From The Coalition Column of the September 2004 Perspectives

Dramatic Disclosure at Confirmation Hearing Raises Questions about Archivist Nomination

Bruce Craig, September 2004

On July 22, 2004, the Senate Governmental Affairs Committee held a confirmation hearing on the pending nomination of historian Allen Weinstein to become the next Archivist of the United States. The Bush administration's nomination of Weinstein to succeed the present archivist, John Carlin, had already stirred up much attention (see Perspectives, May 2004), and the hearing itself turned out to be dramatic.

During questioning Weinstein put to rest issues that had arisen regarding the disposition of his own research notes relating to two controversial books. The nominee generally impressed committee members with his answers to most of the questions put to him, including those relating to government secrecy. Weinstein was taken to task by two Democratic senators for his position regarding the controversial Bush Executive Order 13233 that relates to the Presidential Records Act. The big surprise of the hearing, however, was the introduction into the record of a letter by current archivist Carlin confirming what historians and archivists had long suspected—that the White House asked the archivist to resign. Though Weinstein performed admirably before the committee, because of the circumstances surrounding Carlin's "resignation," the Weinstein nomination may well be in deep trouble.

Senator Susan Collins (R-Me.), the chair of the committee, welcomed the nominee on behalf of her colleagues. In her opening statement she described Weinstein as an individual with "a multidimensional perspective on the importance of the mission of the National Archives" and said that his experience as a professor, scholar, and author demonstrated his "capacity to manage and address complex issues." By the time she had finished with her opening statement Ranking Minority Member Joseph I. Lieberman (D-Conn.) and committee members Richard Shelby (R-Ala.), Carl Levin (D-Mich.), and Richard J. Durbin (D-Ill.), were also in attendance.

Weinstein was then introduced to the committee by Senator Richard Lugar (R-Ind.) who, in a statement regarding his previous experience in working with Weinstein, described the nominee as a person he holds "in deep regard." Each senator then delivered their opening remarks. Republican Senator Shelby gave a short but unqualified endorsement of the nominee and then left the room. Democratic senators were more circumspect in their welcoming statements. Senator Lieberman, for example, who has known Weinstein for years having served on the board of directors of Weinstein's Center for Democracy, welcomed him as "an accomplished historian" and "looked forward to hearing his views" on various topics. Other Democrats also recognized Weinstein's "extraordinary qualifications" but stated that irrespective of those credentials, there were troubling issues surrounding Carlin's "resignation" that the committee would have to investigate.

After being sworn in, Weinstein read from his prepared written remarks. Weinstein pledged to devote all his "effort and energy to addressing the range of responsibilities assigned to the archivist" and stated that he "would continue that independent and bipartisan approach" should he be confirmed as archivist. Because the committee released as part of the hearing record a detailed questionnaire (including Weinstein's responses to some 46 questions—many of which were suggested by the History Coalition—posed by committee staff) the nominee merely summarized his qualifications for the post. He then outlined what he considered NARA's current challenges and priorities. In his responses to the staff questionnaire and in his statement before the committee, Weinstein made it clear that his priorities were tentative and dependent on future briefings by NARA's management team, senior staff, and other stakeholders.

Weinstein's priorities and concerns included: (1) providing effective post-9/11 security for documents; (2) completing the redesign of the Federal Records Management initiative; (3) moving forward on NARA's electronic records initiative; (4) expanding NARA's education and public programming throughout the nation; (5) supporting the National Historical Publications and Records Commission "at effective budgetary levels"; (6) addressing internal administrative concerns such as loss of experienced personnel due to retirement; and (7) strengthening cooperation with the presidential library system. Weinstein concluded his remarks by stating he would view his role as archivist as being "to preserve and assure timely and maximum access to our governmental records in the evolving historic saga of the American people."

Following Weinstein's opening statement each senator present posed questions. Senator Collins, using her prerogative as chair of the committee, asked the first set of questions. Collins minced no words when she asked the nominee to address concerns raised by some in the historical community regarding his commitment to openness. Weinstein described his experiences in opening government records including a large number of FBI files relating to the Alger Hiss case in 1972, which are today in the Truman Presidential Library. He also discussed his role in depositing the Herbert Solow papers at the Hoover Institution, and he described his current role in opening the previously closed records relating to Mary Baker Eddy, the founder of the Christian Science Church. Weinstein then announced that he had recently signed a deed of gift for all his remaining personal notes and tapes relating to the books Perjury and The Haunted Wood and that these records will be available to researchers without restriction "by early next year" at the Hoover Institution.

Senator Lieberman asked whether Weinstein had any knowledge of Archivist John Carlin's December 19, 2003, letter, indicating his intent to resign. That letter had been produced by the White House as evidence that it was Carlin who had initiated the replacement search process. Weinstein stated he had no such knowledge and then described the circumstances in which the White House approached him about the position.

Weinstein stated that on September 23, 2003, he was invited to meet with Dina Powell, assistant to the president and director of presidential personnel, about the possibility of a nomination as the next Archivist of the United States. He was then asked—in late November and early December—to fill out investigative and ethics forms that precede all presidential nominations. Weinstein stated that he was made aware that he would be the White House's nominee "in early January 2004." Under questioning, Weinstein also stated that he had several "generalized" conversations with White House Counsel Judge Alberto Gonzales and several others but that at no time were there any discussions about issues relating to archival records relating to the presidency.
Both Senators Durbin and Levin raised concerns about Weinstein's position vis-a-vis the Bush Executive Order 13233. In the staff questionnaire, Weinstein stated that if confirmed as Archivist,"it would be my responsibility—so long as E.O. 13233 is in place—to oversee NARA's legal team in defending the Executive Order against court challenge." Durbin thought this curious and wondered why Weinstein felt obligated to defend the administration's order rather than the language in the Presidential Records Act itself. The question clearly caught Weinstein off guard. He responded that in the questionnaire he had also stated that "as a private citizen" he views the EO as "tilt[ing] the balance in confidentiality direction rather than timely disclosure" but that he would seek a "dialogue and negotiation" before proceeding on the current legal and adversarial track. It became clear to members of the committee and some in the audience that as a historian, Weinstein was uncomfortable with certain provisions in the Bush EO. Durbin expressed his hope that Weinstein would "revisit this" and reconsider his position.

Senator Levin then introduced a bombshell document into the hearing record—a letter from current Archivist Carlin that was prepared in response to a number of questions posed to him by Levin regarding whether he [Carlin] approached the Administration about resigning as archivist, or whether it was the Administration that had initially had approached him. It is worth noting in this context that the National Coalition for History and several of its member organizations had repeatedly called on the committee to get to the bottom of the issue relating to the Carlin controversy. In Carlin's response (dated July 21, 2004) a copy of which has been obtained by the History Coalition, the archivist stated: "In answer to the first question, the Administration initially approached me. On Friday, December 5, 2003, the Counsel to the President [Alberto Gonzales] called me and told me the Administration would like to appoint a new Archivist. I asked why and there was no reason given."

Carlin then stated in the letter that he wants to continue as archivist at least four more months as "there are initiatives I would like to complete before concluding my service as Archivist" . . . specifically the campaign to raise $22 million to fund the Public Vaults permanent exhibit that will open in November 2004 and since "we are on the verge of awarding a contract for the design of the Electronic Records Archives . . . I would like to see that budget request through to fruition over the next four months."
Levin and Durbin expressed concern that, contrary to provisions of the Archives Independence Act, the White House was requesting Carlin's resignation without stating a reason as required in the law. Following a cordial but doggedly persistent pursuit of his objective, Levin requested that the committee send a letter to the White House requesting an explanation of why Carlin was being asked to resign as these actions endanger "the independence of the Archivist's office." If the committee declined to do so, Levin would do so independently, he declared.

Regardless of Weinstein's generally positive hearing, troubling questions posed by Senators Levin and Durbin about the politicization of the nomination by the White House—when combined with Archivist Carlin's request to be permitted to stay in office until at least through November—cast doubts about the continued viability of the nomination. Whereas Weinstein's chances of Senate confirmation had appeared to be very good prior to the hearing, they are now dependent on the resolution of several issues unrelated to the nominee's personal qualifications. Depending on how or whether the White House responds to the request for clarification of why Archivist Carlin is being removed from office, and how the committee and/or its individual members decide to respond to Carlin's clearly stated request to remain in office for several more months, as well as on how the committee decides to deal with what appears to be a clear violation of intent of the Archives independence law, Weinstein's confirmation may well be delayed until after the November elections. Then, of course, depending on the result of the November election, the nomination may well prove to be moot.

— Bruce Craig is director of the National Coalition for History. He can be reached at rbcraig@historycoalition.org.