outside agency.35 The current President supported the legislation and has not asserted interference with executive functions.36 The Act provides for meaningful notice to the former President and allows assertion of rights and privileges before any access occurs.37 It does not prevent the former President from carrying out constitutional functions, as he is no longer in office.38
The legislative history shows Congress responded to a unique situation involving materials of extraordinary governmental and historical importance arising from the Watergate events, without establishing a general rule for presidential papers.39 The Act represents a reasonable accommodation between congressional and public interests in preservation and the interests of the former President.40
The Act does not violate the separation of powers.41
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The Act is an unprecedented congressional intrusion into the confidential files of the President.42 It violates the separation of powers by allowing the Legislative Branch to seize and control the papers of the Executive.43 The presidential privilege of confidentiality is essential to the functioning of the Presidency.44
It is not for Congress to decide when and how that privilege should be waived.45 The depository agreement entered into after the resignation was a reasonable accommodation.46 Congress had no authority to abrogate that agreement and seize the materials.47
The Act represents a grave threat to the independence of the Presidency.48
The Constitution divides power among the branches to prevent tyranny.49 Today's decision upsets that balance by allowing Congress to reach into the heart of the Executive's confidential communications.50 The potential for future congressional overreaching is great.51 The presidential privilege must remain inviolate if the Presidency is to function effectively.52
Whether the Act unconstitutionally abridges the presidential privilege of confidentiality?53
No. The governmental interests in preserving the materials for criminal prosecutions, congressional investigations, and the historical record are substantial.56 The screening process is conducted by Executive Branch archivists under regulations that must be approved by Congress, with the former President given the opportunity to assert privilege claims.57 The regulations must provide for the return of purely personal materials.58 The privilege is not extinguished but balanced against other important interests in a process that provides for judicial review if necessary.59
The Act does not unconstitutionally abridge the presidential privilege of confidentiality.60
Related opinions on this issue
The Court's decision does not diminish the legitimate interests in presidential confidentiality.61 The screening process established by the Act, with its opportunity for the former President to assert privilege claims, adequately protects those interests.62 The archivists are experienced professionals who can be expected to carry out their duties with due regard for constitutional requirements.63
Whether the Act violates the Bill of Attainder Clause?64
A bill of attainder is a legislative act that singles out an individual or group for punishment without a judicial trial.65 To constitute a bill of attainder, the statute must specify the affected persons, impose punishment, and do so without a judicial trial.66 The mere fact that a statute singles out an individual is not sufficient if its purpose is regulatory rather than punitive.67
No. Although the Act singles out the former President, the legislative history demonstrates that Congress was responding to a unique situation in which the materials were of extraordinary governmental and historical importance.68 The Act's purpose is regulatory and archival, not punitive.69 It does not impose any disability or disqualification on the former President or bar him from holding office.70 The mere inconvenience or embarrassment that may result does not make the Act punitive.71
The Act does not violate the Bill of Attainder Clause.72
Related opinions on this issue
The statute singles out one former President by name for special treatment.73 Unlike all other former Presidents in our history, he is denied custody of his own Presidential papers.74 He is subjected to the burden of prolonged litigation over the administration of the statute.75
His most private papers and conversations are to be scrutinized by Government archivists.76 The statute implicitly condemns him as an unreliable custodian of his papers.77 Legislation which subjects a named individual to this humiliating treatment must raise serious questions under the Bill of Attainder Clause.78
However, the former President's resignation under unique circumstances and acceptance of a pardon placed him in a different class from all other Presidents, providing a legitimate justification for the specificity.79
Whether the Act deprives former President Nixon of property without just compensation?82
The Fifth Amendment prohibits the taking of private property for public use without just compensation.83 Presidential materials generated during the course of official governmental business are not purely private property but are peculiarly affected by a public interest that may justify limitations directly related to their character as records of government activity.84
No. The materials were generated during the Presidency and are of legitimate governmental interest.85 Section 105(c) of the Act provides for an award of just compensation by the District Court if it is determined that any individual has been deprived of private property without just compensation. The Act therefore does not effect an uncompensated taking.86
The Act does not deprive former President Nixon of property without just compensation.87
Related opinions on this issue
I would question whether a mere historical interest in purely private communications would be a sufficient predicate for taking them for public use.88 Historical considerations are normally sufficient grounds for condemning property.89 But I doubt that the Government is entitled to purely private communications merely because it wants to preserve them and offers compensation.90
Whether the Act violates appellant's rights of privacy and association under the First, Fourth, and Fifth Amendments?91
Public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to acts done in their public capacity.92 However, the constitutionality of the Act must be viewed in the context of the limited intrusion of the screening process, the appellant's status as a public figure, the lack of any expectation of privacy in the overwhelming majority of the materials, and the important public interest in preservation of the materials.93
No. The overwhelming bulk of the 42 million pages of documents and 880 tape recordings pertain to the official conduct of the Presidency rather than to private communications.94 The Act provides for careful screening by professional archivists with an unblemished record for discretion to separate and return purely personal materials.95 The intrusion is limited and justified by the important governmental interests at stake.96 The Act is a neutral archival statute that does not punish the exercise of First Amendment rights or suppress any particular viewpoint or association.97
The Act does not violate appellant's rights of privacy and association under the First, Fourth, and Fifth Amendments.98
Related opinions on this issue
I agree that the Act on its face does not violate appellant's rights under the First, Fourth, and Fifth Amendments.99 Difficult and important questions concerning individual rights remain to be resolved in the future.100 These include the rights of other individuals whose interests may be implicated by disclosure of communications as to which a legitimate expectation of privacy existed.101
I agree fully with the conclusion that the Act on its face does not violate appellant's rights under the First, Fourth, and Fifth Amendments.102 The difficult constitutional questions lie ahead for resolution in the future.103 Reserving judgment on those issues for a more appropriate time, I join the judgment of the Court and agree with much of its opinion.104