How to Game a Presidential Legacy





Mr. Wheelan’s new book is Mr. Adams’s Last Crusade: John Quincy Adams’s Extraordinary Post-Presidential Life in Congress. He is also author of Invading Mexico: America’s Continental Dream and the Mexican War, 1846-1848; Jefferson’s Vendetta: The Pursuit of Aaron Burr and the Judiciary; and Jefferson’s War: America’s First War on Terror, 1801-1805.

Someday soon, unless we stand upon our First Amendment rights and demand government transparency, a president’s legacy may depend not on actual accomplishments and leadership, but on the adroit release and suppression of certain presidential papers.

We all know, more or less, what a president did, but not always why or how — the answers to which may determine a president’s place in history.

If the decision-making that took place during the Cuban missile crisis remained veiled in secrecy today, would we regard John F. Kennedy’s brinkmanship so highly? If Richard Nixon’s White House tapes had been stashed in a vault, or as Nixon preferred, destroyed, would we have been able to take the full measure of his banal villainy?

It was because Nixon, in the aftermath of Watergate, attempted to take personal possession of his presidential papers that the 1978 Presidential Records Act was enacted, declaring that the United States retains ownership of a president’s records. Under this law, the National Archives organizes these papers and, 12 years after a president leaves office, they are opened to the public.

But as with so many policies promoting openness, this one, too, has fallen victim to the Bush administration’s obsession with secrecy.

However, this is not just another blow against openness; Bush’s Executive Order 13233 could change history — literally — by restricting historians’ access to materials that help them document and ultimately judge a president’s actions, lapses, and principles.

Executive Order 13233 gives ex-presidents nearly unlimited discretionary authority to prohibit the release of their papers, and allows them to name designees who can act in their stead. Moreover, a sitting president may also prevent the release of a predecessor’s papers — as Bush has already done with some of Ronald Reagan’s papers — even when the predecessor has authorized his papers’ release. These are radical encroachments on the public’s access to documents that were produced in the public interest, at public expense, by officials elected by the public. Citizens can challenge these decisions in court, but the expense and time commitment will discourage most people from trying.

A House-approved bill that would undo this blatant assault on openness has been held up in the Senate. Even if the measure advances, there is no guarantee that Congress could override Bush’s expected veto.

Anyone can see that Executive Order 13233 tramples upon the public’s right to know. Less obvious are the consequences for writing and studying history.

Executive Order 13233 portends a day when spin, the currency of politics, may become the province, too, of presidential history. One can envision a future when a presidential library’s watchdogs would allow only “safe” historians to sift through the library’s holdings for material to cook up a bracingly whitewashed version of his subject’s actions. Objective historians, denied access to the panegyrist’s primary sources and all the juicy details, would be placed at a severe disadvantage. Which version do you think would get the seven-figure publishing advance and the lavish promotional campaign?

From this high, windy ledge it is a short step over the precipice to state-sanctioned history textbooks, of the kind now promoted in Russia by Vladimir Putin and the Kremlin — the kind that describes Josef Stalin’s brutal dictatorship as necessary and praiseworthy. The kind that laments the Soviet Union’s collapse as a tragic mistake, and that pronounces Russia to be “the best and fairest society.” Indeed, Putin is well aware that shaping history to suit one’s purposes is empowering, in the absolute Orwellian sense.

One day in the future, as we stand before a bookstore display, perusing the titles extolling the extraordinary farsightedness of the Bush administration, we may repent our former indifference to Executive Order 13233 and yearn for olden times, when presidents earned their legacies the old-fashioned way, through accomplishments and not spin.

George Washington won his presidential laurels by subordinating his dear wish to go home to Mount Vernon after all those years of war and public service, in order to become the first president — a tightrope act that everyone knew only Washington could perform. To hold the center together, Washington surrendered his individuality and became the icon people wanted him to be.

And then there was Thomas Jefferson who, recognizing a great bargain when he saw one, purchased the 830,000-square-mile Louisiana Territory for $15 million, even then a pittance for such a sprawling domain. Praise or damn him, James Polk got us California and the Southwest by provoking Mexico into a war and then taking 40 percent of her land.

Abraham Lincoln waged war to preserve the union, emancipated the slaves, and piloted a battered but intact America into safe waters. Under Franklin Roosevelt, America survived its worst depression and costliest foreign war. His cousin Theodore gave us a national parks system. Dwight Eisenhower stood up to Communism and built the interstate highway system, and John F. Kennedy inspired us to public service, and launched the program that put Americans on the moon.

This is nowhere near a full cataloguing of presidential achievements, but you see the point: These men built their legacies on deeds and not hype. If you take issue with history’s judgment on them, you are free to rummage through their personal papers, letters, diaries, orders, and correspondence for rebuttal material.

Fast-forward fifty years to that bookshop table, imagining the state of presidential history if George W. Bush’s Executive Order 13233 is permitted to stand — perhaps further refined by successors for whom spin is as routine as flossing. The best-selling presidential biography, The Decider, whose author was carefully vetted by George Bush’s descendants, is surprisingly rich in detail and anecdotes, selectively gleaned from the presidential papers.

Unsurprisingly, The Decider argues that the 43rd president, portrayed in his day as a radical but inept ideologue, was in fact courageously prescient in his bold extension of U.S. hegemony over the Middle East for the first time. It describes Bush the Elder’s blow against Iraq’s Satanic Saddam Hussein as portentous of the son’s coup de grace. And none of it would have been possible without the vision and wisdom of the man whom the author unabashedly proclaims the Father of Modern America, Ronald Reagan. Contrarians, of course, can always write their own history — it’s a free country. But without access to the primary documents, they will find it difficult to compose a credible refutation.

The Bush administration’s Executive Order 13233 underscores the new fact that presidential legacies, once the domain of academic historians and parlor game aficionados, have become a serious business — so much so that a president has mounted a Kremlinesque campaign to stifle the free dissemination of information. The Bush administration is playing for keeps.

We once chided Americans for their indifference to their own history by warning, “He who ignores history is condemned to repeat it.”

To this we should add another, ominously Orwellian aphorism: “He who can shape history to his purposes controls the levers of power.”


comments powered by Disqus

More Comments:


Lars R Schumacher - 3/4/2008

This may seem like a silly question, but what's to prevent the next president from just rescinding that order?


Maarja Krusten - 2/26/2008

If HNN's readers look at the comments posted on Inside Higher Ed on its story about selection of SMU as the site of the Bush Presidential Library, you'll see how a number of people still use the terms Library and Institute interchangeably. Yet they are two distinct entities, one governmental and subject to statutory controls and Constitutional requirements, the other private, nongovernmental in administration. See
http://www.insidehighered.com/news/2008/02/25/smu

After all the publicity that issues related to Presidential records have received in the last year (SMU's consideration as site of the Bush Library; news reports about controversies over the use of RNC and White House email accounts; questions about electronic recordkeeping, the handling of backup tapes at the White House, and so forth), it is discouraging to see such muddied comments in the IHE. Yet what laws require and the extent to which Constitutional safeguards and statutory controls affect records are key questions in such matters.

Striking also is the fact that Ben Hufbauer still is the go-to guy for comments on Presidential Libraries. Dr. Hufbauer is a professor of art history, not a Presidential historian. The reporting in IHE reflects the extent to which most Presidential scholars have been missing in action since 1992, when it comes to explaining in accessible language to a broad audience the emerging public policy issues that affect their research.

As I've noted here before, unless the users of records are willing to grapple with all of the psychological aspects of opening records, I don't see how scholars will be able to offer practical solutions. I often ask scholars to stop and think: what if there were a law which required that the disclosable portions of the records that document your career be opened during your lifetime. What if you had the sort of power to affect the process that incumbent and former Presidents have over the National Archives and the Department of Justice, which speaks for the U.S. Archivist in court. Would it be easy for you to say, as Gerald Ford implicitly did, I did what I did, open what you can as soon as is feasible? Or would you obstruct releases and rely on surrogates to verbally attack federal archivists, as Richard Nixon did? How would you use that power?

It will be interesting to see what Archivist Allen Weinstein and his fellow officials say at the hearing today about White House records. See
http://oversight.house.gov/story.asp?ID=1763
for the witness list.


Maarja Krusten - 2/25/2008

An interesting essay. I’m glad to see another historian considering these issues. I’ve posted several essays on HNN myself on this between 2004 and 2007. More recently, HNN’s editor posted an essay on the Nixon records by another historian and archivist, Sam Rushay. The late Hugh Davis Graham wrote about President Bush’s executive order (13233) on HNN shortly after it first was issued in November 2001.

As anyone who has read my essays on HNN knows, I once worked with Richard Nixon’s tapes and documents at the National Archive. I’ve noted that the National Archives was unable to open “the full truth” about Richard Nixon’s “governmental abuses of power” during his lifetime. I’ve referred to the “broken window theory,” noting that except for Stanley Kutler and Joan Hoff, historians did not seem very alarmed during the late 1980s and early 1990s that NARA could not fulfill its legislative mandate while Nixon still was alive. (The Watergate Special Prosecutor identified 63 hours of abuse of power materials in the 1970s. We archivists identified 200 additional hours of Watergate-related tape segments during the 1980s. Nixon sought to limit disclosures – one of his representatives sneered that we were “Hardy Boys” -- and succeeded during his lifetime. The 200 hours of Watergate information were not released until 1996, two years after Nixon died.)

Nothing that has happened with the weakening of Presidential records statutes since my tenure as a Nixon records archivists has surprised me. The first signs of trouble appeared when we tried to open the Watergate materials. I understood already in the late 1980s what Nixon’s actions portended.

Still, I’m glad to see Mr. Wheelan tackle some of these issues. I’d like to clarify a couple of issues that Mr. Wheelan touches on. He writes of the Presidential Records Act that “Under this law, the National Archives organizes these papers and, 12 years after a president leaves office, they are opened to the public.”

There are two time limitations to keep in mind, five years and twelve years. From the time a President leaves office, there is a five year period during which the National Archives does not accept Freedom of Information requests for his records. The Archives does more than just organize papers, it also is supposed to use the five year period before the public can file Freedom of Information requests for the materials to screen some of them. That includes reviewing them to see what should be released. Archivists take out information covering national security, privacy, and other categories that may not be released to the public. In archival terms, this is referred to as systematic processing – processing that takes place because a file series is deemed of potential interest to researchers, not because a specific, named individual or group has requested it.

The former President can request that certain restrictions be applied to his records for a 12 year period. Once the 12 years are up, standard FOIA exemptions apply – with the exception of the exemption dealing with advice offered to the President. This goes to the heart of the matter and explains why implementation of the Presidential Records Act has not gone smoothly. The law assumes that executive deliberations eventually may be opened if they do not deal with national security or with personal privacy (medical issues, family matters, an individual’s Social Security number, etc.). While courts have upheld a President’s Constitutional right of privilege, they also have found that the confidences of higher office should not be forever sealed, that confidentiality erodes over time.

Public Citizen’s lawyers addressed this point in a pleading in American Historical Association v. the National Archives and Records Administration,

“To be sure, the Supreme Court in Nixon v. Administrator recognized the standing of a former President to assert claims of executive privilege. 433 U.S. at 448-49. But it also recognized that a former President's authority in this regard was entitled to less respect than an incumbent's (id.), and that the privilege attaching to presidential historical records is subject to "erosion over time" (id. at 451) because "there has never been an expectation that the confidences of the Executive Office are absolute and unyielding" (id. at 450), and even the confidences of close presidential advisers have generally been opened to the public after a President has been out of office for some time (id. at 450-51).

(See http://www.citizen.org/litigation/briefs/FOIAGovtSec/articles.cfm?ID=7116 )

Former U.S. Archivist John W. Carlin explained the process of opening records under the Presidential Records Act in August 2001, shortly before President Bush issued E.O. 13233. See Gov. Carlin’s very useful statement, both in substance and for evidentiary value (that is, for the indications that the Archives did not anticipate E.O. 13233 as later issued), at
http://www.archives.gov/presidential-libraries/laws/access/reagan.html

Sharon Fawcett, Assistant Archivist for Presidential Libraries, provided an excellent overview of how things work these days in an interview late last year in the National Journal. See
http://news.nationaljournal.com/articles/071217nj1.htm
which centers on the Clinton records but generally explains well what is involved in working with former Presidents. NARA repeatedly has stated that the practice of receiving FOIA requests has bogged down its archivists. Almost no systematic processing takes place at the PRA-administered Presidential Libraries. While NARA supports the FOIA process (correctly in my view), it has looked for ways to make it work more efficiently than it does now.

I understand why historians are so concerned about E.O. 13233. And not just historians – anyone who writes about Presidents and executive actions. Journalist Richard Reeves explained his concerns in 2002, see
http://www.fas.org/sgp/congress/2002/041102reeves.html

In my view, many of the issues center around the 12 year restriction period and the five year period after which researchers may request records under FOIA. Keep in mind, until 1974, under the then-accepted personal property concept, Presidents could restrict records for however long they wished. Lyndon Johnson placed a 50-year restriction on his tapes. Professor Clement Vose noted in his article, "The Nixon Project" (PS, Summer 1983), that the practice at donor-restricted Presidential Libraries was to screen innocuous files first. Before Congress passed the Nixon records act in 1974, archivists usually set aside files covering contentious matters so as to allow "the passage of time to dim controversy" related to the highest officials, "including the President himself."

Interestingly, when I put the matter to a vote last year in an archivists’ forum, they overwhelmingly voted for extending those time periods and allowing archivists more time to systematically process materials. The thinking was, historians can wait, a cooling off period will lessen contention, decrease the chances of Presidents exerting hidden pressure on archivists (something about which historians largely seem oblivious), and make the statutes work better for all the stakeholders. It’s impossible to say whether President Bush would have issued E.O. 13233, had the time periods for acceptance of FOIA requests and the application of Presidential restrictions been different.

I have not myself decided what the answer to these problems is. What is clear to me is that except for the people I mentioned above, individual historians largely have stayed on the sidelines, from the time the problems with releasing Nixon’s records first became public in 1992.

Again, my thanks to Mr. Wheelan for giving the issues some thought.