Subcommittee Holds Hearing on The Presidential Records Act of 1978

Thursday, March 01, 2007
The House Oversight and Government Reform Subcommittee Holds Hearing on The Presidential Records Act of 1978

On Thursday, March 1, the Subcommittee on Information Policy, Census, and National Archives held a hearing to examine issues relating to implementation of the Presidential Records Act of 1978, including the history of the act, the role of the National Archives and Records Administration in releasing Presidential records to the public, and the likely impact of Executive Order 13233 on research.

The following witnesses testified:

* Panel I: Harold Relyea, Ph.D., Congressional Research Service
* The Honorable Allen Weinstein, Archivist of the United States
* Panel II: Thomas Blanton, National Security Archive, George Washington University
* Scott Nelson, Public Citizen
* Robert Dallek, Ph.D., Author/Historian
* Anna K. Nelson, Ph.D., American University
* Steven L. Hensen, Society of American Archivists

Unfortunately, their testimony is not available, unlike yesterday’s hearing, perhaps because it was a subcommittee and not full committee hearing.

The web site also announces the introduction of two bills:

The Presidential Donations Reform Act of 2007

On March 1, 2007, Rep. Henry A. Waxman along with Reps. Duncan, Clay, Platts, and Emanuel introduced H.R. 154, the Presidential Library Donation Reform Act of 2007, to require the disclosure of donors to presidential libraries.

  • See the Bill Summary here.
  • Read the entire text of the bill here.

The Presidential Records Act Amendments of 2007

On March 1, 2007, Rep. Henry A. Waxman along with Reps. Platts, Clay, and Burton introduced H.R. 1255, the Presidential Records Act Amendments of 2007, to nullify a 2001 presidential executive order and restore public access to presidential records.

  • See the Bill Summary here.
  • Read the full text of the Bill here.
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8 Responses to Subcommittee Holds Hearing on The Presidential Records Act of 1978

  1. Maarja Krusten says:

    Public Citizen has posted a summary of Scott Nelson’s testimony and his prepared statement at
    http://www.citizen.org/pressroom/release.cfm?ID=2390
    and
    http://www.citizen.org/documents/subcommitteetestimony20070301.pdf

    Of the witnesses, Nelson’s was the most interesting to me because he is a high powered lawyer who has litigated issues relating to Presidential records from two sides, first as a former President’s attorney, now at Public Citizen. He was one of the lawyers who as Richard Nixon’s attorney questioned me during my two days of deposition testimony in 1992 in a Nixon tapes lawsuit (Kutler v. Wilson, Civ. A. 92-0662-NHJ). Nelson stated to the subcommittee that “The Bush Executive Order is fundamentally flawed—legally, constitutionally, and as a matter of policy.”

    During questioning by the subcommittee chair, Nelson stated that nothing in the constitution permits claims submitted through private citizens, such as a deceased President’s heirs, to trump the decision making of current executive branch officials.

    Of course, as is the case with such hearings, what is referred to as witness testimony is in fact the prepared testimony statements prepared by the witnesses and incorporated into the hearing record. Transcripts of the subsequent questions and answers are not yet available. Depending on the hearing, transcripts later sometimes appear.

    In reading Nelson’s testimony statement, I found his discussion of case law in Public Citizen v. Burke, another case involving Presidential records, to be the most interesting. I still was working at the National Archives when Public Citizen filed suit in Burke in 1986.

    Nelson states that

    “In an opinion written by Judge Silberman and joined by Judge Sentelle and the late Judge Harold Greene, the D.C. Circuit roundly rejected the Justice Department’s view. The court held that the Archivist, as an executive branch official obligated to assist the incumbent president in fulfilling his constitutional duty to take care that the laws be faithfully executed, could not permissibly defer to a former president’s claim of privilege if the claim was not legally proper.

    Thus, the court held, the Archivist (and the incumbent president) was obligated to assess independently a former president’s assertion of privilege, to reject the claim if it were not well founded legally, and to release materials to the public as required by the statute if the privilege claim were rejected. The court further rejected the government’s assertion—again echoed in the Bush Executive Order—that it is permissible for the Archivist to rubber-stamp a former president’s privilege claim as long as a member of the public can challenge it in court.”

    As for the other witnesses, my sense from having watched and listened to the live feed Thursday afternoon is that Steve Hensen did well, speaking on behalf of the Society of American Archivists, Tom Blanton and Anna Nelson did fine, and Robert Dallek, the best known historian on the panel, did okay. I’ve found that prominent historians do not always make the best strategic choices and that proved to be the case with Dr. Dallek.

    Asked about the value of records in his research, Dr. Dallek talked about how differently people would have viewed things had we known the extent of Woodrow Wilson’s incapacity or John F. Kennedy’s medical problems. He referred to having access during his research to medical records relating to Kennedy. Of course, by law, living individuals have privacy rights of a nature that is not extended as broadly to the deceased. Nevertheless, I would not have cited two examples referring to a person’s health as Presidential lawyers, such as Nixon’s, previously conflated executive confidentiality with privacy. That is because references to medical records naturally resonate with a broad audience and might be misunderstood by the general public. Had I been testifying, I would have cited records that added to our understanding of national affairs without touching on medical matters involving the people mentioned.

    Here’s why. Nixon’s lawyers said to the press in the 1980s, as we in NARA worked to release Nixon’s records, “I can raise your hair on end with what the Archives thinks does not infringe privacy and should be released.” The general public would have no way to assess that statement. No wants his or her privacy invaded. Upon hearing such a statement, a general reader might assume he meant NARA was trying to release medical and purely personal information about living persons. Not so. Archivists are well trained to protect information that is not appropriate for disclosure, including material that infringes on personal privacy.

    Shortly after that statement appeared in the press, Nixon blocked NARA from opening some 42,191 documents in 1987, materials that archivists had screened and deemed to be disclosable under law and regulation. When a high level Archives review board rejected most of Nixon’s claims, belated release of some of the Nixon contested documents in 1996 showed that many of the documents that Nixon had claimed were private, personal, or privileged actually dealt with governmental matters, such as Watergate, the Vietnam War, etc. All of that is traceable through information now in the public record.

    That being the case, I think Dr. Dallek made a strategic error. While people such as Dr. Dallek are skilled researchers and storytellers, I don’t think tactical and strategic thinking in terms of dealing with issues related to NARA and power players are their strong suit.

    At any rate, an interesting hearing. Panel 2 produced the most sparks. There was less questioning of Panel 1, at which the U.S. Archivist testified (he was accompanied by Assistant Archivist for Presidential Libraries Sharon Fawcett, who took some of the questions.) I should note also that the subcommittee had to recess between Panel 1 and Panel 2 for a vote. As subordinate officials within the executive branch, NARA witnesses naturally have to walk a very fine line in their public statements. In a different setting, I actually would like to see people from within government (Panel 1) and their customers outside government (Panel 2) appear together in a forum where they discuss these issues in a public setting, with the possibility for some give and take among the different stakeholders. But even in such a case, where, unlike a hearing, they are not giving sworn testimony, the NARA witnesses would face constraints. Although NARA’s officials typically are trained historians and come from the same initial background as academic historians, they work in a very different world than that found in the academy.

    Submitted from home on personal time at 7:19 am Eastern time

  2. Editor says:

    Thanks very much for the info. and the links. I’m not sure many people will see your valuable description and interpretation of the hearing if it’s buried in the comments, however — may I post it?

  3. Maarja Krusten says:

    Perhaps you could post the Dallas Morning News story on the hearing
    http://www.dallasnews.com/sharedcontent/dws/news/washington/stories/030207dnnatprezsecrets.36ecb1a.html

    or

    http://shrinkster.com/miz

    and then mention at the conclusion “for an historian and former archivist’s impressions, see

    https://bushlibraryblog.wordpress.com/2007/03/01/subcommittee-holds-hearing-on-the-presidential-records-act-of-1978/#comment-236

    I think the Dallas Morning News account is more appropriate for a prominent posting than my musings, although I appreciate your kind comments.

    BTW, I haven’t yet found a single source for all the testimony statements
    from yesterday’s hearing on the PRA. However, the National Security
    Archive has posted the prepared testimony statement of Thomas Blanton.
    See
    http://www.gwu.edu/~nsarchiv/news/20070301/index.htm which provides a
    link to the statement.

    Posted by Smartphone at 12:40 Eastern time on personal time

  4. Editor says:

    Thanks very much; I’ll do that.

  5. […] For an historian and former archivist’s impressions of yesterday’s hearing, see this comment. […]

  6. Editor says:

    Also, where did you see the live feed? I looked for it, and didn’t find it.

  7. Maarja Krusten says:

    The live feed was available at
    http://oversight.house.gov/story.asp=?ID=3D1182
    but the link went up late, shortly before the hearing began at 2 p.m. Eastern time.

    Posted by Smartphone on personal time at 3:25 pm Eastern time

  8. Editor says:

    Oh, I see–I’m sorry I missed that, so thanks once more for your helpful comment.

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