Faculty Request Referendum on Bush Institute

Here is the press release that went out this morning about the petition for a referendum. The idea of a referendum appeals to some who might well end up voting for the Institute and is opposed by some who are very suspicious of the institute (on procedural grounds). I suspect that this call for a referendum will dominate debate on campus for at least the next week. The 170 or so signatures is a real show of strength for those of us concerned about the Institute — it would have been many more had those of circulating it not felt the need to move quickly, before SMU finalizes its arrangements with the Bush people. It remains to be seen what the overall faculty sentiment about the Institute is, which is why a referendum is such a good idea, and why I very much hope that SMU’s spokespeople will stop depicting opponents and doubters as a small minority. Here’s the press release, which includes the text of the petition:

Today faculty leaders announced that a significant portion of SMU’s faculty has signed a petition asking for an all-faculty referendum on the acceptability of the Bush Institute.

SMU has been named by the Bush administration as the final contender for the George W. Bush Presidential Library and Museum. A Bush Institute, a partisan think-tank aimed at advancing issues of concern to President Bush, is a part of the deal, and has attracted faculty scrutiny and national press attention. Under the Bush people’s plans, fellows of the Institute would be appointed by a director who reports to the private Bush foundation, not to SMU or to the National Archives and Records Administration (NARA), which would be in charge of the Presidential library.

“Nobody is objecting to the Presidential Library, which we hope will come to SMU,” said Dr. David Freidel, University Distinguished Professor of Anthropology and a former President of SMU’s Faculty Senate. “The Institute, however, is an unprecedented departure for SMU in that it lends our university’s name and credibility to a partisan institute over which we would not actually exercise oversight. I don’t know of another arrangement like this in all of American higher education.”

Concern about the institute is widespread among faculty members. 170 signed the petition, including faculty from all of SMU’s six schools, past Faculty Senate Presidents, department chairs, and distinguished professors. “We weren’t able to talk to nearly as many of our colleagues as we would have liked,” said Freidel, “and many untenured professors were reluctant to sign,” but “there is still grave concern about the Institute across the university and the petition has met with enormous support” he added.

According to the Faculty Senate Constitution, the signatures of thirty faculty members are sufficient to put an item on the Faculty Senate’s agenda. Another clause states that the Senate’s “powers and duties” include monitoring “the activities of non-School academic institutes and programs.”

The faculty who circulated the petition hope that it will continue the discussion already underway. History Professor Tom Knock, who studies and writes about the presidency, said that “the discussion that the faculty and President and Turner had yesterday was extremely helpful, and it needs to continue.” About the Institute he said “there is still widespread concern about it – not about the Library, but about the Institute.” He added that “a referendum gives everyone on the faculty a vote.”

The Text of the Petition:

Whereas the prospect of the George W. Bush Presidential Library coming to campus could offer SMU valuable opportunities;

Whereas on December 21, 2006, President Turner announced that Southern Methodist University was declared the sole finalist as the site for Bush Library;


Whereas the Bush Foundation has proposed, as part of its vision for a library and museum, an Institute that would remain independent of SMU;


Whereas President Turner stated in his letter to the faculty of January 5, 2007, that “the proposed Bush Institute would report to the Bush Foundation” rather than to the University;


Whereas Article IV, sec. 2b of the Faculty Senate Constitution states that the Senate’s “powers and duties” include monitoring “the activities of non-School academic institutes and programs”;


And whereas Article VI of the Faculty Senate Constitution provides that the signatures of thirty full-time faculty members can mandate a subject for Faculty Senate consideration;


THEREFORE we, the undersigned full-time faculty members of Southern Methodist University, request that by February 12, 2007, the Faculty Senate hold a referendum of the entire faculty on the acceptability of the Bush Institute as currently proposed.


10 Responses to Faculty Request Referendum on Bush Institute

  1. heber4 says:

    Here is a thoughtful comment by Law Professor Bill Bridge, which includes a discussion of the institute and the referendum, among other issues:
    On the merits, on balance, I favor inviting the Bush Institute, Museum, and Library to SMU.

    The questions raised by Bill McElvaney and Susanne Johnson are moral ones about the Bush Administration. First, I question even the exercise of morally evaluating the work of thousands of people over eight years of public administration. There are many actions of the Bush Administration that I find morally reprehensible, some of which I approve, and many about which I have neither enough information nor perspective to reach a conclusion. Second, we are a United Methodist university. Perhaps if the General Conference were to condemn the Bush Administration as a whole, or the University Senate were to question the university about a decision to affiliate with the Bush institutions, SMU would have a more difficult moral assessment to make. Paradoxically, individuals among us might be in a better position to advance our moral objections to the Bush Administration if the Institute, Museum, and Library were at hand. Our voices have drawn more attention in the national and international public media in the past few weeks than ever before. We can use that access and of easier access to records and information to advance our disapproval.

    Second, some of our colleagues raise questions about practicalities, particularly for example, whether we are more likely become a terrorist target or whether our fund-raising will be impaired. These are questions that neither my education nor experience has given me expertise to decide. Those with uncommon sense and gifted foresight may think of issues that have not occurred to planners of these facilities, but these questions are not either especially the prerogative of the faculty or within our specialized knowledge.

    Third, advocates of the referendum, and others, have raised questions about the relationship between the three institutions, particularly the Bush Institute, and SMU, and about public identification of the university with them. We are offered the opportunity to cohabit with a think tank that will predictably defend and promote President Bush and his policies. Some of our colleagues want a marriage, perhaps a morganatic one, in which the offspring of the Institute would be somewhat subject to SMU’s control but not bear SMU’s name. I disagree.

    SMU is better off with the plausible deniability of a more distant affiliation with the Institute. The Bush Institute could be “at,” or “near,” or “adjoining” SMU (or the Bush Library and Museum) without being “of” SMU. The Institute (and Museum and Library) will inevitably praise President Bush, at least for the next generation or so. After that, no one knows. The vision of the Bush Institute promoters is to propagandize for Bush policies and philosophy. SMU does not have to be bound to that vision, just as the university is not bound by the wide variety of views expressed by faculty members, researchers, students, and others affiliated with the university. We have dozens of SMU-affiliated institutes now; the university does not endorse their output.

    We should not overestimate the perceived identification of the pronouncements of presidential institutions and the universities with which they affiliate or the perceived net damage to SMU’s public image. Real and perceived distance between SMU and the institutions and the energetic raising of contrary opinion are the best answers to these concerns.

    A recent opinion essay notes that our concerns about the Bush Museum, Library, and Institute are not unique to this Administration or Library. It has been only 30 years since we established the principle that Presidential papers belong to the government rather than to the former President. Presidents are leaving office younger and healthier. It could be 40 years or more before the Bush Institute will have even the possibility of a more objective judgment – objectivity only now emerging at the LBJ Library and Kennedy School. In that same 40 years, our nation’s approach to presidential institutions can change. A university has the benefit taking the long view of its contribution to research and teaching. The country is enriched by having institutions dedicated to the careers of former presidents. Each can probably improve as vehicles of the study of history and public policymaking. SMU alone cannot solve this problem for the Bush facilities or for all the post-presidential institutions. If the Bush institutions come here, however, SMU will be in the midst of that conversation.

    Closer SMU control of the Bush institutions is not only the wrong way to influence the work of the Bush institutions, it is an illusory remedy, for at least three reasons. Even if SMU faculty members elected a majority of the board of the Bush Institute, our commitment to the academic freedom of the researchers at the Institute would prevent us from overseeing their work in other than the most general way (Are they coming to work? Are they plagiarizing?).

    Second, it is unrealistic to expect that SMU faculty members would become a majority on the board, or be faculty-elected – we rarely select members on faculty committees by election. If there at all, they will be appointed, perhaps by the President (certainly so for a few years with this brouhaha fresh in memory), perhaps by the Provost. Those who serve on this board will want to be there. Although their institutional identification will be with SMU, their psyches will be with the Institute – not to say that those colleagues could not serve honorably in both roles, just that we should not expect hardline Bush opponents to end up there.

    Finally, closer control by SMU over the Bush Institute raises the specter of closer control over SMU by the Bush Institute, or Foundation. Whatever happens, it will be important for us and for our successors to be vigilant to ensure that the academic and administrative officers of SMU, and her trustees, keep the Bush institutions in the proper relationship with the university. A closer affiliation between SMU and a Bush Institute could endanger SMU’s independence.

    If a Bush Institute fellow makes a public statement with which one of our own SMU faculty disagrees, she should use the increased public attention our relationship with the Bush Institute provides to advance her own contrary argument. It is an advantage we would have because the Bush Institute is at hand. We fight bad ideas by good ideas, not by moving them to Waco. The Bush Institute will put a megaphone of the marketplace of ideas in our neighborhood.

    How can we influence the discussion between the Bush Library planning committee and SMU? We should call upon our existing institutions, the Faculty Senate, the Senate’s Academic Policies and Executive Committees, and the Academic Programs Committee of the Library effort. We can assist them in devising desiderata for SMU’s cooperation.

    For example, it seems that the basic principle of faculty participation in faculty appointments, and presumably in all academic appointments, is already accepted. The relevant bodies could ensure the details of that guarantee. (One idea might be to establish a university committee on joint appointments, analogous to the university committee on rank and tenure. The committee could be a group of 5-9 tenured faculty members named by the Provost upon recommendation from the Faculty Senate and deans. Any appointment of a Bush Institute staff member to an SMU faculty position would require that committee’s approval.)

    Second, this would be an ideal time for the university or the Faculty Senate to restate our values, including SMU’s adherence to institutional independence, academic freedom, non-partisanship and viewpoint neutrality.

    One final word about reputation. To hell with it. Let us stop worrying about what others think about us or how they rank us. Let us do what we think is best for the university, as a matter of substance. Let what others think follow our achievements not our attempts to please them.

    Every part of this discussion has been informative and thought-provoking. It has invited many of the most highly respected faculty members throughout the university to step forward and articulate their vision of SMU. I have been proud to learn from colleagues whom I respect and admire. I am grateful for their making me to think more deeply about these questions.

    I do not mean the tone of this comment about concerns I have heard to appear to mean that I reluctantly advocate acceptance of the Bush Library, Museum, and Institute as some sort of necessary evil. It is a major decision for SMU, not an easy one. On balance, I think the three institutions will make the university stronger and better and I think the university will make the three institutions stronger and better. I strongly support it.

  2. During the years I spent writing my book about presidential libraries (“Presidential Temples: How Memorials and Libraries Shape Public Memory”), I analyzed the positive and negative elements of presidential libraries. From what I know of the proposed Bush Library & Institute and the favorable view of President Turner toward it, it seems likely that this will be by far the most ideologically-driven presidential library ever built.

    There are, as you know, three elements of the package.

    The best and most valuable part of the package is the archive, run by the National Archives. There are still–as I pointed out in my op ed, and others have pointed out–serious issues with the archive. At current staffing levels it will take up to 100 years to process the records at the George W. Bush Library. Also, because of Bush’s Executive Order 13233, it’s likely that some important records will be blocked from release. It’s difficult to say when enough records will be available for this to actually be a valuable resource, but it could be many, many years.

    Second is the museum. I would like to emphasize that my piece on the need for reform in the presidential library system in the New York Times, even though it was in the opinion section, was highly factual. There’s not much in that article that was interpretive in nature. The entire piece went through the fact-checking procedures of the New York Times. Even my seemingly most controversial statement, that the museums in the newer presidential libraries amount to little more than extended campaign commercials in museum form, making them into a form of political propaganda, is not seriously disputed by top administrators in the presidential library system.

    Here is a quote from an article by Sharon Fawcett, who is one of the top administrators at the Office of Presidential Libraries, about the exhibits in presidential libraries. Fawcett has worked in the system for more than 35 years:

    “Paid for by funds raised by the president and his foundation and installed before the library is turned over to the government, the first exhibit is developed by the foundation’s exhibit designer with oversight by the foundation. That exhibit is itself a historical artifact—representing how the former president views his life and presidency….The National Archives has the right to refuse the initial exhibit, though it has never done so.”
    from “Presidential Libraries: A View from the Center,” The Public Historian, Summer 2006, vol. 28, no.3, p. 30.

    These libraries, although built with private funds, are run by the federal government. One of my main points, as you’ll recall, is that if a president want a museum of political propaganda they should not ask the federal government to run it. Fawcett states that the exhibits have value as “historical artifacts,” which I doubt. Presidents also write their memoirs, and we get plenty of information over the years from them about their point of view. Some museums remain quite slanted even 20-50 years after the libraries are built. A museum of glitzy Bush propaganda is not necessarily going to be an asset for SMU.

    Finally, there is the proposed Bush Institute. This is, and should be, the most controversial element of the package. To have a major partisan institute attached to a presidential library at a university is a significant change in the way presidential libraries have previously been run. The Carter Center, for instance, is “non-partisan” according to its website. There are not close parallels to the scale, ambition, and resources that the proposed Bush Institute would have in promoting its highly partisan agenda. I do not think the partisan nature of the Bush Institute would change in the foreseeable future. I believe President Turner is incorrect on this issue.

    The proposed Bush Institute seems contrary to the academic mission of a university. If I were a professor at SMU, I would vote against this element of the package.

    If the Bush Institute does come to SMU, however, I believe that rigorous academic oversight is essential.

    At the end of my op ed in the New York Times, I wrote:

    “At their best, presidential libraries are vital institutions that help us learn from our history. But if we give in to the worst impulses of presidents and their supporters, these libraries risk becoming temples of political propaganda.”

    As far as I can tell from this distance, the proposed package gives in completely to the worst impulses of the President and his supporters.

    It seems to me reasonable to separate out the proposed Bush Institute, because it does not seem to be in the best interests of SMU to accept it. The proposed Bush Institute could be located elsewhere in Dallas. Or, if that is not possible, at least insist on rigorous academic oversight. But it appears from this distance that there are no conditions under which SMU’s Administration would walk away from a deal.

    Presidential libraries have the capacity to be great resources, but this does not happen automatically. It takes the creative and challenging work of many people to make it so. I encourage everyone to get involved in the process, so that the Bush Library can be encouraged to operate in the public interest.

    Best wishes,

    Benjamin Hufbauer
    professor of art and architectural history
    University of Louisville’s Hite Art Institute

  3. Robin Lovin says:

    I’ve decided not to sign the petition, because a yes/no vote on the Bush Institute doesn’t really answer my main questions. If we vote “no,” we will be seen by some as refusing exactly what we really want, which is open discussion of the issues. If we vote “yes,” as I expect we would, we may be seen by those responsible for negotiations with the Bush Foundation as giving a blanket endorsement to whatever arrangements they negotiate. It is, in fact, the terms under which the Bush Institute would be present at SMU that are most important.

    If Stanford University had remained the kind of place it was in 1959, when the Hoover Institution was placed there, it would be known today as a medium-sized private university with a relatively large endowment and a sort of quirky right-of-center political climate. If SMU accepts the Bush Library and Institute AND DOES NOTHING ELSE, that is what we will be in 40 years. Stanford did a lot more than that, and we will need to, too. Some of what we need to do is spelled out in the centennial strategic plan, but not by any means all of it.

    The research agenda the university needs to build is going to require partnerships with all sorts of institutes, think-tanks, foundations, advocacy groups, government agencies, etc. Making those resources available to SMU faculty is a major task for university development and administration. Making sure that those resources support, but do not determine, the scholarly agenda will require the vigilance of the whole faculty. I am appalled that some of our leadership apparently thinks we shouldn’t be raising these questions, and I’m grateful to those colleagues who circulated and signed the petition for keeping this debate open. We need to know a lot more about the terms of the Bush Institute’s presence on campus, and especially what the vague concept of “joint appointment” means. The future I foresee for research universities means faculty will have to get used to raising these questions, and those among our colleagues who want to build these institutional alliances will have to get used to answering them, in rather more detail than we now have in this case.

    Robin Lovin

  4. heber4 says:

    More thoughts from Law Prof Bill Bridge on the proposed referendum:
    Why I will not sign the petition for a referendum:

    A referendum is a particularly bad way to make policy. Campaigning for a referendum or even getting out the vote reduces complex questions to bumper-sticker simplifications. A question limited to the Bush Institute, apart from the Library and the Museum is both too broad and too narrow. While some faculty members may want none of the above, others may want one, or two, of the three. Do we want the answer to be “yes” or “no,” rather than a “yes, if,” or a “no, but?”

    More important, faculties do not reach decisions by opinion survey. We reach decisions by discussion, argument, and deliberation. We reach decisions by committee. That butt of our jokes, that bane of our existence, is the way we get things done after consideration of one another’s views. Although the Faculty Senate was not elected with Bush Institute, Museum, and Library issues in the forefront, it was elected as the general faculty’s voice in university affairs. The Faculty Senate has risen magnificently to the occasion before, for example at the time of the football scandal, and it can do so now.



  5. Maarja Krusten says:

    I appreciate Dr. Hufbauer’s nice comment about archives. I am a former archivist with the National Archives.

    Statutes and regulations appear cold and clinical on paper but ultimately their application depends on people. In every facet of working with a President’s records, you are dealing with human beings.

    That is one of the greatest unknowns in dealing with a former President, his records, his foundation, and the National Archives. No one can predict how any of the individuals will react. To some extent, wherever a Presidential Library actually is placed physically, that place has the potential of bringing with it aspects of “Washington.”

    In my article on the History News Network this week, I refer in passing to my experiences in working to prepare Richard Nixon’s records for release. The experiences of those who worked at the National Archives with Nixon’s records are unique. Our struggles cannot be compared readily in public to the experiences of all those who have worked within the National Archives with other Presidents’ records. (It is my impression that the Gerald R. Ford Presidential Library has been a very good place for scholars to visit and for archivists to work, for example.)

    For one thing, litigation repeatedly surrounded the effort to open Nixon’s records. Things came out in court that otherwise might have remained shielded from view. Consequently, efforts to release Nixon’s records have received much more public attention than work with other Presidents’ records. To the extent my perspective may be useful, let me add some observations.

    First, a personal note. Why do I feel that even is necessary? You never know who is going to attack you. Stanley Kutler, the professor who filed a lawsuit in 1992 for public access to Nixon’s tapes, found himself characterized in 1998 by a Nixon foundation official as “dean for life of the Nixon haters.” Although I shouldn’t have to feel it necessary to say this, let me state up front that I worked on Nixon’s campaign as a senior in high school in 1968 and voted for him in 1972. (I’m actually pictured as a senior in high school with my late twin sister in a photo of a youth gala in a book about Nixon’s 1969 inauguration.) Despite having spent 14 years working with his records (listening to some 2,000 hours of his 3,700 recorded hours of tapes), I actually retain some personal sympathy for Nixon and his family. My personal politics did not affect my work at the National Archives. In fact, outsiders did not know how I had voted and some assumed I was a “liberal.” Since 1990, I have been an Independent.

    Next some statutory context. Nixon’s Presidential records are covered by a unique act that applies only to his materials. (The records of Presidents starting with Ronald Reagan are covered by a different law, the Presidential Records Act of 1978.) Nixon’s predecessors regarded their records as personal property and had broad latitude to place limitations on release — LBJ asked that his White House tapes be sealed for 50 years. Nixon saw his materials seized by the government after he resigned from office in 1974 in the face of possible impeachment. Prior to Wategate, other Presidents had an expectation that the more controversial materials among their records would be set aside until controversy dimmed. The law and regulations covering Nixon’s records called for the release at the earliest possible date of “the full truth” about “governmental abuses of power.” There was bound to be trouble and, as a court case filed by Professor Kutler in 1992 revealed, there was.

    I can understand why Nixon’s lawyers challenged the Archives’ efforts to open materials, publicly disagreeing with the agency’s standards for historical disclosure. (Who among us, having had the records we created in our offices suddenly seized when we had anticipated lifelong personal control over them, would simply say, “OK, let’s let independent, nonpartisan archivists decide what the public will see?”) I find much harder to understand why government archivists became the targets of mudslinging by Nixon’s lawyers and an official at his foundation.

    Politicians and others in public life may be prepared for a certain amount of mudslinging. The archivists of my generation (I worked at the National Archives from 1976 to 1990), who mostly held graduate degrees in history, were not. Simply put, there is no academic preparation, at least for a student, for becoming the object of attack by a former President. I was 25 when I started work at the National Archives.

    But if you look at what has been released since 1996 from Nixon’s tapes, the fact that we government archivists were, as one observer once put it, “savaged,” should not have surprised us. When you listen to or read transcripts of the now disclosed portions of Nixon’s tapes, you see Nixon while he was President using phrases about critics or opponents such as “Try him in the press;” “embarrass the creeps;” “we are going to use any means” to destroy him, etc. In Nixon’s case, I suspect it was hard for him to shift from that mode of operation after he left office.

    Here are a couple of examples of how battles over Nixon’s records were fought out in the press. Think about how any of your bosses might react, if you became the targets of such comments from people with vested interests in the contents of historical records in your care. There’s no way to tell until you find yourself in that situation. On all sides, it really depends on the individuals, when you come right down to it.


    Nixon’s lawyer told the press in 1987, “I can raise your hair on end with what the Archives thinks does not infringe privacy and should be released.” He complained to the Archives in 1987, in a letter later released under the Freedom of Information Act, that the “Nixon records act’s regulations were ‘capricious and constitute an abuse of discretion . . . the regulations too narrowly define ‘private or personal’ materials as those ‘relating solely to a person’s family or other non-governmental activities.'”

    A few years later, Professor Kutler’s lawyers noted in a pleading in Kutler v. Wilson (Civ. A. 92-662-NHJ) that “Mr. Nixon is attempting to influence archival decisions, as is borne out by the Mortenson Declaration, which confirms that Mr. Nixon uses litigation threats as bargaining chips to convince the Archives to change its archival processing.”


    The Washington Post reported this about John H. Taylor: “Taylor has in the past denounced the Nixon archivists as “‘junior prosecutors’ bent on making the late president look bad.” (Washington Post, August 16, 2000, “Releasing Richard Nixon; Archivist Culls Records, Tapes to Protect Privacy And Assist Researchers”) Mr. Taylor was Nixon’s last chief of staff (in the period after he left office) and an official with the Nixon Library and Birthplace Foundation:


    Personally, I have not resolved in my own mind what is the proper period to wait before releasing a President’s records. In the old days, a President could seal them for a long time. The current statute permits Presidents to restrict certain information for 12 years. Other statutory provisions, not selected by a President, protect national security and privacy in Presidential records and can be applied as long as necessary. President Bush’s executive order permits application of a Presidential communications privilege in perpetuity.

    These are very tricky issues, ones I’ve rarely seen discussed in depth. Does early disclosure of Presidential records discourage candor? Some scholars, such as Michael Beschloss, have noted a potential chilling effect in the creation of records due to the gotcha effects of post-Watergate journalism and investigations. Writing in Presidential Studies Quarterly, Beschloss expressed concern that “People in Washington are more public relations savvy than in earlier times and, thus, more adept at drafting memos and other records that conceal their motives and can fool the historian.”

    Beschloss noted, “The result of all of this is that a historian of the years of Bill Clinton, George W. Bush, or their successors may not have the kind of sources needed to understand who did what to whom and why as well as a scholar might for, say, the presidency of Franklin Roosevelt. The result of this could be that historical scholarship on future presidents may become, of necessity, more speculative.”

    On the other hand, another scholar, Hugh Davis Graham, has argued that early disclosure serves as a potential brake on abuses of governmental power. Knowing that the public can study some of the records of an official’s actions might affect how he acts in office. Clearly, getting the timing right on disclosure is difficult. But how I debate these issues personally and in my own mind does not matter. These issues are settled in law.

    If the law tells an archivist to handle records one way or another, that is what she or he is obligated to do. Inside the National Archives and its Presidential Libraries, government employees act in a nonpartisan, independent manner.

    The circumstances surrounding Nixon’s records were unique. It is difficult to tell from our experiences what will happen with any successor President’s records. All I can say is, watch out for the rhetoric and the way questions are treated. My generation started work in the immediate aftermath of the operation of the public documents commision of the mid-1970s. We were unprepared for what happened to us in the late-1980s and early 1990s.
    I wish the best for all the National Archives’ archivists, now and in the future, and hope no government employee ever again faces what my generation of public servants did.

    Posted by Smartphone on personal time during lunchbreak

    Maarja Krusten
    Former Nixon tapes archivist, 1976-1990

  6. Maarja Krusten has truly impressive knowledge about the National Archives and presidential records. In my mind, archivists are the great unsung heroes of presidential libraries (and presidential records that are in the National Archives, like the Nixon records). If you look at any book on a recent president, you’ll likely find thanks given for the extraordinary work of archivists. In my experiences working at several presidential libraries, I found the archivists to be highly professional, perceptive, knowledgeable, and hard-working. Time and time again archivists uncovered material that amazed me. One archivist even gave me a personal tour of LBJ’s fascinating personal suite in the LBJ Library, which was a treat (this part of the library is closed to the public, but I was admitted because my book was about presidential libraries). One big issue that is being raised is that there is a great need for additional archivists, especially in more recent presidential libraries.

    In Maarja Krusten’s essay, I was impressed by this statement: “President Bush’s executive order permits application of a Presidential communications privilege in perpetuity.” I was wondering if she could share with us, at some point, the relevant portions of Executive Order 13233 that make this possible. Can a president’s estate pick representatives on down the line who can continue to block records many decades after that president has died?

    Best, Benjamin Hufbauer

  7. Maarja Krusten says:

    With apologies for typos let me correct punctuation in one sentence of my post submitted at 11:54. The sentence about John Taylor ending with Nixon Library and Birthplace Foundation should end with a period not a colon.

    The section headed ISSUES NOT ALWAYS CLEAR of course reflects my thoughts, not Taylor’s.

    A Smartphone’s screen is so small in relative terms, I missed the use of a colon where a period was intended. Sorry.

    Maarja Krusten

    This too is submitted via Smartphone. I am on personal time, not at work.

  8. Maarja Krusten says:

    See section of EO 13233 reading

    “Upon the death or disability of a former President, the former President’s designated representative shall act on his behalf for purposes of the Act and this order, including with respect to the assertion of constitutionally based privileges. In the absence of any designated representative after the former President’s death or disability, the family of the former President may designate a representative (or series or group of alternative representatives, as they in their discretion may determine) to act on the former President’s behalf for purposes of the Act and this order, including with respect to the assertion of constitutionally based privileges.”

    Maarja on personal time
    by Smartphone

  9. There’s an example of an archivist at work!

    Many thanks, Ben

  10. Maarja Krusten says:

    Thanks, Ben! Yes, years of archival training have stayed with me. I actually haven’t been employed as an archivist since 1990, when I left the National Archives and took a job as a federal historian elsewhere in Washington. I’m still a Fed, hence my inclusion of concluding tags to my posts on Friday, indicating that I was on personal time and not using a government computer at the office.

    Why did I do that? Well, there’s a story behind that which tells you something about Washington. I first started speaking out on issues related to Nixon’s records in the early 1990s, sticking only to information available in the public record, including court pleadings, archival materials, etc. I did that because of the way the Department of Justice had handled Kutler v. Wilson, the lawsuit brought by a professor for access to Nixon’s tapes. The National Archives does not speak for itself in court. As is the case with every executive branch agency or department, DOJ represents the National Archives in any litigation brought by historians or other stakeholders. Its lawyers are the primary signatories on court pleadings.

    I covered some of my concerns about the National Archives and its difficult position in an article I published in Presidential Studies Quarterly in its Winter 1996 edition, “Watergate’s Last Victim.” I’ve also spoken out in letters to the editor, of which I have had more then 10 published in the last ten years in the Washington Post, the New York Times, and other newspapers.

    In the mid-1990s, an unknown person outside my present agency made a complaint within the government that I was doing research at the National Archives on government time. I actually have visited the National Archives to do research for my employing agency but in the visit the complainant focused on, was working on issues related to Nixon’s records.

    I had been scrupulous or smart enough to sign for personal time for that research, which took up several hours one day, and was able to prove that fact via my timesheets. You would think that type of mild (in terms of what people in Washington can do to each other) harassment would have been avoided. To me, it only confirmed that I was on the right track in what I then was saying about the need to handle Nixon’s records carefully and properly. What better way to politicize an issue or to point to trouble down the road for the National Archives or to show that you are afraid of questions someone is raising than to complain about someone such as I, who simply was doing research which enabled me to speak up in fact based presentations in scholarly and professional forums?

    As I pointed out earlier, things can get rough when dealing with Presidential records. Nixon’s presented more challenges than most. If anyone is interested in reading an article that I wrote in 2004 for Joyce Appleby and James Banner at HNS, it is available at
    There, as with Ben Hufbauer’s piece in the NYT, the editors applied a title the author had not chosen, “Will There Be a Last Watergate Cover-up.” My own, less sensationalistic, title had been “Aggressive Advocacy Now Hurts Nixon’s Foundation.”

    In my view, although the aggressive tactics used by Nixon’s advocates may have seemed effective in the short term (while the President still was alive), they created considerable baggage for the Nixon Foundation to trail later. I think Nixon’s lawyers and foundation officials should have realized that you can’t use campaign style tactics against the National Archives and its employees and then turn around later and hope to merge easily and quietly into the system of Presidential Libraries that scholars are accustomed to relying on. But, having tangled with Nixon’s lawyers (I testified for two days in Kutler v. Wilson in which Nixon was a Defendant-Intervenor), I understand something about aggressive advocacy. Having been its target on behalf of a former President, I’m not a big fan of mudslinging. I’d rather see issues debated reasonably and cleanly. Unfortunately, that is not how a former President’s lawyers always serve their powerful client.

    I learned a lot during more than a decade of listening to Nixon’s White House conversations. To survive, politicians must focus on fending off mud slinging by opponents. In the world they operate in, it is easy to lose sight of the value of objective analysis. And screening out sycophancy among one’s advisers always is a challenge in the halls of power. Not all who analyze history’s lessons are a White House’s “enemies,” but, unfortunately, a former President sometimes comes to view them as such. That certainly seemed to be the case with Nixon.

    Interestingly, one of the lawyers with the law firm which represented Nixon in 1992, Scott Nelson, later went over to Public Citizen and joined its Litigation Group. Yes, you read that right! Mr. Nelson gave a statement in 2001 on the Presidential Records Act and the impact of E.O. 13233. It is available at http://www.fas.org/sgp/congress/2001/110601_snelson.html.
    He specifically addressed one constitutional issue, noting that

    “the Bush Order purports to authorize private citizens other than a former president to assert constitutionally based privileges on behalf of a former president after he dies or when he is disabled. . . . The Order’s provision that the constitutional executive privilege may be asserted by a deceased or disabled former president’s family or personal representative is novel and highly debatable. The privilege is not, after all, a personal right of the former president. He is authorized to exercise it solely on behalf of the branch of government that he once headed. His family members or designees have no such claim of authority. To suggest, as does the Bush Order, that the incumbent president must defer to claims of privilege asserted not by a former officeholder, but simply by the former president’s family, friends, or designees, threatens to expand the constitutional privilege beyond legitimate bounds.”

    The American Historical Association, represented by Public Citizen, filed a lawsuit related to the 2001 Executive Order. The last I heard, the appeals were making their way through the judicial system. I can’t predict what the final outcome will be but Nelson’s take is particularly valuable, as he once litigated on behalf of Nixon but now is litigating, at least on this issue, on behalf of historians.


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