How 44 Years of the Presidential Records Act Impacts Us Today

When Congress passed the Presidential Records Act (PRA) in 1978, it placed the records of subsequent Presidents in federal custody to prevent their destruction. Congress reacted to Nixon’s destruction of incriminating documents. PRA reduced secrecy, allowed the public a peek behind the veil of government, and provided historians and journalists the resources to do their jobs. Politics being politics, PRA didn’t have enforcement teeth, nor could it overcome future Presidential Executive Orders designed to limit what power it did carry. As a young Congressional staffer and future amateur historian, I believed PRA would be a highlight of my four-year career on Capitol Hill. Ignorance was bliss.

A House Government Operations Subcommittee crafted the PRA bill in 1977 to assist America in preventing a future President from swiping or destroying documents created in the Oval Office. At the time, it seemed impossible to believe there would be another President whose ego, fear of reprisals or concern about his (or her) legacy would supersede an interest in the public’s need to examine the Chief Executive’s records.

Specifically, the PRA put the ownership of official Presidential Records in the hands of the American people to build trust in the work of the federal government and its Chief Executives. The National Archives and Records Administration scheduled retrieval of documents under PRA to begin January 20, 1981, as the Reagan Administration began.

Under this custody and management of Presidential records, the Chief Executive would file personal papers separately from official Presidential records. Then, when leaving office, the official records would be automatically transferred into the custody of the U.S. Archivist at the National Archives.

Under PRA, the Archivist has five years to process the documents from a retiring Chief Executive before releasing any. Unfortunately, processing has become a Herculean task with a minimum of 30 million records coming from a single four-year term, including audio files, and videotapes. Freedom of Information requests, based on the 1974 law from citizens, journalists, and historians, are accepted after the documents are processed. But can in emergencies, like court orders seen recently, can be applied earlier.The Archives can have 12 years to protect various aspects of a President’s records. (The Pandemic partially halted the Archives’ efforts to process documents, increasing the timeline.)

Presidential Documents Release: Nixon’s Secret Tapes

President Richard Nixon’s worries about being defeated are evident in the secret tapes he recorded in his office. That marked the beginning of his demise in August 1974, when he left the White House. While Nixon died two decades later, the final release of those secret tapes did not occur until 2013—thirty years after his death and 48 years after he left D.C. for California. LBJ’s audiotapes, recorded in the Administration before Nixon’s, were released piecemeal, but the last batch did not open until 2016.

The temptation to Presidents to protect “certain” documents from public view has stretched America’s patience, and now we are in another battle that could rival what’s gone before. I mention the role Executive Orders have played to amend, stretch, and sometimes erase the intent of the Presidential Record’s Act.

Power of the Pen: Executive Orders

Today, with the nation politically sliced in half, winning legislative battles has become an eternal struggle. However, to accomplish some segments of the legislative agenda that don’t require a Congressional vote, a President can take advantage of the Executive Order.

Now with changes made sinde 1987, the complexity of the guidelines issued by Executive Orders requires a spreadsheet to comply. During the last four decades, the weaving routes of politics and culture have complicated the process.

Three critical Executive Orders concerning Presidential Records have been signed since 1978, adjusting PRA or countermanding the prior President’s penned desires. Ronald Reagan signed Executive Order 12667 in 1989 when he left office. It allowed former U.S. Presidents to limit access to certain records created in their terms. Before releasing any presidential records, the Archivist must notify both the incumbent and former President which document is requested and whether they may claim Executive privilege.

President George W. Bush increased the number and types of documents and the withholding timetable for Presidential Records when he issued Executive Order 13233 on November 1, 2001. It permitted a President or former President to withhold several types of documents. In addition, his father’s papers (George H. Bush’s Vice Presidential and Vice Presidential papers–1981 and ended in 1998) fell under enhanced protection.

Executive Order 13233 allowed a President to retain certain types of documents longer, including:

“military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President’s advisors and to do so in a manner consistent with the Supreme Court’s decision in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), and other cases….”  

Some aspects of George W. Bush’s executive order were a reaction to 9-11, which occurred less than two months before he issued the order. As a result, security rose to top priority. Still, the only way to avoid future disasters would be to know how the intelligence community failed and where America could be better prepared.

The Society of American Archivists and the American Library Association criticized the President’s exercise of executive power. They charged George W. Bush’s order with “violating both the spirit and the letter of existing U.S. law on access to presidential papers as clearly laid down in law. They noted that the order “potentially threatens to undermine one of the very foundations of our nation.”

John Wertman, a member of former President Bill Clinton’s White House staff, wrote in 2006: “Order 13233 “represents a wholesale change in the way the federal government preserves and promotes our national public memory.”

Going Backwards to Iran-Contra

Questions arose about the Iran-Contra Affair in Reagan’s second term. The official justification for arms shipments to Iran in 1985 was that they were part of an operation to free seven American hostages in Lebanon held by Hezbollah. Reagan needed to return these Americans, fearing a repeat of the backlash that chased Carter out of the White House ahead of him.

Senior Reagan Administration officials secretly facilitated the sale of arms to the Khomeini government of the Islamic Republic of Iran, which was the subject of an arms embargo. (President Jimmy Carter established the ban after  Iranian students stormed the U.S. Embassy in 1979 and took 52 hostages. Reagan pledged to continue the arms sale ban after his inauguration in January 1981.)

Congress had passed the Boland Amendment in December 1982 to prohibit further funding of the Contras. Oliver North and his assistant testified before Congress in 1985 that National Security Council documents related to the arms sale were destroyed to prevent proof of the arms sale and funding to the Contras.

International relations and national politics wound their way around Reagan’s pledge. Under the Reagan Administration’s plan or one devised among his advisors, the U.S. would use $15 million from the sale to Iran to fund the Contras fighting the Communist Sandinistas in Nicaragua.

Reagan vocally supported the Contras but told the independent Tower Commission (in testimony as a sitting President addressing the arms-for-hostages scandal) said he did not authorize the deal. The Commission’s 200-page report criticized Reagan’s oversight of the National Security Council (where Oliver North served as a military aide, who was indicted and fired for his role).

Bush’s Executive Order sealed documents related to Iran-Contra for an extended period. This frustrated historians and others trying to piece together American foreign policy decisions in the Middle East and Central America that still worry the U.S. and the world.

In 1985, personal health considerations arose in the Reagan Administration, which were not broadcast widely. The Gipper underwent a seven-hour surgery to remove two feet of his colon for cancer in July 1985. Three days later he met in the hospital with National Security Advisor McFarlane, who engaged in shuttle diplomacy with Iran to get hostages released. Later McFarlane resigned as one of the two dozen Reagan Administration staff or cabinet members indicted in the Iran-Contra Affair. Ten of those were found guilty, but George H. Bush, Reagan’s Vice President and a former director of the CIA, pardoned all on the last day of his presidency.

Before the PRA, Jimmy Carter, no questions asked, turned his Presidential Records over to the Archives at the end of his term. Former President Gerald Ford said: “I firmly believe that after X period, presidential papers, except for the most highly sensitive documents involving our national security, should be made available to the public, and the sooner, the better.”

Obama Reflects Faith in History

The day after his inauguration Barack Obama signed Executive Order 13489 revoking George W. Bush’s Executive Order. It would be unfortunate if Presidential Papers were to be tossed from one Administration to another like a ping pong ball or hot potato. I merely touched on the current matter of the former President’s records because of their coverage in the daily news, but this background information might shed some light on how we got here.

The lack of trust in American culture today has multiple sources, but locking up Presidential Records for an extended time further erodes confidence in the American government. As we live through dark political times, ignorance of our history can pull us full circle to relive the worst of our past. Or we can learn from our history and shine light into the future.