NARA and the Roberts Papers
Bruce Craig, October 2005
From The Coalition Column of the October 2005 Perspectives
When the Bush administration advanced the nomination of John G. Roberts Jr. to the Supreme Court, officials of the National Archives and Records Administration (NARA) and the Reagan Presidential Library had their hands full in trying to deliver to the Senate the documentary record created by the nominee in time for scheduled early September confirmation hearings. White House aides gave NARA officials guidance and declared that "documents that opponents [of Roberts] would try to twist and launch attacks on . . . would not be a criterion for withholding documents for release." In processing the documents, there were challenges but in general NARA officials—particularly the Reagan Library staff—have been receiving the praise of both White House and government openness advocates for doing a job that would normally have taken three months in less than three weeks. Indeed, the staff literally worked night and day to perform what was a herculean task. Nevertheless, there have been problems.
First, there is the controversy over the "lost file"—the folder relating to Roberts' work on affirmative action some 20 years ago that appears to have gone missing at the Reagan Presidential Library after it was reviewed by White House and Justice Department lawyers. At this writing the file has yet to materialize.
Second, there are the papers being deliberately held back by the White House under provisions of the Presidential Records Act Executive Order (EO) 13233 issued by President Bush in 2001. It is the EO that is still being litigated in court by history and archives organizations, and which grants the White House the right to block the release of memos such as those produced by Roberts that were crafted when he worked for President Reagan. The EO also grants the incumbent president the right to assert a "constitutionally based privilege" based on "legal advice or legal work" performed—a privilege the White House has opted to claim in its broadest terms. Held back in their entirety are all the documents produced by Roberts during his tour as deputy solicitor general in George H. W. Bush's administration (these papers are still in the custody of the Department of Justice and were not subject to NARA custody or processing).
Topping off NARA's challenges was the discovery by Reagan Library staff less than a week prior to the beginning of Roberts's confirmation hearing of a "large volume"—some 42 boxes—of unreviewed and unreleased documents written by Roberts. The discovery triggered accusations by some Democrats that the Bush administration was concealing records on the eve of Robert's confirmation hearing. NARA officials assert that apparently the materials were filed by operational code numbers rather than by name and that because of the "expedited review" they were inadvertently skipped over. A preliminary survey of the documents suggest that many may well be duplicative of some of those already processed and released.
According to NARA spokesperson Susan Cooper, "The National Archives is doing everything it can to make these documents available as soon as possible." To that end, and in part because of the huge volume of remaining papers that needed to be processed, NARA dedicated people and resources from other archives centers around the country to assist in the processing. While one may criticize the White House for its decision to hold back some of Judge Roberts' papers, by all evidence NARA, under the leadership of Archivist of the United States Allen Weinstein, has been remarkably open and diligent in trying to process a huge collection in a timely manner.
At this writing, with the approval of the White House, NARA has managed to release nearly 60,000 pages of Roberts-related materials documenting much of the nominee's career when he worked for the Reagan administration. That left some 3,000 pages of "politically sensitive" memos culled from the Reagan Library that during the initial screening were held back for a variety of reasons. Most contained "personal information" and thus had triggered a FOIA exemption. Once they completed the initial screening of the bulk of the Roberts collection, NARA and White House officials began the laborious process of reexamining the documents that are being released slowly though some are heavily redacted.
This, in part, became the concern of Elliot Mincberg, vice president and legal director for the advocacy group People for the American Way. Mincberg was "concerned about what they [NARA and the White House] have withheld." Consequently, on August 23, Mincberg's group filed a formal appeal with the deputy archivist of the United States calling for "expedited treatment" of what may be upwards of 3,000 pages of Roberts documents that Mincberg's organization believes should be released prior to the beginning of the Senate confirmation hearings.
Mincberg's appeal was scathing: he charged on behalf of his group that the FOIA personal privacy exemption was being abused, that overly broad standards were being applied by NARA to the withholdings, and that redactions sheets were insufficiently descriptive. The group argued that segregable portions of the withheld documents "should be released immediately." Senator Charles E. Schumer (D-N.Y.) went even further when he stated: "I fear that . . . the timely production of important documents located at the Reagan Library related to Judge Roberts' work in the White House Counsel's Office is being delayed and possibly politicized."
In poring over the released materials, journalists discovered one document that should be of particular interest to historians and archivists as it relates to Roberts's views on government openness with respect to presidential records and the Presidential Records Act. On August 29, 1985, Roberts vigorously argued, in his capacity as a lawyer for President Reagan, that White House internal files should be kept secret and should not be released even to the U.S. Senate if requested by that body to win confirmation for a presidential nominee slotted for a senior government post. Roberts argued that the White House should not facilitate document release and suggested, "Hill staffers need only go to the Reagan Library to see any internal White House deliberative document they want to see." Roberts stated, "We should take whatever steps are necessary to ensure the general opening of files to Hill scrutiny . . . does not become routine."
Furthermore, Roberts characterized the Presidential Records Act of 1978, which provides for the eventual opening of virtually all documents housed in a president's library, as "pernicious." In taking these positions, Roberts's views are consistent with those held by many senior Bush administration officials who have repeatedly opposed actions that they consider to be an erosion of presidential prerogatives and powers.
Ironically, if Roberts had still been in the White House giving advice on what or how much information to provide Senators when considering this Supreme Court vacancy, he would have opted to provide the least amount possible. Thankfully, the views of other political strategists in the White House and provisions of the PRA would have mollified Roberts's obstructionist stance.
—Bruce Craig is director of the National Coalition for History. He can be reached at email@example.com.