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Anatomy Of A Sneer

December 8, 2008 by John H. Taylor | Filed Under News media, Nixon Library, Watergate 

The LA Times continues its federophilic coverage of the Nixon Library with this ungenerous reflection by Karin Klein.

Last Thursday, her colleague Christopher Goffard left readers with the misleading impression that the transfer of the library to the National Archives has resulted in the opening of more Presidential records than would otherwise have been the case.

Klein called us later in the day to ask some follow-up questions. As she recounts it,

“What kind of changes to the library did you want to ask about?” a spokesman for the foundation inquired guardedly when I called for information Wednesday. And then, sardonically, “Oh, yes, I would expect the L.A. Times to be asking about Watergate.”

Well, considering that the archives had just released notes and recordings detailing Nixon’s attempts to smear perceived “enemies” — anyone who disagreed about the Vietnam War — that would seem the natural question.

My colleague couldn’t possibly have been more sardonic than Klein was in her piece. As a matter of fact, his question was natural precisely because her questions were coming from the LA Times — which, for instance, last year falsely attributed to reporter-hating Nixonians a famous scholar’s quote about the the Washington Post’s Watergate ethics.

Klein says she visited the Nixon Library to observe our old Watergate gallery. She evidently observed poorly:

When I first visited the library nearly five years ago, its greatest quirk was the Watergate exhibit, which asserted that the break-in and coverup that ushered in an era of mistrust of government were actually caused by the zeal of two unethical Washington Post reporters “to create a Watergate story.”

That’s an image — zealous Carl and Bob dressed up as zealous Hunt and Liddy. Actually, neither we nor anyone else on the planet ever claimed that “the break-in and coverup…were actually caused” by newspaper reporters. But at the LA Times, you can write whatever you want about Nixon Foundation folks, no matter how fanciful or confusing, and it gets past editors and copy editors and goes right into the first draft of history. Why? Because we’re a small band of people — or, as Klein says in her article, “cronies” — who believe that notwithstanding his sins and omissions the 37th President deserves a balanced portrayal in view of his course-changing policies as a statesman and wartime commander-in-chief. For whatever reason, our perspective is evidently inconvenient to the LA Times.

Our old Watergate exhibit did include a quotation about “Woodward and Bernstein’s failure to address any of the ethical deficiencies of their investigative reporting, including offering of bribes, illegally gaining access to telephone numbers, and talking to members of the grand jury.”

We admit it. We definitely had that quote in the gallery. And it was taken word for word from Stanley Kutler’s widely praised book The Wars Of Watergate.

Klein does seem to have intuited that we had something against Woodstein. Goffard was more clear if not more accurate. In an article last year in which he accused us of despising poor Mr. Bernstein just on the evidence of the Kutler quote being in our gallery, Goffard went so far as to proclaim that our charges against the reporters were false.

Goffard and Klein should have taken it up with the person who had actually made the charges. But Kutler is one of the most respected scholars in the country. So the LA Times wraps his inconvenient statements around our necks. If it were you, you’d be sardonic, too.



Comments

8 Responses to “Anatomy Of A Sneer”

  1. Maarja Krusten on December 13th, 2008 7:46 am

    I can only speak from the perspective of a federal archivist but after reading this essay, I did compose and send in the LA Times a letter to the editor. The LA Times published my letter today, Dec. 12. Given the short length required for such letter (less than 200 words), I covered as many points as I could — from my perspective. See
    http://www.latimes.com/news/opinion/letters/la-le-saturday13-2008dec13,0,4932708,print.story

    or the compressed link below

    http://shrinkster.com/13d7

  2. Maarja Krusten on December 13th, 2008 10:53 am

    Sorry, in submitting the comment here this morning (it still awaits moderation due to the URL that I included) about my letter to the editor about the Nixon foundation, I erred on today’s date. I wrote “today, Dec 12.” Of course, today is December 13 and my letter is published in the Dec. 13 Los Angeles Times, not yesterday’s edition. When you’re home on a month-long vacation, it’s easy to lose track of dates. Hey, at least it’s not like I dated a check 1973–as I sometimes did in 1983 while I was working all day with Nixon’s records as a NARA employee!

  3. John H. Taylor on December 13th, 2008 3:50 pm

    It was one thing to see your letter on my screen, but I happened to see a paper paper this afternoon as I wandered through my old seminary’s library, reminding myself how it smelled (bet you know how that goes). Very exciting to see it in print. Our thanks, MK!

    As for transparency on the Foundation side, when Tim and I set procedures in place for the processing of Foundation-owned files, we had an exchange of documents, or e-mails, or something. I’d be delighted to have it released. As for the Presidential collections, my guess is that our pattern of non-objection could be easily documented, should a reporter or historian ever set out to do so.

    Thanks again. Reading your letter was an unexpectedly moving experience.

  4. Maarja Krusten on December 14th, 2008 7:46 am

    You’re welcome. Kind of a “Nixon goes to China” thing. Having once recipient of some “slings and arrows” (as one of the generation of archivists who grappled with RN’s lawyers, I’m uniquely positioned to say, “hey, wait a minute” now. And, of course, I know what’s in many of the records so I can judge how present releases compare with what my generation of archivists once marked for opening. If *I* say openings have worked much as they should have — in terms of outcomes — it *means* something.

    As to process, it gets complicated. In 1987, RN’s lawyers filed publicly noticed claims over 42,191 documents under the 36 CFR 1275 process when federal archivists proposed to open the White House Special Files. NARA was able to tell researchers in 1996 that of that number, it upheld some claims, returning 8,992 items to Nixon’s estate, but that it retained 33,199 documents in government custody. Of those, it opened 28,035. (See NARA press release, October 3, 1996.) That type of transparency no longer exists because procedures changed. Given the shift, can anyone actually prove non-objection?

    The Kutler tapes settlement agreement states that NARA and the Nixon estate will work informally to resolve differences over what should be released. This happens behind closed doors. My guess would be that there may have been *some* differences in the past, which may have lessened over time. But is there really a way for reporters to gain insights into that?

    I think the Foundation largely could release or post its copies of correspondence with NARA, after running them by your lawyers. (You couldn’t release everything. If you had correspondence which referred to the substance of any portions of archival materials which ultimately were restricted, you’d have to redact that.) I think NARA generally could *post* some of its correspondence with the Foundation (same caveat). Such voluntary disclosure by NARA might work. But, odd as it sounds, as a process separate from voluntary disclosure, if a requester resorted to FOIA, NARA might release little.

    I don’t think NARA would release much of its correspondence with the Nixon Foundation if an historian or reporter *filed FOIA requests* for it. It might withhold substantial portions under an exemption for pre-decisional information, leaving you in a position where no one could verify non-objection to archival openings. FOIA depends on case law. Just a guess on my part, but I think NARA’s lawyers might withhold most correspondence with the Foundation so as not to weaken their ability to withhold the same class of information in correspondence with Foundations of other Presidents (RN’s successors). Those foundations might hold varying views on transparency.
    My generation of archivists debated some related issues nearly 20 years ago. When the Archives released the Watergate Special Prosecutor tapes, the New York Times reported on June 5, 1991 that “Mr. Nixon did not contest the release of the latest transcripts, [the Archives’ spokeswoman said]. Mr. Nixon’s lawyer has previously said his client would not contest the release of transcripts relating to the Watergate affair.” But Kutler’s lawsuit revealed in 1992 that NARA did receive informal input from Nixon’s agent in 1989, in the form of 70 items drawn from Watergate tapes reviewed. Extracts from some of my testimony in Civ. A. 92-662-NHJ follows.
    I testified in the Kutler lawsuit that during a meeting with a NARA official in 1989, a colleague cited some examples from the list of 70 items and told the official “that in an independent review he would not have selected those materials for the application of the [privacy] restriction.” I noted in my testimony that the official “responded on at least one of them, that he tended to agree.” I also testified that the official referred to examples of archival work at the Johnson Library. “I shook my head, at that point, because I felt they were not relevant, and he noticed that and said, ‘Don’t shake your head, Maarja.’”

    I noted that one of my friends, a supervisory archivist, “at that point, said ‘. . . you don’t understand. We are operating under different regulations. We don’t do things exactly the same way as you would in a donor-restricted library. We have certain procedures, such as [the] Presidential Review Board, which we must use for consideration of such objections, and that we . . .want these items to be withdrawn in a fashion similar to objections raised in connection with the opening of the White House Special Files.”

    I testified that one of my colleagues “said that he did not feel comfortable lying to researchers and that he objected to being asked to do something that was unethical, improper . . . .” I testified that the official “asked, ‘Are you all telling me what you’re being asked to do is unethical?’ No one dare reply directly to that, but I did tell him that, based on my experience in working with researchers, such as Bruce Oudes, Stanley Kutler and others, that I had noticed that they asked very pointed questions about our processing, in the sense that they wanted to know the procedures that were being followed in separation of independent archival review from President Nixon’s objections. I was thinking of the fact that Mr. Oudes had filed a FOIA to obtain access to the White House Special Files objection list, and I cautioned . . . that it was my expectation that anything we did with the tapes would be under equally close scrutiny. . . ”

    I told the lawyers under oath in 1992 that after the 1989 meeting, in talking to colleagues at the Nixon Project, “I also expressed an opinion that we weren’t serving the former president very well, and that’s based on the fact that I had worked on Mr. Nixon’s ‘68 campaign and was known amongst staff members as someone who had supported him in his policies and had some personal sympathy for him. I felt that the worst thing that could happen to him would be to be accused of covering up the cover-up, and that we should protect him as well as ourselves and act in conformance with our regulations.”

    Of course, we working level archivists didn’t prevail in 1989 and Nixon never again filed formal claims after 1987. But what if NARA had continued to use the public notice process, at least in some instances? RN’s lawyer, Stan Mortenson, kept pushing to have RN treated “just like other Presidents.” Looking back, was that the best thing for him to do, given the fact that they had donor-restricted rather than statutorily-controlled Libraries? Perhaps short term pain for RN’s side while he was alive, in terms of continuing to use the potentially embarrassing 36 CFR 1275 formal claims process, might have led to some long term gain. Reasonable people can disagree. There are many ways to resolve differences over archival disclosures. I see pros and cons both to filing public claims and to working things out behind the scenes, as under the settlement agreement.

  5. Maarja Krusten on December 14th, 2008 9:36 am

    Kutler’s lawsuit resulted in revelations and allegations which most other Presidents and the federal archivists working with their records have not had to endure. Whatever happens does not usually explode into public view. Kutler’s lawyers asserted in one of their pleadings that

    “While the Archives characterizes the relationship between Mr. Nixon and the Archives as a ‘consultative relationship,’ under the Archives’ regulations, former President Nixon does not serve as a consultant to assist the agency in its processing of the Nixon materials. Rather, he is a potential challenger of the Archives’ processing decisions. . . It is hard to imagine someone who is more of a past and potential adversary of the Archives. . . it is in the context of such litigation threats that Mr. Nixon is attempting to influence archival decisions, as is borne out by the Mortenson Declaration, which confirms that Mr. Nixon uses litigation threats as bargaining chips to convince the Archives to change its archival processing.”

    Of course, if the Kutler lawsuit could have been avoided, this assertion never would have made its way into court. But it’s there, for better or worse.

    I happen to believe that whatever happened in the past (it’s hard to pin down all the details even for that), these days, NARA does not have to grapple with threats of litigation by RN’s estate. But that’s just a sense that I have. It’s only a guess, nothing more. There is no paper trail available to me or any other member of the public — including reporters or historians — to fill in the gaps of what happened after the settlement of the Kutler lawsuit in 1996.

    As I’ve mentioned in the past, RN had the misfortune to be a transitional figure. The public had no statutory means of finding out how donor-restricted, pre-Watergate Presidential Libraries handled input from former Presidents. RN’s successors, starting with Reagan, have a statutory means of filing privilege claims under the PRA and E.O. 13233 over what NARA proposes to release. 36 CFR 1275 covers RN’s records, alone. Although I didn’t anticipate during much of the 1989s some of the issues that later came up, looking back, I can see why there was so much turmoil.

  6. John H. Taylor on December 14th, 2008 7:56 pm

    Thanks for those two responses, MK.

    I’ve played a role in the matters you discuss on two occasions, one early, one late.

    I spent some time, along with other Nixon agents, going through the White House Special Files to identify the 42K-plus documents to whose opening RN objected in 1987.

    The second phase is ongoing: The tapes openings that began after RN’s death and after the Kutler settlement.

    Please don’t hold me to these precise details, but as I recall, without checking any records, we made some informal suggestions (not objections) either when the abuse of power materials were opened or when the first chron was opened.

    On another occasion, there was a discussion involving a prominent living person on a recording, and we suggested to NARA that it might want to take the interests of that person into account before opening the segment. The agency took our advice and withheld some of the content about that living person — ironically enough, causing the conversation to reflect more prejudicially on RN than it otherwise would have.

    Beyond that, with all the millions of pages of records and thousands of hours of tapes that have been opened, there have been neither formal objections nor informal consultations aimed at keeping materials from being opened. I can’t say the Foundation reviewer never wandered down the hall (without my knowledge, but rightly assuming he had my proxy) and suggested to Nixon Project officials that they reconsider opening a segment. But actually, I doubt that he would have.

    So there you have it: 13 years without a formal objection and with literally a handful of consultative comments, very early on. As for the written records, we haven’t looked over NARA’s shoulders at all.

    We also deeded all the third-party political, without reviewing it beforehand or removing any of it.

    How would journalists learn this? They would ask us, and then check our assertions with Karl and others with whom we worked over the years.

    My thanks once again for the letter.

  7. Maarja Krusten on December 15th, 2008 7:25 am

    Thank you, John! Very interesting to read your recollection of how the consultation/objection process has played out. I don’t know whether Karl Weissenbach and others would be allowed by NARA to speak to journalists about this. It is good to have you on the record, however. In my published letter in the LAT, I went out on a limb and stated firmly that the battles decreased and that I had no problems with what has been opened after 1996. BTW, did you see the two e-mails I sent you on Saturday?

    That the Nixon estate deeded the third party political was a good move, one for which neither journalists nor historians have given you sufficient credit. You did not have to do that — it was entirely voluntary since under law, such material had been designated RN’s property (which passed on to his estate). I’ve actually sent in letters to the editor to newspapers such as the Post over the past year in which I’ve mentioned that this reflected well on Nixon’s daughters. (The letters were not selected for publication.)

    Review is challenging and few people who have not done it understand that. Of historians, Professor Norman Graebner actually put it best, when he testified on the PRMPA in 1975. Dr. Graebner (whom I later had the pleasure of meeting) noted that

    ““We have two extremes, perfect or total accessibility and absolute privacy, and these two are antagonistic positions at the end of a long spectrum and the task of any archivist is to find that point along the spectrum where one finds that happy medium between what I would call legitimate accessibility and the protection of third parties and privacy. . . . to find that point on the spectrum is a very difficult task and perhaps not even two archivists would come at the same point in that spectrum, but historians are constantly quarreling with the archivists of the [traditional donor restricted] Presidential Libraries because the archivists apply more conservative judgments than many historians think should be applied. . . . that point on the spectrum should be pushed somewhere to the side of where it now is but not to any extreme.”

    Rarely do journalists convey that, perhaps because it is more dramatic to present good guys and bad guys grappling with each other! When newspapers such as the NYT published reports in the late 1980s about RN’s claims over the 42,191 documents, some historians expressed alarm. I still was at NARA then and I remember thinking, well, they just don’t understand the process or the concept of private-political. As I mentioned here previously, Marin Strmecki put it well, when he said in a letter to the editor in the late 1980s in response to historians’ cries that reasonable people could disagree. On the other side, Stan Mortenson was quoted as saying it would make your hair stand on end to see what NARA’ did not think constituted privacy. That was less helpful than Marin’s comment but the good guys/bad guys framing might have reflected the way a litigator frames issues.

    As to how events played out since 1996, I do wish more supporting documentation were available but I think it would be hard for journalists to get them out of NARA. That reinforces some of the myths that have developed. In terms of audit trails, what we on the outside have mostly is “testimonial evidence,” with little ability to get access to supporting contemporaneous documentation. I think that information vacuum actually increases the chances that people will speculate or misunderstand what has been happening recently. That’s too bad!

    But even here, there are no easy answers to what should be made public about processes and what should remain closed. As Larry Hackman, former director of the Truman Presidential Library, recently noted on an archivist’s blog (Kate Theimer’s Archivesnext) about Anthony Clark, the researcher who has filed FOIAs to access the records of the Office of Presidential Libraries, “Researchers like Mr. Clark won’t be pleased with the results, and many of the folks who communicated in or were communicated about in the files won’t be happy with what is opened. Doesn’t mean that NARA practices have been what they should be, only that they are understandable from an office that must pay more attention to politics and relationships ‘at the highest level’ than any other office in the agency.”

    Glad to write the letter — and glad the LAT saw fit to publish it!

    All my best,

    Maarja

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