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HIDING PAST AND PRESENT PRESIDENCIES:
The Problems With Bush's Executive Order Burying Presidential Records
http://writ.news.findlaw.com/dean/20011109.html
By JOHN DEAN
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Friday, Nov. 09, 2001
On November 1, President George W. Bush signed his latest effort to govern
by secrecy — Executive Order 13233. For good reason this Order has a lot of
historians, journalists, and Congresspersons (both Republican and
Democratic) upset.
The Order ends 27 years of Congressional and judicial efforts to make
Presidential papers and records publicly available. In issuing the Order,
the President has pushed his lawmaking powers beyond their limits.
The Secret Presidency
As President watchers know, we have a President who likes secrecy.
He has hired only tested leak-proof and loyal staffers, effectively sealing
the Bush White House. He has had his records as the Governor of Texas
hidden, shipping them off to his father's Presidential library, where they
are inaccessible. He has stiffed the Congressional requests for information
about how he developed his energy policy — refusing to respond.
No President can govern in a fishbowl. But not since Richard Nixon went to
work in the Oval Office has there been as concentrated an effort to keep the
real work of a President hidden, showing the public only a scripted
President, as now. While this effort was evident before the September 11th
terrorist attacks, the events of that day have become the justification for
even greater secrecy.
The mystical veil of "national security" has been cast over much of the Bush
administration. There were the secret arrests of terror-related suspects
(currently over 1000 publicly unknown people). There was the expansion of
the wiretap granting powers of a secret federal court hidden within the
Department of Justice. There was, and continues to be, an apparent policy of
precluding news organizations and congressional leaders from access to
anything other than managed and generic news about the war in Afghanistan.
With all these moves, President Bush is brushing aside one historical
tradition of openness after another. It is in this context that the
President's latest action must be viewed.
The Executive Order suggests that President Bush not only does not want
Americans to know what he is doing, but he also does not want to worry that
historians and others will someday find out. Certainly that is the implicit
message in his new effort to preclude public access to Presidential papers —
his, and those of all Presidents since the Reagan-Bush administration. There
is, however, no justification whatsoever for this latest effort to hide the
work of past, present, and future Presidents.
What Bush's Executive Action Means
There has been some confusion about the meaning of the President's actions
in addressing Presidential papers. He has not repealed the existing law, as
some have asserted, because he does not have that power. But he has sought
to significantly modify the law, and made its procedures far more complex,
cumbersome and restrictive. In doing so, he has exceeded his executive
powers under the Presidential Records Act of 1978.
White House Press Secretary Ari Fleischer has tried, unsuccessfully, to spin
Executive Order 13233 as doing nothing more than implementing the existing
law, but in fact, the Order does much more. Perhaps unsurprisingly, when
pressed during his briefing, Mr. Fleischer dodged the tough questions, or
said "that's a matter for the lawyers." Fleischer contention that the Order
is innocuous would not hold up under close scrutiny, and so he avoided that
scrutiny.
Attorney Scott Nelson's Testimony Against the Order
One lawyer who appreciates exactly what has been done is Washington attorney
Scott L. Nelson, who represents Public Citizen, the public advocacy group
that flushed out the Nixon papers during several decades of litigation. Mr.
Nelson knows these laws well because Richard Nixon was his client for 15
years — ironically, much of that time fighting Public Citizen. Indeed, Scott
Nelson has been involved in the litigation that has shaped the body of law
that President Bush has ignored in issuing his Executive Order.
On November 6, Nelson appeared before a subcommittee of the House Committee
on Government Reform, chaired by Congressman Stephen Horn, to address the
new Bush Order. He explained in detail its flaws — which I have only
summarized below, by highlighting a few examples of how the Bush Order
ignores, or seeks to change, the law.
The Presidential Records Act
Under the 1978 Presidential Records Act, virtually all of a former
President's records are to be made publicly available by the Archivist
twelve years after that President leaves office. There are narrow exceptions
for papers that still must be withheld for national security reasons.
But the 1978 statute specifically states that among the material to be
released by the Archives twelve years after a President leaves office are
his confidential and private communications with his advisers (White House
staff and Cabinet Departments). The existing law does not provide an
exception for withholding "attorney-client" or "attorney work product"
materials.
The New Executive Order: Adding Presidential Privileges to Those in the Act
Through Executive Order 13233, President Bush has sought to re-interpret the
1978 law. To put it briefly, the Order adds and enumerates privileges upon
which a former or incumbent President can block release of a former
President's materials.
In claiming that the Order does not contradict the Records Act, Bush relies
on a clause in the Act that states that it does not "confirm, limit, or
expand constitutionally-based privileges which may be available to an
incumbent or former President."
Bush's lawyers read this clause as bringing into play all of the privileges
the law has precluded. They cite specifically the Supreme Court's 1977
holding in Nixon v. Administrator of General Services, which says that a
former President can exert executive privilege.
The 1978 law only recognizes the enumerated privileges set forth in the
Freedom Of Information Act. Nevertheless, Bush's Executive Order makes clear
that he reads the law as entitling a former or incumbent President to assert
a laundry list of privileges: the state secrets or national security
privilege; the communications with advisors privilege, the attorney-client
and attorney work product privileges, and the deliberative process
privilege.
Shifting the Burden, and Adding Extra Procedures
President Bush has also shifted the burden from the former President to the
person seeking the material. Under the Executive Order, the person seeking
material must show that he should be given it; it is no longer necessary for
the former President to show why material must not be disclosed.
Bush's Executive Order also takes the Archivist of the United States out of
the role of deciding if a former President's invocation of privilege should
or should not be honored. That role is now assigned to the incumbent
President. And obviously, it is likely that Presidents — wanting successors
to honor their own invocations of privilege — might tend to accept former
President's claims.
The new Executive Order also creates an elaborate procedure for an incumbent
President to block his predecessor from releasing documents. In addition,
under Bush's order, a former President can indefinitely block release of his
material, which is not possible under existing law.
Another added benefit for former Presidents is this: When the incumbent
President agrees with the former President about his decision to not release
records, the incumbent President (through the Department of Justice) will
defend the privilege against attack. That saves the former President what
can be significant legal expenses for attorney's fees to contest the case in
court.
A New Power for Vice Presidents
While Scott Nelson did not mention it in his testimony, the most remarkable
change the Executive Order effects is that it gives not just a President,
but also a Vice President, the power to invoke executive privilege over his
papers.
The Presidential Records Act includes Vice Presidential records. But it does
not give a former Vice President the right to invoke executive privilege —
for Congress does not have the power to do so.
Indeed, under the Constitution, the executive privilege is unique to the
President. Bush's Order is nothing less than absurd in purporting to grant
the power to invoke this privilege to the Vice President, (and may only feed
suspicion that Dick Cheney's role is more Presidential than may be
appropriate to his office).
The Effect of The New Executive Order
President Bush has not stated why he revoked the existing Executive Order
(Number 12667) addressing Presidential Records. President Reagan issued the
Order in 1989 after studying the law for almost eight years of his
presidency. Many believed Reagan's Order went beyond the law. Yet President
Clinton did not challenge or change it during his eight years in office.
Ironically, if President Clinton — not President Bush — had been the one who
issued this new Executive Order, Republicans in Congress would no doubt have
called for his impeachment for failure to execute the laws (that is, failure
to abide by the Presidential Records Act.)
Just as Clinton's assertions of privilege in court were repeatedly
questioned — and even argued by some to be abuse of process or even
obstruction of justice — Clinton's extension of Presidential privileges
through an Executive Order would have faced heavy criticism. But when Bush
takes the same action — especially now, with his new popularity — the
criticism is highly modulated in tone.
Why Bush Apparently Issued the New Executive Order
What appears to have provoked President Bush's action is the fact that some
68,000 documents from the Reagan presidency were waiting at the White House
when Bush arrived, ready for release by the National Archives.
These documents passed the twelve-year deadline for public release on
January 12, 2001, but their release has been stalled by the Bush White House
until now. The documents are believed to contain records that Papa Bush, as
Reagan's Vice President, is not happy to have made public. They also contain
papers of others now working for Bush, who might be embarrassed by their
release.
Look for either Papa Bush, or someone designated by former President Reagan,
to object to any of these 68,000 documents' release pursuant to the new
Executive Order. If that happens, it will confirm my guess as to why the
Order was written at this time. The effect will be to tie the release of
those records up for years.
The most certain effect of this new Order will be litigation. The Order will
be tested in court, if the President does not withdraw it as requested by
both Republicans and Democrats in the Congress. And should the Order not be
overturned by the courts, I believe Congress will act. In fact, Congress
could act even before the courts resolve these matters.
In short, the prospects for Bush's Executive Order 13233 remaining the law
of the land is slim to none.
A Troubling Penchant For Secrecy
More troubling than the Order's throwing a monkey wrench into the process of
releasing Presidential papers, however, is the President's penchant for
secrecy. Secrecy provokes the question of what is being hidden and why.
If President Bush continues with his Nixon-style secrecy, I suspect voters
will give him a Nixon-style vote of no confidence come 2004. While secrecy
is necessary to fight a war, it is not necessary to run the country. I can
assure you from firsthand experience that a President acting secretly
usually does not have the best interest of Americans in mind. It is his own
personal interest that is on his mind instead.
The Bush administration would do well to remember the admonition of former
Senator Daniel Patrick Moynihan in his report on government secrecy: "Behind
closed doors, there is no guarantee that the most basic of individual
freedoms will be preserved. And as we enter the 21st Century, the great fear
we have for our democracy is the enveloping culture of government secrecy
and the corresponding distrust of government that follows."
Copyright © 1994-2001 FindLaw
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