More Homework: The Ghost of Richard Nixon

It's been busy over here, what with the semester hurtling into its final month, and papers piling up left and right. I managed to finish up two long-looming projects this past week, one of which I have absolutely nothing to say about, and another one which I thought I'd go ahead and post here in case there are any fellow enthusiasts of the long and sordid career of Richard Nixon.

The assignment was an open-ended essay requirement for Government Documents, and after spending some time examining the office of the presidency and a bit on presidential libraries, I thought I'd dive into the morass caused by Watergate and its continuing impact on public access to presidential records and arguments over executive reach. I must say that over the past eight years, the crimes of Orange County's stiffest politician have come to seem less and less outrageous, and more petty, almost quaint. Spying on perceived political enemies is a far cry from spying on the American public, breaking into office buildings less intrusive than torturing detainees and setting up CIA black sites. But the fascination remains, and one thing I was surprised to discover is how clearly the struggles over Nixon's documents helped set up future claims against the need for greater executive transparency.

At a mere five pages (double-spaced!), I found it hard to reach the depths and complexities of the issues raised, but I did my best within the established confines. As always, feel free to read, skim, discard as you see fit.


An Extended Chilling Effect: The Legacy of Richard Nixon and the Presidential Records Act

Presidential libraries may be viewed as special creations reflecting both the legacy of individual politicians and the American populace’s right to access executive information. Neither libraries nor museums, they more closely resemble dynamic archival collections, with political rhetoric supposedly shunned in favor of public sharing of political documents. One might also suggest presidential libraries serve more covert purposes – shaping public perception of specific presidents. G.H. Bennett has noted presidential libraries “illuminate, and to some extent obscure, the past” (Bennett, 2003). Such libraries, he continues, help form a “national consciousness” and foster “national identity,” and, like other state-sponsored monuments, represent a “self-aggrandizing national history” (ibid, 2003). One need not agree wholeheartedly with Bennett’s assessment to recognize that presidential libraries and documents housed within them represent a compromise between a president’s right to privacy and the public’s right to know. This compromise has been exemplified through the struggle to achieve public access to the records of President Richard Nixon, and the protracted history of the Richard Nixon Library. These struggles arose as a consequence of specific controversies, but the legal issues surrounding the Nixon papers have ramifications beyond that of Nixon’s materials being the “most widely scattered of any modern American president” (Bennett, 2003). Rather, the Nixon controversy has impacted subsequent presidencies and public access to their documents.

The actions of President Franklin D. Roosevelt and the 1955 Presidential Libraries Act helped bring about the desire for presidential papers to be preserved and deposited in one place. Prior to this, as Bruce Montgomery notes, “presidents had always treated their papers as private property,” with documents purged or left to heirs “who in turn sold them for a profit, destroyed them, or donated or sold them” (Montgomery, 2003). Yet even with the 1955 Act, Bennett argues, “presidents were under no more than a moral obligation to participate in the system,” and used their own discretion to decide whether or not to deposit papers into designated locations (Bennett, 2003). Presidential documents, then, were still viewed as private property, with the potential of becoming public through the generosity of the individual.

The Watergate scandal complicated matters. As the controversy unfolded, Nixon steadfastly argued for “an absolute and unreviewable privilege concerning all matters of his office” (Montgomery, 2003). This claim was dismissed by the Supreme Court, after a declaration limiting privilege to military or “sensitive national security secrets” (ibid, 2003). But the ramification for presidential documents came after Nixon’s resignation, following a depository agreement with the General Services Administration head, Arthur Sampson. This “Nixon-Sampson Agreement” gave Nixon complete control over documents created during his presidency. Steven Yuhan notes that in and of itself, this Agreement was “consistent with the generally accepted custom that presidential papers were the property of the President” (Yuhan, 2004). However, given the ongoing criminal investigation, and the fact that the Agreement gave Nixon authorization to destroy the White House tape recordings, this document stood as a politicized threat. Congress intervened, and the subsequent passing of the Presidential Recordings and Materials Preservation Act (PRMPA) dissolved the Nixon-Sampson Agreement, in effect seizing Nixon’s materials. This act was explicitly worded, intended for the Nixon Presidency only – the President identified by name, recording locations including San Clemente and Key West specified, and the time period between January 20, 1969 and August 9, 1974 highlighted (Archives.gov, 2009). In addition, the Act transferred “complete possession and control” of the documents to the United States Archivist and warned “none of the tape recordings or other materials referred to in section 101 shall be destroyed” (Archives.gov, 2009). Nixon’s subsequent legal fight was nullified in a 1977 Supreme Court decision, with Justice John Stevens declaring Nixon an “unreliable custodian”.

It may be surprising that it required an egregious action such as Nixon’s to force Congress to declare presidential records, in effect, public property. And it would be another year before any kind of governmental action addressed the larger issue of federal ownership over all Presidential records, not simply Nixon’s. The passage of the 1978 Presidential Records Act (PRA) expanded federal control in order to “prevent another legal crisis surrounding ownership of presidential records,” according to Montgomery (2003). A starting date of January 20, 1981 was established, with the stipulation that “public interest outweighed any embarrassment that might accompany the public release” of White House materials (Montgomery, 2003). Certain documents could be requested for restriction, but only for twelve years after leaving office and only under the agreement of the U.S. Archivist. Finally, the National Archives was directed to remain “independent of the General Services Administration (GSA) and insulated from partisan political influences,” by the passage of the National Archives and Records Administration Act (Yuhan, 2004).

Such directives seem straightforward, yet the process towards transparency was hampered by legal challenges. Montgomery notes that Nixon challenged PRMPA’s constitutionality, claiming it “violated the separation of powers and executive privilege” (Montgomery, 2003). After the signing into law of the PRA, the Reagan Administration attempted to override the Act on behalf of Nixon. Rather than attempt to regain control of his materials, Nixon sought to block access. The “Achilles heel” of the PRA, Montgomery concludes, was Congress’s concern at balancing executive privilege with public access – while perhaps necessary, such compromises had the unintended consequence of favoring executive privilege over public access (Montgomery, 2003). This partly explains the protracted release schedule of thousands of pages and hundreds of hours of Nixon Administration documents, a process that continues to the present day.

The consequences of Nixon’s actions may be felt both in the public’s lack of access to Nixon documents and in attempts by subsequent administrations to circumvent or override federal oversight and public ownership of official documents. Bruce Montgomery argues presidents have borrowed Nixon’s claims ever since. In addition to various Reagan-era actions, Montgomery points to more recent maneuvers by the George W. Bush Administration, specifically Executive Order 13233, issued in November of 2001. This order attempted to nullify the PRA by “allowing former presidents, vice presidents, and their heirs to assert independently based claims of executive privilege to control access to White House materials” – a directive nearly identical to that put forth by the Reagan Justice Department (Montgomery, 2002). There have been several attempts to revoke the order, including Rep. Henry Waxman’s 2007 bill H.R. 1255. Several historians testified on the “chilling effect” 13233 had upon the collections of presidential libraries - historian Robert Dallek noted, “It is understandable that every president and his heirs wants to put the best possible face on his administration, but an uncritical or limited reconstruction of its history does nothing to serve the long-term national interest” (Dallek, 2007). The order was eventually revoked in January 2009 by President Obama.

The Nixon Library itself has seen its holdings divided up into two geographically and politically distinct locations – the National Archives facility Nixon Library in College Park, Maryland (Presidential materials) and the Nixon Library in Yorba Linda, California (pre- and post-Presidential materials). The Yorba Linda location became a federal facility in 2007 after nearly twenty years as a private facility. Until the federal takeover, the Nixon Library had been viewed skeptically by historians, especially in light of a much-ridiculed Watergate exhibit (painting the controversy as a coup launched by Nixon enemies) and a prior announcement by director Hugh Hewitt that the library would “bar researchers deemed not ‘responsible,’” (Greenberg, 2005). In late 2008, 90,000 pages of materials and 198 hours of tapes were released by the Nixon Library during the transition towards becoming a National Archives institution (Goffard, 2008). Yet while this transfer of materials continues, certain historians warn the Yorba Linda facility is hardly alone in controlling public perception of presidential legacies. Quoting Stanley Katz, Greenberg recommends “external experts periodically evaluate” presidential library programs, and monitor the financial backing of such foundations.

The “chilling effect” of Nixon’s legacy noted by Robert Dallek continues to impact Nixon scholarship and public access to Nixon documents, while also raising larger questions about the fight between public and private demands, or the limits of executive privilege in the face of calls for greater transparency and accountability. Wherever one falls in the debate, it is likely that the very nature of presidential libraries –part museum exhibit, part archival treasure, part public property, part public relations body – will force such questions to remain in the public discourse for some time.


Sources

Archives.gov (2009). Presidential Recordings and Materials Preservation Act (PRMPA)
of 1974. Retrieved April 12, 2009 from
http://www.archives.gov/presidential-libraries/laws/1974-act.html
Bennett, G.H. (2003). ‘Goodbye Mr. President’: Presidential libraries and public history
in the USA. European Journal of American Culture, 22(1), 23-37.
Gofford, Christopher. (December 3, 2008). Nixon archives shed light on his campaign to
investigate enemies. Los Angeles Times. Retrieved April 13, 2009 from
http://articles.latimes.com/2008/dec/03/nation/na-nixon3
Greenberg, David. (March 15, 2005). Nixon library can’t be trusted not to play with his
words. Los Angeles Times. Retrieved April 13, 2009 from
http://articles.latimes.com/2005/mar/15/opinion/oe-greenberg15
Montgomery, Bruce P. (Spring/Summer 2003). Presidential materials: politics and the
Presidential Records Act. The American Archivist, 66, 102-138.
Montgomery, Bruce P. (December 2002). Nixon’s ghost haunts the Presidential Records
Act: the Reagan and George W. Bush administrations. Presidential Studies
Quarterly, 32(4), 789-810.
The Presidential Records Act Amendments of 2007 (H.R. 1255) A Review of Executive
Branch Implementation and Compliance, House Committee on Oversight and
Government Reform, 110th Cong., 1st Sess. (2007) (testimony of Robert Dallek).
Retrieved April 14, 2009 from
http://oversight.house.gov/documents/20070309102754-96022.pdf
Yuhan, Steven H. (2004). The imperial presidency strikes back: Executive Order
13,233, the National Archives, and the capture of presidential history.
New York University Law Review, 79(4), 1570-1604.