Testimony of Scott L. Nelson
Hearing on "Oversight of the Presidential Records Act"
November 6, 2001
Good afternoon, Mr. Chairman and members of the Subcommittee, and thank you for inviting me to testify before you this afternoon. The subject of my testimony is the most immediate and controversial issue affecting implementation of the Presidential Records Act ("PRA" or "Act") namely, the legality of the recently issued Executive Order concerning the assertion of constitutional privileges to bar releases of records under the Act. The Order is troubling in a number of respects. Most significantly, it violates the PRA and exceeds the bounds of legitimate protection of executive privilege because it gives a former president the power to veto public releases of materials by the National Archives.
Before I explain the basis for my conclusions, I would like to take a few moments to describe my background in this area of law. I am currently an attorney with the Public Citizen Litigation Group here in Washington. Public Citizen has long had an interest in ensuring public access to governmental records, including the materials of former presidents, and has been involved in much of the litigation that has established the governing legal principles in this area, including litigation over materials of former Presidents Nixon, Reagan, and Bush. My own experience in the area includes approximately 15 years spent in private practice representing former President Nixon and, later, his executors, in litigation involving access to the Nixon presidential materials under the special legislation that governs those materials legislation that is similar in many respects to the PRA. Some of that litigation also involved Public Citizen, and the principles established in that litigation are directly applicable to the issues posed by the new Executive Order.
1. The Presidential Records Act. The Presidential Records Act was enacted in 1978 to ensure permanent governmental control over presidential records and to broaden public access to them. In contrast to prior law, under which presidents were considered owners of all their papers, the PRA provides that presidential records are property of the federal government from the moment of their creation. Under the Act, they remain largely under the control of the president during his term in office. Once the president leaves office, however, the Act gives custody and control over the papers to the Archivist of the United States, and the National Archives and Records Administration ("NARA" or "the Archives") is responsible for processing the materials for release to the public under the terms of the Act.
Although the Act vests the Archivist with authority over presidential records, it does give former presidents the right to impose limited restrictions on public access to some of their materials. Specifically, the Act allows a president leaving office to direct that records falling within six specific categories may be kept from the public for up to 12 years after the president s last day in office. The categories of materials that may be restricted include, by way of example, information that is properly subject to national security classification, information whose release would infringe an individual s right to privacy, and trade secrets. One of the categories, and the one of most relevance for present purposes, encompasses confidential communications between the president and his senior advisers that is, communications that are potentially within the scope of "executive privilege."
During the first five years after a president leaves office, the Act provides that none of his records will be generally available to the public, in order to allow NARA to gain control over the materials, move them into a presidential library, and begin the process of preparing them for public access. After the five years are up, any person may request access to presidential records, and the standards governing such a request are generally equivalent to those under the Freedom of Information Act. Between year five and year 12, however, no records that fall within any of the 12-year restriction categories may be released.
After the 12-year restriction period ends, all the former president s records become available for release to the public under FOIA standards including, with one exception, FOIA s exemptions. The applicability of the FOIA exemptions means, for example, that classified materials, which are categorically exempt from release under FOIA, are not subject to release under the PRA even after the 12-year restriction period ends.
The one FOIA exemption that does not apply under the PRA is the so-called FOIA "exemption 5," which covers materials that are subject to the executive privilege. Thus, when the 12-year PRA restriction period for materials reflecting confidential communications between the president and his advisers runs out, those materials will generally not fall within any statutory exemption from public release (assuming they do not relate to national security matters). This reflects Congress judgment that 12 years will generally be long enough to protect records containing the deliberations of the president and his advisers. After that lapse of time, the drafters of the Act concluded, the interest in public access to the historical record would outweigh any embarrassment that might otherwise attend the disclosure of the inner workings of the White House decisionmaking process.
To be sure, the Act does provide that it is not intended to limit (nor to confirm or expand) any constitutionally based privilege that may be available to the former president, or to the incumbent. And, at some level, the executive privilege is constitutionally based. But the Supreme Court has also emphasized that executive privilege is subject to "erosion over time" after a president leaves office. See Nixon v. Administrator of General Services, 433 U.S. 425 (1977). The congressional judgment underlying the PRA is that that erosion would be such that, after the passage of 12 years, there would be little (if anything) in the president s communications with his advisers that should legitimately remain secret. To the extent that there may be some presidential communications that would remain constitutionally privileged against public release even after a lapse of 12 years, the Act s recognition of the possibility that the former president may have a constitutional privilege to assert provides the necessary safety valve to prevent any possible claim that its provisions for public access are unconstitutional.
2. The Reagan Presidential Records. To avoid problems that might result from the retroactive application of the PRA, it was made applicable beginning with the president who took office on January 20, 1981. That turned out to be President Ronald Reagan. Before leaving office, President Reagan invoked the maximum 12-year restriction for all categories of materials permitted under the Act, including the category of communications between the president and his advisers. President Reagan left office on January 20, 1989, and thus the 12-year restrictions expired on January 20 of this year, marking the first time in the history of the PRA that materials subject to the Act are available without regard to such restrictions at least in theory.
Over the seven years that preceded the expiration of the 12-year restriction period, many requests for the release of Reagan presidential materials had been made at the new Reagan Presidential Library operated by NARA in Simi Valley, California. According to NARA estimates, over 4 million pages of records, from among the Library s total holdings of in excess of 40 million pages, had been opened to the public in response to those requests. From those files, however, NARA had withheld materials that were subject to the 12-year restriction imposed by President Reagan under the PRA. Among the materials withheld were about 68,000 pages of records that were withheld solely because they fell within the restriction category for communications between the former president and his advisers. In other words, these 68,000 pages were not subject to any other restriction (such as the restriction for materials that were national security classified).
When the 12-year restriction expired in January of this year, the 68,000 pages of materials reflecting communications between the former president and his advisers were no longer subject to any limitation on public access under the PRA. Accordingly, NARA advised the White House in February of this year that it intended to release those materials to the public. NARA provided this notification as required by an Executive Order issued by President Reagan shortly before he left office. That Order (Executive Order No. 12,667) provided that before the Archives released such materials, it must give at least 30 days notice to both the incumbent and the former president, in order to give them the opportunity to assert any claim that a constitutionally based privilege prevents release of the materials. Notably, the Reagan Executive Order contemplated that if a former president made a privilege claim, the records that were the subject of the claim could still be released by NARA if the Archivist (acting subject to the direction of the incumbent president) rejected the claim of privilege. In that event, it would be up to the former president to seek judicial relief if he continued to press his claim of privilege.
Following the White House s receipt of the Archives notice of intent to release the 68,000 pages of Reagan records, White House Counsel Gonzales three times extended the time permitted for the incumbent president s review of the materials under the Reagan Executive Order. The stated purpose of these extensions was to provide the White House Counsel s Office time to review what Mr. Gonzales referred to as "many constitutional and legal questions" raised by the impending release of these materials under the PRA. Pending the White House s review of those questions, the 68,000 pages of records have remained closed to the public for nearly ten months beyond the date when the restriction on their release under the PRA expired, even though no claim of a constitutionally based privilege has yet been made by the incumbent president. It is not yet known whether former President Reagan s representatives have asserted any claim of privilege as to any of the materials.
3. The New Executive Order. On November 1, 2001, the White House s review of "many constitutional and legal questions" culminated in the issuance of a new Executive Order governing the implementation of the PRA, which abrogates and supersedes the Reagan Order. The Bush Order sets forth procedures and substantive standards governing the assertion of claims of executive privilege by both former and incumbent Presidents following the expiration of the 12-year restriction period for materials involving communications between presidents and their advisers. The Bush Order has a number of troublesome features, which are described in detail below. The most striking of these is that it grants a former president the unfettered power to block the Archivist from releasing any materials to the public simply by making a claim of privilege (however unfounded that claim may be), leaving the burden on those who desire public access to challenge that claim in court.
The Bush Order does not only reverse the burden of seeking judicial review. It also, in contrast to the PRA (which makes access to presidential materials after the 12-year restriction period has ended available under FOIA standards that do not require requesters to show a need for access), asserts that "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." Bush Order, § 2(c).
The Bush Order further provides that the Archivist must notify both the former president and the incumbent of any request for access to presidential records that are subject to the PRA, and must provide them with copies of the relevant records upon their request. Bush Order, § 3(a). The Order states that the former president shall review the records "as expeditiously as possible, and for no longer than 90 days for requests that are not unduly burdensome." Bush Order § 3(b). However, the Order goes on to provide that if the Archivist receives a request for an extension of time from the former president, the Archivist "shall not permit [public] access" to the materials, regardless of whether the former president s request is reasonable. Id. The Bush Order thus permits a former president to delay the release of materials indefinitely simply by requesting additional time to review them. Only after the former president has used whatever time he chooses to review the records must he advise the Archivist whether he "authorizes" access to the materials or whether he requests that some or all of the documents be withheld on the basis of a constitutionally based claim of privilege. Bush Order, § 3(c).
The Bush Order further provides that either concurrently with or after the review by the former president, the incumbent president has an unlimited amount of time in which to review any presidential materials that are subject to a request for access under the PRA. Bush Order, § 3(d). Upon completion of the incumbent s review process, the Order states that the incumbent is to decide whether he "concurs in" the former president s decision either to "request withholding of or authorize access to the records." Bush Order § 3(d). The Order tilts the scale in favor of secrecy by providing that "[a]bsent compelling circumstances, the incumbent President will concur in the privilege decision of the former President" and "will support" a former president s privilege claim "in any forum in which the privilege claim is challenged." Bush Order § 4.
When the incumbent president "concurs in" a former president s request that materials be withheld on privilege grounds, the Order provides that the incumbent shall so inform the Archivist, and that the Archivist thereafter shall not permit access to the materials unless both presidents change their minds or a court orders that the materials be released. Bush Order § 3(d)(1)(i). (Such a court order could only come about if a requester sued for access, since nothing in the PRA would permit the Archivist to bring an action against the former president or the incumbent to require that materials be released.)
Moreover, even when the incumbent president has found that there are "compelling circumstances" that require him to disagree with a former president s request that materials be withheld on grounds of privilege, the Bush Order provides that the Archivist is still forbidden to disclose the assertedly privileged materials to the public, "[b]ecause the former President independently retains the right to assert constitutionally based privileges." Bush Order, § 3(d)(1)(ii). Under such circumstances, the Bush Order provides that the Archivist must deny public access to the materials claimed to be privileged by the former president unless and until the incumbent president informs the Archives that both he and the former president agree to their release, or there is a final, nonappealable court order requiring that the records be released.
The Bush Order also provides that when the former president has "authorized access," the Archivist must nonetheless deny public access to records when the incumbent president so directs. Bush Order § 3(d)(2)(ii). Only when both the former president and the incumbent president "authorize access" does the Order permit the Archivist to grant public access to presidential records under the PRA. The Bush Order also forbids the Archivist to make presidential records available in response to judicial or congressional subpoenas unless both the incumbent and former presidents "authorize access" or there is a final, nonappealable court order requiring access. Bush Order, § 6.
Finally, the Bush Order purports to authorize private citizens other than a former president to assert constitutionally based privileges on behalf of a former president after he dies or when he is disabled. The Order provides that a former president may designate such a representative (or representatives) "to act on his behalf for purposes of the Presidential Records Act and this order." Bush Order, § 10. Upon the former president s death or disability, such a designated representative "shall act" on the former president s behalf, "including with respect to the assertion of constitutionally based privileges." Id. If the former president fails to designate such a representative, the Order provides that his family may do so. Id.
4. The Bush Order s Legal Flaws. The Bush Executive Order is fundamentally flawed, legally, constitutionally, and as a matter of policy. Although the Bush Order was described by administration officials upon its release as merely establishing a procedural mechanism for the assertion of privilege claims, the Reagan Executive Order that the Bush Order supersedes already provided more than adequate procedures for the assertion of privileges. What the Bush Order adds are new and improper substantive standards that displace and subvert the PRA s provisions for public access to presidential materials.
It must be remembered at the outset that the PRA is based on the concept that a president leaving office can impose only a 12-year restriction on materials reflecting communications with his advisers. Thereafter, those materials are presumptively open to the public unless they involve national security matters or other specific content exempt from disclosure, or unless they fall within the small category, which steadily diminishes with the passing of time, of materials that are subject to a constitutionally based privilege of the former or incumbent president. Thus, to the extent that the Bush Order imposes standards that extend the secrecy of such materials beyond the PRA s 12-year limit, it is lawful only if those standards are constitutionally required. Clear judicial precedent indicates that they are not.
The most plainly improper feature of the Bush Order is its requirement that the Archivist withhold materials from the public whenever the former president has asserted a claim of privilege, even if the incumbent president disagrees with that claim. The Bush Order claims to find authority for this requirement in the Supreme Court s decision in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), which held, among other things, that a former president retains a limited right to assert executive privilege independently from the incumbent president. Although the Court recognized this right, it also emphasized that the protection afforded historical presidential records was limited and eroded steadily as time passed. Thus, while recognizing a former president s right to assert a claim of privilege, the Supreme Court by no means implied that all such claims were valid or that incumbent executive branch officials were bound to honor such claims regardless of their merit. Rather, the implication of Nixon v. Administrator was that although former presidents could make claims of privilege, the Constitution permits such claims to be evaluated and rejected by current executive branch officials when, as is usually the case, the public s need for access to historical materials involving official government actions outweighs the former president s attenuated interest in confidentiality after he has been out of office for a number of years.
These implications of Nixon v. Administrator were made explicit by the United States Court of Appeals for the District of Columbia Circuit a few years later in its decision in Public Citizen v. Burke, 843 F.2d 1473 (D.C. Cir. 1988). That case concerned a directive by the Reagan Justice Department that closely parallels the terms of the Bush Executive Order. The Justice Department directive at issue in Public Citizen v. Burke instructed the Archives that it must defer to any claim of privilege asserted by former President Nixon to block public release of any of his presidential materials, which are held by the Archives under legislation that is applicable only to President Nixon but is similar to the PRA in its provisions encouraging public access to presidential records. The Justice Department argued that such deference was constitutionally required in order to protect the former president s ability to assert privilege claims under Nixon v. Administrator.
The D.C. Circuit, in an opinion written by Judge Silberman and joined by Judge Sentelle (both Reagan appointees) roundly rejected the Justice Department s view. The court held that the Archivist, as an executive branch official obligated to assist the incumbent president in fulfilling his constitutional duty to take care that the laws be faithfully executed, could not permissibly defer to a former president s claim of privilege if the claim was not legally proper. Thus, the court held, the Archivist (and the incumbent president) was obligated to assess independently a former president s assertion of privilege, to reject the claim if it were not well founded legally, and to release materials to the public as required by the statute if the privilege claim were rejected. The court further rejected the government s assertion again echoed in the Bush Executive Order that it is permissible for the Archivist to rubber-stamp a former president s privilege claim as long as a member of the public can challenge it in court. 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. 843 F.2d at 1479.
The reasoning of Public Citizen v. Burke applies fully here, and the Bush Executive Order is plainly incompatible with it. Under the PRA, the Archivist is required to make materials available to the public after the expiration of the 12-year restriction period, unless there is some valid constitutionally based privilege that bars their release. By compelling the Archivist to withhold release of materials whenever the former president makes a claim of privilege, regardless of its legal merit, the Bush Executive Order, like the Justice Department directive struck down in Burke, allows current executive branch officials (including the incumbent president) to abdicate their responsibility to conform their actions to the law. Indeed, by requiring materials to be kept secret even when the incumbent president disagrees with a former president s claim of privilege, the Bush Order explicitly requires the executive branch to take actions the president has determined are not legally justified, in clear violation of the constitutional duty to execute the law faithfully and in plain defiance of the PRA. Moreover, the Bush Order goes so far as to bind the administration to support the former president s privilege claims in court even when it disagrees with them a truly extraordinary abdication of the executive branch s obligation of fidelity to the law. In these respect, the Bush Order is even more obviously unlawful than the Justice Department directive at issue in Burke.
Another respect in which the Bush Order departs from the terms of the PRA and from judicial precedents involving access to presidential historical materials is in its apparent insistence that a person requesting access to presidential materials must, even after the Act s 12-year restriction period has expired, show some specific, demonstrable need for access in order to overcome executive privilege. This requirement is a departure from the plain terms of the PRA, 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, turns the Act s requirement of public access on its head.
These are not the only features of the Bush Order that are legally suspect. The Order s provision that the constitutional executive privilege may be asserted by a deceased or disabled former president s family or personal representative is novel and highly debatable. The privilege is not, after all, a personal right of the former president. He is authorized to exercise it solely on behalf of the branch of government that he once headed. His family members or designees have no such claim of authority. To suggest, as does the Bush Order, that the incumbent president must defer to claims of privilege asserted not by a former officeholder, but simply by the former president s family, friends, or designees, threatens to expand the constitutional privilege beyond legitimate bounds.
5. The Bush Order Is Bad Policy. Beyond its legal flaws, the Bush Order threatens to subvert significantly the policies underlying the PRA. The PRA s premise is that public access to historically significant presidential records is desirable and that, once a decent interval has passed after a president leaves office, the grounds for restricting public access should be quite limited.
The Bush Order represents a substantial threat to the PRA s fundamental goals. First, it creates the possibility that a former president may indefinitely delay access to records while he simply considers whether to assert a claim of privilege. Second, it permits him to declare large blocks of the materials off-limits to public access merely by asserting a claim of privilege, which the Archivist must respect however unfounded it may be, and which may only be challenged in court by a requester who can show a specific, demonstrable need for access (whatever that may mean).
This is not to suggest that the representatives of former President Reagan, or any other former president, will consciously act in bad faith to bar access to their materials. But with the ability to block access will come the temptation to use it, particularly when records that are (or may be) embarrassing to the former president or his close associates are concerned. It is easy in such a situation for a former president to confuse his own personal interest in denying access with an institutional executive branch interest that might support a claim of privilege. And experience teaches time and again that, given the chance, officials often err on the side of over-withholding materials and asserting interests in secrecy that, upon inspection, are without justification. For these reasons, it is a bad idea to give former presidents carte blanche authority to direct the Archivist to withhold materials from the public. And since this bad idea is plainly not constitutionally required, there can be no justification for enshrining it in an Executive Order.
Nor can the Bush Order s expansion of the secrecy of historical presidential records be justified, as some in the administration have suggested, on the basis of national security concerns. Even 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, and it will continue to do so with or without the Bush Order. 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. 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.
In the final analysis, what the Bush Order reflects is a fundamental change in the PRA paradigm. The PRA is premised on the notion that the public is entitled to access to historical presidential materials subject only to defined exceptions set forth in the statute. Only for a limited, 12-year period is that access subject to restrictions imposed by the will of the former president. After the 12 years expire, the only limits are those imposed by the statute or in rare cases by constitutional doctrines of privilege.
The Bush Order reflects another model entirely. It is an attempt to resurrect the pre-PRA regime in which access to presidential materials was controlled by the former presidents (usually through restrictions in the deeds of gift through which the former presidents donated their materials to the public). Thus, the Bush Order repeatedly states that the public will be permitted access to materials only if the former president and the incumbent decide to "authorize" access.
That is not what the PRA is all about. Under the PRA, it is the statute that "authorizes" public access, whether the former president (or the incumbent) approves or not. Only in the exceptional circumstances where the former or incumbent president has a legally enforceable, constitutionally based privilege can the access authorized by the statute be denied. The Bush Order is incompatible with this statutory scheme. It is bad policy and bad law. I urge this Subcommittee to do anything it can to discourage the administration from implementing it.