April 8, the U. S. Senate received the President's
nomination for a new Archivist of the United States
-- historian Allen Weinstein. For most Americans,
this is an obscure post. But the Weinstein nomination
has rightly been gathering increasing attention.
within the archival and historical communities,
the nomination has sent sirens screaming and bells
clanging. No fewer than nine professional organizations
that deal with government records have expressed
concern -- faulting Weinstein for his excessive
I have argued in my latest book, President Bush has had a problem with excessive
secrecy for quite awhile. As Governor of Texas,
he made sure to block any later access to his
gubernatorial records. As President, he has tried
to seal off the government from scrutiny in numerous
secrecy is not a partisan matter. Rather, it is
an issue of good government versus bad government
-- and secrecy smells of bad government.
is President Bush so eager to switch archivists?
Bruce Craig of the National Coalition for History
explains that the
Administration is likely motivated both by "the
sensitive nature of certain presidential and executive
department records expected to be opened in the
near future," and also by "genuine concern in
the White House that the president may not be
also notes that "in January 2005, the first batch
of records (the mandatory 12 years of closure
having passed) relating to the president's father's
administration will be subject to the Presidential
Records Act (PRA) and could be opened."
Craig (like many others) also reports that there
is White House concern about the release of the
9/11 Commission records.
Earlier Texas Trick To Hide His Gubernatorial
has one of the nation's strongest public information
laws. But Governor Bush wanted to keep his papers
secret anyway. Accordingly, in 1997, he sought
and obtained a change in Texas law to help him
new law allows the governor to select a site for
his papers other than the Texas State Library
-- as long as it is in Texas. But the governor
must first consult with the state's library and
archives commission to make certain any alternative
arrangement satisfied the state's open access
Bush became president-elect, however, he simply
sent his papers and records with no consultation
whatsoever to his father's presidential library
at Texas A&M University -- known as the most
secretive of all the existing presidential libraries.
result was, in effect, to federalize the papers
and records, placing them in a legal limbo where
no one could have access. Bush Senior's presidential
library is run by the Federal Government -- specifically,
the National Archives And Records Administration
Peggy Rudd, Director and Librarian of the Texas
State Library and Archives Commission, refused
to accept Bush's designation of his father's library
as the repository for his papers. Eventually,
she procured a ruling by the Texas attorney general,
making Bush's gubernatorial papers subject to
the Texas Public Information Act -- whereupon
they were sent to Austin for processing.
however, Texas Governor Perry -- Bush's friend
and hand-picked successor -- and the new attorney
general found new exceptions in the state's information
law that they claim give them the keys to the
relevant filing cabinets. Good luck to those seeking
it appears Bush is doing what he did in Texas,
on a national level.
the 1978 Presidential Records Act
effort began on November 1, 2001, when Bush issued
Executive Order 13233. The Executive Order drew
loud objections from not only historians and archivists, but also members of Congress -- who were highly
critical of the Order in hearings. In the end,
however, the Republican leaders quelled the grumbling,
and Congress took no action.
Executive Order gutted prior law -- specifically,
the 1978 Presidential Records Act. The Order granted
all former presidents, as well as any persons
selected by them, an unprecedented authority to
invoke executive privilege to block release of
their records. In addition, it granted the power
to invoke executive privilege to present and former
vice-presidents as well.
it shifts the burden to the requester to establish
why he or she seeks the presidential records.
(In contrast, the 1978 law properly put the burden
on the former president who seeks to withhold
them.) And Bush's Order empowers a current president
to block release of a former president's records
even when the former president wishes to release
them. Finally, it makes the Department of
Justice available to represent, in litigation,
any incumbent or former president seeking to withhold
public interest group Public Citizen filed a complaint in the U.S. District Court for the District of
Columbia. Both sides have filed for summary judgment.
So far, the court has not ruled.
should lose the suit. A President should not be
able to overturn a statute with an Executive Order
-- especially when he is doing so in a self-interested
bid to protect the secrecy of his own records.
Move To Appoint A New Archivist Again Ignores
earlier moves to ensure records secrecy bring
us to the most recent such bid: The President's
nomination for Archivist of the United States.
The Archivist will head NARA, which administers
the 1978 Presidential Records Act -- so even if
Bush loses in his attempt to protect his Executive
Order in court, he may still preserve his records'
secrecy if he manages to appoint a sympathetic
Archivist is appointed by the President with the
advice and consent of the Senate. A
1985 law makes NARA an independent agency
within the executive branch.
law says that an "Archivist may be removed from
office by the President" when he "communicate[s]
the reasons for any such removal to each House
of the Congress." But President Bush seems to
have effectively removed the incumbent Archivist,
John Carlin, without following this procedure.
was appointed by President Clinton. Carlin had
long given the impression that he planned to remain
in his post for at least ten years -- that is,
until at least 2005. Yet in December 2003, Carlin
resigned -- apparently due to Bush Administration
pressure. However, he has said he will stay until
his successor is confirmed, so there is no vacancy.
law also says that the President must appoint
the Archivist "without regard to political affiliations
and solely on the basis of the professional qualifications
required to perform the duties and responsibilities
of the office of Archivist."
didn't follow this provision: Carlin was a former
Democratic governor of Kansas with no archival
experience. Neither has Bush. Allen Weinstein
is hardly a political neutral. Although he is
a registered Democrat, he has close ties with
conservative Republicans, and has become something
of a champion of their Cold War views.
Presidents ought to be faulted for politicizing
our nation's archival records and our history.
And Clinton's wrong does not create a precedent
for Bush to follow.
U.S. Senate Should Withhold Its Consent
as no president could fill a Supreme Court vacancy
this close to an election, similarly, President
Bush should not be able to now fill the Archivist
post -- particularly given Bush's record as the
most secretive president this nation has ever
the rules of the U.S. Senate, any Senator can
place a hold on a nomination. Hopefully, one (or
more) will do just that -- insisting that this
post be filled only after the election, and then
demanding that the president comply with the law
in filling it.
Bush should lose, a lame duck president's appointments,
obviously, are easily rejected. But should Bush
win reelection, the Senate still must require
the president comply with the law -- and make
a non-political selection of a qualified future
Archivist. Not only does our past require it,
so does our future.
Posted: April 28, 2004