The delayed final release of the JFK Assassination records has been well documented on this website. It has been covered by the media when Presidents Trump and Biden have made historical and controversial decisions to continue delay of the release of the final Protected Collection. To best of our knowledge, over 4,600 assassination records are still withheld from the American public or redacted in part.
Why? The U.S. Government (through the notorious Warren Commission Report) continues to officially maintain that Lee Harvey Oswald assassinated President Kennedy as a “lone nut”. The Warren Report concluded that Jack Ruby assassinated Oswald on his own in a sudden “act of passion”. The Warren Report concluded that there was no evidence that Oswald and Ruby even knew each other.
In 1979, the House Select Committee on Associations (HSCA) dug further and concluded that Kennedy was “probably” killed in a conspiracy. The HSCA also cleared various services (that the conspiracy did not involve any group like the USSR, or Fidel Castro, Organized Crime, the FBI, the CIA or Secret Service. See Final Report, pp. 1,2). However, the HSCA also found that it could not exclude the possibility that individual members of the national syndicate of organized crime or anti-Castro Cubans were involved in a probable conspiracy to assassinate President Kennedy.
That is the context for the obvious question: Based on the conclusions of the Warren Commission and the HSCA, why the need for continued secrecy in 2024? In 2024, 60 years have passed since the assassination, and more than 30 years have passed after Congress unanimously passed the JFK Records Collection Act of 1992 (the JFK Records Act). That is another article, and that question more than deserves an answer from the President, Congress and the National Archives and Records Administration (NARA). This article explains what those offices and agencies are in fact doing (and more importantly not doing), why it is wrong, and why it is a direct violation of the JFK Records Act. We will conclude by explaining what can be done going forward to fix the ultimate problem. That problem is continued secrecy regarding the JFK Assassination records.
I
It is important to briefly explain the timeline of events since October 26, 2017. Why that date? That was the date established by Congress in 1992 for the mandatory final release of all government records related to the assassination of President John F. Kennedy.
Why did Congress approve a 25-year release period in 1992, when the assassination occurred almost thirty (30) years prior in 1963? Congress found that specific reasons could warrant delay of release after 1992. And those reasons are very specific. They are listed in the JFK Records Act. Under the JFK Records Act, the President in 2017 was permitted to authorize further delay if (and only if) a specific record met the legal standard for continued withholding. In summary, the reason for delayed release must connect to a threat to current military or intelligence operations, identities of living persons or agents who could likely be harmed by release of a record, current security or protective procedures (i.e. Secret Service procedures), or the conduct of current foreign relations, the disclosure of which would demonstrably impair national security and outweigh the public interest in immediate disclosure.
As you can see, the prevailing theme and standard used by Congress was “current”. Meaning in 1992, the reason for delaying the release of an assassination record must then have been a current and specified concern. And that reason must still have been current and a substantial threat to the “national security” of the United States as of October 2017. Otherwise, the President, by October 26, 2017, was required to either release the assassination record(s) in full and without redactions, or certify in writing the specific reason for delay (under the standards of the JFK Act) for each and every record withheld. That presidential certification was to be in an unclassified record and available to the American public. This is what Congress required. There is no reasonable debate on this, regardless of if one still believes the Warren Report or an alternative.
It is undisputed that President Trump failed to provide a record-by-record certification for delay past October 26, 2017. In reality, Presidents Clinton, Bush (George W.) and Obama also failed to meet that duty under the JFK Records Act. Why? In all likelihood, those presidents did not receive adequate and objective advice from legal counsel on their actual duties under the JFK Act. As explained below, President Trump clearly did not receive objective or timely legal advice on this historical issue. Or the issue was perhaps too controversial for the office of the President when other matters of transparency and “national security” were more pressing in their view. The reason does not matter. The law was clear and the mandate from Congress was clear. The JFK Act was unanimously approved by Congress in 1992. In the JFK Records Act, Congress declared in 1992: “most of the records related to the assassination of John F. Kennedy are almost 30 years old, and only in the rarest of cases is there any legitimate need for continued protection of such records.”
So what happened on October 26, 2017? We know that Trump intended to authorize the full release of all assassination records that were still withheld at that time. He said so publicly. Instead, at the eleventh hour Trump, by Executive Memorandum, authorized a 6-month delay for agencies to review any remaining withheld records and complete the declassification job. Trump then authorized another 3-year delay, which ultimately transferred responsibility to the Biden administration. Notably, Trump did not attempt to rewrite the law. By all accounts, Trump simply authorized further delay under pressure from government agencies who were determined to keep certain assassination records secret no matter the cost.
II
Trump’s Executive Memorandum prompted troubling reactions by Thomas Samoluk and Judge John Tunheim of the Assassination Records Review Board (ARRB). The ARRB was an independent agency established by Congress in the 1992 JFK Records Act, whose sole mission was to ensure declassification under the standards of the JFK Records Act through an accountable and enforceable process.
Samoluk: “It is really frustrating what has happened. Because the law said that anything that was not released … needed to be released under the law by October 26, 2017. Now there is a clause that says if the president certifies, under certain conditions, that the records would not be released. I don’t think the process under the law was followed. The records have not been released in total, and I don’t think any good reasons have been given.” (James DiEugenio, JFK Revisited, p. 389)
Judge John Tunheim: “The information (non-declassified documents) was intended to be released in 2017. Only under extreme circumstances was a president in 2017 supposed to continue to protect records. And they didn’t, as near as I can tell, they didn’t provide that certification.” (ibid, pp. 347-48)
Then, matters got worse. Far worse. In October of 2021, Biden issued an “Executive Memorandum” authorizing another delay until December 15, 2022 for agencies and government offices to make “final decisions” on the release of withheld records. In this Memorandum, Biden empowered agencies to make their own decisions on releasing assassination records generated by their agency. Let that sink in. President Biden told agencies, the very agencies who have maintained secrecy regarding the assassination since 1963, to run the show. To release their records when they felt “comfortable” doing so.
In June of 2023, President Biden then issued his “Maximum Transparency” Executive Memorandum. Despite the clear mandates imposed by the JFK Records Act to establish an “accountable” and “enforceable” process for full disclosure, and despite the explicit requirement that each withheld assassination record be accounted for with an unclassified identification aid, the President’s June 30, 2023 Memorandum does not identify or account for a single withheld assassination record. Biden’s “Transparency Plans” – originated by the CIA – are the opposite of transparency. It is government secrecy in its most egregious form.
The illegality of Biden’s orders (not approved by Congress or NARA, that we know of) cannot be understated. It was a presidential attempt (unwittingly or not) to destroy the purposes of the JFK Act – a law that Biden voted in favor of when he was a senator in 1992. Trump’s orders were also in violation of the JFK Act. Biden’s were even worse – telling agencies that they could make their own declassification decisions. If this does not ensure continued secrecy, it is difficult to imagine what could.
III
So, here we are in the summer of 2024. To our knowledge, the agencies with this unsubstantiated “power” have done nothing. Congressional oversight committees are undoubtedly aware of this historical declassification issue, or at least they should be. To date, oversight committees have done nothing about the fact that the Office of the President has unilaterally and illegally rewrote the law with a presidential pen. They have done nothing about the fact that the President has seized control over their own Congressional records. It is critical to note that Congressional oversight committees (both House and Senate) have express legal authority under the JFK Records Act to ensure complete declassification under the standards and timeline of the JFK Records Act. In other words, when the ARRB finished its original mandate in 1998, Congressional oversight committees had the authority and duty to take whatever action necessary to ensure that agencies and government offices complied with the JFK Records Act. A historical law that was intended to restore faith in government transparency.
This author personally attended a meeting of the Public Interest Declassification Board (PIDB) in June 2021. According to NARA’s website, the purpose of the PIDB is to advise the President regarding issues pertaining to national classification and declassification policy. The PIDB’s mandate is to promote “the fullest possible public access to a thorough, accurate, and reliable documentary record of significant U.S. national security decisions and activities.” Further, the PIDB was established by Congress to advise the President and other executive branch officials on the “identification, collection, review for declassification, and release of declassified records and materials of archival value.”
On the June 2021 meeting agenda (of the PIDB) with respect to JFK assassination records was a) Potential John F. Kennedy Assassination Records Collection records review; b) Increase public awareness; and c) Congressional engagement. Despite an apparent attempt by the PIDB to recognize this problem, Congressional oversight committees have done nothing. President Biden (assuming he was properly advised by the PIDB) made this historical secrecy issue even worse. Rather than recognizing the critical issue, increasing public awareness and imploring Congress to engage on the issue, the Biden administration issued “Transparency Plans” that put the declassification decisions squarely in the hands of the agencies that have held assassination records close to the vest since the Warren Commission was established immediately after JFK’s assassination.
Donald Trump Returns
Those who seek the right to see the remaining “Protected Collection” of JFK assassination records recently learned of some seemingly positive news. Former President Trump (running for election again in November 2024) recently made a pledge on the Fox & Friends Weekend program. Trump was asked what he would do to restore the American people’s trust in government institutions. Trump was asked if he would declassify the withheld JFK assassination records. Trump said he would declassify them and that he already “did a lot of it”.
Trump’s feelings on the matter when leaving office are also clear. Former Fox commentator Judge Andrew Napolitano was a frequent advisor to Trump during his presidency. When discussing “unfinished business” in his presidency, Judge Napolitano reminded Trump about his unfulfilled pledge in 2017 to release the remaining JFK records. Trump said to his friend and advisor Judge Napolitano: “Judge, if they showed you what they showed me, you wouldn’t have released it either.”
It now appears that Trump was pressured and intimidated in 2017 when he had to make a historical decision on declassification and transparency. If Trump can be intimidated, then what was to stop a lifelong politician and establishment loyalist like Joe Biden? All signs appear to point to Trump’s CIA “advisors” in 2017. Tucker Carlson reported on this, before he was fired by Fox News soon thereafter.
Is there a Path to Success in Declassification of the JFK Records?
We have summarized the developments in this matter since 2017, starting with Trump’s first postponement decision. A lawsuit was filed in 2022 by the Mary Ferrell Foundation to enforce the JFK Records Act, but predictably the DOJ’s lawyers have strenuously defended that legal effort.
So what is a different path to achieving full transparency and declassification on the JFK records? The path is clear and actually quite simple. It does not matter which President takes this path. It could be Trump, Biden or another candidate running in 2024. It would be more difficult for Biden because he would literally have to do a full pivot, reverse his recent Executive orders, come up with plausible reasons for doing so, and then instruct agencies (and his own Executive team) to follow the JFK Act and be accountable for that task. Trump’s path is difficult but less difficult, and I will explain why. Any President, however, can successfully overcome the continued disturbing trend of secrecy regarding the JFK assassination records, and look like a strong and decisive U.S. President while doing so.
If Trump is elected again, he can explain what he experienced in October 2017. He can explain what he told Judge Andrew Napolitano and why. He can explain why felt that he had no choice under last minute pressure from agencies in October 2017 (and again in 2018), including pressure from the CIA.
During this upcoming campaign Trump can explain how he received faulty legal advice from the DOJ’s Office of Legal Counsel at the eleventh hour in making his decisions on the JFK Records, which he did. Trump can obtain an objective and clinical legal analysis demonstrating how the JFK Records Act was intended (by Congress) to operate. Trump can declare with confidence, after receiving competent and objective legal counsel, that the JFK Act was NOT intended for the President--30 years after the passage of the JFK Act--to rewrite the law with a presidential pen. Trump would surely attempt to embarrass Biden regarding his more recent orders, but the issue does not change.
Trump can acknowledge and endorse the recent Tucker Carlson reporting. Trump can pledge to rescind and reverse ALL of Biden’s executive orders on this historical issue. Trump can pledge to issue a new executive order requiring all agencies and NARA to immediately comply with provisions of the JFK Records Act that require an unclassified identification of each assassination record still withheld and why each record should still be withheld today under the standards of the JFK Act. Trump can establish a reasonable deadline for agencies and NARA to complete this ministerial work for the remaining Protected Collection. It could be 6 months, it could be 9 months. But no more arbitrary extensions or delays. Trump could then make a final and independent Presidential decision after receiving this required information from the agencies. And that decision must relate to an identifiable harm as currently posed by a specific record(s).
What else could Trump do? He could acknowledge Jefferson Morley’s efforts and the serious problem with George Joannides. It is now undisputed that Joannides ran a CIA anti-Castro operation that was connected to Lee Harvey Oswald. It is now clear that Joannides stonewalled the HSCA in a clandestine CIA operation determined to maintain secrecy on the CIA anti-Castro operations, no matter the cost. Trump may not go there, but the history on Joannides is clearly one of the reasons why the CIA is determined to maintain secrecy in the remaining Protected Collection.
IV
What about Congress? They also cannot keep hiding on this issue. Imagine the breath of fresh air in the House if instead of pursuing an impeachment that will not happen, Rep. James Comer actually called the National Archives and John Tunheim and Jeff Morley to testify about why the JFK Records are still classified? That committee is controlled by the Democrats in the senate, chairman Gary Peters of Michigan. Peters could call both Trump and independent candidate Robert Kennedy Jr. They could suggest—particularly the latter—that Congress immediately establish a new ARRB to enforce the standing requirements of the JFK Act. As events have unfolded, NARA and the intelligence agencies have proved inadequate or unwilling to do the job. At this date, there needs to be a plan to guarantee accountability and enforcement. The new ARRB would locate all the crucial Final Determination Forms (originated by the first ARRB) for remaining withheld records, make INDEPENDENT final determinations (as of 2024), and provide a report to Trump or Kennedy so they can make reliable and independent decisions on his presidential certifications for complete declassification. Both men can use this during the remaining days of the campaign. What is to stop them What is to stop both men from taking these steps supported by the actual law? Would that not resonate with the public a heck of a lot more than Hunter Biden’s drug addiction? Trump and Kennedy could contrast this plan with Biden’s rewrite of the JFK Act. For once a presidential candidate could promise to do something right about the JFK records.
If Biden is Re-Elected
Once placed on the defensive, President Biden can take the same steps that Trump could take. However, that would require him to acknowledge that Trump made rushed decisions with pressure from agencies. It would require Biden to recognize that Trump received faulty DOJ legal advice that was aimed at delay and delay only. That his (Biden’s) team has done more legal research and now recognizes how the JFK Records Act is actually supposed to work. Biden would have to rescind and reverse his executive orders and his “Transparency Plans” and somehow explain that they were issued in good faith but they now need a substantial overhaul. That is a tall task, especially with an opponent like Trump. However, the public should eventually appreciate the transparency and a serious effort to do the job correctly.
To be clear, this article is not an endorsement of any candidate for the Office of the President. We have done our best to report the actual record and the issues currently at hand. The Independent, Republican or the Democratic nominee can pledge to follow the JFK Records Act and get this done. Lay out an actual plan, and a clear path as suggested above.
V
If Robert F. Kennedy, Jr. was elected and took a similar path, he would also be following the law and erasing the history of secrecy regarding the JFK Records. He is on record that he plans to do so. On the 60th anniversary of JFK’s assassination (November 2023), RFK Jr. petitioned President Biden to release all government records concerning the assassination of his uncle. RFK Jr.’s position is squarely in line with the language and intent of the JFK Records Act of 1992. In his petition, RFK Jr. states: “The 1992 Kennedy Records Assassination Act mandated the release of all records related to the JFK assassination by 2017. Trump refused to do it. Biden refused to do it. What is so embarrassing that they’re afraid to show the American public 60 years later?” RFK Jr. simply called upon Biden to obey the JFK Act and release all assassination records to the public. The petition received more than 20,000 signatures.
President Seizing Control Over Congressional Records
What Trump and Biden may not know is that they have repeatedly and illegally assumed control over “non-executive branch” assassination records. These records include House and Senate records, largely originating from the House Select Committee on Assassinations (HSCA) and the Senate’s Church Committee. Congress was very careful in drafting the JFK Records Act to not yield any authority (to the President) over non-executive branch records. Section 9(d)(1) of the JFK Records Act explicitly limits presidential authority to classification decisions on executive branch records only.
What impact does this have on the current state of the JFK assassination records still held secret in the Protected Collection? It means that any Presidential postponement of a non-executive branch record is unlawful and that by law, every single record that originated from the HSCA and the Church Committee in the 1970’s should have been fully publicly disclosed on October 26, 2017. No questions asked. No Presidential discretion.
When Trump and Biden made their postponement decisions, Congress should have stepped in to protect their authority over their own records and processes. To date, Congress has failed to schedule any oversight hearing or call on any official to account for non-compliance under the JFK Records Act. These officials would include NARA, intelligence agencies and of course the Executive Office of the President. As mentioned before, both ARRB Chair Tunheim and Tom Samoluk, his deputy, are on record as strongly disagreeing with the stonewalling.
The next President can simply implore Congress to unite on this historical transparency issue and take control of its own records. To follow the language and intent of the law that it passed unanimously in 1992 to ensure proper declassification and transparency. To reconvene and appoint a new independent ARRB to do the exact job it was empowered to do under the JFK Act. A job that it did well during its life span from 1994 to 1998. The ARRB simply did not have enough time, partly because of limited funding, partly due to resistance from agencies determined to maintain secrecy no matter the cost. If there is an issue for the next President on the question of immediately declassifying the JFK Records, after 61 years it is difficult to imagine what it could be.
Conclusion
Over4,600 assassination records are still withheld or redacted in the “Protected” JFK Collection. The President can achieve full declassification without harming any current military defense or intelligence operations. The President can do this without posing a current harm or risk to any living person who was involved in or had confidential information regarding JFK’s assassination. The President can do this job without posing a threat to current foreign relations or policies. And if there are somehow identifiable and legitimate legal reasons for postponement that still exist in 2024, the President can simply follow the law and issue record-specific certifications for each record that could still warrant continued postponement under the standards of the JFK Records Act. It's that simple. Otherwise, the President (whoever that may be) will have to go to Congress and request that it rescind the JFK Records Act of 1992 and pass a new law that supports the recent trend of secrecy and supports Biden’s “Transparency Plans”. In this authors’ view that would be a direct reversal of the historical JFK Records Act that was intended to ensure declassification through an accountable and enforceable process. It would be fascinating to see how that would be received by the American public and the rest of the world.
Decisive action and leadership from the President as discussed above would be based purely on the law and the result that the JFK Act was supposed to achieve – to “fully inform the American people about the history surrounding the assassination of President F. Kennedy.” That is a direct quote from Congress in the 1992 JFK Records Act.
Regardless of how the next President acts on this issue, remember that Congressional oversight committees are not off the hook either. Congress can re-establish control of non-executive branch records related to the JFK assassination and appoint a new ARRB if the President fails to do so. That is a point that should not be ignored. The original act was one passed by congress, with Senator Joe Biden voting for it.
There is a path for the next President to follow the existing law that governs the declassification of JFK Assassination Records. Otherwise, the President and Congress would need to work together to re-write that law and follow the existing pattern of secrecy. The choice should be easy.
