---DEPARTMENT OF STATE W ashingto n D C 20520 January 14 1976 Memoranda of Telephone Conversations Monitored By Dr Kissinger's Staff As Assistant to the President This memorandum addresses the question whether common law and constitutional law support the confidentiality of certain memoranda of telephone conversations monitored by Dr Kissinger's staff while he was serving as Assistant to the President I The Memoranda are NOT subject to the Presidential Recordings and Materials Preservation Act This statute subjects certain tape records and Presidential historical materials of Richard M Nixon to the control of the Administrator of General Services subject to specified conditions The statute was upheld on its face on 7 January 1976 by a three-judge panel of the District Court for the District of Columbia The case is reportedly on appeal to the Supreme Court Specifically the materials subject to the statute and therefore subject to the District Court order of 7 January 1976 are 1 all original tape recordings of conve rsations 11 Se c 101 a P L 93-526 De c 19 1974 88 Stat 1695 44 U S C A note to Se c 2107 Fe brua ry 1975 s uppl e me nt See attache d • r iJ DECLA SSIF mo Authority N D7 • 2 • 2 all papers documents memorandums transcripts and other objects or materials which constitute the Presidential historical materials of Richard M Nixon Sec l0l b Historical materials are defined in the statute as defined in section 2101 of Title 44 which concerns archival administration as including books correspondence documents papers pamphlets works of art models pictures photographs plats maps films motion pictures sound recordings and other objects or materials having historical or commemorative value The 1974 statute and the District Court order cover ONLY materials of Richard M Nixon The memoranda now in the custody of Mr Eagleburger are not such materials for the following reasons 1 The conversations were not with Mr Nixon -but with others with whom Dr Kissinger spoke 2 The conversationsrand the memoranda reporting them never became part of the White House's Central Files which were subject to the directions of the President and subject to the normal record keeping systems instituted by the White House for White House records or for records of Richard M Nixon 3 The statute of 1974 was passed to supersede a private contract between Mr Nixon and Mr Sampson Administrator of General Services because Congress feared inter alia that Mr Nixon might not preserve papers that in the public interest should be preserved Mr Nixon as far as we know never asserted then nor asserts now that records of the telephone conversations involved here were materials of Richard M Nixon The District Court in Nixon v GSA cited archival practices frequently as appropriate guides in interpreting the scope of the statute The archives of previous Presidents do include some materials collected personally by members of the President's staff but these materials were received as gifts of the donors For example the papers collected by Harry Hopkins in the course of his employment as an • 3 • intimate advisor of President Roosevelt were a gift to the FDR Library imilarly the papers of Mr Harriman accumulated in both the Roosevelt and Truman administrations were given to the Truman Library not the Roosevelt Library by Mr Harriman who made a personal decision to give the papers to the library of the President he chose It is not necessary to determine who owns the papers for purposes of deciding that the papers are NOT materials pf Richard M Nixon The papers embody some personal property rights of their author the literary interest of the originator is protected even if he is a government employee according to respectable authority see Nimmer on Copyright Sec 66 and cases therein cited The papers clearly are appropriate for the Administrator of General Services to receive should Dr Kissinger see fit to transfer them Under Public Law 90-620 Act of Oct 22 1956 44 u s c 2107 the Administrator is authorized to accept historical materials of an official or former official of the Government subject to restrictions agreeable to the Administrator as to their use In Nichols v U S 460 F 2d 671 10th Cir 1972 the Court upheld the right of the Kennedy estate to donate materials to the Government subject to severe restrictions despite the fact that it was uncertain whether or not the Kennedy estate had title to the materials The Court specifically found that the materials were properly withheld from disclosure under the Freedom of Information Act as matters that are specifically exempted from disclosure by statute II The Memoranda are confidential under both common law and constitutional law doctrines The constitutional and statutory context in which public disclosure of information is often posed tends to obscure a more fundamental point namely that confidentiality may be legally justified in the absence of a statute and in the absence of any separation of powers doctrine The need for confidentiality is not always rooted in the Constitution but is implied by common law courts where the need • 4 • for confidentiality overcomes the asserted interest in disclosure To be sure the need may be buttressed by a constitutional claim and the description of the claim by the Court may be couched in constitutional references The courts however may be creating constitutional common law In U S v Nixon the Supreme Court explicitly asserted a nonconstitutional basis for some confidentiality in government in recognizing The valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties the importance of this confidentiality is too plain to require further discussion In addition the Supreme Court in U S v Nixon recog ized a c nstitut o al basis or withholding material relating to military or diplomatic secrets See Monaghan Constitutional Common Law 89 Har L Rev 1 Nov 1975 418 U S 683 705 1974 • · • Public Law 93-536 93rd Congress Ho Ro 15818 December 22 1974 2ln 2lct 'l'o amend title 44 United States Code to redesignate the National Historical Publications Commission ns the National Historical Publications and Records Commission to increase the mPmbersbip of such Commission and to increase the authorization of appropriations for such Commission Be it enacted by the Senate and Houae of Representatives of the United States of Ame11ica in Oongress assembled That a chapter 25 of title 44 United States Code is amended IJy inserting AND RECORDS immediately after PUBLICATIONS in the chapter headin - - -- -- ----- ----- -- - --- ---- -- - ------ - b ection 2501 of such title is amended by inserting two members of the Society of American Archivists to be appointed for terms of four years by the Society of American Archivists two members of the American Association for State and Local History to be appointed for terms of four years by- the American Association for State and Local History immediately after the last semicolon in such section c Section 2504 b of such title is amended byan l striking out 1973 and inserting in lieu thereof 1975 2 striking out $2 000 000 and inserting in lieu thereof $4 000 000 SEO 2 The chapter analysis at the beginning of title 44 United States Code is amended by striking out 25 National Historical Publications Commission and inserting in lieu thereof 25 National Historical Publications and Records Commission Approved December 22 19740 LEGISLATIVE HISTORY HOUSE REPORT No 93-1340 Comm on Government Operations SENATE REPORT No 93-1331 Comm on Government Operations CONGRESSIONAL RECORD Vol 120 1974 Dec 3 considered and passed House Deo 12 considered and passed Senate GPO 88•189 National Historical Publications Commission Name change 44 USC 2501 Membership increase 8 STAT 1734 88 STAT 1735 Appropriation