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A Controversial Choice for the Position of Archivist of the United States:
Part of the Bush Administration's Secrecy Strategy?


Friday, Apr. 23, 2004

On 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.

Indeed, 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 secrecy.

As 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 ways.

Such secrecy is not a partisan matter. Rather, it is an issue of good government versus bad government -- and secrecy smells of bad government.

Why 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 re-elected."

Craig 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."

Finally, Craig (like many others) also reports that there is White House concern about the release of the 9/11 Commission records.

Bush's Earlier Texas Trick To Hide His Gubernatorial Records

Texas 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 do so.

The 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 law.

When 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.

The 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 (NARA).

But 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.

Soon, 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 access.

Now it appears Bush is doing what he did in Texas, on a national level.

Gutting the 1978 Presidential Records Act

This 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.

The 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.

Moreover, 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 information.

The 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.

Bush 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.

Bush's Move To Appoint A New Archivist Again Ignores The Law

Bush's 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 enough Archivist.

The 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.

That 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.

Carlin 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.

The 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."

Clinton 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.

Both 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.

The U.S. Senate Should Withhold Its Consent

Just 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 had.

Under 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.

If 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.

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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