The National Archives: Alone in a Clash of Cultures





Ms. Krusten is a historian and former National Archives' Nixon tapes archivist.

An executive branch agency, the National Archives and Records Administration (NARA), staffs and administers the Presidential Libraries of Presidents from Herbert Hoover through Bill Clinton. Soon a George W. Bush Presidential Library will be added to that number.

The Libraries have differing cultures and NARA's officials face many challenges. The National Archives' Inspector General expressed dismay when agency officials themselves tried to retrieve stolen Clinton Presidential documents from Sandy Berger, without immediately reporting the theft to him. ""I'll spend the rest of my life going to bed at night wondering, 'Did he take more,'" the Inspector General told a reporter in 2007.

At the pre-Watergate Presidential Libraries, Presidential records were donated to the government as personal property. At such Libraries, even now, some federal archivists spend years, even decades, cultivating relationships with Presidential families. Statutes are less of a factor than at the Libraries of later Presidents.

At the Libraries of Presidents starting with Ronald Reagan, the Presidential Records Act (PRA) of 1978 and some provisions of the Freedom of Information Act provide public access to records. An executive order issued by George W. Bush permits a former President, his family members (in perpetuity), and a former Vice President to claim privilege over material that NARA has screened and deemed releasable.

Richard Nixon represented a transitional figure between the donor-restricted and the PRA-administered Libraries. The government took charge of his records under the provisions of the Presidential Recordings and Materials Preservation Act (1974). During the 14 years I worked with Nixon's records as a NARA Nixon Project employee (1976-1990), I never saw or met with him or his family. We archivists were sequestered behind agency lawyers, whom I relied on to protect us. We remained mysterious (perhaps threatening) figures, easy targets for Nixon's lawyers when it came to litigation.

Richard Nixon's once-secret tapes revealed how he himself once viewed records and the Archives. The tapes captured Mr. Nixon's reaction in 1971 to the publication of excerpts from a secret history of the Vietnam War.

President Nixon fumed about the leak of the Pentagon Papers, then turned his attention to the Brookings Institute. "You're to break into the place, rifle the files, and bring them in." Mr. Nixon also ordered the government to declassify the records of his presidential predecessors in order to "embarrass the creeps."

John Ehrlichman noted in 1971 of records deposited in the Archives by Democratic officials, "I'm going to steal those documents out of the National Archives." Mr. Nixon replied, "You can do that." (Egil "Bud" Krogh noted in his insightful book, Integrity (2007), that such a break in reportedly occurred but that his Plumbers group was not responsible.)

Nixon griped in 1971, "When [John] Mitchell leaves as Attorney General, we're going to be better off in my view. . . . John is just too damn good a lawyer. . . . It just repels him to do these horrible things, but they've got to be done."

A law passed in 1974 called for disclosure at the earliest reasonable date of "the full truth" about the governmental abuses of power known as Watergate. My colleagues and I found "the full truth." But NARA released only 63 hours of tapes during Mr. Nixon's lifetime. Only after Mr. Nixon died in 1994 did the Archives release 200 additional hours of Watergate tapes, including the discussions about breaking in to Brookings and the Archives.

Fox News reporter James Rosen relied on those tapes in writing a new biography of John Mitchell. Rosen knows something about archival processing. As a college intern, he worked with my NARA colleagues and me in 1987 and 1988. He concluded in The Strong Man that Mr. Mitchell "was a restraining influence on Nixon" who stood "fundamentally apart from the criminality of the Nixon administration." But Rosen believes the Attorney General was "undone by unswerving loyalty to his 'client,' the president."

When Stanley Kutler filed a lawsuit for access to Richard Nixon's tapes, my former boss and I were among the witnesses called to testify in 1992. However, the named defendant in Kutler's lawsuit was U.S. Archivist Don Wilson. After Wilson resigned in 1993 to take a job with the George H. W. Bush Foundation, his successors replaced him as defendants.

Richard Nixon entered the lawsuit as Intervenor. Seymour Hersh wrote of my former boss that his "three days of testimony turned ugly." Nixon's attorney effectively put him on trial "by repeatedly asking questions implying that he was biased against Nixon." He was not. He had, in fact, voted for Nixon. However, the Archives' mandate required archivists to work objectively, which he and his staff had done. Moreover, he had received "outstanding" ratings from NARA's management for his work. My former supervisor later expressed disappointment at "the failure of the government attorneys 'to take aggressive steps to protect a government civil servant at a deposition at which they were supposed to be representing the government.'"

As a federal employee, although no longer with the National Archives, my legal representation lay with the Department of Justice (DOJ). I was questioned for two days in 1992 by lawyers representing Nixon and Kutler. I was stunned when I later discovered that the government had made available to the plaintiff and to Nixon an archival Processing Manual that I had helped write while employed at NARA. But I had to rely solely on memory to explain (under oath) 14 years of government work. It was a sobering lesson in how Washington operates.

Starting around 1990, a privately run Nixon Library housed Richard Nixon's pre-Presidential papers in California. The Library merged with the government's Nixon Project to became a part of NARA's system of Presidential Libraries in July 2007. In 1996, I jousted with John Taylor, director of the Nixon Foundation, in letters published in the Chronicle of Higher Education. "John" and "Maarja" now chat in a genial fashion over at The New Nixon website. We have a shared interest in the enormously complicated Richard Nixon.

Nixon's lawyers served their client very well. Only a handful of tapes were released during Nixon's lifetime. While I understand why Nixon's side did what it did, for lawyers at the Department of Justice, I feel pity. As for the National Archives, it is vulnerable to being trapped between two cultures. One is the Presidential, which, as David Gergen pointed out in 2000, has become increasingly dependent on spin. The other is scholarly, which is dependent on facts. As long as statutes fail to recognize the gap between the cultures, the Archives will be left alone to work through the many challenges that surround its difficult but important mission.


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Maarja Krusten - 7/30/2008

I wrote above of events in 1989 that "I never talked to anyone outside my employing unit, the Nixon Presidential Materials Project." As I testified in 1992, I was a participant in 1989 in a meeting with two officials from the Office of Presidential Libraries, but since one was part of my reporting chain in the Nixon Project, I regard that meeting as "part of my unit." This is far too arcane a point for HNN's readers but I can never tell who from NARA may be reading and inclined to pounce on what I write here. So a clarification is in order. That I feel obligated to add it tells you something.

I'm not surprised my article drew no reactions other than from Jeremy. HNN is what it is. But keep in mind HNN's usual crowd are not my only intended audience. I'm actually writing as much for people in the trenches (those who do archival and history related work) and for the people who work with them as for HNN's usual readers.


Maarja Krusten - 7/30/2008

When I consider everything NARA has on its plate these days, I sometimes think half-jokingly, "Perhaps instead of just lawyers and public affairs officials and program officials, maybe it needs an official in charge of 'How Will It Look?'"

I didn’t enjoy seeing the National Archives immersed in controversy after Stanley Kutler filed a lawsuit for access to Nixon’s tapes. Here’s some general advice for lawyers at any institution that hold important records or deals with archival and historical matters. This applies regardless of who the client of record is and who is formulating the legal strategy.

I believe it is important for archivists and records managers to maintain good lines of communications with an archival institutional lawyers (if they will let them do so). Building trust and good lines of communication has to be a two-way street. You’re part of a management team which sets the tone at the top. Better that people feel able to turn to you (or to an Inspector General, if it rises to that level) while issues are emerging than you find out about them after a lawsuit has been filed. You may think a lid is on things when in actuality, it is not. In NARA’s case, despite the fact that its press spokesperson assured readers of the New York Times that Nixon did not contest the opening of tape segments in 1991, that was not the end of the story. Far from it.

I would imagine that lawyers find it easier to handle cases that do not have witnesses testifying, as I once did, that

“It’s my feeling that I and everyone who worked on the materials tried their very best to adhere to the regulations. When we felt that we were being asked to do something unethical, we protested to the extent that subordinate employees may do so without suffering punishment.

I think we were within our rights to warn supervisors that they were on a path that might not stand up to close scrutiny.

Certainly, I think it would have been in the Archives’s interest and Mr. Nixon’s interest to have the [Record Group] 460 [Watergate Special Prosecution Force tapes] opening handled in a manner other than it was, and I think I did everything I could to warn people that this should be done.

I know of no reason to punish people for attempting to warn an agency to conform to its regulations.”

Better to handle such issues as they occur in a way that resonates with all the stakeholders than to try to explain them away in court. I still was employed by NARA and was involved in the turmoil surrounding the receipt from a Nixon agent of a list of 70 deletions to the Nixon Watergate tapes in 1989. I never talked to anyone outside my employing unit, the Nixon Presidential Materials Project. (The Nixon tapes supervisor then was on the Nixon Project’s payroll although working on another assignment.)

Turning outside my unit just didn’t feel like an option to me in 1989. I felt isolated and alone in my struggles with the issues, able only to talk to Nixon Project colleagues (several of whom shared my concerns, as I testified later). But to no one else within NARA. It is significant, also, that I kept silent about the turmoil and about my concerns after I left NARA’s employ in January 1990. Only when called to testify by Stanley Kutler’s lawyers did I tell my story under oath, in September 1992.

Lawyers need to be especially alert if a unit or staff within an agency has had a high turnover in personnel after years of stability. You don’t want to be blindsided! You also need to consider why turnover occurred.

Insularity doesn't guarantee formulation of a good message to be used in court pleadings. Of course, if you’re representing an agency, just as you’re not supposed to coach people to tell an accepted story, you’re not supposed to punish those that don’t. Put under oath, witnesses have to answer questions truthfully. All the more reason to find out what happened early on or even to be a player in settling things down before a lawsuit is filed.

Once a lawsuit is filed, institutional lawyers should talk to the widest number of people to get 360 feedback on critical issues before documents are filed or anyone is put under oath. Gather the facts! Better you know them early than find yourself surprised later. Staying ahead of a story is much easier than scrambling to contain it. I think a client is served best if a legal team is out in front of a story, knows everything early, and does everything possible to avoid being blindsided.

Also, regardless of whom they regard as their actual client, lawyers can’t lose sight of the fact there are many people in their care, at all ranks. And that reporters may write about a high profile case, thereby creating their own narrative of the narrative presented in court. So lawyers need to think in terms of the agency as a corporate body, not just in terms of individuals (power players or not). In speaking with the press, consider what message will play best in the long run. Choose words with care -- remember that there are messages and metamessages. Sometimes the latter reveals or ramps up issues that the former may have been intended to contain or limit.

When it comes to records, watch out for a ripple effect. A story put out by a public affairs person may lead a researcher to file a FOIA. Assertions made in a court case may lead someone to file a FOIA. No archival institution--in the public or in the private sector--has total transparency about its current operations. That is not realistic. You have to be prepared for the fact that someone down the road may FOIA records that cover some of issues. To the extent you can, ensure that they are handled properly, under existing laws and regulations, regardless of what they contain.

In my testimony in Kutler, I used the image of cloaking oneself in the regulations. If you’re a lawyer, the employees in your care need to feel that you're the one that helps them wear that cloak comfortably.


Maarja Krusten - 7/29/2008

Respond to interrogatory responses should read respond to interrogatories, of course.


Maarja Krusten - 7/29/2008

In my article, I noted that I felt pity for the lawyers at DOJ. In the Kutler Nixon tapes litigation, in my reading of the pleadings, the lawyers seemed to struggle with the narrative. This was unfortunate for an agency, the National Archives, which holds the historical records that chronicle for the government what happened and how.

In the discovery phase of a lawsuit, an agency typically has to respond to interrogatory responses from the plaintiff. After I testified in the Kutler case, I read the interrogatory responses filed by DOJ on behalf of NARA in the summer of 1992. For reasons that are not clear to me, the responses failed to list all the NARA employees who had worked on the tapes--listing only 8 of what had been 16 archival employees.

The interrogatory responses also described a referral of 70 portions of Watergate Special Prosecutor Tapes to a Senior Archival Panel (SAP). The panel decided that some segments should be deleted from the tapes, other portions left in. The presentation in the initial interrogatory response implied the referral came as a result of internal review by agency archivists. The NARA Senior Archival Panel was a purely internal body that was supposed to assist staff archivists in their review, and usually consisted of three experienced archivists, often GS-13s and GS-14s.

As of 1992, the Senior Archival Panel had no jurisdiction over objections filed against proposed NARA releases by Nixon. Consequently, it could not make adjudicatory decisions about them. (The Kutler settlement agreement in 1996 later spelled out additional procedures for settling differences between Nixon’s estate and NARA.)

As of 1992, regulations stated that external submissions were supposed to be handled by a higher level Presidential Materials Review Board. A flow chart submitted in a report to Congress clearly showed separate tracks for questions raised within NARA (which could go through the Senior Archival Panel and the Review Board) and appeals by Richard Nixon or other outsiders (which went only to the Board and never touched the lower level Panel).* The Board includes the head of the Office of Presidential Libraries, NARA’s General Counsel, other senior executives, and one public member, an historian from another federal agency.

Initially, it appeared in the Kutler litigation as if the submission of 70 Watergate tape segments derived from within NARA, perhaps through identification by then director of the Nixon Presidential Materials Project. However, the items did not come solely from the director of the Nixon Presidential Project. Nor did they even derive from his own review. Rather, they had been identified by an agent working for Richard Nixon, who brought them to NARA’s attention. Nixon later admitted as much,

Nixon’s admission that his agent was the source of the 70 items is found in response to Interrogatory No. 12, page 27, Defendant-Intervenor Richard Nixon’s Response to Plaintiffs’ First Set of Interrogatories, filed January 21, 1993. This placed the government in a peculiar position of having Nixon provide an admission on a point which had not been described in the government’s own earlier filing of interrogatory responses.

Nixon’s 1993 admission was filed after the Nixon tapes supervisor, two other NARA witnesses, and I had provided deposition testimony in 1992, confirming that the 70 items did not derive from NARA’s internal reviews. That we testified correctly under oath who was the source of the 70 segments (Nixon's agent) was not, of course, our fault. It’s what you would expect from an agency staffed by historian-trained archivists.

I mentioned earlier that as of 1992, a mere 63 hours of Nixon’s tapes were open. These largely consisted of the portions with which the Watergate Special Prosecutor had worked. The Kutler litigation resulted in the release of 200 additional hours of Watergate tapes in 1996.

The Department of Justice was left arguing in an October 26, 1994 pleading that since no researchers challenged the opening of the 60 hours of Special Prosecutor tapes in 1991, belated allegations about their handling were moot. Of course, researcher could not have challenged the opening since they were unaware in 1991 of any Nixon involvement in deletions to the tapes. In fact, the New York Times had reported reassuringly on June 5, 1991 that

“Mr. Nixon did not contest the release of the latest transcripts, [the Archives’ spokeswoman said]. Mr. Nixon's lawyer has previously said his client would not contest the release of transcripts relating to the Watergate affair.”

This technically was true in the sense that there never was a Federal Register notice showing that Nixon filed claims under the 36 CFR §1275 process against release of Watergate tape segments. However, as testimony in the Kutler case revealed, an agent working for his law firm had raised concerns about tape segments. Unaware of how NARA used the term “contest,” readers of the NYT in 1991 would have formed the impression that Nixon never raised any questions about the release of the Watergate tapes.

Had DOJ’s initial filings in the Kutler case spelled out the role of the Nixon agent in the tape deletions, the case would not have left NARA trailing with so much baggage now. I think many of the fireworks that surrounded the Kutler litigation could have been avoided.

As I’ve said before, Nixon had every right to file formal claims, although in such cases, the more senior NARA group was to consider them. The regulations acknowledged that. Had I been NARA’s spokesperson, I would have stated to reporters in 1991 that Nixon did raise questions and that NARA worked through them internally. Whether the press spokesperson actually knew that this had occurred, I don’t know. I was still a NARA employee when Nixon’s agent submitted the list of 70 deletions. I later testified about how we archivists reacted to the submission. The deposition testimony reflects a lot of tension around that issue.

Curiously, the 1991 New York Times article also contained another “red flag” assertion. The NYT quoted a NARA spokesperson as saying in 1991 of the Nixon tapes, “National Archives experts are cataloging and transcribing thousands of hours of remaining conversations, which will be released over time, but years will pass before all become public.”

The Kutler litigation later revealed that no such systematic transcription was taking place. Indeed, called to testify in 1992, one witness pointed out that transcription would be against archival principles. Other witnesses revealed that archivists had completed review of the tapes in 1987 and that little additional work was done with them between then and 1992. Why the NARA spokesperson did not state that when discussing this with the NYT in 1991, I do not know.

Lots of headaches surrounding the narrative for NARA’s handling of the Nixon tapes. That’s the primary reason I feel pity for lawyers at DOJ. I imagine it is much easier to litigate cases where everything about an agency’s past actions aligns smoothly.

______________
* For the flow chart, see page B-7 of the March 1975 GSA Report to Congress on Title I of the Presidential Recordings and Materials Preservation Act, available in CIS microfilm S401-36, May 13, 1975 Senate Government Operations Committee hearing on the PRMPA regulations.


Maarja Krusten - 7/28/2008

Hi, Jeremy, thank you so much for the thoughtful response. It's interesting how much I can learn from a person's character just from the exchanges I have with him or her in the virtual world. You sound as if you are very well grounded.

In discussing the Nixon administration’s response to Watergate, Bob Haldeman once referred to how he and the President were accustomed to looking at matters in terms of public relations. A PR-oriented approach centers on containment. I’ve often wondered what would have happened in the long run, had the White House taken a different approach to Watergate from the time the news story broke.

I think in some critical ways it became much harder to be President in the second half of the 20th century. The job changed in important ways from what the Founding Fathers and the framers of the Constitution had envisioned. I don’t mean different in terms of the difficult issues with which Presidents always have grappled, one way or another, although those also have evolved in some areas, obviously. Nor do I mean name calling and what we now call “going negative.” Political debate always has contained such elements.

Rather, I’m thinking of the increased and constant awareness of what critics and opponents are saying. The 24 hour news cycle. The permanent campaign. The mudslinging that politicians endure (and engage in themselves, in many cases) seems unceasing. There’s *never* a break from that nowadays, no down-time. It’s “the most important job in the country” but many people would find the circumstances under which a White House operates to be crippling. Yet these are the people of whom, unlike those in any other profession, the law demands that their record be thrown open to the public soon after they leave their jobs. There is a huge disconnect there and it is the National Archives that stands in the middle of it.

Curiously, few people seem to stop and consider that. Sometimes, I feel like asking on message boards, what if you had to win each promotion you gain at your employing institution not through submission of an application and an interview process, but by engaging publicly in a war of words with competitors for the job? What if once you got the job, you had a constant awareness of what those who sought the job but lost thought of your performance? What if all this led to name calling, mud slinging, attempts to undercut each other, dirty tricks, blame shifting, the urge to paint oneself as a victim, etc? In terms of how most of us act on the job, much of that seems unnatural and potentially very, very stressful. What does it do to a person who has to engage in that to win? And yet it’s what the political process demands of Presidents.

I’m a federal employee. I, like you, could live with people reading the disclosable portions of what I’ve written. I’m human, I haven’t handled everything I’ve done perfectly, and there are things that I’ve done which I would do differently, given a chance for a do-over. And I’ve certainly learned all sorts of lessons along the way. For someone such as me, there is room to grow.

But in comparison to a President, I’m just an ordinary civil servant at the GS-14 level. I don’t make daily decisions on matters of critical importance which millions of people are going to second guess. I don’t have to send out a press spokesman every day to explain what I did. I can sit at a computer and do that myself, I don’t have to use others to defend me. I don’t have to rely on surrogates to attack those who disagree with me. I can lay out my position on a site such as this one and walk away from the computer, thinking that readers either can agree with it or not, that’s ok. I don’t have to win in the marketplace of ideas by crushing opponents. It’s much easier for me to say I did what I did, I can live with how I handled my professional responsibilities. It’s much harder to do for someone who went through what David Brooks last year in a column in the New York Times called the soul-destroying process of campaigning.

If you’re interested in reading more of my thoughts on how historians have to look at the way a President integrates the personal, the political, and the governmental, look at the exchanges I had on the New Nixon website on school desegregation. See
http://thenewnixon.org/2008/07/17/nixon-and-school-desegregation/

There are things that Nixon handled well during his administration. But his tapes captured some darker elements in his thinking and actions, as well. I can understand why he may have struggled with a law that called for such segments to be opened. I’m not sure the government lawyers had a good understanding of what was on the tapes, by the way. I’ve never was in a position to ask about that, that is, “do you know actually what is at stake here.?”. By the time Kutler filed his lawsuit, most of the people who had listened to the tapes for the longest time had left the Nixon Project, although some, such as my former boss, still worked at NARA.

Curiously, when it came to reputations, as I pointed out in my essay, government lawyers seemed indifferent to the good name of my former boss, the National Archives’ Nixon tapes supervisor, and some of archivists who had worked for him. My boss, as had I and several of my archival colleagues, received many “outstanding” performance ratings from Archives’ management for his work with the Nixon tapes. The government lawyers never pointed to that. When it came to the Kutler litigation, the lawyers focused very heavily on issues of “privacy” related to Nixon. I don’t know why the lawyers did not better balance Nixon’s rights (yes, he had them) and reputation with those of the civil servants in their care. That they did not sent up an awful lot of red flags, needlessly so, in my view.

I noted in a comment on the New Nixon blog that my generation of archivists was “crushed.” Stanley Kutler said after the settlement of the Nixon tapes litigation (after Nixon’s death) that he believed Nixon was determined not to have the tapes released during his lifetime. But I can understand why Nixon acted as he did. It tells you something that in 2008, I am comfortable commenting on a blog associated with the Nixon Foundation. I'm not afraid of the people at the Nixon Foundation. But I still struggle mightily to understand the lawyers who handle issues related to the National Archives.

Bottom line, people who handle such issues have to take a long range view. In my view, the choices the government made in the Kutler litigation in 1992 created baggage that easily could have been avoided.


Jeremy Young - 7/28/2008

In answer to your question, I generally try to live my life according to the possibility that anything I put down electronically or on paper may be read by future historians. On paper, I think I'd be fine. Online, my extensive communication at various blogs might turn up some embarrassing nuggets. Still, if someone someday wanted to write a biography of me, I would assist that person in finding everything I had ever written, and would try to fill in the rest with an unfiltered narrative of my actions, not omitting the embarrassing ones.

For me, it's not a question of what would be palatable for me, it's a question of honesty and the the right of my biography's readers to know as much about me as possible. That's as a private citizen, and I'd say that right increases exponentially if one is a public figure. Certainly if one is a criminal like Nixon, one might not want to release one's records. But barring that, I honestly can't see what the difficulty is.

This is a fascinating essay, by the way. I was hoping you'd weigh in on this controversy.


Maarja Krusten - 7/27/2008

Considering the differing cultures at the Presidential Libraries, what is the best way to proceed with opening a former President’s records? Is the framework robust enough to do what the law requires?

I don’t actually accept the conventional framing of the Kutler litigation, which, I suspect for most historians, goes something like this: The Archives was supposed to open Nixon’s records, Nixon resisted disclosure, Professor Kutler sued, and the good guy won. That may provide a comforting framework for historians but the situation actually seems much for complicated to me.

Nixon was being asked to accept something his predecessors had not. The requirement to give priority to releasing abuse of governmental power material undoubtedly was galling to him. As Professor Clement Vose noted in an article in 1983, archivists at donor-restricted Presidential Libraries customarily set aside the most contentious materials until emotions cooled. The Nixon records act reversed this long standing convention at the Presidential Libraries. To accomplish that, the law required a number of factors to align differently than turned out to be the case. Historians fit in the picture here, as well.

In Nixon v. Freeman (670 F.2d 364-365 (D.C. Cir. 1982), Nixon’s attorneys looked backwards, asking that Nixon “be treated the same as other ex-Presidents.” They referred to past Presidents’ handling of donor restrictions. NARA was charged in the PRMPA with moving forwards, Nixon’s lawyers often looked to the past. Notes in a hearing record of a meeting that Nixon’s attorneys had in 1985 at the Department of Justice (DOJ) showed this. Nixon’s lawyers discussed with DOJ how the Kennedy Presidential Library supposed was releasing “the most favorable” information from records it held.

The lawyers reportedly discussed with DOJ the possibility of a Nixon “veto” over tape releases. The New York Times provided a small glimpse into the backroom bargaining on December 2, 1986, when it described demands by Nixon’s attorney for a “selective veto until 1999” over National Archives’ tapes releases.

The Department of Justice then tried to force NARA to accept without discretion privilege claims against disclosure, only to be stopped by a court decision (Public Citizen v. Burke, 655 F. Supp. 318 (DDC 1987)).

All of this occurred a few years before Kutler filed his lawsuit. No historians have examined why it was difficult for Nixon to accept a new law and what the new law required of the National Archives, a subordinate agency within the executive branch. It seems easier to paint Nixon as the villain and Kutler as the hero. I happen to understand why Kutler filed his lawsuit. But the picture is much more complicated than meets the eye.

Most tellingly, no historian ever has answered my question, “If a law required the records of your career to be thrown open during your lifetime, what would make that difficult for you? What would make it palatable?”

It’s not an easy question and no one has stepped up to answer it. But until NARA’s customers are willing to take a really hard and realistic look at this issue, other archivists may go through what my generation of archivists did. The weakest links here are not necessarily former Presidents (whom the political process does nothing to prepare for throwing open their records). Or even the government lawyers. Historians, too, are far weaker links in the process than they could be.


Maarja Krusten - 7/27/2008

In Kutler v. Wilson, there were three parties to the litigation: Stanley Kutler, represented by Public Citizen, as the plaintiff. The U.S. Archivist and NARA as defendants. And Richard Nixon as Intervenor. Mr. Nixon’s attorney was representing his interests. DOJ, assisted by NARA’s lawyers, was representing the U.S. Archivist and the National Archives as a corporate entity.

The records in the Kutler case were not sealed. In fact, from my reading of Seymour Hersh’s article 1992 article in the New Yorker about the Kutler litigation, it appears he studied the deposition testimony of several witnesses. Since this was deposition testimony, there was greater latitude in questioning and areas covered than during a trial in a courtroom.

In the extract below, Nixon’s lawyer discussed gossip about a NARA archivist. He seemed to know about the gossip although the incident under discussion occurred within NARA. He appeared to be trying to elicit negative information to later use in arguments that NARA’s approach to its archival work was flawed. Nixon’s lawyers argued in pleadings that the tapes should not be released because of what NARA had done with them during its processing.

DOJ argued that NARA was not ready to release the tapes. Witnesses such as I, however, confirmed a paper trail that indicated NARA had completed work with the tapes in 1987 and at one time had planned to start releasing the tapes. (See a very, very detailed discussion of this paper trail at
http://hnn.us/readcomment.php?id=125463&;bheaders=1#125463

As you read the extracts below, assess who among the lawyers present shows the most interest in protecting the NARA archivist under discussion.

I only read the transcripts of the testimony of the other witnesses after I myself had testified. I did not know about the passages extracted below during my own testimony in September 1992. I was the last witness to testify in the Kutler case. I could have offered rebuttal testimony, stating that while the earlier witness undoubtedly testified to what he or she had been told by someone, the archivist in question had told me at the time he or she was not the source of the comment published in the NYT. And that despite the gossip, the archivist was unlikely to have been the source since he or she was not an officially assigned NARA press contact in the research room that day. However, none of the lawyers asked me about it. As far as I can tell, the witness below was the only questioned about the gossip.

OK, here’s the passage. Think about the three lawyers and about the fact that NARA was the defendant.

Nixon’s attorney suddenly asked a National Archives’ employee (not me) about an article that had appeared in the New York Times during the 1980s. The article described the release of some historical Nixon White House files by NARA’s Nixon Project. The article was not introduced as an exhibit. Nixon’s attorney simply asked the question about it -- seemingly out of the blue. Watch how the attorney for the Department of Justice acts and how Stanley Kutler’s lawyer acts. DOJ is representing the National Archives.

Who is looking out for the interests of the Archives’ official alleged to have made the comment?

Nixon’s attorney asks the NARA witness, “Do you recall an occasion on which around the time of a release of certain materials for public access by the Archives, the New York Times printed an article which quoted an unidentified archivist as saying something to the effect of that the Archives intended to rattle Mr. Nixon's cage?”

Plaintiff Stanley Kutler’s attorney, a member of the Public Citizen Litigation Group, interjects, “I object, lack of foundation.”

The NARA witness responds, “I was not there when this supposed comment was made. I was told this comment was made by a specific Archives staff member.”

Further questioning from Nixon’s attorney elicits the name of a person who might have made the comment. Asked by Nixon’s attorney, “Who told you the comment was made?” The witness responds, “I can't remember.” The exchange does not establish who told the witness that a particular archivist was thought to have made the comment published in the NYT.

When Nixon’s attorney then asks, “And what specific staff member was the comment attributed to?” the DOJ attorney representing NARA does not object. The DOJ attorney simply tells the Archives’ witness, “You can answer.”

Kutler’s attorney interjects to ask, “do you have this article to provide a context for this?” Nixon’s attorney replies that he does not have it with him.

Nixon’s attorney adds “ . . if you feel it’s necessary, I can certainly provide you with a copy of the article for your own information—“

Kutler’s attorney replies, “I think you should. I mean, there’s absolutely no context for this line of questioning.”

The DOJ attorney representing NARA, who has said nothing about the article up to now and who voiced no earlier objections during this line of question, now adds (finally!), “I think I would have the same objection.”

Nixon’s attorney replies, “I don’t think it matters.” The questioning resumes with no further objections from DOJ.

Finally, Professor Kutler’s attorney (Public Citizen) has had enough, saying to Nixon’s attorney,

“I really object. The fact's not in evidence. I have absolutely no idea now what [the witness] saying is consistent with [the Archives’ official’s] character, so I don't know what -- I just have absolutely no idea what we're talking about since I don't know this context of the statement that you two seem to know about and the rest of us do not.”

Mr. Nixon’s attorney replies: “Well, I think that it may not necessarily be true that the rest of us do not know the context.”


Maarja Krusten - 7/27/2008

I didn't think to insert many links in my article so I am adding some by comment here.

Readers interested in learning more about Fox News reporter and Mitchell biographer James Rosen’s experiences as a college intern at NARA’s Nixon Project in 1987 and 1988 may read his account at
http://thenewnixon.org/2008/07/03/the-strong-man-visits-yorba-linda/

The most vivid images and most detailed account are in the posting Rosen adds below his original essay at 10:25 a.m. on July 11, 2008 in response to a query from me.

As I’ve noted on the New Nixon site, I do not take sides among the historians who write about Nixon. Rosen’s biography of Mitchell, although written by a journalist rather than an academic historian, certainly is worth reading.

So, too, is Bud Krogh’s 2007 book, Integrity, which details his experiences in the Nixon White House and with the "Plumbers" unit. I read with interest his thoughts on what went wrong and generally on issues raised in the Eisenhower era Code of Ethics for Government Employees. For Mr. Krogh's website, see
http://www.budkrogh.com/
and
for the 1958 code of ethics for feds, see
http://law.justia.com/us/cfr/title39/39-1.0.2.15.1.2.2.3.2.html

John Taylor of the Nixon Foundation was kind enough to link to my article at the New Nixon site. For that, I thank him!

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