ON THE RECORD

The only thing harder than parsing Trump now is doing it for posterity

It’s impossible to talk about presidential archives without talking about Richard Nixon.

During his presidency, Nixon recorded 3,700 hours of his own conversations, with the goal of using them to write his memoirs. It would have been an innocuous enough decision, had the tapes not become key evidence in the Watergate investigation that ultimately led to his resignation in August 1974. In December of that year, Congress passed the Presidential Recordings and Materials Preservation Act (PRMPA), which mandated that all of Nixon’s records be turned over to the National Archives and Records Administration (NARA).

While Nixon was the first US president forced to submit his communications to public record, he wouldn’t be the last. In 1978, Congress passed the Presidential Records Act, which broadly requires that all presidential and vice presidential records go into public holding, with exceptions to be determined only in consultation with NARA.

Nixon litigated the release of his tapes until his death in 1994, claiming it was a violation of his constitutional rights. Around the same time, the late historian Stanley Kutler sued the National Archives for access to the still-unreleased tapes and Maarja Krusten, who worked on the Nixon tapes at NARA, was deposed as part of the suit. Her testimony revealed that one of Nixon’s representatives had asked archivists to restrict certain records for public release, but to label those redactions as though they were the decision of the archive. Krusten and her colleagues objected to the request and were accused of political bias; some of them were demoted. In 1992, a former archives employee characterized Krusten’s team to The New Yorker as “lacking sophistication.”

Krusten didn’t see it that way. “From where we sat, we were trailblazers, the first federal employees to apply statutory controls to government-owned, rather than donor-deeded, presidential records,” she wrote on her blog, The Changing Archives Sky, in 2010.

Kutler’s efforts eventually led to some 3,000 hours of Nixon tapes being released. But they also raised an important question: Are presidential archives inherently political?

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Presidential archiving, like so many government activities, involves a slew of laws, agencies, and federal employees. PRMPA only applied to the Nixon administration, while PRA covers all presidential and vice presidential records after 1981. Additionally, the The Federal Records Act, passed in 1950, governs federal agencies. The government staffers generally dealing with all of the above include both archivists and records managers. While both are trained in archival science, and they often collaborate, each job has a different purview.

“The records managers handle the records created by their employers and are conditioned by their legal, administrative, and financial requirements,” explains Luciana Duranti, a professor in the archival program at the University of British Columbia and former president of the Society of American Archivists (SAA). “Archivists make their decisions on the basis of policies, procedures, and processes developed for archival purposes, and have core values that guide the way they individually carry out their job.” In other words, records managers have one code of ethics; archivists have another, in addition to a Core Values Statement maintained by the SAA.

“Archivists have to write down why they made certain choices,” Duranti says, to contextualize those choices for future researchers like Kutler. “We are the ultimate decision-maker in terms of what the documentary memory of society will be.”

To complicate things, the Presidential Records Act has changed over time—as technology redefines what we consider relevant for record-keeping, and at the behest of the executive branch. In 1989, Reagan used an executive order to limit the act by allowing the former president or vice president to claim executive privilege over certain records (although NARA could override these claims). In November 2001, George W. Bush walked it back even further, allowing executive privilege claims to actually supercede the scheduled release of records. In his first full day in office, Barack Obama restored the PRA to its Reagan-era parameters.

 “We are the ultimate decision-maker in terms of what the documentary memory of society will be.”  The Federal Records Act has also evolved, most notably in November 2014, when a bipartisan effort amended the bill to include all forms of electronic communication and stipulated that presidential staff couldn’t conduct official business on a personal email account to avoid being part of the federal record. (Those amendments were made after Hillary Clinton’s tenure as secretary of state, although at least one watchdog report claimed that, by not turning over any official business conducted on her personal account when she left the federal government in 2013, Clinton didn’t comply with the FRA’s original iteration either.)

Although some op-eds implicated NARA in 22 million missing Bush administration emails, and later in missing IRS records, the agency’s “final determination as to what constitutes a federal record,” can only be applied to what’s turned over to the archivists. In other words, archivists have a great deal of power when it comes to which records make it into the public eye, but they can’t archive materials they aren’t given.

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For traditional communications like letters and phone calls, the ambiguity around record-keeping today is minimal. But the digital age has forced archivists to constantly rethink what constitutes a federal record. In 2009, then White House director of digital strategy Macon Phillips wrote that “everyone agrees that [emails meet] the [PRA’s] broad definition of presidential records, and that the White House is legally required to preserve them.” The Obama administration also preserved social media correspondence.

Under president Donald Trump, social media—and in particular Twitter—has become an even bigger question. If Trump deletes a tweet (as he does with some regularity), does that violate the PRA? Earlier this month, NARA chief David Ferriero assured the Senate that all of Trump’s tweets would be preserved, even the deleted ones.

“I would certainly hate to be the person that [had] to tell [Trump] about the Presidential Records Act,” says Pat Galloway, a professor of archival studies at University of Texas, Austin.

Indeed, one of the biggest overall challenges NARA faces is the completion of its digital archives—both preserving digital records, and digitizing analog records. Strapped for resources, the agency is bolstering its efforts with public-private partnerships, including one with Ancestry.com that lets the company keep the profits from access memberships in exchange for speeding the digitization process. While NARA will always be responsible for cataloging agency records in accordance with the law, funding for extras like rapid digitization is far from guaranteed. Additional budget is also tied to NARA’s ability to answer Freedom of Information Act (FOIA) requests within a 20-day window.

“Everyone overlooks funding,” says Galloway “When you work for the government, they take your funding if they don’t like what you’re doing.”

She gives an example from her time with the Mississippi Department of Archives and History. In the early 1900s, one-term Mississippi governor James Vardaman defunded the state archives for a year because he thought they were too sympathetic to the disenfranchised. (Vardaman ultimately earned the nickname “The Great White Chief” for his brand of white supremacy, which included supporting lynching.)

While NARA’s proposed budget is typically submitted to Congress in February, along with the president’s budget recommendations, an overview of Trump’s federal budget published in March doesn’t mention NARA, and the agency has not yet released its 2018 budget request to the public. In 2016, NARA requested $398 million in discretionary appropriations from Congress for this year, an $8.9 million increase over the previous year.

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The Mississippi example highlights another chief consideration for archivists: the “right” side of history, and the role played by archives in defending it. In 1978, for example, as a consequence of the horrors of the Vichy regime, the French government destroyed any records that cataloged citizens by religion. Similarly, WWII survivors were horrified when, in 1991, a 1940 census surfaced that contained racial profiling of Jewish, French, and foreign nationals. Despite the genealogical, medical, and anthropological value of such records, archivists decided to destroy them. As Duranti says, there are times when “the damage that can be made by what you preserve overrides the benefits of the knowledge that can be gained from it.”

 “I would certainly hate to be the person that had to tell Trump about the Presidential Records Act.”  Far more recently, Trump’s inauguration led to a robust SAA email thread; members were curious about the ethical questions archivists might face during his administration. Topics ranged from unbiased documentation of American conservatism at US universities to how the SAA would deal with a possible Muslim registry.

Jaime Taylor, a systems librarian in New York City, cites the Connecticut Four as a test case for how the library and archival science communities could react when faced with the targeting of US citizens. In 2005, four Connecticut librarians united with the ACLU to fight a Patriot Act provision requiring them to turn over patron browsing and borrowing records. The government eventually withdrew their request (and the accompanying gag order), but the failure of libraries to have a records-retention policy in place indicates they aren’t always proactive about protecting patron privacy. Taylor says they’ve likewise failed to get out front of the Muslim registry issue: “We shouldn’t have slept on that during the Bush administration.”

Some archivists argue that the introduction of any sort of bias in the documentary memory, even in the name of social justice, is at odds with archival theory. But many have cheered their profession’s shift toward righting historic wrongs through record-keeping (or record-destroying).

It’s “the archival equivalent of affirmative action,” says Rand Jimerson, director of Western Washington University’s Archives and Records Management program and author of Archives Power: Memory, Accountability, and Social Justice. A former president of the SAA, Jimerson was an archivist at the University of Connecticut when a donation of business company records created a rich perspective on the state’s corporate history. He helped secure a grant for labor archives that would offer a complementary perspective.

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The SAA’s core values are updated somewhat regularly—the last update, in 2011, included a section on diversity— but core value statements don’t cover every possible scenario. Human judgment is needed to fill in the gaps. When faced with an unethical proposition, such as the Nixon redactions, an archivist must lean on the courage of their superiors or else the SAA to protect their job. Ultimately, these are decisions of individual conscience.

“A records manager cannot oppose the creation of the database but can object to the way it is used,” says Duranti. At that point, “You’re not acting as an archivist. You’re acting as a human being.”

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