Defending Historical Records

Elliot Carlson, along with scholarly, journalistic, and historic organizations, sought access to grand-jury materials sealed decades ago. The materials concern an investigation into the Chicago Tribune in 1942 for a story it published revealing that the US military had cracked Japanese codes. The government conceded that there are no interests favoring continued secrecy, but declined to turn over the materials. In June 2015, the District Court for the Southern District of Illinois found in favor of the plaintiffs led by Elliot Carlson. The Department of Justice (DOJ) appealed, claiming under the Code of Federal Criminal Practices that the government had custody of the grand jury records and, with Rule 6(e) of the code, the court had no right to open them. The Seventh Circuit upheld the district court’s ruling in favor of Carlson.

Petitioners (the National Security Archive, American Historical Association, American Society of Legal History, Organization of American Historians, Society of American Archivists, and Sam Roberts) sought the release of grand jury records related to the prosecutions in this Court of Ethel and Julius Rosenberg.

Together with historian Stanley Kutler, the American Society for Legal History, the Organization of American Historians, and the Society of American Archivists, the American Historical Society petitioned for the release of the transcript of Richard M. Nixon’s grand jury testimony of June 23-24, 1975, along with certain materials of the Watergate Special Prosecution Force. The petitioners argued that the historical significance of Watergate in general, and in particular Richard Nixon’s role in it, justified the release of the materials. The petition was granted in July 2011, with the court ruling that the historical importance of the materials far outweighed any privacy concerns.

On July 22, 2008, a federal court in New York ruled that the government must release most of the sealed grand jury records from the 1951 indictment of alleged Soviet spies Julius and Ethel Rosenberg. The lead petitioner in the case was the National Security Archive at George Washington University. The lawsuit was joined by 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.

In response to a petition filed by the plaintiffs, the government conceded in a June filing that the Rosenberg case is of “significant historical importance,” and therefore said it would not contest the release of testimony of witnesses who have passed away or consented to the disclosure. On the basis of the government’s concession, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York said he would order release of the testimony of 36 witnesses. Judge Hellerstein has scheduled a follow-up hearing on August 26 to consider unresolved issues and to set a time frame for the release of the materials.

Citizens for Responsibility and Ethics in Washington (CREW) and Stanley I. Kutler, Martin J. Sherwin, the American Historical Association, the Organization of American Historians, the Society of American Archivists, and the Society for Historians of American Foreign Relations.

Vice President Richard B. Cheney in his official capacity, the Executive Office of the President (EOP), the Office of the Vice President (OVP), the National Archives and Records Administration (NARA), and Dr. Allen Weinstein, Archivist of the United States, in his official capacity. Plaintiffs allege that Vice President Cheney, the OVP, and the EOP have improperly excluded records from the Presidential Records Act.

This case was a challenge brought on behalf of a number of individuals and groups, including the American Historical Association, to President George W. Bush’s Executive Order 13233, which attempted to give former presidents and vice presidents new powers to prevent the National Archives from releasing historical records relating to their administrations. Public access to records of former presidents is governed by the Presidential Records Act, which restricts access to materials for a number of years after a president leaves office, but then generally provides for public access subject to a limited number of exceptions.

The Bush Executive Order allowed former presidents and vice presidents to veto release of their materials merely by making an assertion of “privilege.” It also resulted in lengthy delays in access to materials while former officeholders engaged in reviews of their materials to determine whether to assert a privilege to block release. When the Order was first promulgated, in the first year of President Bush’s term in office, it resulted in thousands of pages of Reagan presidential materials being held back from public release.

A half century ago, Alger Hiss, a former high-ranking State Department official, was convicted for committing perjury in responding to allegations that he was a Soviet spy. The matter presently before the Court concerns the two special grand juries convened from 1947 to 1950 to investigate allegations of espionage, the first of which handed up the indictment underlying Hiss's conviction. Petitioners, a coalition of historical associations including the American Historical Association, move the Court for an order directing that transcripts of both special grand juries pertaining to the investigation of Hiss be disclosed to the public. The Government opposes disclosure.

Because of the historical significance of most of the transcripts, the lack of need to keep the materials secret, the long passage of time since the special grand juries were convened, and the other reasons stated in this Opinion, petitioners’ motion is granted in part and denied in part: they allowed the release of most transcripts but withheld specific testimony based on privacy objections. This case, along with similar efforts, helped establish that courts have inherent authority to release grand jury materials of exceptional historical significance.

In 1995 the Archivist of the United States promulgated General Records Schedule 20 (GRS 20) pursuant to his authority under the Records Disposal Act. GRS 20 requires each federal agency to which the RDA applies to dispose of word processing and electronic mail files located in personal computers once it has copied them to a paper or an electronic recordkeeping system.

Public Citizen and others sued the Archivist, the Executive Office of the President (EOP), and two components of the EOP under the Administrative Procedure Act, alleging that GRS 20 violates the RDA and is arbitrary and capricious.

The Plaintiffs ask the Court to declare null and void a Memorandum of Agreement between former President Bush and former Archivist Don W. Wilson ("Bush-Wilson Agreement" or "Agreement"), signed on the day former President Bush left office, which purports to give former President Bush exclusive control over electronic records of the Executive Office of the President created during former President Bush's term in office. The Plaintiffs further ask the Court to enjoin the Acting Archivist from implementing the Bush-Wilson Agreement. As grounds therefore, the Plaintiffs assert that the Agreement violates the Presidential Records Act ("PRA"), as well as Article II of the Constitution, and that the decision by the Archivist to enter into that Agreement was arbitrary, capricious, an abuse of discretion, and contrary to law under the Administrative Procedure Act.

Judge Charles Richey ordered Acting Archivist Trudy Peterson not to enforce the agreement signed the day Bush left office by the former president and the then-Archivist of the United States Don Wilson. Richey said the agreement violates the Presidential Records Act, enacted after President Richard Nixon left office, which requires the Archivist to assume responsibility for Presidential records, to preserve them and to make them public as rapidly and completely as possible under the terms of the Act. Although an out-going President may designate some restrictions on particular categories of records, it is the Archivist who makes the final decisions about what will be restricted, Richey ruled. The court also held that the agreement was unconstitutional. The Constitution gives an incumbent President authority to direct current executive branch officials. The Bush- Wilson agreement would have given the power to direct the Archivist’s actions to the former President, the court said.