death, and the depredations of Harding's widow-fortunately offset in part by the courageous actions of Ken Duckett-are almost beyond comprehension." Not until 1960 was the issue of private ownership directly confronted. After President Eisenhower announced the donation of his papers to the people of the United States, Julian P. Boyd, editor of the Papers of Thomas Jefferson, and Lucius Wilmerding, Jr., an ex-government official and author on the American political system, wrote a letter to the New York Times asserting that: "The records of the office of the President belong to the people who created that office. They cannot be given away by one who happens to be its incumbent." The two scholars rejected the "notion-that the privilege of the President follows a man into his retirement as a personal right to be exercised by himself for the duration of his natural life and then to be descendable to his executors and heirs. No private citzen is authorized to determine what papers of the Presidency the current holder of the office may or may not see.' ." "No response to this letter has been found and not until late 1973 did various newspaper editorials begin to call for the public ownership of presidential papers.30

Congress did not carefully consider the issue of ownership of documents when it passed the legislation in 1955 establishing the presidential library system. Because of this omission, it is my contention that the entire system is a house of cards whose existence is dependent on the good will of individuals who have resided at 1600 Pennsylvania Avenue in the city of Washington. When President Nixon announced in his November 17 press conference that, if the papers deduction were disallowed, he would be glad to have the papers back because they were worth more than he had claimed, all of NARS should have shuddered. Suppose he had removed the papers and proceeded to sell them to the highest bidder. This issue may appear to be moot, at least for the moment, because Nixon agreed to leave the papers in the National Archives and that agency has also announced that, in any event, they regard the contribution as a valid gift not subject to recall even though the deductions were denied." But the very title of the 1955 legislation reveals the inability of NARS to adequately protect the public interest. Public Law 373 provides "for the acceptance and maintenance of Presidential libraries." In other words, the papers belonging to a president will be accepted and maintained in a facility built at private expense. A reading of the transcript of the hearing on the legislation makes it clear that two purposes overrode all other considerations: (1) do nothing which will appear to dictate to the President what he must do with his papers and (2) make every effort to save the taxpayer's money by depending on private sources for the necessary funding to build the libraries. Al E. Snyder, Assistant Administrator in the General Services Administration, explicitly stated these views in a letter to Senator John L. McClellan (Democrat, Arkansas): "This legislation is not mandatory, but permissive in character. In the best tradition, it provides an opportunity for former Chief Executives and other officials to make disposition of their personal papers and documents subject to such restrictions as may appear to them to be appropriate." Snyder added that: "Under this legislation, the Government will be able to take advantage of the generosity of a President and of his associates and friends whose interests in a memorial would provide the general public with the expensive physical facilities and equipment for an archival depository at no cost to the Nation's taxpayers."

The Archivist of the United States at the time, Wayne C. Grover, in his testimony reiterated the points made by Snyder and repeated the standard argument about the right of constitutional officers to determine for themselves the dis

28 Buford Rowland. "The Papers of the Presidents," American Archivist 13 (July, 1959): 195-211; Kate Stewart, James Madison as an Archivist," American Archivist 21 (July, 1958) 243-57; William H. Runge. "The Madison Papers, American Archivist 20 (October, 1957): 313-7; "The Present Status of Presidential Papers," Manuscripts (Fall, 1956): 9-15; Donald E. Pitzner, "An Introduction to the Harding Papers." Ohio History 75 (Spring/Summer, 1966): 76-84; New York Times, December 25, 1925, p. 1; Kenneth W. Duckett and Frances Russell, "The Harding Papers: How Some Were Burned. . . And Some Were Saved." American Heritage 16 (February, 1965): 24-31 and 102-110. 29 New York Times, May 1, 1960, Section E, p. 10.

30 New York Times, December 11, 1973. p. 44 and January 8, 1974. p. 32: Milwaukee Sentinel, December 27, 1974. p. 14; Milwaukee Journal, January 6, 1974. Part 5, p. 2; for a popular analysis of the historical developments which led to this situation. see: "Who Owns the Papers of a President?" Washington Post, December 18. 1974. p. 1: "Presidential Papers Snarl Began in 1797," Chicago Tribune, January 21, 1974 and "A Paper Dispute. Newsday, December 30, 1973.

31 New York Times, April 5, 1974, p. 19.

32 "Providing for the Acceptance and Maintenance of Presidential Libraries," July 28, 1955. Senate Report 1189, 84th Congress, 1st session, pp. 6-8.

position of records they have created while working for the government. He did acknowledge that "what has been done with them in the past in many instances has been most unfortunate. They have fallen into the hands of heirs, they have been dispersed, in many cases they have been burned up in fires." 33

If the National Archives and Records Service agreed that the record keeping of ex-presidents had been "unfortunate," it could have advocated legislation requiring the Chief Executive to turn over his presidential files to the National Archives. This alternative would likely have faced political resistance both in the Congress and from the White House. But opponents had nothing to fear. No spokesperson for such a plan testified before the committee. Everyone accepted the premise that the Office of the President was not subject to such legislation. Whether NARS took this position in response to a desire not to confront the President on such an issue during the height of the Cold War, or in respect for the high public esteem enjoyed by President Eisenhower, or because the National Archives feared it did not possess sufficient political strength to fight after losing its efforts to avoid being subordinated in the General Services Administration in 1949 is not known.

What is clear, however, is that the Federal Government trusted the preservation of the single most important body of records it generates not to the protection of the law but to the good will of each succeeding president. The testimony reveals no concern about the possibility that some president at some time might refuse to give "his" or "her" papers to the people." It must be conceded that so far no president has failed to respond to appeals for the establishment of a presidential library. But apparently nothing could be legally done if a president should attempt to sell the papers piecemeal to the highest bidder. Some may counter that such worries are nonsense. Are they as nonsensical as the current practice of a constitutional republic allowing its elected head sole control of records supposedly created by those elected and appointed to serve the people? Perhaps such an arrangement would be satisfactory in a monarchy, but even there the crown jewels belong not to the ruler but to the realm.

These concerns are not theoretical or academic. This summer former President Nixon received an offer of one million dollars for his Vice Presidential papers. How can anyone say that the ex-president would not be favorably inclined to a similar offer for his Presidential files now that he faces larger debts, heavy legal fees, and the prospects of life without the perquisities he enjoyed in the White House? Nixon's resignation, the recent IRS audit for alleged tax irregularities, the indictment and/or conviction of some Nixon Foundation board members, all raise serious doubts about the future of privately-funded presidential libraries. Will the ex-president feel any obligation to a nation which has subjected him to such humiliation? Will he even feel safe in giving his papers to the country now that he is subject to both civil and criminal suits. He might find "his" papers being used against him. For whatever reasons, Nixon on the day he announced his resignation, wrote the GSA closing all his papers, not until the end of his administration as the original deed states, but until 1985. The matter of whether he may alter the terms of the deed after it has been accepted by NARS is another example of the shaky legal foundation of presidential libraries. Earlier, on the advice of his appraiser, Ralph Newman, Nixon had some of the more valuable letters removed from the files already deposited in the National Archives. Would that both the Founding Fathers

33 "To Provide for the Acceptance and Maintenance of Presidential Libraries and for Other Purposes," House of Representatives Hearing, June 13, 1955, p. 45: House Joint Resolutions 330, 331 and 332. For accounts of the preservation of Federal records prior to the establishment of the National Archives see: Henry P. Beers, "Historical Development of the Records Disposal Policy of the Federal Government Prior to 1934," American Archivist 7 (July, 1944), 181-201 and Fred Shelley, "Manuscripts in the Library of Congress: 1800-1900." American Archivist 11 (January, 1948) 3-19.

34 U.S. At Large, Volume 69, Chapter 859, pp. 695-6 for text of Public Law 373 establishing Presidential Libraries in 1955; Elizabeth Hawthorn Buck, "General Legislation for Presidential Libraries," American Archivist 18 (October, 1955), pp. 337-341; Congressional Record, 1939, pp. 4431, 4543-4 and for 1955, p. 8655: Frederick W. Ford, "Some Legal Problems in Preserving Records for Public Use." American Archivist 20 (January, 1957) pp. 41-7; Grover, "Presidential Libraries." Indian Archives 11 (JanuaryDecember, 1957), p. 5; Interagency Records Administration Conference, "Presidential Libraries: Their Growth and Development." 1958, pp. 8 and 16. See also Public Laws. Chapter 849, September 5, 1950, p. 588; O. Lawrence Burnette, Jr., Beneath the Footnote: A Guide to the Use and Preservation of American Historical Sources (Madison: State Historical Society of Wisconsin, 1969), pp. 30-1 and 98-99.

and those involved in th passage of the Presidential Libraries Act of 1955 had considered these awful possibilities."

The Presidential Libraries, however, originated not in response to abstract constitutional concepts but, rather, out of the desire of one man to give the American people a record of his career as President. That man, of course, was Franklin Delano Roosevelt. In 1938 he begin to make provisions for a library for his papers, and the institution that developed at Hyde Park served in many ways as the model for those libraries which followed. Herman Kahn, who became director of the library in 1948, faced enormous practical problems and every archivist can take pride in the superb way he carried out his duties. Within a few years the vast bulk of the FDR papers was open for scholarly research and every effort has been made to serve historians of the period. Without doubt the incredible volume of archival material which had to be processed made it difficult to worry about the possibility of unhappy constitutional precedents being established. Kahn and his staff had to operate the Library in a manner that would satisfy future presidents if the National Archives were to have any hope of additional libraries being established.

Although FDR expressed much concern about preserving the historical record of his administrations, he also believed strongly in the necessity of confidentiality between himself and his advisors. For example, he wrote a memo to the Secretary of State in 1943 objecting to notes being prepared at diplomatic conferences. "Four people cannot be conversationally frank with each other if somebody is taking down notes for future publication. I feel very strongly about this." Perhaps historiography does not unduly suffer from a government' passion for confidentiality if the entire record is utlimately made available, but a fully informed citizenry is impossible under such conditions. Historian Howard K. Beale commented on this problem in an address before the luncheon meeting of the old Mississippi Valley Historical Association. He quoted FDR's memo and then observed "many officials. . . do not comprehend why in a democracy it is important to give the people and their historians full knowledge of what has been done in the past." In this case, Roosevelt wanted to stop the publication of the record of a conference following the end of World War II."

The next year Herman Kahn addressed the AHA and he criticized Beale's position. Kahn asserted that "historians will never persuade high public officials that the first and most important responsibility of statesman is to produce rich, full documentation in order that good history may be written."" He asserted "the quality of this byproduct will be high only if we are able to allay the fears felt about its use by such men as . . . Roosevelt." Kahn only spoke to half of Beale's observation; granted historians may have to expect delay and suspicion when they want to work with government records. But what about the people's right to know-long before an historian may research the topic-what their government is doing?

9 38

Because archivists and historians are such an important conduit between the public official and the public it behooves us not to place ourselves solely at the service of officials who are reluctant to fully inform the public. Kahn insists that "if this attitude by government officials is ever to be overcome, we must assure them that there will be no unseemly violations of the confidentiality of their conversations and messages."" This attitude strikes me as rather a cozy arrangement for a democracy. Though presidents have abused the practice, some measure of confidentiality regarding presidential records is probably required during the administration's term in office. But why should a practice necessary for diplomatic negotiations, for example, be extended to former chief execu

35 Chicago Sun-Times. August 22. 1974; New York Times, January 18, 1974, p. 1; Wisconsin State Journal, May 25, 1973, p. 19: Chicago Sun-Times, August 9, 1974. p. 48: Waldo Gifford Leland. "The Creation of the Franklin D. Roosevelt Library: A Personal Narrative." American Archivist 18 (January, 1955): 11-29; Leland. "The Story of the Franklin D. Roosevelt." Archivi d'Italia e Rassegna Internazionale Degli Archivi, Series II, 18 (1951): 47-52: Kahn. "World War II and Its Background: Research Materials at the Franklin D. Roosevelt Library and Policies Concerning Their Use." American Archivist 17 (April. 1954): 149-162: Fred W. Shipman, "The Roosevelt Papers, "Quarterly Journal of Speech 34 (April, 1948): 137-42; Milwaukee Journal, August 18, 1974, p. 3; New York Times, April 1. 1974. p. 1; Capital Times, April 4, 1974, p. 1; Wisconsin State Journal, April 10. 1974. p. 10 and April 11, 1974, p. 2.

Howard K. Beale. "The Professional Historian: His Theory and His Practice," Pacific Historical Review 22 (Angust. 1953): 238-9.

$7 Kahn, "World War II and Its Background," American Archivist 17 (April, 1954): 162. 38 Thid.

Ibid., p. 161.

tives? Surely the public has a greater equity than ex-presidents in the determination of proper access policy. A desire to avoid embarrassing former officials by revealing frank discussions of political advisors can in no way be equated to the right of the public to have exposed examples of corruption or bad decisions. Acquiescence by archivists in a policy of restricted access that hides past errors in policy may lead to similar mistakes being made in the future simply through ignorance of past decisions. Thus, we are made colleagues of the undertaker who quietly buried the doctor's mistakes. The power of a president throughout his life to control access to his files is sufficient without our excessive cooperation. In fact, this power extends beyond the grave. FDR died before some 2,500 cubic feet of his files had been transferred to Hyde Park, and it took until 1947 for a decision by a New York Surrogate Court that Roosevelt's will did not include these papers as part of his personal property before the legal transfer to the Library could be made."0

The efforts of Kahn and his successors have been successful beyond any question. The Presidential Library system is a glorious achievement of the archival profession. With justifiable pride Kahn could write the AHA-OAH committee investigating the charges of Prof. Francis L. Lowenheim against the FDR Library that "it is taken for granted that no president will ever again take his papers home with him when he leaves the White House." " Things "taken for granted" have a way of falling apart when attacked. Can the Presidential Libraries overcome the threat the Nixon presidency may present? Surely, we cannot as a profession rest on our past successes.

It is hard to argue with success and certainly the Presidential Libraries have successfully preserved the documentation of the careers of the last half dozen presidents. Read James O'Neill's article: "Will Success Spoil the Presidential Libraries?" for a fine account of what has been accomplished and what problems must be faced. O'Neill, who served as director of the FDR Library from 1969 to 1971, is optimistic about the future of the system. The title of the article, however, is misleading. Success will not spoil the Libraries. If they are spoiled it will not be because of their great contributions to historical scholarship under the direction of outstanding archivists such as Kahn and O'Neill. Rather, failure will come because archivists and politicians unsuccessfully met the people's right to own the nation's records. After reciting the traditional view of the president's right to ownership he concludes: "Whether one regards this as a suitable and constitutionally sound position or as the unfortunate result of neglect and legal malaise, it is, nonetheless, the case." 42

43

If O'Neill's view is, in fact, "the case," what can archivists do about it? How can we save our profession from the dilemma it faces? Officeholders may refuse to declare their records to be public property. H. G. Jones urges in Records of a Nation that each president issue an executive order declaring that the papers of that administration are to be public property. As he points out, such an order would quickly become a new "tradition" morally binding on future chief executives. Once the new custom became established, the Executive Department might well find its past concerns about secrecy and confidentiality unnecessary for the proper functioning of government. In light of Watergate, however, moral suasion would seem a poor substitute for strong legislation. Because there is no law specifically declaring Presidential papers to be public, the courts may well rule in the cases that have recently been filed under the Freedom of Information Act that the records are private."

Should the Executive and Judicial branches fail to serve the people's interests, the one recourse left is the Congress. Senator Birch Bayh (De:nocrat, Indiana) has introduced a bill this session that every archivist should seriously consider

40 Leland. "The Creation of the Franklin D. Roosevelt Library," American Archivist, 18 (January, 1955): 27-28; "In re Roosevelt's Will," Surrogate's Court, Dutchess County, July 21, 1947, 73 N.Y.S. 2d 821.

Final Report of the Joint AHA-OAH Ad Hoc Committee to Investigate the Charges Against the Franklin D. Roosevelt Library and Related Matters, (Washington: American Historical Association, 1970), p. 420.

42 James E. O'Neill, "Will Success Spoil the Presidential Libraries?," American Archivist 36 (July, 1973): 344.

43 Jones. Records of a Nation, pp. 168-170.

44 New York Times, December 29, 1973, p. 10; Washington Post, December 29, 1973. p. A12. See also James Nathan Miller. "This Law Could Give Us Back Our Government,' Reader's Digest (April, 1974): 109–113.

supporting." Senate bill 2951 would require every elected Federal official to turn over all papers created during his or her tenure to the National Archives or an agency designated by NARS within 180 days of leaving office. (The effect of this provision on collecting policies of state and regional manuscript depositories needs to be clarified.) The official is not required by this measure to create any specific records, but "materials which were prepared by or for any elected federal officeholder, which involve public business, and which would not have been prepared if the individual had not held public office shall be turned over." Access limitations "for specific periods" and "specific reasons" would remain legal under the bill's provisions.

Approval of this legislation would finally remove one barrier to our profession's development. No longer would our work be regarded as an optional service whose use depended on the personal wishes of our elected leaders. Perhaps, our profession would be strengthened if we did not have to work in the President's shadow. The long-term effect on the conduct of government might be equally salutary if officeholders became convinced that the very nature of the gigantic volume of records created by a president and his administration make them public." While it must be acknowledged that some officials long used to secrecy and the "right" of confidentiality might illegally destroy their files rather than turn them over to archivists for preservation, this practice should die out if the law were vigorously enforced and severe penalties were added for violation. Gradually public officials would learn to live with the act's provisions and, hopefully, even learn to govern more responsibly because they realize that their activities and policies would soon face public scrutiny. The necessity for preserv ing the confidentiality of some records for a set period would remain, but the cry of "national security" must not be used for personal or partisan purposes. To arguments that such a proposal is naive, ignores "human nature," or would end confidential advise by destroying the opportunity for candid assessments of policy and personnel, one need look no further than the illegal bombing in Cambodia, the controversy surrounding the "Pentagon Papers," the break-in into Watergate, and the campaign practices in 1972 of CREEP to see where the current policy has gotten us. It is time to try, really try, to have "open covenants, openly arrived at." Archivists, in so far as they are known to the general public at all, are probably best known for the preservation of famous documents such as the Declaration of Independence. If we, as a profession, could help return government to the control of the people, perhaps we would be remembered as having contributed, at least in some small way, to the preservation of independence.

Mr. BRADEMAS. The Chair would also announce that further hearings on these related bills will be held at 9 o'clock in this room, 2175 of the Rayburn House Office Building, on Friday of this week, October 4, 1974.

The subcommittee is in recess.

[Whereupon, at 10:45 a.m., the subcommittee was recessed.]

45 F. Gerald Ham, "Public Ownership of the Papers of Public Officials," American Archivist 37 (April, 1974): 357-360; Congressional Record-Senate, April 30, 1974, S6564-7; Newsday, April 14, 1974; James Reston column, New York Times, August 18, 1974; Gary Wills column, Washington Star-News, August 20, 1974; Milwaukee Journal, September S, 1974. Section 5, p. 2: Christian Science Monitor, August 20. 1974, p. 20; "Trials. Taxes Tangle Nixon's Papers," Washington Post, September 3, 1974; Capital Times, September 19. 1974, editorial page.

46 The question of copyrighting public documents should concern every archivist because it is a further example of abuse of power by public officials, frequently interferes with photocopying for scholarly purposes, and exposes archivists and librarians to legal suits by copyright holders. M. B. Schnapper, editor of Public Affairs Press, has long opposed both the private ownership of documents created at public expense and the efforts of public officials to copyright material prepared in the course of their official duties. Lately, he has devoted much time to an examination of Nixon's donation of his Vice Presidential papers and this paper is much indebted to Schnapper's bibliographical citations and advice. See Schnapper's book Constraint by Copyright (Washington: Public Affairs Press, 1961) for an account of his struggle to compel Admiral Hyman G. Rickover to allow Schnapper to reprint some of the Admiral's speeches. Schnapper eventually lost the fight in court over a technicality. See also: "Twisting Our Copyright Law." Washington Post, May 4, 1969, Book World Section, p. 6; Devisions of the United States Courts Involving Copyright, 1971-72, Copyright Office Bulletin No. 38. (1974); "The Government Copyright Racket," Saturday Review (August 11, 1962): 36-7; Congressional Record, 1962, pp. A5295, 16050-2, 17648-9 and 23632: Hearings Before the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, U.S. Senate, Ninetieth Congress, 1967; Library of Congress Information Bulletin, December 14, 1973, pp. 440-1; Karyl Winn, "Common Law Copyright and the Archivist," American Archivist 37 (July, 1974) 375-386.