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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.