24 THENEWYORKER,NOVEMBER23, 2020
system was eventually set up so that if
you tried to delete an e-mail you’d get a
message that doing so was in violation
of the Presidential Records Act.) Clin-
ton claimed executive privilege again and
again, to protect himself from congres-
sional investigation; his staff argued that
congressional Republicans were on a mis-
sion to destroy him, and so was Kenneth
Starr, the independent counsel of the
Whitewater investigation. Evading the
Presidential Records Act became just
another move in the partisan chess game.
Post-Watergate Presidential papers
are seemingly more formal, more bu-
reaucratic, less intimate, and less can-
did, as if the less control Presidents have
over their archives, the less interesting
those archives have become. “This is
horseshit” is the sort of thing L.B.J.
might scrawl on a memo (or any of us
in a self-destructing text). You don’t see
that as much anymore. Don Wilson,
after leaving office, argued that the Pres-
idential Records Act compromised the
records of the Presidency. Records whose
preservation was intended to aid his-
torical research had become, instead,
ammunition for prosecutors, creating “a
climate for avoiding documentation or
perhaps even destroying it.” Wilson toldagreement with Bush, granting him
control over all “Presidential informa-
tion and all derivative information in
whatever form” after leaving office.
Critics of the Presidential Records
Act say that, along with the creation of
independent counsels, it contributes to
endless investigations and the politics of
scandal. Lloyd Cutler served as counsel
to both Jimmy Carter and Bill Clinton.
“Now every congressional committee
asks for every scrap of paper under the
sun,” Cutler said in an oral history con-
ducted in 1999. “Independent counsels
ask for every piece of paper under the
sun. In this Administration, I would guess
ten, fifteen lawyers are kept busy all the
time digging up documents by the thou-
sands, literally by the thousands.... It
stops people from writing memos. Many
people came to me and said, ‘Can they
really look in my diary?’ I said, ‘I hope
you don’t keep a diary. Sure, they can
look at your diary.’” And so they stopped
keeping diaries. And some of them started
conducting government business using
private e-mail accounts.
In some matters of secrecy, the Clin-
ton Administration took its cue from the
outgoing Bush Administration but prom-
ised to archive its e-mails properly. (A
me, “Vice-President Cheney once said,
when I asked him for his papers as chief
of staff, ‘I didn’t keep any.’” And, as Co-
lumbia Law School’s David Pozen has
argued, transparency does not always
advance good government: it can inter-
fere with the deliberative process, make
deal-making impossible, and promote
a culture of suspicion and mistrust.
Early in George W. Bush’s first term,
his Administration disabled the auto-
mated e-mail archive system. Nearly all
senior officials in the Bush White House
used a private e-mail server run by the
Republican National Committee. Then,
between 2003 and 2009, they claimed to
have lost, and later found, some twenty-
two million e-mail messages. Nor has
this practice been limited to the White
House. Hillary Clinton’s use of a per-
sonal e-mail account on a private e-mail
server to conduct official correspondence
while serving as Obama’s Secretary of
State violated the Federal Records Act,
which allows the use of a personal ac-
count only so long as all e-mails are
archived with the relevant agency or
department; Clinton’s were not. “The
American people are sick and tired of
hearing about your damn e-mails,” Ber-
nie Sanders said to Clinton in 2015, during
a primary debate, all Larry David-like.
But, closer to Election Day, renewed at-
tention on Clinton’s e-mails diminished
her chances of defeating Trump.
The evidentiary shell game has been
carried over from one Administration
to the next. Reagan tried to protect Nix-
on’s executive privilege; Bush tried to
protect Reagan’s. That so many staff
members who served in earlier Repub-
lican Administrations serve again under
later Presidents has made their com-
mitment to defying the Presidential
Records Act even more ardent. This was
something keenly felt by George W.
Bush, who, after all, was also concerned
about protecting his father’s legacy
(which is yet another argument against
political dynasties).
In 2001, when the twelve-year restric-
tion on the Reagan papers expired, they
did not all become available to the pub-
lic, because George W. Bush signed an
executive order that had been drafted by
his young associate counsel, Brett M.
Kavanaugh. During the Clinton Presi-
dency, Kavanaugh had served as an aide
to Ken Starr. In that capacity, he had ar-“I knew I loved you when I no longer found
the sound of your eating excruciating.”