The Reagan Administration aided the
efforts of Nixon’s lawyers, who argued
that the archivist of the United States
has no discretion in evaluating claims
of executive privilege but must, instead,
defer to them without review. In 1988,
in Public Citizen v. Burke, the D.C.
Circuit Court ruled against Nixon and
the Administration. The next year, Rea-
gan left office, and his staff packed up
his papers.
Reagan’s was the first Administra-
tion to use e-mail. Preparing to leave
the White House, people in the Ad-
ministration tried to erase the computer
tapes that stored its electronic mail. The
correspondence in question included
records of the Iran-Contra arms deal,
which was, at the time, under criminal
investigation. On the last day of Rea-
gan’s Presidency, the journalist Scott
Armstrong (formerly of the Washing-
ton Post), along with the American His-
torical Association, the National Secu-
rity Archive (a nonprofit that Armstrong
founded, in 1985), and other organiza-
tions, sued Reagan, George H. W. Bush,
the National Security Council, and the
archivist of the United States. That law-
suit remained unresolved four years later,
in 1992, when C. Boyden Gray, a law-
yer for the departing President, Geo-
rge H. W. Bush, advised him that de-“And he claims he hasn’t been to the groomer since before quarantine.”struggle over Presidential records that
began with Watergate and Nixon’s tapes.
In 1974, a special prosecutor subpoe-
naed the Nixon Administration for the
Watergate tapes. The White House re-
fused to comply. The case went to the
Supreme Court. In United States v.
Nixon, the Court devised a balancing
test that measured the argument for ex-
ecutive privilege against the judiciary’s
interest in criminal justice, and ordered
Nixon to turn over the tapes on July 24,
- Fifteen days later, Nixon resigned,
and proceeded to sign an agreement
with the General Services Administra-
tion that would have allowed him to
destroy the records of his Presidency.
Congress then passed the Presidential
Recordings and Materials Preservation
Act, which prohibited Nixon from de-
stroying the tapes. Nixon sued but, in
1977, in Nixon v. Administrator of Gen-
eral Services, he lost. Still, his legal bat-
tles continued into the nineteen-nineties.
To avoid all this happening all over
again with another President, Congress
in 1978 passed the Presidential Records
Act. It puts Presidential records in the
public domain; the public can see those
records five years after the President
leaves office, though a President can ask
to extend those five years to twelve for
material deemed sensitive. No longer
are Presidential papers the private prop-
erty of the President. The act also di-
rects every White House to “take all
such steps as may be necessary to as-
sure that the activities, deliberations,
decisions, and policies that reflect the
performance of the President’s consti-
tutional, statutory, or other official or
ceremonial duties are adequately doc-
umented and that such records are pre-
served and maintained as Presidential
records.” What counts as “such records”
has been much contested. The archivist
of the United States is appointed by the
President; the archivist cannot tell the
President what to do or what to save
but can only provide advice, which the
President can simply ignore.
The Presidential Records Act was
scheduled to go into effect on January 20,
1981, with the Inauguration of the next
President, who turned out to be Ron-
ald Reagan. Reagan’s Attorney General,
Edwin Meese III, decided to help Nixon,
who was still fighting in court for con-
trol of the archives of his Presidency.
stroying things like telephone logs was
not a violation of the Presidential Re-
cords Act, because, he asserted, the act
does not cover “‘non-record’ materials
like scratch pads, unimportant notes to
one’s secretary, phone and visitor logs
or informal notes (of meetings, etc.)
used only by the staff member.”
Non-record records that the Admin-
istration sought to destroy also included
the White House’s digital archive of
e-mail, a body of evidence that was the
subject of yet another congressional in-
vestigation, this time into whether Bush
had ordered the State Department to
search Bill Clinton’s passport records as
part of an effort to discredit him during
the campaign. A federal judge placed a
ten-day restraining order on the Bush
White House, banning the destruction
of any computer records. “History is full
of instances where the outgoing Presi-
dent has decided to erase, burn or de-
stroy all or substantially all Presidential
or Executive Office of the President
records before the end of his term,” the
judge declared. But on January 19, 1993,
the night before Clinton’s Inauguration,
the Bush Administration deleted those
computer files, in defiance of the court
order. Near midnight, the office of the
archivist of the United States, Don W.
Wilson, a Reagan appointee, made an