Democrats continue to revel in the results of the midterm elections as a validation of democracy in the United States. Yet, with the exception of the United States House Select Committee to Investigate the January 6 Attack on the United States Capitol, Democrats in Washington have studiously avoided championing the one agency that is central to the survival of our constitutional democracy: the National Archives and Records Administration (NARA).
There is no archivist of the United States. The position has been vacant for more than seven months, throughout the malevolence and calamity, the rampant destruction of government records and constitutional crises at the hands of former President Trump.
President Biden nominated a new archivist in August 2022. The nomination has been deadlocked in a Senate committee since the end of September. Unless the nominee is confirmed by the end of 2022, Americans need look no further than the National Archives and Records Administration to see the continuing and coercive fragility of our democracy on display.
Trump and his followers grasped the importance of the National Archives to our democracy — to dismantle it. Why haven’t the Democrats in Washington recognized NARA’s essential importance to our democracy — to bolster it?
It is no accident that three of the most concrete causes that may lead to the prosecution of Donald Trump by the U.S. Department of Justice (DOJ) concern NARA’s essential and exclusive responsibilities to our constitutional democracy.
First, election fraud and the filing of fabricated and falsified electoral certificates and names of Trump electors with NARA’s Office of the Federal Register. Second, the destruction of presidential records in violation of the Presidential Records Act and Federal Records Act. And third, the mishandling and improper disclosures of classified information in violation of laws and related executive orders pertaining to security classified information and clearances, overseen by NARA’s Information Security Oversight Office (ISSO) and National Declassification Center (NDC).
NARA not only houses and exhibits the United States Constitution. NARA’s statutory responsibilities make it the unique enabler of the Constitution to ensure the lawful integrity of presidential elections, transition of power and continuity of government. NARA’s responsibility for archiving and providing access to federal records is central to ensuring government accountability and transparency in our democracy. Government records are the factual engines that drive the research and writing by historians and scholars, journalists, a range of authors and students alike, and is invaluable to law and policymakers. This is often what leads to a key quality in healthy democracies: the ability to self-correct.
In a democracy, citizens are the governors and the governed. This is especially visible today as Americans and our government deepen their interdependence to respond to the impact of unpredictable catastrophes, crisis, chaos and instability. These range from the environmental, to public health, to the economy, gun violence and global events.
A parallel result is the exponential increase in government records. NARA may be seen as the national hub and portal for access to government records. But federal records are born in agencies through their actions, people, programs and policies. Well before records are transferred to NARA, individual agencies manage their own records with laws to support individual agency operations and missions, and where agency roles intersect. So is the need for an archivist of the U.S. as a chief federal records executive to lead NARA and coordinate across government.
The Nov. 22, 2022, decision by the U.S Supreme Court requiring disclosure of Trump’s tax records and those of his companies to Congress reflects the importance of records as the evidentiary foundation for investigating and prosecuting violations of law. Yet federal law places the legal custody and control of government-held tax records with the Treasury Department, not NARA. A Senate-confirmed archivist who leads NARA as an independent agency and is selected “without regard to political affiliations and solely on the basis of the professional qualification” is essential to confidence in the law and compliance.
For Veterans, there is an even more specific and personal need to confirm a new archivist, essential to provide leadership and coordination with the military service branches, the Department of Veterans Affairs and NARA. Each play a crucial role in producing the records that Veterans need to qualify for medical, housing, financial and other benefits.
Many veterans were already caught in the time warp of conversion from paper to digital records when the COVID-19 pandemic forced temporary closures of government offices that review and process records. Unfortunately, this exacerbated logjams even where progress was being made in four key areas: federal records digitization; declassification and overclassification review; agency records transfer to NARA, and Freedom of Information Act (FOIA) requests.
Finally, Democrats may hope that the next chapter in the survival epic of our democracy will be written in the successful prosecution of Donald Trump by the U.S. Department of Justice, yet they need to look much closer to home. Trump-aligned Republicans in the U.S. Senate have blocked the confirmation of President Biden’s nominee for archivist. These include senators who have supported veterans in their states and surely recognize their pressing need for access to records to obtain benefits.
In January 2023, a Republican-controlled U.S. House of Representatives will dawn on Washington. It will include legions of pro-Trump supporters and election deniers. There is a substantial risk that that they will use their power and platform to deny and undermine the findings and work of the Jan. 6 committee. Lest anyone forgets, exactly one year will have passed since the Supreme Court blocked Trump’s challenge to stop NARA from releasing federal and presidential records requested by the committee.
Who will champion preservation, archiving and public access to the related records of the Committee and across government?
The National Archives and Records Administration needs an archivist of the United States. So does the rest of government, Congress and the nation. The Senate’s responsibility to confirm a new archivist is paramount to our democracy.
Steven L. Katz is an attorney and expert in government information, federal records laws and practices related to records management, access to information and government accountability. He served as counsel to the Senate Committee on Governmental Affairs and as a senior advisor to the comptroller general of the Government Accountability Office (GAO).