The Vagueness of Documentation in the Ongoing DOJ Investigation

Yesterday, Attorney General Jeff Sessions testified before the U.S. Senate Intelligence Committee in its ongoing investigation about the Russian interference in our 2016 elections and the firing of former FBI Director James Comey. I watched the two-hour plus hearing, noting various issues regarding how documentary evidence was used, misused, or ignored. In doing this, I am reminded of how much advocacy work archivists have yet to do in order to educate our leadership and the public about the significance of records.

AG Sessions was asked a number of questions in which he said he could not answer because it would require answers about “confidential” conversations with President Trump. When additionally asked if he was claiming Executive Privilege, Sessions replied that that was a prerogative only the President could invoke. The Attorney General replied that he was not doing so, but that he was deferring so that the President could use this if he deemed it necessary to do so. When asked if the President had requested this, Sessions replied that he had not, but that he was following long-standing principles used by the Department of Justice. In the at times testy conversation that followed, it became clear that Sessions had not read any kind of written guidelines and was not particularly well-informed about such guidelines; the Committee requested that it be supplied with the written guidelines, although it was never clear just what these consisted of or the level of detail they might provide. He seemed remarkably ill-prepared in this area for his testimony.

All during the hearing, Sessions consulted documents that were referenced at various times (by both him and the various Senators). Some of the documents seemed to hold different import for different people, both in terms of their meaning and significance and according to the chronology of events. There is nothing particularly unusual in this (think of different historians and other scholars investigating the same topic using the same sources but reaching different conclusions), but it was also clear that there were fundamental differences in how a particular document was seen as providing evidence. For example, AG Sessions referred to the memorandum prepared by the deputy FBI Director as a critical evaluation of Comey’s fitness for duty and continuing as FBI Director. However, when asked about whether there had been another written evaluation of his work performance, there were major differences in how various Senators perceived what had happened, severe differences of opinion about Comey and the general workplace environment in the FBI, and the divergent conclusions about the primary reason why Comey was dismissed. This resulted in requests for additional documents and questions about who had said what and when.

This line of questioning also led to some additional tension between AG Sessions and some of the Committee members. When it was requested that Sessions provide additional materials, the AG replied that he would do so if it were “appropriate.” However, one sensed that the AG was not eager to comply, and it was also apparent that there was no consensus about what “appropriate” meant or who got to determine this.

Not surprisingly, the question of President Trump possessing recordings of Oval Office conversations also emerged. When asked if the AG knew if there were such recordings, Sessions replied that he did not. When asked if the existence of such recordings would require being preserved, the AG seemed unsure but tentatively replied that he assumed so. That someone in the position of being the chief legal officer for the federal government does not know about the relevant laws concerning Presidential records seems a remarkable oversight. Of course, it is an easy thing to chalk this up to the general high-handed fashion in which the Trump administration has tended to view legal precedents, traditional protocols, and, at times, commonsense administrative processes.

Whatever political persuasion an archivist might be, it is also necessary to commit to serious understanding of the laws and traditions governing the use and maintenance of public records. We also must understand that how we view such issues continue to change, as Michael Schudson, in his recent book The Rise of the Right to Know: Politics and the Culture of Transparency, 1945-1975 (Cambridge: Harvard University Press, 2017), ably demonstrates. When will we see expert archival witnesses commenting on contemporary records issues and cases? It had better be soon. The future of our profession and nation depend on this.

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