Historian objects to closed records

The current process for releasing presidential records should not be altered, according to a historian who won a lawsuit compelling the National Archives to turn over tapes recorded by former president Richard Nixon.

Dr. Stanley Kutler, a University of Wisconsin law professor and presidential scholar, spoke Apr. 15 at NKU’s Otto Budig Theater on the difficulties historians face obtaining the records of former presidents.

Kutler said that a new procedure for obtaining these items, enacted by President George W. Bush in a 2001 executive order, “effectively overturned” the existing procedure.

Bush’s executive order is being challenged in U.S. District Court so, for now, the process established by the Presidential Records Act of 1978 remains in effect.

The 1978 law, enacted by Congress in the aftermath of the Watergate scandal, granted presidents a 12-year window of exclusive access to their records before they may be made public.

“All legislation is a compromise,” Kutler said. “This was a good compromise.”

“So, if you’re Bill Clinton,” he continued, “you sign a contract for $9 million for your memoirs, and you’ve got exclusive use of these papers, and after 12 years, we all have access. I thought that was reasonable.”

Kutler and Public Citizen, a public interest law firm, filed suit in 1992 to force the National Archives to turn over tapes recorded by Nixon during his time in office. Kutler had made numerous requests to access those tapes after their processing was completed in 1987.

Two years after Nixon’s 1994 death, the tapes were made public in a settlement reached between Kutler and the National Archives.

Kutler admitted that Nixon’s death “significantly aided” the suit’s resolution, but added, “Without a suit, there would be no tapes.”

Public Citizen is also directing the suit challenging Bush’s November 2001 executive order, which overturns the Presidential Records Act’s public access requirement.

Instead, Bush’s order would give former presidents and vice presidents, as well as their representatives, “executive privilege” to veto the release of any records.

When Bush took office in Jan. 2001, the first papers of former president Ronald Reagan were scheduled for release, the first such release under the 1978 act.

Kutler said Bush aides delayed their release through the year, until Bush signed the executive order in November 2001.

“He justified it all as national security,” Kutler said of the delay. “The Reagan family had no objection, the Reagan aides had no objection. So what are they worried about? Who was Ronald Reagan’s vice president?”

Reagan’s vice president, of course, was George Bush, the current president’s father.

Reagan himself, in the late stages of Alzheimer’s disease, has been unable to comment.

Kutler stressed the importance to historians of primary sources.

Relying solely on official documents like court records or news accounts reduces a historian to a “passive role” in piecing together a historical narrative, he said.

“My fight to liberate the Nixon tapes was part of a larger fight,” he said. “You don’t write history by scanning back issues of the New York Times.”

The Nixon tapes, Kutler said, allow historians to gain a richer understanding of the former president as a person.

What made Nixon’s tapes different from presidents’ before him was that his were voice activated, which meant they recorded everything said by the president and his visitors.

As a result, he often forgot he was being recorded.

“The tapes belong to all of us,” Kutler said. “We hired the actors, we paid for their performances and their props.”