SMU Historians’ Statement on Presidential Order 13233

All the tenured and tenure-track members of my department signed the following statement, which was drafted (and re-drafted, and re-drafted . . .) by University Professor Edward Countryman, one of my most distinguished colleagues. Yesterday it was published in full in the Daily Campus. Some professional organizations are actually lobbying SMU to insist on the revocation of the Order as a precondition for accepting the library. This won’t happen, but it does show how much the library has already raised SMU’s profile (one of the principal arguments of its backers) — as has all of the discussion and debate on campus.

As historians at SMU we have no collective position about bringing the Bush Presidential Library, Museum and Institute to this campus. Some of us favor it; others do not. We do believe, however, that there is one related issue on which we can speak. This is the matter of Presidential Order 13233, which gives current and former presidents the power to withhold records in presidential libraries virtually at their discretion.

Like many historians elsewhere, we are worried about several provisions of the order. In our opinion, these go against Congress’s purpose when it passed the Presidential Libraries Act.

First, the order grants power to incumbent presidents to overrule determinations by former presidents that records in “their” presidential libraries may be released. We are very concerned that an incumbent president might exert this power to block the release of a former administration’s material merely because it would be politically detrimental. That could happen in either direction, a Democratic incumbent blocking the access to the records of a Republican predecessor, or a Republican blocking access to those of a Democrat.

Continued here.

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One Response to SMU Historians’ Statement on Presidential Order 13233

  1. Maarja Krusten says:

    An interesting analysis of the Presidential Records Act and Executive Order 13233. The transition from private ownership of presidential records to public ownership certainly has been rocky. As your statement suggests, some of the public access issues are very complicated and stakeholders may hold differing views on them. It is hard to tell how this will play out.

    The courts have spoken on the duration of privilege but, to my knowledge, not yet on whether it can be passed on to an executive’s family. In affirming the decision in Nixon v. Freeman, 670 F.2d 356 (D.C. Cir. 1982), the Supreme Court agreed that “there has never been an expectation that the confidences of the Executive Office are absolute and unyielding.” According to the Supreme Court, the right of privilege “is not a fixed and permanent one, but erodes with the passage of time.

    The courts also have pointed to the unblemished record of government archivists. I can tell you that as a former employee of the National Archives, federal archivists take seriously their mission of acting as objective, impartial gatekeepers whose job it is to ensure proper handling of records that tell the story of governance.

    You raise the possibility of a President of one party exerting privilege to block the release of information from the records of a former President of a different party. That has not yet been tested in court. Archivists, of course, never would take politics into play in making their determinations on what can be opened for research. Archivists are not in a position to influence the views of a sitting President, a former President, or a former President’s family. How they view these issues is up to them and thus unpredictable.

    Curiously, the question of whether the National Archives might act politically was raised by outside observers in 2000. See
    http://www.cbsnews.com/stories/2000/10/26/politics/main244254.shtml
    for a story from October 2000. You can see that Ari Fleischer expressed concern that the National Archives might act politically in the release of segments of Nixon’s tapes “to influence the outcome of this election.” But the Archives merely was following a set schedule for release of Nixon’s tapes, a process going back at least to 1996.

    James Warren provided additional details in a story published October 27, 2000 in the Chicago Tribune. He wrote that “The National Archives confirmed late Thursday that James Cicconi, an attorney who represents [the elder] Bush, his foundation and library in dealings with the archives, requested, in a Wednesday conversation with Sharon Fawcett, the deputy assistant archivist for presidential libraries, that the long-planned release be delayed or postponed.

    In addition, sources indicated that what was perceived internally as pressure from Cicconi preceded the call to Fawcett. It led to an apparently frenetic re-examination of hours of tapes last week, in which staffers were made to again listen to some of more than 200 conversations in which Bush, then U.S. ambassador to the United Nations, was either involved or mentioned.

    The presidential campaign of Texas Gov. George W. Bush earlier conceded that it had voiced concern to Cicconi over the release’s timing, suggesting it might be a way for the White House to assist the campaign of Vice President Al Gore.”

    How closely had advisors associated with the elder or younger Mr. Bush examined past court decisions when the issue of the Nixon tapes release came up in 2000? I don’t know.

    The issues of privacy, confidentiality and executive have been litigated several times since the passage of the Presidential Recordings and Materials Preservation Act of 1974. This is the act that applies to Richard Nixon’s records. As you can see below, the courts repeatedly have pointed to the archivists’ objectivity and expertise in assessing what can be released to the public. In at least one case, a court noted that a former President’s views might differ from those of other players.

    President Nixon had expected that when he left office, he, like all Presidents prior to Watergate, could treat his records as private property. It must have been a big shock to him that he could not. I am not surprised that his lawyers fought strongly to limit what might be released to the public. In 1981 the Los Angeles Times reported that Mr. Nixon’s lawyer argued that all of Mr. Nixon’s conversations, without exception, should be kept private.

    “If he elects to be profane with an adviser, solicitous of a particular congressman or contemptuous of a political adversary, he can do so without being inhibited by the specter of the prying eye or uninvited ear,” the lawyer claimed in arguing in court.

    In the 1970s, Mr. Nixon’s lawyers argued in court that the mere review of his records by government archivists would “chill expression because he [Mr. Nixon] will be ‘saddled’ with prior positions communicated in private, leaving him unable to take inconsistent positions in the future.” They objected to public access screening by the National Archives because their client’s “most private thoughts and communications, both written and spoken, will be exposed to and reviewed by a host of persons whom he does not know and did not select, and in whom he has no reason to place his confidence. This group will decide what is personal . . . and what is historical, to be opened for public review.”

    A three-judge panel decided in 1976 that “Congress had ample reason to mandate screening by government archivists rather than control by Mr. Nixon, who lacks their expertise and disinterestedness.”

    The Supreme Court noted in 1977 that Mr. Nixon’s “view of what constitutes official as distinguished from personal and private materials might differ from the view of Congress, the Executive Branch or a reviewing court.”

    After Stanley Kutler filed a lawsuit for access to Nixon’s tapes in 1992, some disputes between the Archives and Nixon over what to release were made part of the public record. Prior to that, when Nixon’s lawyers argued in the press in the late 1980s that “I can raise your hair on end with what the Archives thinks does not infringe privacy and should be released,” we had no way to defend ourselves publicly. Some of the issues later came out in court but, as I’ve noted in a number of forums, for the most part, except for Stanley Kutler and Joan Hoff, academics seem to have ignored the battles to release Nixon’s records.

    In many ways, application of the Nixon statute is more difficult than application of the Presidential Records Act. For one thing, we archivists had to determine what was governmental and what was personal. The law called for removal from government custody and return to Nixon (now his estate) of material in which Nixon had a personal proprietary interest. That includes certain material dealing with his right to private political association. There is no such requirement in the PRA; segregation of official from personal material is supposed to take place at the time records are created, not after they are placed in the custody of the National Archives. Also, there is a greater judicial role in application of the Presidential Records Act than in the Nixon records act. Researchers can file lawsuits to gain access to withheld materials.

    As you probably know, when he left office as governor of Texas, George W. Bush sent his gubernatorial records to his father’s Presidential Library at Texas A&M rather than sending them in a state archives. See
    http://shrinkster.com/lwc

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