IN 1974, in the aftermath of Watergate, Congress passed legislation directing the Archivist of the United States to take custody of former president Nixon's papers and, with certain exceptions, to make them available to the public. Twelve years later, after much litigation, negotiation and bargaining, after a Supreme Court decision, six drafts of regulations and a few congressional vetoes of proposed rules, those papers are still under lock and key. The latest set of regulations is now being reviewed by Congress. The text of the regulations is not at issue, but a Justice Department memorandum interpreting them has caused a storm of protest.
The Nixon papers law was clearly intended to give the archivist, not Mr. Nixon, the responsibility for determining which papers would be released. There is some leeway in the statute for withholding documents that are, for example, purely personal or that should remain secret for national security reasons or those about which a valid claim of executive privilege can be made. But the archivist, in some cases with the assistance of a review board, makes the critical decision. If Mr. Nixon or any other affected party disagrees, he can go to the U.S. District Court in this city to contest the finding. The Justice Department, however, asserts that a claim of executive privilege made by the former president must be honored by the archivist. This interpretation would strip him of the discretion clearly granted by the statute and make Mr. Nixon the sole judge of what material should be released and what kept under wraps. Members of the press and public would then have to go to court to contest each such determination.
The Justice Department's memorandum, written by Assistant Attorney General Charles Cooper, was addressed to the Office of Management and Budget and is, at this stage, purely advisory. President Reagan has not stated that he agrees with its thesis, nor has anyone at the Archives. The department's interpretation flies in the face of congressional intent and the clear meaning of the statute, and the president should end the controversy by saying so and reaffirming the independence and responsibilities of the archivist. The courts can do this if he does not, but that takes time, and 12 years have gone by already. It would be far better for the archivist to make an independent determination and announce that he will release the records Congress intended the public to see -- and which should have been available long before this.