Public Citizen Litigation Group
November 5, 2001
The Honorable Stephen Horn
Dear Representative Horn:
I understand that the Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations of the House Committee on Government Reform intends to hold oversight hearings on the Presidential Records Act this coming Tuesday, November 6, 2001. On behalf of Public Citizen, a public advocacy group with a longstanding interest in openness of presidential historical records, I urge you to press any administration officials who appear at that hearing to provide an explanation of how the recent Executive Order on presidential records conforms to the Act and to governing principles of constitutional law.
The new Executive Order, signed by President Bush on November 1, 2001, provides that in the absence of "compelling circumstances," the incumbent president will concur in any assertion of executive privilege by a former president who seeks to block public access to presidential materials. In addition, the Order provides that even if the sitting president finds that "compelling circumstances" require him to disagree with a former president s assertion of executive privilege, the Archivist still may not release materials to the public without the former president s agreement unless required to do so by a final court order.
The Presidential Records Act, by contrast, provides that a former president may restrict access to materials reflecting communications with his advisers (that is, materials potentially subject to executive privilege) only for 12 years. See 44 U.S.C. § 2204(a)(5). Thereafter, such materials are to be freely available to the public unless access would violate a constitutionally based privilege of a former president or the incumbent president. See 44 U.S.C. §§ 2204(c)(1) & (2).
By requiring the Archivist to comply with privilege assertions by a former president in the face of the incumbent president s disagreement, as well as by requiring the incumbent president to defer to the former president absent "compelling circumstances," the new Executive Order would result in the withholding of records even when current Executive Branch officials had concluded that a claim of privilege was without legal justification. This would violate the incumbent administration s constitutional duty to take care that the laws are faithfully executed. It would also allow a former president to keep documents under wraps simply to avoid personal embarrassment to himself or his staff, and it would place the burden on members of the public to go to court in order to seek access in the face of such an unlawful claim of executive privilege.
This feature of the new Order is flatly inconsistent with a ruling of the D.C. Circuit rejecting a virtually identical effort by the Reagan administration to give a former president veto power over releases of assertedly privileged materials. In litigation arising from a Reagan Justice Department effort to restrict access to Nixon presidential materials, the D.C. Circuit held that the Constitution does not require the Archivist to defer to a former president s assertion of privilege. In Public Citizen v. Burke, 843 F.2d 1473, 1479 (D.C. Cir. 1988), the court stated: "To say & that [the former president s] invocation of executive privilege cannot be disputed by the Archivist, a subordinate of the incumbent President, but must rather be evaluated by the Judiciary in the first instance is in truth to delegate to the Judiciary the Executive Branch s responsibility" to carry out the law. The court held that there was "no reason" why the Archivist was "constitutionally compelled" to defer to a former president s claim of privilege. Id.
In addition, the new Executive Order would require persons wishing to have access to presidential materials after the 12-year restriction period is ended to show that they have a "demonstrated, specific need" for the materials. This, too, is contrary to the Presidential Records Act, which makes such materials available under FOIA standards standards that do not require the showing of any specific need. See 44 U.S.C. § 2204(c)(1). Moreover, the Order conflicts with another ruling of the D.C. Circuit in litigation over the Nixon materials, Nixon v. Freeman, 670 F.2d 346 (D.C. Cir.), cert. denied, 459 U.S. 1035 (1982). In that decision, the Court of Appeals specifically rejected the argument that the constitutional privilege requires persons seeking access to presidential historical materials years after the president leaves office to show a specific need for access. Id. at 359. Because the privilege erodes with the passing of time, the court held that it was proper for the Archives to open materials to all comers, without a showing of need, and to place the burden on the former president to establish that particular disclosures would violate the privilege. That is exactly what the Presidential Records Act is designed to do. The new Executive Order, by contrast, would turn the Act s requirement of public access on its head.
The new Executive Order, while citing earlier Supreme Court decisions that provide a general outline of the scope of executive privilege, fails to address these specific holdings that are directly at odds with the terms of the Order. Public Citizen therefore urges the Subcommittee to require the Archivist, and any other administration witness who may appear, either to reconcile the Executive Order with these precedents or to explain how and why the administration believes that these decisions are erroneous.
Public Citizen also urges the Subcommittee to question the White House s invocation of national security concerns to justify the new Order s expansion of the secrecy of historical presidential records. Without the new Order, the Presidential Records Act and existing Executive Orders on national security classification provide ample authority to prevent the release of materials that could potentially damage national security. Simply put, the Act already provides protection to properly classified information even after the expiration of the 12-year restriction period. See 44 U.S.C. §§ 2204(a)(1) & (c)(1).
The new Order extends the secrecy not of information relating to national security, but of materials relating to communications between the former president and his advisers that do not implicate national security. Under the Act, such materials may only be restricted for 12 years. The 68,000-some pages of Reagan materials that the Archives notified the White House it was prepared to release in February of this year, for example, were materials that were not subject to protection for national security reasons (or to restriction under any of the other categories that survive the 12-year limit under the Act). Rather, they had been withheld from release solely because they reflected communications between the former president and his advisers that were subject to the 12-year restriction. The new Order would allow the former President (or the incumbent) to impose an indefinite, blanket ban on release of these materials even though they contain no sensitive national security information.
In addition, national security reasons can provide no possible justification for the Order s provisions that effectively give a former president veto power over the release of materials by the Archivist. It is the incumbent president, not his predecessors, who has the constitutional power and duty to make judgments about the nation s security needs. If the incumbent president sees no national security justification for keeping particular materials secret, there can be no reason to allow a former president to override that determination.
Finally, to the extent that the incumbent administration may have some legitimate need to review materials of a former president before they are released, the Reagan Executive Order (No. 12,667) already provided a mechanism for such review. (Indeed, Public Citizen s view is that the Reagan Order itself went beyond what the Presidential Records Act permits.) Public Citizen urges the Subcommittee to ask the administration s representatives why they felt it was necessary to revoke the Reagan Order and impose a new standard. Did the White House conclude that President Reagan s lawyers misunderstood the law? Had any former president objected to the terms of the Reagan Order or asserted that they were inadequate to protect legitimate claims of privilege? Did the initiative for the new Order come from the White House or from former presidents? Were former presidents consulted, and, if so, what did they say?
In sum, the new Executive Order raises a host of legal questions and concerns. Public Citizen hopes that the Subcommittee s hearing provides a forum in which those questions can be put and answered.
Thank you for your attention to our concerns.
cc: Hon. Henry Waxman