Disposition of Nixon Memorabilia

• Court: Department of Justice Office of Legal Counsel
• Decided: July 28, 1977
• Status: Published

Opinion

July 28, 1977

77-44 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT Disposition of Nixon Memorabilia

This is in response to your request for our opinion with respect to the proper disposition of the personalized memorabilia of former Presi­ dent Nixon, which were left in the Old Executive Office Building when he resigned on August 9, 1974. The memorabilia are now in custody of the White House Gift Unit, a part of the White House Office. We understand that most of these items were acquired with private funds or by the Republican National Committee for the use of President Nixon. The remainder are gifts to him by private persons. We further under­ stand that the Gift Unit’s records allow it to determine the source of the particular items.1 It should be noted at the outset that the materials include copies of White House documents prepared for President Nixon. Under § 101(b) o f the Presidential Recordings and Materials Preservation Act, 44 U.S.C. §2107 note, these and any other docu­ ments are historical materials that must be turned over to the Adminis­ trator o f General Services. See 44 U.S.C. §2101; H.R. Rep. 93-1507, 93rd Cong., 2d Sess., at 9. The remainder of the memorabilia, which were purchased with pri­ vate funds, were originally the property of the purchasers rather than o f the United States Government.2 Due to the circumstances in which they were found, they have, however, become the property of the

1 C ertain o f the item s appear to have been purchased in the People’s R epublic o f C hina du rin g President N ixon's tour. F o r example, a three-piece tea set was listed in the G ift U nit’s inventory. W e are inform ed by the G ift U nit that these are private purchases and not official gifts from the People’s Republic. It should be noted, however, that under the Foreign Gifts and D ecorations A ct o f 1966, 5 U.S.C. §7342, any gift from a foreign governm ent o r its agent o f m ore than minimal value is accepted on b e h alf o f the U nited States and becom es the property o f the U nited States. T h e President, m em bers o f his staff, and m em bers o f their families are subject to this statute. 5 U .S.C. § 7342(a)(1). U nder regulations prom ulgated by the D ep artm en t o f State, such gifts a re to be deposited w ith the C hief o f P rotocol. 22 C F R § 3.5(c). G ifts o f minimal value rem ain the pro p erty o f the recipient, but the burden o f show ing m inim al value is on him. 22 C F R § 3.5(b). 1 W e d o not have the inform ation necessary to determ ine the respective interests, if any, o f th e private purchases.

180 United States under 40 U.S.C. §484(m). That statute authorizes the Administrator of General Services “to take possession of abandoned or other unclaimed personal property on premises . . . owned by the United States, to determine when title thereto vested in the United States, and to utilize, transfer, or otherwise dispose of such property.” Under regulations promulgated by the General Services Administration (GSA), title to abandoned or unclaimed property on Government premises vests in the United States 30 days after it is found, except that title reverts to the former owner if he files a claim before the property is used, transferred to another agency for use, or sold.3 “Abandoned or unclaimed property” includes any personal property found on G overn­ ment premises.4 Because the Nixon memorabilia were found more than 30 days ago, title thereto has vested in the United States, subject any claim by the former owners. Under the GSA regulations, the agency that finds the property is responsible for it and must either use it or report it to GSA as excess property.5 Once the property is reported, GSA will either furnish it to other Federal agencies or dispose of it as surplus.8 The former owner is entitled to payment for the reasonable value of any abandoned or unclaimed property used by the United States or to the proceeds of any sale.7 As the Agency that found the memorabilia, the White House Office is responsible for their custody, for evaluating claims for their return, and for reporting unusable items to GSA.8 Neither the statute nor the regulations requires the finding agency to notify possible former owners that the property has been found before it is disposed of. However, due process of law requires that potential claimants be given reasonable notice and an opportunity to submit claims before the United States cuts off their right to have unclaimed

s 41 C F R § 101-43.403.1. •41 C F R § 101-43.401(a). •41 C F R §§ 101-43.403-1, 101-43.403.2. •See 41 C F R §§ 101-43.301, 101-43.318-1, 101-45.404(b). Sales are conducted by G S A and are norm ally by sealed bids, spot bids, o r auction. See, generally, 41 C F R §§ 101- 45.301, 101-45.304. A bandoned o r unclaim ed property m ay be sold at any tim e after title vests in the United States. 41 C F R § 101-45.404(b). 7 40 U.S.C. § 484(m); 41 C F R §§ 101-43.403.4, 101-45.401.1. Claim for paym ent must be m ade w ithin 3 years o f the date that title vested in the United States. 40 U.S.C. § 484{m). • T h e W hite House Office is w ithin the m eaning o f the term “executive agency" as defined in the statute and regulations. See 40 U.S.C. § 472(a); 41 C F R § 101-43.001-6.

181 property returned.® See, Security Savings Bank v. California, 263 U.S. 282, 287 (1923); C f, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 311-13 (1950). When the names and addresses of potential claim­ ants are known or can be found through ordinary diligence, due proc­ ess requires that they be given actual notice by mail. See, Mullane v. Central Hanover Trust Co., supra, at 315-20. The W hite House Office should therefore notify Mr. Nixon, the Republican National Committee, and any other persons who your rec­ ords indicate may have owned the memorabilia before any action is taken to use or dispose o f them. The notice should state that the described items were apparently abandoned on August 9, 1974, that the United States took title to them under 40 U.S.C. § 484(m) and 41 CFR § 101-43.403-1 on September 9, 1974, that the former owners can file a claim o f ownership within 30 days,10 and that any property that is not claimed by its former owner within that time will be reported to GSA for disposal as surplus property under 41 CFR § 101-45.404(b).11 Items which are not successfully claimed should be reported to GSA for disposal through normal channels. L arry A. H ammond

Deputy Assistant Attorney General Office o f Legal Counsel

* Since abandonm ent results from the form er ow ner’s intent to divest him self o f all interest in the property, appropiration by the U nited States o f abandoned p roperty would not appear to be a taking of a p ro p e rty right. See, generally, United States v. Cowan, 396 F. 2d 83, 87 (2d C ir. 1968); Nippon Shoshen Kaisha, K.K. v. United States, 238 F. Supp. 55, 58 (D . Cal. 1964); 1 Am . Jur. 2d “ A bandoned P roperty,” § 16, at p. 16. Strictly speaking, notice to the form er ow ner w ould not be constitutionally required. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 316 (1950). H ow ever, intent to abandon is a question o f fact, so th at reasonable notice is required before determ ining w hether p roperty is aban­ doned o r m erely unclaimed. Anderson National Bank v. Luckett, 321 U.S. 233, 246 (1944). M oreover, failure to respond to personal notice is evidence o f intent to abandon. See 1 Am . Jur. 2d, supra, § 16 at pp. 16-17. 10 T his is an arb itrary figure th a t appears to provide a reasonable time for response. 11 T h e form for the report is set forth at 41 C F R § 101-43.311-2.