Public Citizen, et al. v. Frank Burke, Acting Archivist, National Archives & Recordsadministration, et al., Appellants,richard M. Nixon.public Citizen, et al. v. Frank Burke, Acting Archivist, National Archives & Recordsadministration, et al.appeal of Richard M. Nixon, 843 F.2d 1473 (D.C. Cir. 1988)

The Nixon Papers Act has engendered much litigation since its passage in 1974. See Nixon v. General Servs. Admin., 433 U.S. 425, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977); Nixon v. Freeman, 670 F.2d 346 (D.C. Cir.), cert. denied, 459 U.S. 1035, 103 S. Ct. 445, 74 L. Ed. 2d 601 (1982); Allen v. Carmen, 578 F. Supp. 951 (D.D.C. 1983). The principal intent of Congress in passing PRMPA was to maintain a publicly available historical record of the Nixon presidency by gaining control over some 42 million pages of documents and 880 tape recordings from former President Nixon by in effect abrogating Mr. Nixon's depository agreement with Arthur F. Sampson, Administrator of the General Services Administration ("GSA"). H.R.Rep. No. 1507, 93d Cong., 2d Sess. 2-4 (1974). The Nixon-Sampson Agreement, announced on September 8, 1974, the day then President Ford pardoned Mr. Nixon, gave former President Nixon "all legal and equitable title" to the materials, the power to control access to the materials, the right to withdraw any portion of the materials after three years, and the assurance that all tape recordings would be destroyed upon Mr. Nixon's death or September 1, 1984, whichever was earlier. See Nixon v. Sampson, 389 F. Supp. 107, 160-62 (D.D.C. 1975) (App. A., Nixon-Sampson Agreement).

Congress entrusted the Administrator of the GSA with custody of the Nixon materials--an action the Supreme Court subsequently upheld as not unconstitutional, at least on its face. Nixon v. General Servs. Admin., 433 U.S. 425, 97 S. Ct. 2777, 53 L. Ed. 2d 867. Although the Administrator was replaced by the Archivist in 1984 as the official in charge of the materials,¹  the Act and its goals have remained largely intact. PRMPA requires the Archivist to promulgate regulations for public access, taking into account seven factors ranging from the "need" to disclose information about "Watergate" to 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." PRMPA Sec. 104(a).²  Congress intended PRMPA to "provide the public with the full truth, at the earliest reasonable date, of the abuses of government power" during the "Watergate" period. H.R.Rep. No. 1507, 93d Cong., 2d Sess. 1-3 (1974). In order to protect its interest in disclosure, Congress at first enacted a legislative veto provision in Sec. 104(b), but after INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983) held unconstitutional Congress' use of the one-House veto, it settled on a requirement that the regulations not take effect until sixty days after their submission to Congress, PRMPA Sec. 104(b) (Supp. II 1984).

Under the current, sixth set of regulations,³  the Archivist prepares the Nixon materials for public access by organizing them into "integral file segments," which are "intelligible and complete unit [s] for purposes of historical research." Freeman, 670 F.2d at 352 n. 11. Access is tempered, however, by the Archivist's segregation of certain restricted materials: for example, materials that are private or that neither relate to "abuses of power" nor have general historical significance are not released. 36 C.F.R. Sec. 1275.46(b) (1987); see also id. Sec. 1275.50(a) (no access if release of Watergate materials would violate a federal statute or is subject to a claim of privilege); id. Sec. 1275.52(b) (no access if release of non-Watergate materials would disclose trade secrets or constitute libel or an invasion of personal privacy).

Once a segment is fully prepared, the Archivist is obliged to publish in the Federal Register notice of his intent to provide public access. Id. Sec. 1275.42(b). This notice must identify the materials to be made public and also apprise any interested person that he is entitled to assert a legal or constitutional right or privilege to halt access. Those who are to receive special notice include former President Nixon and any individual whose name appears in the materials. If there is a complaint protesting disclosure, the interested individual may file his objection with the Archivist, who, according to the language of the regulations, is responsible for the decision in those cases involving claims of privilege. Id. Sec. 1275.44(a).

Before publication of this sixth version of the regulations, the Archivist, pursuant to Executive Order No. 12,291, forwarded the regulations to the Office of Management and Budget ("OMB") for clearance. OMB in turn requested the views of the Justice Department's Office of Legal Counsel ("OLC") as to whether the proposed regulations adequately honored Sec. 104(a) (5) of PRMPA concerning claims of privilege. OLC responded by memorandum asserting that the language of the regulations--insofar as they authorized the Archivist to determine the merits of an assertion of executive privilege--would not be consistent with the Constitution. According to OLC, if either an incumbent President or former President Nixon were to assert executive privilege with respect to any document or group of documents, the Archivist would be obliged to honor that claim and a requester could only challenge the assertion of executive privilege in federal court.

The Archivist did not formally modify the regulations to conform to OLC's view, but has, since publication, indicated his determination to conform fully to the Justice Department's opinion. Testifying before Congress, the Archivist, Dr. Frank G. Burke, said "Because approval by the [OMB] of our regulations was conditioned upon the Department of Justice opinion and because the Department of Justice represents the National Archives in all litigation, we consider the opinion binding upon our administration of the Nixon materials." Review of Nixon Presidential Materials Access Regulations: Hearing Before a Subcomm. of the Comm. on Gov't Operations, 99th Cong., 2d Sess. 176, at 43 (1986) (testimony of Frank G. Burke, National Archivist); see also Letter from Frank G. Burke to Hon. Thomas P. O'Neill (Feb. 26, 1986) (reporting the final set of PRMPA regulations with OLC memorandum interpretation).⁴  All parties to this litigation agree that the regulations have essentially been modified to accord with the Justice Department's views and it is as modified that they were challenged in the district court by appellees.⁵ 

The statute is not explicit as to whether Congress intended the Archivist to determine himself the merits of a claim of executive privilege. We therefore must consider whether the government's construction of the statute is entitled to deference. Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 & n. 9, 104 S. Ct. 2778, 2781 n. 9, 81 L. Ed. 2d 694 (1984). Appellees argue that deference would be manifestly inappropriate here since Congress originally delegated its interpretation to GSA and subsequently, to ensure professional non-partisan implementation, to the Archivist. And, as is quite clear, the Archivist did not originally interpret the statute as the Justice Department would wish; in fact, the Archivist does not explicitly embrace OLC's view, he only acquiesces in OLC's opinion.

The doctrine of administrative law obliging the Judiciary to defer to an administrative agency's interpretation of a statute the agency is charged with enforcing does in part, as appellees suggest, rest on the assumption that a specific agency's expertise is greater than the court's--and therefore that agency is likely to understand congressional purpose, in the zone of its expertise, more profoundly than the Judiciary. But deference is required also because the Executive Branch, populated by political appointees, is thought to have greater legitimacy than the non-political Judiciary in resolving statutory ambiguities, in light of policy concerns, when congressional intent is unclear. Chevron, 467 U.S. at 864-66, 104 S. Ct. at 2792-93. Of the Executive Branch officers, the President, of course, embodies the ultimate political legitimacy and therefore his views as to the manner by which his appointees will interpret a statute may not be lightly disregarded, see Sierra Club v. Costle, 657 F.2d 298, 405 (D.C. Cir. 1981); see also In Re: Sealed Case, 838 F.2d 476, 488-89 & n. 21 (D.C. Cir. 1988), prob. juris. noted sub nom. Morrison v. Olson, --- U.S. ----, 108 S. Ct. 1010, 98 L. Ed. 2d 976 (1988).⁶  Since the incumbent President, by virtue of Article II's command that he take care that the laws be faithfully executed, quite legitimately guides his subordinates' interpretations of statutes, it seems anomalous for the Judiciary to refuse deference merely on the grounds that it can be shown that the agency's interpretation was one pressed by the President upon reluctant subordinates. Cf. Chevron, 467 U.S. at 865-66, 104 S. Ct. at 2792-93. Indeed, even the inquiry might raise separation of powers concerns.

We need not decide, however, whether appellees are correct in contending deference should not be afforded because the interpretation is not truly that of the Archivist. We agree with appellees that deference is inappropriate here for a second reason they advance; the government's administrative position is not, in any meaningful sense, an interpretation of the statute. The OLC memorandum is driven entirely by its constitutional reasoning; it makes no effort to ground its view of the statute on congressional purpose, even if such purpose is understood very broadly. Chevron, 467 U.S. at 843 & n. 9, 104 S. Ct. at 2781 n. 9; SEC v. Chenery, 332 U.S. 194, 200, 67 S. Ct. 1575, 1579, 91 L. Ed. 1995 (1947); Cablevision Sys. Dev. Co. v. Motion Picture Ass'n of Am., 836 F.2d 599, 609 (D.C. Cir. 1988). Rather, OLC's position fairly read is that the regulations must carry its gloss, otherwise, they would be unconstitutional, which of course is simply another way to say the statute would be unconstitutional if interpreted as the Archivist's regulations (without OLC's gloss) do.⁷  The federal Judiciary does not, however, owe deference to the Executive Branch's interpretation of the Constitution. See United States v. Nixon, 418 U.S. 683, 703-05, 94 S. Ct. 3090, 3105-06, 41 L. Ed. 2d 1039 (1974).

The government's constitutional argument is essentially this: An executive privilege claim could be raised by the incumbent President to release any of the Nixon papers. In that event, it is wholly inconsistent with Article II to contemplate the Archivist, an appointee of the President, independently determining whether the President's claim is meritorious. The Archivist would instead be obliged to honor the claim of his constitutional superior. Since, moreover, a former President retains his right to claim executive privilege, Nixon v. General Servs. Admin., 433 U.S. at 448-49, 97 S. Ct. at 2792-93, it follows according to the government that the Archivist must afford him the same deference that he gives the incumbent President: " [J]ust as we believe ... that the Archivist must and will honor any claim of executive privilege asserted by an incumbent President, we believe that the Archivist must and will treat any claim by a former President in the manner outlined in this opinion." Assuming arguendo that the government is correct in its premise--we recognize its argument on that point is powerful--its conclusion does not follow. Ronald Reagan, not Richard Nixon, is the constitutional superior of the Archivist. Ronald Reagan has the constitutional power to direct the Archivist, not Richard Nixon.

The OLC memorandum acknowledges, indeed insists, that in the event there were to be disagreement between an incumbent President and former President Nixon as to whether documents should be disclosed (the disagreement could involve the incumbent President favoring either disclosure or non-disclosure) the Archivist would be obliged to follow the direction of the incumbent. To be sure, OLC believes an incumbent President should honor the claims of executive privilege interposed by a former President, but that is argued seemingly as a question of policy, not law, because OLC recognizes "this principle must yield when it conflicts with the discharge of the incumbent's constitutional responsibilities." It may well be, as OLC observes, that a former President's privilege is diminished if an incumbent President sits "as judge" of the validity of the claim, but that seems an overstatement of the effect of the regulations. After all, even if the incumbent President were to determine that certain documents over which former President Nixon asserted executive privilege should be disclosed in order to satisfy the incumbent President's constitutional responsibilities in the event Mr. Nixon brought suit to stop disclosure, a federal court would do the "judging."

In short, since the incumbent President is not constitutionally obliged to honor former President Nixon's invocation of executive privilege with respect to the Nixon papers, we see no reason why the Archivist--an appointee of the incumbent President--is himself constitutionally compelled to afford any more deference to Mr. Nixon's claim than would be the incumbent President. OLC's discomfort with the role that the Archivist would play under the regulations as written suggests more notions of lese majeste than unconstitutionality.

We find no support for OLC's constitutional argument in Nixon v. General Services Administration. The Supreme Court recognized that an incumbent President--as opposed to a former President--is in the "best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly." 433 U.S. at 449, 97 S. Ct. at 2793. Indeed, former Presidents' "expectations of the confidentiality of executive communications" is understood to erode over time. Id. at 451, 97 S. Ct. at 2794; Freeman, 670 F.2d at 356. That suggests, therefore, that an incumbent President, aided perhaps by his close subordinates, must exercise some discrimination and judgment with respect to a former President's assertion of executive privilege if he wishes to support it. To say, as does OLC, that Mr. Nixon's invocation of executive privilege cannot be disputed by the Archivist, a subordinate of the incumbent President, but must rather be evaluated by the Judiciary in the first instance is in truth to delegate to the Judiciary the Executive Branch's responsibility as set forth in the statute and the accompanying regulations. It may well be unpleasant for the Executive Branch to be forced to consider the host of difficult questions that arise in this area, and the statute may place the incumbent President in an awkward position by obligating him to take a position on claims of executive privilege put forward by former President Nixon. Nonetheless, since the Archivist is part of the Executive Branch, we do not see how the incumbent President's responsibility to take care that the laws be faithfully executed can properly be transferred to the Judiciary.⁸ 

The Archivist may well not be particularly qualified by himself to evaluate former President Nixon's claims of executive privilege, but we see no reason why the incumbent President cannot ensure adequate consultation with his Justice Department--perhaps OLC--to enable the Archivist to make appropriate determinations. See 36 C.F.R. Sec. 1275.44(c) (Archivist may consult with other appropriate federal agencies in making his determinations regarding a claim of privilege). And the Archivist will be knowledgeable, as appellees emphasize, as to what information is already disclosed and therefore will be, if properly advised as to constitutional matters, uniquely suited to expressing the Executive Branch's determination on such claims.

Finally, our conclusion that OLC's modification of the Archivist's regulations is not constitutionally compelled is consistent with our prior opinion in Nixon v. Freeman, 70 F.2d 346 (D.C. Cir. 1982). There the fifth set of regulations was challenged in part because, like the sixth set prior to OLC's memorandum, it required former President Nixon to assume the burden of coming forward to challenge any particular disclosure that he thought would violate executive privilege. Mr. Nixon argued that the Archivist was obliged to identify and segregate material implicating the privilege to reduce the burden on the former President to examine all disclosures to determine whether he should assert a privilege. We rejected that argument, holding that Mr. Nixon must assert the privilege on a disclosure-by-disclosure basis and only after that assertion should the Archivist focus on the issue. Freeman, 670 F.2d at 359. We also rejected Mr. Nixon's claim, similar, if not identical, to the one presented here, that a requester must show a particularized need for sought documents:

Rather, we think that those who see in disclosure a threat to the privilege must be given a meaningful opportunity to contest disclosure on that basis. The regulations give Mr. Nixon such an opportunity. He can raise a challenge by sending a letter to the Administrator explaining his position; only if his claim is rejected administratively need he present his claim in court.

Freeman, 670 F.2d at 359 (emphasis added). Clearly in Freeman we saw no constitutional anomaly in the prospect of the Archivist rejecting a challenge by Mr. Nixon based on executive privilege.

We are thus left with the question whether the OLC (the government's) "interpretation" of the Archivist's regulation is consistent with the statute. This is an issue of law concerning which, as we have explained, we afford no deference to the government's position. As such, we conclude that it is at variance with congressional purpose and therefore reject it.

Section 104(a)'s primary thrust is disclosure. Section 104(a) (5) is an exception to the statute's central purpose, but the government's construction of the regulation results in the exception looming larger than the rule. If, whenever Mr. Nixon asserts executive privilege, the Archivist in effect loses jurisdiction over his responsibilities to affect disclosure, the former President has gained power to withdraw from the Archivist some indefinite portion of the responsibilities that Congress delegated to him--and transfer those responsibilities to the Judiciary. We think that is a strained interpretation of congressional purpose, indeed one which, but for OLC's constitutional concerns, apparently would not be advanced by the government. We read the statute, as do appellees, as imposing on the Archivist the responsibility to arrange for disclosure of a category of the Nixon papers. The burden to seek disclosure is not, as is largely true of the Freedom of Information Act, 5 U.S.C. § 552 (1982), for example, placed upon the public. Of course, as Sec. 104(a) (5) specifically provides, the Archivist must afford an "opportunity" to Mr. Nixon to assert his privileges, but the implication of the statute is that Mr. Nixon's assertion must be directed to that individual whom Congress entrusted with the affirmative duty to disclose. The regulations proposed by the Archivist, without OLC's modification, accomplish just that, whereas OLC's modification shifts much of the administrative responsibility to the Judiciary. We do not believe that shift reflects a correct understanding of congressional intent.

We hold, as did the district court, that the Archivist's regulations, as interpreted by the OLC memorandum, rely on an erroneous construction of the Constitution and therefore cannot be sustained. Since the government asserts in this court that the promulgation of the regulation was not conditioned upon the Justice Department's interpretation, there is no need to direct the district court to remand to the Archivist. The judgment of the district court approving the regulations as promulgated by the Archivist, without the Justice Department's modification, is therefore affirmed.

It is so ordered.