STATEMENT OF
PROFESSOR JONATHAN TURLEY
SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
WASHINGTON, D.C.
“H.R. 4187: The Presidential Records Act Amendments of 2002”
April 24, 2002
_______________
Thank you, it is an honor to appear again before this Subcommittee and its distinguished members. Chairman Horn, Vice-Chairman Lewis, Ranking Member Schakowsky, members of the Subcommittee, my name is Jonathan Turley and I am a law professor at the George Washington University Law School where I hold the J.B. and Maurice C. Shapiro Chair for Public Interest Law. I know that your time is limited today and, with the consent of the Subcommittee, I would like to submit a longer written statement to augment my oral testimony on the Presidential Records Act (PRA) and its amendment in light of Executive Order (E.O.) 13233.[1]
I.
INTRODUCTION
James Madison once warned that “[a] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Government must arm themselves with the power which knowledge gives.”[2] Madison’s warning is particularly apt in the context of presidential records. There is no information that is more illuminating in terms of public policy and governmental abuse than presidential records. Yet, every administration appears to develop a certain reflective hostility to the release of presidential material. In part this is due to the long-standing view of presidents that confidentiality is essential to the effective operations of the White House. It may also be due in part to the vulnerability that raw records can pose to the legacy of a former president and his administration.
It is precisely that latter issue that concerns both those seeking to restrict and those seeking to release presidential material. Efforts of an administration to restrict access or release immediately trigger suspicions of tailoring a legacy through the control of information. These suspicions may in fact be misplaced but it is based on a history of such motivations. A president’s support for open government and unfettered access to government documents can change when the content of such material becomes known. For example, in 1961, Richard Nixon objected to possible restrictions to information involving the Bay of Pigs debacle under President John F. Kennedy. Nixon insisted that
The concept of a return in peacetime demonstrates a profound misunderstanding of the role of a free press as opposed to that of a controlled press. The plea for secrecy could become a cloak of error, misjudgments, and other failings of government.”[3]
Nixon’s transformation from an advocate of maximum freedom to maximum control over government information should be a lasting lesson to the unwary. Public access to government information will remain an unreliable and content-driven policy so long as it is left to the discretion of those who have the most to fear from its release. The mere element of discretion invites officials to yield to temptation to control and regulate the flow of information. Such discretion is like a currency of fleeting value and only redeemable in its use. Officials who are given authority tend to use it, particularly when a legacy or historical record may hang in the balance. The only solution is to reduce such control and discretion to a minimum; to affirm a bright-line rule for the release of information to the public. After all, it was in the name of the American people that these communications and documents were made. They have a right to not only see what was done in their name but to be assured that access of these records will be afforded within a defined and determinate period.
The question raised by E.O. 13233 is an interesting mix of issues touching on the separation of powers, executive privilege, statutory interpretation, and fundamental notions of democratic government. I come to this subject as an academic who teaches, writes,[4] and litigates[5] in the area of constitutional law. This past work includes two areas of particular relevance to this hearing: legisprudence[6] and executive privilege.[7] After significant losses in the areas of executive privilege and attorney-client privilege under former President Clinton, I was one of the academics who encouraged the Bush Administration to make the repair of executive privilege a priority issue.[8] Accordingly, my disagreement with the Bush Administration in a series of recent controversies over executive privilege is one of degree rather than purpose. Quite frankly, I have been perplexed by the Administration’s selection of issues on which to fight executive privilege. Given the anemic condition of executive privilege after the Clinton losses in court, it was essential that the Administration chose wisely when and how to defend this vulnerable asset. Instead, the Administration has invoked and fought privilege claims that were often excessive and even unprecedented.[9] This has led to a number of losses and subsequent reversals by the Administration in areas ranging from the release of Energy Task Force documents to the appearance of Homeland Security Director Tom Ridge before Congress.[10] To put this developing record in the kindest possible light, there appears a lack of a coherent and consistent strategy in this Administration for the assertion and protection of executive privilege. The Administration’s unexpected issuance of E.O. 13233 follows this pattern. Not only was there an apparent lack of consultation with Congress,[11] but the executive order was written in a fashion that seems to maximize the chances of another loss in court. As someone who is often on the other side of executive privilege assertions in court, I should be delighted by such a pattern. However, as someone who cares deeply about the Madisonian system of tripartite government, this record is as distressing as it is baffling.
In my view, E.O. 13233 is fatally flawed as a matter of law and extremely misguided as a matter of public policy. For that reason, I am supportive of H.R. 4187 in both its language and purpose. I commend Chairman Horn and the bipartisan supporters of this bill for defending a long-held policy of public disclosure.[12] It is the type of public interest legislation that has distinguished your career in this body, Chairman Horn, and it is all the more meaningful as one of your final legislative objectives before retirement. E.O. 13233 represents a troubling anomaly after decades of support for the maximum release of presidential records. This record extends through both democratic and republican administrations and the underlying policy has been championed by both parties in Congress. Fortunately, our system allows for corrective action to be taken when an Administration takes an action that is unwise or ill-considered. H.R. 4187 is precisely such a measured legislative response.
II.
A QUESTION OF OWNERSHIP:
PRESIDENTIAL PAPERS AS PUBLIC PROPERTY.
To understand the legal and policy issues relating to E.O. 13233, it is important to understand how we came to the enactment of the Presidential Records Act. The change in policy by the Bush Administration is far more fundamental than simply a new procedural framework for the release of presidential papers. There are aspects of the executive order that hearken back to a quasi-proprietary sense reminiscent of a long-abandoned view of some early presidents.[13]
When one considers the copious amounts of government records and documents produced each day in the federal system, it is hard to imagine that at the beginning of the republic we had a reputation for disdaining records and documentation. Alexis de Touqueville noted in his masterpiece, Democracy in America, that
[In America, no one] bothers about what was done before his time. No method is adopted; no archives are formed; no documents are brought together, even when it would be easy to do so. When by chance someone has them, he is casual about preserving them. Among my papers I have original documents given to me by public officials to answer some of my questions. America seems to live from day to day, like an army on active service.[14]
Today, the very suggestion of public officials giving original documents to answer inquiries is enough to send the most stalwart archivist into a fetal position. Perhaps the most valuable of such documents are presidential papers. While agencies generate important material in the execution of policy, it is in presidential papers that historians can divine the genesis of policy.[15] Moreover, the weakening of the PRA would be particularly damaging to our historical record because the act serves a unique function vis-à-vis record-keeping statutes like the Federal Records Act (FRA)[16] and information-forcing statutes like the Freedom of Information Act (FOIA).[17] The FRA not only does not cover White House offices, but the Supreme Court has ruled that it was intended “not to benefit private parties, but solely to benefit the agencies themselves and the Federal Government as a whole.”[18] FOIA conversely mandates conditions for release, but does not contain record-keeping standards for the government.[19] The PRA strives to serve not the interests of agencies but that of history. It does this through a detailed process for the safekeeping and dissemination of presidential material.
For much of our early period as a republic, presidents and Congress assumed that presidential papers were the property of the departing Chief Executive. Accordingly, it was common for departing presidents to take their papers with them into retirement except for those papers with on-going significance or application in government.[20] This led to a series of historical losses of the greatest magnitude.[21] George Washington left his papers to the control of his nephew, Associate Supreme Court Justice Bushrod Washington, who was described as a man of “little discretion” and “hazardous generosity.”[22] In relatively short order, Washington’s papers were dispersed among a wide array of private parties. Other presidents like Andrew Jackson allowed their papers to be distributed in equally haphazard ways.[23] Those presidents who did order the consolidation and preservation of their papers did not always succeed. Larry Berman has recounted how William Henry Harrison’s papers were lost in a fire at the Harrison home in Ohio.[24] Civil war claimed the papers of John Tyler when Richmond burned in 1965.[25]
Other presidents or their relatives preferred destruction to dispersion in handling presidential papers. Fillmore’s son actually ordered the destruction of his father’s correspondence “at the earliest practicable moment” after his death.[26] Ulysses S. Grant followed this view and destroyed most of his presidential papers[27] as did Franklin Pierce and Chester A. Arthur.[28] and virtually all of the private papers of Harding were destroyed by his wife.[29] Perhaps most shocking was the effort of Abraham Lincoln’s son Robert, who “was caught by Mary Butler in the very process of destroying his father’s Civil War correspondence.”[30] While recognizing the public’s interest in these papers, most presidents until the middle of the twentieth century took the view of Grover Cleveland that “if I desired to take [my presidential papers] into my custody I might do so with entire propriety, and if I saw fit to destroy them no one could complain.”[31]
Presidents were not alone in this proprietary view of presidential papers. Congress and archivists treated presidential papers as personal property, as evidenced by purchases of collections by the government.[32] Over time, a new view emerged that did not deny the claim of personal ownership of some presidential papers, but viewed their sale or destruction as a public wrong. Franklin Delano Roosevelt symbolizes this shift in thinking in his decision to donate both land and his papers for the establishment of the first presidential library in Hyde Park, New York. He did so, however, in full recognition that this was a gift to the American people and not an obligation.[33] After Roosevelt, there was an expectation that these papers would eventually be placed in a public library or archive.[34]
After Roosevelt, the view of a public duty rather than a public obligation continued to control the release of presidential records. Even when Congress enacted the Presidential Libraries Act of 1955,[35] presidents were not required to deposit their records into the libraries and, when they chose to do so, they controlled the conditions under which they would be available to researchers or the public.[36] Thus, Congress either did not consider presidential records to be public property or, more likely, it was content to leave the issue unresolved and to rely on the good intentions of former presidents.
It was Richard Nixon who brought about a quantum change in the status of presidential papers for most unexpected of reasons. Nixon would be the catalyst for the Supreme Court’s modern articulation of executive privilege and its limits in his struggle with Congress over its investigations and impeachment. It is less known that Nixon also caused a reconsideration of the status of presidential documents and the process by which such documents would be acquired and released by government archivists. In a modern replay of prior scandals involving the destruction of presidential papers of presidents like Lincoln and Harding, an agreement was discovered by Congress that reasserted not only personal proprietary claims to these papers but also the right to destroy such property.[37] This so-called Nixon-Sampson agreement is often referred to by professional archivists with the same loathing that international politics scholars refer to the Stalin-Molotov agreement. Arthur Sampson was the Administrator of General Services and signed an agreement with Nixon that recognized his private property claim over all of his presidential papers. This private property included the incriminating tapes recorded in the Oval Office. Under the agreement, “Nixon could begin to destroy the tape recordings on or after September 1, 1979, so that all of them would be destroyed by September 1, 1984, or following the death of the former President, whichever occurred first.”[38] The resulting controversy led to the enactment of the Presidential Recordings and Materials Preservation Act of 1974 (PRMPA),[39] which nullified the Nixon-Sampson agreement and protected the Watergate tapes from destruction.[40] A challenge from Nixon led to the Supreme Court’s constitutional ruling in favor of Congress’ right to protect such material from unilateral destruction by a president in Nixon v. Administrator of General Services.[41]
The Nixon-Sampson controversy also led to the establishment of a commission to study the question of presidential records.[42] The National Study Commission on Records and Documents of Federal Officials called for a final rejection of the private proprietary theory of presidential papers. Not only did the commission recommend that all such papers be viewed as public property but further suggested the current 15-year time period as a transition period to eventual public release.[43] This was the position ultimately adopted by Congress and President Jimmy Carter in the enactment of the Presidential Records Act of 1978.[44]
The Nixon litigation reveals a transition from a period of reliance on private proprietary claims to reliance on executive privilege as a basis for withholding material. Nevertheless, a private proprietary claim was made by Nixon and led to a brief consideration of the issue of title to presidential records in United States v. Nixon.[45] While the Supreme Court declined to hold that presidential records are the property of the public rather than the president, it strongly suggested that there was a strong public claim to these documents, even against the wishes of a claim of private ownership. In a footnote that was a catalyst for the enactment of the PRA, the Court stated:
We see no reason to engage in the debate whether appellant has legal title to the materials. . . . It has been accepted at least since Mr. Justice Story's opinion in Folsom v. Marsh, 9 F. Cas. 342, 347 (No. 4,901) (CC Mass 1841), that regardless of where legal title lies, "from the nature of the public service, or the character of the documents, embracing historical, military, or diplomatic information, it may be the right, and even the duty, of the government, to give them publicity, even against the will of the writers." Appellant's suggestion that the Folsom principle does not go beyond materials concerning national security and current Government business is negated by Mr. Justice Story's emphasis that it also extended to materials "embracing historical... information." Ibid. Significantly, no such limitation was suggested in the Attorney General's opinion to President Ford. Although indicating a view that the materials belonged to appellant, the opinion acknowledged that "Presidential materials" without qualification "are peculiarly affected by a public interest" which may justify subjecting "the absolute ownership rights" to certain "limitations directly related to the character of the documents as records of government activity."[46]
Congress responded quickly to establish legislatively that title to this material belongs to the public, as position accepted by President Jimmy Carter and all of his successors in office.[47]
On this historical spectrum, it would be unfair to characterize President Bush’s position as analogous to the line of presidents asserting private proprietary claim to presidential records. President Bush appears entirely respectful of the federal law making these documents public property and subject to public dissemination. Rather, President Bush appears to hold a view akin to a constitutional proprietary rather than a private proprietary claim over these records. By giving not only former presidents but their designated heirs a veto over the release of documents, he has created a new form of proprietary claim that returns a degree of unilateral control to former presidents and their heirs. With the exception of the right to sell or destroy material, this new constitutional proprietary view affords a degree of private control that has not been realized since the demise of the private proprietary theory.
III.
THE PRESIDENTIAL RECORDS ACT AND E.O. 13233
A. A Brief Overview of the Presidential Records Act.
Unlike its immediate predecessor, the PRMPA, the Presidential Records Act was enacted with the purpose of “establish[ing] the public ownership of records created by future Presidents . . . in the course of discharging their official duties.”[48] For decades, no president has questioned the public claim to these records. This may be in part due to both its genesis in a Supreme Court decision as well as its recognition of executive privilege and national security claims for withholding information.
A great deal of material under the PRA is either excluded or subject to destruction. The PRA does not cover personal records.[49] Rather presidential records are “any documentary materials relating to the political activities of the President or members of his staff, but only if such activities related to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.”[50] Even when covered by the PRA, Congress imposes a delay in the release of information to protect the immediate confidentiality or sensitivity of the information. Thus, a president is allowed to unilaterally demand a delay in the release of information for up to 12 years for material that fall into one of six categories.[51] These categories include material:
(1) authorized to be kept secret for national security and foreign policy reasons; (2) relating to the appointment of federal officials; (3) exempted from disclosure by statute; (4) trade secrets and commercial or financial information which is confidential; (5) confidential communications between the President and advisors concerning requests for advice; and (6) personnel and medical files of which disclosure would be an invasion of privacy.[52]
The most relevant category for a review of E.O. 13233 is number five – the confidential communications category.
It is important to understand that the twelve-year limitation under the PRA does not mean that any and all material is then released. To the contrary, Congress incorporated the standards from FOIA as to allow the indefinite withholding of information under eight distinct categories. Only one category for withholding FOIA information was excluded – the FOIA exemption that covers most confidential communications.[53] The remaining exemptions include (1) any national security information that has been classified pursuant to an executive order;[54] (2) information that is “related solely to the internal personnel rules and practices of an agency”;[55] (3) information that Congress has statutorily exempted from release;[56] (4) trade secrets and other information that would reveal privileged or confidential commercial or financial information;[57] (5) information that would violate an invasion of privacy;[58] (6) certain law enforcement records;[59] (7) information used by “an agency responsible for the regulation or supervision of financial institutions;”[60] and (8) maps and other geological or geophysical information “concerning wells.”[61]
The PRA allows for a fair degree of flexibility in both the maintenance and release of information. The Act does allow for destruction of records but bars the destruction of any records “that no longer have administrative, historical, informational, or evidentiary value.”[62] The Act further requires an examination by the Archivist of the material who can notify Congress and trigger a 60-day waiting period to allow for a countermanding legislative act. For all other material, the Act establishes a simple process for the archiving and later public dissemination of material. As for a president’s policies on record-keeping during his or her term, the Act leaves the matter entirely to his own discretion and does not provide for judicial review.[63]
The role of the Archivist is central to the legislative intent and operation of the PRA. Congress essentially left to the Archivist to be a sentinel for history. While the Archivist has no independent authority to challenge a decision by a president, he has the authority to raise an alarm as to the loss of valuable material and to delay the destruction to allow Congress to act. This sentinel function is triggered by a requirement in the Act that a president must notify the Archivist of any destruction of records and the Archivist can then issue, if warranted, a written opinion in opposition to such a policy.[64] If the president chooses to ignore the recommendation of the Archivist, the latter may delay any destruction by 60 days and alert Congress to the potential loss.[65] The Archivist is given the express duty to release presidential records “as rapidly and completely as possible.”[66] To accomplish this vital role, Congress sought “to shield the Archivist from unnecessary pressure” given the expected interest of a president to forestall the “release of embarrassing and inappropriate material concerning a predecessor, and from the predecessor to withhold materials. . . .”[67]
The Archivist also serves a sentinel function in protecting of executive privilege. The Archivist is required to notify a former president of the possible release of any documents that “may adversely affect any rights and privileges which the former President may have.”[68] The former president then has 30-days to object to such a release and, if the Archivist rejects the claim of privilege, the former president is given an additional 30 days after notification of denial to seek judicial relief.[69]
At the end of his administration, President Ronald Reagan signed an executive order imposing additional procedures on the archiving and release under the PRA.[70] Notably, neither President Reagan nor President George P. Bush opposed the provisions changing in E.O. 13233. Rather, President Reagan imposed relatively modest procedural requirements on the Archivist that did not trigger any substantial opposition from the public or Congress. For example, E.O. 12, 667 required the Archivist to “identify any specific materials, the disclosure of which [the Archivist] believes may raise a substantial question of Executive privilege.”[71] This executive order was superceded by E.O. 13233.
B. Constitutional Analysis of E.O. 13233.
It is important to remember that the PRA recognized the newly defined principle of executive privilege, but did not seek to expand on the privilege in the control of presidential records.[72] In United States v. Nixon,[73] the Supreme Court had rejected Nixon’s extreme view of executive privilege and held that such a privilege is qualified.[74] The resulting privilege was limited and fully incorporated into the PRA. The language of the executive order strongly suggests a view of executive privilege that contradicts not only the PRA but prior decisions of the federal courts in this area. In this sense, E.O. 13233 would effectuate fundamental changes in both an act of the legislative branch as well as prior rulings of the judicial branch. Since an executive order cannot constitutionally do either task under the separation of powers doctrine, the Administration can hardly expect to achieve both tasks in E.O. 13233.
There are a host of constitutional problems raised in this executive order. Given the limitation on time, I would like to focus on two general constitutional issues. First, there is the question of the constitutionality of the PRA as a threshold question. Despite the acceptance of prior administrations, the authority of Congress to compel the release of confidential communications could be challenged by the Bush Administration as violative of executive privilege. Second, if the authority of Congress to compel the release of such documents is accepted, there is the question of whether the President has attempted to use an executive order to negate or amend a statute.[75] This secondary question goes to the inherent conflict between the statute and E.O. 13233.
1. The Constitutionality of the Compelled Disclosure of Confidential Communications under the Presidential Records Act.
The threshold constitutional analysis of the PRA naturally focuses on the assertion of congressional authority over confidential communications. This analysis begins with the clear decision of Congress not to exempt confidential communications when it decided not to incorporate FOIA exemption (b)(5). It is the category of confidential communications that appears to be the primary concern of the Bush Administration despite its earlier statements. The Bush Administration initially justified E.O. 13233 on the need to protect national security.[76] However, as already noted, there is ample protection for national security protection since both the PRA and the incorporated FOIA exemptions specifically cover information “properly classified pursuant to . . . Executive order.”[77] The national security protections expressly bar the release of national security information during and after the twelve-year period. The extent that the Administration believed that E.O. 13233 was needed to protect national security information, it was simply incorrect in its reading of PRA.
A direct constitutional challenge to the PRA would seem both unwise and unwarranted. Executive privilege has long occupied a certain place in constitutional law. The privilege remains relatively recent in its articulation by the Supreme Court, though it can be traced to the very first administration of George Washington.[78] The Court recognized this privilege with considerable reservation as to its scope and duration of use. The Court has noted that an executive privilege claim of a former president is facially less compelling than it is for an incumbent.[79] Moreover, the Court has held that executive privilege is time-sensitive. Thus, while the Court has accepted that a former president can raise an executive privilege claim,[80] this claim diminishes with time. The Court was clear on this point in Nixon v. Administrator of General Services when it noted that “[t]he expectation of the confidentiality of executive communications thus has always been limited and subject to erosion over time after an administration leaves office.”[81] The only question is the rate of this decline. Congress clearly believed that twelve years was ample time for the confidentiality of communications to recede to the point that it is over-ridden by the countervailing need of public disclosure.
E.O. 13233 is premised on the notion that some confidential communications would remain privileged after twelve years. There is no question that some communications may prove embarrassing for a president or an advisor. This is particularly the case for younger presidents like former president Bill Clinton and President Bush who will live long after the release of their records. However, there is no evidence that a twelve-year period would in anyway diminish the frank communication of information in the White House. There is no guarantee that a former president will in fact invoke privilege over a particular communication at the time of its making. More importantly, the executive privilege builds on the highly uncertain ground of an invocation of a former privilege. It then attempts to project this claim beyond a decade in time. Given the Court’s repeated position that this is a qualified and time-sensitive privilege, the suggested extension beyond the twelve-year period is highly dubious.
Ultimately, Congress has authority to assert public ownership over this material and to determine an adequate buffer period for confidential communication. Given the countervailing need for disclosure and the absence of any compelling evidence of a chilling effect on communications, it is doubtful that a court would reconsider the constitutionality of the PRA in a direct constitutional challenge.
2. The Inherent Conflict Between the Presidential Records Act and E.O. 13233.
Unless the President is challenging the constitutionality of the PRA, he cannot supercede or modify a federal statute through an executive order.[82] Thus, the constitutional analysis must turn to the question of whether this executive order truly only adds a few additional procedures consistent with the statute, as claimed by the White House,[83] or abridges the statute in violation of the Constitution. In my view, there is little question that E.O. 13233 violates the PRA in changing almost every major element of the statutory scheme. As such, the executive order transgresses upon the constitutional authority of Congress and should be found unlawful in any challenge.
i. The Negation of the Statutory “Buffer Period.”
E.O. 13233 stands in direct contradiction of a variety of statutory provisions and is, therefore, in violation of federal law. The most obvious is the stated statutory period for the release of information that is not exempted under the PRA. Congress expressly stated that the twelve-year delay was conceived as a “buffer period” for confidential communications.[84] It viewed the period as balancing the legitimate concerns of the Executive Branch with the need of the public to receive this information. The executive order would extend this period indefinitely and, in doing so, violates the very foundation of the PRA.
ii. The Reduction of the Authority of the Archivist.
E.O. 13233 also materially alters the statutory role of the Archivist. Despite the decision in Public Citizen v. Burke[85] in highly analogous claims, the executive order would transform the Archivist from a central to a bit player in disputes over presidential records. Where the PRA allows the Archivist to override an unreasonable assertion of privilege by a former president, the executive order would give the former president an effective veto – even when the incumbent president views the assertion to be unfounded.[86] Moreover, in cases of death or disability, the PRA expressly gives the Archivist the authority to exercise the authority of the former president.[87] This authority is expressly transferred to the family under the executive order, even without the approval of the former president.[88] Even the duty of the Archivist to carry out the insular schedule for review is changed under the executive order. E.O.13233 allows a former president to take 90 days for such review. However, it then mandates that a president can simply request an extension and effectively bar release.[89] A former president can simply daisy-chain such extension indefinitely. Once the most active component of the PRA process, the Archivist is reduced to a largely pedestrian role. Such changes negate authority given to the Archivist by Congress to control these records, which cannot be accomplished through an executive order.
iii. The Expansion of the Authority of a Former President.
E.O. 13233 also materially changes the authority of a former president. In the PRA, Congress declined to give a former president control over presidential records.[90] A former president was required to yield to the judgment of the Archivist or seek judicial relief. The executive order violates the Act by reconstructing the status of the former president in giving him final control over his records. Under the executive order, a former president is allowed to independently veto the release of material even when the Archivist finds the basis to be unsupported and the incumbent president finds “compelling circumstances” to disagree with the assertion of privilege.[91] Giving a private citizen (let alone his heirs) the continuing right to unilaterally control access not only violates the PRA, but raises serious constitutional questions.[92] A former president is simply a private citizen and cannot compel an executive official to impose improper or unsupported restrictions on public material. This point was specifically addressed in Public Citizen v. Burke, where the court rejected the notion that a former president could supplant the jurisdiction of the Archivist through an assertion of privilege. Such authority would allow the former president to “gain[] power to withdraw from the Archivist some indefinite portion of the responsibilities that Congress delegated to him.”[93]
iv. The Expansion of Parties with Ability to Control Access to Presidential Records.
E.O. 13233 also materially changes the PRA by adding parties who can claim privilege and control access to presidential records.[94] In perhaps the most baffling element of the executive order, the Bush Administration would add parties who may invoke privilege, including an unconstitutional extension of authority to a family member or designees. Under this executive order, a president could select any designee from a foreign citizen to a half-wit to assert executive privilege. [95] Moreover, the executive order allows for family members to designate a representative in the case of “death or disability,” including a series or group of individuals at their sole discretion.[96]
Putting aside the obvious policy implications, this would create new authority not just under the PRA but under federal law. As a general matter, executive privilege rests exclusively with the government and “can neither be claimed nor waived by a private party.”[97] Executive privilege is not some ottoman that can be bequeathed to successive generations. The executive order would mutate a limited constitutional doctrine into a matter for probate. Given the fact that a former president’s claim to executive privilege is itself both derivative and time-sensitive, the suggested extension to family members shows a breathtaking misunderstanding of the law in this area. There is no constitutional basis for such a transfer of authority to the heirs of a former president.
v. Shifting of the Burden for Release.
E.O. 13233 also fundamentally changes the legal burden in disputes over the withholding of presidential records. Under the PRA, it was the duty of a former president to seek a court order to override a decision of the Archivist to release material after the twelve-year period has run. The executive order would place this burden on the person seeking the material, a burden that is likely to discourage most researchers with limited funds. A former president is given public support both in terms of his administrative costs as well as his library. Moreover, a former president has access to a legion of lawyers who would gladly serve pro bono in any litigation. The burden imposed under the PRA is not particularly heavy for a former president, but could be determinative if shifted to a researcher or scholar. Regardless of the public policy implications of such a shift, it is clearly a material change in the federal statute and, therefore, unlawful.
vi. Imposition of New Standards for Access to and Withholding of information.
E.O. 13233 also introduces an entirely new threshold standard for access to presidential material. Under the executive order, “a party seeking to overcome the constitutionally based privileges that apply to Presidential records must establish at least ‘a demonstrated, specific need’ for particular records, a standard that turns on the nature of the proceeding and the importance of the information to that proceeding.”[98] This standard is grafted onto the statute, which places no such threshold showing for access.[99] In combination with the shifting of the burden, it represents an impermissible amending of a federal statute through the promulgation of an executive order.
The executive order also imposes a curious standard on the incumbent president who “will concur” with the claim of a former president absent “compelling circumstances.” It is a mystery where this standard comes from. An incumbent president presumably will either agree or disagree with an executive privilege assertion made by a former president. There is no basis on which to mandate agreement of an incumbent president with an unfounded privilege assertion. There is no indication what “compelling circumstances” are supposed to entail[100] but the implication is highly disturbing. The executive order mandates that, absent the undefined “compelling circumstances,” an incumbent “will support” the claim of a former president “in any forum in which the privilege claim is challenged.”[101] That would presumably include a federal court, where a president is expected to support valid assertions of privilege. The executive order seems to suggest that an incumbent president could seriously question an assertion, but lacking “compelling circumstances,” litigate for its recognition in court. This raises serious ethical and legal questions as well as constitutional questions. Moreover, it impermissibly changes the structure and process of the PRA.
vii. The Expansion of Executive Privilege.
Finally, E.O. 13233 clearly violates the decision of Congress not to expand executive privilege authority under the PRA.[102] As aforementioned areas indicate, the executive order would radically expand executive privilege under the auspices of the PRA. Not only is this expansion unsupported by controlling constitutional precedent, but it does precisely what Congress barred under the PRA. If the Bush Administration believes that the PRA violates executive privilege, then it may initiate a direct constitutional challenge to that statute. However, if the constitutionality of the statute is conceded (as it should be), the PRA was written to avoid its use as a vehicle for the expansion of executive privilege claims. E.O. 13233 would impermissibly use the PRA for a radical expansion of executive privilege beyond the confines articulated by the federal courts.
C. An Analysis of the Policy and Historical Implications of E.O. 13233.
The constitutional and legal infirmities of E.O. 13233 should be determinative in any review of this controversy. However, it is also important to note that the executive order would be a disservice to both history and the public. In some respects, the executive order constitutes a throw-back to an earlier period of executive authority over presidential records. The transfer of absolute control of access to documents to former presidents and their heirs is closely analogous to the private proprietary model that was rejected by the federal courts, Congress, and prior presidents. The Bush Administration has placed itself on the wrong side of history in trying to resurrect such family control over public material.
The executive order also moves constitutional law in the wrong direction by inflating the status of former presidents and their families. The Madisonian democracy is a curious system for many outsiders. We give a single man or woman the greatest power in the world but they, as presidents, cannot use any of that power for themselves. More importantly, at the end of their term, these presidents are transformed into citizens with no lingering claims of official status or power. It is this transformation that is a defining part of our system. From our earliest debates, we have resisted efforts to give presidents or former presidents trappings of a monarchy. Even the smallest symbol of such monarchial authority was rejected. In an earlier academic piece, I recounted the debate over whether writs should be issued in the name of the president or in the name of the people of the United States.[103] James Madison and others rejected the call from John Adams to issue writs in the name of the president.[104] Senator William Maclay referred to such views as the “old leaven” of an earlier royal period.[105] While not well-known, this debate reflects a fundamental change brought about with our revolution in the status of a chief executive. The attempt to extend executive privilege not only for the life of former presidents, but also for his heirs is precisely the type of “old leaven” that Maclay and other stood against in the First Congress.[106]
The transfer of privilege assertions to designated family members only magnifies the fundamental conflicts between E.O. 13233 and our constitutional system. It also creates the opportunity for endless controversy. As noted earlier, the greatest abuses during the private proprietary period were often committed by relatives acting by such designation. Destruction of material was often the result of sheer ignorance or simply recklessness.[107] The executive order also opens up the possibility of legal challenges over who has the right to exercise a former president’s executive privilege. Just yesterday, the Los Angeles Times reported on an intense fight between daughters of former president Nixon over his library.[108] There is no reason why the bequeathed privilege will not also become an object of intrafamily litigation. This is particularly the case when the executive order leaves open the possibility that “the family of the former president may designate a representative (or series or group of alternative representatives, as they in their discretion may determine) to act on the former President’s behalf.”[109] Moreover, the Administration would allow the family to act without the approval of a living but “disabl[ed]” president.[110] Thus, we could see litigation in which a president is legally found to have a disability and his view of privilege overridden by his family. Ironically, it is fortunate that this provision if facially unconstitutional because it would otherwise be a recipe for disaster in actual application.
Ultimately, however, the executive order presents the greatest threat to history. The executive order would allow for endless delay in the release of documents, long past the death of a former president. Such was once the case when papers of presidents like Lincoln were sealed for over 80 years before scholars could see them.[111] The loss to history is in the inability to use documents to interview individuals who may have played a role in events. As time passes, the ability of history and law professors to delve into particular events is severely retarded and curtailed. This does not mean that such release is costless for former presidents. However, a free and open society comes at some cost. It is a choice that has been made by the citizens through their representatives in Congress. This Administration may believe that it was the wrong choice, but it is binding on this president unless and until he seeks a legislative change in the PRA.
IV.
H.R. 4187:
The Presidential Records Act Amendments of 2002
As should be obvious from my critique of E.O. 13233, I strongly favor the enactment of H.R. 4187. In my view, this legislation represents precisely the type of institutional role that James Madison foresaw in the design of the tripartite system of government. The Madisonian system depends greatly on the integrity of the legislative process and the avoidance of what I called “legislative circumvention.”[112] I previously testified against such legislative circumvention by the Clinton Administration vis-à-vis the courts.[113] E.O. 13233 is another variation on this theme; an attempt to avoid a legislative debate over a highly controversial and questionable change in the law. This executive order would work a new and radical change in the status of former presidents. It is a question that should not be answered by some unilateral presidential fiat.
I have little doubt that E.O. 13233 is unconstitutional. However, the issuance of a facially unconstitutional executive order should not be used to gain an effective exemption from federal law during the period of appeal. Congress should respond without delay and in a bipartisan manner to such direct challenges to its constitutional authority. When one branch goes outside the lines of the Madisonian democracy, the aggrieved branch is given the authority needed to check the assertion of extraconstitutional authority and thereby preserve the constitutional balance. It is this exercise of institutional vigilance and self-protection that brings stability to the system as a whole. To put it simply, in a Madisonian democracy, good fences do make for good neighbors.
H.R. 4187 further improves the PRA by creating some procedures designed to assist former presidents in their review of material. While I personally have some question over the exercise of executive privilege authority by former presidents, H.R. 4187 complies with the clear precedent permitting such assertion by former presidents and fully accommodates the exercise of this privilege. The result is a PRA that is both reaffirmed in its most fundamental provisions and improved in its procedures. It is the type of balanced legislation that should receive the support of this Administration in combination with the immediate recision of the E.O. 13233.
V.
CONCLUSION
E.O. 13233 appears a case of the over playing of a constitutional hand. At a time of international conflict, the Administration may have expected greater deference in asserting executive privilege. Certainly, this was the ideal environment to repair the losses under the Clinton Administration. However, the assertions of executive privilege by the Bush Administration have been so excessive that it may soon rival the Clinton Administration in losses and reversals in the area. E.O. 13233 is indicative of the absence of a coherent and well-constructed strategy. E.O. 13233 is so far out of the bounds of accepted executive privilege that it almost seems designed for failure. Congress, however, should not wait for a final judicial judgment on appeal. In 1978, the United States made a historic commitment in the enactment of the PRA. It is now time for this Congress to protect the historic work of a prior Congress. H.R. 4187 will protect that legacy and further improve a statute that has become a symbol of our unique form of open and democratic government.
I would be happy to answer any questions that the Subcommittee may have on this subject.
[1] This testimony is taken in part from a forthcoming article. Jonathan Turley, Presidential Records and Popular Government: The Continuing Struggle Between Executive Privilege and Legislative Authority in the Control of Presidential Material (2002).
[2] The Writings of James Madison 103 (G. Hunt ed., 1910).
[3] Martha J. Kumar & Michael B. Grossman, “The Refracting Lens: The President as He Appears Through the Media,” in Presidency and Information Policy 107 (Harold C. Relyea, ed. 1981) (quoting an article in the New York Times)
[4] My prior scholarship covers a variety of aspects of the separation of powers, presidential powers, and executive privilege. See, e.g., Jonathan Turley, The Military Pocket Republic, 97 Northwestern University Law Review 1 (2002) (forthcoming); Jonathan Turley, Tribunals and Tribulations: The Antithetical Elements of Military Governance in a Madisonian Democracy, 70 George Washington Law Review ___ (2002) (forthcoming); Jonathan Turley, Paradise Lost: The Clinton Administration and the Erosion of Presidential Privilege, 60 Maryland Law Review 205 (2000) (Symposium); Jonathan Turley, “From Pillar to Post”: The Prosecution of Sitting Presidents, 37 American Criminal Law Review 1049 (2000); Jonathan Turley, A Crisis of Faith: Congress and The Federal Tobacco Litigation, 37 Harvard Journal on Legislation 433 (2000); Jonathan Turley, Through a Looking Glass Darkly: National Security and Statutory Interpretation, 53 Southern Methodist University Law Review 205 (2000) (Symposium); Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke Law Journal 1 (1999); Jonathan Turley, The “Executive Function” Theory, the Hamilton Affair and Other Constitutional Mythologies, 77 North Carolina Law Review 1791 (1999); Jonathan Turley, Congress as Grand Jury: The Role of the House of Representatives in the Impeachment of an American President, 67 George Washington University Law Review 735 (1999) (Symposium); Jonathan Turley, Reflections on Murder, Misdemeanors, and Madison, 28 Hofstra Law Review 439 (1999) (Symposium); see also Jonathan Turley, Nothing Bars Questioning the President’s Bad Ideas: The Limits of Executive Privilege, The Los Angeles Times, September 27, 1999, at A7.
[5] I have litigated a number of constitutional claims against both the legislative and executive branches. In the latter context, I represented four former attorneys general in the successful opposition to the so-called “secret service privilege.” See In re Sealed Case, 148 F.3d 1073 (D.C. Cir. 1998) (counsel for the Hons. William Barr, Griffen Bell, Edwin Meese, and Dick Thornburgh); see also Susan Schmidt, Starr Wins Appeal in Privilege Dispute; Secret Service Fears Dismissed by Court, The Washington Post, July 8, 1998, at A01. I also serve as counsel to the workers at Area 51 who successfully compelled compliance with federal law as a secret military facility and defeated claims that federal laws were superceded by the President’s inherent authority as commander-in-chief. See Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998); Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1997); Frost v. Perry, 919 F. Supp. 1459 (D. Nev. 1996); John Doe v. Browner, 902 F. Supp. 1240 (D. Nev. 1995). See generally Jonathan Turley, Through a Looking Glass Darkly, supra.
[6] “Legisprudence” is the term often used for the study of statutory interpretation and such closely related constitutional doctrines as the separation of powers. I have explored the proper scope and function of statutory interpretation in a variety of contexts. See, e.g., Jonathan Turley, Dualistic Values in the Age of International Legisprudence, 44 Hastings Law Journal 145 (1992); Jonathan Turley, "When in Rome": Multinational Misconduct and the Presumption Against Extraterritoriality 84 Northwestern University Law Review 598 (1990); Jonathan Turley, Transnational Discrimination and the Economics of Extraterritorial Regulation, 70 Boston University Law Review 339 (1990); Jonathan Turley, Laying Hands on Religious Racketeers: Applying Civil RICO to Fraudulent Religious Solicitation, 29 William and Mary Law Review 441 (1988); Jonathan Turley, The Not-So-Noble Lie: The Nonincorporation of State Consensual Surveillance Standards in Federal Court, 79 Journal of Criminal Law and Criminology 66 (1988); Jonathan Turley, United States v. McNulty: Title III and the Admissibility in Federal Court of Illegally Gathered State Evidence, 80 Northwestern University Law Review 1714 (1986).
[7] Despite my litigation history in opposition to a variety of executive privilege claims, I have criticized the loss of executive privilege and related privileges under former President Clinton as weakening the presidency. Id.; see also Jonathan Turley, Checking the Executive Pulse, The Los Angeles Times, November 19, 1998, at A11; Jonathan Turley, The President and the Damage Done, The Legal Times, April 20, 1998, at 24; Jonathan Turley, Clinton Maneuvers Threaten His Office, The National Law Journal, February 23, 1998 at A19.
[8] Turley, Paradise Lost, supra; see also Jonathan Turley, Nothing Bars Questioning the President’s Bad Ideas: The Limits of Executive Privilege, The Los Angeles Times, September 27, 1999, at A7; Turley, Checking the Executive Pulse, supra, at A11; Jonathan Turley, Praetorian Privilege, The Wall Street Journal, April 27, 1998 at A23; Turley, The President and the Damage Done, supra, at 24; Turley, Clinton Maneuvers Threaten His Office, supra, at A19; Jonathan Turley, Guarding the King, Not His Secrets, The Legal Times, February 2, 1998, at 28.
[9] A distinction can be drawn between invoking and litigating claims. Most administrations have been vigilant in asserting executive privilege in the natural institutional struggles with the legislative and judicial branches. However, there has been a long-standing policy to avoid court fights over executive privilege to protect the president and future presidents from adverse rulings. See Turley, Through a Looking Glass Darkly, supra. Accordingly, administrations have compromised with Congress and used non-binding waivers to reach mutual accommodation on divisive issues.
[10] The Ridge fight was particularly curious given the weakness of the White House arguments, the clear ability of Congress to compel his appearance, and the unnecessary damage done to interbranch relations. Ironically, the position adopted by the White House is reminiscent of the absolute privilege position taken by the Nixon Administration that was later rejected by both the judicial and legislative branches. Attorney General Richard Kleindienst once insisted that, regardless of the subject of a congressional hearing, “if the President of the United States should direct me or any other person on this staff not to appear before a congressional committee to testify or bring documents, that he has constitutional power to do so and that person should not do so.” Harold C. Relyea, “The Presidency and the People’s Right to Know,” in Presidency and Information Policy 6 (Harold C. Relyea, ed. 1981). The constitutional claim raised with regard to Ridge was different but based on a similarly flawed notion of privilege. It was perfectly understandable that the White House did not want Ridge to be occupied by endless hearings when he must attend to the nation’s security. However, as in other conflicts, the White House dug in on dubious constitutional ground. In this case, the White House insisted that, as a position that does not require Senate confirmation, a Homeland Security Director could and should refuse such appearances before Congress. Given the huge budget appropriated to this office and importance of the position to Congress’ legislative and oversight authority, this argument bordered on the frivolous and made a showdown with bipartisan committee members inevitable.
[11] The lack of effective consultation with Congress is becoming something of a signature for this Administration. Repeatedly, the Administration has added unnecessarily to its political burden by failing to cooperate and communicate with the legislative branch. This has undermined some policy changes that were badly needed, but fatally undermined by a lack of coordination with Congress. See, e.g., Jonathan Turley, Seeing Red Over Blue Slips, The Los Angeles Times, May 16, 2001, at A15 (discussing the failure of the Administration to lay the foundation for ending the dubious practice of “blue slipping” judicial nominees).
[12] A previous hearing was held on this issue. U.S. House Government Reform Committee, Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations, Hearings on the Presidential Records Act, 107th Congress, First Session, Nov. 6, 2001.
[13] Such disputes are not limited to presidents. President Bush was subject to considerable criticism when he transferred his records as governor of Texas to his father’s presidential library rather than a state controlled library. Steven L. Hensen, The President’s Papers are the People’s Business, The Washington Post, Dec. 16, 2001, at B01. Likewise, former New York Mayor Rudoplf Guiliani caused an uproar when, in the final days of his administration, he had his records transferred to a private warehouse. Celestine Bohlen, Paper Chase: Whose History is it, Anyway: The Public’s or the Officials’?, New York Times,, Feb. 24, 2002, at 3 (quoting one archivist as objecting that the documents constitute “our public heritage and that heritage should be under public control and administration.”).
[14] Alexis de Tocqueville, Democracy in America (G. Lawrence trans. 1966) (quoted in Carl McGowan, Presidents and their Papers, 68 Minnesota Law Review 409 (1983)).
[15] Of course, archives of presidential records can reveal everything from the most inconsequential (like an order from Lyndon Johnson to move a White House toilet for a better sitting position) to more intriguing notes (like a note from John Steinbeck on his idea for a napalm grenade during the Vietnam War). Larry Berman, “The Evolution and Value of Presidential Libraries,” in Presidency and Information Policy 89-90 (Harold C. Relyea, ed. 1981).
[16] 44 U.S.C. 2101-2118 (1988).
[17] 5 U.S. C. 552 (1988).
[18] Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 149 (1980).
[19] See generally James D. Lewis, White House Electronic Mail and Federal Recordkeeping Law: Press “D” to Delete History, 93 Michigan Law Review 794, 795 (1995).
[20] See generally Berman, supra, at 80.
[21] See Berman, supra; Carl McGowan, Presidents and their Papers, 68 Minnesota Law Review 409 (1983); Hirshon, The Scope, Accessibility and History of Presidential Papers, 1 Government Publications Review 363 (1974).
[22] Id. at 80.
[23] Id. at 81. Jackson resisted congressional inquiries for such records during his term. In a characteristic exchange, he denied access to records related to the removal of funds from the Bank of the United States:
I have yet to learn under what constitutional authority that branch of the Legislature has a right to require of me an account of any communication. . . . Might I be required to detail to the Senate the free and private conversations I have held with those officers on any subject relating to their duties and my own.
Archibald Cox, Executive Privilege, 122 U. Pa. L. Rev. 1383, 1403 (1974)
[24] Id.
[25] Id.
[26] Id. (“Fortunately, these instructions were never carried out and the personal papers later were discovered in the attic of a home in Buffalo, New York, and today are part of the Buffalo Historical Society collection.”).
[27] Id.
[28] McGowan, supra, at 412.
[29] Berger, supra, at 82; see also Kenneth Duckett and Francis Russell, The Harding Papers: How Some Were Burned . . . and Some Were Saved, 16 American Heritage at 24 (1965).
[30] Id.
[31] Id. (quoting Cleveland in a 1886 response to a Senate request of documents).
[32] Id. at 81 (detailing such government purchases as the acquisition of both Washington’s official papers and his correspondence for $25,000 and $20,000, respectively).
[33] H.G. Jones explained the significance of this act in his work, Records of a Nation:
Roosevelt made his most significant departure . . . by recognizing the paramount right of the public and by subordinating this claim to public custody, support, and management under the direction of civil servants governed by professional standards. This . . . fell short of the natural and logical goal. But it was a long, unprecedented step forward that no president thenceforth would be likely to disregard.
H.G. Jones, Records of a Nation 147 (1969); see also Berman, supra, at 83 (quoting H.G. Jones).
[34] Notably, even after presidential papers were viewed as historical documents that should be given to the government, there remained controversy over timing of such transfers. Margaret Truman, for example, was criticized for her exclusive access to presidential papers held by the family until after her publication on the life of her father. Berman, supra, at 82. Henry Kissinger was also criticized for such exclusive access vis-à-vis other writers. Alexandra K. Wignor & David Wignor, “The Future of Presidential Papers,” in Presidency and Information Policy 97 (Harold C. Relyea, ed. 1981).
[35] 44 U.S.C. §2108 (1955). Before this act, presidential libraries were defined as Deeds of Gift due to the private ownership claim.
[36] 44 U.S.C. §§2212, 2211.
[37] See Nixon v. Sampson, 389 F.Supp. 107 (D.D.C. 1975).
[38] Id. at 84-85.
[39] Pub. L. No. 93-526, 1974 U.S.C.C.A.N. 1949, 1950, 88 Stat. 1695. The PRMPA ultimately allowed Congress to take “control of approximately 42 million pages of documents and 880 tape recording, which contained both personal and non-personal records.” Catherine F. Sheehan, Opening the Government’s Electronic Mail: Public Access to National Security Counsel Records, 35 Boston College Law Review 1145, 1161 (1994).
[40] One of the interesting aspects of the PRMPA is the absence of an endorsement of the public property rationale that would be contained in the Presidential Records Act. In the various purposes stated in Section 104(a), none speak of this public property rationale. Instead, Congress spoke of the need to learn the “full truth, at the earliest reasonable date” of the abuses of governmental power” in Watergate as well as other Watergate related purposes. 44 U.S.C. 2107 (1976). In fact, the seventh stated purpose refers to “the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the need [related to Watergate] and are not otherwise of general historical significance.” Id.
[41] 433 U.S. 425 (1977).
[42] 44 U.S.C. §3317 (1974).
[43] Id. at 85 (quoting Lester Cappon as summarizing the recommendation “that all documentary materials made or received by public officials in discharge of their official duties should be recognized as the property of the United States; and that officials be given the prerogative to control access to the materials for up to fifteen years after the end of their federal service.”).
[44] 44 U.S.C. 2201-07 (1988).
[45] 418 U.S. 683 (1974).
[46] Id. at 445 n.8 (citations omitted).
[47] The Court also seemed to invite the enactment of the PRA in Nixon v. Administrator of General Service, 433 U.S. at 452-53, when it noted:
An incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations. Nor should the American people's ability to reconstruct and come to terms with their history be truncated by an analysis of Presidential privilege that focuses only on the needs of the present. Congress can legitimately act to rectify the hit-or-miss approach that has characterized past attempts to protect these substantial interests by entrusting the materials to expert handling by trusted and disinterested professionals.
Presidents in the past have had to apply to the Presidential libraries of their predecessors for permission to examine records of past governmental actions relating to current governmental problems. . . . Although it appears that most such requests have been granted, Congress could legitimately conclude that the situation was unstable and ripe for change.
[48] Presidential Records Act of 1978, H.R. Rep. No. 95-1487, 95th Cong., 2d Sess. 2 (1978). The PRA states clearly that “[t]he United States shall reserve and retain complete ownership, possession, and control of presidential records.” 44 U.S.C. §2202.
[49] 44 U.S.C. 2201(2)(B)(ii) (1988). Personal records are defined as “all documentary materials . . . of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” 44 U.S.C. 2201(3) (1988). This personal records exemption was intended to be narrow, as least in the view of the House Committee approving the PRA. H.R. Rep. No. 1487, 95th Cong., 2d Sess. 2 (1978), at 11-12, reprinted in 1978 U.S.C.C.A.N. 5732, 5733 (hereinafter “House Report”); see also Lewis, supra, at 809-10.
[50] 44 U.S.C. 2201(2)(A).
[51] Information that does not fall into one of the PRA exemptions is subject to release in five years after the end of a given administration. 44 U.S.C. §2204.
[52] 44 U.S.C. 2204 (a)(1)-(6).
[53] 44 U.S.C. §2204 (C)(1) (“Presidential records shall be administered in accordance with section 552 of title 5, United States Code, except that paragraph (b)(5) of that section shall not be available for purposes of withholding any Presidential record. . . .”) The category was a FOIA exemption for “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §552 (b)(5).
[54] 5 U.S.C. §552 (b)(1).
[55] 5 U.S.C. §552 (b)(2).
[56] 5 U.S.C. §552 (b)(3)
[57] 5 U.S.C. §552 (b)(4).
[58] 5 U.S.C. §552 (b)(6).
[59] 5 U.S.C. §552 (b)(7). Specifically, this relates to information:
only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.
Id.
[60] 5 U.S.C. §552 (b)(8).
[61] 5 U.S.C. §552 (b)(9).
[62] 44 U.S.C. 2203(c).
[63] See Armstrong v. Bush, 721 F. Supp. 343, 346 (D.D.C. 1989). In my view, this is a gap in the PRA that undermines the statute. As shown in Armstrong, there are compelling circumstances where some judicial review would be appropriate while reserving ample operational flexibility for a president.
[64] 44 U.S.C. 2203(c)(1).
[65] 44 U.S.C. 2203(c)-(d).
[66] American Historical Ass’n v. Peterson, 876 F.Supp. 1300, 119 (D.D.C. 1995).
[67] House Report, supra, at 9.
[68] 44 U.S.C. §2206(3).
[69] 36 C.F.R. §1270.46(a), (b), (c), (d).
[70] See Exec. Order 12, 667. The Reagan Administration had previously triggered litigation in its decision to destroy information contained in the White House computer system, or PROFS system. After various parties sued, a district court found the White House in violation of not just the PRA but also the Federal Records Act (FRA), 44 U.S.C. 2100 (1984) and the Administrative Procedures Act (APA), 5 U.S.C. 701 (1993). Armstrong, 721 F.Supp. 343 (D.D.C. 1993). The D.C. Circuit, however, ruled that there was no judicial review of the question under either the PRA or the APA. Id. at 290, 297. Ultimately, the government was found on remand to have violated the FRA. Armstrong v. Bush, 810 F.Supp. 335, 342-48 (D.D.C. 1993).
[71] Exec. Order 12667, §2(b).
[72] 44 U.S.C. §2204(c)(2) (“Nothing in this act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President.”).
[73] 418 U.S. 683 (1974).
[74] Id. at 713.
[75] For a response from the Administration, see Alberto R. Gonzales, Freedom, Openness and Presidential Papers, Washington Post, Dec. 16, 2001.
[76] See, e.g., Allen & Lardner, Jr., supra.
[77] 44 U.S.C. §2204(a)(1); 5 U.S.C. §552 (b)(1).
[78] See generally Turley, Paradise Lost, supra.
[79] In Nixon v. Administrator of General Services, 433 U.S. at 448, the Court noted:
It is true that only the incumbent is charged with performance of the executive duty under the Constitution. And an incumbent may be inhibited in disclosing confidences of a predecessor when he believes that the effect may be to discourage candid presentation of views by his contemporary advisers. Moreover, to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, . . . a former President is in less need of it than an incumbent. In addition, there are obvious political checks against an incumbent's abuse of the privilege.
[80] The extension of executive privilege to former presidents is far from an obvious conclusion. A strong argument could be made that executive privilege should be tied directly and exclusively with the office of the president. Under this theory, when a president is returned to the status of a private citizen, he loses the authority that attended his prior official status. It would then be entirely the responsibility of the incumbent president to protect confidentiality of the office in the assertion of privilege over the papers of prior presidents. Conversely, the Court’s rationale for extending privilege to former presidents is far from satisfying. In Nixon v. Administrator of General Services, the Court adopted the argument of the Solicitor General that:
“This Court held in United States v. Nixon...that the privilege is necessary to provide the confidentiality required for the President's conduct of office. Unless he can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President's tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President's tenure."
433 U.S. at 448-449 (quoting Solicitor General’s brief). Yet, the privilege would survive an individual president’s tenure in that it would be transferred to the incumbent president to use to the extent that it “benefit the Republic.”
[81] Nixon, 433 U.S. at 451; see also Nixon v. Freeman, 670 F.2d 346, 356 n.13 (D.C. Cir. 1983) (“Although there is no fixed number of years that can measure the duration of the privilege, it is significant that no public access will occur until at least eight years after the event disclosed.”).
[82] See Marks v. CIA, 590 F.2d 997 (D.C. Cir. 1978).
[83] Mike Allen & George Lardner, Jr., A Veto Over Presidential Papers; Order Lets Sitting or Former President Block Release, Washington Post, Nov. 2, 2001, at A1.
[84] While it is dangerous to rely too heavily on legislative history, this view emerges repeatedly in the consideration of the proposed act. See, e.g., Cong. Rec. H34895 (daily ed. Oct. 10, 1978) (statement of Rep/ Brademas) (“In our view, the best way to insure that ideas would be expressed [within the Executive Branch], and also that they would be set down in writing and be available to later researchers, was to permit the institution of a “buffer period,” so to speak, during which time these materials could be protected.”).
[85] Public Citizen v. Burke, 843 F.2d 1473 (D.C. Cir. 1988).
[86] Exec. Order No. 13233, §3(d)(1)(i).
[87] 44 U.S.C. §2203(d).
[88] Exec. Order No. 13233, §10.
[89] Exec. Order No. 13233, §3(b).
[90] American Historical Ass’n v. Peterson, 876 F.Supp. 1300, 1315 (D.D.C. 1995).
[91] Exec. Order No. 13233, §3(d)(1)(ii). Like much of this executive order, these provisions appear to be maddening in their contradiction. The requirement of the review of an incumbent president proves to be entirely superfluous given the ultimate control of the former president. This is only one example of a chronic lack of cohesion and consistency in the executive order.
[92] Public Citizen v. Burke, 843 F.2d 1473, 1480 (D.C. Cir. 1988).
[93] Burke, 843 F.2d at 1480.
[94] Exec. Order No. 13233, §10. There is also a suggestion that the Vice President can assert executive privilege, an extremely controversial position.
[95] Ironically, in his influential book, Records of the Nation, H.G. Jones specifically noted that private proprietary theories would support anyone, including the least qualified, in exercising control over these records. Jones, supra, at 162-63 (“The assumption that the papers of the Presidency are private property leads those who support it into the illogical and quite unconstitutional proposition that a private citizen—perhaps one who never had exercised the office of President or could even be eligible to do so—could decide what papers of the Presidency a subsequent holder of its powers might or might not see.”)
[96] Id.
[97] United States v. Reynolds, 345 U.S. 1, 7 (1953); see also Turley, Paradise Lost, supra, at 212.
[98] Exec. Order No. 13233, §2(b).
[99] See Nixon v. Freeman, 670, F.2d 346, 359 (D.C. Cir.), cert. denied, 459 U.S. 1035 (1982).
[100] Once again, the failure to define such a standard borders on an almost conversational style of writing an executive order.
[101] Exec. Order No. 13233, §4.
[102] 44 U.S.C. §2204(c)(2).
[103] See Jonathan Turley, “From Pillar to Post”: The Prosecution of American Presidents, 37 American Criminal Law Review 1049, 1064-66 (2000).
[104] Id. at 1065.
[105] Id.
[106] H.G. Jones attributes earlier claims of private ownership over presidential records to “a lingering vestige or the attributes of monarchy, not an appropriate or compatible concept of archival policy for the head of a democratic state to adopt.” H.G. Jones, Records of a Nation (1969).
[107] Some destruction occurred out of an effort to satisfy a desire for any material in the hand of a president. Thus, relatives like George Washington Parke Curtis wrote:
I am now cutting up fragments from old letters & accounts, some of 1760 . . . to supply the call for Any thing that bears the impress of his venerated hand. One of my correspondents says send me only the dot of an I or the cross of a t, made by his hand, & I will be content.
Letter from George Washington Parke Curtis to John Pickett (Apr. 17, 1857), (quoted in McGowan, supra, at 412).
[108] Faye Fiore & Geraldine Baum, 2 Nixon Sisters, 1 Big Feud, The Los Angeles Times, April 23, 2002, at A1. The Nixon controversy also involves allegations that relatives with publishing and speaking interests are trying to retain control over documents, precisely the past concern in privately held libraries. Id. at A14.
[109] Exec. Order No. 13233, §10.
[110] Id. (“In the absence of any designated representative after the former President’s death or disability, the family of the former president may designate a representative (or series or group of alternative representatives, a they in their discretion may determine) to act on the former President’s behalf for purposes of the Act and this order, including with respect to the assertion of constitutionally based privileges.”).
[111] Joseph Sax, Playing Darts with a Rembrandt 82 (1999). Sax noted some of the more extraordinary delays:
President Lincoln’s son, after destroying what he deemed of little value, deposited the remainder with the Library of Congress pursuant to a very restrictive provision that they remain sealed from public access—which they were—until 1947, eighty-two years after Lincoln’s assassination. The John Quincy Adams papers were entirely closed to public access until 1956, 127 years after he left office. McKinley’s secretary (and his son after him) controlled access over that president’s papers until 1954, more than half a century after his assassination.
Id.
[112] See Jonathan Turley, A Crisis of Faith: Congress and The Federal Tobacco Litigation, 37 Harvard Journal on Legislation 433 (2000).
[113] See “Big Government Lawsuits: Are Policy Driven Lawsuits in the Public Interest?,” United States Senate, Committee on the Judiciary, November 2, 1999 (testimony of Professor Jonathan Turley).