MR. JUSTICE POWELL, concurring in part and concurring in the judgment.
I join the judgment of the Court and all but Parts [433 U.S. 425#439 433 U.S. 455]V of its opinion. For substantially the reasons stated by the Court, I agree that the Presidential Recordings and Materials Preservation Act (Act), on its face, does not violate appellant's rights under the First, Fourth, and Fifth Amendments and the Bill of Attainder Clause. #F3/1 Footnote 3/1 For reasons quite different from those stated by the Court, I also would hold that the Act is consistent, on its face, with the principle of separation of powers.
I
The Court begins its analysis of the issues by limiting its inquiry to those constitutional claims that are addressed to
"the facial validity of the provisions of the Act requiring the Administrator to take the recordings and materials into the Government's custody subject to screening by Government archivists."
Ante at [433 U.S. 425#439 433 U.S. 439]. I agree that the inquiry must be limited in this manner, but I would add two qualifications that, in my view, further restrict the reach of today's decision.
First, Title I of Pub.L. 93-526 (the Act) does not purport to be a generalized provision addressed to the complex problem of disposition of the accumulated papers of Presidents or other federal officers. Unlike Title II of Pub.L. 93-526 (the Public Documents Act), which authorizes a study of that problem,
Title I is addressed specifically and narrowly to the need to preserve the papers of former President Nixon after his resignation under threat of impeachment. It is legislation, as the Court properly observes, directed against "a legitimate class of one." Ante at [433 U.S. 425#472 433 U.S. 472].
President Nixon resigned on August 9, 1974. Less than two weeks earlier, the House Judiciary Committee had voted to recommend his impeachment, H.R.Rep. No. 93-1305, pp. 10-11 (1974), including among the charges of impeachable offenses allegations that the President had obstructed investigation of the Watergate break-in and had engaged in other unlawful activities during his administration. Id. at 1-4. One month after President Nixon's resignation, on September 8, 1974, President Ford granted him a general pardon for all offenses against the United States that he might have committed in his term of office.
On the same day, the Nixon-Sampson agreement was made public. The agreement provided for the materials to be deposited temporarily with the General Services Administration in a California facility, but gave the former President the right to withdraw or direct the destruction of any materials after an initial period of three years or, in the case of tape recordings, five years. During this initial period, access would be limited to President Nixon and persons authorized by him, subject only to legal process ordering materials to be produced. Upon President Nixon's death, the tapes were to be destroyed immediately. 10 Weekly Comp. of Pres. Doc. 1104-1105 (1974).
Those who drafted and sponsored Title I in Congress uniformly viewed its provisions as emergency legislation, necessitated by the extraordinary events that led to the resignation and pardon and to the former President's arrangement for the disposition of his papers. Senator Nelson, for example, referred to the bill as "an emergency measure" whose principal
purpose was to assure "protective custody" of the materials. 120 Cong.Rec. 33848, 33850-33851 (1974).
"[T]here is an urgency in the situation now before us. Under the existing agreement between the GSA and Mr. Nixon, if Mr. Nixon died tomorrow, those tapes — if I read the agreement correctly — are to be destroyed immediately; it is also possible that the Nixon papers could be destroyed by 1977. This would be a catastroph[e] from an historical standpoint."
Id. at 33857.
Senator Erving similarly remarked:
"This bill really deals with an emergency situation, because some of these documents are needed in the courts and by the general public in order that they might know the full story of what is known collectively as the Watergate affair."
Id. at 33855. Efforts to apply the legislation more generally to all Presidents or to other federal officers were resisted on the Senate floor. Thus, speaking again of the unique needs created by the Nixon-Sampson agreement and the Watergate scandals, Senator Javits stressed that "we seek to deal in this particular legislation, only with this particular set of papers of this particular ex-President." Id. at 33860. See generally S.Rep. No. 93-1181 (1974).