Why you should care
Because this latest election scandal is part of a long American tradition.
What happens when a secretary of state takes thousands of work-related documents, deems them personal and then decides to neither reveal their existence to government archivists nor personally turn them over to the public? If you’re Hillary Clinton, the answer is still pending. But if you’re Henry Kissinger, you end up hoarding them for almost three decades after leaving office … without facing a single charge.
Like Clinton, who failed to turn over her private-server emails after leaving office — including 15,000 previously undisclosed ones recently discovered by the FBI — Kissinger left with a treasure trove of 15,000 transcripts of secretly taped phone conversations. In both cases, it wasn’t until subsequent investigations that the papers were discovered and forced into the public record, as Kissinger’s were through a series of legal proceedings in the 2000s. The big difference? Kissinger, at least, “got approval from the State Department legal adviser,” even if that approval proved to be misguided, says Doug Cox, a records-preservation expert and law professor at City University of New York. “His case was the closest to the Clinton situation.”
Indeed, Clinton’s displaced documents join Kissinger’s transcripts and a long list of politicians who’ve been accused of negligent, technical erroneousness or more nefarious acts related to paper trails in Washington. “Clinton, of course, is not the only official to fall into the vanity trap and confuse a desire to craft public image with the public’s right to know,” former Pentagon official Michael Rubin writes in a blog post for the American Enterprise Institute. “The problem is bipartisan.”
The temptation to obfuscate, experts say, is hardly endemic to any one party or administration.
It wasn’t until after World War II — with the Federal Records Act of 1950 — that legislators mandated the preservation of federal documents, so they could be available to the public and help the government learn from past decisions. But that didn’t mean docs were easily retrievable. During the 1953 Iran coup, the CIA installed the pro-American Shah Mohammed Reza Pahlevi. Yet reporters and researchers sought the documents for half a century, only to be rebuffed. And when the CIA finally promised, in the early ’90s, to shed some light on the incident that had altered the geopolitical landscape for decades, the agency said it had either “lost” or “accidentally destroyed” the material back in the ’60s, in what one historian described to the New York Times as a “culture of destruction.”
Then came the Watergate Scandal and the infamous 18-and-a-half-minute transcript gap that felled a president. In response, Congress passed the Presidential Records Act of 1978, mandating that presidents and their staff could no longer arbitrarily deem what constituted personal papers, Instead, records were deemed public or private by the National Archives and Records Administration. Theoretically, agency actors had to get approval from NARA before destroying anything that could be remotely considered part of the public domain. In practice, Cox says, archivists often only heard about erroneously destroyed documents once the press reported it.
The shining city on a hill of the Ronald Reagan administration fared no better at turning the spotlight on itself. After the 1983 Marine barracks bombing in Beirut, intelligence officials knew where the culprits were hiding, says Admiral James “Ace” Lyons, who was deputy chief of naval operations at the time. Yet Caspar Weinberger made the controversial choice to hold back, a decision that drew more scrutiny as Iranian terror continued in subsequent years, Rubin notes. Many of the documents and memos related to the debate — and Weinberger’s role in it — simply disappeared. Later, Weinberger and National Security Council staff member Oliver North, who was caught red-handed with the paper shredder, were indicted in another cover-up, this time related to the Iran-Contra affair. (North admitted to the act, while Weinberger was given a presidential pardon by George H.W. Bush, averting a trial. He has since passed away.)
If Russia or any other country or person has Hillary Clinton’s 33,000 illegally deleted emails, perhaps they should share them with the FBI!—Donald J. Trump (@realDonaldTrump) July 27, 2016
As Michael Jordan racked up championship rings in the ’90s, Slick Willy’s White House laid the groundwork for document-related controversies. Whispers surrounding the suicide of chief counsel Vince Foster have never truly quieted in conservative circles, and last week The Daily Mail reported that the FBI investigation related to the case has “vanished” from the National Archives. (Five subsequent investigations ruled the case a suicide; the Clintons have long dismissed such theories, with Hillary calling Foster in her memoir “one of the best lawyers” she’d ever known). Sandy Berger, the National Security adviser under Clinton, was fined $50,000 and sentenced to two years of probation after he pleaded guilty to stealing five classified documents — destroying three that dealt with Clinton’s approach on terrorism, which were expected to be embarrassing for the administration — from the National Archives in 2003.
Era after era has tried to paper over history, and war is a powerful motivator, as public documents revealed that CIA official Jose Rodrigues destroyed key videos documenting the agency’s defunct torture program during the Dubya Bush era, explaining that “the heat from destroying [the torture videos] is nothing compared to what it would be if the tapes ever got into the public domain.” And one of Barack Obama’s greatest triumphs was marred by the actions of Admiral William McRaven, who ordered the immediate destruction of any emails surrounding Operation Neptune Spear, including photos of Osama Bin Laden’s death.
The temptation to obfuscate, experts say, is hardly endemic to any one party or administration. Most agencies lack the institutional control to notice when documents disappear, and even if they do, convictions are rare because current law requires that prosecutors prove the defendant’s intent. Some experts, including Rubin and Cox, tell OZY that installing nonpartisan archivists within each department or automatic archiving software for emails would help, and there are some attempts to do so. But while there are protocols and largely unenforceable laws in place, the heads of each department are essentially held accountable by three words: the honor system.