[A dear friend recently invited me to address a luncheon meeting of retired members of the NC Bar at the NC State University Club. A distinguished mixture of judges, attorneys, and law professors, the topic that they asked me to cover was Presidential Records and Mar-a-Lago, What’s Going On?]
Here are my remarks:
In his speech kicking off the 50th anniversary commemoration of World War II, Senator Bob Dole said this:
If the Library of Congress is our national library, and the Smithsonian Institution is our nation’s attic, then the National Archives can truly be called our nation’s safe deposit box, holding in trust the most important documents of our American life.
An archive is a collection of historical documents or records providing information about a place, institution, or group of people. Anything made or received in the course of doing the business of the federal government and having permanent value is maintained by the National Archives. Our records answer the question, what happened? When did it happen? Who was there when it happened? What did it look like and/or sound like when it happened? In other words, archives attempt to put you “in the room where it happened”.
Archives offer evidence for history books, magazines, newspapers, internet, and journal articles, court cases, genealogy, map making, motion pictures, art, and science. They are virtually the underpinning for words like fact, truth, rights, democracy, justice, defense, and safety. At the National Archives, the archivists approach their task with the care, integrity, and diligence that is worthy of our trust, and it’s a good thing they do...because you see, the National Archives of the United States is a unified archive, meaning it maintains the records of all three branches of Government. (The Canadian National Archives is the only other unified archive in the World) The records of the White House and the entire Executive Branch, The Records of Congress, The records of the Supreme Court and the entire Federal Judiciary.
In a constitutional system, protected through checks and balances, we have given the Archivist of the United States an extraordinary position...the intersection of the memory of all three branches of government...and we are not always comfortable with that level of power and access (more on that later).
After my early morning train commute, I would walk from Union Station to the National Archives Building at 9th and Pennsylvania Avenue NW. On the east side of the building the rising sun would illuminate these words carved into the granite:
This building holds in trust the records of our national life and symbolizes our faith in the permanency of our national institutions.
Trust, faith, permanency. Those were the words that I looked at as I approached my work every day and are the words that have inspired and influenced generations of people who have toiled in that vineyard.
Trump and the Records at Mar-a-Lago
One disclaimer as I begin…like Will Rogers used to say, “All I know is what I read in the papers” so I am unable to publicly claim any inside scoop. But I read the papers in the context of 35 years at the National Archives, a personal friendship with many of the players, and a knowledge of what is lurking between the lines. I have been flattered that old colleagues and the national press has reached out to me about my opinion…and that’s all that I have to share today.
So on to the topic of the day...Mar-a-Lago, which literally means “sea to lake.” Some may call it from bad to worse.
When Hugh Stevens and I first talked about my presentation today, it was just Mar-a-Lago in the news and the waters had not been muddied by President Biden’s and Vice President Pence’s sloppy handling of classified records. While making the narrative a bit more complicated, two things appear clear. Mr. Trump’s reaction to a request that the records be returned stands in contrast to the swift action and full cooperation of both Vice President Pence, and President Biden.
Second, Mr. Trump, true to form has attempted to cover his tracks with a series of lies. The first and most basic lie was that the records didn’t even exist…he had no such records, or alternately, he had already turned all records over that were covered by the subpoena. On that he lied both directly and through counsel.
He has further claimed the records are his (wrong). He has claimed that he has declassified the records in question (wrong). While he has publicly made that latter claim, no attorney has been willing to go into court and state that on the record. I’ll call that the Giuliani Rule…lying to a judge in either Federal or State Court is not a good career move.
The question that has remained unanswered is why would the former President take these records? Press reports are that the wild early speculation about motive seems to have been answered by the investigation. Evidence points away from Trump sharing intelligence with foreign powers or hoping to make a profit on the sale of documents to the collector marketplace. Even if he thought of the records as souvenirs, he has a few problems. Lying about the documents’ existence, refusing to willingly turn them over, and moving them to multiple hiding locations at Mar-a-Lago point to the most likely charge we may hear levied in the weeks or months ahead. Obstruction of justice.
Classified Records…Our National Secrets?
But let’s step back for a moment.
Do you like intrigue? Spy craft? Cloak and Dagger? We all do. It’s Sexy. And the secret, top secret, and code word classified documents are at the core of much of this fascination.
Do you want to know which one of the World War I documents the National Archives had the hardest time getting the CIA to declassify?
The formula for invisible ink.
But let me tell you where the story begins...a place not so sexy...a place we can even call bone crushingly boring...Records Management.
It is a term that was coined by my first boss at the National Archives, Herb Angel, and his partner Ev Aldridge during the Second World War when they were trying to get hold of the avalanche of documents generated by the United States Navy. It was WWII that turned trees into paper, and paper into more information than the world had ever known.
From the 1940’s right up until today, many of those records management principles are the same...but the thing that has turned the world upside down is the number of records managers.
Think back over your career. When I think of mine, I think of Betty Seimuller. Betty was the executive secretary in the first office that I worked in at the National Archives...she had the only IBM Selectric II typewriter in the office...she typed all our correspondence...she maintained the files...she was the office records manager for the 5 people in the office who generated correspondence. The other 15 people had other jobs and generated no correspondence.
Now when I say that Betty maintained the files...I mean that if you got caught going into the files, removing a file, or changing a file without Betty’s permission, there would be a hanging in the morning. She was the File Fascist, and everyone knew it. She was singular. She was trained. She was competent.
Turn the clock forward to 1985. From the Washington Post, September 11, 1985
With little fanfare, but lots of money, the federal government has become the nation’s single largest purchaser of personal computers, according to government and industry sources. By 1990, every white-collar employee in the federal government will have a PC or intelligent terminal, according to Ray Kline, former GSA associate director.
In 1985 that was 1.4 million federal employees. Wang Laboratories estimated that by 1990, every federal employee would have a PC on their desk. That was 2.2 million people. 2.2 million people who from their desktop could generate email, email with attachments, generate correspondence, send it to the office printer, and mail it. Make as many copies as they wanted and file it according to office protocols or not.
In other words, we had gone from a reliance on a relative handful of Betty Seimullers across the nation and the world, to 2.2 million Betty Seimullers by 1990.
The good news is that we have about the same number of federal employees today that we had in 1990, we have revolutionized on-line training, artificial intelligence is helping more and more...blah blah blah. But the size and dispersion of the records management challenge is gargantuan.
In that context, let’s talk about the White House.
In my experience, their records management is better than most.
Career corps of records managers attached to the Office of Management and Administration (Not OMB), that while headed by a political appointee is apolitical in its mission and outlook. Dave Noble who heads it up for Biden was formerly Chief of Staff at the Peace Corps…these guys are managers not driven by ideology. They sit in the Old Executive Office Building but spend a lot of time in and around the Oval Office. They are the instructors of WH administrative staff in all aspects of the Presidential Records Act. They brief all incoming administrations on the expectations of the Act.
The Presidential Records Act, passed in 1978 after President Richard M. Nixon had sought to destroy White House tapes during the Watergate scandal, specified that presidential records belong to the public and are to be turned over to NARA — the Archives — at the end of a presidency. The Reagan Administration was the first one to be covered by the current act and the vice-presidential inclusion was added in 2014. But the statute can be difficult to carry out in practice because government archivists have little ability to order presidents (or vice presidents) to comply.
The good news is that until the Trump Administration, administrations generally complied, and the jobs of the White House records managers were predictable and repetitive.
One thing upon which we can agree, they are paid too much to spend their days physically taping records back together. But according to Solomon Lartey, Records Management Analyst during the Trump Administration, that is exactly what they did. Secretaries in the Oval Office would routinely clean out the President’s trash can or collect paper from the floor around the Resolute Desk and bag up the torn documents that the President (against repeated instructions from Chief of Staff Kelly) had torn up and discarded. Lartey told Politico that the pattern seemed to be associated with how negative the content of the documents were. If positive, they had notes in the President’s handwriting in the margins. Those would only be torn in two pieces. Negative newspaper articles or unfavorable polls were torn repeatedly and were the hardest to reconstruct and tape back together.
These are the inside folks who also lead the efforts to pack up, inventory, and move the President’s records on Inauguration Day.
On inauguration day, they are joined by officials from the National Archives and Records Administration who arrive at the White House to supervise the final packing of paper records and the processing of laptops, and hard drives for transfer. All materials are transported by truck to Andrews Airforce Base to be loaded onto cargo planes for an airlift to the city that the president has chosen to host his Presidential library. The Archives makes arrangements for a storage facility capable of holding this massive trove of documents and hard drives for preliminary processing and safekeeping prior to final transfer to a presidential library.
What is now clear is that some presidential and vice-presidential records are not captured by this process. Over the years, some papers may migrate to the upstairs residence of the White House, and even offsite locations.
As I recently told the White House Bureau Chief for the Washington Post, “The honor system is absolutely there. The Archives does not have anybody posted in the Oval Office or following the president into the bathroom, obviously. And if you can’t do that, then the president dropping a couple of papers into a briefcase and going upstairs — you’re not going to be able to control that either.”
The Paper Mountain and Over-Classification
So why the sloppiness that has carried over to the Biden and Pence examples of the handling of classified records?
People in the federal records business have known two facts for many years that are just now coming into public view. The quantity of records is enormous and the overclassification of records creates a costly maze for eventual public access.
Current estimates are that the federal government creates over 50 million classified documents a year. Not pages, but documents. And with technology leading the way, that number is growing.
The last audit of the classification process was during the Obama Administration and at that time the objective estimate was that between 50 and 90 percent of what was being classified did not need to be classified at all, or was mislabeled. Members of Congress complain that their visits to the Intelligent Committee SCIF (Sensitive Compartmented Information Facility) often result in reading intel reports that have already been widely reported. And the routine period of classification? 25 years.
So, when you combine a huge volume of classified material with routine overclassification…might people who see this material every day, live around this material every day, might they become either cynical, casual, or both toward the protection of these state secrets?
Crime and Punishment
As to prosecution, those who steal Federal Records as icons or historical artifacts and sell them are likely to be prosecuted and punished. Likewise, those who illegally share the documents that contain America’s secrets with a foreign power, are also likely to wind up in jail. We call that Treason.
In my experience, those who steal records from the National Archives are ofttimes caught and routinely punished.
In my tenure our first high profile thief was Charles Merrill Mount.
Charles Merrill Mount
Charles Merrill Mount was an American artist. Born in Brooklyn, New York in 1928 as Sherman Merrill Suchow, he later changed his name and studied at the Art Students League of New York. He won a Guggenheim Fellowship in 1956 and travelled to Europe where he worked in Italy, France, Britain and Ireland. He returned to the United States in 1969, and worked in New York and Washington, D.C. He specialized in portraits and also produced landscapes and streetscapes in oil and watercolor as well as charcoal drawings. He was interested in art history and published biographies of John Singer Sargent (1955), Gilbert Stuart (1964) and Claude Monet (1966).
Mount was a regular researcher at the National Archives who was known to our staff…though eccentric in his fashion (pin-striped suit, bowtie, walking stick, and bowler hat) and using a fake British accent, he was a respected biographer and his requests for material, though ofttimes outside his usual research areas, didn’t raise questions. He would bounce back and forth between the Archives and the Library of Congress doing his research.
In those days we relied on a network of honest rare papers dealers as our safety net. In the summer of 1987, we got a call from a dealer in Boston that we referred to the Department of Justice.
In August 1987, Mount was arrested by FBI agents at a Boston bookstore in connection with the attempted sale of rare letters written by Abraham Lincoln, Winston Churchill, and others, which were apparently stolen from manuscript collections at the Library of Congress and the National Archives. He was indicted and tried in the United States District Court for the District of Massachusetts and sentenced by U.S. District Judge Rya J. Zobel to three years in prison in what is believed to be the largest theft ever of national archives.
Mount’s impact on my life was rather specific.
I was in charge of policy directives at the time and it was clear that we needed to change our research room policies. Thus came the birth of what we called the Clean Search Room. Researchers were no longer permitted to bring briefcases, large purses, coats, jackets, or suit coats into our research rooms. Lockers were installed and all prohibited items had to be stored before entering the research rooms. Pens, pencils, loose paper, and tablets were also prohibited, and the archives supplied writing materials free of charge to researchers. Records could be tabbed and brought to the center desk to be xeroxed by our staff and some self-service copying was allowed depending on the condition of the records. New guidelines were issued to monitor records requests more carefully outside the announced research subjects of our patrons. Mount had been autograph and correspondence hunting and under the new guidelines would not have been permitted to access records not in line with his specific, stated research plan.
Even with closing that door, our biggest vulnerability was and still is our own employees. Though a very rare occurrence, it has been the most difficult aspect of this problem.
The last step in our safety net was joining our colleagues at the Library of Congress in searching the briefcases, bags, and belongings of employees as they leave work each day.
North, Hall, Berger Records Destruction
Those public officials who have stolen and destroyed records to hide unlawful acts or policy failures while in office have fared better. Into this category I would place Oliver North, Fawn Hall, and Sandy Berger.
If you’ll recall, Oliver North and Fawn Hall when on a document shredding spree in the Executive Office of the President to hide their actions in the Iran Contra matter. My two favorite Fawn Hall quotes: “Sometimes you have to go above the law”; and “We shred everything”. In exchange for her testimony, she was granted immunity from prosecution. Oliver North, while convicted on three felony counts never served a day behind bars. The convictions were vacated and reversed and all charges against him dismissed in 1991.
Sandy Berger was an attorney who served as National Security Adviser under Bill Clinton. In 2003, Berger was called to testify before the 9/11 Commission and in preparation for his testimony was granted access to a classified report highly critical of the Clinton Administration’s response to early intelligence on al-Qaida plots. As a former senior official Berger was granted access to the files in the offices of Presidential Libraries. Outside the view of our staff, Berger removed critical pages of the report stuffing them in his socks and in his pants and placing them under a construction trailer adjacent to the Archives building. He retrieved the documents which were recovered in an FBI raid of his home in Georgetown. In 2005, Berger pled guilty to the charges and was sentenced to 100 hours of community service and probation and a fine of $50,000 dollars. He also had to pay $6,900 for the administrative costs of his two-year probation. He lost his security clearance and his license to practice law.
Evelyn Lincoln, In a Class by Herself
Evelyn Lincoln was the long-time personal secretary to John F. Kennedy from his election to the Senate in 1953 until his 1963 assassination. A devoted confidant, she was in the motorcade in Dallas, rode back to Washington on Air Force One with Jackie, and assisted her in the residence when they got back to the White House. In the days after the assassination, the National Archives gave her office space on the fourth floor of our building where she answered condolence mail and organized files for donation to us.
She always had an eye for history, and during her tenure in the White House, drafts of speeches, personal effects of the President, and the occasional classified record were put aside and wound up in her personal collection.
In 2003, a NARA researcher saw a map of Cuba for sale on the web for $750,000. The map was advertised as The Cuban Missile Crisis Map, "the most important Kennedy manuscript extant in private hands." White had sold the map, which had changed hands numerous times, ending up in the possession of a collector named Ralph McElvenny.
Robert White had been a close friend of Evelyn Lincoln and had both been given Kennedy artifacts through the years and been her agent in quietly selling memorabilia.
After some research, it was determined that the map was the one handed to JFK for his very first CIA briefing on the missiles in Cuba. It had his handwritten markings and notes reflecting his reaction to what he was hearing that day. It remains unclear as to whether he handed it to Evelyn Lincoln after the briefing or if she retrieved it from the table after the briefing was over. One thing was clear, it wound up in her personal effects.
In March 2002 the Department of Justice issued a temporary restraining order to block the sale of the map. When McElvenny’s attorneys sought to dismiss the case, a federal judge rejected the claim and ruled that if the materials were Kennedy's papers generated during his administration, they belonged to the John F. Kennedy Library under the deed of gift. The case was finally settled in the fall of 2004 and the map was transferred to the Library.
We in the history business strive for those happy endings. Satisfying in the present, essential for the future.