Why Aren't All the Nixon Tapes Now Available?





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

A recent article in the New York Times about the Watergate transcripts focused a spotlight on Richard Nixon’s White House tapes.  Prosecutors used 12-1/2 hours of the 3,700 hours of recordings in the Watergate trials.  Since 1977, when I helped move them out of the White House, all the tapes have been in the custody of the National Archives and Records Administration (NARA).  

Efforts to open the tapes have zigged and zagged over six presidential administrations.  George H. W. Bush was a subject of or participant in a small number of conversations on Nixon’s tapes.  During the elder Bush’s administration, the Department of Justice argued that no tapes were ready for release.  After the settlement of a lawsuit brought by historian Stanley Kutler, the government opened some 200 hours of Watergate conversations during the Clinton administration.  

Understandably, the thought of revelations from the tapes dismayed Nixon and his aides.  Nixon had expected that he would retain ownership of the tapes when he left office in 1974.  A 1974 law instead placed them in government custody.  Jonathan Aitken quoted Nixon as then writing in his diary that he must "live through the agony of the balance of the tapes whatever they are; fight over the papers.”  John Ehrlichman wrote in 1986 that Henry Kissinger reportedly told him, “You know you and I are going to look pretty stupid when those tapes are all out.”

But one Nixon associate, H. R. Haldeman, took a different view from the rest.  He wrote in 1979 that “while there is some very undesirable material in [the] remaining thousands of hours, I know that there is also some very great material. And I feel sure the ‘good’ outweighs the ‘bad.’ Thus Nixon has everything to gain and little more to lose from release of additional tapes, even on a random basis.” 

In 2009, historians can study tapes from 1971 and 1972 but have yet to gain access to any non-Watergate conversations from 1973.  My old boss, Frederick J. Graboske, former NARA Supervisory Archivist, recently wrote that "My team had the tapes ready for release in 1988."  Subpoenaed records support his story.  Starting in 1982, Assistant Archivist for Presidential Libraries James E. O’Neill and another manager sent a series of letters to Nixon’s attorneys.  They informed Nixon that Graboske's team had “completed final review” of successive segments of Nixon's tapes.  A NARA work plan reported that “final archival review and technical processing of the White House tapes will be completed during the second quarter of FY 87.”  NARA's officials handed out information sheets to researchers, stating that “archival processing” of the tapes “will be completed in 1987.”

In 1989, Bruce Oudes stated in From: The President  that “the Archives has . . . advised Nixon that it plans to begin the systematic release of the balance of his White House tapes in 1991, the twentieth anniversary of the installation of the White House taping system.”  Haldeman noted in 1988 that “The National Archives’ processing of the tapes is virtually complete, and the agency is nearly ready to go forward with a schedule of phased openings.”

So, why are scholars still waiting for disclosures? 

Historian Joan Hoff wrote in 1988 that “the Archives has basically completed processing the tapes.”  She explained that lawyers for Nixon complained that “the review process agreed to in the 1979 ‘negotiated agreement’ has not proven feasible with respect to these controversial secret tapings and that, therefore, they should be reviewed again using stricter privacy standards.”  Stephen Ambrose also wrote in his Nixon biography that the tapes “although processed by the Archives . . . which is ready to release them, also remain under seal, as a result of legal objections by Nixon’s lawyers.” 

Dr. O'Neill died in 1987.  John Fawcett succeeded him as Presidential Libraries chief, a job he held until retiring in 1994.  On December 4, 1987, Don W. Wilson became Archivist of the United States.  George H. W. Bush took office as President in 1989.  The elder Bush had been ambassador to the United Nations and chair of the Republican National Committee during the Nixon administration.  After 1989, NARA stopped telling the public about imminent release of all of Nixon's tapes. 

In 1992, Dr. Kutler sued NARA for access to Watergate tapes.  Nixon entered the lawsuit as an Intervener.  The Nixon records statute reversed practices at older presidential libraries, which generally opened the least controversial materials first.  Graboske testified that “Mr. Fawcett indicated that he thought that the [precedents] of the Kennedy tapes not having been released for more than twenty years after Kennedy’s assassination and the Johnson Deed of Gift which specify that the Johnson tapes were not to be released for fifty years after Johnson’s death were applicable [precedents] to the release of the Nixon tapes."

Instead of admitting to completion of final review and explaining that NARA was considering questions raised by Nixon, Justice Department lawyers claimed in 1992 that archivists only had performed preliminary screening.  This saddled the nation's record keeper with a position for which there was no supporting documentation.  After Nixon died in 1994, Dr. Kutler, NARA and representatives of Nixon's estate entered settlement negotiations.  In 1996, they concluded an agreement under which NARA agreed to re-review all 3,700 hours of tapes.  

Far from putting up roadblocks, Nixon Foundation director John Taylor has been an advocate for disclosure in recent years.  (Taylor recently announced his departure from the Foundation.)  Where he once referred to Graboske's team as "junior prosecutors," Taylor now describes Graboske as "respected."  Instead of calling us the "Hardy Boys," as he did in 1998, Taylor recently wrote that "Fred Graboske and his team of tape reviewers at the Nixon Project at the National Archives deserve great credit for identifying tape segments that would help as well as hurt RN." 

The Nixon family's representatives have the right to review what NARA proposes to release.  Taylor posted a comment recently about "thirteen years without a formal objection and with literally a handful of consultative comments, very early on.  As for the written records, we haven’t looked over NARA’s shoulders at all.  We also deeded all the third-party political, without reviewing it beforehand.” 

The settlement agreement stated that after opening Watergate and Cabinet meeting tapes, NARA would release the disclosable portions of the remaining tapes in five chronological segments.  "Processing of the tapes in each segment is projected to take from about fifteen (15) to about twenty three (23) months."  NARA initially opened material quickly but disclosures slowed to a crawl after 2003.   

Trouble flared when George W. Bush ran for President in 2000.  James Warren reported in the Chicago Tribune:  

The National Archives confirmed late Thursday that James Cicconi, an attorney who represents [the elder] Bush, his foundation and library in dealings with the archives, requested, in a Wednesday conversation with Sharon Fawcett, the deputy assistant archivist for presidential libraries, that the long-planned release be delayed or postponed. 

In addition, sources indicated that what was perceived internally as pressure from Cicconi preceded the call to Fawcett.  It led to an apparently frenetic re-examination of hours of tapes last week, in which staffers were made to again listen to some of more than 200 conversations in which Bush, then U.S. ambassador to the United Nations, was either involved or mentioned. 

The presidential campaign of Texas Gov. George W. Bush earlier conceded that it had voiced concern to Cicconi over the release’s timing, suggesting it might be a way for the White House to assist the campaign of Vice President Al Gore.

Importantly, Nixon's family did not object to the opening.  U.S. Archivist John Carlin proceeded with the October 2000 release.  A source within NARA alleged that an unidentified outsider stated, "We'll get you for this."  I cannot ascertain whether or not the quote is accurate. 

NARA faced new turmoil in 2003 (a year which also saw the theft of sensitive documents by President Clinton National Security Advisor “Sandy” Berger).  After releasing some Nixon tapes in February 2002, NARA announced plans to open additional tape segments at the end of 2003.  In December, White House officials asked Carlin to resign.   He had started his term in 1995 and had expected to serve the customary 10 years.  Carlin wrote a letter of resignation on December 19, 2003 (sources claimed portions were "essentially dictated” to him).  The law requires the President to inform the Congress of reasons for removing the Archivist but President Bush offered no explanation. 

After a year-long delay, President Bush’s nominee, Allen Weinsten, took charge of NARA in February 2005.  He skillfully oversaw the merger of NARA’s Nixon Project with the private Nixon Library to form a federal Presidential Library in 2007.  Dr. Weinstein stepped down on December 19, 2008, due to health issues.   

NARA has released little from the Nixon tapes since 2003.  After a token release (three tapes) in 2007, NARA opened 198 hours of tapes in December 2008.  At that point, five years had passed since the last substantive chronological release.  That is more than twice the maximum time projected between releases in the settlement agreement.  

After 2003, it should have taken 3 to 3-1/2 years to re-screen the remaining chronological segments.  I had expected NARA to finish tape releases by the end of 2007 (or by the mid- to late 1990s, had it proceeded with plans formulated by officials in the 1980s).  Instead, 32 years after I packed up tape reels in the White House, historians still await access to conversations from 1973.

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    Maarja Krusten - 2/17/2009

    My thanks to the bloggers who have mentioned my article. One referred to the tapes being open "in their entirety." However, the way I phrase it is "the release of the disclosable portions of the tapes." Here are the categories for which we screened the Nixon tapes and documents, as copied off of a publicly available NARA withdrawal sheet ((GSA Form 7279, 10/79):

    A. Release would violate a Federal statute.
    B. National security classified information.
    C. Pending or approved claim that release would violate an individuals's rights.
    D. Release would constitute a clearly unwarranted invasion of privacy or a libel of a living person.
    E. Release would disclose trade secrets or confidential commercial or financial information.
    F. Release would disclose investigatory information compiled for law enforcement purposes.
    G. Withdrawn and return[ed] private and personal material.
    H. Withdrawn and returned non-historical material.

    A-F are typical of restrictions NARA applies to archival records and are based on requirements in various federal statutes and regulations. G and H were unique to the Nixon records, which were seized in place. The handing down of the Supreme Court's decision in Nixon v. Administrator of General Services in 1977 led NARA to take intellectual and physical control of tapes and textual files.

    Since they didn't come to NARA through the separation and distinctions that undergird a process of records management, our first decision in listening to taped conversations or reading documents was (1) does the information relate to governmental actions or (2) is it purely personal. If the latter, we cut it out for return to Nixon as the proprietary rights lay with him (later his estate) rather than with the government. If the former, we decided if A-F applied or if it was disclosable.

    It's the same as if you worked for a state entity which operated a records management program and which the law required to be responsive to open records requests. Your work-related records would be official but any personal material you kept in your desk or in your computer (information about a doctor's visit, family finances, e-mail messages you received from friends and family about non-work related matters, etc.) wouldn't be.


    Maarja Krusten - 2/16/2009

    Many thanks, Larry, for your very kind words. They mean all the more to me because of your job background! John Taylor's response at The New Nixon is at
    http://thenewnixon.org/2009/02/15/awaiting-the-last-nixon-tapes/comment-page-1/#comment-22054

    See what he says there in the linked item as well as in his response today to the comment I posted there this morning, In my comment there, I provided some additional context on a few of the issues raised in this essay.

    Thanks again for taking the time to read my essay and for posting such a nice response.

    Best,

    Maarja


    Larry DeWitt - 2/16/2009

    Maarja,

    This is a terrific article. You remind us of vital point: the wellspring of almost all our knowledge of history is the existence and the accessibility of archives of historical materials. The story of the Nixon tapes is a fascinating (and discouraging) one; and one that we need to constantly be reminded of.

    Good job.

    Larry