John Dean: The Problems With Bush's Executive Order Burying Presidential Records

[Steve Schear]

"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."

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
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."

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.