By Nathan Raab, as published on Forbes.com.
When papers of the Clinton Library become public today, starting at 1pm, a voyeuristic, journalistic occasion that would impress William Randolph Hearst, former First Lady and Presidential candidate Hillary Clinton can thank one person: Richard Nixon.
In 1845, newly inaugurated President James Knox Polk wrote a Senator from Michigan, Lewis Cass, discussing his new administration and talking about jobs. A public document, right? The letter was not really personal, but he marked it at the top “private.” Scandal, intrigue, coverup? Hardly. Polk wrote “private” on nearly everything, regardless of whether it was.
But surely Polk was mistaken. This was not a “private” document. He was an elected official conducting public business. Wrong again. He owned the retained draft of this letter, and the Senator owned the received copy. Not a public document in any sense.
A letter of President James Knox Polk marked “private”
Until Ronald Reagan’s time, every letter a President wrote or received could have been so marked. For generations, throughout most of our history, the President owned his own papers. They were private possessions. Many Presidential families have chosen to donate their records to Presidential libraries. Harry Truman did so by a letter of gift in 1957 and then his will in 1959. The Presidential library system itself, run through the National Archives, began with a gift of papers from Franklin Roosevelt in 1939. Other Presidential families sold their papers to the government. George Washington’s descendants did this. But these were either subjects of a sale or a donation, an acknowledgement that the national government did not own them and was at the mercy of the public mindedness of the President or his heirs.
Then came Richard Nixon, whose papers have been an ongoing embarrassment for the US government. In the immediate post-Watergate scene, frantic efforts were undertaken to protect papers and tapes from destruction. This was, after all, a major event in US history, an important moment, and Nixon’s papers were nothing short of central. More than that, they were considered evidence. But the papers were private, and the government had little legal recourse to get them. How to remedy this? Seize them. Congress seized Richard Nixon’s papers in the 1974 Presidential Recordings and Materials Preservation Act.
President Nixon, with edited transcripts of Nixon White House Tape conversations during broadcast of his address to the Nation. From the National Archives.
But as President Polk might remind us, you cannot seize “private” property. Nixon sued the government, saying his rights had been trampled. The Supreme Court agreed, and although it upheld the seizure of Nixon’s papers, argued that Nixon’s family ought to be compensated. This it was, to the tune of $16 million, an ironic circumstance whereby the Nixon family financially profited from the Watergate scandal and subsequent resignation.
Never again would Congress be at the whim of a Presidential philanthropic gesture or sale to get access to public documents. The Presidential Records Act, which you can read about here in more detail, made Presidential Papers public property. Work performed by the President in service of the people is property of the US government and belongs to the people. The same cannot be said for Congressional papers. These remain private and belong to the Member of Congress. One supposes that Senators and Members of the House would not pass a bill that made their own papers public property. Such an act is an imposition and Congress would not impose on itself.
But Congress took its justice to the White House and all future White Houses. Papers and recordings and any other such product of the Oval Office belong to the US government, are controlled by the National Archives, and can be made public promptly, with some exceptions made for sensitive materials. These confidential pieces are usually made public after 12 years.
This is what we are witnessing now: the twilight of the confidentiality era of the Administration of Bill Clinton. Enter to the public eye the vestiges of the Clinton Papers, the disclosure of which promises more tabloid-style stories, and claims by some of potential scandal and political hackery, brought to you by Richard Nixon.
