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Testimony of Robert Brauneis

Before the ARRB, 4/2/97

19             Next, we would like to hear from Robert 

20   Brauneis who is Associate Professor of George 

21   Washington University Law School and an expert on the 

22   takings issue.  Welcome, Professor Brauneis.



 2             MR. BRAUNEIS:  Thank you, Mr. Tunheim.

 3             As I understand it, the Review Board is 

 4   interested in my opinions about a number of issues 

 5   related to the exercise of the government's eminent 

 6   domain power -- its power to force private individuals 

 7   to give up property -- over this camera-original film 

 8   taken by Mr. Zapruder.  Especially the issue whether 

 9   the Records Collection Act effects a taking of the film 

10   for which just compensation is due or whether it 

11   authorizes the Review Board to effect such a taking.  I 

12   am going to direct my prepared comments to that narrow 

13   issue of legal authorization and then any other broader 

14   issues that can be explored later in questions.

15             Let me say at the beginning that there is 

16   really not any constitutional question here.  Under 

17   settled law, Congress has eminent domain powers over 

18   both real estate and personal property in the United 

19   States, presumably including the Zapruder film.  Nor do 

20   I think that there is any question that if the Review 

21   Board were to direct the Archives to place the film in 

22   the JFK Collection, that that would constitute a taking 


 1   for which just compensation is due.

 2             The issue rather, is a statutory one, and 

 3   that is, given that Congress had the power to exercise 

 4   eminent domain, did it do so or did it authorize the 

 5   board to do so in the Records Collection Act.

 6             Having closely examined the text of the 

 7   statute and the legislative history of the statute, my 

 8   conclusion is that this is a close call.  There are 

 9   arguments to be made on both sides, and, therefore, I 

10   think it would be most helpful for me today to outline 

11   the arguments on either side and then leave the 

12   difficult questions to you.

13             Let me first consider the portions of the 

14   text and the legislative history that weighed in favor 

15   of the exercise of eminent domain, or of the taking of 

16   the film.

17             Mr. Gunn has already covered some of this 

18   material in his testimony.  There are two major 

19   operative provisions in the Act.  They are sections 

20   5(c)(1) and 5(d)(3).  They both use the terms 

21   "assassination record" and "possession."  

22             Section 5(c)(1) directs each government 


 1   office to review, identify and organize each 

 2   assassination record in its custody or possession for 

 3   eventual transmission to the JFK Collection.  

 4             Section 5(d)(3) directs the Archives to place 

 5   in the JFK Collection all, again, assassination records 

 6   which are in its possession and which have been 

 7   publicly available in their entirety without redaction. 

 8             Mr. Gunn has suggested that it is not really 

 9   a question before the board today whether the Zapruder 

10   film constitutes an assassination record, but I guess 

11   just to add to that, I think I would point out that 

12   were a court -- if a court were in the position of 

13   having to decide this issue, I think that there is a 

14   very good chance that it would find that the Zapruder 

15   film is indeed an assassination record.

16             So, putting aside for the moment other 

17   provisions of the JFK Act, these two operative 

18   provisions would indeed seem to mandate the 

19   transmission of the Zapruder film to the JFK 

20   Collection.  

21             If the issue of whether it is an 

22   assassination record is put to one side, the only other 


 1   issue is is it -- was it in the custody or possession 

 2   of either the Archives or some other government agency, 

 3   and I think there is a pretty good argument to be made 

 4   that it was.  So that is the major part of the text of 

 5   the statute which ways in favor of the finding that the 

 6   statute has taken the film.

 7             The other major factor, it seems to me, that 

 8   ways in favor of a taking is the text of the Act and 

 9   particularly all of the statements in the legislative 

10   history of the Act that disclose the purpose of the 

11   Act.  The Senate report on the Act notes that in the 

12   eyes of the public each investigation and inquiry into 

13   the assassination of President Kennedy served to raise 

14   additional questions about the assassination.  The 

15   Senate report states that the JFK Act was a result of 

16   the recognition by Congress and the executive branch 

17   that the records related to the assassination of 

18   President Kennedy be fully disclosed.  

19             The Zapruder film, as Mr. Gunn has already 

20   stated, is such an important record of the 

21   assassination that it may well be the case that failure 

22   to maintain a government possession of the 


 1   camera-original or to disclose it to the public might 

 2   well undermine the public confidence -- and there I am 

 3   quoting again from the Senate report -- that it 

 4   identifies as one of the underlying principles of the 

 5   Act.  So there is the gist of the case in favor of a 

 6   taking.

 7             Let me turn to the other side now, however, 

 8   and look at the text and the legislative history and an 

 9   interpretive prinicple that the courts might apply that 

10   weigh in the opposite direction.

11             It seems to me, having looked at the Act,  

12   that the most important piece of the text may be 

13   section 11(a) of the Act.  Section 11(a) creates an 

14   exception to those operative sections I was talking 

15   about earlier, it creates an exception to this Act's 

16   requirement that all assassination records in the 

17   possession of government agencies be transmitted to the 

18   JFK Collection and publicly disclosed.

19             Section 11(a) in particular says that the 

20   Act's requirement will not apply when it conflicts with 

21   -- and here I quote the Act -- "deeds governing access 

22   to or transfer or release of gifts and donations of 


 1   records to the United States Government."

 2             So, in other words, if someone has given 

 3   records to the Federal Government, and they've placed 

 4   certain restrictions on them as to transfer of those 

 5   records, or release of those records, the Review Board 

 6   is directed by the Act to respect those restrictions.  

 7   One could interpret this exception as a result of a 

 8   determination by Congress that when private individuals 

 9   have retained certain rights in records that are in 

10   possession of the goverment, the Act shouldn't be 

11   applied in such a way as to violate or diminish those 

12   rights.

13             My understanding is that the Zapruder film 

14   was delivered to the Archives under a storage agreement 

15   that gives its owners the right to retrieve it from the 

16   Archives.  This storage agreement is not a deed in the 

17   narrow sense of deed within section 11(a), which gives 

18   rise to another ambiguity that the board would have to 

19   deal with.  Although it is not a deed in the narrow 

20   sense of that term, it is an agreement which grants 

21   limited rights to the Archives, and which reserves 

22   rights in a private grantor.  Indeed one might say it 


 1   reserves greater rights in the private grantor than a 

 2   restricted deed would.  

 3             The JFK Act grants the Review Board the power 

 4   to issue regulations interpreting the terms of the Act 

 5   and I think it is likely that a Court would uphold a 

 6   broad interpretation of "deed" as covering any 

 7   instrument under which possession of or title to a 

 8   record was transferred to a government office.  So I 

 9   think if the Review Board were to come to the 

10   conclusion that it thought it appropriate to define 

11   "deed" broadly, that a court would probably uphold that 

12   broad definition.  That, of course, would mean then 

13   that the Review Board would not be mandated by the Act 

14   to transfer this -- the Zapruder film to the JFK 

15   Collection.

16             Significantly, the Senate report on the JFK 

17   Act, the Records Collection Act, states that if the 

18   Review Board locates assassination records that were 

19   given to the government subject to restrictions, it 

20   should -- and here I quote the Senate report -- "where 

21   possible seek the waiver or necessary permission to 

22   open the records to the American public."  This 


 1   language doesn't seem to contemplate a taking in which 

 2   the Review Board would force public disclosure and pay 

 3   just compensation to the donors for breaking their 

 4   restrictions, rather, it seems only to contemplate that 

 5   the board would seek a voluntary waiver of the 

 6   restrictions on the part of the donors.

 7             Now, aside from Section 11(a), the Act also 

 8   contains several references to "Government records," a 

 9   term that shows up in a number of provisions in the 

10   Act, which could be read as suggesting that the Act 

11   applies only to records owned by the government.  The 

12   term "Government records" applies in the "findings and 

13   declarations" portion of the Act, and it also appears 

14   in a number of its operative provisions.  

15             Perhaps most significantly, Section 4(a)(1) 

16   of the Act provides that the JFK Collection at the 

17   National Archives "shall consist of record copies of 

18   all Government records relating to the assassination of 

19   President John F. Kennedy."  "Government records," 

20   however, is an undefined term in the Act, and Section 

21   4(a)(2), the immediately subsequent section governing 

22   -- describing in detail the contents of the JFK 


 1   Collection, says that that collection will include all 

 2   assassination records that the Act requires it to 

 3   include.  

 4             Now, the term "assassination record," of 

 5   course, is defined, and I think it does not appear to 

 6   require government ownership and my guess here is that 

 7   the term "government record" is a remnant of an earlier 

 8   stage of the process of drafting the Act, probably 

 9   should have been wholly replaced by "assassination 

10   record" and one of the ways one might render various 

11   portions of the Act consistent would be to interpret 

12   government record as meaning any record in the 

13   possession of the government, not where title is owned 

14   by the government.

15             In addition to these two items of text that 

16   the JFK Act does contain, it might be notable that the 

17   Act is missing any reference to eminent domain or just 

18   compensation.  And in this respect one might contrast 

19   the Act with the so-called Presidential Recordings and 

20   Materials Preservation Act, the famous act concerning 

21   the presidential papers and the tapes made by President 

22   Richard Nixon.  


 1             This act, the PRMPA, in its acronym form, is 

 2   similar in some respects to the JFK Act.  It also 

 3   requires any Federal Government employee in possession 

 4   of certains records, here relating to the Nixon 

 5   presidency, to deliver them to the Archivist of the 

 6   United States, who is directed to retain those records.  

 7   But the PRMPA expressly recognizes that the actions it 

 8   mandates may amount to a taking for which just 

 9   compensation is required.  

10             There is a section in the PRMPA which says 

11   payment of just compensation shall be made from the 

12   general fund of the United States Treasury if a court 

13   holds "that any provision of [the Act] has deprived an 

14   individual of private property without just 

15   compensation."  So in the case of PRMPA, closely 

16   similar operative provisions, but a clear indication 

17   from Congress that it realized a taking might be found.

18             My contrast to the JFK Act, of course, 

19   contains no provision suggesting that Congress 

20   contemplated that the Act might effect a taking.  The 

21   legislative history of the Act reinforces the 

22   impression that Congress didn't contemplate that the 


 1   Act might require the payment of just compensation.  

 2   For example, the Senate report on the Act contains a 

 3   section evaluating the regulatory impact of the 

 4   legislation.  That section declares that the Act "would 

 5   not result in any additional regulation to any 

 6   individuals and businesses," and therefore would have 

 7   no economic impact on any individuals or businesses.

 8             The Senate report also contains an analysis 

 9   undertaken by the Congressional Budget Office of the 

10   cost of implementing the Act, and that cost estimate 

11   does not include any amount for paying awards and just 

12   compensation to individuals whose private property is 

13   taken by the Act.  

14             And then finally, having taken a look at the 

15   text of the statute and the legislative history, let me 

16   just point out one interpretive presumption that courts 

17   use that may also weigh in favor of a finding that the 

18   Act does not effect a taking.

19             The Supreme Court has stated that the power 

20   of eminent domain, the power to force private 

21   individuals to give up their property "must be given in 

22   express terms or by necessary implication."  So it is a 


 1   kind of rule that says if you want to use the power of 

 2   eminent domain, you have to do it clearly.  

 3             It is possible to argue that, if the JFK Act 

 4   indeed mandates transfer of all assassination records 

 5   in government hands to the JFK Collection, and the 

 6   Zapruder film was an assassination record, then we 

 7   could say it is a necessary implication that eminent 

 8   domain power will be exercised in making the transfer 

 9   if it turns out that the Zapruder film is private 

10   property.  The canon, however, or interpretive 

11   presumption, indicates that a court, if faced with 

12   equally balanced conflicting evidence about whether a 

13   statute directs actions that might or might not amount 

14   to a taking, would likely decide that the statute did 

15   not require such actions.  

16             So, in sum, there is support on both sides of 

17   this takings issue, and I would, for one, find it 

18   difficult to predict what a court would do.  And I am 

19   happy to answer any questions that you might have.  

20             JUDGE TUNHEIM:  Thank you Professor Brauneis.

21             Questions by members of the board?  

22             MS. NELSON:  I have a question.  It has been 


 1   of great interest, this question of possession, and it 

 2   may very well be, for example, that the Congress was 

 3   not as aware of the fact that the Archives stores 

 4   things and so uses the word "possession."  Possession, 

 5   in your view, then, means what?  Does it mean that the 

 6   Zapruder film may or may not -- because you just 

 7   finished saying that if it turns out that the Zapruder 

 8   film is not in the hands of the government -- is it 

 9   your opinion then that the film is or is not in the 

10   possession of the Federal Government?

11             MR. BRAUNEIS:  I think it is most likely that 

12   a court would find that the film is in the possession 

13   of the Federal Government.  It is not entirely the case 

14   that Congress was completely unaware, I think, that the 

15   Archives stores items, although the material in the 

16   legislative history is sort of scant, but the Archivist 

17   did mention deposit agreements in the legislative 

18   history.  So there is some evidence that Congress may 

19   have been aware of that.  

20             JUDGE TUNHEIM:  Can you point to precedents, 

21   Professor Brauneis, where the United States Government 

22   has taken artifacts, so to speak, from private 


 1   individuals using its eminent domain power?  

 2             MR. BRAUNEIS:  Well, I think the most famous 

 3   recent example is the act under which the Nixon tapes 

 4   and papers were taken from President Nixon and retained 

 5   by the government.  The District of Columbia Circuit, 

 6   the Federal Court, decided that indeed that act did 

 7   constitute a taking and ordered that the government pay 

 8   just compensation for those records, and those were 

 9   tapes and papers and all sorts of things that pertained 

10   to the Nixon administration.  So that is a very clear 

11   example recently of the taking of certainly a larger 

12   bulk of materials than is involved here.  

13             MR. HALL:  Mr. Brauneis, let me ask you, 

14   would this case or this set of circumstances be 

15   different if in fact the film were not in the Archives?  

16             MR. BRAUNEIS:  I think it would.  I guess 

17   that relates, in part, back to Ms. Nelson's question 

18   about possession.  If the film were not in the 

19   Archives, then there is a much greater issue about 

20   whether any of the operative provisions in the Act 

21   mandate the transmission of the film to the JFK 

22   Collection.  It is not in the possession of any 


 1   government agency and I think it most likely under 

 2   those circumstances that the Act would not mandate 

 3   transmission of the film.  

 4             MR. HALL:  So the distinction with regard to 

 5   possession turns out, at least for purposes of thinking 

 6   our way through the statutory understanding, turns out 

 7   to be significant?

 8             MR. BRAUNEIS:  That is correct.

 9             MR. HALL:  Is there anything in the 

10   legislative history that would suggest to you that 

11   those who framed the statute intended that the Zapruder 

12   film be exempted from being included as an 

13   assassination record?  And I pose that question in the 

14   context of, at least in one instance, that with regard 

15   to the autopsy photographs, they were fully capable of 

16   designating a specific category.  

17             MR. BRAUNEIS:  There is nothing in the 

18   legislative history that specifically singles out the 

19   Zapruder film -- there is no mention of the film by 

20   name -- that suggests that Congress was thinking of 

21   exempting it from the Collection.  The only indication 

22   in the legislative history is testimony of the 


 1   Archivist of the United States which may have resulted 

 2   in the placement of Section 11(a) in the Act, the 

 3   broader exception that I was taking about earlier.  

 4   That exception for restrictions in gift deeds was not 

 5   in the original drafts of the Act and the Archivist 

 6   testified that failure to put such an exception in the 

 7   Act would likely result in fewer donations of records 

 8   and therefore, there should be such an exception.  And 

 9   one of the Archive's position statements actually 

10   mentions deposit agreements as well as gift deeds.  But 

11   as we know it, Section 11(a) only refers to gift deeds.  

12             MR. HALL:  Let me, if I may, Mr. Chairman, 

13   press just a little bit on this particular issue and 

14   raise with you the question of whether or not Section 

15   11(a) is directed at the question of how materials that 

16   are in the possession of can be used and access granted 

17   and rights to be able to view them would be structured, 

18   between the Archives and the person who is making a 

19   donation or contribution, as against the question of 

20   removal of the material altogether from the possession 

21   of the government and returning it to the individual 

22   who originally donated it.


 1             MR. BRAUNEIS:  It is possible that Congress 

 2   did have in mind that sort of distinction.  Section 

 3   11(a) mentions transfer as well as disclosure, so they 

 4   may have been concerned about physically where the 

 5   items were.  But it certainly is the case that if the 

 6   item was indeed donated to the Federal Government, then 

 7   one would presume that it remains in the possession of 

 8   the Federal Government, and as you say, the issue is 

 9   simply where is it in the government's possession, when 

10   will it be disclosed, to whom and under what 

11   conditions.  

12             MR. HALL:  One final question, if I may.  And 

13   that is, if I could -- and I am not sure if this is 

14   appropriate, and that is where I need your help, a law 

15   professor's help -- what if we took our understanding 

16   of this issue and did not see it initially as a 

17   question of taking of eminent domain, although that 

18   matter may well enter into the discussion at some other 

19   point, but viewed it rather as a question of bailment.  

20   That is, the Zapruders had given the film to the 

21   Archives, the Archives were acting in the capacity of a 

22   bailee, in the set of circumstances that were governed 


 1   by then existing rules.  The rules, however, in the 

 2   course of the time that the material was held, the 

 3   bailment arrangement had changed.  

 4             Would it not be possible then that the 

 5   Archives would find itself in some conflict and that it 

 6   might, and the government might well in that capacity 

 7   of acting as a bailee, act in favor of retaining the 

 8   material, given the fact that it is not private in the 

 9   strict sense of the word but rather is in fact in 

10   possession and it has now become an assassination 

11   record, and therefore, the Archives could do what it 

12   did, which is to say we are not going to return the 

13   material because we cannot do that in our capacity, 

14   acting in this bailment capacity.  

15             MR. BRAUNEIS:  I think, in fact, that is the 

16   other side of Section 11(a).  Section 11(a) is titled 

17   "Rules of Construction," and it says that the mandates 

18   in the other operative provisions of the Act shall 

19   supersede any other statute and any other common law 

20   doctrine, and that is the doctrine of bailment, that 

21   might direct a government agency to do something 

22   different, and the only exception that it makes is for 


 1   gift deeds that have certain restrictions in them.  So 

 2   if Section 11(a) on the one hand opens up this 

 3   possibility of gift deed, on the other hand it 

 4   forecloses other possibilities and says common law 

 5   doctrines shall not take precedence over this Act.  

 6             MR. HALL:  Thank you very much.  

 7             MR. GRAFF:  Mr. Chairman, if I might ask 

 8   Professor Brauneis to come back to the point that Judge 

 9   Tunheim was on before, about whether there is a 

10   precedent for the handling of something like this.  Was 

11   this film transmuted into an assassination record, and 

12   therefore, did it become like a document in the Nixon 

13   case or is there something unique about this, like the 

14   Liberty Bell or Betsy Ross's flag or what, that 

15   requires a special kind of legal treatment?  

16             MR. BRAUNEIS:  I don't think that the Act 

17   certainly has anything to say about its Liberty Bell 

18   status as affecting its legal status.  The Act, of 

19   course, defines assassination record very broadly to 

20   include not only paper but film and sound recordings 

21   and so on, and the Zapruder film may not be the only 

22   record within that definition that has gained some sort 


 1   of iconic status over the years.  So I don't really 

 2   see-- 

 3             MR. GRAFF:  But we have not identified 

 4   another with this kind of iconic status?  

 5             MR. BRAUNEIS:  I suppose my answer remains 

 6   the same.  I don't really see that that particular 

 7   aspect changes things greatly, legally.  

 8             MR. JOYCE:  Professor Brauneis, is there any 

 9   support for the proposition that the legislation, in 

10   designating assassination records as including all 

11   exhibits before the Warren Commission, and since the 

12   Zapruder film was shown to the Commission, is there any 

13   support for the proposition that it is already an 

14   assassination record by the passage of the Act?  

15             MR. BRAUNEIS:  Oh, I think that is quite 

16   possible, yes.

17             Of course, the Act also grants the power to 

18   the board to define the terms of the Act, and you have 

19   taken that power and defined "assassination record."  

20   There may well be outer limits to that power though, 

21   and if you were to attempt to use your power to define 

22   "assassination records" so narrowly that it excluded 


 1   the Zapruder film or excluded other records that came 

 2   before the Warren Commission, that a court might find 

 3   that you had exceeded the scope of your delegated 

 4   powers under the Act, that when it gave you some leeway 

 5   to define terms, it didn't give you leeway to say that 

 6   a horse was a cow.  

 7             JUDGE TUNHEIM:  Just to clarify that issue a 

 8   little bit more, is it possible to argue the Act has 

 9   already effectuated a taking of this particular 

10   artifact, and therefore there is essentially no 

11   decision before the board?  

12             MR. BRAUNEIS:  I think it is, that's right, I 

13   think it is, I think it is.  

14             MR. HALL:  To go back again, there is a 

15   distinction to be drawn here between a film of the 

16   assassination that reposes, or is in repose in the 

17   refrigerator of the Archives, and a film that is held 

18   in someone's desk in Dubuque?  

19             MR. BRAUNEIS:  I think that is a very 

20   important distinction.  

21             MS. NELSON:  Of course, the LMH Company, of 

22   course, could challenge this view, in which case it 


 1   will be taken to the Court of Claims, presumably.  

 2             MR. BRAUNEIS:  That is correct.  

 3             MS. NELSON:  It seems to be, well it is an 

 4   interesting thought that the Act has already decided 

 5   this issue for us -- is that really what you meant?  We 

 6   keep pushing that because that, of course, is a very 

 7   interesting new idea that you have brought in today.

 8             MR. BRAUNEIS:  That is really what I meant.  

 9   Again, as I suggest, although the Act gives the power 

10   to the Review Board to issue interpretive regulations, 

11   the court might find there are limbits to that power, 

12   and if the film is an assassination record that it was 

13   in the possession of certain government agencies, then 

14   the Act just says it shall be transmitted to the JFK 

15   Collection.  

16             MS. NELSON:  And it was part of the Warren 

17   Commission.  

18             MR. BRAUNEIS:  That is correct.  

19             JUDGE TUNHEIM:  I am going to ask you one 

20   last question.  You have examined a lot of cases in 

21   which takings have occurred, and in which court's have 

22   determined value eventually for the material that was 


 1   taken.  Any thoughts you have for us on what the 

 2   financial cost to the taxpayers might be in a case like 

 3   this one?  

 4             MR. BRAUNEIS:  Well, the measure of damages, 

 5   or the measure of compensation generally is fair market 

 6   value.  

 7             JUDGE TUNHEIM:  Does that include commercial 

 8   value?  

 9             MR. BRAUNEIS:  That certainly does.  It is 

10   what the property would bring on the open market, if it 

11   were, say, put up for an auction.  That is the measure 

12   of damages.  I certainly can't speculate as to what 

13   that would be.  There are other appraisal experts, I am 

14   sure, who would have their say about that.  I suppose 

15   the only one other thing I might mention is there could 

16   be a separate value -- and perhaps Mr. Gunn has already 

17   adverted to this -- could be a seperate value placed on 

18   the physical object itself, the camera-original film, 

19   and other rights associated with that, such as 

20   copyright, and so you might easily place one component 

21   of fair market value as the fair market value of the 

22   original as an artifact, the other component is other 


 1   rights such as copyright.  

 2             MR. JOYCE:  One quick question in pursuance 

 3   of that.  Is there precedent for a taking to transfer 

 4   title but to leave copyrights and other rights similar 

 5   to that with the original owner?  

 6             MR. BRAUNEIS:  I have not come across a case 

 7   in which that has been done but I would not find it all 

 8   out of the ordinary given the structure of copyright 

 9   law which presumes that copyright is a completely 

10   separate set of rules than the rules about title over 

11   the physical object.  

12             JUDGE TUNHEIM:  Thank you very much, 

13   Professor Brauneis.  We appreciate your joining us 

14   today.

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