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The Real Issue at the Heart of the Weinstein Controversy

Here's a cautionary note describing a possible backstory for questions about Allen Weinstein's nomination as U.S. Archivist.

I have not found helpful some of the rhetoric that has surrounded the issue of Dr. Weinstein's nomination. Some of it undoubtedly is well intended. But keep in mind that past discussions of public access to government documents have used inflammatory and partisan rhetoric. As an historian and former archivist, I have found some of it downright scary. I suspect I am not alone in reacting that way among people in my profession. Some of that troubling rhetoric derives from articles published in the past by the American Spectator and by the Washington Times, both of which I will cite in a moment.

In an op ed in the Milwaukee Journal Sentinel on June 14, 2004, Jacob Heilbrunn wrote, "Weinstein has become a target for scholars who despise Bush and for those who continue to insist that Hiss was never a spy for the Soviet Union and want payback." But not everyone raising questions about the nomination is a leftist. Some of the questions have more to do with the forced removal of the incumbent archivist than about Prof. Weinstein's scholarship.

For me, as someone who experienced external pressure while employed by the National Archives from 1976 to 1990, incumbent Archivist John Carlin's
forced removal is particularly troubling. The legislative history of the National Archives independence bill that Congress passed in 1984 originally contemplated a set 10-year term for the U.S. Archivist. The intent was to provide protection against removal for political reasons. Although the provision dropped out of the bill in conference, there still has been an expectation that the Archivist will serve ten years. Hence Carlin's stated intention to remain on the job through June 2005.

The Chicago Tribune reported in the fall of 2000 that a Bush campaign official asked Archivist Carlin to delay until after the presidential election a long planned release of historical segments of the Nixon tapes. The campaign's concerns reportedly centered around conversations dealing with George H. W. Bush. The Archivist already had worked through the release with Nixon's family, which had signed off on the historical disclosures. The Archives released the tapes as planned in the fall of 2000.

This could not have endeared the agency to the Bush officials who had asked for delay. But I believe they lacked the historical detachment to view the public access issues properly, then or now. The Archives was following a regular schedule of tape disclosures which had started in the early 1990s. And the segments relating to the elder Bush were innocuous and definitely releasable under statute. Moreover, they formed only a tiny portion of the tapes release. From my viewpoint, the Bush campaign's intervention was unnecessary and may have sent a chilling signal to the Archives. I believe Governor Carlin acted courageously in proceeding with the tapes release. From all that I can tell, he has been doing his job properly. So his removal now is very troubling.

There are other things that have nothing to do with the Archivist nominee himself that might make historians and archivists uneasy in the face of the seeming ideological split over Dr. Weinstein. For example, around the same time that the White House asked Archivist Carlin for his resignation, Congress passed legislation which will transfer Nixon's records from the National Archives annex in College Park, MD, to the library in California which presently is run by the Nixon Foundation.

Take a look at Nixon foundation director John Taylor's article, "Cutting the Nixon tapes," in the American Spectator, March 1998. In describing the Archives' release of Watergate tapes, Taylor starts out writing, "The Nixon-haters have finally had their bacchanal. In November 1996, 201 hours of Watergate tapes--every minute of the 3,700 hours of Nixon White House recordings that archivists believed related to a presidential abuse of power--were opened to journalists and researchers by the National Archives and Records Administration (NARA)."

Taylor makes some good points about the need to remember that Nixon was a war president. (A personal note: as a member of Young Americans for Freedom during my college days in Washington, I remember how lonely it was walking around campus wearing a Silent Majority button during the war.) But Taylor undermines his article with his heated rhetoric and sneers at the Archives.

The law directs the Archives to reveal "the full truth" about Watergate abuses. Nixon sought to limit tape disclosures to the sixty-three hours subpoenaed by the special prosecutor in 1973. But we archivists identified new information about Watergate during the 1980s. Taylor, who served as Nixon's chief of staff in the post-White House years, described his anger when "we were told that the Hardy Boys at NARA had kept a little list -- 201 additional fun-filled hours of their own greatest hits." NARA didn't open those tapes until 1996, two years after Nixon died. Taylor sneered, "The archivists have done their worst."

How were those tapes finally released? The story is not reassuring. In December 1991, historian Stanley I. Kutler wrote to the National Archives, asking when its Nixon Presidential Materials Project planned to open Watergate portions of the Nixon tapes. Assistant Archivist for Presidential Libraries John T. Fawcett replied in January 1992 that all integral file segments relating to abuses of power in tapes and documents had been released. He told Kutler that as far as tapes releases were concerned, the National Archives might release Cabinet tapes next (although not immediately).

Working level archivists were stunned by what Fawcett told Kutler in January 1992. The Presidential Recordings and Materials Preservation Act called on the Archives to disclose at the earliest reasonable date "the full truth about governmental abuses of power" known generally as Watergate. We knew full well that, although there were questions as to whether they constituted a "single integral file segment," some 200 hours of Watergate related conversations still remained undisclosed to the public.

On March 19, 1992 Dr. Kutler filed a lawsuit against the National Archives in federal court for public access to Watergate conversations (Kutler v. Wilson, Civ. A. 92-0662-NHJ). I testified in the lawsuit. My recorded testimony contains an assertion that I believed that had Mr. Fawcett responded differently to Dr. Kutler's initial inquiry, there might have been no lawsuit.

On May 13, 1994 the Washington Times characterized Fawcett and two other officials, as "strong proponents of limited access philosophy, particularly Mr. Fawcett, who was responsible for administering the Presidential Records Act." The Washington Times took a strong stance in support of Mr. Fawcett and against Acting U.S. Archivist Trudy Peterson, and failed to properly present Dr. Peterson's views.

I and many archivists greatly respect Dr. Peterson. The Washington Times mentioned disputes between Mr. Fawcett and Dr. Peterson over President Reagan's Presidential records and archival policy. The Archives' Inspector General (IG) looked at the issues and found that Dr. Peterson's interpretation was correct. Moreover, the IG found that Mr. Fawcett's interpretation was "clearly contrary to the plain language and stated congressional intent of the Act, and would have prevented timely public access to public information in the Presidential Records at the Reagan and subsequent libraries." (NARA OIG Report 94-05, 9/2/94) Curiously, although the Washington Times slammed Dr. Peterson in its reporting and on its editorial page, it never reported the results of the IG's report.

Several of the Presidential Library foundations voiced their views on the policy disputes between Fawcett and Peterson. The Washington Times in 1994 noted a comment from "James W. Cicconi, vice president of the Bush Presidential Library Foundation. 'There are obviously deeper policy differences involved.'"

Cicconi's name cropped up again in 2000. He reportedly was the official who contacted the Archives when Governor Carlin was about to release segments from the Nixon tapes. The Chicago Tribune reported on October 27, 2000 that "The National Archives on Thursday released 430 more hours of Richard Nixon's secret White House tape recordings, despite attempts by former President George Bush to delay the release to avoid possible embarrassment to himself and to his son's presidential campaign. The National Archives confirmed late Thursday that James Cicconi, an attorney who represents Bush, his foundation and library in dealings with the archives, requested . . . 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. . . . " Other news reports cited concerns expressed by the younger Bush's campaign officials over the pending tapes release. The unsuccessful attempt to delay the Nixon tapes release in 2000 may have played a part in George W. Bush later issuing an executive order which strengthened the ability of former Presidents and their families to halt historical disclosures.

Fawcett retired from government service in 1994 and has since been mentioned in at least one book. Scott Armstrong, writing in Athan Theoharis's book, A Culture of Secrecy, claimed that "in historical circles, Mr. Fawcett had become notorious for consistently taking the side of former presidents and the entourages they left in charge of the political management of the presidential libraries. Many of his colleagues at the archives were also worried that Fawcett's deference to past presidents might lead him to abandon the archives' obligation to ensure the preservation and accessibility of government records."

In the battles over presidential records Fawcett was joined by his former boss, Archivist Don W. Wilson, who, according to the Washington Times, argued that "government officials need a certain amount of confidentiality to function." Wilson served as U.S. Archivist during the first Bush administration. Most confirmed or acting U.S. Archivists have returned to the academic world after retiring from government service. They typically work as professors, deans, or as consultants who are not associated with a particular political party. After stepping down as Archivist in 1993, Don Wilson followed a different path. He took a job with the Bush foundation. Wilson served as Executive Director of the George Bush Presidential Library Foundation at Texas A&M University from 1993 to 1999.

Many people in archival circles believe Wilson is one of the people behind Bush's nomination of Dr. Weinstein. I have no independent corroboration of this. However, Allen Weinstein has worked with Don Wilson so it is worth looking at his background. Wilson is connected to Allen Weinstein through the Mary Baker Eddy Library, where they both serve as trustees. If Wilson is a mentor of Weinstein's, will there be a return to the public access policies followed by Wilson and by his appointee, John Fawcett?

Like Wilson, Fawcett also has worked with issues relating to Republican presidents' libraries since retiring. Fawcett reportedly served as a consultant to Baylor University in the possible formation of a future George W. Bush Library. He also reportedly has served or still is serving as a consultant to John Taylor and the Nixon Foundation.

My generation of government archivists, the people who remember President John F. Kennedy's call to public service, is aging and many of us soon will be eligible to retire. Younger archivists who are just starting out hear so much in the media from politicians about culture wars and partisan perspectives. Are they prepared to fight the tough battles inside the Archives on behalf of nonpartisan and objective screening of records that we once fought? I think it would be useful for them to hear historians say that some issues transcend ideology and party loyalty. Unfortunately, thus far, mine seems to be the only voice saying that in public forums. For the most part, the others keep re-hashing the old right-left wars about Alger Hiss, etc, although a few point to larger vulnerabilities. This is not helpful. And, in fact, given the troubling rhetoric in the American Spectator and the Washington Times that I've described in this posting, it probably is harmful. Certainly, a seeming right and left split over Dr. Weinstein cannot be reassuring to the people now working in the National Archives. Their very ability to perform their mission depends on a nonpartisan, nonideological approach to their work.

This article first appeared on the list run by Professor Richard Jensen.