By George Lardner Jr.
Washington Post Staff Writer
Tuesday, November 11, 1997; Page A03

The head of the National Archives has asked the Justice Department to settle all outstanding litigation with former president Richard M. Nixon's estate with an agreement that could result in permanent damage to Nixon's original White House tapes and moving the huge collection of Nixon material to California.

Critics of the proposed settlement say it would cost taxpayers more than all the Nixon records are worth, violate a 1974 law that says the records should be kept in the Washington area, and severely restrict the release of material dealing with the political aspects of Nixon's presidency.

Nixon lawyers want to have all "personal" conversations excised from the tapes, but experts for the Archives say the originals are too fragile to be cut and spliced without irreversible damage. The Archives last year tentatively agreed to a plan that would have permitted such destruction of the tapes, but it was blocked at the White House by then-counsel Jack Quinn.

However, John W. Carlin, archivist of the United States, is eager to settle out of court all outstanding disputes with the Nixon family and has renewed discussion of the plan, with some modifications. Carlin has said he thinks continued litigation will only further impede public access to Nixon's records.

The settlement would hinge on a previously proposed payment of $26 million to compensate the Nixon estate for seizure of his papers in 1974. Part of the payment – $8 million – would be used to build a new Nixon library in Yorba Linda, Calif., on the grounds of the privately run Richard Nixon Library and Birthplace, to house the huge collection of 44 million Nixon items now kept by the Archives at its College Park facility.

The issue of how much the Nixon family should be paid is at the center of a compensation suit scheduled to be tried in U.S. District Court here. Carlin has been advocating settlement partly on the grounds that the cost to the public could be much higher if a jury were to decide the case. He said last spring that he had "heard" estimates for the Nixon collection running as high as $250 million to $300 million.

The Justice Department has yet to submit its appraisal, but it is likely to be far lower than $26 million, several sources said. Government lawyers were advised several years ago, the sources said, that "$2 million would be too much."

The collection would be shipped to California despite a 1974 law requiring that the records be kept in the Washington area. Carlin has indicated he would seek to revise the provision by administrative regulation.

Congress would have 60 days to object, but historians such as Page Miller of the National Coordinating Committee for the Promotion of History, Joan Hoff of Ohio University's Contemporary History Institute and Anna Nelson of American University say no move should be made without a change in the law.

"The [1974] law says the [Nixon] records cannot be moved from the Washington area, and a lot of good lobbying can be done in Congress to prevent them from going," Nelson said. Hoff said Carlin's proposal should serve as the catalyst for congressional hearings on the whole "badly flawed" presidential library system.

"I think Carlin has conned [lawyers at Justice] into thinking this system works," she said. While each presidential library is nominally run by the Archives, she said, "in reality, the former president or his family chooses the library director and then the director has to deal with the family and the presidential foundation set up for the library. Every director turns into a hagiographer."

Carlin has suggested the Archives will run any new Nixon library with a firm hand, but critics scoff at the contention. Miller, who attended an Oct. 21 meeting at the Justice Department with Hoff to discuss their concerns, said the department lawyer in charge of the compensation suit, Neil Koslowe, described an agreement "in which the family would have no role in selecting the director."

But Miller and Hoff are skeptical. They point out that Nixon and his family blocked access to various records for more than 20 years before finally agreeing to a staged release of the tapes after Nixon's death in 1994. The two historians said Koslowe also told them that moving the Nixon collection to California would cost at least $1 million a year more in operating expenses than maintaining it in College Park.

The law Congress passed in 1974 to keep Nixon from destroying his records emphasized the need to "provide the public with the full truth, at the earliest reasonable date, of abuses of governmental power popularly known as Watergate." Yet just a few weeks ago, University of Wisconsin historian Stanley Kutler pointed out, legal objections from the Nixon camp were instrumental in preventing release of newly declassified "abuse of power" conversations, totaling about an hour.

Archivists at College Park were overruled by Archives lawyers. Under the Nixon estate's legal reading, it could take another four to five years before all these scandal-tinged snippets will be released.

The 1974 law also states that Nixon or his heirs are entitled to "sole custody and use" of tapes and other materials not related to Watergate and "not otherwise of general historical significance."

Implementation of these rules by the Archives, however, has led to suppression of many political items, such as materials dealing with Nixon's decision in 1974 to get rid of then-Sen. Robert J. Dole (Kan.) as Republican National Committee chairman. Such materials have been deemed "private/political" because Nixon was acting not as president but as head of the Republican Party.

The Nixon estate, in addition to seeking compensation for seizure of his papers, has been suing for return of a total of 819 hours of "private/personal" or "private/political" conversations scattered throughout the original tapes. The Archives returned copies of those conversations to Nixon in 1994, but the government has been fighting the estate's demand for cutting the originals on the grounds that the 1974 law requires their preservation.

Under the proposed settlement, the tapes would have to be cut to extract the purely "personal" segments, such as Nixon conversing with family members.

Separate treatment would be prescribed for the "political" discussions. The proposed settlement calls for the Nixon estate to deed these back to the government but, sources said, with severe restrictions on when they could be made public.

In addition, the sources said, the proposed settlement does not include the donation of "private/political" documents – such as notes about Dole's ouster – and these textual materials would be returned to the Nixon estate without any requirement that they ever be made public.

John Taylor, director of the privately run Nixon Library and an executor of the Nixon estate, said "the worst has been done" to Nixon's legacy by "the out-of-context release" last year of the "abuse of power" tapes and both the Nixon estate and family want "the full record" of his presidency to come out. He declined to discuss any aspects of the proposed settlement.