By George Lardner Jr.
Washington Post Staff Writer
Sunday, March 29, 1998; Page A03

Eighteen years after he filed suit, four years after his death, former president Richard M. Nixon's demand that he be compensated for his White House tapes and papers is finally going to trial.

It promises to be a hard-fought contest that could last for months.

U.S. District Judge John Garrett Penn has set aside six weeks, starting Nov. 9, for the nonjury trial and said he will pick it up again in January "if necessary." The pretrial maneuvering has already started, with lawyers and experts for both sides combing through the huge collection of 44 million items at the National Archives complex in College Park.

Neither side has said how much it thinks the records are worth. Archivist of the United States John W. Carlin has said he has "heard" estimates running as high as $250 million to $300 million, but government lawyers were advised several years that "2 million would be too much."

Some experts say the massive collection, in and of itself, is worth very little without the value added by laborious research. For instance, archivists at College Park say it can take 100 hours for them to transcribe a single hour of Nixon tapes. It will be up to the court to decide whether Nixon's estate is entitled to payment for the raw, untranscribed tape or what it contains.

As head of the National Archives and Records Administration, Carlin tried for several years to reach an out-of-court settlement that would have paid the Nixon estate more than $26 million. Part of the money, about $11 million, would have financed construction of an official government-run Nixon library in Yorba Linda, Calif., on the site of what is now a private facility housing Nixon's pre- and postpresidential papers.

The chances of a settlement, however, appear to have dwindled in recent weeks with the exchange of harsh words on both sides. Writing in the March issue of the American Spectator, John H. Taylor, co-executor of the Nixon estate and one of the plaintiffs in the lawsuit, called NARA archivists "Hardy boys" and "junior prosecutors" for finding more than 200 hours of tapes reflecting Nixon's abuses of governmental power in addition to those uncovered by Watergate prosecutors years ago.

One of the archivists at the Nixon project, Peter Jeffrey, an official of the labor union representing NARA employees, fired back with a letter to the Spectator attacking the article as "more fiction than truth" and denouncing the criticisms of the archivists as "irresponsible and groundless."

Under a scheduling order Judge Penn issued this month, lawyers for the Nixon estate and the government will begin taking depositions of archivists at the Nixon project and other "fact" witnesses next month. Nixon lawyers say they plan to seek testimony about costs and revenue from historian Stanley Kutler's 1997 book, "Abuse of Power: the New Nixon Tapes" and a 1989 book of Nixon documents edited by Bruce Oudes, "From the President: Richard Nixon's Secret Files."

Nixon lawyer R. Stan Mortenson told a reporter that such testimony might provide some "small measure" of what the records are worth, but when asked for an estimate of their overall value, he said, "We don't know yet."

Both sides are to exchange the reports of their experts, including presidential historians, appraisers and specialists in "collector's value," on June 8. The Nixon estate has more than a dozen lined up; the government has designated 10. Their assessments are not expected to be made public immediately, but by June 8, Mortenson said, "both sides will know what the experts have said concerning value."

The drawn-out litigation stems from the 1974 law seizing Nixon's records, which Congress passed to keep the ex-president from destroying historically important materials, including those necessary for the Watergate investigation.

Nixon challenged the constitutionality of the law. When it was upheld, he filed suit demanding "just compensation" on the grounds that the law constituted a taking of his property rights.

In 1991, Judge Penn rejected Nixon's claim, holding that his rights in presidential papers were no greater than those of "a trustee for the American people." The U.S. Court of Appeals here reversed the ruling the next year.

Citing what it said was a "long and unbroken history relating to the use, control and disposition of presidential papers," the appeals court held that "Mr. Nixon, like every president before him, had a compensable property interest" in his White House records. The court sent the case back to Penn "for a determination of the compensation due."