1. Some time in the 1960s, I believe, the Library of Congress invited Ayn Rand to will the manuscripts of her novels to them. She replied that she was happy to do so. Subsequently, they sent her a form to fill out, in order to make her intention legally binding upon her death. She refused to fill it out, then or later, expressing various doubts about the Library, which she had since come to entertain. When she died in 1982, she willed all of her papers to me, having told me to “do with them whatever you want.”
2. For some years thereafter, like Ayn, I was conflicted about what to do and kept postponing my decision. Influenced by her initial positive reaction, I wrote the Library, in answer to their persistent inquiries, that I would donate the papers “in due course.” But influenced also by her later negative reaction and indecision, I told the Library at the same time that I could not commit to any specific date. Then in the mid-’80s another eager (and meritorious) party arose: the Ayn Rand Institute Archives (established after Ayn Rand’s death). Also, I had become aware of the great sum of money I could be paid if I sold the manuscripts to avid fans of Miss Rand.
But then, in July 1991, while hospitalized with a heart attack, it became clear that I must act immediately. I asked my assistant to box up all of the manuscripts, typescripts, and galleys of Miss Rand’s four novels and send them to the Library of Congress. I did this without any moral or legal obligation, and foregoing any financial return, simply because, sick in bed, I had to decide something, and Ayn Rand had once, albeit fleetingly, approved such a course. Plus: I had told the Library, even if vaguely, that I would do it at some point, and now, it appeared, I should act accordingly. There was no longer time for hesitation or doubts.
I asked my assistant, however, to keep for me two pages from The Fountainhead manuscript, the first and last pages. Of all Miss Rand’s works, The Fountainhead had the greatest personal meaning to me, and I wished to keep a small remnant of it for myself, or at least for my Estate. To ensure that the Library had a complete copy, however, I sent photocopies of these two pages along with the manuscript. It seemed obvious at the time that the Library would have no objection, since its sole official function in regard to the manuscript–to serve the needs of scholars–was in no way impaired.
In addition, the expert hired by Ayn Rand’s Estate went to the Library in Washington at the time to appraise the manuscript for tax purposes, and told the Library about the two photocopied pages. The Library, he states, did not care about this omission and, he adds, the official with whom he dealt made disparaging remarks about Ayn Rand as a writer.
Nevertheless, in retrospect, this was my first error: I did not myself and in writing tell the Library that I had taken two pages out of the eleven cartons I sent; my assistant simply described the materials as “the complete manuscripts of Ayn Rand’s novels.” The value of this gift at the time was estimated at slightly under $1 million; today, I understand, that value is very substantially increased. In due course, I received an official statement from the Library informing me that they had gone through and catalogued all the material I sent, and that everything was in order and complete.
After returning from the hospital, I had the two pages mounted in a museum-quality frame, which I hung on a wall in my home.
3. On August 16, 1998, the Los Angeles Times Magazine published a largely (not wholly) accurate article on me. When the reporter, visiting my home, asked about the framed pages, I replied, with what I thought was a twinkle in my eye, that I had “stolen” them from the Library of Congress. To me, at the time, this was a preposterous joke (although, as I have since learned, it was a fatal one). If I had believed that “stealing” was really applicable, I would hardly have announced it to the press. In my mind, the situation was parallel to the following: Motivated by generosity, I give a man an envelope marked as containing a $1 million gift to him. In fact, there is only $999,998.00 in it. Someone then asks me about the missing $2, and I answer that “I stole it from him.” Is this not obviously a facetious response? Can it conceivably be taken as the confession of a crime?
4. The Library of Congress eventually learned about the article, and wrote me angrily, demanding the return of “U.S. Government property.” I was astonished, for reasons given above, to learn that the Library even cared about such an issue; plus, I believed it was clear that since I had not given these pages to the Government, they were still morally and legally mine. A lengthy correspondence between my attorney and the Library, however, did nothing to weaken their resolve. They proceeded to give the case to the Department of Justice, for formal proceedings against me.
5. In October 2000, I received a complaint from the Justice Department, charging me with fraudulent possession of Government property and with admitting to this misdeed publicly. I was threatened–if I did not return the two pages–with a lawsuit in which the Government would demand to recover not only the two pages, but also the total costs and damages which the Library had suffered because of my withholding of these pages. The Department of Justice put these costs and damages at $1.1 million (!). This figure speaks for itself; it was, in my opinion, an obvious attempt to frighten me into submission.
I was prepared to fight the case in the courts, confident of the rightness of my cause–until my attorney, lead litigator in a prominent New York intellectual property firm, did some research. Her verdict: I would “probably” win the case in court, but this outcome was “far from certain” given the state of the law in this area, and the different interpretations of it possible from different judges.
Among the legal problems she unearthed–I speak here with my layman’s understanding–is the fact that there is a tendency now for the courts to enforce gifts, notwithstanding the fact that a promise is not enforceable. Apparently, if a charity can show that it relied on the promise of a gift–even if the donor expects nothing in return and there is therefore no contract involved–courts tend to enforce the promise under a theory called “promissory estoppel.” In exchange for the papers I donated, the argument goes, the Library had spent time and money it would not otherwise have spent: it had made arrangements to preserve the papers and make them available for scholarly purposes. Hence, if my gift is not exactly as I described it, if eleven cartons of material are short by two pages, the Library has relied on my promise “to its detriment.” Therefore, I am liable, even though my gift was a unilateral act with no strings attached and no quid pro quo (else why did it merit a tax deduction?).
This legal doctrine seems to me to imply, for example, that, if a man gives some charity an amount of money which he describes as 5% of his income for the year, and it then comes out that it was only 4%, the charity can then devise a statement of the losses or detriment it has suffered and of the benefits the donor received for his money “in exchange,” and then go ahead and sue on the theory of promissory estoppel.
And there was a second legal issue involved which was even more mystifying to me. I knew that the statute of limitations requires that a person take action within a certain time period to rectify a wrong, or else he loses the right to sue. It seemed to me, and my lawyer agreed, that if the Government wanted to sue me, it could and should have done so long before now. I did nothing to hide what I had done which would justify the Library’s delay. But it turns out that the rules for ordinary citizens do not necessarily apply to the Government. There is no statute of limitations on the Government’s right to take legal action to recover “its property.” Again, I was advised, how a court would rule on this issue was unpredictable.
6. Given these (and other such) legal viewpoints now in the ascendant, I decided–regretfully and after substantial correspondence with a militant, and in my opinion, hostile Department of Justice attorney–that I had no choice but to back down and give in. I did so because I was advised that litigation would be a prolonged and extremely costly process–the Department of Justice having unlimited time to pursue the case through the court system, and unlimited sums to do so at its disposal. I, on the other hand, am 68 and a heart patient, and could not accept the prospect of being further weakened physically by the stress, and perhaps even bankrupted in a fight against what is now, it seems, a virtually omnipotent Government in many areas. I capitulated, not out of any free choice or voluntary agreement, but in essence because I was forced to do so by ominous Government threats. This was the payment I received from the Library of Congress for my gift.
7. I signed the capitulation documents, but told the Library that I would not cooperate any further, and that to obtain the pages, they must come and take them from me. On Tuesday, January 15th, a month ago, a Senior Conservator from the Library of Congress flew to California from Washington, entered my home, removed the picture from the wall, cut the pages out of the framed mat, and took them away. (The whole procedure was recorded on video by a friend.)
There was nothing I could do; I was forced to stand by helpless, and to allow my home to be invaded and my property expropriated under orders from the Library of Congress. “Invasion” and “expropriation” are my words; I know of none more accurate to describe this case.
In my opinion, given the above, future literary figures or executors should think carefully before bequeathing or donating material to the Library of Congress. Its seeming willingness to litigate against an unwary donor is frightening. At the very least, given today’s law, it behooves any donor to devise an airtight legal contract first, in an effort–possibly even so doomed to failure–to protect himself or his Estate from further demands made, perhaps years or even decades later, by a grasping or hostile official.
I myself, of course, will never offer further papers, whether Ayn Rand’s or my own, to the Library of Congress–partly out of an abiding sense of personal loss, and partly out of plain fear of the next penalty that might be visited on me in payment for any such bequest.