Summary

In this action, plaintiff Richard M. Nixon has challenged the constitutionality of Title I of the Presidential Recordings and Materials Preservation Act. The Act directs the Administrator of General Services to take custody of Mr. Nixon's presidential papers and tape recordings, and to promulgate regulations that would provide for the orderly processing of such materials for the purpose of returning to Mr. Nixon such of them as are personal and private in nature, and of determining the terms and conditions upon which public access may eventually be had to those remaining in the Government's possession. In designing such regulations, the Administrator must consider the need to protect the constitutional rights of plaintiff and other individuals against infringement by the processing itself or, ultimately, by public access to the materials retained. Title II of the Act establishes a Commission to study the final disposition of the records of federal officials generally, and to report its recommendations to Congress. The court concludes that there is no constitutional infirmity in the Act on its face requiring its enforcement to be enjoined.

Scope of Inquiry

The court, responding to its duty to avoid constitutional questions whenever possible, considers only those questions of the Act's constitutional validity that are immediately ripe for resolution. As no regulations have yet taken effect, and as such regulations once effective are explicitly made subject to judicial review, the court considers only the injury to constitutionally protected interests of Mr. Nixon that is allegedly worked by the taking of his presidential materials into custody and their screening by government archivists. Op. at 340-343 infra. Claims Relating to the Separation of Powers

The court finds nothing in the separation of powers doctrine to support the contention that the legislature may not pass a statute in any way touching upon the prerogatives of the Executive. The only genuine separation of powers claim is that the Act might invade the presidential privilege that attaches to the small fraction of the materials that genuinely implicate presidential confidentiality. Although the court thinks it doubtful that a former President, rather than the incumbent, may assert such privilege, at the very least such a claim is entitled to relatively less weight in the balance of competing considerations. And the infringement upon presidential confidentiality caused by screening by trained and discreet government archivists, who have been employed to perform identical tasks for the materials of every President since Herbert Hoover, is very slight. The court finds, on the other hand, that Congress had ample reason to mandate screening by government archivists rather than control by Mr. Nixon, who lacks their expertise and disinterestedness. The two most important of the interests served by preservation and responsible treatment of presidential materials are (1) maintaining a complete and accurate historical record and (2) assuring the availability of the materials potentially needed for continuity in executive policymaking. Other interests served by the Act include informing the public about the Watergate matters and ensuring the availability of materials that may be relevant to legislative investigations or judicial proceedings. Because of the manner in which personal materials are intermingled with official ones, comprehensive screening represents the only feasible manner of protecting these important interests. The court finds that the slight inroad on presidential confidentiality caused by such screening is outweighed by the need to further these important legislative objectives. Op. at 340-357 infra. Claims Relating to Privacy

It appears from the record that plaintiff can validly claim a privacy interest in only a small fraction of the materials. Yet due to the historical practice of de facto control by Presidents of presidential materials, the court finds that regardless of where ownership of the materials lies — a question that need not be reached — plaintiff has a reasonable expectation of privacy in these materials, an interest that is infringed even by mere screening by government archivists conducted under legislation with retroactive application. In light of the intermingled nature of the materials, the court finds such infringement of privacy interests to be an inescapable concomitant of any attempt to serve the important legislative objectives underlying the Act. The private materials are far out-numbered by those that are non-private and related to those objectives. The court further finds that any invasion of privacy caused merely by archival processing — rather than by public access, which need not yet be considered — is not wide-ranging. In addition, less justification is needed when, as may be the case here, any invasion of privacy constituting a search and seizure does not serve law enforcement objectives. In light of these factors and the unavailability of less intrusive means of furthering the important legislative ends, the court concludes that any intrusion upon plaintiff's privacy interests has adequate justification. Op. at 357-367 infra. Freedom of Speech and Association

Plaintiff's First Amendment claim is predicated upon the assumption that all materials — including those implicating privacy in political association — will be open to public access. The court finds no basis for that assumption. Rather, reaching only that infringement of First Amendment interests caused by screening by government archivists, the court finds any injury to protected interests arising from a confidential review process to be insubstantial. Op. at 367-369 infra. Equal Protection

The court finds that any difference in treatment between plaintiff and other Presidents is adequately justified. As respects immediate past Presidents, their papers had already been deposited in presidential libraries where, on the whole, their availability to promote important governmental interests was assured. As respects current and future Presidents, legislating with respect to them risked disrupting current executive policymaking, and would be unwise before the Commission study of the sensitive and complex problems involved in regulating the records of federal officials had been completed. Only plaintiff has finished his service as President but has not yet established a presidential library. Prompt congressional action was reasonably deemed necessary to assure that the materials would remain preserved, and to begin the lengthy process of reviewing and classifying them. Finally, Congress could legitimately consider plaintiff to be less likely than his immediate predecessors or successors to dispose of the materials responsibly. Op. at 369-371 infra. Bill of Pains and Penalties

There is, in the court's view, no evidence in the legislative record to support the claim that the Act was designed to impose, or constitutes, punishment within the meaning of the Bill of Attainder Clause. The court finds there are other legislative objectives served by the Act which Congress could legitimately — and did — consider. Rather than possessing traditional indicia of a punitive enactment, the Act includes provisions that indicate a concern for plaintiff's interests, provisions that are wholly inconsistent with the hypothesis of punitive intent. Op. at 371-374 infra.

OPINION

McGOWAN, Circuit Judge:

On December 20, 1974, plaintiff filed this suit, alleging that the Presidential Recordings and Materials Preservation Act, Pub.L. 93-526 (Dec. 19, 1974), 88 Stat. 1695, 44 U.S.C.A. §§ 2107 note, 3315-24 (Supp. I, Feb. 1975), [hereinafter "the Act"] is unconstitutional and seeking injunctive and declaratory relief. Jurisdiction was premised on section 105(a) of the Act, which grants the United States District Court for the District of Columbia exclusive jurisdiction to hear challenges to the constitutional validity of the Act. A three-judge district court was, on plaintiff's motion, eventually convened pursuant to 28 U.S.C. § 2282, 2284 (1970), as the action sought on constitutional grounds to enjoin the enforcement of a federal statute. Plaintiff alleges that the Act infringes the powers of the President; invades his presidential privilege; infringes his constitutional rights of privacy, free speech, and free association; is an unconstitutional search and seizure; denies him equal protection of the laws; and is an unconstitutional bill of pains and penalties. For the reasons appearing below, we hold that there is no constitutional defect apparent from the face of the Act requiring us to enjoin its operation.

I. BACKGROUND

Plaintiff was, of course, the President of the United States from January 20, 1969 to August 9, 1974. He resigned on the latter date, less than two weeks after the House Judiciary Committee had voted to recommend his impeachment. H.R. Rep. No. 93-1305, 93d Cong., 2d Sess., at 10-11 (1974). When he left office, Mr. Nixon had no intention of permanently leaving the materials accumulated during his administration in the White House, Affidavit of Richard Nixon at 2 [hereinafter "Nixon Affidavit"], and immediately after his resignation government archivists began to collect these materials and box them for shipment to California. Deposition of Jack Nesbitt in Nixon v. Sampson, 389 F. Supp. 107 (D.D.C. 1975), at 38-43.

Shipment was halted by the new administration after the Watergate Special Prosecutor informed the White House of his continuing need for the materials. Deposition of Benton L. Becker in Nixon v. Sampson, supra, at 6-11 [hereinafter "Becker Deposition"]; Affidavit of Peter M. Kreindler in Support of Motion of Leon Jaworski, Special Prosecutor, to Intervene in Nixon v. Sampson, supra, Oct. 21, 1974, at 2-3; Deposition of Philip W. Buchen in Nixon v. Sampson, supra, Vol. I, at 4-7, Vol. II, at 10-11, 73-74 [hereinafter "Buchen Deposition"]. While the materials remained at the White House, Philip W. Buchen, Counsel to President Ford, solicited and received from the Justice Department a preliminary opinion that the materials were plaintiff's private property. Buchen Deposition Vol. I, at 7, 11-12. At or around the same time, negotiations about them between the White House and Mr. Nixon's attorney commenced. Buchen Deposition Vol. I, at 14-15, Vol. 2, at 36-48, exhs. 4, 5; Becker Deposition at 28-29, 35. These negotiations culminated in an agreement whose terms were elaborated in a letter from plaintiff to Arthur F. Sampson, Administrator, General Services Administration (GSA), dated September 6, 1974 and which was accepted by Sampson the next day. Deposition of Arthur F. Sampson in Nixon v. Sampson, supra, exh. 1; Buchen Deposition Vol. 2, at 36-48; Becker Deposition at 50-51, 103.

In its most important features, the Nixon-Sampson agreement provides that all "presidential historical materials" accumulated during the Nixon presidency were to be placed under deposit pursuant to the Federal Records Act, 44 U.S.C. § 2101 et seq. (1970), and transferred to the Administrator of GSA, under whose custody they would be shipped at Government expense to a Government facility in California near Mr. Nixon's residence. For a period of three years or, in the case of tape recordings, five years, access to the materials would be limited to Mr. Nixon or persons authorized by him, although access required two keys, one in Mr. Nixon's and one in GSA's possession. No original materials could be withdrawn during this initial stage, but Mr. Nixon could reproduce any document and, with the agreement of GSA, any tape recording. If any materials under deposit were sought by legal process, Mr. Nixon was to receive immediate notification to enable him to assert any rights or privileges he might have, and he agreed to afford the United States the same opportunity. After the three-year period had expired, Mr. Nixon could withdraw from deposit any documentary materials he wished and dispose of them as he saw fit. As of September 1, 1979, Mr. Nixon made a gift to the United States of the tape recordings, subject to the conditions that he could direct destruction of such tapes as he wished and that all of them were to be destroyed if Mr. Nixon died and in any event not later than September 1, 1984.

After implementation of this agreement had been delayed at the instance of the Special Prosecutor and negotiations between the Special Prosecutor and plaintiff's attorney reached an impasse, plaintiff filed suit in the district court. Nixon v. Sampson, supra. That action, brought on October 17, 1974, named Sampson, Buchen, and H. Stuart Knight, Director of the Secret Service, as defendants, and sought to enforce compliance with the terms of the Nixon-Sampson agreement. Shortly thereafter, two groups of plaintiffs (both of which are intervenor-defendants in the case at bar) brought suit seeking to have the materials declared the property of the United States Government, to enjoin their transfer to Mr. Nixon, and to gain access to them under the Freedom of Information Act, 5 U.S.C. § 552 (1970). In one such action, Hellman v. Sampson, Civil No. 74-1551 (D.D.C., filed Oct. 24, 1974), Mr. Nixon was named as a defendant along with government officials; in the other, Reporters Committee for Freedom of the Press v. Sampson, Civil No. 74-1533 (D.D.C., filed Oct. 21, 1974), he was subsequently permitted to intervene, Nixon v. Sampson, supra, at 118. Ultimately, these two actions were consolidated with the suit brought by Mr. Nixon, and both the Special Prosecutor and Jack Anderson, a newspaper columnist, were permitted to intervene in Mr. Nixon's suit, the former as a defendant and the latter as a plaintiff. See id. at 114, 117-18.

Before that litigation had been filed, Congress had commenced consideration of legislation dealing with the disposition of presidential papers. After enactment by Congress, the Act was signed into law by President Ford on December 19, 1974. The Act, which supersedes the Nixon-Sampson agreement, directs GSA to obtain possession of (1) all tape recordings of conversations recorded by any federal official which involve Mr. Nixon or any other employee of the Federal Government and were recorded, during the time Mr. Nixon was President, in the White House or other offices used by Mr. Nixon (section 101(a)); and (2) all "Presidential historical materials" for the same period (section 101(b)). All items in the custody of GSA are to be available to legal process, subject to any rights, defenses or privileges invoked by the Government or any individual (section 102(b)); to Mr. Nixon or his designee (section 102(c)); and to any agency or department of the Federal Government for lawful Government use (section 102(d)).

Under section 104(a) of the Act, the Administrator is directed to promulgate regulations governing public access to the materials covered by section 101, taking into account the following seven factors:

(1) the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term "Watergate";

(2) the need to make such recordings and materials available for use in judicial proceedings;

(3) the need to prevent general access, except in accordance with appropriate procedures established for use in judicial proceedings, to information relating to the Nation's security;

(4) the need to protect every individual's right to a fair and impartial trial;

(5) the need to protect any party's opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials;

(6) the need to provide public access to those materials which have general historical significance, and which are not likely to be related to the need described in paragraph (1); and

(7) the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the need described in paragraph (1) and are not otherwise of general historical significance.

The regulations must be submitted to Congress, either House of which has ninety legislative days to disapprove them before they take effect (section 104(b)(1)) — a power the Senate exercised with respect to the initial set of regulations drafted by GSA. 121 Cong.Rec. S 15803-08 (daily ed. Sept. 11, 1975). Thereafter, on October 15, 1975, GSA submitted a revised set of regulations to Congress. As of this date, however, no regulations have yet taken effect.

Section 105 of the Act grants exclusive jurisdiction to the District Court to hear a variety of actions involving the Act, regulations promulgated thereunder, or materials covered by section 101 (subsection 105(a)); contains a standard separability clause (subsection 105(b)); and authorizes payment of funds to any individual who is found to have been deprived by the Act of private property without compensation (subsection 105(c)).

Title II of the Act establishes a National Study Commission on Records and Documents of Federal Officials, composed of members of Congress, the Executive, the Judiciary, and private citizens from the archival and learned professions. 44 U.S.C.A. § 3318 (Supp. I, Feb. 1975). The Commission's mandate is to study problems and questions relating to the disposition and preservation of records and documents produced by federal officials, with a view toward appropriate legislative recommendations. Id. § 3317. Although the Commission's report to the President and Congress is to be submitted by March 31, 1976, id. § 3322, as of December 10, 1975, not all of the members had yet been appointed, and the first meeting was not scheduled until December 15, 1975.

On December 20, 1974 — one day after the Act was passed — Mr. Nixon filed a second action, the one now before us, against the Administrator of GSA and the United States, challenging the constitutionality of the Act, together with a request for convention of a three-judge court, which request, after some delay, was ultimately granted. See Nixon v. Richey, 513 F.2d 427 (D.C. Cir. 1975) (per curiam), motion for reconsideration granted, 513 F.2d 430 (D.C. Cir. 1975) (per curiam). This court, by an order dated May 1, 1975, granted a motion by the Special Prosecutor to intervene, although he subsequently moved for and was granted leave to withdraw. That order also permitted the other litigants in the consolidated cases who were not named parties in the instant case — Lillian Hellman, et al., Reporters Committee for the Freedom of the Press, et al., and Jack Anderson — to proceed in this case as intervenor-defendants on a joint basis. It also noted our view that nothing in section 105(a), or the meager legislative history dealing with this provision, suggests that it was meant to override or negate the provisions of 28 U.S.C. § 2282, 2284 (1970), calling for convention of a three-judge court. See Nixon v. Richey, supra, at 441-42.

The order also declined to consider separately plaintiff's motion for a preliminary injunction, instead deferring that question and combining it with a decision on the merits. We now turn to that decision.

II. THE SCOPE OF INQUIRY

Before examining the various constitutional issues, we emphasize that the question before us is a narrow one: Is the regulatory scheme enacted by Congress unconstitutional without reference to the content of any conceivable set of regulations falling within the scope of the Administrator's authority under section 104(a)? Our obligation to restrict our review to the question of the Act's facial validity vel non derives from two sources. First, as a three-judge district court, our jurisdiction is invoked because of the need to adjudicate the availability of injunctive relief against enforcement of a statute on constitutional grounds. The Supreme Court has traditionally taken a "constrictive view" of this jurisdiction. E.g., Hagans v. Lavine, 415 U.S. 528, 543-45, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Mitchell v. Donovan, 398 U.S. 427, 431, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970) (per curiam); Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 85 L.Ed. 800 (1941). We have already indicated in our order of May 1, 1975 that we would restrict our review accordingly to consideration of the propriety of injunctive relief against the alleged facial unconstitutionality of the statute.

Second, we are under the prudential duty to rule on the constitutionality of congressional legislation only where absolutely necessary, e.g., Rosenberg v. Fleuti, 374 U.S. 449, 451, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963); Harmon v. Brucker, 355 U.S. 579, 581, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958) (per curiam); Powell v. Washington Metropolitan Area Transit Comm'n, 151 U.S.App.D.C. 295, 466 F.2d 466, 468 (1972) (per curiam); to formulate a rule of law no broader than is necessary to decide the case before us, e.g., Garner v. Louisiana, 368 U.S. 157, 163, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961); Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945); to seek a statutory construction that avoids constitutional difficulties, e.g., Johnson v. Robison, 415 U.S. 361, 366-67, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); United States v. Witkovich, 353 U.S. 194, 201-02, 77 S.Ct. 779, 1 L.Ed.2d 765 (1957); Buckley v. Valeo, 519 F.2d 821, 874 (D.C. Cir. 1975) (per curiam) (en banc), prob. juris. noted, ___ U.S. ___, 96 S.Ct. 32, 46 L.Ed.2d 36 (1975); and to refrain from ruling on speculative questions based upon purely hypothetical fact situations that may never come to pass, e.g., Thorpe v. Housing Authority, 393 U.S. 268, 283-84, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); United States v. Raines, 362 U.S. 17, 20-22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960); Langston v. Johnson, 156 U.S.App.D.C. 5, 478 F.2d 915, 917 (1973).

The principal policies that underlie these concerns — the aid to constitutional adjudication provided by a concrete set of facts and adversary presentation of argument directed to those facts, and the need to limit exercise of the delicate power of judicial review to cases inescapably calling into question the constitutionality of a statute — are peculiarly relevant to the legislative scheme before us. The Act in terms merely directs GSA to take custody of the materials that fall within the scope of section 101, and to promulgate regulations after taking into consideration the seven factors listed in section 104(a). Those factors provide broad latitude to the Administrator in establishing the processes and standards under which the materials will be reviewed and public access to them afforded. With respect to constitutional challenges levelled against the Act by plaintiff, subsection 104(a)(5) is especially noteworthy. That subsection directs the Administrator to take into account, inter alia, "the need to protect any party's opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials."

Because of the Senate's disapproval of GSA's initial proposed regulations, there are currently no regulations in effect. When regulations finally become effective, however, they could, if drafted with careful attention to the directive of subsection 104(a)(5), eliminate the basis for some of the allegations raised by Mr. Nixon that his rights will be infringed. Objections he now presses might be mooted by regulations that protect the very rights whose infringement he now alleges; hypothetical horrors paraded before us as abstract possibilities might never come to pass under the regulations finally placed in effect. Although written in the somewhat different context of a state statute with many distinct provisions, the words of the Supreme Court in Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416 (1941), are apposite to the problem before us:

No one can foresee the varying applications of these separate provisions which conceivably might be made. A law which is constitutional as applied in one manner may still contravene the Constitution as applied in another. Since all contingencies of attempted enforcement cannot be envisioned in advance of those applications, courts have in the main found it wiser to delay passing upon the constitutionality of all the separate phases of a comprehensive statute until faced with cases involving particular provisions as specifically applied to persons who claim to be injured. Passing upon the possible significance of the manifold provisions of a broad statute in advance of efforts to apply the separate provisions is analogous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case.

It is not unlikely that the Administrator may find that the seven factors listed in section 104(a) do not coexist in perfect harmony, and compromise and accommodation of conflicting directives will be necessary. Yet in resolving such conflicts the paramount concern will be that enunciated in subsection 104(a)(5), for it is to be assumed that Congress intended its regulatory scheme to conform to constitutional requirements. That general canon of construction, here reinforced by several distinct aspects of the Act, will require the Administrator to make a considered judgment about the constitutionality of any regulatory scheme he adopts, for, as the Supreme Court has recently reminded us, "[i]n the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution." United States v. Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039 (1974).

The legislative history suggests that Congress shared this view of the Administrator's duties. Senator Javits, one of the bill's three sponsors, had the following to say about the criteria of section 104(a):

The criteria, Mr. President, endeavor to protect due process for individuals who may be named in the papers as well as any privilege which may be involved in the papers, and of course the necessary access of the former President himself.

In short, the argument that the bill authorizes absolute unrestricted public access does not stand up in the face of the criteria and the requirement for regulations which we have inserted in the bill today.

There will be no broad and unrestricted public access which could nullify the criteria to which I have referred.

120 Cong.Rec. S 18244 (daily ed. Oct. 3, 1974). Senator Nelson, the bill's draftsman and principal sponsor, expressed the same view:

The sixth principal provision concerns public access to the materials. A primary purpose here is to inform the American people of the full truth concerning the Watergate scandals. However, this purpose should not override all regard for the rights of the individual to privacy and a fair trial.

Nobody's rights are affected by this bill, because it provides, as far as privacy is concerned, that the regulations of the Administrator shall take into account . . . the opportunity to assert any legally or constitutionally based right which would prevent or otherwise limit access to the tape recordings and other materials.

Finally, in the event that a particular regulation, or an entire set of regulations, might be constitutionally defective, judicial review under Section 105(a) of the statute is available. If a reviewing court were compelled to invalidate challenged regulations, alternatives more consistent with constitutional requirements could thereafter be adopted.

It is for compelling reasons, therefore, that we limit our inquiry in this case. In particular, we decline to reach challenges based upon the alleged infringement of plaintiff's constitutional rights or privileges caused by the possible access to materials, after they have been processed, by members of the public. The imposition of restrictions on access by the public, or by anyone other than executive officials for particular purposes, for a fixed period of years, or until the death of Mr. Nixon and others participating in or the subject of communications, could eliminate the basis for plaintiff's objections to public access. Providing for the return to Mr. Nixon, pursuant to subsections 104(a)(5) and (7), of materials implicating his personal or political privacy rights could have similar effect. Because we believe such regulations fall plainly within the Administrator's authority, we find no need to adjudicate claims that such regulations could moot.

What remains before us, then, is the question whether the process by which the materials will be reviewed and classified, leading to the imposition on various classes of them of whatever access restrictions are included in the regulations, is constitutional. All of the parties appear to agree that more or less comprehensive review by government archivists seems contemplated under the Act — processing much like that used to review the materials accumulated by presidential administrations, and deposited in presidential libraries, since President Franklin D. Roosevelt's time. See pp. 345-347 and notes 31-33 infra. In considering a comprehensive review process, however, we do not overlook the possibility that procedures might be adopted which would permit some deviation from reviewing each tape recording or document on a literally word-by-word basis. Without suggesting that the Constitution requires adoption of any of the following — a question about which we express no view — we note a variety of archival practices that might be adopted — either because expressly mandated by regulation or merely as a matter of course — to limit any invasion of plaintiff's constitutionally protected interests by the screening process:

1. A practice of requiring archivists to make the minimal intrusion necessary to classify material. Identification by signature, the file within which material is found, general nature (as with diaries, or dictabelts serving the same function), a cursory glance at the contents, or other means could significantly limit infringement of plaintiff's interests without undermining the effectiveness of screening by governmental personnel. Participation by Mr. Nixon in preliminary identification of material that might be processed without word-by-word review would facilitate such a procedure.

2. A practice of giving Mr. Nixon some voice in the designation of the personnel who will review the materials, perhaps by selecting from a body of archivists approved by the government.

3. A practice of giving Mr. Nixon notice of all proposed classifications of materials and an opportunity to obtain administrative and judicial review of them, on constitutional or other grounds, before they are effectuated.

There is, of course, no certainty that regulations restricting public access or practices narrowly tailoring the screening process will be adopted. Were we to try to anticipate all possible constitutional questions, however, we would run the risk of rendering an advisory opinion as to some questions if such regulations or practices were ultimately adopted. For that reason, and in light of the Administrator's duty to draft regulations that scrupulously protect the constitutional rights of all parties concerned, we discuss below only questions directed toward the statute on its face and aspects of the screening process that, in their broadest outlines, we believe will necessarily be included in any processing conducted under a valid set of regulations.

III. CLAIMS RELATING TO THE SEPARATION OF POWERS

Mr. Nixon asserts two different challenges to the operation of the Act that derive from separation of powers concerns. First, he argues broadly that the Act infringes the powers of the President and hence represents an unconstitutional invasion of the executive sphere by Congress. Second, he insists that the Act infringes his presidential privilege as recognized by the Supreme Court in United States v. Nixon, supra.

In asserting a broad separation of powers claim, plaintiff points to a number of decisions suggesting that the three branches of government are totally distinct and autonomous, and that the separation of powers doctrine bars actions by one branch that even indirectly impinge upon another. Plaintiff's Brief at 83-85, citing Humphrey's Executor v. United States, 295 U.S. 602, 629-30, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), O'Donoghue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 77 L.Ed. 1356 (1933), and Springer v. Government of the Philippine Islands, 277 U.S. 189, 201, 48 S.Ct. 480, 72 L.Ed. 845 (1928). See also Plaintiff's Brief at 95-96, quoting Myers v. United States, 272 U.S. 52, 167, 47 S.Ct. 21, 71 L.Ed. 160 (1926). Presidential control over the disposition of presidential papers is stated to be an essential incident of the conduct of the presidency, an incident sanctioned by past practice as well as necessity. Congressional interference with such control, so it is said, unconstitutionally infringes powers reserved to the executive branch.

Although the view that the separation of powers mandates three mutually exclusive branches, each entirely free from interference by the others, may once have been ascendant in the Supreme Court, it is inconsistent with the earliest formulations, as well as the most recent judicial and scholarly consideration, of the doctrine. Madison in The Federalist No. 47, reviewing the origins of separation of powers doctrine, stated that "[o]n the slightest view of the British constitution we must perceive, that the legislative, executive and judiciary departments are by no means totally separate and distinct from each other." The Federalist 325 (J. Cooke ed. 1961). He continued by remarking that Montesquieu, the "oracle" always consulted on the subject, id. at 324,

did not mean that these departments ought to have no partial agency in, or no controul over the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted.

Madison's view was shared by Justice Story, who wrote:

But when we speak of a separation of the three great departments of the government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree.

I J. Story, Commentaries on the Constitution § 525 (M. Bigelow ed. 1905).

The view espoused in the cases upon which plaintiff relies reflects a stiffly formal and mechanistic view of government, one that does not admit of the need for flexibility in our constitutional system to respond to changed circumstances, newly perceived needs, and practical exigencies. The modern view of separation of powers rejects the metaphysical abstractions upon which Mr. Nixon would rely, and reverts instead to a more pragmatic, flexible, functional approach. It was well elaborated in Justice Jackson's concurring opinion in Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952):

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

That excerpt was quoted approvingly most recently in United States v. Nixon, supra, 418 U.S. at 707, 94 S.Ct. at 3107, in which the Supreme Court reiterated that "the separate powers were not intended to operate with absolute independence." See also Youngstown Sheet Tube Co. v. Sawyer, supra, 343 U.S. at 610, 72 S.Ct. at 897 (Frankfurter, J., concurring) ("the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed.") That position has the universal endorsement of commentators. See, e.g., 1 K. Davis, Administrative Law Treatise § 1.09 (1958); G. Gunther, Constitutional Law: Cases and Materials 400 (9th ed. 1975); L. Jaffe, Judicial Control of Administrative Action 28-30 (1965); Cox, Executive Privilege, 122 U.Pa.L.Rev. 1383, 1387-91 (1974); Ratner, Executive Privilege, Self Incrimination, and the Separation of Powers Illusion, 22 U.C.L.A.L.Rev. 92-93 (1974).

We therefore decline to embrace plaintiff's archaic view of the separation of powers as requiring three airtight departments of government. This is not to say that we do not consider the preservation of executive autonomy to be an important concomitant of a system of separated powers. Rather, given the tension between the independence and interdependence of the three branches, separation of powers questions are to be resolved by analyzing with particularity the extent to which an act by one branch prevents another from performing its assigned duties and disrupts the balance among the coordinate departments of government. To the extent such interference is perceived, the inquiry must then shift to considering whether the impact of an Act on one branch of government is justified by the need to pursue objectives whose promotion is assigned by the Constitution to a different branch. See United States v. Nixon, supra, 418 U.S. at 711-12, 94 S.Ct. 3090; Ratner, supra, at 92-95.

The only impairment of the Executive's ability to perform its duties that plaintiff alleges the Act would cause is the detrimental impact that disclosure of communications given to the President in confidence would have on the ability of future Presidents to obtain the candid advice necessary for effective decisionmaking. The need for protection of such confidentiality, as deriving from the separation of powers, was recognized by the Supreme Court in United States v. Nixon, supra, at 708, 94 S.Ct. 3090, in the form of a qualified privilege for certain executive communications. Both the Supreme Court and the court of appeals in this circuit, however, refused to recognize an absolute privilege, id. at 705-07, 94 S.Ct. 3090; Senate Select Comm. v. Nixon, 162 U.S.App.D.C. 183, 498 F.2d 725, 729-30 (1974) (en banc); Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700, 712-16 (1973) (en banc) (per curiam), instead analyzing with precision in each case how to accommodate the confidentiality protected by a qualified privilege to competing needs of other branches. The contrasting results of United States v. Nixon and Nixon v. Sirica, on the one hand, finding the needs of the grand jury to be paramount to the protection of executive confidentiality, and Senate Select Committee, on the other, finding that Committee's needs insufficiently compelling to justify an inroad on executive confidentiality, illustrate the need for particularized analysis rather than mechanistic formalism in resolving disputes between separate but interdependent branches.

Although Mr. Nixon denominates his claim as one of presidential rather than executive privilege, we do not assign any significance to semantic distinctions of this kind in the context of the case at bar. What we have before us is a claim of privilege to protect the generalized interest in free and candid communication to the President in the formulation of executive policy. This is the same privilege recognized in United States v. Nixon, Nixon v. Sirica, and Senate Select Comm. v. Nixon. The questions we face are who can assert that privilege, how to define its scope, and how to gauge its force when compared to competing considerations.

Mr. Nixon's claim of privilege could be easily disposed of were we to hold that only an incumbent President may assert a privilege to protect presidential confidentiality, even as to communications that took place during prior administrations. Since President Ford has signed the legislation and, far from presently asserting that the processing scheme contemplated by the Act is invalid, his administration is before us defending it, the privilege protecting presidential confidentiality arguably could not be the basis for invalidating the Act. That position has much to commend it. Invocation of executive privilege reflects a determination of where the public interest lies, which in turn requires full awareness and consideration of all the desiderata militating both for and against disclosure in a particular situation. The incumbent President alone is charged with the duty under the Constitution to make such a determination as part of his obligation to execute the laws, Sun Oil Co. v. United States, 514 F.2d 1020, 1027 (Ct.Cl. 1975) (Nichols, J., concurring), and he alone has the requisite knowledge of all facets of the problem and the unique perspective necessary to such a decision. 87 Harv.L.Rev. 1557, 1565 (1974). It is for this reason that the analogous principle has been established, in both cases involving a privilege shielding the executive from the need to disclose secret information and cases involving a privilege shielding the generalized interest in executive confidentiality, that only the head of the department involved, and not his subordinates, may invoke the privilege. See, e.g., United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 97 L.Ed. 727 (1953); Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D.C. 385, 463 F.2d 788, 793-94 (1971) (per curiam) (by implication); Mitchell v. Bass, 252 F.2d 513, 516 (8th Cir. 1958); Overby v. United States Fidelity and Guaranty Co., 224 F.2d 158, 162-63 (5th Cir. 1955). Furthermore, if the incumbent is not asserting privilege, there is little chance that disclosure would obstruct the ongoing formation and implementation of executive policy. See Cox, supra, at 1410 (by implication). Similarly, the incumbent has an interest in preventing disclosure of the confidences of predecessor administrators when he believes the effect will be to discourage candid presentation of views by his advisors; if he fails to raise a claim of privilege, surely the risk of impairing necessary confidentiality is attenuated.

In addition, to the extent that executive privilege is designed to shield executive officials, whose energies are and must be fully devoted to the vast governmental problems which they confront, from burdensome requests for information, see United States v. Nixon, supra, 418 U.S. at 714, 94 S.Ct. at 3110, quoting United States v. Burr, 25 F.Cas. 30, 34 (No. 14,692d) (C.C.D.Va. 1807) (privilege serves as a "`guard'" furnished to the President "`to protect him from being harassed by vexatious and unnecessary subpoenas'"); Cox, supra, at 1385; cf. Eastland v. United States Serviceman's Fund, 421 U.S. 491, 501-03, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Dombrowski v. Eastland, 387 U.S. 82, 84-85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) (per curiam), ab former President is in much less need than an incumbent. Finally, an incumbent President, responsible to the electorate for his actions and subject to the political restraints of a continuing readjustment with Congress, is less likely to succumb to the temptation to abuse his authority to claim privilege. See, e.g., Cox, supra, at 1430-32; Henkin, Executive Privilege: Mr. Nixon Loses but the Presidency Largely Prevails, 22 U.C.L.A.L.Rev. 40, 43 (1974); Sofaer, Book Review, 88 Harv.L.Rev. 281, 288-89, 292-94 (1974); Winter, Book Review, 83 Yale L.J. 1730, 1740-43 (1974); 87 Harv.L.Rev. 1557, 1565 (1974). Mr. Nixon's voluntary disclosure, while in office and after great pressure had been exerted, of materials which he believed to be privileged, see 10 Weekly Comp. of Pres.Docs. 449, 450-58 (May 6, 1974), indicates that the political check on an incumbent is more than academic.

Several judicial pronouncements have held or suggested that a former President may not claim executive privilege. See Sun Oil Co. v. United States, supra, at 1027 (Nichols, J., concurring); Order and Memorandum of September 24, 1975 in Halperin v. Kissinger, 401 F. Supp. 272, 274 (D.D.C., 1973), at 1-2. At least one other has taken a contrary view. See Order of March 26, 1975 in Apton v. Wilson, 506 F.2d 83 (D.D.C., filed Apr. 24, 1972) and Kuhn v. Wilson, 506 F.2d 83 (D.D.C., filed May 13, 1971) (consolidated cases). We do not believe that we must align ourselves with one or the other of these views. See Sun Oil Co. v. United States, supra, at 1025. For even assuming arguendo that Mr. Nixon may, as a former President, assert executive privilege, such a claim is not as forceful as one raised by an incumbent. All of the reasons militating against permitting a former President to assert privilege without the support of the incumbent suggest, at the least, that if he is to be allowed to do so, such a claim carries much less weight than a claim asserted by the incumbent himself.

It is this less forceful claim that we consider as the basis for Nixon's challenge to the screening process by which the estimated 42,000,000 pages of documents, see Hearings on GSA Regulations Implementing Presidential Recordings Materials Preservation Act before the Senate Comm. on Gov't Operations, 94th Cong., 1st Sess. at 83 (1975) [hereinafter cited as Senate Hearings on GSA Regulations], 880 tape recordings, see id. at 89, and other materials, see id. at 92, falling within section 101 of the Act will be reviewed. This claim quite plainly does not attach to all of these items, as Mr. Nixon concedes. See Plaintiff's Brief at 98. He estimates that he saw no more than 200,000 of the documents involved, Nixon Deposition at 15-16, and it is uncertain to what extent the privilege protecting presidential confidentiality recognized in United States v. Nixon attaches to materials he never saw. In any event, like all privileged communications, any communications here protected "must originate in a confidence that they will not be disclosed." 8 J. Wigmore, Evidence § 2285, at 527 (McNaughton rev. ed. 1961) (emphasis in original). Moreover, as United States v. Nixon suggests, the privilege is limited to communications "in performance of [a President's] responsibilities," 418 U.S. at 711, 94 S.Ct. 3090, "of his office," id. at 713, 94 S.Ct. 3090, and "in the process of shaping policies and making decisions," id. at 708, 94 S.Ct. at 3107. See Nixon v. Sirica, supra, at 717 ("in the President's performance of his official duties"); Cox, supra, at 1411 n. 106; cf. Eastland v. United States Servicemen's Fund, supra, 421 U.S. at 501, 95 S.Ct. 1813 (immunity of legislators deriving from the Speech and Debate Clause encompasses actions within the "`sphere of legitimate legislative activity'"), and cases cited. Undoubtedly, some of the 200,000 documents Mr. Nixon himself saw, as well as many of the others and significant portions of the tape recordings, are not related to the discharge of presidential duties and hence fall outside the scope of this protection. Moreover, a strong argument can be made that as to some of the materials encompassed by the Act and related to presidential duties, prior disclosures by Mr. Nixon, see 10 Weekly Comp. of Pres.Docs. 997, 1008-09 (Aug. 3, 1974); 10 id. 449, 450-58 (May 6, 1974); H.R. Rep. No. 93-1305, 93d Cong., 2d Sess., at 191-205 (1974), constitute a waiver of any privilege, see 8 J. Wigmore, supra, §§ 2327-29; C. McCormick, Handbook of the Law of Evidence § 93 (2d ed. E. Cleary 1972); Model Code of Evidence rule 231(b) (1942); Uniform Rules of Evidence rule 510 (1974); 87 Harv.L.Rev. 1557, 1566-68 (1974), a factor that the court of appeals in this circuit believed to be relevant in judging the relative weight of the competing claims of the grand jury and the President in Nixon v. Sirica, supra, at 717-18.

Thus, the executive privilege issue reduces to the following: insofar as a claim of privilege by Mr. Nixon has force as to some of the materials covered by the Act, how serious an intrusion on executive confidentiality will screening by government archivists necessarily be, and do the objectives served by the Act justify that intrusion? Once the issue is properly framed in this fashion, we believe the answer to it is relatively easy.

The intrusion on executive confidentiality that review of the materials by government archivists would constitute is, in our view, at most minimal. For that confidentiality is not absolute over time, but rather begins to erode after an administration leaves office. Presidents and advisors are likely to write memoirs or to engage in public reminiscences disclosing communications that once were confidential. See Intervenor-Defendants' Joint Memorandum at 132-37. Indeed, Mr. Nixon, like Lyndon Johnson before him, see Affidavit of Mildred Stegall at 1-2, established a taping system precisely to aid him in preparation of his memoirs, see Nixon Deposition at 72-73, a project for which his plans were known while in office, Nesbitt Deposition at 10, 58-60. Every President since Herbert Hoover has deposited presidential papers in presidential libraries, see Senate Hearings on GSA Regulations at 105, 246-47; Affidavit of Daniel J. Reed at 1, an example Mr. Nixon says he intended to follow, see Nixon Affidavit at 17-18; see also Affidavit of Richard A. Jacobs at 7-8. Over time, access restrictions have been removed from most of the materials on deposit, affording members of the public access to communications that, at the time they were made, were confidential. Hence, there has not been any practice of permanently preserving executive confidentiality in recent decades. On the contrary, in an era when both executive responsibilities and the quantity of presidential papers were increasing, every President since the establishment in 1934 of the National Archives (and Herbert Hoover as well) has turned over presidential papers for governmental preservation and eventual disclosure.

Perhaps most important, the screening process uniformly employed in these libraries — and therefore the practice that present executive officials would likely expect — involves comprehensive review by archivists of the materials on deposit, including those upon which access restrictions are ultimately imposed. We would have trouble under any circumstances finding that mere screening by archivists, whose record for discretion in handling confidential material is unblemished, e.g., Affidavit of William R. Emerson, July 23, 1975, at 2-3; Affidavit of Harry J. Middleton at 2; Affidavit of John Stewart at 3-4, substantially infringes executive confidentiality, especially in light of the practices that might be adopted, see pp. 339-340 supra, to limit the intrusiveness of review. Cf. United States v. Nixon, supra, 418 U.S. at 706, 94 S.Ct. at 3107 (finding it "difficult to accept the argument that even the very important interest in confidentiality of presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide"); Sun Oil Co. v. United States, supra, at 1024. But when that very process is one that must fairly have been anticipated by executive officials in the Nixon administration, the argument that such screening is likely to stifle free and open communication in the future loses virtually all weight whatsoever.

There was, moreover, adequate justification for the congressional decision to entrust custody of the documents and the responsibility for their screening to GSA rather than Mr. Nixon. Chief Executives are not by nature professional archivists, and they lack expertise as to what materials may prove to be of historical value. See H.R. Rep. No. 93-1507, 93d Cong.2d Sess., at 6 (1974) ( quoting Franklin D. Roosevelt):

[Presidential material] should be kept in one place and kept in its original form because Presidential papers and other public papers have been culled over during the lifetime of the owner, and the owner has thrown out a good deal of material which he personally did not consider of any importance which, however, from the point of view of factual history, may have been of the utmost importance.

Review of materials such as these requires both enormous expertise and enormous manpower, see Senate Hearings on GSA Regulations at 12-13, 90-132, and Congress could legitimately wish to establish regularized procedures to ensure that the process by which the materials would be reviewed would be adequate to the task. Congress might also have been concerned that those entrusted with reviewing such materials be not only expert, see Affidavit of Daniel J. Reed at 2-3, but disinterested. Any former President is virtually certain to be concerned with the light in which history will view the record of his tenure. His quite natural hope is that his conduct will be viewed with favor, and if he were to possess unbridled control over the papers of his administration — the raw materials from which historical judgments will be fashioned — there is always some risk that those items that might paint a different picture from the one he would like to portray will be subject to destruction or alteration, or otherwise unavailable to various government agencies and members of the public.

That risk might rationally be thought by Congress to be considerably magnified by reference to the circumstances surrounding Mr. Nixon's departure from office. The investigations conducted by the House Judiciary Committee (culminating in a recommendation that Mr. Nixon be impeached), the Watergate Special Prosecution Force, and the Senate Select Committee on Presidential Campaign Activities, and the substantial evidence they brought forth which might reasonably have been thought by Congress to suggest that there was misconduct on the part of Mr. Nixon and his close associates, are too familiar and too well-recorded elsewhere to merit elaboration by us. See H.R. Rep. No. 93-1305, 93d Cong., 2d Sess. (1974); S.Rep. No. 93-981, 93d Cong., 2d Sess. (1974); Watergate Special Prosecution Force, Report, [hereinafter WSPF Report] Oct., 1975, and sources cited 265-73. The temptation to distort or destroy the historical record might be thought by Congress to be less resistible in the event that the materials provided some foundation for allegations that misconduct took place. Without indicating any view about the accuracy of these or any other allegations, we believe that Congress had before it an adequate basis for concluding that responsible processing of the materials in accordance with important public interests could be better ensured if the materials were entrusted to government archivists.

The simplest way of describing the public interests served by the Act is to merge all of them under the rubric of preservation of an accurate and complete historical record. Although such a characterization is justifiable, it belies the multiplicity of ways in which preservation serves vital national interests. Two interests in particular seem to us to be of special importance and plainly to be furthered by the Act, even were restrictive controls on access by the general public imposed by regulation.

First, and most broadly, the Act serves the national interest by preserving materials upon which historians must draw in order accurately to recount and to judge the political history of our time. See, e.g., S.Rep. No. 93-1181, 93d Cong., 2d Sess., at 1, 3 (1974); H.R. Rep. No. 93-1507, 93d Cong.2d Sess., at 2, 3, 8 (1974); Senate Hearings on GSA Regulations at 256; 120 Cong.Rec. S 16871 (daily ed. Sept. 18, 1974) (remarks of Sen. Nelson); id. at S 18235 (daily ed. Oct. 3, 1974); id. at S 18248 (remarks of Sen. Ervin); id. at S 18259 (remarks of Sen. Huddleston); id. at S 18260 (remarks of Sen. Ribicoff); id. at S 18261 (remarks of Sen. Muskie); id. at S 18325 (daily ed. Oct. 4, 1974) (remarks of Sen. Nelson); id. at H 11207 (daily ed. Dec. 3, 1974) (remarks of Rep. Brademas). See also sections 101(b)(1), 104(a)(7) of the Act. Moreover, the Act may provide a scheme by which the materials are not only preserved, but may be screened promptly and professionally to ensure that when materials become available to public access, they will be readily usable. See generally, e.g., Hearings on GSA Regulations at 1-232. Congress might properly have shared the sentiment of Harry S. Truman that is inscribed at the entrance to the library housing the presidential papers of his administration:

This library will belong to the people of the United States. My papers will be the property of the people and be accessible to them. And this is as it should be. The papers of the Presidents are among the most valuable sources of material for history. They ought to be preserved and they ought to be used.

Second, preservation of these materials is needed to ensure their availability for successive administrations engaged in policymaking. See S.Rep. No. 93-1181, 93d Cong., 2d Sess., at 3, 4, 5 (1974); H.R. Rep. No. 93-1507, 93d Cong., 2d Sess., at 3 (1974); 120 Cong.Rec. H 11211 (daily ed. Dec. 3, 1974) (remarks of Rep. Abzug). See also section 102(d) of the Act. Governmental programs and policies do not expire every four or eight years; the information and lessons gained from past experience do not evaporate the moment a new President is inaugurated. In both the first presidential transition, from George Washington to John Adams, and the most recent transition following Mr. Nixon's resignation, as well as in many others, the importance of this need has been recognized by making some provision for continued access to documents of the outgoing administration. That practice has not, to be sure, been uniform, but that nonuniformity may only reinforce the validity and cogency of a congressional view that records of past executive policymaking ought to be preserved so that future administrations can have ready access to them and a desire to institutionalize arrangements conducive to such a practice. As is described in detail in note 1 supra, the materials which plaintiff claims the right to control include vital information relating to domestic policymaking conducted entirely within the White House or by the White House in conjunction with executive agencies, and records of communications with foreign governments or White House communications with executive agencies concerning foreign affairs. Much of this information is contained only in the materials under dispute in this case. There are numerous examples in the record of incumbent administrations having to apply to presidential libraries for permission to examine records of past government actions that relate to current government problems — permission that has not uniformly been granted. We agree with the assessment of this state of affairs made by Arthur Schlesinger, Jr.:

No President should ever have to apply to the library of one of his predecessors, as President Kennedy had to apply to the Eisenhower Library in 1962 to find the memorandum of a presidential conversation with an English Prime Minister, or as President Johnson had to apply to the same library in 1967 for presidential correspondence with a Prime Minister of Israel.

Schlesinger, supra note 14, at 180. Precedent as old as Justice Story's opinion in Folsom v. Marsh, 9 F.Cas. 342, 347 (No. 4901) (C.C.D.Mass. 1841), and as recent as the 1974 Opinion of the Attorney General on ownership of presidential papers, 43 Op.Att'y Gen. No. 1 (Sept. 6, 1974), at 5-7, has recognized the importance of this need, as did Congress with respect to executive records generally, rather than presidential materials specifically, when it enacted the Federal Records Act of 1950, 64 Stat. 583, codified in 44 U.S.C. § 2101 et seq. (1970). We believe Congress could legitimately believe it important to legislate, as it did, to ensure that this need is served by a regularized and certain procedure.

Although these two interests strike us as the most significant, there are three other interests of considerable force that are served by this Act. First, the events of the past years, and the widespread allegations surrounding them, might properly be thought by Congress to have undermined the nation's faith in its political processes and its confidence in its future. See 120 Cong.Rec. S 18258 (daily ed. Oct. 3, 1974) (remarks of Sen. Cranston); id. at S 18260 (remarks of Sen. Ribicoff). To the extent that short-term public access is consistent with preservation of constitutional rights and privileges, a full airing of these events by disclosure of materials whose contents are peculiarly informative is surely a legitimate congressional pursuit. See S.Rep. No. 93-1181, 93d Cong., 2d Sess., at 3, 4, 6 (1974); H.R. Rep. No. 93-1507, 93d Cong., 2d Sess., at 2, 8; 120 Cong.Rec. S 16871 (daily ed. Sept. 18, 1974) (remarks of Sen. Nelson); id. at S 18233, 18235 (daily ed. Oct. 3, 1974); id. at H 11207 (daily ed. Dec. 3, 1974) (remarks of Rep. Brademas); id. at H 11211 (remarks of Rep. McKinney). See also section 104(a) of the Act. And here too, disclosure serves values at the core of the First Amendment. See pp. 349-350 and note 39 supra.

The documents and tape recordings are important to the legislative branch because they enable Congress to understand how our political processes have operated, a necessary predicate to informed consideration of the appropriateness of legislative reform and changes in institutional design. See S.Rep. No. 93-1181, 93d Cong., 2d Sess., at 3, 4 (1974); H.R. Rep. No. 93-1507, 93d Cong., 2d Sess., at 2, 3, 8 (1974); 120 Cong.Rec. S 16871 (daily ed. Sept. 18, 1974) (remarks of Sen. Nelson); id. at S 18235 (daily ed. Oct. 3, 1974). The congressional power to investigate, although limited to areas in which Congress possesses legislative authority, Eastland v. United States Servicemen's Fund, supra, 421 U.S. at 504 n. 15, 95 S.Ct. 1813, is both broad and integral to the legislative process, id. at 504-05, 95 S.Ct. 1813 and cases cited. Information from both recent and more distant years may be essential to guide legislative decision-making, and therefore, by preserving the Nixon presidential materials, the Act serves to aid the legislative process.

Finally, these materials are important to the Judiciary in the event that they might shed light upon material issues in civil or criminal litigation. See S.Rep. No. 93-1181, 93d Cong., 2d Sess., at 1, 4, 6 (1974); H.R. Rep. No. 93-1507, 93d Cong., 2d Sess., at 2, 3, 8 (1974); 120 Cong.Rec. S 16870-71 (daily ed. Sept. 18, 1974) (remarks of Sen. Nelson); id. at S 18233 (daily ed. Oct. 3, 1974); id. at H 11207 (daily ed. Dec. 3, 1974) (remarks of Rep. Brademas). See also sections 102(b), 104(a)(2) of the Act. Plaintiff has reminded us that, under the Nixon-Sampson agreement, all materials would be available to judicial process for a period of three years, and the tape recordings for five. See Reply Brief at 2-4; pp. 10-12 supra. And we note in addition that the Special Prosecutor has indicated that he has fulfilled his need for the materials in the investigations he has undertaken. See pp. 16-18 note 11 supra. These facts do not, however, dispose of the genuine need of the Judiciary. In the first place, the agreement was only one between Mr. Nixon and the executive branch, and Congress might have been concerned that it was not immune from amendment. More important, there was no assurance that the need for evidentiary material in litigation would no longer exist after the three-year period. New needs in existing cases might arise; new actions might be brought; in the case of criminal prosecutions, retrials might take place if convictions were reversed upon appeal. The enormous volume of litigation related to Watergate or involving Mr. Nixon, civil and criminal, that has taken place or is now pending, see WSPF Report at 155-68; Affidavit of Raymond G. Larroca at 6-8, indicates the importance of this interest and belies any notion that three years is a magic period after which the needs of litigants for materials covered by the Act will suddenly disappear.

Plaintiff alleges that the Act is overbroad with respect to various of these purposes. We do not believe this to be the case. The Act authorizes retention by the government of only those materials that in some manner have historical significance. See sections 101(b)(1), 104(a)(7); note 6 supra. It may be true that some of the materials to be retained may never be needed by any historian, member of the public, or branch of government. However, adequate foresight does not exist to permit anyone today to determine what materials may acquire importance, in relation to the congressional objectives, over time. Virtually any item might be needed by a historian, depending upon what subjects seem fit to study some years from now. To a lesser degree, the same point can be made as respects any of the other purposes. Especially insofar as Congress may have wished to establish a practice conducive to widespread use of these materials for all purposes, the retentions cannot be thought to be overbroad.

Nor does it strike us that Congress failed to employ the most narrow means available to screen materials effectively. It is true that archivists will, in the course of reviewing materials, be required to review both (1) materials outside the coverage of the Act and which are plainly plaintiff's private property — for example, various pre-presidential materials of Mr. Nixon's, see Nixon Affidavit at 2, and (2) materials which, regardless of the state of title, may contain confidential or private communications about a wide range of matters. But those intrusions are inevitable given the manner in which the materials are intermingled. See Affidavit of Thomas R. Wolf at 3. In the White House Central Files, see note 1 supra, no attempt was made to segregate personal, political, or official documents. Affidavit of William J. Hopkins at 8. Moreover, materials from staff employees in the White House were gathered in great haste following Mr. Nixon's resignation, and little is known about the contents of many of the boxes in which they are stored. Deposition of Jack Nesbitt at 42-46; Affidavit of William F. Matthews at 6. Even individual documents may contain both communications that are related to governmental duties, are of great historical interest, and are neither private nor confidential, and communications that are extremely private and confidential and of no historical significance. Affidavit of William J. Hopkins at 8. Thus, as a rule, it is necessary to review each document to some extent in order to classify it. Affidavit of Richard A. Jacobs at 8. As for the tape recordings, they shift suddenly and unpredictably among various subjects of conversation, so that again the comprehensive review necessary to identify conversations related to legislative objectives necessarily will intrude on conversations that may be private, confidential, or wholly unrelated to those objectives. Affidavit of Raymond G. Larroca at 1-4. Because the intermingled state of the materials allows no effective manner of identifying and classifying the materials other than the scheme broadly contemplated under this Act, we find that the Act is not overbroad. Moreover, it was necessary for Congress not merely to take custody of the materials, but also to ensure that their processing commenced promptly so that, to the maximum extent possible, the numerous requests for access to materials that had already been received, see notes 41, 45 supra, or could reasonably be expected, would not have to be denied (as had happened in the past, see sources cited note 68 infra) merely because the requested materials had not been processed. See p. 371 infra. We conclude, therefore, that the great importance of congressional purposes here far outweighs the need to prevent the very limited intrusion on whatever interest — if any — in presidential confidentiality Mr. Nixon may assert, and hence find his separation of powers and presidential privilege points to be without merit.

IV. CLAIMS RELATING TO PRIVACY

We reiterate at the outset that we concern ourselves only with the constitutional questions raised with respect to the process by which the screening will be performed. Since any claim by plaintiff that his privacy will be invaded by public access to private materials must be considered premature when it must actually be directed to the regulations once they become effective, we need not consider how the materials will be treated after they are reviewed. See pp. 334-339 supra.

It is difficult to know precisely how many of the 42 million pages of documents and what proportion of the 880 tape recordings implicate plaintiff's privacy, but the ratio appears to be quite small in both cases. As far as the documents go, if plaintiff himself saw no more than 200,000, see p. 345 supra, we find it difficult to believe that more than a tiny fraction of them contain materials which Mr. Nixon reasonably expected to be private. Included within the materials falling under the Act, for example, would be internal memoranda from an executive agency which, after review by numerous individuals in that agency, were transmitted to a member of the White House staff but never to Mr. Nixon, see note 1 supra; the attenuated connection of such material to Mr. Nixon and the exposure to many others makes any privacy claim in such materials on his part impossible to sustain. Wherever bare legal title may be thought to reside in respect of the papers here in issue, it seems clear that the great bulk of them — those relating to the conduct by Mr. Nixon of his duties as President and a political leader of the nation — are quite unlike private property in light of the great public interest attaching to them. It is of course black letter law that the Fourth Amendment protects privacy and not property, e.g., Cardwell v. Lewis, 417 U.S. 583, 589, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality opinion); Warden v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), but in this case the two may not be wholly distinct concepts. Rather, the public trust in the bulk of these papers — be it denominated as a property interest or otherwise — itself undercuts the reasonableness and force of any privacy expectation that Mr. Nixon would assert in the bulk of the papers. As for the tape recordings, we have no estimate by Mr. Nixon of what percentage of the conversations implicate Mr. Nixon's privacy rights. But recordings made in the offices provided for use by the President must surely relate primarily to the conduct of the presidency. Moreover, insofar as Mr. Nixon has made public certain portions of the tape recordings, see p. 345 supra, he can no longer claim a privacy right in them. United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Katz v. United States, supra, 389 U.S. at 351, 88 S.Ct. 507.

Among all of the papers and tape recordings falling within the Act, however, are some papers and materials containing extremely private communications between him and, among others, his wife, his daughters, his physician, lawyer, and clergyman, and his close friends, as well as personal diary dictabelts and his wife's personal files. Nixon Affidavit at 8-12. Segregating those that are private from those that are not private requires rather comprehensive screening, and archivists entrusted with that duty will be required to read or listen to private communications. See p. 355 supra. Although the fact that private materials comprise only a small fraction of the total may be relevant to the Act's overall reasonableness, it in no way indicates that those private materials do not fully implicate privacy concerns.

This screening process would raise little, if any, constitutional difficulty were the Act wholly prospective in operation. A President who knew he would be subject to such a statute would have the opportunity to file materials to prevent commingling, to prevent retention of some materials, or to take other steps to protect his privacy. If commingling of private and nonprivate materials persisted, it would be difficult to claim that an objection, based on privacy grounds, to archival processing necessary to segregate materials would be reasonable. In this case, however, Congress acted retroactively with respect to Mr. Nixon. Moreover, it acted against a historical background of de facto presidential control over the disposition of materials. In the era when presidential libraries have been established by former Presidents, it has been the consistent practice for those Presidents to remove from the White House virtually all the files: the Central Files and all of its component parts except for the relatively insignificant precedent file, see note 1 supra; any files maintained by the President or his secretary; the non-institutional files of the National Security Council, see note 1 supra; Affidavit of Jeanne W. Davis at 3; and materials from the files of staff members except those relating to personal activities, Affidavit of William F. Hopkins at 6; Affidavit of John S.D. Eisenhower at 5; Deposition of Jack Nesbitt at 69-70. The only files left behind are the precedent file of the Central Files; the card file of the Records Office, see note 1 supra; and the files of the Administrative Office, see id. It was the common assumption of those familiar with this practice that each President would follow it. McDonough, supra note 34, at 2-4; Hoxie, Who Owns Presidential Papers?, 27 Manuscripts 6, 10 (1975).

Although every President who has established a presidential library has requested and obtained the assignment of archivists to screen materials, Affidavit of Richard A. Jacobs at 8-9, some of which undoubtedly were private in nature, see sources cited note 33 supra, these Presidents or their designees have removed some items from the screening process, either by excluding them from the scope of the deposited materials or by placing them on deposit but forbidding their even being screened. On the whole, such exclusions have involved materials private in nature, often relating to personal and financial aspects of family relations. Moreover, if other private materials were not excluded from review in the past, that might demonstrate little more than that past Presidents chose not to protect fully their privacy rights, a choice not necessarily binding upon Mr. Nixon. Regardless of the state of title to the materials in question — an issue we do not reach — we believe that the manner in which such materials have been treated by past Presidents, together with the legislative approval of such treatment, see V. Treacy, Ownership of Presidential Papers, Sept. 24, 1974 (Library of Cong., Cong.Rsch.Serv.); 43 Op.Att'y Gen. No. 1, at 3-5 (Sept. 6, 1974), gave rise to a legitimate expectation on Mr. Nixon's part that not all of the materials would be subject to comprehensive review by government personnel without his consent. See 120 Cong.Rec. S 16871 (daily ed. Sept. 18, 1974) (remarks of Sen. Nelson); Nixon Affidavit at 17, 19. Whether this intrusion on privacy interests is called just that or is considered a search and seizure, it constitutes the central issue in adjudicating plaintiff's privacy claim.

We do not believe the Fourth Amendment's warrant requirement is applicable to this case, and hence the only touchstone of the legality of a search and seizure is its reasonableness. See, e.g., United States v. United States District Court, 407 U.S. 297, 309, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Camara v. Municipal Court, 387 U.S. 523, 534-39, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). There is "no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails." Id.; accord, e.g., Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. 1868, at 1879. The problem before us is how to interpret the reasonableness requirement when facing materials which (1) for the most part are not private and are related to congressional purposes, (2) include items that are personal and private and/or unrelated to those purposes, and (3) are impossible to segregate other than by reviewing all of them.

We believe that the precedents upholding the legality of electronic surveillance conducted pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-20 (1970), argue forcefully for finding that the Act before us does not unconstitutionally infringe plaintiff's privacy. It is true, of course, that the provisions of Title III govern searches primarily designed to investigate criminal violations, a quite different emphasis from that of this Act; but, as we note below, that difference only strengthens our conclusion that the Act does not violate any privacy rights. Electronic surveillance of wire communications involves interception of conversations (1) some of which are expected to be related to law enforcement, (2) some of which are not, and (3) for which there is no available means to segregate the one from the other except by reviewing them all. Thus, such surveillance, like the processing involved under this Act, necessarily contemplates intrusions into communications that may be both unconnected to legitimate government objectives and intensely private. If that fact alone were thought sufficient to render surveillance unconstitutional, then law enforcement officials would be foreclosed from ever employing that technique. No court has reached such a conclusion. Instead, every one of the ten circuits that have ruled upon the question has upheld the legality of surveillance conducted according to the scheme of the Omnibus Act. Turner v. United States, 528 F.2d 143, 158-159 (9th Cir. July 24, 1975); United States v. Sklaroff, 506 F.2d 837, 840 (5th Cir.) cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975); United States v. Ramsey, 503 F.2d 524, 526-31 (7th Cir. 1974), cert. denied, 420 U.S. 932, 95 S.Ct. 1136, 43 L.Ed.2d 405 (1975); United States v. Martinez, 498 F.2d 464, 467-68 (6th Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 639, 42 L.Ed.2d 654 (1974); United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007, 1012-13 (1974); United States v. Tortorello, 480 F.2d 764, 771-75 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973); United States v. Bobo, 477 F.2d 974, 978-82 (4th Cir. 1973), cert. denied sub. nom. Gray v. United States, 421 U.S. 909, 95 S.Ct. 1557, 43 S.Ct. 774 (1975); United States v. Cafero, 473 F.2d 489, 493-501 (3d Cir. 1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2622, 41 L.Ed.2d 223 (1974); United States v. Cox, 462 F.2d 1293, 1302-04 (8th Cir. 1972); United States v. Cox, 449 F.2d 679, 683-87 (10th Cir. 1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d 136 (1972).

Of course, that scheme requires that a variety of standards and procedures be met before surveillance may be employed. Although the parallel is not, of course, perfect, we believe that this Act does not on its face deviate from those standards and procedures in their principal aspects. For example, under the Omnibus Act, surveillance can be conducted to investigate only designated crimes that are serious in nature, 18 U.S.C. § 2516 (1970), and only when normal investigative procedures have failed or would be likely to do so, id. § 2518(3)(c). Here, we have a processing scheme without which national interests of overriding importance cannot be served, see pp. 348-355 supra, and hence, in terms of the seriousness of the need and the inability to employ potentially less restrictive means, the Act conforms to the spirit of the Omnibus Act. The Omnibus Act also requires that the interception of the communication be minimized. 18 U.S.C. § 2518(5); see, e.g., United States v. Scott, 516 F.2d 751 (D.C. Cir. 1975); United States v. James, supra. Although the Act before us does not so require in its statutory provisions, as we indicated above, see p. 361 supra, the scheme under which the materials will be processed could properly follow such a practice, as well as other practices designed to protect Mr. Nixon's privacy to the maximum extent possible. Thus, we believe the question of the Act's facial validity falls within the precedents upholding the constitutionality of Title III.

Furthermore, there are other factors that suggest that any invasion of legitimate expectations of privacy is entirely reasonable. Whether regarded as making the legality of this Act even clearer than the legality of electronic surveillance or as providing an independent line of argument that the Act is valid, we believe these factors indicate that Mr. Nixon's privacy claim cannot be sustained. First, the percentage of documents and conversations in which plaintiff has no reasonable privacy expectation, although it cannot be estimated with precision, appears to be extremely high. A comparison to the Omnibus Act is instructive. If we assume that all 200,000 of the documents Mr. Nixon saw, and no others, implicate his privacy interests (assumptions that may both be somewhat inaccurate, but whose inaccuracies are offsetting, and which on balance do not seem ungenerous to Mr. Nixon's claim), a very large fraction of the 42,000,000 pages of documents would appear to be nonprivate, and it appears that a very high percentage of them would be related to government interests served by the Act. The ratio of conversations on the 880 tape recordings, although less certain and perhaps lower, is most likely also quite high. By contrast, the most recent report on surveillance conducted pursuant to the Omnibus Act indicates that for the calendar year 1974, the overall average percentage of incriminating intercepts to total intercepts per authorizing order was just over 50%. Administrative Office of the United States Courts, Report on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications, January 1, 1974 to December 31, 1974, at X (Table 4). Particular wiretaps resulted in interceptions none, or only a very small percentage, of which were related to government law enforcement objectives. Id. at 2-11 (Table A-1), 23-70 (Table B-1). Even if we were to assume that some of the interceptions included in these figures were illegal and hence, the figures should be somewhat higher, nonetheless, the percentage of total intrusions related to statutory objectives appears to be strikingly higher under the Act before us than is true especially of individual instances of electronic surveillance, but also of such surveillance considered on average. The fact that only a small fraction of the vast number of materials here at issue seem likely to implicate Mr. Nixon's privacy suggests the reasonableness of the screening process contemplated by the Act.

Second, the infringement of privacy caused by review by archivists with an unblemished record for discretion, see p. 347 supra, is less wide-ranging than that resulting from ordinary criminal investigation whose purpose is use of evidence at trials exposed to the public. Indeed, although Mr. Nixon might, had he carried out his stated intention to establish a presidential library, have removed some of the most private materials before deposit, it seems unlikely that he, unlike his predecessors, would have had the time or the inclination to attempt to remove all documents implicating his privacy. See pp. 346-347 supra. Thus, we suspect that he contemplated permitting archivists to review materials in which he had a reasonable expectation of privacy. That would not, of course, operate to defeat his expectation. However, we do believe it helps to indicate that, in the special situation of documents accumulated by a President during his tenure and reviewed by professional government personnel, pursuant to a process employed by past Presidents, any intrusion into privacy interests is less substantial than it might appear at first. Cf. United States v. Nixon, supra, 418 U.S. at 706, 94 S.Ct. at 3107 (stating, in the context of executive privilege rather than right to privacy, that "we find it difficult to accept the argument that even the very important interest in confidentiality of presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide"); Sun Oil Co. v. United States, supra, 514 F.2d at 1024. See also note 57 supra.

Third, it is possible that the regulations will expressly prohibit use in criminal investigation and prosecution of any information derived from archival processing. That possibility is far more than chimerical in light of the Special Prosecutor's having indicated he has obtained all evidence needed for his investigations. See note 11 supra. In any event, such a prohibition could be imposed through judicial review of regulations were it thought to be constitutionally compelled. See also note 18 supra. The protections of the Fourth Amendment, of course, apply to searches that are unconnected to enforcement of criminal laws. See, e.g., Camara v. Municipal Court, supra, 387 U.S. at 530-31, 87 S.Ct. 1727. But there is considerable authority for the proposition that a less strict and particularized government showing is necessary to comply with the Fourth Amendment's reasonableness requirement when the search is entirely "civil" in nature. See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266, 278-79, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) (Powell, J., concurring); Wyman v. James, 400 U.S. 309, 321, 323-24, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971); id. at 344 n. 4, 91 S.Ct. 381 (Marshall, J., dissenting) (by implication); Camara v. Municipal Court, supra, 387 U.S. at 530-31, 533, 537-38, 87 S.Ct. 1727; White, supra note 56, at 178-80; Testimony of Attorney General Edward H. Levi before the Senate Select Comm. to Study Governmental Operations with respect to Intelligence Activities, Nov. 6, 1975, at 24-25, 32-35, 41-44. See also note 56 supra. This authority also lends weight to the conclusion that any invasion of privacy interests — that is, any search and seizure — contemplated by the Act is reasonable.

We would be less than candid were we to state that we find it as easy to dispose of Mr. Nixon's privacy claims as his claim of presidential privilege. But on balance, we believe that the congressional act here is a reasonable response to the difficult problem caused by the mingling of personal and private documents and conversations in the midst of a vastly greater number of nonprivate documents and materials related to government objectives. The processing contemplated by the Act — at least as narrowed by carefully tailored regulations — represents the least intrusive manner in which to provide an adequate level of promotion of government interests of overriding importance. See United States v. Biswell, 406 U.S. 311, 315-16, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Camara v. Municipal Court, supra, 387 U.S. at 535-36, 87 S.Ct. 1727 (1967); La-Fave, Administrative Searches and the Fourth Amendment, 1967 Sup.Ct.Rev. 1, 14-17. Although the invasion of Mr. Nixon's privacy from processing, even by discreet and professional government archivists, of all of the materials at issue is not insignificant, we do believe, in light of the special circumstances before us in this case, that it is not unreasonable and hence does not call into question the facial constitutionality of the Act. Hence, we find plaintiff's claim to be without merit.

V. FREEDOM OF SPEECH AND ASSOCIATION

It is undisputed that the First Amendment's protection of freedom of expression encompasses association for the advancement of political ideas. E.g., Kusper v. Pontikes, 414 U.S. 51, 56-57, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Bates v. Little Rock, 361 U.S. 516, 522-23, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-62, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). "Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." Id. at 462, 78 S.Ct. at 1172. Where an infringement of associational freedom can be shown, the government bears the burden of showing that the action it defends serves a compelling government interest that cannot be promoted in a less restrictive way. E.g., Kusper v. Pontikes, supra, 414 U.S. at 58-59, 94 S.Ct. 303; United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). Mr. Nixon invokes this established First Amendment doctrine in pressing his claim.

This contention is in its structure not very different from the Fourth Amendment question we have just discussed. It too is limited to the constitutionality of a screening process necessary to classify and categorize materials only some of which implicate Mr. Nixon's constitutionally protected interest in associational privacy. There are, undoubtedly, some materials mingled among the great bulk that truly implicate Mr. Nixon's ability to associate in private in order to advance political ideas, and the fraction of these as compared to the total is unlikely to differ substantially in size from that fraction implicating his Fourth Amendment interests. See pp. 358-359 supra. Here, too, Mr. Nixon may have in effect waived his right to invoke freedom of association with respect to certain portions of the materials which he earlier disclosed. Cf. pp. 345-359 supra. And although the great bulk of the materials appear to be unrelated to Mr. Nixon's constitutional interests, he appears to have a legitimate expectation that he would have an opportunity to remove some of the sensitive political documents before any government screening took place. See pp. 360-361 supra.

The allegations of infringement of rights here, however, are predicated on the assumption that all materials will be opened to public access without any protection of plaintiff's constitutional interest in, inter alia, associational privacy. See Plaintiff's Brief at 144, 149, 150-52; Reply Brief at 60-62. This is an assumption, as noted above, which we have no reason to accept or to base a ruling upon. Hence, we need not resolve the debate between plaintiff, on the one hand, and defendants and any intervenor-defendants, on the other, as to whether the kinds of burdens Mr. Nixon alleges are cognizable and not excessively speculative. For we believe that any burden arising solely from review by professional and discreet archivists is not significant, and certainly not significant enough to outweigh countervailing government interests. Mr. Nixon's freedom to continue to express himself on public issues will not be impaired if a handful of government archivists privately know the contents of materials in which plaintiff may or may not have taken inconsistent positions. Similarly, that private knowledge of archivists will not deter individuals with whom Mr. Nixon has associated (or would like to associate) from participating with him in political activities. For these reasons, we do not believe that the Act will in any significant way chill association by or with future presidents. Cf. pp. 345-347 supra. Finally, there is no showing here of the kinds of sanctions, coercion, harassment, or other oppression that characterized such cases as NAACP v. Alabama ex rel. Patterson, supra, 357 U.S. at 462, 78 S.Ct. 1163, and Bates v. Little Rock, supra, 361 U.S. at 523-24, 80 S.Ct. 412, in which the doctrine of associational freedom was first developed, and that more recently were accorded considerable significance by another three-judge court in this district, see Order of October 22, 1975 in Doe v. Martin, 404 F. Supp. 753, 755-762. Rather, this case is not unlike Buckley v. Valeo, supra, where the court of appeals in this circuit considered whether auditing provisions of the Federal Election Campaign Act that authorize the Federal Election Commission to inspect but not to disclose confidential records of political contributions violate the First Amendment. The court there held that "the confidential status of those records precludes any claim of real or threatened injury to plaintiffs' First Amendment interests arising from public disclosure." 519 F.2d at 865. Plainly put, plaintiff has provided us with no reason to believe that screening by government personnel, by itself, undermines his First Amendment freedoms. See also California Bankers Ass'n v. Shultz, 416 U.S. 21, 51-52, 56-57, 94 S.Ct. 1494, 89 L.Ed.2d 812 (1974). And since, as was noted earlier, the Act is a legitimate and not unnecessarily restrictive means of furthering government interests of great importance, we find no basis whatsoever for upholding Mr. Nixon's challenge to the Act on First Amendment grounds.

VI. EQUAL PROTECTION

Mr. Nixon has emphasized that the materials would have been preserved for at least three years under the Nixon-Sampson agreement. The implication is that there was no urgent need for immediate governmental control or for singling out plaintiff; during that period, Mr. Nixon might have established a presidential library, making him like past Presidents of the modern era, or the Commission might have finished its work, enabling Congress to apply the same standards to him and to future Presidents. This argument, we believe, misses the point. The possibility existed that Mr. Nixon and the GSA might decide to amend the agreement so as to foreshorten the three-year period. Even within the course of three years' time, there was no assurance either that Mr. Nixon would plan to establish a presidential library or that the Commission would have completed a study that would be translated into law. Indeed, at this date — over 15 months after the Nixon-Sampson agreement was formed — the Commission's first meeting has just been held, although its report to the President and Congress is to be transmitted no later than March 31, 1976, see 44 U.S.C.A. § 3322 (Supp. I, Feb. 1975). Although Mr. Nixon has asserted that he intends to establish a presidential library at the University of Southern California, see Nixon Affidavit at 19; Affidavit of John R. Hubbard at 1-2, no binding arrangements have yet been made.

In addition, there was a distinct disadvantage to waiting for the completion of the Commission's report: in the interim, no progress could be made in the lengthy process of reviewing, classifying, and housing the materials so that they might become available for a variety of uses. On the assumption that processing could begin in the spring of 1976, GSA estimates that the materials whose review would receive first priority would not be fully processed until the fall of 1979. The first priority materials comprise only 21% of the total, and although the other 79% can be processed more quickly, they would receive no attention, except for initial shelving and arranging, until the 1980s. Senate Hearings on GSA Regulations at 115-19. Similarly, the tape recordings would not be fully processed until the end of 1979. Id. at 132. The examples in the record of requests from a variety of individuals or agencies for access to materials in presidential libraries having to be refused merely because processing had not been completed indicate the importance of beginning the lengthy processing period as promptly as possible, so that access to the materials by the public or by government officials would not be unduly delayed. See also notes 41, 45 supra.

Finally, as noted above, see pp. 347-348 supra, Congress had before it an adequate basis for concluding that Mr. Nixon might not be a wholly reliable custodian of the materials at issue. This aspect of the case provides a basis for distinguishing him from other Presidents, whose inclination to serve important public interests in disposing of such materials Congress had less reason to question. It also reinforces the dangers of deferring congressional action in the event that the agreement were amended, or, after three years' time, no satisfactory arrangements for a presidential library existed and the Commission report was not completed or acted upon. We believe that this additional factor makes even clearer what is already apparent, namely, that there was adequate justification for according different treatment to these materials than to those accumulated during other Presidential administrations. See also note 35 supra.

Mr. Nixon also suggests that the Act must be subjected to heightened scrutiny and requires compelling justifications because it infringes his fundamental interest both in free speech and association and in privacy. The first of these interests has already been discussed in its own right, as the protections of the First Amendment apply directly to the case, and we found the infringement of expressive interests to be insubstantial and amply justified. That analysis, we believe, is fully dispositive of any equal protection claim resting upon so-called strict scrutiny. See, e.g., Police Dept. v. Mosley, 408 U.S. 92, 94-102, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1, 29-30; The Supreme Court, 1973 Term, 88 Harv.L.Rev. 41, 153-55 nn. 36, 39 (1974). As for the privacy claim, Mr. Nixon provides no authority indicating that the kind of privacy interests whose protection he seeks has heretofore been provided under the equal protection clause, and we know of none; but even if such authority existed we believe once again that the analysis above of the infringement of those interests, as compared to the furtherance of important legislative objectives, disposes of his claim.

VII. BILL OF PAINS AND PENALTIES

Article I, section 9, clause 3 of the Constitution prohibits the legislature from enacting a bill of attainder, which is a legislative determination of guilt and imposition of punishment upon a specified group or specified individuals without the safeguards of a judicial trial. E.g., United States v. Brown, 381 U.S. 437, 441-46, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965); id., at 462-64, 8 S.Ct. 1707 (White, J., dissenting); Flemming v. Nestor, 363 U.S. 603, 613, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); id. at 627, 80 S.Ct. 1367 (Black, J., dissenting); De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (plurality opinion); United States v. Lovett, 328 U.S. 303, 315-17, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946); id. at 321-22, 66 S.Ct. 1073 (Frankfurter, J., concurring). Strictly speaking, an act is a bill of attainder when the punishment is death, and a bill of pains and penalties when the punishment is less severe, but both kinds of punishment have been held to fall within the scope of the constitutional prohibition. E.g., United States v. Lovett, supra, at 323-24, 66 S.Ct. 1073 (Frankfurter, J., concurring); Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323, 18 L.Ed. 356 (1867).

Plaintiff's argument that the Act is a bill of pains and penalties rests primarily upon the general political atmosphere asserted to exist at the time the legislation was passed. As Mr. Nixon describes it, there was a period of great political turbulence during and following "Watergate": congressional inquiries had generated widespread allegations of misconduct; articles of impeachment had been recommended by a House committee; and in the wake of that recommendation there followed a presidential resignation. A presidential pardon granted Mr. Nixon by his successor generated enormous controversy and, on the part of some legislators, anger, frustration, and a determination not to let the pardon prevent airing of the whole Watergate affair to the public. In light of these circumstances, plaintiff asserts that the Act was designed to punish him for the wrongdoing that was alleged, and hence falls within the bill of attainder clause. Plaintiff's Brief at 195-205; Plaintiff's Reply Brief at 63-66.

Assuming arguendo that this characterization of legislative sentiment is accurate, we believe it falls far short of making out a meritorious bill of attainder claim. Congress may often be angered or frustrated by executive decisions, and may often attempt to bring to the notice of the public information bearing upon allegations of wrongdoing by government officials. Whether or not such congressional activity is likely to represent a wise exercise of legislative power, it is not automatically punitive in character. And when plaintiff moves from asserting the existence of anger and frustration to asserting punitive motivation, he uniformly fails to adduce any evidence from the legislative record or otherwise to support his contention. Surely not any piece of legislation, or any piece of legislation more or less related to "Watergate," that was passed during times that Mr. Nixon asserts were turbulent must be found unconstitutional on bill of attainder grounds. Whether it is depends upon a demonstration of punitive intent or character, and that demonstration is patently lacking here.

The test of whether a legislative enactment is punitive in nature has been variously stated. To some extent it has rested upon whether there exist other, non-punitive, purposes that may plausibly be assigned to the legislation, e.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Trop v. Dulles, 356 U.S. 86, 107-10, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion); Cummings v. Missouri, supra, 71 U.S. (4 Wall.) at 319-20, and in this case, as we have already noted, we find such alternative purposes plainly present. See pp. 349-354 supra. A similar test, and one whose application leads to the same conclusion, is that indicated in Flemming v. Nestor, supra, 363 U.S. at 614, 80 S.Ct. at 1374, quoting De Veau v. Braisted, supra, 363 U.S. at 160, 80 S.Ct. 1146 (plurality opinion):

Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected. The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified. . . . . .

"The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession."

There is no evidence presented to us, nor is there any to be found in the legislative record, to indicate that Congress' design was to impose a penalty upon Mr. Nixon, by depriving him of custody and control of the disposition of the materials at issue, as punishment for alleged past wrongdoings. There is, however, ample evidence that Congress cared about regulating how the materials would be treated in the future in order to ensure that such treatment will be consistent with Congressional perceptions of the public interests. See pp. 348-354 supra. Moreover, in determining whether depriving Mr. Nixon of absolute control of the materials constitutes punishment, other indicators — whether the deprivation has historically been regarded as punishment, whether it comes into effect only upon a finding of scienter, and whether the behavior to which it applies is already a crime, Kennedy v. Mendoza-Martinez, supra, 372 U.S. at 168, 83 S.Ct. 554; whether the deprivation seems especially severe in context, id. at 169, 83 S.Ct. 554; Cummings v. Missouri, supra, 71 U.S. (4 Wall.) at 317-18 — also point toward a negative conclusion. Control over processing of presidential materials has not traditionally been associated with either crime or punishment, and the operation of the Act in no way depends on the scienter of Mr. Nixon or anyone else. Moreover, in relation to the congressional purposes, the Act could not have been drawn more narrowly, see p. 355 supra, and any effect on Mr. Nixon cannot be thought, in context, to be at all severe, or unnecessary, or merely punitive. The legislative history leads to only one conclusion, namely, that the Act before us is regulatory and not punitive in character.

That conclusion is reinforced by specific aspects of the Act that just do not square with the claim that the Act was a punitive measure. Section 102(b) of the Act gives Mr. Nixon as well as other individuals the right to contest any legal process directed to the materials by asserting any rights, defenses, or privileges he may have. Section 102(c) provides him or his designees with a right of access at all times to all materials covered by the Act. Section 104(a) directs the Administrator, in promulgating regulations, to consider both the need to protect any party's opportunity to assert any legal or constitutional right or privilege (subsection 5), and the need to give to Mr. Nixon or his heirs, for his or their sole custody and use, any tape recordings or materials whose preservation is unnecessary to further legislative ends (subsection 7). Section 105(a) provides for jurisdiction and expedited treatment of various claims arising under the Act, and was designed in part to provide plaintiff with an expedited route to follow in seeking to protect any rights he believed had been infringed, see 120 Cong.Rec. S 18239 (daily ed. Oct. 3, 1974) (remarks of Sen. Ervin). Section 105(c) provides for payment of compensation to any individual who is found to have been deprived of private property by the operation of the Act. Provisions such as these are not the trappings of a punitive and vindicative enactment. Finally the establishment in Title II of a Commission to study records of federal officials reflects Congress' perception of a genuine regulatory problem and the need for action to solve that problem in the future. Even if it could plausibly be alleged that a legislature whose design was to punish would choose as the penalty deprivation of control over these original materials — surely an odd form of punishment — it strains credulity to argue that the deprivation of control, in the context of and as limited by these specific statutory provisions, was intended to inflict punishment within the reach of the bill of attainder clause.

The approach of the Bicentennial Year has already seen a widening appreciation of the importance of the preservation of our historical heritage. It seems inevitable that Congress would sooner or later, address itself to the formulation of a uniform policy with respect to the disposition of the papers of presidents and other significant functionaries of the federal government.

Had the Act before us been fully prospective, it seems fair to say that none of the constitutional problems dealt with hereinabove would have been serious. Mr. Nixon, however, served as President for over five years in a highly eventful period, accumulating vastly more papers illuminative of his time in office than any other President. Moreover, his tenure of the office ended under extraordinary circumstances which have themselves become an important fact of our national history, and which brought sharply into focus the need for Congress to make a start upon the articulation of a coherent policy of records preservation. To start with Mr. Nixon himself was surely not an irrational determination, but it presents problems which both the face of the Act and its legislative history show Congress to have been keenly aware of.

We do not believe those problems to be such as to justify stopping the Act in its tracks, given its scheme of implementation by regulations in the writing of which Congress itself has retained a role. But sensitivity to constitutional protections cannot end with the adoption of the Act itself. It must permeate, in both regulation and practice, the effectuation of the Act as well.

Although we hold that the facial constitutionality of the Act requires dismissal of the complaint, we think it appropriate, pending the final disposition of any appeal plaintiff may deem it advisable to take, to enjoin any processing or disclosure of the materials in question except for the very limited purposes hereinafter appearing.

ORDER

In accordance with the foregoing opinion, it is this 7th day of January, 1976,

Ordered that the preliminary and permanent injunctive relief prayed for by plaintiff is denied and the complaint dismissed as without merit; and, pending the final disposition of any appeal from this decision, it is

Further ordered that the defendants, their superiors, agents, and assigns are hereby enjoined from processing, disclosing, inspecting, transferring, or otherwise disposing of any materials, be they documents, papers, tape recordings or other items, which might fall within the coverage of section 101(a), (b) of the Presidential Recordings and Materials Preservation Act and which are now or may in the future be in their custody, except as is specifically provided hereinafter; and it is

Further ordered that this injunction shall not bar production of materials pursuant to any subpoena or other lawful process in accordance with the procedures established in 41 C.F.R. §§ 105-63.201 to .207, .303; and it is

Further ordered that Mr. Nixon or his designated agent shall at all times have access to the materials in accordance with 41 C.F.R. §§ 105-63.201 to .207, .301, and shall have the right to obtain photographic reproductions of any documentary material; and it is

Further ordered that only the defendants or their agents shall undertake to reproduce any materials, and shall not permit any other person to do so; and it is

Further ordered that the injunction shall not bar inspection and photographic reproduction of documentary material when needed for current business of the executive branch of the federal government, pursuant to a request that has been approved by both the head of the agency or department of the executive branch seeking access and by defendant Philip W. Buchen or his successor, although plaintiff shall receive notice of any access requested ten days prior to the grant thereof in order to be able to raise in court any defenses, rights, or privileges that might bar such access, and if such opposition is presented, defendants shall not permit access until the issue has been resolved in court, and any such access granted shall be in accordance with the procedures of 41 C.F.R. §§ 105-63.201 to .207; and it is

Further ordered that this court will retain jurisdiction of this case in order to consider whatever additions, deletions, or changes in this order might be deemed appropriate.