Millions Are at Stake as Judge Figures Value of Nixon Tapes

Is the American public being asked to pay twice for what some historians regard as the priceless legacy of President Nixon’s Watergate tapes?

That question, which a federal judge must decide, arises as yearlong litigation over the value of Nixon’s recordings and other presidential materials nears a conclusion.

As custodian of these tapes and records for 25 years, the government is arguing that Nixon’s heirs are not owed a penny, considering that taxpayers already have spent about $21 million to keep and index the materials.

But in a protracted civil trial that began last December, senior U.S. District Judge John Garrett Penn is trying to fulfill an appellate court order to determine how the Nixon family should be compensated for the government’s seizure of all his White House papers, tapes and photographs after his resignation in 1974.

After hearing five months of testimony in a nearly empty courtroom, Penn ordered both sides to file briefs outlining their conclusions and legal arguments. The judge will hear final oral arguments next month.

Neil H. Koslowe, a Justice Department attorney, has submitted an impassioned plea that Nixon’s family be awarded nothing.

While Nixon lawyers Herbert J. Miller and R. Stan Mortenson summoned experts to assess the commercial value of the 3,700 hours of recordings and other materials, Koslowe argued that all evidence suggests that Nixon intended his tapes and papers to be “an integral, historical archive for research purposes,” not a commercial windfall.

Nixon’s attorneys, Koslowe said, have failed to prove “that the materials have any fair market value.” Rather, the tapes and other records “were created, retained, organized and processed ultimately for one purpose--to deposit them in a Richard Nixon presidential library open to the American people for research,” he contended.

His brief added: “These materials were dedicated to public use by Mr. Nixon from the earliest days of his administration . . . to be held in what Mr. Nixon called ‘a public trust’ and for deposit in that library.” Any argument about their commercial value is speculative, he said.

But Miller, who represented the former president, has figured “just compensation” for the tapes and records at $35.5 million in 1974 dollars, an amount equal to $213 million today, including compound interest.

The public should understand, Miller said, that no part of any compensation would go to Nixon’s daughters or other heirs. Except for legal fees, all of whatever award is determined by Penn will be used to expand and improve the privately funded Richard Nixon Birthplace & Library in Yorba Linda.

If copies of all the White House tapes are ever transferred to this Orange County site, as many expect, the funds would help provide better facilities for visiting scholars, historians and members of the public, Miller said.

In their court filings, Miller and Mortenson claim the unique value of the White House tapes involves their “central role in . . . the greatest constitutional crisis in 20th century American history.”

Nixon resigned only after his obstruction of justice in the Watergate probe was documented by the tapes.

The lawyers said an award of $16 million in August to the heirs of amateur filmmaker Abraham Zapruder by a panel of government-approved arbiters shows that the Nixon tapes, by their sheer volume alone, are worth far more. The Zapruder film, only 26 seconds long, captured the assassination of President Kennedy.

Furthermore, every president before Nixon had total control over his White House papers and records, and Nixon never asked or wanted the National Archives to take his materials, Miller and Mortenson said. In fact, he went to court to fight the arrangement for two decades before his death.

Koslowe, however, argued that taxpayers already have borne enough expense without being asked to shell out millions more as compensation for Congress’ decision to seize the records.

“These are costs which Mr. Nixon would have borne had he retained the materials,” Koslowe said. “Payment of compensation for this material would be a travesty of justice.”