The Case of Chief Justice Roberts's Missing Papers; Investigators Are Still Unable to Locate File On Affirmative Action

washingtonpost.com
The Case of Roberts's Missing Papers
Investigators Are Still Unable to Locate File On Affirmative Action
By Christopher Lee
Washington Post Staff Writer

The country has John G. Roberts Jr. as its newest chief justice. What it doesn't have is an answer to the mystery of the missing file of his work papers on affirmative action.

The file, compiled during Roberts's tenure as an associate counsel in the Reagan White House, vanished in July when lawyers from the Bush administration were reviewing the materials at the Ronald Reagan Presidential Library in Simi Valley, Calif., as part of a vetting process before Roberts's formal nomination to the Supreme Court.

A newly released report from the National Archives inspector general's office shows that federal investigators failed in their first attempt to nail down what happened to the file, which became a flashpoint in Roberts's otherwise smooth confirmation process.

"This investigation is unresolved and the file is still missing," says the 64-page IG report, released in response to a Freedom of Information Act request from a Washington area researcher and posted Tuesday on the Web site Memory Hole. ". . . The OIG was unable to determine whether the missing file was taken intentionally, unintentionally, or lost."

Investigators did conclude, however, that the Archives staff did not follow agency policies and procedures in providing tens of thousands of pages of requested material to the two lawyers, who were allowed to review the documents in a private office "because it would be discreet and keep them out of sight of the main research room."

The lawyers working for the White House "were allowed to bring personal belongings with them into the room while they worked," investigators wrote. The lawyers also were left alone in the office with the records for as long as 30 minutes while they participated in conference calls with the White House, the report said.

All of which is unusual, because researchers normally work in public reading rooms under the supervision of Archives staff. Federal rules prohibit researchers from bringing in anything that could be used to conceal a document, and researchers must use paper and pencils provided by the Archives.

The report's findings contradicted the assertions of Archives officials, who said last August that an attendant had been in the room at all times and that the lawyers had been separated from their bags. Susan Cooper, an Archives spokeswoman, said yesterday that agency officials provided the best information they had at the time. Cooper said Reagan library staffers had to provide access to more than 70,000 pages within a few weeks.

"There were people there who didn't have a day off for six weeks," she said. "So it was not only the magnitude but the speed with which this review had to be performed that I think contributed to some of these procedures not being followed."

Allen Weinstein, the archivist of the United States, disclosed that the file was missing in August and requested the IG review, Cooper said. After receiving the report, management reminded all presidential library directors that federal rules must be followed even under pressure and tight deadlines.

"I think we just need to make sure that the procedures that are in place are implemented," Cooper said. "Unfortunately, the investigation also did not turn up the whereabouts of the file."

The White House has declined to publicly reveal the identities of the lawyers who conducted the document review, and their names and those of Archives officials were redacted in the IG report.

White House spokeswoman Dana Perino said yesterday that "the administration cooperated with NARA and its inquiry, and the report indicates that there's no evidence that anybody reviewing the files engaged in wrongdoing."

Officials who have attempted to reconstruct the file have said they believe it included a memo from Roberts urging the White House to withhold any response to two church officials who had complained about the administration's policies on affirmative action in the workplace.

"The debate is still raging" about proposed changes that would eliminate affirmative action goals and timetables, Roberts wrote, so "I recommend closing them out with no response," according to a copy of the memo the administration provided in August.