Federal Court Orders Vice President to Preserve Records

On September 20, 2008, U.S. District Judge Colleen Kollar-Kotelly ordered the office of U.S. Vice President Dick Cheney to preserve all records related to his office and the performance of his duties. The order came as a result of a lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW), together with the American Historical Association, the Organization of American Historians, the Society of American Archivists, the Society for Historians of American Foreign Relations, and historians Stanley Kutler and Martin Sherwin.

On September 8, CREW filed a complaint against Vice President Cheney, the Office of the Vice President (OVP), the Archivist of the United States Allen Weinstein, and the National Archives and Records Administration (NARA). The petitioners argued that without judicial intervention, a vast majority of Vice President Cheney’s records would not be transferred to NARA on January 20, 2009, as required by Presidential Records Act, for eventual release to the public, but instead will remain under the vice president’s custody and control. The plaintiffs sought an order mandating preservation of all of the vice president’s records pending the outcome of the lawsuit.

In granting the preliminary injunction, Judge Kollar-Kotelly’s opinion validates the plaintiffs’ concerns that the “unprotected documents could be transferred to other entities, destroyed or not preserved, and if any of these events occur, the damage is inherently irreparable; once documentary material is gone, it cannot be retrieved.”

The vice president is currently seeking to have the court’s order vacated and is trying to halt discovery in the case. The judge is expected to make a decision on an expedited basis since the January 20, 2009, deadline is only a few months away.

Over the past few years, the vice president and OVP have repeatedly maintained that they are not part of the executive branch, and it is such claims that precipitated the lawsuit. For example, on June 26, 2008, the vice president’s chief of staff, David Addington, testified before the House Judiciary Committee that the vice president belongs to neither branch but is attached by the Constitution to Congress.

Congress Passes Bill Making Major Changes at NARA & NHPRC

In September, Congress passed and sent to the president for his signature legislation (S. 3477) to make changes in major program areas at the National Historical Publications and Records Commission (NHPRC) and the National Archives and Records Administration.

The legislation creates a new program called “Grants for Presidential Centers of Historical Excellence.” Under the initiative, the Archivist of the United States, with advice of NHPRC, may make competitive grants to nonprofit entities or state or local governments to promote the historical preservation of, and public access to, historical records and documents related to any former president who does not have an archival depository administered by NARA under the Presidential Libraries Act.

The National Coalition for History sent a letter to the Senate Homeland Security and Governmental Affairs Committee Chairman Joseph Lieberman (Ind.-Conn.) strongly objecting to the passage of the “Presidential Historical Records Act,” section of the bill.

This section of the bill is the latest iteration of legislation (H.R. 1664, S. 1878) introduced earlier in this Congress. That legislation would have authorized the NARA to make pass-through grants towards the establishment of the Woodrow Wilson Presidential Library in Staunton, Virginia.

While the Bush administration took no formal position on H.R. 1664 when it was considered in the House, the National Coalition for History opposed that bill on the grounds that the National Archives should not be used as a pass-through for federal funds to a private entity. Private institutions usually receive funds through specific earmarks in appropriations bills, not through separate legislation.

The National Coalition for History opposed the “Presidential Historical Records Act” because the new grants initiative would put further strain on the already severely limited financial and human resources that the NHPRC has at its disposal.

In addition, the legislation duplicates existing law. The NHPRC’s current authorizing statute already allows it to make grants for the presidential documents projects that the legislation purports to fund. NCH argued that there was no demonstrated policy rationale to carve out a new special grants program for this specific subset of documentary projects. A project to preserve a former president’s papers should compete on a level playing field with all other projects seeking NHPRC funding. At committee markup, the bill was improved to give the Archivist of the United States greater discretion in the establishment of the program.

Here is a summary of S. 3477 as passed by Congress:

Grants for Presidential Centers of Historical Excellence

• The Archivist of the United States, with advice of NHPRC, may make competitive grants to non-profits, or a State or local government to entities to promote the historical preservation of, and public access to, historical records and documents to any former president who does not have a Presidential archival depository administered by NARA under the Presidential Libraries Act.
• Funds can only be used to promote historical preservation of, and public access to historical record of former president.
• Funds cannot be used for maintenance, operating costs, and construction of any facility to house former president’s record.
• Application requirements: applicant must possess historical works and collections of historical sources that Commission considers worthy of public expenditure; applicant must have appropriate facilities and space for preservation and public access to records; ensure free access to the public; have educational programs as part of mission; raised funds from non-Federal sources in amount equal to the amount of the grant sought; coordinate with relevant Federal programs or entities; coordinate with relevant non-Federal entities; and workable plan for preservation and public access.

Term limits for NHPRC Members

• An NHPRC member cannot be appointed for a term of more than 2 years and is limited to 4 terms. The bill requires members to recuse themselves from voting on any matter that poses a conflict of interest or may benefit the entity they represent. The term limits would apply to members currently serving on, and all future members of, the NHPRC.

Online access to Founding Fathers documents

• The Archivist of the United States may enter into cooperative agreements to provide online access to the published papers of Washington, Hamilton, Jefferson, Franklin, John Adams, Madison and “other prominent historical figures as determined appropriate by the Archivist of the United States.”

Advisory Committee on Founding Fathers Editorial Projects

• The Archivist of the United States may appoint an advisory committee to review the progress of the Founding Fathers projects funded by the NHPRC. The advisory committee may also, in consultation with the Founding Fathers projects, set appropriate completion goals. The advisory committee shall be comprised of 3 “nationally recognized historians” appointed for no more than 2 consecutive 4-year terms.

Capital Improvement Plan for Presidential Archival Depositories

• The bill requires NARA to provide, as part of its budget submission to the House and Senate Appropriations Committees, a ten-year capital improvement plan for the Presidential Library System and to update it annually.

Changes to Endowment Requirements for Presidential Libraries

• The bill increases the endowment percentage requirement for the land, construction, and installing equipment from the current 40 percent to 60 percent.

National Database for Records of Servitude, Emancipation and Post-Civil War Reconstruction

• The legislation allows the National Archives to create an electronically searchable database of historic records of servitude, emancipation, and post-Civil War reconstruction contained within federal agencies for genealogical and historical research and to assist in the preservation of these records.
• The bill gives the NHPRC the authority to provide grants to states, colleges and universities, and genealogical associations to preserve records and establish databases of local records of such information.

Congress Punts on Fiscal Year 2009 Budget

Before leaving for their election campaigns, members of the House passed a continuing budget resolution for fiscal year 2009 to keep federal agencies and programs running until March 6, 2009. Fiscal 2009 began on October 1, 2008. Aside from defense, homeland security and veterans programs, all other federal agencies will continue to be funded at the current FY ’08 level.

Archivists and Historians Force Release of Rosenberg Grand Jury Records

On September 11, 2008, the National Archives and Records Administration opened formerly secret grand jury testimony transcripts from the trial of Ethel and Julius Rosenberg more than 50 years after they were indicted on espionage charges, convicted, and executed. The release of the previously secret transcripts resulted from a successful lawsuit filed almost eight months ago by the National Security Archive at George Washington University, the American Historical Association, the American Society for Legal History, the Organization of American Historians, the Society of American Archivists, and New York Times reporter Sam Roberts.

NARA released 940 pages of transcripts from 41 of 45 witnesses’ appearances before the Rosenberg grand jury between August 1950 and March 1951. Testimony of three witnesses, David Greenglass, Max Elichter, and William Danziger, has been withheld due to objections by the witnesses.

In July, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York said that the government must release most of the sealed grand jury records from the Rosenberg trials.

The transcripts are available on the web sites of both the National Security Archive (www.gwu.edu/~nsarchiv/news/20080911/index.htm) and NARA (www.archives.gov/research/arc/topics/courts/rosenberg-jury.html). The National Archives Regional Archives Research Room in New York City, located at 201 Varick Street, 12th Floor, has reference copies of the documents.

Historians Urge Congress to Strengthen the Presidential Records Act

On September 5, 2008, the Center for American Progress Action sent a letter from 30 prominent historians to the leadership of the House of Representatives and the U.S. Senate urging reform of the Presidential Records Act. The American Historical Association, Organization of American Historians, and the National Coalition for History also endorsed the letter. To see a copy of the letter online, go to www.americanprogressaction.org/issues/2008/pdf/presidential_records_act1.pdf.

Action in Congress on legislation (H.R 1255, S. 886) to revoke President Bush’s Executive Order 13233 has been stymied by Senate Republicans who have placed a hold on the bill. EO 13233 granted unprecedented powers to delay the release of a president’s and vice president’s records after they leave office. The House passed the Presidential Records Reform bill by an overwhelming margin in 2007.

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