Presidential materials: Politics and the presidential records act

American Archivist

Volumn 66, Issue 1, 2003, Pages 102-138

  Montgomery, Bruce P ^a  

^a NONE

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EID: 70450055697     PISSN: 03609081     EISSN: None     Source Type: Journal    
DOI: 10.17723/aarc.66.1.8v8063806411716t     Document Type: Article

References (65)

1. Carl Bretscher, Presidential Records Act: The President and Judicial Review Under the Records Acts, 60 Geo. Wash. L. Rev. 1477, 1481 (June 1992).
2. See Herbert R. Collins and David B. Weaver, eds., Wills of U.S. Presidents (New York: Communications Channels, 1976), 24, 151;
3. Frank L. Schick, Renee Chick, and Mark Carroll, Records of the Presidency: Presidential Papers and Libraries from Washington to Reagan (Phoenix, Ariz.: Oryx Press, 1989), 39, 45, 53, 56, 66-68, 77, 82, 93, 101;
4. Bruce P. Montgomery, "Nixon's Legal Legacy: White House Papers and the Constitution," American Archivist 56 (Fall 1993): 591.
5. See also Carl McGowan, Presidents and Their Papers, 68 Minn. L. Rev. 409 (1983).
6. See Norman Dorsen and John H. F. Shattuck, Executive Privilege, the Congress and the Courts, 35 Ohio St. L. J 1, 13-16 (1974);
7. and Bretscher, Presidential Records Act, 1482.
8. See United States v. Nixon, 418 U.S. 683 (1974)
9. and Christopher Walter, Legitimacy: The Sacrificial Lamb at the Altar of Executive Privilege, 78 Kentucky L. Jour. 817 (1989-90): 818-19. United States v. Nixon originated when Special Watergate Prosecutor Leon Jaworski ordered President Nixon to turn over an additional sixty-four tapes. When Nixon refused, Jaworski brought suit in district court, which ruled against the president. Nixon then appealed the decision, and on 24 July 1974, the Supreme Court by a unanimous 8-to-0 vote, ordered the president to turn over the tapes and documents demanded by the special Watergate prosecutor.
10. Walter, Legitimacy, 818.
11. Patricia L. Spencer, Nixon v. Administrator of General Services, 11 Akron L. Rev. 378-79 (Fall 1977).
12. Alfred Hill, Testimonial Privilege and Fair Trial, 80 Columb. L. Rev. 1173, 1179 (October 1980).
13. Text of the agreement between Richard Nixon and Arthur F. Sampson reprinted in Congressional Record, 93rd Cong., 2d sess., 1974, 120, pt. 25:33965.
14. Presidential Recordings and Materials Preservation Act, U.S. Code, vol. 44, secs. 2107 note 3315-3324 (1974).
15. Nixon v. Administrator of General Services, 433 U.S. 425, 429, 441 (1977).
16. U.S. House, Presidential Records Act of 1978, 95th Cong., 2d sess. 2 (1978), H. Rep. 95-1487. Presidential records include books, papers, documents, films, maps, sound recordings, computer files, and other materials that are created or received by the president and his aides. This definition excludes personal records unrelated to the president's official duties and official agency records available to the public through the Freedom of Information Act.
17. Presidential Records Act of 1978, U.S. Code, vol. 44, secs. 2201-7 (1978).
18. and Testimony of Scott L. Nelson before Subcommittee on Government Efficiency, Financial Management and Intergovernmental Affairs of the House Committee on Government Reform, Hearing on Oversight of Presidential Records Act, 6 November 2001, Public Citizen Web site at (1 March 2003).
19. Seymour Hersh, "A Reporter at Large: Nixon's Last Cover-up" New Yorker, 14 December 1992, 83.
20. U.S. House Subcommittee on Government Information, Justice, and Agriculture of the Committee on Government Operations, Statement on Behalf of the Office of General Council to the Clerk of the House of Representatives, 99th Cong., 2nd sess. (29 April 1986), 3.
21. Statement on Behalf of the Office of General Council, 4.
22. Testimony of Eric R. Glitzenstein before the U.S. House Subcommittee on Government Information, Justice, and Agriculture of the Committee on Government Operations, 99th Cong., 2nd sess. (29 April 1986).
23. Stanley L. Kutler, "Presidential Materials: Nixon's Ghost at Justice," Wall Street Journal, 1 April 1986.
24. Kutler, "Presidential Materials."
25. See Public Citizen v. Burke, 843 F. 2d 1473, 1479 (D.C. Cir. 1988).
26. Page P. Miller, "Insuring the Preservation of Electronic Records," Chronicle of Higher Education, 3 February 1993, A44.
27. See Armstrong v. Bush, 924 F. 2d 282, 288 (U.S. App. D.C., 1991).
28. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 149 (1980).
29. See also Comments: Congressional Power vis a vis the President and Presidential Papers, 32 Duq. L. Rev. 773, 794 (1994).
30. See Bretscher for interpretation of the D.C. Circuit Court's decision, Presidential Records Act, 1497-1501.
31. John O'Neil, "Judge Tells White House to Save Computer Tapes," New York Times, 7 January 1993
32. and Michael York, "Court Bars Destruction of Records," Washington Post, 7 January 1993.
33. York, "Court Bars Destruction of Records."
34. See George Lardner, Jr., "Judge Warns White House About Erasing Computers," Washington Post, 15 January 1993;
35. "White House Ordered Not to Erase Discs," Los Angeles Times, 15 January 1993;
36. and Stephan Labaton, "Judge Sees Plan by White House to Defy Orders and Purge Data," New York Times, 15 January 1993.
37. Labaton, "Court Says Bush Administration Can Erase Files if Copies Are Kept."
38. Public Citizen, American Historical Association v. National Archives and Records Administration, Press Release, 14 December 1994.
39. American Historical Association v. Peterson, 876 F. Supp. 1300, 1320 (D.D.C. 1195).
40. Armstrong I refers to Armstrong v. Bush, 924 F. 2d (U.S. App. D.C., 1991)
41. and Armstrong II refers to Armstrong v. Executive Office of the President, 303 U.S. 1 F. 3d (D.C. Cir. 1993).
42. Armstrong v. Executive Office of the President, 1293-94.
43. See also Nixon v. United States, 978 F 2d 1269 (C.A.D.C. 1992).
44. See Testimony of Scott L. Nelson, Public Citizen Web site.
45. See the editorial "Cheating History," New York Times, 15 November 2001;
46. Emily Eakin, "Presidential Papers as Smoking Guns," New York Times, 13 April 2001;
47. Ben Gose and Dan Curry, "Historians Attack Bush Executive Order on Presidential Records," Chronicle of Higher Education, 16 November 2001, A27;
48. Francine Kiefer, "A Fight Brews Over Ex-President's Papers," Christian Science Monitor, 6 November 2001;
49. Testimony of Scott L. Nelson, Public Citizen Web site.
50. Testimony of Scott L. Nelson, Public Citizen Web site.
51. Bush Executive Order No. 13,233 may be seen at the Public Citizen Litigation Group Web site at (1 March 2003).
52. Bush Executive Order No. 13,233, sec. 3 (d) (i).
53. Bush Executive Order No. 13,233, sec. 10.
54. Gose and Curry, "Historians Attack Bush Executive Order on Presidential Records."
55. Internet posting from Holly Hodges, National Coordinating Committee for the Promotion of History, Update, Vol. 7, no. 45, 1 November 2001.
56. Eakin, "Presidential Papers as Smoking Guns." Caro related a personal anecdote concerning his research in the Johnson papers to illustrate his point. If he had not had the freedom to rummage through the Johnson presidential papers one day in 1980, he never would have found a faded telegram containing the words: "Hope checks arrived in due form and on time." The telegram proved to be the smoking gun. It revealed the mystery surrounding a critical episode in Johnson's career, when in the period of only one month, he went from being largely an inconsequential junior congressman to a politician besieged by calls from ranking Democrats. In following the paper trail, Caro concluded that the secret to Johnson's sudden rise to power was his access to money in the form of campaign contributions from wealthy Texas oilmen. Caro would not have been able to make this discovery if the Bush order had been in effect, requiring a researcher to make detailed requests for specific information.
57. Linda Kulman, "Who Owns History? Historians and the Bush Administration Wrangle Over Access to Presidential Records," U.S. News & World Report, 29 April 2002, 51.
58. See Carl M. Cannon, "Nixon's Revenge," National Journal 34, no. 2 (12 January 2002): 95.
59. Public Citizen, "Public Citizen Sues to Block Implementation of Executive Order on Presidential Records," Press Release, 28 November 2001.
60. Nixon v. Freeman, 670 F2d 346 (D.C. Cir.), cert. Denied, 459 U.S. 1035 (1982);
61. American Historical Association v. National Archives and Records Service, 10.
62. American Historical Association v. National Archives and Records Service.
63. Kulman, "Who Owns History?"
64. National Coordinating Committee for the Promotion of History, NCC Washington Update, vol. 8, no. 10, 15 March 2002.
65. See Alison Mitchell, "Cheney Rejects Broader Access to Terror Brief," New York Times, 20 May 2002.