When Archivists Deal with Power Players

Historians/History




Ms. Krusten is a historian and former National Archives Nixon tapes archivist.

President George W. Bush reportedly is leaning toward Southern Methodist University (SMU) as the site of his Presidential Library, which will be administered by the National Archives and Records Administration (NARA).  A handful of people negotiate site selection for a Presidential Library.   A history professor at SMU has posted on his blog articles reflecting various perspectives.  But there are no opportunities during this process for faculty members and the President of the United States to discuss the different worlds in which they work.

Politicians often face mudslinging by opponents.  They can easily lose sight of the value of objective analysis. Screening out sycophancy among one's advisers also is a challenge in the halls of power. Not all who analyze history’s lessons are a White House's enemies, but a President (Democratic or Republican) may come to view them as such.

How prepared is any President to leave the shelter provided by loyal aides and to hand over control of historical information to objective, nonpartisan federal archivists?   My experiences show very different reactions by two Watergate principals..

Shortly before he resigned as White House chief of staff in April 1973, H. R. “Bob” Haldeman met with President Richard Nixon.   Nixon told Haldeman that even if he “beat the rap,” he might not be able to return to government.  “If that’s the case, I want . . . you to take over the [Nixon] foundation.”  Haldeman replied, “I hope to get funding for the ability to clear my name and spend the rest of my life destroying what some people . . . have done to my President.”

Instead of beating the Watergate “rap,” Bob Haldeman went to prison.  He came out a changed man.  When, as an archivist employed by the National Archives, I worked with Haldeman in 1987, I liked him for his intelligence, introspective qualities and courage. Bob told me that he read every book that was written about Watergate and the Nixon White House, marking portions that were accurate and also noting ones that were inaccurate. 

Bob was very interested in getting the records of the Nixon administration released. Instead of adopting a defensive posture, Haldeman gave a lot of thought to lessons learned from the events that had led to his downfall.  He patiently took questions from historians at the Hofstra University conference in 1987.  And he sat for hours with archivists, giving us a wonderful series of candid, reflective, insightful oral history interviews.

The National Archives holds the originals of Haldeman’s diaries. They were Haldeman’s property – he signed a deed of gift -- and do not fall under the Nixon records statute.  But as Joan Hoff explained in Presidential Studies Quarterly in 1996, NARA failed to release them as expected.  Haldeman arranged for his own copies to be published.

Photo supplied by Maarja Krusten

Haldeman wrote,  “The diaries are . . . an admixture of enormously important and incredibly insignificant matters with which the President, and I, dealt each day. The people involved are intelligent, hardworking and, at times, very human.

 . . . Included are actions I would now prefer had not been taken, conversations I would now like to forget or disavow, and opinions with which I now strongly disagree. In the interest of historical accuracy, the content remains unchanged from the day it was written.”

At the time I met Haldeman, NARA believed it soon would start opening Nixon’s tapes.  Researchers received information sheets from NARA’s officials, stating that “archival processing” of Nixon’s tapes “will be completed in 1987.”  Haldeman himself wrote in 1988 in a NARA publication (Prologue) that “The National Archives’ processing of the tapes is virtually complete, and the agency is nearly ready to go forward with a schedule of phased openings.”  Haldeman believed he could live with what the Nixon tapes showed.

Nixon reacted differently.  While in office, Nixon was demonized beyond belief by political opponents. He believed that “Historians will probably not deal with me too well because generally they are on the left.”   Nixon expected to control access to his records but the government took custody of them.  (Another law provides for government custody of records of later Presidents.)

When the Supreme Court upheld the Nixon records statute in 1977, the Washington Star reported that Nixon’s attorneys warned that “cases could continue ‘for the rest of his days or until his money is gone.’” A lawyer for Public Citizen later asserted that Nixon used litigation threats “as bargaining chips to convince the Archives to change its archival processing.”

John H. Taylor, executive director of Nixon’s foundation, reportedly “denounced the Nixon archivists as 'junior prosecutors' bent on making the late president look bad."  I was an archivist trained in history, but not a Nixon hater.  In 2004, I asked the National Archives to release from the Nixon White House files any documents about me.

My White House Central Files “name file” showed that I had applied for a job with the Nixon White House in September 1973—at the end of a summer’s worth of Senate hearings on Watergate.  Because I had not yet found a job when I finished college, my (late) twin sister Eva and I initially volunteered to help out in the office of Sen. Howard H. Baker (R – Tenn.), vice chairman of the Senate Watergate committee. 

The released file included notes from October 1973 stating I was a Republican.  A Nixon White House official then checked me out and noted, “Per Gary [Sisco] – Exec. Asst.  Sen. Baker – Maarja was 1 of twin[s] who worked for Baker – bright girl – final product good – good worker.”

I didn’t follow through on the job offer as I had just accepted another job elsewhere. But later, as an archivist employed by NARA from 1976 to 1990, I worked in so impartial a fashion, no one could tell I had voted for Nixon.

We faced withering fire.  In 1987, Nixon blocked our efforts to release some historical documents.  In an oral history with us, former White House official Charles Colson expressed bafflement over why Nixon blocked archivists from releasing some information from his files (publicly available NARA – Colson oral history, June 15, 1988, page 41).

A senior Archives’ manager said of his outgunned agency in 1986, “We won every battle [in court] but so far are losing the war.”  His successor officials only opened 63 of 3,700 hours of tapes during Nixon’s lifetime.  Congress in 1974 called for the release “at the earliest reasonable date” of “the full truth” about Watergate.  But some 200 hours of Nixon’s taped conversations about Watergate sat unreleased until after Nixon’s death in 1994. 

Yet there was a price to be paid for the information vacuum.  Nixon’s family had to suffer through the grotesque images presented by Oliver Stone in his 1995 film, Nixon.  

You’ve seen through my eyes how differently two of the Watergate principals reacted to the archivists who serve as gatekeepers to history.   I understand the pain Nixon must have felt at the prospect of having Watergate information revealed.   But I respected Haldeman because he never blamed archivists for words he himself wrote or uttered or actions he took while he was a power player.



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Peter K. Clarke - 10/9/2007

It strikes as rather odd that NARA would not want to make transcripts of presidential tapes so that scholars could use the transcripts. I could understand NARA maybe not having sufficient funds, but why not let some other better-financed agency do the transcribing? With suitable double-checking, confidentiality excising etc, of course. A sizable chunk of at least the most noteworthy conversations were transcribed already during the Watergate period and I suppose Kutler must have done more transcribing for his books, so it would appear be a rather simple matter of slowing filling in those conversations not previously transcribed so as to eventually, over some years, produce a complete written record.


Peter K. Clarke - 10/9/2007

Thanks for clarifying, Maarja. When will you write YOUR book about all this?

I hadn't realized that audio quality was such a severe constraint. All the more reason, though, to get Ford Foundation or somebody to fund production of usable written transcripts. On the other hand, I suppose Kutler, et. al. have already cherry-picked many of the juiciest portions, so maybe only an odd penniless doctoral student, or expletive-deleted Watergate buff would care whether there is or is not a full and accessible transcript.

It seems to me there is a historical irony in all of this, however.

Nixon made the tapes, in the first place, thinking that they would help document his great achievements as president. Instead they became the catalyst for his being the only president to have to resign in a scandal. AND, three decades later now, there is still no feasible way for even a pro-Nixon historian to systematically survey the entirety of the tapes.


Peter K. Clarke - 10/9/2007

I suppose Nixon's original idea was that he and a sympathetic few, ONLY, would use the tapes selectively to help polish the afterglow of his administration, NOT that the whole hog, warts and all, would be made publicly available, including, thereby to those on the "enemies list." So, once the cover was blown on the existence of the tapes, the strategy shifted to stonewalling, which has succeeded in delaying things considerably at the least. But, of course, others, including Haldeman, had other ideas, and it seems -if I understand your drift- that the final disposition is still uncertain. I gather that the tapes themselves are being adequately preserved (by recoping or digitizing?) albeit in their current often poorly audible state. So 20 years from now, say, someone with sufficient funding could still jump in tackle the transcribing.

It is interesting to hear of this, and historically important too, so please keep writing now that you are (apparently) under less constraint than before.


Peter K. Clarke - 10/9/2007

Another question for you, Maarja, if you are still with us.

If you have time to do so, and obviously without going outside of any employment-related constraints, your comments on this pending bill would be interesting to hear. AHA and "National Coalition for History" are endorsing it:

H.R. 1255, the "Presidential Records Act Amendments of 2007."


Peter K. Clarke - 10/9/2007

This is an eye-opener, at least for me. The standard depiction of Haldeman as over-loyal but basically straightforward is confirmed here. Nixon's post-presidency aura as a rehabiliated "elder statesman" looks due for a bit of revision, however.

It is well-established, I believe, that Nixon's great downfall was not due to the third rate burglary detected in June, 1972, or even the iceberg of dirty tricks later found beneath it, but developed as the outcome of the ultimately bi-partisan outrage at the massive fog of deceit and obfuscation which with the beleagured president suffused the whole matter during 1972-74. It seems, from this account of archival suppression, however, that the Watergate cover-up did not end with Nixon's resignation in 1974, but continued for another two decades until his death.


Maarja Krusten - 3/10/2007

It is difficult to assess the purpose of the Bush executive order and its potential impact on the Presidential Records Act. Some news accounts that I have seen probably have added to the confusion in the public mind.

The 12-year restriction period in the Presidential Records Act refers to the time during which certain restrictions selected by Presidents for NARA to
apply can govern access. After that, access is governed by the FOIA
exemptions, except for the one covering deliberative privilege, (b)5.

This came up in 2002, during consideration of earlier legislation, see House Report 107-790 at
http://thomas.loc.gov/cgi-bin/cpquery/T?&;report=hr790&dbname=107&

which states that

"All but one of the exemptions from disclosure under FOIA apply to
presidential records. For example, records dealing with national
defense and state secrets as well as sensitive law enforcement matters
are protected from disclosure. The one exception is that FOIA's `(b)(5)
deliberative process' exemption 4 does not apply. Therefore, records
could not be withheld [after the 12 year period] simply because they
involved confidential internal advice and deliberations."

Not all journalists do a good job of explaining this. I'm fascinated by the number of news accounts I've seen that imply Executive Order 13233 is intended to protect national security. Of course, the government has had a need to protect national security information for a long time prior to November 2001, when President Bush issued E.O. 13233. If you think about it, writing a news story that links E.O. 13233 to national security implies that the government stumbled around for decades, haphazardly trying to protect national security information held by NARA without sufficient statutory or executive controls until the E.O. was issued in November 2001 and it finally (whew!!) became safe. Of course, the government takes things much more seriously than that and would never have acted in so haphazard a manner,for decades.

According to information on a government website, the first E.O. petaining to classified material was issued in 1940; the current one is the Clinton era order, E.O. 12958, amended by President Bush on March 25, 2003. E.O. 13233 covers something else, the presidential communications privilege.

E.O. 13233 applies to Presidential Records ONCE they are turned over to
NARA. There never would be a process that starts protecting a class of information, any class of information, in government records only
once it is transferred to NARA, leaving it insufficiently protected
until then, wherever it may be held until transfer to the archives. For some reason, reporters and commentators often seem to miss that, however.

Then U.S. Archivist John Carlin's August 2001 explanation of the events that immediately preceded issuance of E.O. 13233 as they pertain to NARA also provides useful clarification. Judging by some of the muddled news accounts I've seen, I don't think many reporters have looked at it recently. See
http://www.archives.gov/presidential-libraries/laws/access/reagan.html

and note the date: August 2001, before 9/11.


Maarja Krusten - 3/10/2007

Hi, Peter,

Yes, I’m still around. However, I hope you’ll understand that I never comment on pending legislation or on legislative matters.

I can and do provide context on some of the issues involved. If you haven’t read the prepared statements of some of the witnesses who testified earlier this month on the PRA, I link to them in my second set of comments at

http://www.texasmonthly.com/community/blog/paulburka/2007/03/presidential-paper-chase.php

or

http://shrinkster.com/mqw

If you have time to read them, you'll find that my first comments on Mr. Burka's blog point to the difficulty of assessing what is going on at the National Archives. One of the reasons that the National Archives is so interesting for me to follow is the fact that it employs historians at the staff and senior levels but is a subordinate agency in the executive branch. So, I find that I have to parse its official statements carefully. Sometimes it is difficult to tell when its officials are speaking as historians and when they are speaking the way an executive branch official generally would speak. There obviously are some competing dynamics and how people reconcile their job requirements in that environment fascinates me.

As to the question of retaliation, since I work in Washington, that never is far from my mind. I happen to work at an agency of which I am proud as an institution. Its current head said in 2005:

“To help us make the right choice, we need more leaders with three key attributes. Those attributes are courage, integrity, and the ability to innovate. We need leaders who have the courage to speak the truth, to do the right thing, and to put the needs of the next generation ahead of the next election cycle. We need leaders who have the integrity to lead by example, to practice what they preach, and who understand the law is the floor of acceptable behavior and who live by higher standards. We need leaders who can see new ways to address our many challenges and who can help show others the way forward.”

I feel comfortable working for an agency whose leader speaks that way.

As to other sources of power in Washington, I tend to think that there would be no surer sign that the National Archives has no chance to take discretionary action in its handling of the nation's historical records and zero independence than for someone in a position to power to harm me or retaliate against me for my discussing my past experiences at the National Archives. I felt the same way in 1992, and said so in the presence of Richard Nixon’s attorneys, see below.

KUTLER’S ATTORNEY: "Do you have any concerns that any adverse actions could be taken against you or someone else because of the testimony you are giving in this deposition?"

DOJ ATTORNEY: "Objection. Compound."

KRUSTEN: "No. It’s my feeling that I and everyone who worked on the materials tried their very best to adhere to the regulations. When we felt that we were being asked to do something unethical, we protested to the extent that subordinate employees may do so without suffering punishment.

I think we were within our rights to warn supervisors that they were on a path that might not stand up to close scrutiny.

Certainly, I think it would have been in the Archives’s interest and Mr. Nixon’s interest to have the [Record Group] 460 [Watergate Special Prosecution Force tapes] opening handled in a manner other than it was, and I think I did everything I could to warn people that this should be done.

I know of no reason to punish people for attempting to warn an agency to conform to its regulations. And, in fact, to attempt to do so might be construed as an admission of guilt.” [Krusten deposition, Civ. A. 92-62-NHJ, 154.]

SOURCE: United States District Court for the District of Columbia, Excerpts from the Deposition Testimony of Maarja Krusten, in Civil Action 92-662-NHJ, in

Stanley I. Kutler, et al., Plaintiff,
v.
Don W. Wilson, in his official capacity as Archivist of the United States, Defendant,
and
Richard Nixon, Intervenor,
as copied from “Transcript of Proceedings” in author's possession.


Maarja Krusten - 3/8/2007

Richard Cox, a respected and well known professor of archival studies, has a blog, Reading Archives. (I quoted from Dr. Cox's article, "America's Pyramids," in one of my comments, above.)

On March 2, in a blog entry he called "FDR's Archival Legacy," Dr. Cox provided some thoughts on the issue of Public Historian in 2006 that centered on Presidential Libraries. See
http://readingarchives.blogspot.com/2007/03/fdrs-archival-legacy.html

I, too, recently read and have been reflecting on the essays in the volume. In his blog entry, Dr. Cox mentions among others the article in Public Historian from 2006 by Nancy Kegan Smith (director of NARA's Presidential Materials Staff) and by Gary Stern, NARA's General Counsel. Richard's comment started me thinking about the challenges lawyers face when they join NARA -- an agency with historians as its internal and external stakeholders -- after a narrative has been crafted by other lawyers and offered already in court in a case that has been settled. In this case, I took one sentence in the article published by NARA's officials in 2006 and focused on what government lawyers said in court in 1992 about the Nixon tapes. Here's the approach I took in comments I posted yesterday evening on Dr. Cox's blog. Although I focus on lawyers in my hypothetical classroom exercise, academics may want to also consider the very difficult challenges that respected scholars such as Allen Weinstein and Timothy Naftali may face at NARA.

I should note that it is coincidental that HNN published my essay on Nixon and Haldeman the same week that the Chronicle of Higher Education wrote about Presidential Libraries and about the new Nixon Library. I knew CHE was planning such a series. I didn't know it was coming out the same week as my essay.

Back to Dr. Cox's blog. Yesterday evening, I wrote there in part:

"Ms. Smith and Mr. Stern touch in their article in Public Historian on work done on the Nixon tapes while I was employed at the National Archives and Records Administration (NARA) from 1976-1990. One of their statements is similar [to] what was said in court when Stanley Kutler, a history professor, filed a lawsuit for access to the Nixon tapes in 1992. Nothing more clearly illustrates the challenges NARA faces than reading that statement in an article published in 2006.

, , , .The article by Ms. Smith and Mr. Stern states that "The archival review of the Nixon White House Tapes started with an initial review of the tapes by Nixon tape processing archivists, which occurred between 1981 and 1987." This is what lawyers representing NARA told the court in 1992 when Kutler filed his lawsuit for access to Nixon's tapes (Kutler v. Wilson).

The fact that lawyers in 1992 represented work done with the tapes between 1981 and 1987 as being "initial review" makes for an interesting story. There are other ways to look at this, as the citations I provide below suggest. This is where you should start your classroom exercise."

I explain earlier that Mr. Stern only came to NARA in 1998, after Stanley Kutler's lawsuit was settled. I set up the potential classroom exercise this way:

"In pondering the hand Mr. Stern was dealt, it occurred to me that the following would make an interesting exercise for a class on archives and the law. . . .

If I were a professor, I would present my students with the facts I am about to lay out at length. Then I would ask them to craft a story to tell in court. I would caution them that the litigation involves access to historical records dealing with Watergate, a matter in which historians and journalists have a high degree of interest. NARA is the defendant. Their job as lawyers is to protect NARA by presenting a sustainable narrative, one which would not lead historians or journalists to conclude that the agency had no independence in matters involving Presidential records.

Split the class, asking half to do this one way, half the other. In both instances, the class should keep in mind that the National Archives is a subordinate agency within the executive branch and that it does not speak for itself in court. Rather, officials from the U.S. Department of Justice (DOJ) speak for it in any litigation in which the NARA is a defendant. I would ask the class to do this one of two ways:

[(1)] Base one narrative on the assumption that although DOJ was filing interrogatory responses and pleadings on its behalf, the National Archives and its officials, including the General Counsel, had a relatively free hand. DOJ showed tactical and strategic skill in assessing the complaint filed in court. It took into account the fact that agency employees and the plaintiff were historians schooled in ferreting out the facts and doing critical analysis. Justice's lawyers and NARA's officials agreed that to avoid being blindsided, they should interview everyone within the Archives with pertinent information prior to presenting a story to the court. There was no external interference from DOJ, which is headed by the Attorney General, who represents federal employees but also the White House. DOJ's lawyers consult with the Attorney General, who agrees that in a case of this sensitivity, all involved need to avoid appearing to show conflicts of interest;

(2) Base a second one on the assumption that the National Archives and its officials did not have a free hand but were taking direction from outside the agency. The lawyers present a narrative in court but never talk to the man who supervised the processing of the Nixon tapes between 1981 and 1987 before they file interrogatory responses. NARA's and DOJ's lawyers are unable to protect themselves from being blindsided later in court by facts unknown to them at the time the legal complaint is filed."

I then lay out the facts for the class to consider, drawing on public statements, library materials, and in a couple of cases, documents from the 1980s that were filed in court in 1992. I did not draw on deposition testimony (although I have read it). There is sufficient evidence in the public record in the materials I cited for the classroom exercise on NARA and the law.

The goal of the exercise is to pretend you have received Dr. Kutler's complaint as filed in court in 1992 and then to submit and prepare to sustain a narrative about NARA's archival work with Nixon's materials. At the end, I provide a sense of how the story that lawyers presented in 1992 played, by quoting from an article by Jack Hitt in 1994, from a statement by Kutler's lawyers, and from an interview with Kutler in 1997.

See

https://www2.blogger.com/comment.g?blogID=36483011&;postID=8067261135769638152

or

http://shrinkster.com/mnt

if you want to read the whole thing, including the lengthy recitation of publicly available facts that I ask the hypothetical class to consider in their roles as lawyers working with archives officials. Dr. Cox is kind enough to suggest in reply that I write an article but the issues are very complicated and I don't have the time right now while I am working full time. And I have no plans to retire soon. Still, my posting should provide some food for thought for anyone considering what lawyers might face in serving a client such as NARA. I have no knowledge of why lawyers acted in 1992 as they did, although I testified in the court case. I testified in isolation with only my wits to rely on.

If you want to print the lengthy comments I posted yesterday evening on Dr. Cox's blog, you may have to do "select all" (control key-A) then select in your printer setup screen the choice to print the selection (or selected text). That's how I got it to print. If I just opened the site and hit print, I got blank pages after the first one.


Maarja Krusten - 3/7/2007

In some of my comments above, I expressed puzzlement over the meaning of two comments attributed to Timothy Naftali and John Powers in Jennifer Howard's CHE article ("A Scholarly Salesman") tis week. These were comments about NARA getting "back into" Nixon tape releases and the work being done with original tapes as opposed to copies. Many NARA issues are very complex and it is difficult to sometimes trace what is happening.

NARA's website has suggested for the past few years that the tapes release process has been ongoing. See
http://nixon.archives.gov/find/tapes/releases.html .

I have no reason to believe Ms. Howard misquoted the officials.

I don't know Dr. Naftali except by his reputation as a scholar, which is good. I hope to meet with him some day but have not met him yet. I do know by reputation and trust John Powers, a senior Nixon Project archivist and longtime NARA employee.

As detailed as Ms. Howard's good article was, it is possible that NARA did not explain in depth what is going on with the tapes. It also is possible that the length of the article precluded more detail. If I find out anything in addition to what the article states, I'll post it if appropriate.

Posted (briefly) by Smartphone


Maarja Krusten - 3/7/2007

Peter Clarke mentioned constraints. I am, of course, a federal government employee, although no longer at the National Archives and Records Administration (NARA).

Between January 1990, when I left NARA, and September 1992, when I testified in the Kutler Nixon tapes lawsuit, I published no letters to the editor anywhere, although I already was free from NARA's message discipline. My experiences during the Kutler lawsuit changed everything for me. You can find everything you need to know about why in these two paragraphs from my article, "Watergate's Last Victim," published in Presidential Studies Quarterly (Winter 1996):

"As a former NARA Nixon Project tapes archivist, I testified in the Kutler case in 1992. After later studying the court record, I approached Acting Archivist [Trudy] Peterson in 1994 with ethical concerns about disinformation and possible witness intimidation [of two witnesses] in the government's defense of the lawsuit. Deeply troubled, she encouraged me to turn to the Justice Department.

Concerned that the head of the Archives might suffer political retribution for efforts to correct litigation records, I decided I should bear any potential retaliation alone. When I spelled out my concerns to the Justice Department, I attempted to protect Peterson by shielding my contact with her from the government lawyers who ‘represent’ NARA in court. Given the Department's record, I was not surprised when lawyers brushed me off with a stonewalling response. So ill served by those who should be protecting it, it is little wonder the nation's record keeper has become Watergate's last victim."

I'm comfortable with the choices I’ve made since September 1992 but accept the fact that while some might have done as I have, other people might have felt it was best to remain silent about their experiences. I wish the best for NARA but recognize that people have differing opinions on how to achieve that. In fact, my experiences during the late 1980s and early 1990s, during what Jennifer Howard in the Chronicle of Higher Education this week referred to as the “Nixon wars,” suggest that not everyone at NARA agreed on how the Nixon Project, with its unique statutory obligations, should fit in with the traditional methods of operating of the Office of Presidential Libraries.

Just as Presidents and their aides can be unpredictable, not every archivist reacts the same way in this environment. As late as 2002, Richard J. Cox, a professor of archival studies, noted “But there is deeper crack underlying this relationship, when this commentator notes that ‘There is a self-effacing pride in the modest boast made by an archivist in the Office of Presidential Libraries when he tells White House officials that “our job is to help make you look good.”’”
See Cox’s article on Presidential Libraries (“America’s Pyramids: Presidents and Their Libraries,” page 59) at www2.sis.pitt.edu/~rcox/AmericasPyramids.pdf
I do not know in what context that comment might have been made.

Obviously, the Presidential Libraries have released many records, especially after a President has died, that do not always make him “look good.” Historians have learned a great deal about Lyndon Johnson, as Rick Shenkman noted last week in his HNN blog, POTUS. LBJ’s tapes have humanized him for many historians and told us much about the Vietnam War that we did not know as it was unfolding.

After leaving office, how did LBJ really balance revelation of the complexities of governance and the human side of Presidents against a desire to continue controlling the message? The signals are mixed. He spoke of his Library holding history with "the bark off" yet had placed a 50-year seal on his tapes. I do not know how quickly some of that material might have been released, had LBJ been younger, in better health and not died four years after leaving office. His records, like those of all Presidents until Watergate, were “donor-restricted.” Only a statutory mandate in the 1990s led to some fragmentary conversations from LBJ's tapes being released. Once the crack was made in the seal in the 1990s, his family allowed archivists to start screening the remainder for public release.

We only get occasional glimpses into what goes on in assessments of archival matters. Hearing records from 1986 revealed that Nixon’s lawyers met with lawyers at the Department of Justice in 1985 to discuss a Nixon veto over NARA’s archival decisions. The notes included in the record showed discussion of how the Kennedy Library supposed was releasing “only the most favorable”materials. I do not say that this is what the Kennedy Library has done, only that the released notes show that the discussion at DOJ contained such an assertion. While he was alive, Nixon’s lawyers often said he should be treated “just like other Presidents.” Soon after the meeting with Nixon's lawyers in 1985, DOJ issued a directive, ordering NARA to accept without discretion any objections Nixon had to NARA’s releases to historians of information from his documents and tapes.

The DOJ directive was overturned by a court, at least on paper, in (Public Citizen v. Burke, 655 F. Supp. 318 (DDC 1987)). Scott Nelson discussed the order in Burke in his testimony on the Presidential Records Act last week, available at
http://www.citizen.org/pressroom/release.cfm?ID=2390
When I say “on paper” I mean we know the effect of the court opinion since 1987 -- de jure. Much harder to trace is its effect since 1987 de facto.

I mentioned above that Nixon in 1987 blocked NARA from opening 42,191 documents which its officials had deemed releasable under statutes and regulations. NARA later released many of the contested documents, which included notes from some of H. R. Haldeman’s White House Files, but only after Nixon died. There was and still is in place a regulatory process for NARA to consider and reject or accept claims filed on behalf of Nixon and now his estate. Nixon's submission of claims to block NARA's attempt to release some of his White House files in 1987 received considerable publicity in the press. Interestingly, NARA never again published a Federal Register notice informing the public that Nixon disagreed with its processing.

The Kutler lawsuit in which I testified uncovered through the testimony of several witnesses internal disputes within NARA over how to handle in 1989 the quiet submission of a list of 70 potential restrictions to Watergate Prosecution Force tapes. This was the 63 hours of tapes used by the prosecutor’s team and vetted during the 1970s by Judge John Sirica, not the additional 200 hours that we archivists uncovered during our review in 1980s which nevertheless remained on the shelf during Nixon’s lifetime.

According to court records (and a memorandum I later received under FOIA from NARA’s Office of Inspector General), several archivists and I, including a supervisor, argued within NARA in 1989 that the Federal Register process should be followed in handling the Special Prosecutor records. None of us disputed, of course, that Nixon had every right under law to file objections to materials we proposed to release. NARA chose not to use the public notice process.

Some deletions from Nixon's list were made to the tapes and portions of the Watergate materials later released in 1991 with the public having no knowledge that Nixon had submitted a list of items for potential deletion from the tapes. In fact, the New York Times reported reassuringly on June 5, 1991 that according to an Archives’ spokeswoman,“Mr. Nixon did not contest the release of the latest transcripts.” It all came out later in 1992 during the Kutler lawsuit.

In my view, it would have been less embarrassing for Nixon to have gone through the Federal Register process in 1989 than to endure sensational news stories about the tape cuts that came out of the 1992 lawsuit. Others might argue that it is inherently embarrassing for a President to admit that he is objecting to the release of historical materials and that it is better to work things out quietly without going through that. NARA has noted, as recently as in 2006, that a Nixon family agent continues to review what NARA proposes to open and that "no formal" objections have been filed.

Richard Nixon and H. R. Haldeman were just as human as the rest of us. The prospect of having their past uncovered must have been scary for both, as it would be for anyone. I'm fascinated by the differing ways in which they reacted. So, too, do I continue to follow with interest the choices made by officials within the National Archives. It’s an interesting environment in which to work for historians, which is how most archivists start out, but very different than that found in academe. Of course, I wish all NARA officials well.


Maarja Krusten - 3/6/2007

Although the Chronicle article seems to have misquoted John Powers (a man of integrity and great professionalism, as far as I can tell), the work within NARA being mostly done these days as in the past with copies rather than originals, it sounds as if the preservation aspect of the tapes is being handled all right.

As to historical content, there are approximately 1,000 hours of tapes (the so-called Chron 5) that still are undergoing review within NARA. There is a legal requirement to separate personal-returnable segments from governmental ones and to return those portions to Nixon's estate. I have no idea how that will turn out.

Nixon while he was alive disagreed with NARA's review standards. He blocked NARA from opening 42,191 documents in 1987. His lawyers then criticized NARA's disclosure regulations as too narrowly defining what was personal and too broadly defining what was governmental. (The lawyers' letter was released under FOIA.)

John H. Taylor, director of the Nixon Foundation, wrote in a letter to the CHE in 1996 that the blocked items "were of the sort that are routinely withheld at other Presidents' libraries." However, NARA ultimately retained approximately 75% of the documents from White House files instead of returning them to Nixon's estate. It opened most but not all of the retained documents to the public around 1996. I don't know what the difference between NARA's Clinton era actions and Taylor's statement portends for the present.

Actually, as for me, I'm under the same constraints I always have been. The recent attention to Presidential Libraries and the forthcoming incorporation of the Nixon Library in Yorba Linda into the NARA system of Presidential Libararies sparked my interest. So, I wrote and published my essay, above.

I actually feel quite sorry for NARA, it has an awfully difficult mission, one to which many historians seem curiously indifferent. Many of them work with manuscript collections at private institutions, with access to documents controlled by family members or heirs of notables. I don't know how that affects their view of government records.

I often wonder how most academic historians would handle the challenges NARA's officials face, with little or no support and no firewall to protect them. I actually also have some sympathy for President. Except for Gerry Ford, if Nixon is anything to judge by, they seem ill equipped to face the prospect of having their records opened and their actions scrutinized. You're right, of course, that Nixon expected to cherry pick his tapes and files and use them for his own purposes.

Again, thanks, Peter, for taking the time to read my essay and for providing me an opportunity for some interesting exchanges.


Maarja Krusten - 3/6/2007

Thanks for your kind words. If you thought that clip had poor quality, try this one. You can get a sense of how poor was the audio quality of some of the other Nixon tapes, such as this one recorded in the President's hideaway office in the Old Executive Office building. Listen to this fragment from a conversation between Nixon and H. R. Haldeman at
http://tapes.millercenter.virginia.edu/clips/1972_1019_felt/ . Note the ticking clock, ambient room noise, etc. That transcript is by the Miller Center not NARA.

A further irony. Haldeman, the former advertising executive (he had worked for the J. Walter Thompson ad agency before coming to the White House), advocated release of Nixon's materials. And he provided straightforward and factually correct information about what was happening at the National Archives.

I mentioned in my essay that Haldeman published an article in 1988 in NARA's magazine in which he said that NARA's processing of the Nixon White House tapes was "virtually complete."

Haldeman noted then,

"The time has finally come, almost fifteen years after the end of the Nixon administration, when one may reasonably look forward to hearing . . . portions of the White House tapes. . The opening of the entire four thousand hours of White House tapes is . . . just around the corner."

Nixon, the former lawyer who may have read more history books over his lifetime than Haldeman, sought to keep a lid on things. The tapes opening that Haldeman (and we archivists and NARA's customers) had anticipated did not occur. NARA's spokesperson in 1991 reportedly represented the delays as due to transcription, implying archivists were transcribing all the tapes. You will look in vain for such transcripts now.

For me, the people who work in Washington are endlessly fascinating in the choices they make and how they handle difficult decision points. That includes not just former Presidents and their aides, but also the people who work in the National Archives and the Justice Department lawyers who speak for them in court.


Maarja Krusten - 3/6/2007

For those who haven't been following these issues or haven't looked at NARA's website, we created subject logs rather than transcdripts for the Nixon tapes. So detailed information about the contents of the tapes is available, it just isn't in transcript form.

See the link for the Nixon and Haldeman conversation discussed above,
http://shrinkster.com/mlk
for an example of a tape subject log.
For general information from NARA's website, see
http://nixon.archives.gov/find/tapes/processing/description.html
and
http://nixon.archives.gov/find/tapes/complete/finding_aids.html


Maarja Krusten - 3/5/2007

NARA estimates that it takes 100 staff hours to produce one hour of transcribed tape. (In my day, it took longer, we had no computers when I started at NARA in 1976).

Very few transcripts exist. Of the 63 hours of Watergate Prosecution Force tapes (the total hours for all the tapes is 3,700), not all have transcripts. Special Prosecutor employees did those. We within NARA only produced a few fragmentary transcript excerpts for special access court cases in the 1970s. NARA notes this on its website.

I was going to post a link to some of NARA's few existing transcripts but find I can no longer link you to any copies of NARA's own transcripts from court cases. There used to be copies available on the SSA website of the few fragments we produced but they have been pulled. As of last August I was able to still get them via Google cache but those now are gone, too. NARA has posted some of the WSPF transcripts but I no longer can find any of its own (publicly released) transcripts anywhere on the web.

We actually discussed transcription last week on POTUS. Take a look at
http://hnn.us/readcomment.php?id=106365&;bheaders=1#106365

If you have time, click on the MP3 file I linked to there. It's a sample of one of the Nixon tapes with which I once worked. I didn't shrink it on POTUS but you can get the clip at
http://shrinkster.com/mlf

If you read my posting at POTUS, you'll see in my discussion of that audio clip how an outside transcriber missed some names and portions of the conversation. In a discussion of J. Edgar Hoover, he totally left out references to Clyde Tolson. I just listened to the clip again and clearly hear Nixon say Clyde Tolson. Of course, I spent ten years doing nothing but listening to Richard Nixon and once you have acquired those listening skills, they stay with you.

If you look at what I posted on POTUS at the link above, you'll have to copy and paste the links for the two PDF files which show differences between our work and an outsider's work. Of course, as with longer URLs on HNN, the links to the two PDF files didn't hyperlink. We did tape subject logs, the graduate student working outside NARA did a short transcript, but for that particular conversation (the one for which I gave you the link to the audio clip) our work is more accurate.

We had the advantage within NARA of being immersed in Nixoniana. Plus we had access to all the necessary textual materials needed to provide contest. I get into that a little on POTUS, also.

Could you contract out transcription? Yeah, in theory, but given the learning curve needed to become fully familiar with names, voices, cadence and speech rhythms, on what often are very poor audio quality materials, As a result, while you could contract some of that out, NARA probably would have to expend a lot of its own resources in double checking the work of the contractors. Government contractors often change jobs and rarely stay around very long. But it takes a long time to pick up all you need to know to do good work.

NARA's budgetary and staffing resources are very, very tight. Like all civil agencies within the executive branch, NARA has a pretty bleak budget outlook. Last year it had to cut down on research room hours, severely limiting the time its research room in College Park, MD is open on weekends. There actually was talk of doing away with the researcher shuttle that runs between the main building in downtown DC (Archives 1) and the Archives 2 complex in College Park, MD. As with most federal agencies, almost all of NARA's budget goes towards personnel costs. There's very, very little money, in relative terms, for anything else.

The Nixon Project has lost a lot of staff since it was announced the privately run Nixon Library in Yorba Linda will be incorporated into the NARA system. The staff that the Project has left are working on the thousand hours of unreleased tapes in Chron 5 and the millions of pages of unreleased textual records. My guess is that managers have decided to spend staff time on reviewing tapes, to get more of them open, rather than working with contractors on transcription.

BTW, I see a pssible red flag in Dr. Naftali's comment in the CHE article that "it's important to get back in the tape-release business."

Hmmm. "Back in?" What has been going on that has kept NARA out of the tape release business? It was supposed to have been working steadily towards that goal, with no pauses. What's been going on, aside from NARA perhaps pulling some staff to work on the Yorba Linda transfer and assisting FRUS scholars, etc?

Is there something we should be worrying about? I don't know, maybe, maybe not. Of course, I look at things through the prism of my own experiences at NARA, all of which occurred while Nixon was alive. I hope Dr. Naftali's comment simply is a reference to a resource issue -- it may just be a misquote or the writer may have left out some context -- but I just don't know.

Of course, had NARA been able to follow its original schedule, the disclosable portions of the 3,700 hours of tapes would be open by now. Although you can't get anyone at NARA to admit it these days, court records from 1992 show that it originally planned to start opening Nixon's tapes in 1991, with a phased opening starting with tapes recorded in 1971. All the twists and turns in how lawyers struggled to explain that fact away during the Kutler court case are fascinating, especially as NARA is staffed mostly by historians. Of course, the Department of Justice speaks for NARA in court. But I digress.

Back to the money situation. NARA is a tiny agency. When the President submits his yearly budget, NARA is nowhere near the top of the list when you look at OMB's priorities. Within NARA, Presidential Libraries are not necessarily NARA's biggest priority. You might be interested in reading this op ed by Larry Hackman, former director of NARA's Truman Presidential Library. He alludes to that in passing. See
http://www.kansascity.com/mld/kansascity/news/opinion/16666075.htm


Maarja Krusten - 3/5/2007

The Chronicle of Higher Education has a story about the forthcoming
incorporation of the private Nixon Library into the National Archives'
system of Presidential Libraries. The article includes a profile of
Timothy Naftali, who will be the director of the new Nixon Library.
See the link at
http://chronicle.com/temp/email2.php?id=rxMds4h3fhnzcvtbyy6QgNPYXyrGn6cd
or
http://shrinkster.com/ml4
which will work for the next five days for non-subscribers.

Note the part where John Powers,
senior archivist with NARA's Nixon Project (and a man with a very good,
solid reputation from what I can tell) explains, correctly, that:

"The Nixon Presidential Materials staff makes no transcripts of the
tapes it works with. 'The Archives believes the tape is the record,"
Mr. Powers explains."

This has been NARA's policy from the start with the Nixon tapes.

But an article in the New York Times on June 5, 1991 noted that in
explaining delays in opening Nixon's tapes during the period when Don
Wilson was U.S. Archivist, an Archives’ spokeswoman asserted that
“National Archives experts are cataloging and transcribing thousands of hours of remaining conversations, which will be released over time, but
years will pass before all become public.”

Yet the Archives had decided in the late 1970s not to transcribe the
tapes, a decision borne out by its later releases of tape subject logs
rather than transcripts. If you look now at the National Archives
website, you will search in vain for transcripts systematically
produced by NARA’s archivists.

The only transcripts to which NARA links now are those from Special
Access court cases during the late 1970s and from those from the
Watergate investigations that took place during the 1970s. Where are
the transcripts that "experts" within NARA were so laboriously
transcribing as of 1991? Nowhere. The story told in 1991 doesn't
hold up. Of course, Mr. Powers -- who was not the source of the transcription story in 1991 -- states correctly that NARA does not
produce transcripts. The earlier quote in the NYT in 1991 came not
from a Nixon Project archivist, but from a NARA public affairs official.

There is one quote in the CHE article that made me raise my eyebrows. I've done some checking and can caution readers that they should not attribute the following to evasiveness by NARA, however, as it appears to result from conflation. (Do not take at face value the quote in the Chronicle article that states of archivists "it takes Mr. Powers and his staff, which numbers about 15, 'anywhere from 10 to 20 hours' to process each hour of tape." The reporter implies that NARA has stated that archivists "must work with 'very thin, very non-archival-quality tape.
... The Secret Service agents would buy whatever brand was on sale at
the drugstore across the street.'" That implies that all the work is
being done with the original Nixon tapes.

That is not the case, nor, from what I understand, is that the story that John Powers and NARA tell to researchers and reporters. The archival work is being done primarily with preservation copies, as in my day. You would not do routine archival review with the fragile originals. It appears that the author of the Chronicle story inadvertently conflated two types of work.

NARA has struggled to tell its story in the past, I know that all too well, having testified under oath in the Kutler case and having read NARA's court pleadings. However, this appears to be a conflation of two different types of work and as far as I know, NARA did try to make that part clear even if it did not come through in the article.

I tend to agree with Stanley Katz, quoted in the article, that Dr. Naftali is behind the eight ball. Of course, I understand the concerns expressed in the article by Stanley Kutler as well. I do wish Dr. Naftali, John Powers and the NARA staff all the best of luck.

As you can see, the CHE notes that John H. Taylor still serves as Executive Director of the Nixon Library foundation.


Maarja Krusten - 3/5/2007

Mr. Fawcett retired from government service, leaving NARA in 1994. It is Don Wilson who left NARA in 1993.


Maarja Krusten - 3/5/2007

Our experiences in working with Nixon’s records while he was alive differed from what archivists go through in most Presidential Libraries. You won’t see many news stories about conflicts at Presidential Libraries because they have a culture of working things out quietly and informally with a former President and his representatives.

Nixon’s records fall under a one-time law, the Presidential Recordings and Materials Preservation Act (PRMPA) of 1974. The seizure of Nixon’s records, the ongoing Special Prosecution investigations at the time Congress passed the PRMPA, the many lawsuits, the requirement to first open “abuse of governmental power” information and the regulations we worked under created a much more adversarial environment than in traditional Libraries. Assistant Archivist for Presidential Libraries James O’Neill said to a reporter in 1986, “This is the first time we’ve had a confrontation with a former President. . . .We must give top priority to giving the public access to materials relating to ‘abuses of power,’ as the statute describes it. That’s not what President Nixon wants us to do.”

O’Neill died suddenly in 1987 and U.S. Archivist Don W. Wilson, himself relatively new on the job then, named John T. Fawcett to replace him. Fawcett headed Presidential Libraries from 1987 to 1993.

In the pre-Watergate Libraries, Presidents had a right to set restrictions on donated materials that had been their personal property. Under the Presidential Records Act of 1978, which applies to the records of Presidents starting with Reagan, archivists have a different framework than under the Nixon statute in which to work with a former President’s lawyers and representatives.

Absent testimony in a lawsuit where some of the issues may be pertinent, there really is no public right to know as far as finding out information about NARA's dealings with former President's and their representatives. Those are considered internal matters. For example, had Sandy Berger not removed Clinton-era documents from the National Archives and his actions become subject to investigations, we outside NARA never would have found out that he had been left alone in an office with sensitive original documents, a move that goes against standard archival practices, whether or not it results in loss of documents.

Whatever organization you work for, the public probably knows little or nothing about how it handles the actual application of its rules, regulations, and procedures. Your organization may be handling these things well or not but no one outside your workplace really can tell. They may read your press releases but that pretty well is it, unless something becomes the subject of a news story. That's just the way it is and the National Archives is no different than any other workplace.

Ultimately, it comes down to how you assess the competing dynamics that affect the work of an organization and the people involved. And people assess these things differently, due to the varying levels of knowledge and sophistication they apply to complex issues.

In my view, here’s what it comes down to. Laws, although they appear clean and clinical on record, involve human beings at every step of their application. And human beings are unpredictable, as my essay shows.

In an op ed in 2006, John Wertman wrote that “I was lucky enough to have had a chance a few years ago to ask former president Gerald Ford about the Presidential Records Act and was struck by his answer. ‘I firmly believe that after X period of time, presidential papers, except for the most highly sensitive documents involving our national security, should be made available to the public,’ he said, ‘and the sooner the better.’ He also told me that the researchers he's talked to at his presidential library have been grateful that most of his documents were made available.” (I too have heard that Ford’s Presidential Library has been one of the easiest ones for archivists to work within and for scholars to visit.)

My contacts with him suggested that Haldeman seemed to hold views similar to those of Ford. Richard Nixon felt differently. Obviously, anyone trained as an historian, as most of us in NARA were and are, find it much easier to deal with a Gerry Ford than to face the roadblocks put up by a Richard Nixon. Two different Presidents, two different approaches. Add to that the fact that NARA's sole source of representation in lawsuits filed by researchers is the Department of Justice and you can see how challenging all this can become.


Maarja Krusten - 3/5/2007

Hi, Peter, thanks for reading my article.

As to your point, John H. Taylor, director of the Nixon Library and Birthplace in California, wrote in “Cutting the Nixon Tapes,” an article in American Spectator in 1998, “Until six years ago an informal understanding existed between President Nixon and NARA that the ‘abuse of power’ tapes would be defined as the 63 hours used by the Watergate special prosecutor in 1973-74. But then we were told that the Hardy Boys at NARA had kept a little list - 201 additional fun-filled hours of their own greatest hits.” Taylor described Nixon’s anger at the revelation that federal archivists (I among them) had uncovered during their work additional information about Watergate beyond that identified in the 1970s.

Here is what historian Stanley Kutler said of the delays in releasing the Nixon tapes in an interview shortly after the settlement of a lawsuit that he filed in 1992. Note especially the last sentence in the quote from the interview, below. This is from 1997, after the publication of Dr. Kutler's book, Abuse Of Power:

“MARGARET WARNER: All right. Now, briefly, how did you get access to these tapes?

STANLEY KUTLER: Well, the tapes were ready. They had been processed by 1987, and the National Archives promised an imminent release, which didn't come yet after five years. I had made numerous requests and finally thought there was no other place to go but to the courts, and along with Public Citizen, I filed suit—

MARGARET WARNER: That's an organization.

STANLEY KUTLER: Public interest law firm--filed suit in 1992, and the settlement came down four years later--two years after Richard Nixon's death. I have no doubt that Nixon's death enabled us to finally settle the case because in his lifetime I am certain he simply would not consent to the release of these tapes.”

See http://www.pbs.org/newshour/bb/white_house/july-dec97/nixon_11-26.html
for the transcript.

A law was on the books directing the National Archives to release "the full truth" about Watergate at "the earliest reasonable date," yet in Kutler's view, it came down to the fact that Nixon "simply would not consent" to the release of tapes.

I’ve mentioned previously how the Kutler lawsuit came about. Stanley Kutler wrote to the National Archives in December 1991, asking when all the Watergate-related tapes would be released. John T. Fawcett, Assistant Archivist for Presidential Libraries, replied with a letter informing him that NARA had released all “integral file segments” relating to Watergate.

Kutler sued NARA and after settlement of the case in 1996, later gave his take on the lawsuit. He asserted that the officials in charge when he sent his letter “ignored legitimate requests for access. Denying even that more Watergate tapes existed, they put themselves in the service of Nixon, not the nation or the scholarly community as they were obligated to do. Eventually, the Archives acknowledged it held hundreds of hours of Watergate tapes, but only after I proved their existence by working through the internal evidence of the Nixon Papers. The Archives thus exposed its own cover-up.” (Stanley I. Kutler, “Liberation of the Nixon Tapes,” Legal Times, May 6, 1996)

Kutler's words sound harsh and much of what was said under oath during the lawsuit was extremely contentious. The situation at NARA actually was and is very complicated. Although it is a subordinate agency within the executive branch, conditions insdie vary somewhat depending on the political forces outside NARA.

Although I testified in Kutler’s lawsuit, I no longer was working at NARA as a subordinate of Fawcett when he sent his reply to Kutler in January 1992. My career spanned 1976 to 1990. I worked for Mr. Fawcett for a little over two years.

I’ve never seen a good explanation from NARA as to why Mr. Fawcett worded his letter the way he did. I testified during the Kutler lawsuit that I thought different wording in responding to a researcher such as Kutler might have prevented a lawsuit.

Of course, although the National Archives is an agency staffed primarily by people with graduate degrees in history, the different stakeholders with whom they deal -- especially the power players -- are very different from those found in the academy. This can created enormous challenges for everyone. More on that shortly.