[Salon] USA Today: Presidential Records Act is a bipartisan scam to hide White House mischief

[Jim Bovard <jbovard@his.com>]

https://www.usatoday.com/story/opinion/2022/02/20/bush-obama-trump-all-use-presidential-record-act-hide-history/6803334001/

USA TODAY, February 20, 2022
The contorted Presidential Records Act is a bipartisan scam to hide White House mischief

by James Bovard

The closing scene of the 1981 movie “Indiana Jones and the Raiders of the Lost Ark” depicts the newly-discovered Biblical Ark of the Covenant being put in a crate, stamped “top secret,” and then carted down the aisles of an endless government warehouse where it would presumably be forgotten and lost forever. Unfortunately, that scene from the first Indiana Jones movie exemplifies what happens to the papers of former U.S. presidents – despite Americans’ right to know how their rulers have wielded power.

The Presidential Records Act is in the news because former President Donald Trump allegedly violated that law by taking 15 boxes of official papers with him to Florida when he left the White House early last year. The boxes have been returned to Washington and Trump issued a statement denouncing the hubbub as “fake news.” Lawsuits may follow. Trump previously made headlines by brazenly tearing up official documents which he was legally obliged to preserve.
Loopholes to real record collection

“The Presidential Records Act is critical to our democracy, in which the government is held accountable by the people,” Archivist of the United States David S. Ferriero declared earlier this month. However, both the law and the accountability have become a façade.

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The Presidential Records Act of 1978 was enacted after former President Richard Nixon tried to claim that his secret Oval Office tapes and other records were his personal property. The 1978 law declared that “the United States shall reserve and retain complete ownership, possession, and control of presidential records.” But this law has more loopholes than a congressional ethics reform bill.

Many folks remember that Nixon sought to keep control of the secret tapes but few know that he fought ferocious legal battles to control 42 million pages of documents from his presidency. Historian Bruce Montgomery noted in a 1993 American Archivist article that Nixon’s lawsuits against the National Archives “managed to block releasing the majority of his White House records.” Suppressing those records assured that Nixon had a better reputation than he deserved when he died the following year.

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The Nixon Library did not release the final batch of his secret tapes until 2013 – 39 years after Nixon was driven from office – and continued withholding tapes purportedly with national security concerns. The Lyndon B. Johnson Library was even more dilatory, not releasing the final batch of his secret tapes of presidential conversations until 2016 – 43 years after he left office.

Shortly after the 9/11 attacks, President George W. Bush issued an executive order that “effectively rewrote the Presidential Records Act, converting it from a measure guaranteeing public access to one that blocks it,” as law professor Jonathan Turley noted. Although it was partially reversed years later, Bush’s edict required historians and others to prove “a demonstrated, specific need” for documents to overcome any assertion of privilege, however tenuous, by a former president.

Under Bush’s edict, vice presidents, former presidents, or their designated representatives, could block public release of records in perpetuity. The current president also gained veto power over any release of documents from former presidents, thus permitting each new president to blockade history.
History languishing in a warehouse

President Barack Obama partially reversed Bush’s order in 2009 but retained plenty of veto powers for himself over what Americans could learn. As Politico reported, Obama White House lawyers repeatedly invoked procedures to “delay the release of thousands of pages of records from President Bill Clinton’s White House.” Eventually, Congress passed a law in 2014 to curb White House prerogatives, but the system remains rigged in favor of secrecy.

At the end of the Obama administration, 30 million pages of documents from his presidency were shipped to a vast empty furniture store near Chicago (Shades of “Indiana Jones”!).

The Obama Foundation, a private nonprofit organization, will control the official records of his time in office, rather than the National Archives and Records Administration, which administers all other presidential libraries going back to Herbert Hoover. Rather than opening the paper files to the public and researchers, the Obama Foundation will eventually digitize the records. A National Archives press release noted that COVID-19 has delayed digitization efforts. Pulitzer Prize-winning historian David Garrow warned, “The absence of a true Obama presidential library will have the effect of discouraging serious and potentially critical research into the Obama presidency.”

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The de facto long-term secrecy of presidential papers subverts “that right of freely examining public characters and measures” which James Madison, the father of the Constitution, labeled in 1800 as “the only effectual guardian of every other right.”  Instead of safeguarding self-government, the Presidential Records Act has become a propellant for windfall profits for ex-politicians.
Presidential memoirs pure propaganda

Former presidents should forfeit any right to confidentiality of their papers on the day they sign a contract to write a memoir.

Former presidents Bill Clinton received a $15 million advance for his memoir; George W. Bush received a $10 million advance; and Barack Obama and his wife Michelle received $60 million for a two-book memoir deal. Presidents can practically use any information they please to write their memoirs with expedited clearance of classified information.  By keeping the vast majority of their records secret, former presidents prevent fact checkers from exposing their fabrications and abuses of power. Any presidential memoir that is published while the vast majority of records of that president remain secret should be treated as self-serving propaganda.

Presidents are hired hands, not quasi-deities with a divine right to keep endless secrets from citizens they supposedly serve.

Even Biden’s director of National Intelligence, Avril Haines, recently lamented that the current excessive secrecy of federal documents “erodes the basic trust that our citizens have in their government.”

The Presidential Records Act has become a bipartisan scam to prevent Americans from recognizing how badly they have been misgoverned. Instead of a byzantine system that perpetuates cover-ups on shabby pretexts, our democracy needs blanket disclosures of tens of millions of documents which our rulers have no good excuse to continue shrouding.

James Bovard, author of “Attention Deficit Democracy,” is a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JimBovard
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