Why New Laws Are Needed to Stop the Bullying of the National Archives
A federal judge recently overturned part of an order by President George W. Bush that had strengthened the ability of former Presidents to block disclosures from their files. She said the National Archives has the final say on what is opened from Presidential records. But the Archives' difficulties in releasing Richard Nixon's records suggest that the ruling may have little impact on what the public learns about Presidents Ronald Reagan, George H. W. Bush, Bill Clinton, or George W. Bush.
Until the 1970s, releasing records required deference to a former President because White House files were his personal property. He could destroy what he wanted, then set restrictions on any remaining portions that he donated to libraries administered by the National Archives. Archivists often waited for controversies surrounding a President to die down before opening contentious documents.
To better balance the public's interests against those of a President, Congress enacted laws in the 1970s that spelled out government ownership of Presidential records. Those laws permit a former President to review what the National Archives proposes to open and to file claims against release. But as Nixon showed when archivists tried to open some segments of his conversations about Watergate, a President may hide his role in deletions.
Nixon initially appeared to accept that if he disagreed with the Archives, he had to file formal claims against release of records. When it opened some of Nixon's documents in 1987, the Archives informed the public that Nixon had filed objections. But reporter Bob Woodward did not know that Nixon withheld information he needed for his research.
In 1988, Woodward looked at how in 1971 Nixon White House officials had examined the number of Jewish employees at the Bureau of Labor Statistics. Although archivists had marked the files for disclosure, Woodward couldn't see all of the relevant documents because Nixon had withheld a 1971 directive asking for removal of some Jewish civil servants from their labor bureau positions. Nixon's order was contained in one of several thousand documents that the former President blocked the Archives from opening. Nixon's lawyer told the press, "I can raise your hair on end with what the Archives thinks does not infringe privacy and should be released."
The National Archives had the authority to override Nixon's objections but did not do so. It opened no blocked documents while he was alive. Two years after Nixon died in 1994, Archives' officials finally released the directive about Jews that archivists had marked for disclosure in 1987. The document read "everyone in BLS is Jewish look at all sensitive areas ck. Jewish involvement . . . esp. uncover Jewish cells -- & put a non-Jew in chg of each." Although Nixon hid evidence of his prejudice from researchers such as Woodward, he did follow rules for filing objections.
It was the last time Nixon was so open in providing input on deletions. In 1989, the Archives privately accepted from Nixon's lawyer a list of 70 items for potential deletion from Watergate tapes. Archivists who protested Nixon's backdoor submission lost the fight to have him file formal objections, as in 1987. Although the Archives made some cuts to the tapes before opening them, its spokesperson told reporters, "Mr. Nixon did not contest the release." It sounded as if the Archives received no input from Nixon.
Only when a historian filed a lawsuit against the Archives in 1992 did the public learn from testimony that Nixon had submitted a list of tape deletions in 1989. A Justice Department lawyer shrugged that it did not matter that the Archives had not revealed Nixon's role in deletions when it had opened some Watergate tapes. The historian's lawyer painted a gloomier picture, noting that Nixon used litigation threats "as bargaining chips to convince the Archives to change its archival processing."
The National Archives released only 63 of 3,700 hours of Nixon's tapes while he was alive. Yet archivists finished screening all of Nixon's tapes in 1987. At the time, officials told the public of plans to open the collection soon. Journalist David Corn explained why this did not occur: "Nixon fought this ferociously and successfully, and the National Archives never forcefully challenged him."
Even a President who believes that he governed honorably may struggle with his past. Governance is complex and politics messy. Laws demand disclosure of what really happened. Judges, such as the one who recently ruled on President Bush's order, assume that the National Archives can carry out this mission. But because some disclosures can be painful for presidents, they resort to bullying to halt them. That the Archives felt unable to say no to Nixon, a president who resigned from office, suggests that it needs more legal protection. If that is not possible, then laws should mandate longer sealing of White House records.
This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.
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Maarja Krusten - 11/23/2007
For anyone who may stumble across HNN’s archived articles and comment boards in years to come, I’ve located and copied quotations attributed to several officials who worked at or with the National Archives. If anyone ever decides to study the handling of Presidential records, please consider that while historians’ voices largely fell silent between 1981 and 2007, some present and former officials did comment on some issues related to the preservation of and access to records. I would have been interested in hearing how historians reacted to some of these comments, as they potentially are stakeholders.
That these issues do not draw any comments on HNN now doesn’t mean someone might not take an interest in them in the future. So I’m taking a longterm view, in light of the fact that the essay and comment board will be archived. Since my essay ends with a plea for greater legal protection for NARA (which, despite the title assigned it, doesn't necessarily mean new legislation) OR the longer sealing of records, future readers may find interesting the following quotes from various officials:
1. "This is the first time we've had a confrontation with a former President. We have tried to negotiate . . . the problem from the beginning has been the question of access. But, in this case, Congress has set the rules for access. 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." (James O'Neill, Assistant Archivist for Presidential Libraries, Parade magazine, "Should Richard Nixon's Papers be Public?", November 30, 1986, 4.
Dr. O’Neill died suddenly (as I recall, from a heart attack) in 1987. He was replaced later that year in NARA as Assistant Archivist for Presidential Libraries by John T. Fawcett. Mr. Fawcett previously had worked as an archivist at some of the donor-restricted Presidential Libraries, including that of Lyndon Johnson. Mr. Fawcett served as the National Archives’ Presidential Libraries chief until 1994.
2. Lynn Scott Cochrane wrote in a 1998 dissertation that retired official "[John] Fawcett expressed grave concern over NARA's relatively new mission statement, which invokes the phrase 'essential evidence.' Previously, NARA's mission was to be an impartial custodian and preserver of our country's historical documents. Providing immediate access to 'essential evidence' is an entirely different mission, one which will be a huge disincentive for federal employees to save documents and other 'evidence' of their work, not to mention donors who will be unlikely to hand over materials which can and will be used against them in short order. If we take the longer view of preserving materials for eventual historical analysis, the current emphasis raises serious doubts about whether there will be any real richness of materials for historians 100 years from now to study."
See Cochrane dissertation, “The Presidential Library System: A Quiescent Policy Subsystem,” at
3. In their 2006 article in the Public Historian on access to records, “A Historical Review of Access to Records In Presidential Libraries,” two NARA officials, Nancy Smith and Gary Stern, write that "An unfortunate outgrowth of the current presidential record system is that, despite the ever-increasing volume of records, particularly e-mail records, there is less of a record that documents for posterity the immediate actions, motivations, and thoughts of the president. If the presidency is to remain well and richly documented, NARA will need to try to encourage not only the creation of records that document presidential thoughts and motivations, but also the donation of the personal records of presidents, members of their families, and their close advisors."
After working at the Lyndon B. Johnson Presidential Library from 1973 to 1989, Ms. Smith came to Washington in 1989 to act as an assistant to John Fawcett. She and I overlapped in our NARA careers during my last year at NARA. (I worked at the National Archives from December 1976 to January 1990). Ms. Smith now is the director of the Presidential Materials Staff at the National Archives. That is a liaison role in Washington, DC, covering a broad range of activities relating to Presidential records. It is a different position than the Assistant Archivist for Presidential Libraries. As of 2007, the latter position is held by Sharon Fawcett.
4. At a meeting of the Advisory Committee on Historical Diplomatic Documentation in December 2001, members heard from Steven Garfinkel, who had served as a lawyer on the staff of the General Services Administration (then the parent agency to the National Archives) at the time the Presidential Records Act was passed in 1978. Garfinkel spoke about a month after President George W. Bush issued E.O. 13233, the order which I mention at the beginning of my article. Here is what the minutes of the meeting report:
“Garfinkel began by providing an historical perspective on the current Presidential records executive order (EO 13233, which allows the President to withhold records beyond the 12 years stipulated in the original Presidential Records Act. He recalled that a flaw in the initial legislation of the late 1970s had been identified in that exemptions were included that Congress was unwilling to accept. The legislation provided little protection for Carter administration officials who were likely to work for a future administration. A deal was struck: President Carter would sign the bill without an exemption for deliberative material but the bill would apply first to his successor. President George W. Bush is now asserting executive privilege because the statutory option is not available.
Garfinkel reminded Committee members that EO 13233 does not pertain to classified records. What is affected are Cabinet level records. Garfinkel warned that what was more ominous was what was not being created in Presidential recordkeeping today; for example, Clinton administration officials stopped maintaining a record of NSC meetings. Garfinkel asked the perennial question of which was better, quicker access or more access.”
During the same meeting, the National Archives’ counsel “[Gary] Stern commented that Presidents have often named agents to oversee their records. The trend noted earlier of policymakers not keeping records is probably more a fear of Congressional investigations and independent counsels than reluctance to create a full historical record. He declined to comment on the executive order because of ongoing litigation, but NARA has started implementing the order.”
The present silence here on HNN is understandable (there could be many reasons why people don't feel comfortable speaking up). Still, someone may be interested in thinking through these issues in the future. My thanks to anyone who takes the time to ponder some of this.