Bruce Montgomery: Allen Weinstein's Great Challenge as Archivist of the United States

]Bruce Montgomery is an associate professor and faculty director of archives at the University of Colorado. His writing on presidential papers has appeared in Presidential Studies Quarterly and the American Archivist.]

When Allen Weinstein took the oath of office as the ninth archivist of the United States last month, he seemed to allude to the controversy that preceded his appointment and to hint -- perhaps unintentionally -- at the impossible position that any chief archivist now faces.

"In April," he said in his brief remarks, "we will celebrate the 20th anniversary of National Archives independence. Under national archivists during both Republican and Democratic presidencies, the tradition of non-political and highest professional attention to the work involved has been the norm. It will continue to be so on my watch."

This may be wishful thinking from a historian who is certainly aware that recent history says otherwise. Over the past two decades, every president (including the current one) has eroded the independence that Weinstein extolled, particularly in regard to the ownership of presidential papers. In 1978, a bipartisan Congress explicitly settled the matter in favor of the public when it passed the Presidential Records Act, providing for the timely release of all but the most sensitive presidential materials. In 2005, it will take another act of Congress to reverse the damage that has been done....

Before passage of that law, presidents treated presidential material as private property, resulting in significant losses to the historical record. This practice was an oddity noted as early as 1835 by Alexis de Tocqueville in "Democracy in America." He wrote: "In America, no one bothers about what was done before his time. No method is adopted; no archives are formed; no documents are brought together, even when it would be easy to do so. When by chance someone has taken them, he is casual about preserving them."

Indeed, from George Washington to Franklin D. Roosevelt, presidents and their heirs treated their papers as they saw fit, bequeathing, selling, destroying, donating or depositing them in libraries or historical societies. Then FDR created an entirely new American institution -- the presidential library, built with private funds and operated at government expense. While dramatically increasing the preservation of presidential materials, it did nothing to alter the tradition of private ownership or the arbitrary discretion of ex-presidents to restrict access to the documents of their administrations. [This changed in the late 1970s when Congress passed a law to govern the control of presidential papers after Nixon claimed ownership over his administration's papers.]...

The first attempt to nullify the act came in 1985, when Reagan officials directed the U.S. archivist to bow to any claims of executive privilege by Nixon -- in violation of the 1974 law that allowed the Nixon materials to be seized and made available at the earliest reasonable date.

With this order, Reagan officials aimed to lay the foundation for Reagan and his presidential successors to exercise maximum discretion over their own presidential records. The directive, however, was overturned by the U.S. Court of Appeals for the D.C. Circuit on grounds that the U.S. archivist was not "constitutionally compelled" to obey a former president's claim of privilege.

The next major attempt to erode the act came in the waning hours of the George H.W. Bush presidency. Close to midnight, on Jan. 19, 1993, then-U.S. archivist Don W. Wilson signed an agreement giving the elder Bush exclusive control over the computerized records of his presidency. According to this agreement, Bush could even order the U.S. archivist to destroy computer tapes and hard drives, the kind of material that had proved critical to the Tower Commission's investigation of the Iran-contra affair during the second Reagan administration. Following this subversion of the PRA, Wilson was appointed director of the George Bush Center at Texas A&M University.

The incoming Clinton administration adopted the Bush-Wilson agreement for the protection of its own historical legacy. In February 1995, however, a federal judge in Washington voided the agreement as a violation of the PRA, ruling again in favor of the people's right to know....

[On Nov. 1, 2001, President George W. Bush issued an executive order (E.O. 13233), which erected new barriers to obtaining access to former presidents' White House materials.] What the father failed to obtain with the overturned Bush-Wilson agreement, his son has won by presidential decree. The order allows former presidents and vice presidents, as well as their designated representatives or surviving families and heirs, to withhold materials by asserting executive privilege -- no matter how arbitrary the claim.

As a result, the order strips the U.S. archivist of his affirmative responsibilities under the PRA to carry out the systematic and timely release of presidential records to the public. The recent release of 9,700 pages of records involving communications with advisers in the first Bush administration suggests compliance with the PRA, except that the materials were first screened (under E.O. 13233) by representatives of former President Bush and incumbent President Bush, who chose -- this time -- not to assert any privilege claims....