Broken Records

Lee White, April 2008

Like a political version of the film Groundhog Day, the related issues of transparency with regard to presidential records and presidential libraries keep resurfacing in Washington and on the campaign trail. As the Democratic presidential nomination fight has intensified, so have calls by Senator Barack Obama (D-Ill.) and others for Senator Hillary Clinton (D-N.Y.) and former president Bill Clinton to expedite the release of records from the Clinton Presidential Library. The Obama camp is also demanding the release of a list of past donors to the Clinton Presidential Library's foundation.

Unfortunately, two pieces of legislation, the "Presidential Library Donation Reform Act" (H.R. 1254) and "Presidential Records Act Amendments" (H.R. 1255/S. 886), that could provide much needed transparency on presidential records remain bottled up in the Senate, the victims of Republican holds.

In November 2001, President George W. Bush issued Executive Order 13233, which gave current and former presidents and vice presidents broad authority to withhold presidential records or delay their release indefinitely. The "Presidential Records Act Amendments of 2007" (H.R. 1255) would nullify the Bush executive order and re-establish procedures to ensure the timely release of presidential records.

On March 14, 2007, by a vote of 333-93, the U.S. House of Representatives approved H.R. 1255. The legislation cleared the Senate Homeland Security and Governmental Affairs Committee last summer. In January, Senator Jeff Sessions (R-Ala.) became the latest Republican senator to publicly put a hold on the presidential records reform bill (H.R. 1255). Since the White House has not rescinded its threat to veto the bill, it is reasonable to assume that Senator Sessions is holding up the bill at the behest of the administration.

On March 14, 2007, the House of Representatives approved H.R. 1254, the "Presidential Donation Reform Act of 2007," by a vote of 390-34. The legislation would require presidential library fundraising organizations to disclose to Congress and the Archivist of the United States the amount and date of each contribution, the name of the contributor, and, if the contributor is an individual, the occupation of the contributor. It would apply to donations of $200 or more.

Unlike presidential campaigns, foreign countries and nationals, and corporations can make donations to presidential library foundations and do so anonymously. And there are no caps for donations as there are in presidential campaigns.

On August 1, 2007, the Senate Homeland Security and Governmental Affairs Committee approved the legislation after making changes to the bill to address the issues of fundraising by the foundations for existing presidential libraries.

On February 26, 2008, Senator Bill Nelson (D-Fla.) attempted to bring the presidential library disclosure bill (H.R. 1254) to the Senate floor under unanimous consent. However, Senator Ted Stevens (R-Alaska) objected to consideration of the bill unless an amendment was adopted applying the disclosure requirements to administrations serving on or after January 21, 2009.

In effect, the proposed Stevens amendment would exempt President George W. Bush from the more stringent reporting rules that cover library funding for the current and future presidents under the bill. The Democratic leadership in the Senate refused to consider the amendment and pulled the bill from the floor.

It was recently announced that Southern Methodist University had been chosen as the home for the George W. Bush Presidential Library. The library is estimated to cost more than $200 million.

The issue of transparency of donations to presidential libraries has dogged former President Clinton since he pardoned financier Marc Rich, who was then a fugitive, on his final day in office. It was later revealed that Rich's former wife Denise had made a $450,000 donation toward the building of Clinton Presidential Library.

The federal courts have also been involved in a series of Freedom of Information Act lawsuits filed by various entities seeking records of the Clinton administration.

In a legal brief filed in federal court in early March, the National Archives and Records Administration (NARA) announced that before the end of the month it would be releasing approximately 10,000 pages of Hillary Clinton's daily schedule records from her time as first lady. However, the Archives told the court it would be one to two years before it could begin processing the approximately 20,000 pages of telephone logbooks that were requested by the watchdog group Judicial Watch under a Freedom of Information Act request filed in 2006.

The National Archives says the delay is exacerbated by the fact that the Clinton Presidential Library has only six archivists on staff for processing all of its pending FOIA requests for textual and electronic records. The Archives also stated that there are currently 30 FOIA requests pending ahead of Judicial Watch's telephone logbook request and that the group has no legal basis to move ahead of others in the queue.

Judicial Watch has a separate FOIA request lawsuit against NARA pending in federal court seeking the release of records of the health care task force that Senator Clinton chaired while first lady.

On March 7, 2008, USA Today revealed that in response to a 2006 FOIA request filed by the paper, the Archives released 4,000 pages of documents concerning presidential pardons that were approved by President Clinton. The paper reported that 1,500 pages were either partially redacted or withheld entirely. This included 300 pages of internal White House communications concerning pardon requests.

The USA Today article alleges that it was the National Archives and not Clinton's legal agent Bruce Lindsey who blocked the release of the pardon-related documents. Lindsey stated that the National Archives made the "determinations with respect to these materials."

In a March 7, 2008, interview with the Associated Press, National Archives spokeswoman Susan Cooper stated that archivists had been interpreting too conservatively an instruction letter sent to the Archives by former President Clinton in 2002. "It is for that reason there was more material withheld in this pardon material than we would have if we had been reviewing this stuff later," Cooper declared.

Passage of the Presidential Records Reform Bill (H.R. 1255) in this congressional session is even more important given the ongoing controversy over the extent of missing e-mails from White House servers from 2003 to 2005. In response to a brief in a federal court case filed by NCH-member organization the National Security Archive, the White House recently admitted it had recycled its e-mail backup tapes before October 2003 and only began retaining the backups starting at that point. The White House also admitted that "at this stage, this office does not know if any e-mails were not properly preserved in the archiving process," in the period 2003–05.

On February 26, the House Oversight and Government Reform Committee held a hearing to investigate White House compliance with the Presidential Records Act. At issue was the extent of missing e-mails from White House servers from 2003 to 2005, and whether White House officials violated the Presidential Records Act by using e-mail accounts maintained by the Republican National Committee for official White House communications.

The most stunning revelation was the release of an interrogatory from Steven McDevitt, a former Information Technology Specialist who worked for the chief information officer at the White House from 2002 to 2006. McDevitt stated that as the White House integrated new records management software there was a great deal of concern about proceeding with the migration of data from the old system to the new without having an adequate e-mail records management solution in place. McDeVitt added, "The process by which email was being collected and retained was primitive and the risk that data would be lost was high."

Allen Weinstein, the Archivist of the United States; Alan Swendiman, the director of the White House's Office of Administration; and Theresa Payton, chief information officer at the White House, provided testimony at the hearing.

During questioning from committee members it was revealed that the White House had repeatedly been nonresponsive to requests from the National Archives to ensure recovery of missing e-mails and identifying current issues with preserving e-mails. The majority cited a September 5, 2007, memorandum from NARA General Counsel Gary M. Stern to Archivist Weinstein stating that "zero progress" had been made in planning for the transition and that NARA "still know[s] virtually nothing about the status of the alleged missing White House e-mails."

When questioned about a 2005 analysis from the White House according to which components of e-mails in the Executive Office of the President were missing for 473 days, Payton stated that based on preliminary findings, her office contends that the number is actually 202 days. However, she was unable to say when the reassessment of the situation would be completed and if or when the e-mail restoration process would be completed. In response to questioning, she could not assure the committee that the work would be completed prior to the presidential transition that will occur on January 20, 2009.

With regard to the missing RNC e-mails, Waxman, the committee's chair, alleged that over 80 White House officials routinely used e-mail accounts at the Republican National Committee. The RNC didn't preserve e-mails for over 50 of these officials and has few e-mails for any White House officials prior to 2006. Waxman stated that the RNC had informed the committee that they had "no intention of trying to restore the missing White House e-mails."

—Lee White is the executive director of the National Coalition for History. He can be reached at lwhite@ historycoalition.org.