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Public Citizen Sues to Block Implementation of Executive Order on Presidential Records

Nov. 28, 2001

Public Citizen Sues to Block Implementation of Executive Order on Presidential Records

Order Would Illegally Limit Access to Records of Former Presidents

WASHINGTON, D.C. ? Public Citizen today filed suit in a federal court in Washington, D.C., to overturn an executive order issued by President Bush that limits access to the records of former presidents. Public Citizen contends that the executive order violates a federal law, the Presidential Records Act, which opens most presidential records to public access 12 years after a president leaves office.

Public Citizen filed the lawsuit on behalf of Public Citizen, the American Historical Association, the Organization of American Historians, the National Security Archive, the Reporters Committee for Freedom of the Press, and eminent presidential historians Hugh Graham and Stanley Kutler. The suit seeks to compel the National Archives to abide by the terms of the Presidential Records Act and to release to the public some 68,000 pages of records of former President Ronald Reagan, which should have been released last January, 12 years after President Reagan left office.

The Bush executive order jeopardizes access to those records, and those of other former presidents, by providing that whenever a former president asserts a claim of “executive privilege,” the Archives may not open records to the public even if the claim of privilege is legally invalid. This echoes an earlier attempt by the Reagan Justice Department to require the Archives to defer to any claim of privilege made by a former president. That Justice Department directive also led to a lawsuit by Public Citizen, Public Citizen v. Burke, which resulted in a 1988 appellate court ruling that the Justice Department?s attempt to give former presidents veto authority over release of their papers was unlawful.

“Bush?s executive order violates not only the spirit but the letter of the law,” said Public Citizen President Joan Claybrook. “We will not stand by while the administration tramples on the people?s right to find out about their own government. The president should not have the ability to arbitrarily withhold public information to hide wrongdoing or avoid embarrassment.”

Added Public Citizen attorney Scott Nelson, “This new executive order is unlawful for exactly the same reasons as was the Justice Department directive in Public Citizen v. Burke. We expect the courts once again will reject this attempt to give former presidents the keys to lock up their records.”

The executive order also raises barriers to vice presidential records ? including the vice presidential records of President Bush?s father ? by providing for the first time that a vice president may claim a vice presidential “executive privilege,” which the Archives is also required by the Bush executive order to honor.

“This concept lacks any foundation in American constitutional law,” Nelson said. “It?s interesting that the first beneficiary of this new doctrine would be the father of the man who announced it.”

Under the Presidential Records Act, passed in 1978 in the wake of controversy over the control of documents and tape recordings of former President Richard Nixon, the records of presidents and vice presidents are public property, and the Archives must make them available to the public as quickly as practical after a president leaves office. Former presidents and vice presidents can restrict access to some categories of records, including confidential communications with their advisers, for up to 12 years, but after the 12-year period is over, the act requires that such materials be made public. The act makes exceptions for classified materials that could damage national security.

The 12-year restriction on Reagan?s presidential documents housed at the National Archives? Reagan Presidential Library expired earlier this year. When the Archives informed the White House that it intended to release the documents to the public, the White House first directed the Archives to wait eight months while it studied the issue and earlier this month promulgated the executive order.

Under the order, both a former president and incumbent president have an unlimited amount of time to review any documents the Archives proposes to release after the 12-year restriction period expires. If the former president objects to the release of any materials, the order provides that the incumbent president will concur with the former president?s wishes unless there are “compelling circumstances” that favor disclosure. But even if the sitting president finds that there are “compelling circumstances” and disagrees with the former president, the order requires that the Archives abide by the direction of the former president and keep the documents secret.

“In effect, the executive order makes the release of records dependent on the good graces of the former president,” said Nelson. “The whole point of the Presidential Records Act was to take control of access out of the hands of the former presidents. By giving presidents back the power to cover up inconvenient documents, the executive order has inevitably made people wonder what they may be trying to hide.”

Note: Hugh Davis Graham is a Vanderbilt University history professor and prolific author specializing in postwar federal domestic policy. One of the nation’s foremost scholars on Ronald Reagan?s presidency, Graham has done extensive research on the Reagan administration’s civil rights policy and is co-editor of a forthcoming volume of papers to be entitled The Reagan Presidency. Stanley I. Kutler is professor emeritus of history and law at the University of Wisconsin and is widely recognized as a leading presidential historian. With Public Citizen, he spearheaded litigation leading to a settlement providing access to the tape recordings of Richard Nixon, transcripts of which he published in the 1997 book Abuse of Power: The New Nixon Tapes.