Suspense Lingers on Nixon Papers : Protests May Still Be Filed to Block Release Set for Dec. 1

The drama of the Nixon presidency’s final days may have faded in the public memory, but the fate of his six-year Administration’s papers is currently holding historians and scholars in uncomfortable suspense.

On Dec. 1--after 12 years of court battles, congressional wrangling and administrative delays--the National Archives is scheduled to make available to the public 1.5 million documents from White House files spanning the period between 1968 and 1974.

The material to be opened is only a small fraction of the 40 million pages of Nixon papers and 4,000 hours of tape that have been collecting dust in an archives annex warehouse in Alexandria, Va., since the 37th President left office and the criminal trials of some of his aides began.

Eagerly Awaited by Scholars

But they are the first to be made public since the 12 1/2 hours of Oval Office tapes were introduced as evidence in the Watergate trials, and their release has been eagerly awaited by presidential scholars and authors desperate for firsthand documentation on the Nixon years.

The suspense exists because, until Dec. 1, Nixon or other former Administration officials have the right to file protests citing privacy concerns or “executive privilege” objections to the material chosen for release, actions that would lead to more delays.

No challenges have been registered so far, but Nixon attorneys will not rule out the possibility that one will be filed.

Convoluted Affair

The 11th-hour waiting game is just another chapter in a saga that, in many ways, has been as convoluted and tortured as the Watergate affair itself. And, even if this selection of papers does make it into the public domain on schedule, the fate of the remaining documents--some of them highly sensitive--is not resolved. One court suit on the Administration’s papers is still pending, and further legal maneuvering and other obstacles are considered likely.

But, for now, historians are worrying only about Dec. 1.

“Any opening of even non-controversial material will be a boon to serious scholars,” said Joan Hoff-Wilson, a professor of history at Indiana University, who has been waiting to sift the files for information for a history of the Nixon presidency. “. . . As it is, you have to rely on interviews and hearsay,” Hoff-Wilson said. “These are things that, as historians, we don’t feel comfortable with.”

The fact that the material prepared for the initial release apparently is relatively non-controversial is the best chance the researchers have of seeing it.

It is from the White House “Central Files Unit” and is catalogued under such subjects as agriculture, health, human rights, outer space and religion, archive officials say.

In 1983, the archives, responding to 9-year-old legislation mandating public availability of the Nixon files, tried to prepare for release material from the White House “Special Files Unit,” which includes high-level staff member’s office files, some of which apparently would have had direct bearing on the Watergate affair.

But 29 former Nixon aides filed suit and successfully blocked the release on the grounds that the legislation provided for a congressional veto on the archive’s regulations for screening and culling the material--a violation of the Constitution’s provision for separation of powers between the branches of government.

Less-Sensitive Material

Since then, in an apparent change in tactics that they will not discuss, archive officials have chosen for the initial opening less sensitive material believed less likely to draw legal challenges from the key figures.

So far, it has worked. But R. Stan Mortenson, a Washington attorney who has represented Nixon and former aides, said he has not decided whether to advise his clients to object to this opening.

Although the material seems to be relatively routine, “you don’t know what’s inside a file marked religion until you open it up,” he said.

Early Release Sought

The 1986 release of the Nixon documents seems to belie language in the 1974 presidential papers bill, which ordered preparation of the documents and tapes for public access at “the earliest reasonable date.”

The law was enacted generally to ensure that Nixon’s papers would become available as all other former presidents’ papers have, and specifically to countermand an agreement Nixon had reached with Arthur F. Sampson, general services administrator, for eventual destruction of all the tape recordings made in the Oval Office.

The legislation directed the National Archives to proceed expeditiously after devising regulations to protect individuals’ right to privacy, right to a fair trial and other reasonable rights and privileges.

But in the ensuing years Congress vetoed a series of regulations as inadequate, prolonging the process, and the Nixon aides’ 1983 lawsuit caused further delays. More complications developed last February, when the Justice Department’s Office of Legal Counsel issued an opinion advising archive officials to automatically cull out any material the former President objected to on grounds of executive privilege.

Rejection of Claims

No such requests have been made, but the Public Citizen Litigation Group, a public interest organization founded by Ralph Nader, filed suit asking a federal judge to tell the archives to “reject executive privilege claims” it considers groundless.

No ruling on the suit is expected by Dec. 1, but officials say the eventual outcome may bear on the release of future material.

Other possible litigation may clarify the President’s constitutionally based guarantee of executive privilege, a vague legal field the archives staff members are interpreting as confidential communication to and from the President.

While the court battles and confusion have continued, the archives’ Nixon project staff has been steadily sifting through the Dec. 1 material. The eight staff members have been removing from the files any personal letters or references to family members and other material deemed private, and matters that might relate to national security.

They have also been screening the 950 reels of four-hour-long recording tape for a public opening that, barring legal obstacles, could occur by 1988. Although the staff members are sworn to secrecy, they acknowledge that many recordings are of very poor quality. Most were made with microphones placed on the underside of the President’s or staff members’ desks and reportedly are full of unintelligible mumbling and interruptions.

Nevertheless, historians are eager to see and hear anything they can get, as soon they can.

“I’ve got Kennedy and Johnson papers, and a little Ford,” said Hugh Graham, a University of Maryland history professor who is writing a book on civil rights policy. “I’m getting ready to go to the Jimmy Carter library in Atlanta, and I’ve been to Stanford for some preliminary work on Reagan. And here I am stuck with Nixon. It’s very frustrating and puts an enormous hold on writing.”

Stanley I. Kutlar, a University of Wisconsin history professor, said: “Anything that is done (on the Nixon presidency) without those papers will lack completeness.”