HIDING PAST AND PRESENT PRESIDENCIES:
The Problems With Bush's Executive Order Burying Presidential Records

By JOHN DEAN
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.

Presidencial Secrecy

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.

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

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

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.

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."


John Dean, a FindLaw columnist, is a former Counsel to the President of the United States. His most recent book, The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court, was just published by the Free Press.

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