Testimony of Robert Braneis

Before the Assassination Records Review Board - 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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