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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. 23 1 STATEMENT OF ROBERT 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 24 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 25 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 26 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 27 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 28 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 29 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 30 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 31 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. 32 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 33 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 34 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 35 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 36 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 37 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 38 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. 39 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 40 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 41 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 42 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 43 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 44 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 45 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 46 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.