William J. Brennan

“ The Senate pointed to these same objectives in nullifying the Nixon-Sampson agreement:
" [1] To begin with, prosecutors, defendants, and the courts probably would be deprived of crucial evidence bearing on the defendants' innocence or guilt of the Watergate crimes for which they stand accused. [2] Moreover, the American people would be denied full access to all facts about the Watergate affair, and the efforts of Congress, the executive branch, and others to take measures to prevent a recurrence of the Watergate affair may be inhibited." ”

“ An absolute barrier to all outside disclosure is not practically or constitutionally necessary. As the careful research by the District Court clearly demonstrates, there has never been an expectation that the confidences of the Executive Office are absolute and unyielding. All former Presidents from President Hoover to President Johnson have deposited their papers in Presidential libraries (an example appellant has said he intended to follow) for governmental preservation and eventual disclosure. ”

“ In sum, appellant has a legitimate expectation of privacy in his personal communications. But the constitutionality of the Act must be viewed in the context of the limited intrusion of the screening process, of appellant's status as a public figure, of his lack of any expectation of privacy in the overwhelming majority of the materials, of the important public interest in preservation of the materials, and of the virtual impossibility of segregating the small quantity of private materials without comprehensive screening. ”

“ Initially, he contends that the District Court erred in distinguishing incumbent from former Presidents in evaluating appellant's claim of confidentiality. Appellant asserts that, unlike the very specific privilege protecting against disclosure of state secrets and sensitive information concerning military or diplomatic matters, which appellant concedes may be asserted only by an incumbent President, a more generalized Presidential privilege survives the termination of the President-adviser relationship much as the attorney-client privilege survives the relationship that creates it. ”

“ We may agree with appellant that, at least when Government intervention is at stake, public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity. Presidents who have established Presidential libraries have usually withheld matters concerned with family or personal finances, or have deposited such materials with restrictions on their screening. ”

“ Brief for Appellant 148, quoting United States v. Poller, 43 F.2d 911, 914 (CA2 1930) . Thus, his brief continues, at 150-151:
" [Appellant's] most private thoughts and communications, both written and spoken, will be exposed to and reviewed by a host of persons whom he does not know and did not select, and in whom he has no reason to place his confidence. This group will decide what is personal, to be returned to [him] , and what is historical to be opened for public review." ”

“ Appellant's characterization of the meaning of a bill of attainder obviously proves far too much. By arguing that an individual or defined group is attainted whenever he or it is compelled to bear burdens which the individual or group dislikes, appellant removes the anchor that ties the bill of attainder guarantee to realistic conceptions of classification and punishment. ”

“ Section 105 (a) vests the District Court for the District of Columbia with exclusive jurisdiction not only to hear constitutional challenges to the Act, but also to hear challenges to the validity of any regulation, and to decide actions involving questions of title, ownership, custody, possession, or control of any tape or materials, or involving payment of any award of just compensation required by § 105 (e) when a decision of that court holds that any individual has been deprived by the Act of private property without just compensation. ”

“ In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. ”

“ United States v. Brown, 381 U.S. at [/us/381/437/case.html#443 381 U.S. 443] , it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all.
Thus, in the present case, the Act's specificity — the fact that it refers to appellant by name — does not automatically offend the Bill of Attainder Clause. Indeed, viewed in context, the focus of the enactment can be fairly and rationally understood. It is true that Title I deals exclusively with appellant's papers. ”

“ Although the District Court recognized that this contemplation of archival review would not defeat appellant's expectation of privacy, the court held that it does 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." ”

“ 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. ”

“ Throughout this litigation, appellant has claimed that his privacy will necessarily be unconstitutionally invaded because the screening requires a staff of
"over one hundred archivists, accompanied by lawyers, technicians and secretaries [who] will have a right to review word-by-word five and one-half years of a man's life. . . ."
Tr. of Oral Arg. 16. The size of the staff is, of course, necessarily a function of the enormous quantity of materials involved. But clearly not all engaged in the screening will examine each document. ”

“ Moreover, appellant's view of what constitutes official as distinguished from personal and private materials might differ from the view of Congress, the Executive Branch, or a reviewing court. Not only may the use of disinterested archivists lead to application of uniform standards in separating private from nonprivate communications, but the Act provides for judicial review of their determinations. ”

“ The District Court found, 408 F.Supp. at 364 n. 58, and we agree, that it is irrelevant that Title III, unlike this Act, requires adherence to a detailed warrant requirement, 18 U.S.C. § 2518. That requirement is inapplicable to this Act, since we deal not with standards governing a generalized right to search by law enforcement officials or other Government personnel, but with a particularized legislative judgment, supplemented by judicial review, similar to condemnation under the power of eminent domain, that certain materials are of value to the public. ”

“ As summarized by the District Court:
"It is alleged that the Act invades the private formulation of political thought critical to free speech and association, imposing sanctions upon past expressive activity, and more significantly, limiting that of the future because individuals who learn the substance of certain private communications by [appellant] — especially those critical of themselves — will refuse to associate with him. ”

“ It is true that only the incumbent is charged with performance of the executive duty under the Constitution. And an incumbent may be inhibited in disclosing confidences of a predecessor when he believes that the effect may be to discourage candid presentation of views by his contemporary advisers. Moreover, to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, see United States v. ”

“ For the same reasons, we find no merit in appellant's argument that the Act's scheme for custody and archival screening of the materials
"necessarily inhibits [the] freedom of political activity [of future Presidents] , and thereby reduces the 'quantity and diversity' of the political speech and association that the Nation will be receiving from its leaders."
Brief for Appellant 168. It is significant, moreover, that this concern has not deterred President Ford from signing the Act into law, or President Carter from urging this Court's affirmance of the judgment of the District Court. ”

“ These provisions plainly guard against disclosures barred by any defenses or privileges available to appellant or the Executive Branch. #F7 Footnote 7 And appellant himself concedes that the Act
"does not make the presidential materials available to the Congress — except insofar as Congressmen are members of the public and entitled to access when the public has it." ”

“ The screening constitutes a very limited intrusion by personnel in the Executive Branch sensitive to executive concerns. These very personnel have performed the identical task in each of the Presidential libraries without any suggestion that such activity has in any way interfered with executive confidentiality. Indeed, in light of this consistent historical practice, past and present executive officials must be well aware of the possibility that, at some time in the future, their communications may be reviewed on a confidential basis by professional archivists. ”

“ Like the District Court, we therefore find that appellant's argument rests upon an "archaic view of the separation of powers as requiring three air-tight departments of government," 408 F.Supp. at 342. #F6 Footnote 6 Rather, in determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions. ”

“ I, § 9, of the Constitution. #F30 Footnote 30 His argument is that Congress acted on the premise that he had engaged in "misconduct,'" was an "`unreliable custodian'" of his own documents, and generally was deserving of a "legislative judgment of blameworthiness," Brief for Appellant 132-133. Thus, he argues, the Act is pervaded with the key features of a bill of attainder: a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial. ”

“ When one of the opponents of the legislation, mischaracterizing the safeguards embodied in the bill, #F44 Footnote 44 stated that it is "one which partakes of the characteristics of a bill of attainder . . . ," 120 Cong.Rec. 33872 (1974) (Sen. Hruska) , a key sponsor of the measure responded by expressly denying any intention of determining appellant's blameworthiness or imposing punitive sanctions:
"This bill does not contain a word to the effect that Mr. Nixon is guilty of any violation of the law. It does not inflict any punishment on him. So it has no more relation to a bill of attainder. ”

“ Moreover, even if the specificity element were deemed to be satisfied here, the Bill of Attainder Clause would not automatically be implicated. Forbidden legislative punishment is not involved merely because the Act imposes burdensome consequences. Rather, we must inquire further whether Congress, by lodging appellant's materials in the custody of the General Services Administration pending their screening by Government archivists and the promulgation of further regulations, "inflict [ed] punishment" within the constitutional proscription against bills of attainder. United States v. ”

“ Both involve the problem of separating intermingled communications, (1) some of which are expected to be related to legitimate Government objectives, (2) some of which are not, and (3) for which there is no means to segregate the one from the other except by reviewing them all. Thus the screening process under the Act, like electronic surveillance, requires some intrusion into private communications unconnected with any legitimate governmental objectives. Yet this fact has not been thought to render surveillance under the Omnibus Act unconstitutional. Cf., e.g., United States v. ”

“ While it is true that Congress ordered the General Services Administration to retain control over records that appellant claims as his property, #F39 Footnote 39 § 105 of the Act makes provision for an award by the District Court of "just compensation." This undercuts even a colorable contention that the Government has punitively confiscated appellant's property, for the "owner [thereby] is to be put in the same position monetarily as he would have occupied if his property had not been taken." United States v. ”

“ But the decided absence from the legislative history of any congressional sentiments expressive of this purpose is probative of nonpunitive intentions, and largely undercuts a major concern that prompted the bill of attainder prohibition: the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the mantle of judge — or, worse still, lynch mob. Cf. Z. Chafee, supra at 161. #F45 Footnote 45 No such legislative overreaching is involved here.
We also agree with the District Court that "specific aspects of the Act . . . ”

“ Second, appellant contends, somewhat more narrowly, that, by authorizing the Administrator to take custody of all Presidential materials in a "broad, undifferentiated" manner, and authorizing future publication except where a privilege is affirmatively established, the Act offends the presumptive confidentiality of Presidential communications recognized in United States v. Nixon, [/us/418/683/case.html 418 U.S. 683] (1974) . He argues that the District Court erred in two respects in rejecting this contention. ”