<DOC>
[107th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:80152.wais]
HEARINGS REGARDING EXECUTIVE ORDER 13233 AND THE PRESIDENTIAL RECORDS
ACT
=======================================================================
HEARINGS
before the
SUBCOMMITTEE ON GOVERNMENT EFFICIENCY,
FINANCIAL MANAGEMENT AND
INTERGOVERNMENTAL RELATIONS
and the
COMMITTEE ON GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST AND SECOND SESSIONS
__________
NOVEMBER 6, 2001; APRIL 11 AND 24, 2002
__________
Serial No. 107-73
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
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COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California PATSY T. MINK, Hawaii
JOHN L. MICA, Florida CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
BOB BARR, Georgia DENNIS J. KUCINICH, Ohio
DAN MILLER, Florida ROD R. BLAGOJEVICH, Illinois
DOUG OSE, California DANNY K. DAVIS, Illinois
RON LEWIS, Kentucky JOHN F. TIERNEY, Massachusetts
JO ANN DAVIS, Virginia JIM TURNER, Texas
TODD RUSSELL PLATTS, Pennsylvania THOMAS H. ALLEN, Maine
DAVE WELDON, Florida JANICE D. SCHAKOWSKY, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
ADAM H. PUTNAM, Florida DIANE E. WATSON,California
C.L. ``BUTCH'' OTTER, Idaho STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia ------
JOHN J. DUNCAN, Jr., Tennessee BERNARD SANDERS, Vermont
JOHN SULLIVAN, Oklahoma (Independent)
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
James C. Wilson, Chief Counsel
Robert A. Briggs, Chief Clerk
Phil Schiliro, Minority Staff Director
Subcommittee on Government Efficiency, Financial Management and
Intergovernmental Relations
STEPHEN HORN, California, Chairman
RON LEWIS, Kentucky JANICE D. SCHAKOWSKY, Illinois
DAN MILLER, Florida MAJOR R. OWENS, New York
DOUG OSE, California PAUL E. KANJORSKI, Pennsylvania
ADAM H. PUTNAM, Florida CAROLYN B. MALONEY, New York
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
J. Russell George, Staff Director and Chief Counsel
Earl Pierce, Professional Staff Member
Justin Paulhamus, Clerk
David McMillen, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on:
November 6, 2001......................................... 1
April 11, 2002........................................... 235
April 24, 2002........................................... 387
Text of H.R. 4187............................................ 391
Statement of:
Carlin, John W., Archivist of the United States, accompanied
by Lewis J. Bellardo, Deputy Archivist..................... 8
Dallak, Robert, author of ``Lone Star Rising: Lyndon Johnson
and His Times, 1908-1960,'' ``Franklin D. Roosevelt and
American Foreign Policy, 1932-1945,'' ``Hail to the Chief:
the Making and Unmaking of American Presidents''........... 269
Hoff, Joan, director, Contemporary History Institute, Ohio
University, former president, Organization of American
Historians, former editor, Presidential Studies Quarterly,
author of ``Nixon Reconsidered: the Nixon Presidency''..... 275
Gaziano, Todd, director, Center for Judicial and Legal
Studies, the Heritage Foundation........................... 471
Kutler, Stanley, professor, University of Wisconsin Law
School..................................................... 255
Nelson, Anna, professor, American University................. 30
Nelson, Scott L., attorney, Public Citizen Litigation Group.. 78
Reeves, Richard, author of ``President Nixon: Alone in the
White House'' and ``President Kennedy: Profile in Power''.. 266
Rosenberg, Morton, specialist in American public law,
American Law Division, Congressional Research Service...... 440
Rozell, Mark J., professor, Catholic University of America..37, 462
Shane, Peter M., professor, University of Pittsburgh and
Carnegie Mellon University................................. 63
Turley, Jonathan R., professor of law, George Washington
University Law School...................................... 400
Whelan, M. Edward, III, Acting Assistant Attorney General,
Office of Legal Counsel, Department of Justice............. 20
Letters, statements, etc., submitted for the record by:
Burton, Hon. Dan, a Representative in Congress from the State
of Indiana, prepared statement of.......................... 487
Carlin, John W., Archivist of the United States, accompanied
by Lewis J. Bellardo, Deputy Archivist, prepared statement
of......................................................... 11
Cummings, Hon. Elijah E., a Representative in Congress from
the State of Maryland, prepared statement of............... 362
Dallak, Robert, author of ``Lone Star Rising: Lyndon Johnson
and His Times, 1908-1960,'' ``Franklin D. Roosevelt and
American Foreign Policy, 1932-1945,'' ``Hail to the Chief:
the Making and Unmaking of American Presidents'', prepared
statement of............................................... 271
Hoff, Joan, director, Contemporary History Institute at Ohio
University, former president, Organization of American
Historians, former editor, Presidential Studies Quarterly,
author of ``Nixon Reconsidered: the Nixon Presidency'',
prepared statement of...................................... 278
Gaziano, Todd, director, Center for Judicial and Legal
Studies, the Heritage Foundation, prepared statement of.... 476
Gilman, Hon. Benjamin A., a Representative in Congress from
the State of New York, prepared statement of............... 352
Horn, Hon. Stephen, a Representative in Congress from the
State of California:
Nixon court case......................................... 288
Prepared statements of..............................., 237, 389
Kutler, Stanley, professor, University of Wisconsin Law
School, prepared statement of.............................. 257
Maloney, Hon. Carolyn B., a Representative in Congress from
the State of New York:
Editorials............................................... 243
Prepared statement of.................................... 248
Morella, Hon. Constance A., a Representative in Congress from
the State of Maryland, prepared statement of............... 360
Nelson, Anna, professor, American University, prepared
statement of............................................... 32
Nelson, Scott L., attorney, Public Citizen Litigation Group,
prepared statement of...................................... 80
Ose, Hon. Doug, a Representative in Congress from the State
of California, prepared statements of......................7, 399
Rosenberg, Morton, specialist in American public law,
American Law Division, Congressional Research Service,
prepared statement of...................................... 444
Rozell, Mark J., professor, Catholic University of America,
prepared statements of....................................40, 465
Schakowsky, Hon. Janice D., a Representative in Congress from
the State of Illinois, prepared statement of............... 438
Shane, Peter M., professor, University of Pittsburgh and
Carnegie Mellon University, prepared statement of.......... 65
Turley, Jonathan R., professor of law, George Washington
University Law School, prepared statement of............... 404
Waxman, Hon. Henry A., a Representative in Congress from the
State of California, prepared statements of..............240, 397
Whelan, M. Edward, III, Acting Assistant Attorney General,
Office of Legal Counsel, Department of Justice, prepared
statement of............................................... 22
THE IMPLEMENTATION OF THE PRESIDENTIAL RECORDS ACT OF 1978
----------
TUESDAY, NOVEMBER 6, 2001
House of Representatives,
Subcommittee on Government Efficiency, Financial
Management and Intergovernmental Relations,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2 p.m., in
room 2154, Rayburn House Office Building, Hon. Stephen Horn
(chairman of the subcommittee) presiding.
Present: Representatives Horn and Ose.
Staff present: J. Russell George, staff director and chief
counsel; Henry Wray, senior counsel; Earl Pierce and Darin
Chidsey, professional staff members; Bonnie Heald, deputy staff
director; Jim Holmes, intern; Dan Wray, clerk, Census
Subcommittee; David McMillen, minority professional staff
member; and Jean Gosa, minority clerk.
Mr. Horn. A quorum being present, the Subcommittee on
Government Efficiency, Financial Management and
Intergovernmental Relations will come to order. We are going to
swear in all of the witnesses at this point and the assistants
to the witnesses. Please have them stand up. The clerk will put
their names in the record. So if you would stand up, raise your
right hands.
[Witnesses sworn.]
Mr. Horn. All right. The clerk will note all of the
witnesses and their assistants affirm the oath.
As James Madison, the Father of the Constitution
appropriately said, ``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
Governors must arm themselves with the power knowledge gives.''
Today's hearing involves the public's right to acquire
certain government information. We are here to examine
implementation of the Presidential Records Act of 1978. This
landmark law established the principle that the records of a
President relating to his official duties belong to the
American people. The act gives the Archivist of the United
States custody of those records after the President leaves
office. The act also assigns the Archivist, ``an affirmative
duty to make such records available to the public as rapidly
and completely as possible consistent with the provisions of
this act.''
At the same time, the act recognizes the need to place some
limits on public access. It permits former Presidents to
restrict certain records from disclosure for up to 12 years
after leaving office. It also allows most of the public
disclosure exemptions contained in the Freedom of Information
Act to apply to Presidential records. Those exemptions protect
records involving national defense, state secrets and other
sensitive matters. However, the act did not allow records to be
withheld beyond 12 years simply because they contained internal
staff advice or deliberation among government officials.
The records of former President Reagan were the first to
become subject to the act. The 12-year restriction on the
Reagan records expired in January of this year. Therefore, in
February, the Archivist of the United States gave former
President Reagan and incumbent President George W. Bush notice
of his intent to grant public access to thousands of pages of
the Reagan records. However, the release of those records has
been delayed while the current administration developed new
procedures to handle possible claims of ``executive privilege''
that might be made by former President Reagan or his
representative, or by President Bush or his representative.
Last Thursday, President Bush signed a new Executive order
establishing the procedures. The new Executive order revoked an
order on the same subject issued by President Reagan shortly
before he left office. The Reagan order had established a
fairly straightforward and expedient process for asserting and
reviewing claims of ``executive privilege.'' The new order
appears to create a more elaborate process. It also gives both
the former and incumbent Presidents veto power over the release
of the records.
I appreciate the need to preserve whatever constitutional
privileges may still be appropriate for a former President's
records after many years. However, I am concerned that the new
procedures may create additional delays and barriers to
releasing the Reagan records. The public release of these
records is already 9 months beyond the release date envisioned
by the Presidential Records Act and there is no clear end in
sight. Today's hearing will examine these issues. I welcome all
of our witnesses and I look forward to their testimony.
[The prepared statement of Hon. Stephen Horn follows:]
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Mr. Horn. Mr. Ose has a short statement. We are delighted
to have him here.
Mr. Ose. Thank you, Mr. Chairman. Unaccustomed as I am to
making these statements, I frankly flew back today because of
the importance of this hearing, and I appreciate you convening
us here today.
Last February, after press accounts of President Clinton's
last financial disclosure report and some furniture gifts which
were ultimately returned to the White House residence, the
Subcommittee on Energy Policy, Natural Resources and Regulatory
Affairs, which I chair, began an investigation of Presidential
gifts pursuant to legislation I am preparing. Among other
records, the subcommittee sought to examine the White House
Gifts Unit's database and related records for the Clinton
administration. As a consequence, I have direct, firsthand
experience with such requests under the Presidential Records
Act of 1978 for Presidential records relevant to a
congressional investigation.
President Reagan's 1989 Executive order expanded on the
implementing regulations issued by the National Archives and
Records Administration. NARA's regulations were authorized by
Section 2206 of the act. The order, that is, the Executive
order of 1989, clarified some areas not specifically addressed
in NARA's regulations. Most importantly, the order identified
only three areas where access to Presidential records could be
limited: If disclosure might impair national security, law
enforcement, or the deliberative processes of the executive
branch. I asked President Clinton's representative which of
these privileges, if any, could be asserted to deny my request
for access to specific records. In the end, President Clinton's
representative claimed no privileges for any of the requested
records. And, as a result, NARA provided the subcommittee with
unfettered access to the requested records and we are
appreciative of President Clinton's cooperation on that.
President Bush's new Executive order, issued last Thursday,
changed these access limitations. In a nutshell, law
enforcement was dropped, so we went from three to two, and two
areas were added, so it went from two to four: those two areas
being communications of the President or his advisors--that is,
the Presidential communications privileges--and legal advice or
legal work, meaning the attorney/client or attorney/work
product privilege.
I am deeply concerned about the two new broad limitations
in the order. Both of them, especially the Presidential
communications privilege, could severely limit congressional
access to key documents in its investigations of any former
administration.
In today's hearing I plan to question the Bush
administration's witnesses about the legal and substantive
justification for this restrictive policy change. The bottom
line is that the new order appears to violate not only the
spirit but also the letter of the Presidential Records Act. In
1978, Congress very clearly expressed its intent to make
Presidential records available for congressional investigations
and then for the public after a 12-year period. This
new order undercuts the public's right to be fully informed
about how this government, the people's government, operated in
the past.
Thank you, Mr. Chairman.
Mr. Horn. Thank you.
[The prepared statement of Hon. Doug Ose follows:]
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Mr. Horn. And we will now start with the witnesses in the
order they are on the agenda. The first witness is the
Honorable John W. Carlin, the Archivist of the United States.
He is accompanied by Mr. Bellardo, who is the Deputy Archivist
of the United States. Glad to have you here.
STATEMENT OF JOHN W. CARLIN, ARCHIVIST OF THE UNITED STATES,
ACCOMPANIED BY LEWIS J. BELLARDO, DEPUTY ARCHIVIST
Mr. Carlin. Chairman Horn, Mr. Ose, subcommittee staff.
Mr. Ose. You have got to turn it on.
Mr. Carlin. Thank you. But you did hear that I acknowledged
your presence, Mr. Ose, so I will not repeat that. Thank you.
I am John Carlin, Archivist of the United States. I thank
you for the opportunity to appear before you this morning. As
you know, we were scheduled at 10 o'clock--I did not catch the
redraft there--this afternoon to speak about the implementation
of the Presidential Records Act.
Mr. Chairman, I particularly want to thank you for holding
this hearing and for your continued interest in the programs
and responsibilities of the National Archives and Records
Administration. We are fully aware that with the jurisdiction
of this subcommittee, attention to NARA is your job. However,
you have taken a particular interest in our mission during your
career in Congress, and the people of NARA along with our many
constituent's groups thank you for that interest.
In order to set the foundation for this dialog today, I
would like to lay out a brief history of the Presidential
Records Act and provide the subcommittee with an overview of
our implementation to date. The Presidential Records Act [PRA],
was enacted, as we have heard here already today, in 1978 to
establish public ownership of the records created by subsequent
Presidents and their staffs and to establish procedures
governing the preservation and public availability of these
records.
The PRA mandates that the Presidential records of an
administration be transferred to the legal and physical custody
of the National Archives and Records Administration immediately
upon the end of the President's last term of office. The
Archivist of the United States is given the responsibility for
the custody, control, preservation and access to these
Presidential records. The PRA also requires the Archivist to
appointment a Library Director ``in consultation with the
former President.''
Since the enactment of the PRA, NARA has taken legal
custody of the Presidential records of Presidents Ronald
Reagan, George Herbert Walker Bush, and William Jefferson
Clinton.
The PRA applies to all Vice Presidential records in the
same manner as Presidential records, and affords the former
Vice Presidents the same authority as the former Presidents.
Accordingly, all of the procedures and authorities that I will
discuss in reference to the former Presidents also apply to the
former Vice Presidents, except that Vice Presidential records
may be stored in a separate location from the Presidential
records.
Overall, the PRA represents an effort to legislate a
careful balance between the public's right to know with its
vast implications to historians, other academic interests, and
the rights of privacy and confidentiality of certain sensitive
records generated by the President and his staff during the
course of their White House activities. The PRA mandates that
the Archivist shall have an affirmative duty to make such
records available to the public as rapidly and completely as
possible consistent with the provision of this act.
Presidential records are not subject to public access
requests during the President's term of office, and may be made
available only by decision of the incumbent President. After
the President leaves office, the records are generally not
available to the public for 5 years. This 5-year period was
intended principally to give NARA an opportunity to organize
the records and begin systematic archival processing.
At the end of the 5-year period, all Presidential records
are subject to public access requests in accordance with FOIA.
However, for a period up to 12 years from when the President
leaves office, the President is authorized, but not required,
to impose up to six Presidential restrictions on the records.
These restrictions must be imposed before the President leaves
office and are not subject to judicial review. In addition, the
PRA establishes that eight of the nine FOIA exemptions shall
also apply to the Presidential records and stay in effect after
the Presidential restrictions expire.
Furthermore, four of the six Presidential restrictions are
identical to corresponding FOIA exemptions. They are:
exemptions for classified national security information;
exemptions for information protected by other statute;
exemptions for trade secrets and confidential business
information; and exemptions for unwarranted invasions of
personal privacy.
The Presidential exemption concerning confidential
communications between the President and his advisors or
between such advisors themselves, is similar to the FOIA
exemption and protects the disclosure of Presidential
communications, deliberations, and other information that could
be subject to a common law or constitutionally based privilege.
However, after the 12-year period, the FOIA exemption does
not apply to Presidential records. The PRA itself notes that
Presidents have clear legal authority to assert executive
privilege over the Presidential records of former Presidents.
Specifically, the PRA does not prevent a former or incumbent
President from arguing, even after the 12-year period, that a
particular confidential communication between the President and
an advisor should not be released.
With the exception of the materials of former President
Richard Nixon, the Presidential papers and materials created
prior to the PRA and maintained under NARA's control at the
Presidential libraries of former Presidents Hoover, Roosevelt,
Truman, Eisenhower, Kennedy, Johnson, Ford and Carter, are
controlled by the terms of the deeds of gift under which the
former Presidents donated their records to the National
Archives.
The records of President Nixon are governed by the
Presidential Recordings and Materials Preservation Act, passed
by the Congress in 1974 to ensure government control over the
Nixon papers and tapes.
Each of the Presidential deeds has provisions outlining
categories of records that may be withheld from public access
for some period of time. All of them seek to protect
information that could harm national security, invade personal
privacy, or cause embarrassment or harassment to an individual.
Some also seek to protect documents involving confidential
communications directly with the President.
The deeds of Presidents Ford and Carter model the
restrictions of the PRA exemptions. In all instances, the
director of the Presidential library was given the independent
authority and discretion to process and open the papers, with
very limited involvement by the former President or his
representative.
Because the materials at these libraries were donated to
the United States, they are not subject to requests under the
Freedom of Information Act or any other public access statute.
This means that the libraries' staffs are able to process and
open most records in an organized and systematic way based on
archival considerations.
However, researchers have no judicial recourse to challenge
the withholding of records or delays in responding to requests.
In contrast, because the PRA subjects all Presidential records
beginning with the Reagan administration to public access
through the Freedom of Information Act, Presidential libraries
now open records almost exclusively in response to FOIA
requests or mandatory declassification review requests.
Therefore, there is very little opportunity to conduct
systematic processing of records after the first 5 years.
Moreover, congressional and grand jury investigations and other
litigation has significantly limited systematic processing even
during the first 5 years.
As you know, last Thursday the President signed a new
Executive Order 13233 on the Presidential Records Act. We are
now beginning the process of understanding how this Executive
order will work in practice. I intend to work with the former
and incumbent Presidents to implement this order in a manner
consistent with my statutory responsibility to make
Presidential records available to the public as rapidly and
completely as possible.
That concludes my formal statement, Mr. Chairman, and at
the appropriate time I would be happy to answer questions.
Mr. Horn. Thank you very much.
[The prepared statement of Mr. Carlin follows:]
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Mr. Horn. We will now get to the representative of the
Department of Justice, Mr. Edward Whelan III, Acting Assistant
Attorney General, Office of Legal Counsel.
Glad to have you with us, Mr. Whelan.
STATEMENT OF M. EDWARD WHELAN III, ACTING ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE
Mr. Whelan. Thank you, Mr. Chairman. Mr. Chairman,
Congressman Ose, thank you very much for affording me the
opportunity to speak on behalf of the administration before
this subcommittee on this important topic.
As was discussed, last week President Bush signed an
Executive order that implements the Presidential Records Act.
Specifically, the Executive order implements section 2204(c) of
that act. That section provides that the act shall not be,
``construed to confirm, limit or expand any constitutionally
based privilege which may be available to an incumbent or
former President.''
In enacting the act, Congress thus expressly recognized
that both the incumbent President and former Presidents might
invoke constitutionally based privileges to prevent the
disclosure of Presidential records that might otherwise be
disclosed pursuant to other provisions of the act, including
after the expiration of the 12-year period of presumptive
nondisclosure under the act.
As Senator Percy explained at the time the act was enacted,
if a President believed that the 12-year closure period does
not suffice ``that President could object to release of some
document in the 13th or 15th or 20th year.''
Congress' recognition that former Presidents as well as an
incumbent President might assert constitutionally based
privileges is consistent with and indeed compelled by Supreme
Court case law. In the 1977 case of Nixon v. Administrator of
General Services, the Supreme Court in an opinion by Justice
Brennan embraced the view that unless the President can give
his advisors some assurance of confidentiality ``a President
cannot expect to receive the full and frank submissions of
facts and opinions upon which effective discharge of his duties
depends.'' In order to provide this necessary assurance of
confidentiality, the Court ruled that the President's
constitutionally based privileges for confidential
communications must survive the individual President's tenure.
The court further held that a former President, although no
longer a government official, is entitled to assert
constitutionally based privileges with respect to his
administration's Presidential records, and it expressly
rejected the argument that only an incumbent President can
assert the privilege of the Presidency.
This Supreme Court ruling, together with Congress's express
accommodation of that ruling in section 2204(c) of the
Presidential Records Act entail a need for procedures to govern
review of any records to which such privileges may apply.
President Bush's Executive order establishes clear, sensible
and workable procedures that will govern the decisions by
former Presidents and the incumbent President whether to
withhold or release privileged documents.
Consistent with the Supreme Court's decision in Nixon v.
Administrator of General Services, and with sound policy,
President Bush's Executive order confers on former Presidents
the primary responsibility for asserting privileges with
respect to their Presidential records. Indeed, by providing
that the incumbent President will, absent compelling
circumstances, concur in the former President's decision
whether or not to invoke a privilege, President Bush's
Executive order grants the incumbent President less authority
over the records of a former President than the incumbent
President had under the previous 1989 Executive order
implementing the act.
Let me emphasize, moreover, that the Executive order is
wholly procedural in nature. By its express terms, it does not
and is not intended to indicate whether and under what
circumstances a former President should assert or waive any
privilege, nor does it in any respect purport to redefine the
substantive scope of any constitutional privilege.
Before the Presidential Records Act took effect, former
Presidents generally released the vast majority of their
Presidential records even though they were under no legal
obligation to do so. The administration anticipates that this
historical practice will continue. Indeed, because the act and
the Executive order give former Presidents less power to
withhold records than they had before the act was enacted,
there is no reason to anticipate that former Presidents will
exercise their constitutional privileges in a way that leads to
greater withholding of records.
I hope that this information is helpful, and I would be
pleased to answer any questions you may have about this matter.
Mr. Horn. Thank you. We will have questioning after the
presenters have all presented.
[The prepared statement of Mr. Whelan follows:]
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Mr. Horn. Our next witness is Anna Nelson, professor,
distinguished American University. Dr. Nelson.
STATEMENT OF ANNA NELSON, PROFESSOR, AMERICAN UNIVERSITY
Ms. Nelson. Thank you, Mr. Chairman.
I have done research in five Presidential libraries, and I
was a staff member of the Public Documents Commission in 1976-
1977, which was the--whose report was actually responsible for
the passage of the Presidential Records Act.
Today I am here representing the members of the American
Historical Association, the Organization of American
Historians, and the Society of American Archivists.
Influenced by the actions of former President Nixon, then,
as the Archivist Mr. Carlin noted, Congress passed the
Presidential Records Act for two reasons: one, to ensure the
protection of these records so that they could not be
destroyed, since Mr. Nixon was in that business; and, second,
to ensure that the records of the Presidents would be open
within a reasonable period of time. Declaring Presidential
records to be Federal records, they protected documents through
archives oversight, as he pointed out. Establishing a time for
disclosure, the statute gives the President 12 years to protect
his records before they become available to the public. And, of
course, there are all of the other safeguards in the act. With
these exemptions, Congress felt it had duly protected the
former President.
It was unfortunate that 2 days before he left office,
President Reagan issued his Executive order which is now being
used to nullify the congressional intent to open Presidential
records within a reasonable time. This Executive order required
the Archivist to notify both the former and the incumbent
President when records are to be released after the 12-year
period. After examining these records, the incumbent and the
former President can invoke ``executive privilege.'' An
incumbent President is given 30 days to respond. The Bush
administration has taken 9 months to make their decision, thus
delaying the release of the records until they could in fact
issue their own Executive order.
The Bush administration did not look at each record, or
groups of records, so much as they went looking for a way not
to release these records. And yet the Reagan Executive order,
if one reads it carefully, assumes that there will be certain
records among the group that will be held back, not whole
groups of records.
The papers of President Reagan are the first to be
organized and opened under the Presidential Records Act. The
Reagan papers will set the precedent for all other papers
opened under the act. We must look ahead and not think in terms
of 10, 12, 15 years. This act will continue for 30 years. It
has enormous political implications.
It is difficult to know why President Reagan chose to allow
the incumbent to review the records, but by capitalizing on
this review and further extending its provisions, the Bush
administration, perhaps unwittingly, has thwarted the intention
of Congress to open these government records to the public.
This Executive order, I would argue, goes beyond management
and process. For example, theoretically a President in 2050 can
continue to review for closure the records of the current Bush
administration. Now more than ever, we need to know the history
of our recent past. The policies made more than 12 years ago
still affect us. We need to know about these policies, the
failures as well as the successes, so that we can understand
our own recent history.
The release of 12 to 25-year-old records is not the same as
yesterday's leak to a favorite journalist. Nor need we fear the
release of national security information which is protected by
the Presidential Records Act, the Freedom of Information Act,
and the Presidential Executive Order on National Security.
The records in Presidential libraries have become more
important in American history as the power of the Presidency
has grown with each passing year. It is not unusual, however,
for past Presidents and their staffs to worry about the content
of papers they no longer remember. And yet most Presidents gain
stature from an examination of their records which tend to
highlight the pervasive problems and illustrate the competence
and the skills of the President and his staff.
Congress passed the Presidential Records Act so that the
American people could learn about their recent past. Congress
acted wisely. This Executive order should not be allowed to
nullify that act.
I would be happy to answer questions, Mr. Chairman, at the
appropriate time.
Mr. Horn. Thank you very much.
[The prepared statement of Ms. Nelson follows:]
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Mr. Horn. And our next professor is Mark J. Rozell,
professor at Catholic University of America.
STATEMENT OF MARK J. ROZELL, PROFESSOR, CATHOLIC UNIVERSITY OF
AMERICA
Mr. Rozell. Thank you, Mr. Chairman, for the invitation to
speak to the committee on the constitutional principle of
executive privilege.
Although nowhere mentioned in the Constitution, executive
privilege has a long history in Presidential politics.
Presidents since George Washington have claimed the right to
withhold information from either Congress or the judicial
branch. Despite this long history and many precedents for its
exercise, executive privilege remains a controversial power.
And that is understandable because the very notion that a
President may withhold information from those who have
compulsory powers strikes at the core of our democratic
principles, especially accountability in government.
My prepared statement, submitted for the record, focuses on
the proper definition of executive privilege and the evolution
of its exercise. Very briefly, executive privilege is a
legitimate Presidential power when it is exercised under
appropriate circumstances. Like most other Presidential powers,
it is limited by the legitimate needs of the other branches.
Executive privilege also is limited by the democratic principle
of openness in government. Therefore, throughout U.S. history,
claims of executive privilege have been subject to various
balancing tests.
No claim of executive privilege should stand merely because
a President or a high-ranking administration official has
uttered the words ``national security'' or ``ongoing criminal
investigation.'' A President's claim of executive privilege
must be balanced against other needs and must also meet certain
standards of acceptability.
Some scholars have argued that executive privilege is a
myth, and during the Watergate scandal, former President Nixon
claimed that executive privilege was a power that belonged to
the entire executive branch of the government and therefore was
not subject to any limits.
Both of these views are unsupportable. The relevant debate
today is over the proper scope and limits of executive
privilege. Few any longer argue that executive privilege is a
myth, fewer still cling to the belief that the privilege is an
absolute Presidential power not subject to the compulsory
powers of the other branches.
Presidents have legitimate needs of confidentiality. The
other branches and the public have legitimate needs of access
to executive branch information. The question is not whether
executive privilege is a legitimate power, but, rather, how to
balance competing needs when a President makes a privilege
claim.
Now, some critics of executive privilege are quick to point
out that the phrase ``executive privilege'' does not appear
anywhere in the Constitution. To be precise, that phrase was
not a part of the common language until the Eisenhower
administration, leading some to suggest that executive
privilege therefore can never be constitutional. This argument
ultimately fails, because every President since George
Washington has exercised some form of what we today call
executive privilege, regardless of the words used to describe
their actions.
Executive privilege is an implied power derived from
Article II. It is most easily defined as the right of the
President and high-level executive branch officers to withhold
information from those who have compulsory power, particularly
Congress and the courts, and therefore to withhold information
ultimately from the public. But this right is not absolute.
The modern understanding of executive privilege has evolved
over a long period, the result of Presidential actions,
official administration policies, and court decisions. In the
statement that I am submitting to the committee for the record,
I provide a detailed explanation of the evolution of the
meaning of executive privilege and of its exercise by modern
Presidents.
For our immediate purposes, I will focus my comments on
President Bush's Executive order, which I see as a big part of
an emerging pattern by this administration to expand executive
privilege and governmental secrecy more broadly. As you are
aware, the administration has been embroiled in other
controversies over access to information disputes, particularly
the refusal to provide certain requested Department of Justice
documents.
The Bush administration is making far-reaching efforts to
expand the scope of executive privilege. In one such case, the
administration has made the claim that Congress can be refused
access to documents in the Department of Justice regarding
prosecutorial matters. In this particular case, the
administration maintains that it has the right to refuse a
congressional request for access to such documents, even though
the Department of Justice has closed down the particular
investigation under dispute.
A congressional hearing on that controversy scheduled in
mid-September was understandably postponed. But in due time,
Congress needs to take up this issue again, because if allowed
to stand, the administration's position on expanding executive
privilege anytime the Department of Justice utters the words
``prosecutorial'' would set an impossible standard for Congress
to overcome in trying to conduct its oversight function. In
short, it would set a terrible precedent.
Today Congress is rightly concerned about the
administration's Executive order that would allow executive
privilege to be vastly expanded to prevent the release of past
Presidents' official papers. I have a few reactions, very
quickly. First, the handling of Presidential papers is a matter
that should be handled by statute and not by Executive order.
Presidential papers are ultimately public documents, a part of
our national records, and they are paid for with public funds.
They should not be treated merely as private papers.
Second, there is legal precedent for allowing ex-Presidents
to assert executive privilege, yet the standard for allowing
such a claim is very high, and executive privilege cannot stand
merely because an ex-President has some personal or political
interest in preserving secrecy. An ex-President's interest in
maintaining confidentiality erodes substantially once he leaves
office, and it continues to erode even further over time.
Third, this Executive order makes it easy for such claims
by former Presidents to stand, and almost impossible for those
challenging the claims to get information in a timely way in
order to be useful. The legal constraints will effectively
delay requests for information for years as these matters are
fought out in the courts. These obstacles alone will settle the
issue in favor of former Presidents, because many with an
interest in access to information will conclude that they do
not have the ability or the resources to stake a viable
challenge. The burden will shift from those who must justify
withholding information to fall instead on those who have made
a claim for access to information.
Fourth, executive privilege may actually be frivolous in
this case, because there are already other secrecy protections
in place for national security purposes. Why expand executive
privilege so dramatically to cover what is already potentially
covered by existing statutes and regulations? Furthermore, a
general interest in confidentiality is not enough to sustain a
claim of executive privilege over old documents that may go
back as far as 20 years.
Executive privilege traditionally has been limited to
withholding information regarding current matters of
substantial national interest. In a democratic system, the
presumption is generally in favor of openness, not secrecy.
There is no denying that Presidents have need of
confidentiality, yet the President's current efforts appear
designed to substantially tip the balance in favor of secrecy.
If the President's support for limiting access to
Department of Justice memoranda and this Executive order are
allowed to stand, the administration will be able to withhold
just about any materials going back many years, as long as
someone in the administration utters the words ``national
security'' or ``prosecutorial.''
Congress and the American public have an interest in making
sure that does not happen. What is striking about these latest
executive privilege controversies is that the administration
seeks to protect secrecy; in the one case, over documents
regarding a terminated investigation; and in the other case,
over the Presidential papers of past administrations. Usually
when an administration seeks to protect secrecy with executive
privilege, it does so with regard to some matter of immediate
national concern. That is not to suggest that all such claims
necessarily are valid, but just that current administration has
chosen some very untraditional cases with which to expand
executive privilege.
With regard to legislative executive disputes over
information, the burden is on the President to demonstrate a
need for confidentiality and not on Congress to prove that it
has the right to conduct oversight. Similarly, the burden
should be on a President or ex-President to demonstrate a need
to close off access to past Presidential records, and not on
citizens to prove that they have a right to examine public
records. The Bush administration actions on executive privilege
dramatically shift the burden away from where it belongs.
Thank you.
Mr. Horn. Thank you.
[The prepared statement of Mr. Rozell follows:]
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Mr. Horn. Our next witness is Peter M. Shane, professor,
the University of Pittsburgh and Carnegie Mellon University.
Dr. Shane.
STATEMENT OF PETER M. SHANE, PROFESSOR, UNIVERSITY OF
PITTSBURGH AND CARNEGIE MELLON UNIVERSITY
Mr. Shane. Thank you, Mr. Chairman, Mr. Ose. Is this
microphone on? Better.
I want to thank you also for the privilege of appearing
before you today to discuss these very important issues. It is
an honor to be part of this distinguished panel. The new
Executive Order 13233 addresses some gaps in the system for
managing Presidential records that exist under the terms of the
Presidential Records Act.
My own review suggests that whether this order on its face
would impede or expedite the process actually is not so much
related to the terms of the order but the kinds of
circumstances outlined by the Archivist with respect to his
capacity to process those records in the years of restricted
access. I will try to explain that conclusion.
The Presidential Records Act seeks on one hand the rapid
and complete disclosure of Presidential records, but it leaves
intact the constitutionally based privileges of both incumbent
and former Presidents.
It leaves open two questions. It really provides no
direction as to how cases should be handled of disagreements
between the Archivist and former or incumbent Presidents about
the release of Presidential records. It doesn't provide any
procedure for a review of former Presidents' records by
incumbent Presidents trying to decide whether or not to assert
their own privileges.
The Archivist, by regulation, addressed the second problem,
in part, by mandating that whenever notice went forward to a
former President that records might be disclosed, that notice
would also go to the incumbent President. But the regulations
of the National Archives do not tell the President, the
incumbent President, how to conduct his review.
President Reagan tried to fill this gap through Executive
Order 12677. That order provided that the President would
review all notices by the Archivist that the Archivist intended
to disclose the records of past Presidents. Under the order,
that review would last no longer than 30 days, unless
lengthened on request of an incumbent or former President.
Executive Order 13233 changes both parts of the procedure.
On one hand, it lengthens the period for review, although I
don't know whether in practice the 30 days was kept under
12677, or I guess we don't know because it was never actually
implemented. But under 13233, the Bush order, the former
President now gets 90 days to review documents. There is no
time limit in the order for the incumbent.
The potential good news here, however, is that the Bush
order does not apply to all disclosures; it only applies to
disclosures pursuant to specific requests that are managed by
the Archivist, in a manner like a FOIA request. So the real
question is how large will this category be?
As it has already been explained, the Presidential Records
Act allows a former President to ask for up to 12 years of
protection for documents in six categories that the statute
provides. When any such access restriction expires, the
Archivist manages records under the Freedom of Information Act
standards, except that the section 5 exemption for deliberative
records no longer is available to limit withholding.
Under this scheme, it is at least theoretically possible
that the Archivist could process documents during the period of
restrictions and identify thousands of documents for
potentially immediate post-restriction release on the grounds
that FOIA would not permit withholding these documents under
any standard. That is, there is no theoretical reason why it
couldn't be determined within the 12-year period that a great
many Presidential documents, upon the expiration of the
restricted access, will simply be automatically disclosable.
And if that is the case, then 13233 will not kick in.
As I read it, the Executive order would not restrict the
authority of the Archivist to arrange the wholesale disclosure
of such documents at his own initiative. It only restricts--it
only kicks in when there is a specific FOIA-type request that
triggers the Archivist's intent to disclose.
Following up Professor Rozell's suggestion, one wonders
whether a statute might direct that Presidential records be
handled this way. If Presidential records were handled this
way, if the Archivist had that capacity either under his own
initiative or pursuant to statute, or if the President is
simply expeditious in reviewing disclosures sought under FOIA
criteria, then 13233 need not slow down disclosure. Most
documents, however, are released, if at all, only based on
specific requests. Then 13233 does auger a slower process than
12677 would have provided. Some irony here, because, of course,
12677 was the order written by the President, whose records
would now be protected by the new order.
But, in either case, the problem is not because of a facial
conflict between 13233 and the Presidential Records Act, the
question is whether the Presidential Records Act will be
observed in spirit as well as in its letter based on the actual
implementation of the Executive order. Thank you.
Mr. Horn. Thank you.
[The prepared statement of Mr. Shane follows:]
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Mr. Horn. Our last presenter is Scott L. Nelson, the
attorney for the Public Citizen Litigation Group. Mr. Nelson.
STATEMENT OF SCOTT L. NELSON, ATTORNEY, PUBLIC CITIZEN
LITIGATION GROUP
Mr. Nelson. Thank you, Mr. Chairman. I have set forth my
testimony in detail in writing. In my remarks this afternoon, I
would like to get right to what I conceive to be the heart of
the matter as to the legality of the new Executive order.
Archivist Carlin this afternoon has announced his intention
to implement the order in a manner consistent with his
statutory responsibility under the Presidential Records Act. I
am afraid he has taken on an impossible task because the terms
of the Executive order, in fact, cannot be reconciled with the
Archivist's responsibilities under the act. In short, the act
requires that the Archivist must release, after the 12-year
restriction period, materials relating to communications
between the President and his advisors upon request, and that
the Archivist can only withhold those materials from public
release if they are subject to a valid constitutionally based
claim of privilege.
The new Executive order, far from simply providing new
procedures, turns that requirement on its head. It provides
that if the former President makes a claim of privilege, even
if the incumbent President and the Archivist disagree and find
that there are compelling circumstances that render that claim
of privilege legally unfounded, the Archivist must still
withhold those records from the public, and anyone who doesn't
like it is relegated to going to court.
Beyond that, the order also purports to require those who
would seek access to demonstrate a particularized specific need
for the information, which again is contrary to the public--or
the Presidential Records Act premise that FOIA standards, under
which such a need need not be shown, are applicable to requests
under the PRA.
The only possible justification for the new standards
imposed by the Presidential Records Act is if, as the Executive
order tries to suggest, these new standards are required by the
constitutional nature of the executive privilege.
But judicial precedents on that subject make it clear that
the order's standards are not constitutionally compelled. In
the Nixon v. Administrator of General Services decision of the
Supreme Court, the court emphasized two features of executive
privilege that I think are particularly relevant here. The
first is that it erodes over time, and that years after the
President leaves office it can be overridden by a public need
for access to historical materials.
The second is that the President--the former President's
ability to claim privilege is adequately protected so long as
he has the ability to make a claim and present it for
consideration by the Archivist and by the sitting President.
There is no suggestion in Nixon v. Administrator of General
Services, as there is in this order, that the current
administration has to rubber stamp a claim of privilege by the
former President.
More to the point even than the Nixon v. Administrator of
General Services is a decision rendered by the D.C. Circuit in
1988, Public Citizen v. Burke. In that case the Justice
Department had attempted precisely the same thing that is now
being attempted by the Executive order. In that case pertaining
to Nixon Presidential records, the Justice Department had
issued a directive requiring that if a former President, in
that case Mr. Nixon, claimed privilege, the Archivist was
required to withhold those materials and let anyone who wanted
access bear the burden of going to court. The D.C. Circuit held
that order was unlawful, that the Archivist could not shirk his
responsibility to rule on a claim of executive privilege made
by a former President and release materials to the public as
required by statute if that was in fact what the law required,
in his view.
I speak from sad experience here, as I was among the losing
attorneys in that case. Now I feel like it is deja vu all over
again. Once again, a policy is being advocated by the
administration that would give a former President carte blanche
to direct the Archivist in effect not to comply with his
statutory responsibilities. That is bad law, it is bad policy,
it is contrary to the notion that the Presidential Records Act
exists in order to give citizens access to government records
and after the 12-year period expires, to place the burden of
justifying any withholding of those materials on the person who
seeks withholding, not on the person who wants access. Thank
you.
Mr. Horn. Thank you very much.
[The prepared statement of Mr. Nelson follows:]
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Mr. Horn. We are now going to ask questions. We have got
two of us here for the majority. We haven't seen the minority.
But it will be 10 minutes a side, and I am starting with 10
minutes and then Mr. Ose will have 10 minutes.
Governor, I think earlier this year you notified the former
and current Presidents of your intention to release to the
public about 68,000 pages of records that former President
Reagan had restricted for the last 12 years under the
Presidential Records Act. Is that correct?
Mr. Carlin. That is correct.
Mr. Horn. When you gave this notice, had you completed your
review of the records and determined that there was no basis to
withhold them down--under any of the exemption categories
specified in the act?
Mr. Carlin. My staff had worked with the Reagan
representatives to come to that conclusion, yes.
Mr. Horn. What steps do you take to protect against
disclosures of records that might contain military, diplomatic,
or national security secrets?
Mr. Carlin. The staff at the Reagan Library, as well as my
immediate staff, as well as the representatives of the former
President, look very closely at all of those records to make
sure that we are complying with all of those restrictions,
whether they be for national security or classified documents,
obviously. At the Reagan Library, I think there are about 8
million pages of classified records that will be open down the
road several years from now.
Mr. Horn. How did you ensure that the other exceptions from
disclosure are properly applied? What is the archival staff
criteria?
Mr. Carlin. Well, the staff has--I have been fortunate to
inherit as well as add some very talented people to the staff
that has had experience and developed more experience in
implementing the Presidential Records Act. And the key to that
success I think for the most part has been with the staff
working very closely with the reps of the former President to,
in a dialog, almost partnership way, work through so that over
a period of time more guidance and direction could be given to
the NARA staff, to the Reagan--in this case the Reagan
Presidential Library staff, so a lot of the work has moved
forward in a rapid, efficient way.
But the key has been, obviously, talented staff committed
to the appropriate implementation of the law and the Executive
order.
Mr. Horn. Did your notice, when you identified the two
Presidents, any of these records that raised, ``a substantial
question of executive privilege'' as defined in Executive Order
12667?
Mr. Carlin. Well, obviously, the incumbent has the right to
make the judgment call as to whether there is something that
rises to that level.
The former in this case, and based on our experience with
opening some--I think we are at about 5.3 million pages of
records that we have opened in the Reagan Library, that we have
had a very small, modest number, percentage-wise that have
fallen under further scrutiny, for records that come under P5.
Mr. Horn. You want to define P5?
Mr. Carlin. Well, this is the exemption that deals with the
confidential advice to the President from staff, or from staff
to staff, in terms of the process of moving forward on various
decisionmaking activities.
Mr. Horn. When a scholar goes into the Reagan Library, and
when you are faced with 5 to 8 million, the question would be,
is the best way to get at it is with the certain--White House
personnel, let's say, national security, or urban planning or
whatever, is--what is the best way for any scholar to get at
such a vast bit of material?
Mr. Carlin. Well, because as I explained in my opening
statement, systematic processing has been hampered by an
extensive use of FOIA, which is--we are not being critical of,
but just sharing our professional experience, it has been very
difficult to move as fast as we would like in opening as many
records as possible in an efficient manner.
From a practical point of view, FOIA, it has been the FOIA
line that has determined how records have been opened and
processed. And to anyone now, you know, get in line is my first
bit of advice and get your FOIA request in, because between
court order and congressional requests and FOIA, there is not
much opportunity for just a general request to be made, because
the chances are the records have not been processed. The way to
bring that request to the top is to make a FOIA request.
Mr. Horn. When you receive a request for these records, do
you conduct an initial review and make your own determination
on whether any of the act's exemptions from release have any
application?
Mr. Carlin. Yes. We do some initial work ourselves, and
then obviously--if somebody makes a request for Record A and it
is a classified record, we don't need to proceed any further.
It is obvious that record is not going to be opened up. And if
no other exemption stands out, obviously, then we proceed to
take the next step, which is sharing the request with both the
former and the incumbent representative.
Mr. Horn. Has the White House started a substantive review
of those records to determine whether to invoke executive
privilege for any of them?
Mr. Carlin. The current incumbent?
Mr. Horn. Current.
Mr. Carlin. No.
Mr. Horn. I understand that the White House Counsel's
Office consulted extensively with you and your agency in
developing the new Executive order; is that true? Did you
provide----
Mr. Carlin. That is correct. We would have to acknowledge
on the record that we have had unprecedented access and
opportunity to share our experiences and share our professional
concerns that we may have. It has been over a several-month
period, and we certainly cannot in any way be critical of the
administration as far as leaving us out in any fashion.
Mr. Horn. In terms of any type of transition of Presidents,
whether they are in the same party or not, would you give us
some advice as to--or if a President was thinking about it--
should you be putting archivists right in the White House now,
if you want to get a decent archival file? Is any of that ever
done, or are Presidents just a little leery of that?
Mr. Carlin. Well, consistent with the interest that you
had, Mr. Chairman, with transition in the last few years, we
likewise were committed with the then-coming change of
administrations, as a result of the last election, to be in a
position to work with the new administration on records
management, particular emphasis on the electronic side, to try
to avoid some of the problems that we had, make use of lessons
learned from the previous administration. And we were
privileged to have had the opportunity to work extensively in
the very short transition period that did eventually develop,
and then since then, and are working very closely with the
White House, with the Office of Administration on Records
Management issues. So, come whenever that time is when those
records are transferred to us, there is a much better
opportunity they will be in a condition that will allow the
maximum efficiency of processing.
Mr. Horn. What views or comments do you have about the
final Executive order that the administration put in the
Federal Register?
Mr. Carlin. Well, obviously, as you are well aware, policy
is developed by you and/or the administration, and it is our
role to implement. We did share some--what we would call
professional concerns, and, as I indicated earlier, appreciate
the fact that we were given the opportunity to do so, based on
12 years of experience with now three former Presidents.
But the policy side of things we will let the Congress and
the administration work out.
Mr. Horn. Thank you. I now yield 10 minutes to Mr. Ose.
Mr. Ose. Thank you, Mr. Chairman.
Mr. Whelan--before I go there, Mr. Chairman I just want
to--I am relatively new here. One of the things that I have
always come to admire about President Reagan is the fact that
when he had finished his work, he was not afraid to put his
stuff in the public domain. He just said, I got these three
exemptions, But, you know, let's just trust the people and tell
them what it is that we know. And if there were to be one thing
that I would say to President Reagan today, it would be that I
am most appreciative of his faith in the citizens of this
country in that respect.
Mr. Whelan, I am curious about something. In President
Bush's--or in the Executive order of last Thursday, the--three
exemptions, if you will, that were embedded in the Presidential
Records Act--that would be national security, deliberative
process and law enforcement--were changed. Law enforcement was
dropped. And Presidential communications in one case, and legal
advice and legal work in another were added. Am I correct in
that?
Mr. Whelan. You are certainly correct that the wording is
different from the previous Executive order.
Mr. Ose. Now, under my interpretation, that is an expansion
of the Presidential Records Act. Am I correct in that?
Mr. Whelan. No, you are not, sir. No substantive change is
intended or effected by the difference in words used to
describe the privilege, nor could any President through an
Executive order change the contours of the constitutional
privileges available to existing and former Presidents. So
certainly nothing is intended by it.
I will note, for example, you note that the previous
Executive order didn't use the term ``communications of the
President.'' Well, the communications privilege was at the core
of the two Nixon cases. It was clearly covered by this
Executive order, which just used different labels.
Mr. Ose. We are going to get to that. But you are saying
that there was no intended change meant by the change in
wording?
Mr. Whelan. That's correct, sir.
Mr. Ose. So why did you change the words?
Mr. Whelan. The language used to describe the
constitutional privileges of the President, as one of the other
panelists indicated, has changed over time. Different people
have different phrasings that they find appropriate.
The Department of Justice has long described the
constitutional privileges as subsuming the privileges that are
listed here in the Executive order.
Mr. Ose. Attorney General Reno--just for an ordinary person
like me, what does subsuming mean, just in common person's
language?
Mr. Whelan. Well, I won't pretend to serve as a thesaurus,
but the notion that the very materials that would in other
contexts be covered in these privileges are for the President
covered by his constitutional privilege.
Mr. Ose. So it's analogous to including something,
basically?
Mr. Whelan. That is at least a rough----
Mr. Ose. I am kind of a rough guy, so you will have to bear
with me. I didn't mean to interrupt you on the other.
So going back to my original question, why the change in
the wording? If there is no intended change in the
interpretation, why do you need to change the words?
Mr. Whelan. I am not aware of any decision on that other
than the Department of Justice, say, from Assistant Attorney
General Olson in the Reagan administration through Attorney
General Reno, has used language that we used in this Executive
order.
Mr. Ose. This brings me to a very specific question, and
that is, the Presidential Records Act in Section 2204(a) talks
about confidential communications--focusing in on one of the
new words that didn't have any change in meaning, it talks
about confidential communications between the President and his
advisors; and yet the Executive order under section 2(a) makes
no distinction between confidential and regular communications
between the President and his advisers. Now, are you attempting
to expand the protections, if you will, that the President
might seek to exercise?
Mr. Whelan. No. There is no intention via this order to
expand or redefine the constitutional privileges available to
the President. This order is procedural.
Mr. Ose. A plain reading of the Executive order suggests to
me in no uncertain terms that it's all communications between
the President and his advisors that are covered by what you
contend is not an expanded Presidential Records Act.
Mr. Whelan. Insofar as such communications are subsumed by
the President's constitutionally based privileges.
Mr. Ose. OK. Let's talk about that. Are the attorney/client
or work product or deliberative process privileges common law
privileges or constitutional privileges?
Mr. Whelan. When invoked by you or me, these are common law
privileges. But, again, the Department of Justice has
consistently maintained that these common law privileges are
subsumed or incorporated under the President's constitutional
privilege.
Mr. Ose. OK. This is very interesting. Don't court cases
hold that an executive privilege does not include attorney/
client privilege? Isn't that what court cases hold?
Mr. Whelan. The Supreme Court has never held that the
President's constitutional privilege does not subsume materials
that would otherwise be protected by attorney/client privilege.
Mr. Ose. Can I ask you a favor? Instead of using the word
``subsume,'' can you just use regular language with me, however
long the definition you might substitute? I mean, you are
confusing me with the word subsume.
Mr. Whelan. You can use incorporate, if you would like.
Mr. Ose. You are saying the President, whether it's this
President or a future President, has a constitutional privilege
to exercise this exclusion, if you will, this protection?
Mr. Whelan. That much is clear from the Nixon v.
Administrator of General Services case.
Mr. Ose. And yet----
Mr. Whelan. I am sorry. From the Nixon v. Administrator of
General Services, case.
Mr. Ose. Mr. Chairman, I just need a moment, please.
Mr. Horn. While you are doing that, let me get a question
in here.
Mr. Whelan, I'm curious, when we talk about a former
President, a current President and/or their representative, how
do we get the--what kind of representative? Is there any
legitimacy to that? And, if so, who is it? Is it their cousin?
Is it their little brother? Is it another President or what?
How do you know that is the representative and how that would
be agreed to by either the counsel in the White House or the
Department of Justice, etc? Can you give us some advice on
that?
Mr. Whelan. Well, Mr. Chairman, the former President is to
designate his representative. So the person he has designated
as such shall be his representative.
Mr. Horn. And who would that be?
Mr. Whelan. That depends whom the former President
designates. He may designate whomever he sees fit.
Mr. Horn. Well, is a person that is an expert on, let's
say, national security policy or whatever, does it have to be
an attorney? Could it be anybody that the former President has
faith in?
Mr. Whelan. Well, let me go back to the Nixon v.
Administrator of General Services, case, and I think that will
help explain some of the considerations that a former President
would take into account in selecting a representative. As that
case and the Nixon v. Administrator of General Services, case
recognized, the constitutional privilege of the other President
is essential and serves the public interest by guaranteeing
that advisors to the President have some real assurance of
confidentiality so that they can give their full, frank advice
and not worry about how they might be portrayed. The essential
goal is that the President and the country benefit from their
full advice.
With that said, a former President presumably would want to
select as his representative someone who was knowledgeable
about and sensitive to the interests that advisors would have
so that advisors in the future would have confidence that they
could give their full, frank advice.
Mr. Horn. The Presidential Records Act clearly envisions
that the Archivist will initially decide whether claims of
executive privilege by a former President are justified. The
act specifically provides a judicial remedy that, ``a former
President asserting that a determination made by the Archivist
to the United States violates the former President's rights or
privileges.'' What's your reaction to that? For example, can an
Executive order take away from the Federal official authority
and responsibility granted by Congress?
Mr. Whelan. Mr. Chairman, I don't believe anything in this
Executive order takes away any authority conferred by Congress.
So I am not--perhaps I missed the specifics of your question,
but I don't believe the Executive order does that in any
respect.
Mr. Horn. Well, I get the--it might not mean that, but I
would think that the Executive order is attempting to make laws
that Congress makes.
Mr. Whelan. No, that is not right. I believe Professor
Shane mentioned the Executive order is designed to set forth
procedures, to fill gaps, to implement the Presidential Records
Act. It is not designed and does not in any respect override
any of the provisions of that act.
Mr. Horn. Well, where--the representative bit, how would
you know? How would anybody in the government know? Is it
simply a letter from the former President and that does it on
the representative, or what?
Mr. Whelan. Yes. A notice concerning--given via letter to
the current President or the Archivist.
Mr. Horn. Well, that would be a good idea.
Mr. Ose, 10 minutes.
Mr. Ose. Thank you, Mr. Chairman. I appreciate the moment
to gather my thoughts.
Mr. Whelan, would you please cite for me the legal or
constitutional precedent that subsumes or incorporates the
attorney/client or work product privilege under the executive
privilege?
Mr. Whelan. I don't know that there is case law on that
point, Congressman Ose.
Mr. Ose. Is there any law on that point?
Mr. Whelan. Well, there certainly is a long-established
practice of the Executive Department with respect to the
constitutional privilege, which practice has been recognized.
Mr. Ose. OK. But is the attorney/client and work product
privilege a constitutional privilege or a common law privilege?
Mr. Whelan. Well, I'm going to have to go back to the
phrasing that I think we used before, which is the President's
constitutional privilege subsumes or incorporates the attorney/
client or work product privilege. There was a letter from
Attorney General Reno citing the Office of Legal Counsel
opinions by Ted Olson and Chuck Cooper to this effect in this
last administration.
Mr. Ose. I have some passing knowledge of former Attorney
General Reno's positions.
Mr. Nelson, do you have any observations on these points?
I'd be curious what input you might provide.
Mr. Scott Nelson. Well, I think that there might be
circumstances where there would be some overlap between
attorney/client privilege and the constitutional executive
privilege. For example, if the President were consulting with
his White House counsel on some matter of legal policy, I would
think that conversation would likely fall within the bounds of
both the potential at least constitutional executive privilege
and the attorney/client privilege. I don't think that those two
categories necessarily are mutually exclusive, but I also don't
think that they necessarily are co-extensive. In other words, I
think there might very well be some communications and
certainly some writings that could fall within the common law
attorney/client and work product privileges that would not
necessarily qualify for the constitutional executive privilege
attaching to confidential communications between the President
and his advisors.
Mr. Ose. Are you familiar with the 8th Circuit or the D.C.
Court's rulings with respect to Mr. Lindsey that have occurred
since the Supreme Court ruling Mr. Whelan referred to?
Mr. Scott Nelson. Well, I believe that the courts have held
that attorney/client privilege is not constitutionally
compelled in that context, but I would want to go back,
frankly, and study them before I was prepared to give detailed
testimony on what they meant before a congressional
subcommittee, I am afraid.
Mr. Ose. Professor Nelson, Professor Rozell, Professor
Shane, do you have any thoughts on this matter?
Ms. Anna Nelson. I can't talk about the legal matters, but
I've been very interested in this conversation. Going back to
the chairman's question of what the researcher finds when they
go into a Presidential library, and I think it's an esoteric
conversation for those of us who go looking for documents, what
will happen----
Mr. Ose. Before you leave that, it is not esoteric in the
sense the citizens of this country deserve this information----
Ms. Anna Nelson. You are quite right.
Mr. Ose [continuing]. In terms of what their leaders are
basing their decisions on.
Ms. Anna Nelson. You are quite right, and what will happen,
in spite of the insistence that this is a management problem,
is that records will be withheld. It's very dangerous--secrecy
is a dangerous thing. It always causes conspiracy theories. As
a member of--former member of the John F. Kennedy Assassination
Record Board, I can tell you all about that. It was secrecy
that bred those conspiracy theories, and I think that's one
aspect about it.
In your question about what you will find when you go into
the 68,000 pages, you will find that the Archivists have done a
wonderful job of organizing them, and there will be file
folders that will tell you where to go for your research.
That's why people like Presidential libraries.
The problem of using FOIA requests and not having
systematic review is one that has persisted in many
Presidential libraries over the years. The difference is that
we have to regard these as government papers, government
documents. In the past, the designated individual when the
President dies is a member of the family or a member of the
administration protecting the family's interests. This is not
going to be possible when the records are Federal records, and
I think we have to rethink many of these aspects for public
access, which is the very key issue here.
When the subcommittee staff that created the Presidential
Records Act and the committee decided to include the 12 years,
they felt that was enough for confidentiality. It may not be,
but, in any case, their motive was to open records.
President Nixon managed through the courts to keep his
records closed for over 20 years. Just by using legal attempts
through the courts, he tied them up. And this was on the minds
of people when he began to do that before that act was passed.
So I think that anything that hinders public access is
hindering the American people from understanding the recent
past.
Mr. Ose. Professor Rozell. Professor Shane.
Mr. Rozell. Thank you.
There are many things about this Presidential Executive
order that disturb me, but one in particular that you raised
before is a provision that allows a former President to
designate someone, whomever he may choose, to make a decision
with regard to asserting executive privilege. I would like to
know specifically who would be considered qualified to render
such judgments.
If you follow the history of case law and Presidential
practice with regard to the use of executive privilege,
executive privilege has come to mean the right of the President
and high executive branch officers with the President's consent
to withhold information that has a direct impact on the
national security or information that, if released publicly,
would cause undue embarrassment to individuals within an
administration for no public gain whatsoever.
It bothers me greatly to see in this Executive order that a
former President may designate someone who may at heart have
the former President's own political interests or standing in
history primarily in mind rather than the traditional
categories for which executive privilege normally would be
asserted. And, again, executive privilege exists to protect the
national security or the privacy of internal deliberations when
it is in the political interest to do so, not when it's in the
public interest of an administration or of a past Presidential
administration.
Mr. Ose. You bring up an interesting point, because the
cases that were actually before us have to do with previous
administrations.
Mr. Rozell. Yes.
Mr. Ose. It's nothing where President Bush is on the line.
It's just----
Mr. Rozell. That's right. That's what I find so curious,
that they are taking a stand on an executive privilege issue
with regard to past Presidential administrations' papers, and
that's not the traditional category for which an administration
would be staking a claim for executive privilege.
I am not, by the way, opposed to the concept of executive
privilege. I am not opposed to the concept of secrecy. As I
said in my statement, I believe that Presidents have needs of
confidentiality, but as with other constitutional powers there
is a balancing test. There has to be a balancing test with
regard to different needs--the needs of Congress, the needs of
the public. To have access to information must be weighed
against the need of an administration to withhold information
or the presumed need of a past administration to withhold
documents from public review.
And one final point. One thing that hasn't been raised is
this question. As I understand the Executive order, if a past
President's designant or a past President wants to withhold
information, wants to withhold Presidential documents from his
administration and the current President disagrees, then the
former President's claim of executive privilege stands. What if
the current administration needs access to such information for
current policy deliberations and development? You mean to tell
me that the current administration cannot have access to the
historic records and documents of a past administration when
those records, those documents may be crucial to the
development of policy in the current context? What's more
important here?
Mr. Ose. Professor.
Mr. Shane. Thank you.
I think, the starting point, I would underscore in reaction
to what the other speakers have said, with which I agree, is
it's important to remember that executive privilege is intended
to protect the Presidency. It's not a privilege to protect
particular individuals in their individual capacity as
incumbent President or their individual capacity as past
President. It's intended to protect the office.
Now, with regard to the wording of the Executive order, I
would say that operationally, with one caveat, with one sort of
warning, operationally it doesn't make much difference what
verbiage the Executive order chooses to describe the contours
of executive privilege. What counts is--because even if they
assert in the Executive order that they could conceivably
assert privilege on 4 or 5 or 25 grounds, the order obviously
doesn't compel them to do it. The President, this President,
successor Presidents, former Presidents could decide I'm not
going to rest on privilege even if hypothetically I could
assert one. So in practice, except for one thing, the verbiage
doesn't much matter.
The reason why it might matter, the one exception is that,
for reasons Professor Rozell has mentioned, this administration
seemed to develop what might be called a kind of idealogy of
executive privilege. It is picking fights over records of past
administrations. In one case, with regard to the Vice
President's meetings in his contest with GAO, I have to say it
is a current President, but the information seems almost
trivial. It seems like almost an intent to pick a fight. And in
that context leaving the verbiage unchallenged by Congress does
raise the possibility if that verbiage just stays on the books
unchallenged by Congress some subsequent President will say,
well, we asserted that Presidents could claim privilege on this
particular ground and Congress never objected, so we must have
the law right. That's----
Mr. Ose. Just for the record, Congress objects.
Mr. Shane. Well, I think that's quite significant. It's
more than mere ritual to do that.
Could I just add one other puzzle that I have about
Executive order and--but I have to say, with regard to the
Presidential Records Act, too, and that is both documents say
with regard to the Vice President's record, the Vice President
shall be treated as the President. And if I may ask
rhetorically, why in heaven's name would that be?
The Vice President's privileges, such as they are, could
only be part and parcel of the privilege that protects the
Presidency. I don't read into the Constitution--I know of no
authority that suggests there's independent executive privilege
to protect the Office of the Vice Presidency. As a Presidential
advisor, Vice Presidents are undoubtedly protected in their
communications in order to protect the Presidency, but I would
imagine that huge quantities of what Vice Presidents read and
deliberate upon are no more protected by executive privilege
than, say, the records of the Federal Energy Regulatory
Commission or the Small Business Administration. He's just
another Federal administrator. And I wonder whether Congress
might want to turn its attention to that question.
Mr. Ose. Thank you, Mr. Chairman. You've been very
generous.
Mr. Horn. If I might just add on a question on this, Aaron
Burr and Thomas Jefferson would not have gotten along. And in
terms of Franklin Roosevelt, his Postmaster General, Mr.
Farley, wanted to run and then he was thrown aside when the
boss won three battles on that. And I am just curious about the
Vice President relationship. It isn't the first ones that have
turned on a President or later said I will run in the next time
and I'll get the votes. So what do you think on who deals with
those papers which can really be damaging to the Vice President
as with the incumbent, present President?
Mr. Shane. Constitutionally, my intuition is--and I use the
word ``intuition'' because there's not a lot of law on this
subject, but my intuition is that only a President can assert
executive privilege. So for better or worse with regard to
Aaron Burr, whether or not his records would remain secret
would be up to Thomas Jefferson, not Aaron Burr.
Mr. Horn. Any other comments from the professor?
Ms. Anna Nelson. Well, I think there is one more thing to
add, and that is that records at Presidential libraries, you
know, don't come out in one or two times. We're still getting
records out of the Kennedy Library, and we're getting records--
we're getting a lot of records out of the Johnson Library. So
that we do have to look ahead. I want to emphasize that. And we
have to look ahead to the political ramifications as Presidents
of one party make some determinations of the papers of
Presidents of another party.
And I think that if it is true, and I didn't read it this
way, that this only applies to FOIA, I suppose that's not
nearly as bad. When I read the Executive order I read it to
mean that every time records were released that they would be
subject to the incumbent as well as the past President, and
that's a terrible burden and a terrible chore for the National
Archives, and it just means that we'll see the papers less and
less. Because even now the national security records are held
back so long that--because it must go through so many different
people. The more people you have to go through, the longer
records are kept out of the public eye.
Mr. Horn. There's obviously a certain number of years in
the law that's there. When that was put together, to what
degree, if any, did the issue come up of why don't we do it
until the President dies and then you don't have to worry about
it?
Ms. Anna Nelson. Well, some Presidents live very long.
Mr. Horn. Adams and Jefferson, as a matter of fact.
Ms. Anna Nelson. That's right.
Mr. Horn. They were healthier than we are.
Ms. Anna Nelson. They were very healthy men, and even Harry
Truman lived a long time. So I think that there's no question
about the fact--but even when Presidents died young in the past
the families have taken over their papers, much as President
Kennedy's family, and so there's no guarantee that they will be
opened. But I think that was the reason. I think they felt that
just too many years would pass.
For the historian I have to say that it's wonderful to get
records out that are within the lifetime of the people who
wrote them. Documents don't tell you everything. Especially I
think this is true of Congress where a lot's done in the halls
and elsewhere. But documents even in the executive branch don't
tell you everything, and when you have people to interview, to
counter, you get a much better picture of it. When you don't
have those and you don't have the records, then you're dealing
with people's memoirs.
So in the case of the Nixon administration, for example,
there are a lot of memoirs. And in the case of the Reagan
administration there were a lot of disaffected White House
personnel who wrote memoirs, and you get an incorrect view of
history. You need the documents, and you also need the
interviews.
Mr. Horn. They didn't do anything more in their memoirs
that they did in sort of being a cat scratcher and media of
doing in one of their people, and I don't know how President
Reagan really was able to get through that, because they had
three little cliques there, and I think some of those memoirs
show it rather----
Ms. Anna Nelson. Yes, they do. And I think the next
generation won't understand what went on; and, therefore,
they're going to be reading memoirs as, in fact, history.
Mr. Horn. Let me ask Mr. Carlin and Mr. Whelan this. Is it
correct that the Executive order applies only to Freedom of
Information Act [FOIA], requests?
Mr. Whelan. No, it's not. It applies to all records, ones
that are requested by the former President.
Mr. Horn. Is that your view of it?
Mr. Carlin. That's one of the views. I don't think it's
maybe as clear as it maybe should be, but in practice we'll
certainly accept the interpretation of the drafters in terms of
their intent.
Mr. Shane. Mr. Chairman, may I just say that I find the
answer puzzling. Because the Executive order says it's
triggered at the appropriate time after the Archivist receives
a request for access for Presidential records under 2204(c)(1).
It strikes me as fairly unambiguous as to when the order
applies.
Mr. Horn. Is that the way you all feel on this?
Mr. Scott Nelson. Mr. Chairman, I think that the President
read a proper reading of the words in the order. I think as the
Archivist explained, however, it may not really make that much
difference since in the Presidential Records Act libraries, of
which the Reagan Library is the first one, almost all the
records that are being opened up are being opened up in
response to requests, unlike in the prior libraries where the
President's directions as to the order in which materials would
be processed tended to govern. So to say that this applies to
FOIA requests in the Reagan Library really means that it
applies to almost any document that gets opened up in the
Reagan Library.
Ms. Anna Nelson. But one reason these FOIA requests are
coming in is because there's uncertainty as to when systematic
review will be completed. Generally, if you have a set system,
for example, the State Department pretty much opens in 25-30
years or no more than 30, then people are willing to wait a
little bit. Not everyone. I know----
Mr. Horn. Excuse me. I was curious. Maybe you can tell me
this, that the First World War records were still bottled up in
the Department of State, is that correct?
Ms. Anna Nelson. They were in the archives. However, they
were code records, as I understand them. I am sure Mr. Carlin
could----
Mr. Horn. How do you break something like that loose? I
mean, that's just silly.
Ms. Anna Nelson. Well, all records that are classified have
to go through the agencies that classified them. The archive
has no declassification authority.
Mr. Carlin. That is correct, Mr. Chairman. In fact, as long
as the original agency or in many cases there are several
equities involved in a piece of classified information, as long
as they feel they have justification for keeping it classified,
it stays classified. We can do a lot of work at order to
declassify if we're given guidance to do so, but if we get no
guidance, we're totally dependent on the agency.
Mr. Horn. That's interesting. You are saying we haven't put
up a law to solve that problem?
Mr. Carlin. The past administration's Executive order,
which is still standing today, went a long ways toward pushing
the envelope as far as declassification, setting a deadline.
But that deadline included the fact that, if the creating
agency had justification, they could raise that issue at the
time and there was a process by which they could proceed and
have their day in court, so to speak, and unless they were
overruled at some point by another process the record would
remain classified. And we do have classified records that go
back to the early 20th century.
Mr. Horn. I wonder, Mr. Archivist, whether you can give us
some language to get at that problem. It just seems to me to
have the First World War still around, I mean, was the Kaiser a
secret spy for us and we might hurt German feeling or what?
This is crazy time, that those documents aren't free and
available.
Mr. Carlin. I'm sure my staff will be very happy to work
with your staff on creative ideas that might be of interest to
this committee.
Mr. Horn. Mr. Whelan, the Executive order requires the
Archivist to automatically accept any claim of executive
privilege by a former President even if the Archivist and the
incumbent President, for that matter, believes the claim is
beyond the scope of executive privilege. Is that reading
correct?
Mr. Whelan. I'm sorry, Mr. Chairman. Could I ask you to
repeat the beginning of that question?
Mr. Horn. The Executive order, the one we're talking about,
requires the Archivist to automatically accept any claim of
executive privilege by a former President even if the Archivist
and the incumbent President, for that matter--in other words,
you have got the former President and you have got the
incumbent President and let's say the incumbent President
believes the claim is beyond the scope of executive privilege.
Is that reading correct? Who has it finally? Is it the
incumbent----
Mr. Whelan. In that event--I'm sorry.
Mr. Horn. Isn't it basically incumbent, the President
there, and they can overrule the former Presidents?
Mr. Whelan. In that event, pursuant to the Executive order,
the incumbent President directs the Archivist not to make the
records available until such time as the incumbent President
and the former President agree on disclosure.
I should add, however, that in the event that the former
President makes a claim that in the incumbent President's view
is outside the scope of a constitutionally based privilege, the
incumbent President, pursuant to this Executive order, need not
concur in that privilege decision.
Mr. Horn. Is this consistent with the President's
obligation to see that the laws are faithfully executed?
Mr. Whelan. Absolutely, Mr. Chairman.
Again, the central recognition in the Nixon v.
Administrator of General Services, case is that the former
President has a constitutional privilege that he may invoke.
President Bush has determined that the best way to provide
procedures with respect to such privileges is pursuant to his
Executive order. In the same way that the court recognized in
Nixon v. Administrator of General Services, that the incumbent
President must be presumed to be in the best position to assess
the present and future needs of the executive branch, so
President Bush has determined that this Executive order is the
best way to respect the privilege claims that the former
President has with respect to the records created during his
administration.
Now, again what we are trying to do here is create
procedures for an orderly, workable process that in the end we
believe will facilitate disclosure in an expeditious manner
while respecting the former President's constitutional
privilege. I think we can look to the lessons of history. As I
indicated at the outset, under the old regime where the former
President was under no legal obligation whatsoever to make his
records available, former Presidents always did so, and there's
simply no reason to anticipate that under the much more limited
protections that the former President now has that he will seek
to withhold more documents than he previously did.
Mr. Ose. Mr. Chairman, can I chime in here for a minute?
Mr. Horn. Ten minutes.
Mr. Ose. Thank you.
Mr. Whelan, I am not quite sure I understood your question.
Under the old regime that would have been under President
Reagan's Executive order, you suggested that the past
Presidents were under no obligation to release. It's my
understanding that they only had three bases on which they
could refuse to release, that absent one of these three bases
they could not refuse to release.
Mr. Whelan. Congressman Ose, pardon me for the ambiguity.
When I referred to the old regime, I meant the regime prior to
the Presidential Records Act.
Mr. Ose. Prior to 1978?
Mr. Whelan. That's correct.
Mr. Ose. Thank you for clarifying that.
I want to follow up with Governor Carlin on something.
Chairman Horn has asked about the 68,000 pages of records that
President Reagan's administration is involved in. Do you have
any information on where former President Reagan's
representatives are in reviewing these records and whether they
are likely to object to their release or have objected or have
communicated in any manner whatsoever about whether or not to
go ahead and release these records?
Mr. Carlin. I don't think that there's any way I can answer
that today, because I think they were, one, waiting for the
final product and will now with the new Executive order make
their decision which would allow them to object.
Mr. Ose. Let me just make sure I got this right. There is a
request for the release of these 68,000 pages that predates
last Thursday?
Mr. Carlin. Pardon?
Mr. Ose. There's a request for these 68,000 pages from the
Reagan administration days that was existing prior to last
Thursday?
Mr. Carlin. Yeah. There was 68,000 pages shortly after the
first of the year that we advised both the former and the
incumbent that these papers were ready for release.
Mr. Ose. And did I just understand you to say that the
Executive order that was issued last week will be applied
retroactively to a request predating the Executive order?
Mr. Carlin. It's my understanding that is the case, because
these records have not been OKed, and that they will have the
opportunity to insert--that's what my counsel has advised me
that the interpretation will be, not ours, but how the
implementation will be from the current administration, that
the former will have the opportunity to exert executive
privilege on those records. They can't go back to records that
have already been released. We have 5.3 million papers that are
out there, pages of records.
Mr. Ose. I have a request in to you dated March 5 of this
year for two items. Are you going to apply last Thursday's
Executive order retroactively--now that you found those items
retroactively to deny me access to those items?
Mr. Carlin. Have we provided you access to them?
Mr. Ose. Not yet. Are you going to apply this Executive
order retroactively to two items that you've told us you found
pursuant to a request of March 5 of this year?
Mr. Carlin. I would have to check with staff. I would not
want to comment for sure in terms--it would depend on exactly
what steps had been taken and where we were in the process.
Mr. Bellardo. If I could just add, we have been in--these--
if I remember correctly, these are records of the previous
administration which there has been a congressional request
for.
Mr. Ose. Correct.
Mr. Bellardo. I believe that this Executive order lays out
an abbreviated process, and I would defer to Mr. Whelan on that
in the case of special access requests, as opposed to what we
are talking about in the Executive order for the period after
12 years. So you would have a different set of processes for
these special access requests. But I would defer to you.
Mr. Ose. Mr. Whelan.
Mr. Whelan. Congressman, let me first say, with respect to
the 68,000 documents, that the administration is committed to
processing those documents expeditiously and we expect that
those documents will be available expeditiously.
On your question----
Mr. Ose. Before you leave that, what does that mean? Does
that mean 30 days, 60 days? Because we have been waiting 9
months.
Mr. Whelan. Well, the wait that you referred to is I think
the desire to process those records consistent with the
procedures. And I don't know the timetable, but I think it will
be relatively soon.
Mr. Ose. What does that mean?
Mr. Whelan. I am not in a position to say, sir. That's the
information I have received.
Mr. Ose. Could we direct a letter to somebody who's in a
position to say, if you could give us their name?
Mr. Whelan. I will provide a name for you.
Mr. Ose. I appreciate that.
Mr. Whelan. Now, with respect to your other question, I am
not familiar with the particular matter you have in mind. I do
not think that the concepts of prospective and retrospective
are meaningful in this context. An Executive order applies from
the date forward to the conduct of the executive branch, except
as otherwise provided.
Mr. Ose. You're telling me you are going to apply it
retroactively?
Mr. Whelan. I'm saying I am not familiar with the
particular matter that you raised. I simply don't know about
it.
Mr. Ose. Well, the logic--I don't want to be argumentative.
Never mind. I hear you loud and clear, and I can tell you that
I am going to get those documents. OK?
Now I want to go to Section 2204 of the Presidential
Records Act--and this is directed to you, Mr. Whelan--
2204(c)(2), which you cite in your testimony that the act shall
not be ``the section provides that the Act shall not be
construed to confirm, limit, or expand any constitutionally
based privilege which may be available to an incumbent or
former President.''
We've had some discussion whether this is a common law
privilege or a constitutional privilege. More erudite people
than me will resolve that.
The question I have is, when we talk about confirming,
limiting, or expanding any constitutionally based privilege,
when I look at 2204(a) (1) through (6), it lists the items that
are subject to restrictions, and down under item (a)(5) it
talks about confidential communications. Then I look at the
Executive order in paragraph--or section (2)(a) and it clearly
does not talk about confidential communications between the
President and his or her advisors but communications of the
President and his or her advisors. The question I have is that
you have eliminated or this Executive order eliminates the word
confidential which to me is an expansion because it goes from a
select group to the entire portfolio.
Mr. Whelan. Congressman--I'm sorry.
Mr. Ose. Can you reconcile that?
Mr. Whelan. Certainly. Section 2204(a) does not purport to
be a definition of constitutionally based privileges, and the
fact that there may be some overlap between the provisions that
govern the first 12 years and the scope of constitutionally
based privileges does not create any conflict whatsoever.
Obviously, communications protected by the constitutionally
based privilege, if the President gives a communication on
television, no one's going to claim that is protected. So I
think you are going to find in practice constitutionally based
privileges protect confidential communications, but there's no
particular reason to borrow language from a section which has
nothing to do with constitutionally based privileges in
describing the order of----
Mr. Ose. But it's your testimony, not mine. That's why I'm
asking. It's not my testimony. It's yours.
But I come back to my central question. Why was the word
``confidential'' eliminated from the Executive order of last
Thursday? Why was it expanded to all communications?
Mr. Whelan. My point is there is no expansion, and I do not
believe that--we are certainly not maintaining that
nonconfidential communications--so far as I am aware of the
scope of the privilege, it probably does not apply to such
communications. But the fact that we have not included that
word here is not some effort to edit a section of the
Presidential Records Act that doesn't relate to this.
Mr. Ose. I want to go back to a question I asked Mr. Shane
earlier. Are you familiar with the 8th Circuit or the D.C.
Court's rulings as it relates to, for instance, Mr. Lindsey's
claims?
Mr. Whelan. I am not. I am told, however, that the
description that another panelist gave is not accurate, but I
do not know that myself.
Mr. Ose. Thank you, Mr. Chairman. I have got more.
Mr. Horn. Go ahead. We're very liberal in this group.
Mr. Ose has some questions here, and then we're going to
wrap it up.
Mr. Carlin. Mr. Chairman, would be it be possible for me to
respond to an earlier question from Mr. Ose and then excuse
myself, if at all possible?
Mr. Horn. Sure.
Mr. Ose. Are you going to talk about the retroactive----
Mr. Carlin. Yes.
Mr. Ose [continuing]. Application?
Mr. Carlin. Yes, I am.
Mr. Ose. We may not be out of here very soon.
Mr. Carlin. I actually think you might be pleased in some
respect. Because one of the things we've been told here today
and that has been told to us by this administration over the
last several weeks and months is that, in practice, this is
going to work much better than your fears.
I was advised by staff in the interim from the time you
asked the original question that the two records you make
reference to we have just found. They have not been shared with
either the former or the incumbent. We will now test the
current process. We will have an example now to take those two
records quickly to the former--to the current incumbent, and
the process would be that, if it follows like it should, that
within 90 days we should have an answer and hopefully the
records to you.
Mr. Ose. Is it 90 days or is there some other time
limitation?
Mr. Carlin. Well, it could be 10 days, it could be 5, it
could be immediately. But 21 days they're now saying.
Mr. Ose. Under the new Executive order.
Mr. Whelan. It's 21 days under section 6 of the new
Executive order, that's correct.
Mr. Ose. It used to be 30 and 30----
Mr. Carlin. Oh, that's on special. Excuse me, sir. Yes, on
special access it's to move faster. But what I'm saying is we
will have an opportunity to find out with experience how this
is really going to work and the record we will take to both
sides and see how they want us to proceed.
Mr. Ose. All right. I appreciate that. I just want to be
very clear. I certainly want to look at those two documents.
Mr. Carlin. And we have them. We've now found them, and we
will follow the process, follow the law and Executive order to
hopefully give you the opportunity to see them.
Mr. Ose. I appreciate your cooperation.
Mr. Chairman, if I might go on.
Mr. Horn. You certainly can.
Mr. Ose. Mr. Whelan, under section 4 of the Executive order
last Thursday, there is a provision that, with respect to
noncongressional requests, ``absent compelling circumstances,
the incumbent President will concur in the privileged decision
of the former President.'' With respect to congressional
requests, however, no such standard is applied. In effect,
therefore, the Executive order makes it easier for----
Mr. Horn. Excuse me. The Archivist has another appointment.
Will you have your deputy here so he can answer some of these
questions that Mr. Ose might have?
Mr. Carlin. Unfortunately, we have the same obligation
we're trying to get to. I will have staff that will remain
behind that are sworn in and would be able to testify, and
obviously we will get any answers back post committee action if
necessary.
Mr. Horn. OK. Mr. Ose.
Mr. Ose. To continue, in effect, therefore, the Executive
order makes it easier for the incumbent and former Presidents
to exercise independent vetoes over congressional requests. The
question is, why are congressional requests under this
Executive order treated, from my perspective, less fairly than
noncongressional requests?
Mr. Whelan. Congressman Ose, if I heard your question--I'm
sorry, your voice came through softly. But I believe the
opposite is the result. That is, section 4 operates as a rule
that the incumbent President will concur in a decision of the
former President to request withholding of records. There is no
such rule with respect to requests under section 6. Therefore,
that makes it easier for Congress.
Mr. Ose. Does section 6 trump section 4?
Mr. Whelan. Section 6 is independent of section 4.
Mr. Ose. How do you resolve an incumbent President
declining to provide access and Congress seeking to exercise
its rights under section 6?
Mr. Whelan. Ultimately, that is what we have the third
branch for. The courts can decide that when push comes to
shove.
Mr. Ose. What's the legal authority for the establishment
of the 21 and 21-day timeframe within the Executive order
beyond what is permitted by the Constitution and the
Presidential Records Act? What's the basis for the 21 and 21-
day windows?
Mr. Whelan. Well, it is necessary to have procedures that
accommodate the constitutional privileges of the former and
incumbent Presidents. When you refer to time periods beyond the
Constitution or beyond statute, I don't know what--sorry. I
just don't know what you're referring to there.
Mr. Ose. Let's focus on the statute then. The Presidential
Records Act has a certain timeframe that is established in
statute for a response back and forth. That's being changed.
What is the basis for the change? All right. It was a 1989
Reagan order that had the 30-day timeframe for a response and
what have you and yet that's now being changed under this
Executive order. And my question is, what's the legal authority
for such a change?
Mr. Whelan. Well, first of all, I would call to your
attention that the 1989 Executive order does not simply provide
a 30-day rule. Among other things, that 30 days can be extended
to no limit. But, beyond that, as a purely legal matter, the
answer to your question is that just as the President had the
authority to issue the Executive order in 1989 so he has the
authority to issue the Executive order in 2001.
Mr. Ose. Does he have the authority to establish a review
period of any length whatsoever?
Mr. Whelan. Yes, he does. There is certainly no conflict
with any applicable constitutionally valid statutory provision.
Obviously, if there were such a conflict, that would be a
different issue.
Mr. Ose. Is it the position of the administration that
under the Presidential Records Act the President has the right
to establish a time window of whatever he or she determines?
Mr. Whelan. As in 1989 so in 2001 the administration
understands that the Presidential Records Act does not purport
to set time limits with respect to assertion of
constitutionally based privileges and with respect to
procedures implementing those privileges.
Mr. Ose. And that would be regardless of which committee is
asking for it, whether it's Senate, House, what have you? I
mean, the President can establish the timeframe, and the
timeframe is the timeframe.
Mr. Whelan. That's correct.
Mr. Ose. OK.
Mr. Horn. Well, is it correct in terms of, say, 30 days,
that what the President could do is to do the 30 days or
because of some overload or loss of archivists or whatever to
change things that they might do less than that, or would they
do more than that, in which case there being the article one,
they're taking out of the Congress this? What do you think on
that, either way?
Mr. Whelan. Well, surely, Chairman Horn, the time limits
need to be reasonable in terms of implementing the
constitutional protections. I would emphasize that I believe
there seems to be a reading of the 1989 Executive order that
construes its time provisions in the light most favorable to it
and a reading of this Executive order that construes the time
provisions in the opposite way. I would call to your attention
that section (3)(b) specifies that the former President shall
review those records as expeditiously as possible. So there's
certainly no effort here to delay.
Mr. Ose. Is there a requirement under--excuse me, Mr.
Chairman, I am sorry.
Mr. Horn. No. Go ahead.
Mr. Ose. Under FOIA is there a requirement for timely
response to a request for records?
Mr. Whelan. The Freedom of Information Act has its own time
limits.
Mr. Ose. So after 12 years there's a time statute, if you
will, by which somebody has to respond to a request for
records; is that correct?
Mr. Whelan. I could not hear your question. I apologize.
Mr. Ose. If I understand how this would work, is it under
12 years under a FOIA request there is a statutory time window
during which a response must be proffered?
Mr. Whelan. That is my understanding. I believe from what
the Archivist was saying there may be a question as to how
those FOIA time limits are operating in practice.
Mr. Ose. My understanding is that FOIA says there's 20 days
to reply.
Mr. Whelan. I believe that is the case, at least for
requests that are not burdensome. I am not an expert on FOIA.
Mr. Ose. If I understand correctly from the new Executive
order, if Congress puts forward a request for records after 12
days, the President can determine the period of time during
which a response can be made. Am I correct or incorrect?
Mr. Whelan. Under the Executive order----
Mr. Ose. For a congressional request.
Mr. Whelan. Yes. Under section 6, the former President
shall review the records in question and within 21 days of
receiving the notice from the Archivist indicate to the
Archivist his decision with respect to any privilege.
Mr. Ose. So it's a 21-day window for a request from
Congress or the courts and it's a 20-day window under FOIA?
Mr. Whelan. The FOIA simply does not apply and does not
purport to apply to assertion of constitutional privileges
under this act.
Mr. Ose. I'm just trying to get to response windows. You
know, I'm trying to figure out what difference, if any, there
is in response windows under FOIA versus the Executive order. I
mean, it's nominal, if anything. It's 20 days in one case and
21 in the other, from what I understand; is that--I mean, the
rest of the panelists? Professor Nelson.
Ms. Anna Nelson. Well, the response is a letter saying we
received your request. That's the response you have to get back
in 10 or 20 days. If the information, for example, is security
classified, you may wait 7 years. I have. You can wait 5 years.
You can wait 30 days. But the request must be responded to to
the public simply by a letter saying we've received your
question. I hope that hasn't happened with Congress.
Mr. Horn. It did, and then we did get some appropriations
to move these things along in the various executive agencies.
Ms. Nelson. Because many of them do not have the staff to
handle that.
Mr. Shane. Mr. Ose, just to follow up, both panelists have
indicated that the practice may not, with regard to all
agencies, may not comply in fact with the 20-day rule of FOIA.
But the 20-day rule of FOIA--what the law requires is simply
not that you get notice of the receipt of your request, the law
actually does require that the agency tell you within 20 days
whether it will comply with your request.
That does raise an interesting question, because since the
Presidential Records Act says that following the expiration of
restricted access, requests are to be handled pursuant to FOIA
except with regard to exemption 5, that could well be read as
setting that same 20-day limit, which would mean on its face
any procedure that requires the Archivist to wait longer than
20 days directs him to violate the terms of the Presidential
Records Act.
Mr. Ose. I wonder whether the Executive would prosecute the
Archivist under a situation such as that, not that I am
suggesting that.
Mr. Shane. I think it is not a criminal offense.
But, Mr. Ose.
Mr. Ose. You see my concern here is it seems to me that you
can--the Executive can indefinitely extend the response period
by claiming--or writing a new Executive order or whatever it
is.
Mr. Nelson. Mr. Ose, if I could respond to that concern. I
think you will find in the terms of this Executive order, they
don't even have to write a new Executive order to extend the
time. All they have to do is request an extension of time, and
it is automatically granted to them under this Executive order.
So the 90-day period for responding to requests for access
by a citizen is 90 days, unless the former President requests a
further extension of time, in which case the Archivist is
forbidden to release the records.
As to the congressional request, it is 21 days unless
either the incumbent or the former President says this request
is burdensome and I would like more time, in which case they
get the discretion to set the amount of time that they take to
respond.
And further, with respect to congressional requests, if
either one of them says no, under this Executive order Congress
is out of luck. So I think that is yet another respect in which
the order departs from the language and spirit of the PRA. And
I would further add that the notion that it is up to the
President, by Executive order, to set all of these timeframes
seems contrary to another provision of the PRA, which grants
the Archivist the authority to promulgate regulations through
the lawful notice and comment process for implementation of the
act and, in fact, the Archivist has promulgated such
regulations which themselves set timeframes during which claims
must be made to restrict access, and the Executive order's
timeframes are different from those set forth in the archives
regulations.
Mr. Whelan. Congressman Ose, if I may. The time limits
under this Executive order are effectively identical to the
time limits under the 1989 Executive order.
On the second point, I simply do not see how the delegation
of authority to the Archivist to issue regulations can be seen
to detract from the President's inherent authority to issue
Executive orders. The Archivist answers to the President. I
don't think there is any serious legal issue there.
Mr. Ose. I have but a couple more questions, if you will.
Mr. Horn. Go ahead.
Mr. Ose. We have talked about the legal basis for the new
exemptions, whether it is common law or constitutionally based.
There is clearly some disagreement there. I have asked why this
word ``confidential'' was removed from the new Executive order
and why the previous three exemptions are now four. Those are
all legal questions.
Let me go to policy. What is the policy basis for the two
new broad categories of records with access restrictions, that
being the--I got it here, don't leave me--the Presidential
communications; and then, second case, legal advice/legal work.
I mean, national security and deliberative process remain, law
enforcement is dropped, the Presidential communications; and
then in the second case, legal advice/legal work is added.
What is the policy basis for that?
Mr. Whelan. Congressman Ose, there is no expansion,
therefore there is no policy basis for an expansion. This is
just simply a different way of listing matters. It is a
listing. Were it not exhaustive, there could be confusion as to
what happens when there is an assertion of a constitutionally
based privilege that isn't listed.
Again, there is no expansion, there is no policy basis for
the expansion.
Mr. Ose. Is this new Executive order--I mean, I asked this
question earlier, and I would hope that whether in writing or
otherwise we can get a response. Is this new Executive order
consistent with the Eighth Circuit's or the D.C. Court's
decisions?
Mr. Whelan. If you are asking me about the decisions
before, which I told you I am not fully aware of, I obviously
can't answer your question. This Executive order is fully
consistent with applicable law.
Mr. Ose. I think there is some question here about that.
Professor Shane.
Mr. Shane. Just to echo I think what Mr. Nelson said
before, there may be examples. I think this is consistent with
the Lindsey case in which a President's conversation with a
senior advisor who is an attorney might be a Presidential
communication and privileged on that ground.
But, my understanding, my recollection--I confess I didn't
read the case for today. My recollection of the case is, except
for that Presidential communications privilege, there is not a
separate constitutionally based attorney/client privilege; that
otherwise the attorney/client privilege exists as it would
between any client and any attorney.
Mr. Ose. Thank you.
Mr. Whelan, if I might, I would like to direct a written
question at you, and then you can provide a response
accordingly.
Mr. Whelan. OK.
Mr. Ose. Subsequent to this hearing--and I want to be
clear; I am not averse to what you are trying to do, which is
protect the President's ability to act. But I have a slightly
different role here in the legislative branch, and I am trying
to exercise that. And I will tell you, someday I am going to go
back to that position of just being a citizen, ``just being a
citizen,'' and I expect my leaders to share with me, to the
extent that they can, every piece of information on which they
base their decisions.
I am just absolutely convinced that the American people can
face up to that and are willing to do so. And I have to say
that the way I read this Executive order last Thursday, with
all due respect, it is an expansion of what had been the regime
previously.
With that, Mr. Chairman, I will yield back the rest of my
time.
Mr. Horn. I thank the gentleman. And I would like to thank
the staff that put the hearing together: J. Russell George, the
staff director and chief counsel of the Government Efficiency
Subcommittee. On my left here is Henry Wray, the senior counsel
for this; Earl Pierce, professional staff; Bonnie Heald, deputy
staff director; Darin Chidsey, professional staff; Dan Wray,
clerk of the Census Subcommittee, who has helped us in this
hearing; Jim Holmes, intern; Michael Sazonov, intern; David
McMillen, for the minority; and Jean Gosa for the minority.
And thank you, reporters Mark Stuart and Lori Chetakian.
Let me just note that this has been an enlightening
hearing, and we must ensure that the spirit of this law, the
Presidential Records Act, needs to be upheld. And in light of
the issues raised today and research conducted by the committee
staff, the administration should revisit the issue.
In a meeting yesterday, with Judge Gonzalez, the counsel to
the President, he graciously said that any suggestions the
subcommittee might have would be welcomed. And we plan to take
him up on that offer.
And so we--any of you want to put some more written views
for the hearing record, we will have 2 weeks for that. And with
that, we are adjourned.
[Whereupon, at 4:10 p.m., the subcommittee was adjourned.]
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THE IMPORTANCE OF ACCESS TO PRESIDENTIAL RECORDS: THE VIEWS OF
HISTORIANS
----------
THURSDAY, APRIL 11, 2002
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 2:03 p.m., in
room 2154, Rayburn House Office Building, Hon. Stephen Horn
(acting chairman of the committee) presiding.
Present: Representatives Gilman, Morella, Horn, Ose,
Waxman, Maloney, Norton, Kucinich, Tierney, Schakowsky, Watson,
and Lynch.
Staff present: James C. Wilson, chief counsel; Robert A.
Briggs, chief clerk; Robin Butler, office manager; Elizabeth
Frigola, communications director; Joshua E. Gillespie, deputy
chief clerk; Nicholis Mutton, assistant to chief counsel;
Corinne Zaccagnini, systems administrator; Phil Barnett,
minority chief counsel; Karen Lightfoot, minority senior policy
advisor; David McMillen, minority professional staff member;
Ellen Rayner, minority chief clerk; Jean Gosa, minority
assistant clerk; and Earley Green, minority assistant clerk.
Mr. Horn. A quorum being present, the Committee on
Government Reform will come to order. I ask unanimous consent
that all Members and witnesses' written and opening statements
be included in the record. Without objection, so ordered.
I ask unanimous consent that all articles, exhibits and
extraneous or tabular material referred to be in the record.
Without objection, so ordered. I ask unanimous consent that a
binder of exhibits for this hearing be included in our record.
Without objection, so ordered.
Chairman Burton unfortunately is unable to be here and
asked that I chair this important hearing, and I am reading now
a statement of Chairman Dan Burton, April 11, 2002. The
Chairman says,
I regret that I'm unable to be present for this very
important hearing. Unfortunately, there is a serious illness in
my family, and I'm unable to be in Washington. As you are
aware, I have strong feelings about archived Presidential
records and the ability of the American people to obtain access
to these valuable resources. It is my belief that Executive
Order 13233 is not appropriate. The President is doing a great
job, and he has my unconditional support. Unfortunately, he got
some bad advice on this issue. This is not the first time I
have said this. Last month we were finally given access to
documents that President Bush had claimed were subject to
executive privilege. Those documents relate to law enforcement
corruption in New England and goes back to 1960's and that has
resulted in $2 billion of civil litigation. It was right for
Congress to fight that fight, and I'm grateful that we were
finally able to reach an accommodation. It is my hope that
Congress will show similar diligence when it comes to
correcting the excesses of Executive Order 13233. I urge my
colleagues, Republicans and Democrats, to support the
legislation introduced this afternoon by Representative Horn. I
particularly want to thank Representative Horn for chairing
today's hearing and for his and his staff's hard work on this
issue.
From the chairman of the Committee on Government Reform,
Dan Burton.
Today's hearing involves public access to the records of
our former Presidents. The Presidential Records Act of--are you
speaking for the--well, I am going to wait until the ranking
member is here. Do you want to--the ranking member today is the
usual one, which is the ranking member from California, Mr.
Waxman. And I will finish this one paragraph and then you have
got a lot.
Today's hearing involves public access to the records of
our former Presidents. The Presidential Records Act of 1978
declared for the first time that the official records of former
Presidents belong to the American people. The act gave the
Archivist of the United States custody of those records and
imposed on the Archivist ``an affirmative duty to make such
records available to the public as rapidly and completely as
possible, consistent with the provisions of this act.''
Now I am delighted to yield 5 minutes or whatever he needs
to the gentleman from California, Mr. Waxman, the ranking
member.
[The prepared statement of Hon. Stephen Horn follows:]
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Mr. Waxman. Thank you very much, Mr. Chairman. I want to
commend you for holding today's hearing, and I want to thank
this distinguished panel of witnesses for appearing at the
hearing today.
What is at stake is extraordinarily important: the public's
right to know how its government operates. Unfortunately, the
Bush administration is undermining the public's right to know
and Congress's responsibility to oversee the administration.
Vice President Cheney chaired a taskforce that developed the
administration's energy policy. One year ago next week,
Representative Dingell and I asked the General Accounting
Office, the nonpartisan watchdog agency for the Congress, to
find out who attended those taskforce meetings, who were the
professional staff, who did the taskforce members meet with,
and what costs were incurred in the process. The Vice
President's office has refused to comply with that request,
forcing the Comptroller General to go to court for the first
time in the history of this country.
Also 1 year ago, the Secretary of Commerce refused to
release corrected census counts, claiming they were
deliberative documents. As a result, I and 15 of my colleagues
from this committee were forced to go to court. The court
granted summary judgment in our favor on January 18, 2002, and
ordered Secretary Evans to turn over the adjusted census data.
Despite the court order, the administration continues to resist
releasing this information.
In October 2001, Attorney General Ashcroft issued guidance
to agencies on implementing the Freedom of Information Act. The
thrust of that guidance was when you have discretion, use it to
withhold documents. You can be assured the Department of
Justice will defend your decisions, wrote the Attorney General.
The list goes on and on. One particularly objectionable aspect
of this secrecy campaign is the Bush Executive order
restricting access to Presidential records, which is the
subject of this hearing. In this Executive order, the President
tries to turn the law upside down, making it more difficult to
get access to Presidential records. The first victims of this
attack are the historians who pour through thousands of pages
of documents to piece together the story about what happened
within past administrations. Our witnesses today can each speak
to how important these records are and were to their work.
Ultimately, however, the real victims are the American
people who are denied their right to an open government. There
is a bipartisan consensus that the President's Executive order
was a serious mistake, and I am very pleased that I will be
joining with subcommittee Chairman Horn, subcommittee Ranking
Member Schakowsky, and full committee Chairman Burton in
introducing the Presidential Records Act Amendments of 2002.
This legislation will nullify the President's Executive order
and codify in statute procedures based on the Reagan Executive
order that are designed to expedite the release of Presidential
records. And I look forward to the testimony today, and I hope
that my colleagues on this committee will join Representatives
Horn, Schakowsky, Burton and me in supporting our important
open government legislation. Thank you.
[The prepared statement of Hon. Henry A. Waxman follows:]
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Mr. Horn. I thank the gentleman, and now the gentlewoman
from New York, Mrs. Maloney.
Mrs. Maloney. Thank you very much. I feel very strongly
about this. It really, really flies in the face of everything
we are doing. Currently right now I am in a markup of the
Financial Services Committee, which is attempting to address
the abuses in the Enron scandal, and one of the prime focuses
is disclosure, information, transparency, and what are we doing
here but reversing this. Presidential papers and other
documents should not be kept secret, and elected officials have
to remember we are public servants. We are elected to serve,
and our work belongs to the people of this country who either
voted for us or did not vote for us. And I feel that this is so
important that we see a bipartisan leadership coming together
with my good friend subcommittee chairman, Mr. Horn, who has
championed many good causes, Chairman Burton, we have had many
disagreements with him, with the Ranking Member Waxman and
other members of the committee, but he joins us, along with
Ranking Member Schakowsky, with legislation to nullify or
dissolve this ill-conceived Presidential Order 13233. And I am
extremely proud to be a co-sponsor of it.
I would like to say that the leading opinion molders in
this country agree, the Los Angeles Times, on this action. On
November 1st they called it ``an attack on the principle of
open government.'' They called it ``the dark Oval Office.'' The
Washington Post called it a ``flawed approach on records.'' The
USA Today in their editorial called it ``self-serving secrecy,
Bush seeks to thwart release of the administration papers.''
And the New York Times called it ``cheating history.''
So I would like to request that all of these editorials in
support of the public's right to know, that it be placed in the
record.
And I----
Mr. Horn. Without objection.
[The information referred to follows:]
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Mrs. Maloney. Thank you, Mr. Chairman. And it is often
quoted that Supreme Court Justice Louis Brandeis said, and it
is as correct today when he said it many years ago, ``sunshine
is the best disinfectant,'' and there is a public right to
know. And as the people's representatives, we must never forget
this fundamental right.
I believe that Ranking Member Waxman outlined some
outrageous examples of--even with a court order to release the
information on the census that the current administration is
thwarting that. This is information that the taxpayers pay for
that they should have, and I regret that I am in a banking
committee Financial Services Committee markup on really
basically this same point, transparency, the openness of
information. I support this legislation, and I appreciate very
much the leadership moving this hearing forward. Thank you.
[The prepared statement of Hon. Carolyn B. Maloney
follows:]
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Mr. Horn. I am shocked that you would go for financial
matters rather than morality. So--but I----
Mrs. Maloney. We are trying to put morality into financial
matters. We are putting morality into financial matters and
really the theme is disclosure, disclosure, disclosure,
transparency. And then to move and try to block records that
belong to the people that were created with their tax dollars,
I find absolutely outrageous. And in fact I think we should
have two or three more hearings on it. Thank you. Bye bye.
Mr. Horn. Do you want to do them this afternoon?
OK. I will now yield to the gentleman from Massachusetts,
Mr. Tierney.
Mr. Tierney. Thanks, Mr. Chairman. Thanks for having this
hearing, highlighting an area that we all think is extremely
important. Thank you to all the witnesses for listening through
all these opening statements before we hear from you, and I
will say up front that I also have to leave, not to go to the
Financial Committee, but to deal with a hearing before the Ways
and Means Committee on welfare reform and I do not want to try
to equate or rank one above the other. It is just that I have
to be there. But what you said and what you provided in your
written remarks are certainly helpful and useful, and I thank
you for that and you can trust that they will be reviewed and
taken to heart. We have got a serious problem with this
administration, as I think you have heard from a number of
people on both sides of the aisle, with this proclivity toward
secrecy, toward keeping things under wraps, toward not sharing
with the American public or even Congress information and
documents that ought to be made available and that would be
very useful for the democratic process if they were made
available. This morning members of this committee in fact
received a so-called briefing from Homeland Security Director
Tom Ridge, but unfortunately this briefing was somewhat less
than that. It was also held behind closed doors when it should
have been held in full public view. The committee was not
seeking classified information from Governor Ridge, and there
really was no reason why he could not have subjected himself to
the congressional questioning and to the public light when we
have such a serious issue as homeland security. Because of his
vast responsibility on operational, budgetary and planning
functions, it should have been a formal hearing. Yet the
administration, as in other matters, has stonewalled efforts to
achieve that goal.
We should not necessarily be surprised, I guess, that the
White House is taking these actions. For more than a year,
Members of Congress and public interest groups have struggled
to obtain from this White House documents related to its energy
taskforce and I think Mr. Waxman went into that in some detail
of how it took a lawsuit just to get a small amount of
documentation that should have been provided and there is much
more that should be released. They will confirm the worst fears
of environmentalists, that when they were preparing the energy
plans, the White House listened almost exclusively to energy
groups and industry heavyweights and largely ignored the
concerns of the environmental community. So it is no surprise,
I guess, that the administration sought to hide their
decisionmaking process, but at the same time, it has shown the
administration's unwillingness to publicly disclose other
important information, including meetings between
administration officials and Enron executives. And in a memo to
executive branch officials, the Attorney General stated his
support for the rejection of Freedom of Information requests,
and that is something I think is extraordinary and, before his
statement, unheard of.
Even more egregiously in some sense is the administration's
invocation of executive privilege over Justice Department
documents that this committee sought for its efforts to uncover
why several men were sent to prison in Massachusetts for more
than 30 years when Federal law enforcement officials knew of
their innocence. It is an absolute disgrace that the
administration has claimed executive privilege and kept from
the public light documents that would shed information on how
we might make sure that something like that never happens
again.
When last November the signing of the Executive Order 13233
was completed, the administration served notice that it would
work hard to maintain secrecy over its White House documents,
not only of this White House but for past Presidents, and it is
surprising that this President would be even more concerned
about past Presidents' documentation than they appear to be,
but it is simply wrong for him to assert authority over those
documents if it is being done for political reasons. So I am
pleased that you all have come here today to share your
perspective on this and your wealth of information and
knowledge. I think you can certainly speak to the importance of
access to Presidential records. This is just one area that I
join my colleagues in hoping the administration will reverse
its course and allow the public access to information to which
it is entitled. I want to thank you all for being here. Again I
apologize for my early exit, but I want you to really
understand that what you provide here today is useful and
helpful and very much appreciated. Thank you.
Mr. Horn. I thank the gentleman. Does the delegate from the
District of Columbia want to file a statement as read or----
Ms. Norton. I would like to make a few remarks, Mr.
Chairman.
Mr. Horn. OK. It will be about 3 or 4 minutes, if we could.
We need to get to the----
Ms. Norton. Well, indeed I apologize that I am going to
make a few remarks because of the importance of this hearing,
but I have another hearing simultaneously here and in the
Senate. But I had to stop by this hearing to say first I am
pleased to be a co-sponsor of your bill, Mr. Chairman, to amend
the Presidential Records Act and to commend you for having this
panel come to testify today. Perhaps all of us are students of
history. My two degrees in history I think have been perhaps
more important to me than my law degree. It is with some
understanding of history that we should approach our daily
tasks here, and we do not always get to do that, to have that
understanding of history. Of course, we turn to those who look
deeply into the record. We are here talking not about current
history but about the--current matters, but about the kind of
understanding of the past that should inform any responsible
legislature. It is time that these matters were clarified as
they can be clarified only through legislation. I think we will
be all the wiser when we hear today's testimony. I apologize to
today's witnesses for whom I have the most profound respect. I
assure them that I will be looking closely at their testimony.
Thank you, Mr. Chairman.
Mr. Horn. I thank the gentlewoman. I want to give a few
more paragraphs, and then we will get to the Members looking at
us and the very distinguished--oh, do you want to make a
statement?
Ms. Schakowsky. I would like to.
Mr. Horn. Yes. Great.
Ms. Schakowsky. Thank you, Mr. Chairman. I appreciate it.
Last November, President Bush tried to subvert the intent of
Congress when it passed the Presidential Records Act. Today we
begin the process of undoing that subversion. I am pleased that
we have worked together to produce the bipartisan bill that
addresses public access to Presidential records. The
Presidential Records Act was passed by Congress in 1978 to
assure that Presidential records created at the expense of the
public became available to the public 12 years after the
President left office. This law was designed to inhibit the
kind of secrecy and dirty tricks that characterized the Nixon
re-election campaign. If officials know their acts will become
a matter of public record in the future, Congress reasoned,
they will alter their behavior today. If officials know their
acts will become a matter of public record in the future,
President Bush reasons, they will not speak honestly. I find
that formulation troubling. What is it about the advice the
President's advisers are putting forward that they do not want
the public to know? Did the President and his advisers have
conversations about Enron that would damage his reputation if
they became public? Have his advisers told the President that
his tax cut benefits the wealthy while endangering the Social
Security Trust Fund? Are the President's advisers telling him
that they have developed an energy policy that will fatten the
wallets of his oil buddies in Texas? If so, I can understand
why they would want to keep their advice secret.
However, if the President's advisers are giving him their
honest opinion about what is best for the country, I do not
understand why they would want to hide. The opinion of the
President's advisers is generally well known. The Bush
Executive order permits an incumbent President to block the
release of papers from a former administration, even if that
President has asked the papers be released.
The Bush Executive order allows a former President to claim
executive privilege to block the release of documents without
any independent review of the legitimacy of that claim. The
order even allows a former President's family to make this
claim after the President's death. The Bush Executive order is
not about protecting state secrets or homeland security. Those
concerns are already addressed in the law. Rather, this
Executive order allows the Bush administration to lock away
documents that would reveal how Presidents Reagan and George
H.W. Bush handled affairs in Afghanistan. This Executive order
can be used to make sure the rest of the Iran contra story is
never told. The more the public knows about how its government
works, the stronger the government and the safer our democracy.
This attempt to undo the Presidential Records Act is one more
act by this administration to close the curtain between the
government and the public, an act Congress cannot allow to
continue. Thank you.
Mr. Horn. I am going to set the stage of this. The records
of former President Reagan are the first to become subject to
the Presidential Records Act. Near the end of his
administration, President Reagan issued an Executive order that
established a process for former and incumbent Presidents to
review records before they are released to the public under the
act. The purpose of this review was to permit a former or
incumbent President to claim executive privilege in the event
he felt that a particular record should not be made public.
Basically, the Reagan Executive order provided for the release
of records unless the former or incumbent President claimed
executive privilege within 30 days after being notified by the
Archivist of the United States of the proposed release of those
records.
On November 1, 2001, President Bush replaced the Reagan
order with a new order, Executive Order 13233. This new order
creates a much more restrictive process. For example, it gives
both the former and incumbent President veto power over the
release of records. It also provides an open-ended review
process that permits either the former or incumbent President
to prevent the release of records indefinitely, even without
claiming executive privilege.
Finally, the new order requires the Archivist to
automatically honor any claim of executive privilege by a
former President regardless of merit. Last November the
Subcommittee on Government Efficiency, Financial Management and
Intergovernmental Relations, which I chair, held a hearing on
the implementation of the Presidential Records Act. Witnesses
at our hearing raised serious policy and legal concerns over
the Executive Order 13233. Since the hearing, many historians,
archivists and others have written to me expressing similar
concerns. Based on those concerns, I have drafted that bill
that would replace Executive Order 13233 with a statutory
process for reviewing records for possible claims of executive
privilege. My bill preserves the constitutional right of a
former or incumbent President to claim an executive privilege.
However, unlike the Executive order, it does so in a way
that I believe is fully consistent with the letter and the
spirit of the Presidential Records Act. I am introducing my
bill today. I am pleased that a number of members have joined
me as original co-sponsors of the bill, including Chairman
Burton and Ranking Committee Member Mr. Waxman and subcommittee
member, the ranking member, Ms. Schakowsky. I believe that this
bill represents a reasonable and fair solution to the problems
created by the Executive Order 13233. I hope that the committee
will consider the bill in the near future.
At today's hearing, we will receive testimony from noted
historians on the importance of access to Presidential records
and the impact of Executive Order 13233. I welcome today's
witnesses and look forward to their testimony.
Gentlemen, the way this committee functions, both the full
committee and the subcommittee are oversight committees, and
therefore we ask all witnesses to take the oath, and if you and
anybody that supports you, will stand and put your right hands
up.
[Witnesses sworn.]
Mr. Horn. OK. The clerk will note that all 4 affirmed.
And we will begin now as the agenda has with Robert Dallek,
the very distinguished author of the 1960's and the 1970's and
the 1980's, the author of Lone Star Rising: Lyndon Johnson and
His Times, 1908-1960; Franklin D. Roosevelt, An American
Foreign Policy, 1932-1945; Hail to the Chief: The Making and
Unmaking of American Presidents. And Mr. Dallek, I believe, is
still at UCLA.
Mr. Dallek. No.
Mr. Horn. You are not. OK. You mean you do not like our
sunshine in California?
Mr. Dallek. No. I retired and----
Mr. Horn. Oh, you did?
Mr. Dallek. And seized one of these packages. I've been
teaching at Boston University.
Mr. Horn. Go ahead.
Mr. Dallek. Well, Mr. Chairman, if you don't object, I
would like to defer to my colleague, Professor Stanley Kutler,
and let him lead off, because, sir, he has been a driving force
through the years in working to open Presidential materials,
and he was at the center of the struggle to open the Richard
Nixon tapes. And as perhaps just a symbolic expression of
deference, I'd like to ask him to speak first.
Mr. Horn. Stanley Kutler is professor at the University of
Wisconsin Law School, author of Abuse of Power: The New Nixon
Tapes, and The Wars of Watergate.
STATEMENT OF STANLEY KUTLER, PROFESSOR, UNIVERSITY OF WISCONSIN
LAW SCHOOL
Mr. Kutler. Thank you. Thank you, Bob. I'm still younger,
though. But I just want to--you have the formal testimony, and
let me just make a few remarks here. The 1978 Presidential
Records Act is one of those rare exceptional moments in
American legislative history when we get the compromise of
competing ideas that seems to work very, very well. There were
those who said, as of 1978, that Presidential papers, all
papers of public officials, belong to the man or the woman, and
they were theirs to deal with and dispose of as they saw fit.
There were those who argued that, no, these are public records
generated by public funds, and therefore the public should have
access to them at some date certain.
There were some who wanted immediate release, too. Between
the advocates on the two extremes, we sort of found a middle of
this compromise of 12 years, of waiting till a President has
left office for 12 years and then we would have access to the
papers.
12 years seemed to be reasonable and fair, and as I said,
the idea seems to have been relatively settled. But now
suddenly in 2001, the President's counselors have said no. One
has been quoted as saying that, well, 12 years was not enough,
and I asked at one point, well, 15 years, 20 years, 50, 100
years? And I had no answer, because I think any is too many in
this man's mind.
So it seems to me that we're now at a special moment in
terms of whether or not we're going to retain this kind of
openness at a reasonable time.
I'm a member of both the law and the history faculties, and
I have taught constitutional and legal history for many more
years than I care to remember. I am delighted that in this
action today, what we're here for, is that Congress seems to
wish to assert itself in matters of legislative prerogatives.
The most sophisticated course in constitutional law to
elementary courses in public school civics, the lesson is that
Congress enacts laws. The Presidents' execute them. I am
suggesting in my formal testimony that President Bush has a
special personal interest in closing Presidential papers, an
action that has nothing whatsoever to do with national
security. It is hardly a secret at this point that the
Executive order had been in the making since January 21, 2001,
long before September 11th. President Bush's attempt has
resulted also, I think, in the most luxuriant interpretation of
executive privilege I have ever encountered. Fair-minded and
prominent people have fought over the parameters, the extent of
executive privilege. They will continue to do so, to be sure.
But we now have extended these parameters in an extraordinary
way. The Presidents' heirs and designees can exert executive
privilege from generation unto generation, it seems. And if
that is not enough, the order conveniently extends to Vice
Presidents, past and present.
My understanding is that executive privilege lies with the
incumbent officeholder and does not follow him into retirement
or to the grave and beyond.
The effect of this Presidential order, quite simply, is to
overturn an act of Congress, an act that followed all the
procedures as dictated by the Constitution. The act--the effect
of the Executive order has been to--its effect has been to
nullify the 1978 law and has brought us together here today in
what I think is strictly a nonpartisan issue.
[The prepared statement of Mr. Kutler follows:]
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Mr. Horn. We thank you for that statement, or are you
complete?
Mr. Kutler. No. I'm complete.
Mr. Horn. We will now go back to Richard Reeves, the author
of ``President Nixon: Alone in the White House and President
Kennedy, A Profile of Power.''
STATEMENT OF RICHARD REEVES, AUTHOR OF ``PRESIDENT NIXON: ALONE
IN THE WHITE HOUSE'' AND ``PRESIDENT KENNEDY: PROFILE IN
POWER''
Mr. Reeves. Thank you. It's a privilege to be here. It's a
privilege to be an American citizen.
In the Declaration of Independence, the fourth complaint
against the King of England and why we should break away reads,
``his call together legislative bodies at places unusual,
uncomfortable and distant from the depository of the public
records for the sole purpose of fatiguing them into compliance
with his measures.''
That was Thomas Jefferson in 1776. There have been since
that time first a closing and then an opening, somewhat by
accident, I think, of the public's right to know. On November
1st when the President signed Executive Order 13233, I sent him
copies of my books on President Kennedy and President Nixon
saying that I thought they might be worth a lot of money some
day as an artifact, because if this law stands, books like this
will never be written again. The classification system and--
that has gone on over the years has touched the comic. I always
thought that the best classification I saw to keep from
historians and then from the public was a copy of Evergreen
Magazine in the Kennedy Library with an inscription from
Brendan Behan. The Evergreen, for those of us who remember, was
considered something of a dirty book at the time, and
apparently it was classified to keep it away. For 25 years, the
U.S. Government said it would not be in the interest of the
people to read these words: To my lantsman John Kennedy, best,
Brendan Behan. For 25 years that was classified and kept.
This is James Madison writing in 1822: ``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 Governors must arm themselves
with the power which knowledge gives.''
Now, not everyone agreed with that, including Presidents.
President Lincoln's papers, for instance, did not become public
until 1949. To someone like me, and I think other people at
this table, the Presidential papers in fact are self-
protecting. First, the Presidents and their governments have
the right, the power to exclude most anything on the grounds of
national security, on executive privilege or personal privacy,
and in fact there are too many papers. 44 million papers in the
Nixon archives, 50 million in the Reagan archives, where I now
work in Simi Valley, CA. So that it takes a great deal of time
and then a great deal of interviews and study to determine
which papers you should look for. I think historians, and I'm a
journalist, really, a reporter, understand the reason that some
papers have to be kept secret for political embarrassment and
such, and also Presidential papers are a commodity. They are
extremely valuable, and they can be sold. They can be used for
various reasons.
It is my opinion that our government works on a system of
deferred compensation. Yes, the pay is not very good to be in
the government, but you get the money later. I'm told President
Clinton made more than $15 million last year. That was almost
as much as George Stephanopoulos made.
So the documents as private property are very valuable to a
President. Three of us here, particularly Dr. Kutler, have
worked on the Nixon papers, and without seeing most of those
papers, I think it is hard to understand even now what happened
during the Nixon administration. By that I don't mean the
scandals of Watergate, as much as I mean a systematic attempt
to skirt the checks and balances of the U.S. Constitution.
General Charles DeGaulle of France was a great role model for
President Nixon. He governed more or less by edict, but most of
us here are old enough to realize that President Nixon's two
great accomplishments, the opening to China which changed the
politics, geopolitics of the world, and the--taking the United
States off the gold standard. He really was the godfather of
globalization in some ways. What we tend to forget, and what
historians have had to try to find out, is that both of those
world-changing edicts from a President of the United States had
never been considered in public in this country. The Congress
was not considered. The people were not considered. The press
were not considered. Only four men, Nixon and Kissinger, in the
case of China, and Nixon and John Connolly in the case of the
new economics of the time knew. We learned of this when the
President appeared on television and announced it as a fete
accompli. It is only through searching the records that you can
realize what it is that happened and what was actually so
different about that President. And no matter what archival
system is used, the families and the former aides will try to
protect their reputation, which is what you would expect of
them, and you would expect of us to try to bring that into more
objective light. They were greatly influenced, the American
Presidents of our generation, by Winston Churchill, who once
said, ``my task, my goal is to make the history and then write
it before anyone else does.''
That is one of the reasons Richard Nixon was keeping tapes.
There is no doubt also that the world is changing, and that we
have to take into account what will happen. Globalization
brought great benefits, I think, to the economy of the world,
certainly to the economy of the United States. It also, as we
learned to our regret, made terror global, and it also is in
the process of making law international--more international
than Americans generally like to see. I don't think that
President Bush wants to sit in The Hague 20 years from now
explaining why he signed a certain paper involving certain
people in the Middle East, and I think that is something the
Congress should consider in terms of why this move is being
made so strongly right now by the White House and to evaluate
those arguments within a new context.
Luckily for us, history has been changed by the greatest--
the great historian of the 20th century is the Xerox machine.
It is now pretty hard to hide records unless you go to great
efforts, and these are the great efforts that we are seeing. I
love what I do, and I know that the people I'm lucky enough to
sit here with people who love their work. I mean, it is--going
through the archives is like sloshing through the mud of a
mine, and every once in a while stumbling on a diamond, every
once in a while finding out, for instance, that John Kennedy
knew of the Berlin Wall plans before the wall was built, and he
thought it would prevent a war. The communists had their
problem, which was their best and brightest fleeing. We had our
problems, that we had only 15,000 soldiers in Berlin, and we
could not defend either Berlin, Germany or Europe without using
nuclear weapons. And President Kennedy did not want to use
nuclear weapons. The wall, Check Point Charlie and all that
solved that. President Kennedy emphasized in both public and
private that as long as occupation rights were honored, the
fact that American officers could drive through East Berlin,
the United States had no objection to what the East Germans or
the Russians did on their side of the border. That was not
understood at the time, because had Kennedy gotten up and
announced that, I suspect there would have been an attempt to
impeach him. But, in fact, it is what prevented a war, and as
he said privately, better a wall than a war. No one knew that,
and that is the job, I think, of historians to try to find out
what that meant.
There are many ways now to avoid it, and it involves not
only this act. It involves a system that Dr. Kissinger set up
basically to hide his papers in the Library of Congress, and
since I'm doing a book now on President Reagan using his
papers, I would--I'll close with just a note that our--a
friendly note I received from the Library of Congress when I
applied to look at the papers of Alexander Haig, who was, after
all, the Secretary of State of the United States during that
period. And once, or so he said, even ran the government. This
is what you get under the kind of legislation--or the kind of
process that the Bush administration has put in. I'll end with
this:
``Dear Mr. Reeves, we have been notified that your request
for permission to consult Alexander Haig's papers have been
denied. Please let me know if we can be of any further
assistance. Thank you.''
Mr. Horn. Could you tell me who signed that letter?
Mr. Reeves. It was signed by John Haynes who is the Chief
of the Documentary Section of the Library of Congress.
Mr. Horn. Did you try the Librarian of Congress?
Mr. Reeves. I haven't gone there. I was giving the Library
of Congress a lecture that year. I didn't bring it up. The fact
of the matter, he's going to say the same thing, because
Kissinger and Haig figured out a way to hide their papers, not
only from you and from us, but from the National Archives.
Mr. Horn. Well, an endowed chair has been in the
Congressional library of Mr. Kissinger's.
Mr. Reeves. They don't let us see that.
Mr. Horn. We now have our last presenter----
Mr. Reeves. We have forgotten our first presenter.
Mr. Dallek. I only deferred for the moment.
Mr. Horn. OK. Bob.
STATEMENT OF ROBERT DALLAK, AUTHOR OF ``LONE STAR RISING:
LYNDON JOHNSON AND HIS TIMES, 1908-1960,'' ``FRANKLIN D.
ROOSEVELT AND AMERICAN FOREIGN POLICY, 1932-1945,'' ``HAIL TO
THE CHIEF: THE MAKING AND UNMAKING OF AMERICAN PRESIDENTS''
Mr. Dallek. Thank you. Thank you, Mr. Chairman, for
inviting me to testify at this hearing about your proposed
legislation, nullifying President Bush's Executive Order 13233,
revising procedures for release of Presidential documents
established under the Presidential Records Act of 1978. As I
understand matters, the Executive order would give a sitting
President, as well as past Presidents and their heirs the power
to withhold Presidential documents for as long as they believe
necessary. This control of historical papers would also extend
to Vice Presidents.
I read President Bush's Executive order as essentially
nullifying earlier legislation, making Presidential papers
public rather than private property, and that of course has
been a long struggle for historians to assure that these papers
should be in the possession, so to speak, the ownership of the
public rather than the Presidents themselves.
If Mr. Bush's order is left standing, I believe it will
return us to the era when Presidents owned and controlled
access to the documentary record generated during their
administrations. The committee's amendment to the Presidential
Records Act would eliminate this return to a state of affairs
the Congress ended in the 1970's. My work over the last 30
years in five Presidential libraries, FDR, Truman, Eisenhower,
Kennedy and Johnson, for books on Presidents Roosevelt, Kennedy
and Johnson, leaves me unconvinced that President Bush's
Executive order, as the administration alleges, will contribute
to a more orderly release of Presidential documents,
particularly greater assurance against breaches of national
security and of privacy rights to the country. The President's
directive will make the study and understanding of recent
Presidential history more difficult. It will undermine Justice
Felix Frankfurter's definition of government, ``as the
government which accepts in the fullest sense responsibility to
explain itself.''
Attorney General Ashcroft has asserted that the Executive
order was essential for protecting, ``national security,
enhancing the effectiveness of our law enforcement agencies,
protecting sensitive business information and, not least,
preserving personal privacy.''
I find the Attorney General's statement unconvincing. The
1978 Presidential Records Act makes ample provision for the
protection of both national security and personal privacy. More
to the point, in my 30 years of work in Presidential libraries,
I have never heard of a breach of national security by
premature release of Presidential documents, nor do I know of
any notable violation of personal privacy by an unauthorized
release of documents in the holdings of the libraries. Indeed,
next year will be 40 years since the death of President
Kennedy, and in the coming week, I'm completing a biography of
President Kennedy. I'm going to have access to President
Kennedy's medical records. I'll be the first biographer or
historian to gain access to these materials. I shouldn't be the
only one. This should have been available a long time ago so
that we could have known a great deal more about President
Kennedy's medical history, but better late than never, as they
say.
I will leave it to others with greater expertise than I
have to comment on the claims of executive privilege asserted
by the President as an additional basis for his order of
November 1st. I can say, however, that to the best of my
knowledge, it is unprecedented to claim that Presidents
maintain executive privilege after they have left office, nor
will I speculate on what exactly motivated President Bush's
Executive order, except to say that it is hard to believe that
either national security or personal privacy are genuine
central considerations. I would like to focus instead on the
importance of opening Presidential records to journalists and
historians in a timely fashion. No one interested in the
country's well being favors inappropriate release of
Presidential materials. Some matters relating to national
security and personal privacy should remain secret for the
proper functioning of our government. As my colleague Arthur
Schlesinger, Jr., said in a letter to this committee last
November ``a measure of secrecy is certainly essential to
executive operations. But secrecy should be rigidly reserved
for specific categories--weapons technology and deployment,
diplomatic negotiations, intelligence methods and sources,
personnel investigations, tax returns, personal data given the
government on the presumption that it would be kept
confidential. Secrecy, Schlesinger adds, carried too far
becomes a means by which the executive branch dissembles its
purposes, buries its mistakes, manipulates its citizens,
escapes its accountability and maximizes its power.''
Holding back Presidential documents impoverishes our
understanding of recent history and handicaps a President
wrestling with difficult contemporary policy questions. The
more Presidents have known about past White House performance,
the better they have been at making wise policy judgments.
President Franklin Roosevelt's close knowledge of President
Wilson's missteps at the end of World War I were of
considerable help to him in leading the country into and
through the Second World War. Lyndon Johnson's effectiveness in
passing so much Great Society legislation in 1965 and 1966
partly rested on direct observation of how Roosevelt had
managed relations with Congress. President Truman's problems on
the Korean War following the move across the 38th parallel into
North Korea was one element in persuading George Bush not to
invade Iraq in 1991. Every President uses history in deciding
current actions. The principal victim of President Bush's
directive will be himself and the country. The study and
publication of our Presidential history is no luxury or form of
public entertainment. It is a vital element in assuring the
best governance of our democracy. No one, no one has a monopoly
on truth or wisdom in the making of public policy, nor can
historians or history offer a fool-proof blueprint on sensible
causes of action. But it is a useful guide in helping an
administration make decisions about domestic and foreign
affairs. The more we know about our past, the better we will be
able to chart a sensible future. Your amendment to the
Presidential Records Act will serve the Nation. Thank you for
listening to my remarks. I'll be happy to answer any questions
if they could in any way be helpful to your additional
deliberations.
[The prepared statement of Mr. Dallak follows:]
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Mr. Horn. We thank you for that presentation. Our last
presenter, and we need to get to her because, we are going to
be called to the floor soon for votes. I want to make sure Ms.
Hoff has a chance to get her presentation in. You are certainly
welcome to sort of give a from-the-heart speech rather than all
of the, you know, single things, because we do not have the
time for it, frankly. But please give us a summary of your
statement.
So Joan Hoff is director of Contemporary History Institute
at Ohio University, former president of the Organization of
American Historians, former editor of the Presidential Studies
Quarterly, author of ``Nixon Reconsidered: The Nixon
Presidency.'' We are glad to have you here.
STATEMENT OF JOAN HOFF, DIRECTOR, CONTEMPORARY HISTORY
INSTITUTE, OHIO UNIVERSITY, FORMER PRESIDENT, ORGANIZATION OF
AMERICAN HISTORIANS, FORMER EDITOR, PRESIDENTIAL STUDIES
QUARTERLY, AUTHOR OF ``NIXON RECONSIDERED: THE NIXON
PRESIDENCY''
Ms. Hoff. Thank you, Mr. Chairman, for the opportunity to
testify. In the capacity that I held as head of some of these
national organizations, I've long been concerned with access to
Presidential papers. I've worked in all of the Presidential
libraries, except for the Reagan library, and published
primarily on Presidents Herbert Hoover and Richard Nixon. To a
degree, I kind of claim a monopoly on unpopular Republican
Quaker Presidents of whom we have had two. Anyway, today I want
to simply reiterate what some of my colleagues have said, but
also to place the Presidential Records Act of 1978 into
historical perspective. It is one of the most important pieces
of reform legislation passed in the aftermath of Watergate.
Historians generally concur that Watergate was about holding
top government officials accountable to people in a democratic
system. The issue of government accountability is inextricably
linked to access to information. Watergate aroused the
historical profession, other scholars, and journalists to this
important linkage. But that linkage remains fragile and needs
to be constantly guarded.
The 1978 Presidential Records Act provides this protection,
primarily, as you've heard, because it terminates private
ownership of Presidential papers and made those papers property
of the Federal Government. But in November, President Bush with
his Executive order, I think, stepped backward with respect to
holding government officials accountable. The very issue that
was at the heart of Watergate.
Moreover, this Executive order would appear in at least my
reading of it to be incompatible with the 1978 statute by
allowing a former or incumbent President to assert a laundry
list of privileges beyond those recognized in the 1978 law. It
also places undue financial burden on academic researchers, a
point that hasn't been raised here today, in particular, to the
degree that these researchers would have to retain counsel and
sue for restrictive documents without knowing what was in them.
I don't think there is any point in second-guessing why the
Bush administration issued its Executive order, because that
would bog us down in political speculation, but I think the
simple fact, in my opinion, is that like the War Powers Act,
Presidents in general are suspicious of the Presidential
Records Act and of the Freedom of Information Act.
Hence, each President since Nixon has devised slightly
different ways for protecting secrecy, either through
officially claiming executive privilege or calling it something
else, such as Presidential or constitutional privilege.
But President Bush, I think, has gone beyond all of these
previous attempts by Presidents to operate in secret with this
Executive order. If vigorously enforced, it would constitute an
executive rewriting of two congressional statutes, the
Presidential Records Act and the Freedom of Information Act.
We talk about people's right to know. But more often than
not, it is Congress that has to protect that right when the
public isn't paying attention and demanding it. That is why we
are all here today, to consider Congressman Horn's proposed
legislation.
I have outlined on page 3 of my official report the
segments of the Executive order that disturb me. But I want to
reiterate one of them in particular that I have already
mentioned. In contrast to the 1978 Act, the burden of judicial
proof is shifted to the researcher by this Executive order who,
at his or her expense, must show a demonstrated specific need
when requesting restricted records.
Research is already too expensive and time-consuming for
most academics, especially graduate students. And this
provision would simply discourage many of them from working on
Presidential papers. In general, it seems to me that in
contrast to the PRA, which mandates that the Archivist of the
United States shall have an affirmative duty to make such
records available to the public as rapidly and as completely as
possible, that this Executive order, in order to carry it out,
the Archivist of the United States would be put in the
untenable position of having to violate the 1978 Act.
Congressman Horn's bill rectifies most of my specific
concerns. However, I still believe that it gives incumbent
Presidents too much unlimited authority over the release of
papers of former Presidents. The need for government
accountability and access to information in our democracy
hasn't changed, but the public doesn't always think it is
important. We are in one of these times of public indifference
because of September 11th. The Bush administration is taking
advantage of the legitimate public fear about national security
to take steps to keep its activities secret, especially its
decisionmaking activities, and has extended that secrecy in
this Executive order to the policy formulating processes of
previous administrations.
In doing so, I think the President and his aides and the
Attorney General, at least in their public statements, have set
a dangerous tone and are sending the wrong message to
Government employees and to the American public. That message
is frightening in its simplicity: Secrecy is more important
than openness in government.
Presidential tone is often more important than direct
Presidential action and less easy to contain. In this case it
is creating an atmosphere of hostility and suspicion that can
permeate the minds of government officials and dull public
awareness about the dangers of secrecy in a democracy such as
ours.
Last, I think it has been abundantly evident since Nixon
that any administration which arrogantly asserts executive
privilege to prevent public access to decisionmaking processes
or to dodge accountability does not ingratiate itself with
members of the media or scholars who usually become all of the
more determined to ferret out government secrets.
The general historical rule of thumb is that Presidents'
reputations do not usually suffer as more of their papers are
opened. Closed papers do not protect Presidents in the long-
run, however tempting it may be to restrict them in the short-
run. Thank you, Mr. Chairman.
[The prepared statement of Ms. Hoff follows:]
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Mr. Horn. We thank you for that very helpful practical bit.
And that goes to the other historians. If you take a look at
the measure we are putting in today, that is simply one step.
And if you have some more ideas, let us know. We would
appreciate it.
We are now going into the question period, and I am going
to start yielding myself 5 minutes, and then the ranking
member. We have a number of people we will simply alternate
between both parties. I was very interested in the--I am going
to just ask a few fast questions because time is going. And I
would like to know how many of you know if the First World War
papers are still locked up? Why? Do we know why?
Mr. Kutler. It is like the First World War buildings the
buildings that were on Constitution Avenue for years dated from
the First World War that were called temporary. No one knew why
they were still there.
Mr. Horn. My mother worked there in the Navy.
Mr. Kutler. I know this about the First World War papers. I
don't know why anyone would be interested in trench warfare
right now.
Mr. Horn. Well, I will pass to another one. Now, as we
drive in from Dulles every Saturday we hear the Johnson tapes
brought from the Johnson papers, and I take it somebody is in
with the people that run the Johnson Library. And--because
apparently nobody else can get them. And now they will release
them. But it seems to me, Dr. Dallek, certainly, when you were
writing on Lyndon Johnson, you wish you had those tapes.
Mr. Dallek. Well, I had a handful of them. But, in fact,
President Johnson directed that they should be closed for 50
years after his death, which meant that they would not be open
until 2023.
In her wisdom, Mrs. Johnson and the head of the Johnson
Library, Harry Middleton, agreed that they would open them
sooner. And, indeed, as Joan Hoff said, in essence, Johnson's
reputation had nowhere to go but up. And by opening these
papers, I think it served his reputation. And who can listen to
them now, which I sometimes do, without a certain amount of
amusement. And you are educated by them. But there are still
many of these tapes that are closed. Indeed, at the John
Kennedy Library, which----
Mr. Horn. Well, let's stick with LBJ for a while. Do you
know what type, generically, of phone calls that are not being
released?
Mr. Dallek. Well, they claim that what is held back are
these materials which would jeopardize national security or
violate personal privacy rights. Now, of course, I can never
tell what in fact they have held back, whether it meets
sensible judgments on national security and personal privacy
rights.
Over my career, I have been mystified at times when I have
seen papers that were released later, and I wondered why was
this a national security consideration? It just mystified me.
So these are the two criteria that they are using.
Mr. Horn. Well, Dr. Kearns, I believe, has written on
Johnson; isn't that correct? And then you have written on it.
Mr. Caro has two volumes out in his very fine effort there. He
has got the third one now on Johnson as majority leader, and
that is coming out in a week or so.
Mr. Dallek. Yes.
Mr. Horn. So I don't know who else is out there wanting it.
But it just seems to me that it ought to be open to everybody.
Mr. Reeves. Well, it was a piece of either historical or
journalistic entrepreneurship that got to these papers.
Basically, one of our distinguished colleagues, Michael
Beschloss, charmed, with the help of Simon Schuster, my
publisher, Ms. Johnson into releasing them by a certain date.
This goes on in all libraries. But one of the ways it was
done is that Michael had access to them for months, so that it
was released to everybody on the same day, but he had a book
finished that day and everybody else was knocking on the front
door.
I think all of us have been in situations, particularly at
the Kennedy Library, where there are researchers and then
researchers, friends considered, Mrs. Kearns, Mrs. Goodwin,
considered a friend and Arthur Schlesinger, considered a
friend, see different things.
I don't know how other people feel about it. I would prefer
a system where it truly was an equal starting line. But, so
far, that has not happened.
Mr. Horn. I have just one question and then I will turn it
over to Mr. Waxman. Are you aware of any instance in which the
release of Presidential records has created a personal hardship
or otherwise resulted in public harm?
Mr. Dallek. Well, I remarked on that in my statement. I
know of no instance.
Ms. Hoff. And there have been a number of surveys done of
former officials of the government who, when interviewed, and
asked whether they felt inhibited in giving the President
advice because of the Presidential Records Act, all of them
said no. And most of them said they couldn't even remember what
were in the memos that were currently being restricted in any
given time period. So that the people who work for the
Government don't seem to think after the fact that this was an
inhibiting factor.
Mr. Kutler. Any number of incidents--it is not necessarily
the President that comes to mind immediately here, but with
materials that were released under Freedom of Information that
have helped the individual enormously.
For example, I was the first person to receive the Justice
Department records on the woman you know as Tokyo Rose, Ms.
Toguri. Ms. Toguri, the government knew that the perjury had
been suborned in her case. The government knew that this was--
the prosecution resulted from the relentless persecution by
Walter Winchell and other reporters, that General McArthur's
staff, the FBI had declined prosecution for 4 years.
Now that all finally came out in all of these materials. I
think Tokyo Rose got her pardon from President Ford in 1977.
But clearly what she has now is a pardon before the bar of
history because she was no more guilty of treason than you or I
were.
Mr. Reeves. The victim recently within the last couple of
weeks has been, and I think in the course of justice, Dr.
Kissinger, that is, that the release of the transcripts of the
conversations between the Americans and the Chinese that led to
the 1972 summit revealed something about the elegance and
cleverness of Dr. Kissinger as a historian. That is in his
description, he said Taiwan was not a major issue in these
talks.
It was mentioned briefly at the beginning. There was only a
single mention, that is it. The papers revealed--it happened
that I have had favoritism and had these papers before.
The papers revealed that was exactly true, if you follow it
word for word. The first thing said was--by the Americans, by
Dr. Kissinger, look, Taiwan is yours. Do whatever you want with
it. With that, Chairman Lai said, OK, let's have a summit. But
that was the single mention which made it so unimportant.
And for the first time last week, Dr. Kissinger finally had
to say, well, perhaps there were things in his memoirs that he
could have studied a bit closer to get a little bit closer to
what happened. A clever man.
Mr. Horn. Thank you. I now yield to the gentleman from
California, Mr. Waxman.
Mr. Waxman. Thank you very much, Mr. Chairman. I want to
thank all of you for your testimony. I think it has been
excellent. And I have been admirers of all four of you in your
work.
It is interesting when you look at this issue. There really
are two losers. There is clearly the public's loss of
information to which they have a right. And the other loser is
the President himself or herself.
Now we should understand this is all happening at this
moment with this President, and it only affects the Reagan
administration, and President Bush's father, who was the Vice
President at the time.
So the Executive order is to try to keep the information
about former President Bush, when he was Vice President, from
being public, and also any records that will happen--any
records that would happen to come due to be released for the
Reagan, Bush, Clinton and Bush administrations as time may go
on.
Now, Ms. Hoff, you said one of the dangers to the public is
dulling our senses about secrecy. Now could you elaborate on
that?
Ms. Hoff. Well, as I didn't say it in my opening remarks,
but it is in my formal remarks, that especially in time of war,
government secrets tend to increase incrementally, anyway. And
I think what has happened since September 11th, and then in
conjunction with this Executive order, is that national
security has become a kind of mantra of the administration. The
public is being led to believe that everything can be protected
or kept secret in the name of national security. And that, I
think, does have a kind of dulling effect on public opinion and
the public sense of what it needs to know in time of war.
For example, if we had known about the terms of the secret
negotiations that Henry Kissinger was carrying on with the
North Vietnamese before 1973, even 6 months or a year before
1973, I think you would have found that these terms would have
shown what historians later showed after they were able to get
to some of these records, that the terms were no better than
what the Nixon administration inherited in 1969 from the
Johnson administration.
Mr. Waxman. Well, let me turn to Mr. Reeves. You are
pointing out the dulling of senses about secrecy, particularly
at this time in our history where we have a war on terrorism.
But, Mr. Reeves, you talked about the balance of power, the
checks and balances that are envisioned in our Constitution.
How is that affected by this move toward secrecy?
Mr. Reeves. Well, by withholding--that is not so much in
records. You can do it in retrospect. If there are records, the
incident I spoke of with Nixon, and there are others, are
basically the Congress not having any issue--any true
information on----
Mr. Waxman. Well, the President wants to keep information
secret either about the past or the present, and is doing it,
it seems to me, for purposes of enhancing his power. And he is
enhancing his power at the present time if the Vice President
of the United States doesn't have to reveal who he met with in
the energy taskforce. We have other examples where there is not
the transparency in the way decisions are made, the Congress is
kept in the dark and the public is kept from knowing what is
happening. It really keeps a check on the ability of a
President. Let me put it this way.
It keeps the checks and balances from operating, because a
President starts getting more power because he can operate
without the Congress and the public saying, no, wait, you may
be going too far.
Mr. Reeves. Right. Well, that was the effect in these two
cases, and I am sure has been in others. And if we believe in
democracy, we essentially believe that the more people who are
involved in a national decision, the better decision that will
be. Presidents routinely, I think, try to subvert that idea.
They think they know better.
Mr. Waxman. Well, I suppose whenever you have power, you
want more power. I would submit that a President becomes the
victim not only of the ways you all pointed out in your
testimony, by this secrecy of these records, but I think the
President becomes a victim, because when a President gets too
much power--when anybody gets too much power, as power
corrupts, and absolute power corrupts absolutely--the President
doesn't have the usual checks on him that will help make
decisions properly. I thought it was an excellent point that
you made that if a President doesn't know history in making
decisions at the present, he can repeat the mistakes or fail to
learn from previous mistakes. And I would submit that it
becomes a disservice to the President in making decisions not
to have the advantage of information from the past and also to
have too much power without the usual checks the democracy
would bring on that power.
I notice my time is up. But you have all made an excellent
presentation, and I think a compelling reason why we ought to
pass the legislation to prevent this President from taking the
law that said the public has a right to these Presidential
papers and turning it on its head and trying to deny the public
and his history the benefit of these papers. Thank you very
much.
Mr. Horn. I thank the gentleman. And we now yield for
questions, the distinguished member on this committee, Mr.
Gilman, the gentleman from New York.
Mr. Gilman. Thank you, Mr. Chairman. I certainly want to
welcome our panelists today and thank them for their very
astute analysis of where we are on Presidential Executive
orders. As you probably are aware, this committee has been
trying to get some information on the criminal background and
the FBI association with Mafia cases in the Boston area.
Let me ask, would the executive privilege apply to anything
before the Reagan administration? And could it be utilized as a
basis for restricting our access to information prior to the
Reagan administration?
Mr. Reeves. My reading of the law, I am not a lawyer, is
that it would not.
Mr. Dallek. You know, Mr. Gilman, executive privilege goes
way back in our history. And Presidents had or claimed
executive privilege in relation to their principal aides, but
it was only in the 1950's that we first began to have this
broader approach to the whole idea of executive privilege. And
claims were made that any kind of document that was generated
in the executive branch could come under this rubric of
executive privilege.
But I do not know of a single instance in which executive
privilege applies to past Presidents, to historical records. My
understanding is that executive privilege, so to speak, expires
with the President's term. Now my colleague, Professor Kutler,
I think knows more about this than I do. But that is my
impression of executive privilege.
Mr. Kutler. We just never recognized, as far as I know, I
know of no legal precedents that have recognized executive
privilege lingering 1 day beyond a President's terms of office.
You asked before if any particular President before Reagan
would declare that. Well, the only President, I hope I am right
here, that is alive before Reagan right now is Jimmy Carter. Am
I missing somebody? Oh, Ford. That is right. Sorry.
Well, they are the only Presidents who are alive before
Reagan. Now, and I don't see either one of them as ever having
exerted executive privilege from the day they left office. I
wouldn't expect them to begin that now. I mean, that is what is
so extraordinary about this order, the way this seems to
perpetuate this beyond the President's terms of office into his
retirement, and then upon his heirs and designees. That is
extraordinary, it seems to me. And, incidentally, to former
Vice Presidents.
Mr. Gilman. In your opinion, if this were tested in the
court, do you think it would survive?
Mr. Kutler. I don't think so. But certainly there are
members of the District D.C. Court of Appeals who have very
strong conservative credentials who have ruled precisely
against this kind of thing in the past. I am thinking of
Justice Silverman who has spoken out on this in the past. And I
just can't see this surviving a challenge. But it seems to me
that it is right here in Congress to assert its proper
legislative prerogatives on this matter and reassert what was
stated here in 1978.
I mean, ideally, as a student of these things, that is what
I would really like to see and that it stay out of court.
Mr. Gilman. Well, let me ask the panel. Should Executive
Order 13233 be rescinded?
Ms. Hoff. Yes. Definitely.
Mr. Reeves. It would be unanimous at this table.
Mr. Gilman. Unanimous on this issue.
Mr. Kutler. I think you would be hard-pressed to find any
serious historian who would want to sustain it. I know of no
one.
Mr. Gilman. One other thought. Should the act be amended to
provide a statutory process for consideration of potential
executive privilege claims?
Ms. Hoff. You mean beyond the 1978 act?
Mr. Gilman. Yes.
Mr. Horn. Well, as I remember the Nixon v. Administrator of
General Services, the Supreme Court held that a former
President can claim executive privilege. And we are going to
put that in, without objection, into the hearing record, and
put the whole case in so everybody can look and see that.
[The information referred to follows:]
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Ms. Hoff. But that decision also said that executive
privilege erodes over time. And consequently it reaches a point
of diminishing returns, according to that decision.
Mr. Kutler. And there is nothing said in that opinion also
that implies that an incumbent executive branch official must
honor that claim. What is so extraordinary here is that,
talking about putting things on its head, the present order
that exists today provides that if there is any claim of
executive privilege, that if upon a claim of executive
privilege, anyone were to challenge that, such as a historian
or a journalist or forth, that the President and the Department
of Justice shall defend the claim. So, in other words, former
Presidents don't have any expense of going to court.
Now we all know that Richard Nixon wrote book after book in
order to maintain that lawyer habit. But now this is put on its
head and the government of the United States will continue to
defend former Presidents in the exertion of that privilege.
Ms. Hoff. Putting researchers then in the position of using
their money to bring suit against a former President whose suit
is being financed by the government.
Mr. Reeves. It is a tremendous disincentive to people who
do this for a living, because it is very rare to find anybody
who can afford a lawyer in the historic community to sell a
house, much less take on the U.S. Government.
Mr. Gilman. So, and what is your answer? Should the act be
amended then to provide a statutory process for consideration
of potential executive privilege claims?
Mr. Reeves. I can't answer that. It is a very large step,
it seems to me.
Mr. Kutler. Well, I would just prefer that the language in
the current Executive order relating to the extension of
executive privilege just be rendered null and void. That is
all.
Ms. Hoff. Yes.
Mr. Kutler. That would be the simplest way, it seems to me.
Ms. Hoff. And that the claim of an incumbent to block
opening, for example, of the papers of a former President,
should be very definitely limited, either to a time period or
at least to review by the Archivist of the United States.
Mr. Dallek. Under the statute or under this Executive
order, as I understand it, a sitting President can override
what a past President decides to do about opening his papers,
and an incumbent President can say, yes, Mr. Reagan or Mr.
Carter has said they can open these papers, but I am not going
to permit that. And I find that mind-boggling.
Mr. Kutler. What we have here is the concurrent veto, which
we all know about in terms of 19th Century American history,
that Calhoun proposed that if one section didn't like what the
other section likes, it was null and void.
Well, President Carter, President Reagan, President George
H.W. Bush can want to release something, but the incumbent can
say, no, you can't. So, so much for control over one's own
papers.
Ms. Hoff. That has actually happened in this last 14 months
when the Reagan Library was prepared to open 68,000 Reagan
documents which were no longer restricted under the 1978 act,
and the Bush administration delayed that opening three times.
And yet when we saw what was opened, there was no national
security. There might have been embarrassment in terms of some
of the advice that the President was receiving about
appointments, personnel matters. But embarrassment is not
national security.
Ms. Watson. Mr. Chairman, on this issue.
Mr. Gilman. I want to thank our panelists for your
analysis.
[The prepared statement of Hon. Benjamin A. Gilman
follows:]
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Mr. Horn. The Q and A to the distinguished new Member of
the House from California, Diane Watson.
Mr. Gilman. Mr. Chairman, may I insert in the record an
opening statement?
Mr. Horn. Yes. It will be put in at the beginning as if
read.
Mr. Gilman. Thank you.
Ms. Watson. Mr. Chairman, as I understand, there is a bill
ready to be introduced by Waxman, Burton----
Mr. Horn. Yes. It is my bill.
Ms. Watson. I just wanted to know, would this solve the
problem, and do you know of the bill, the chairman's bill, Mr.
Horn? I think it gets to the points that you are raising. I
would hope that you would elaborate on it, Mr. Chairman.
Mr. Horn. We have three or four Members that want to
question, and we have a vote, so we are going to have to take a
recess, if you can stay. And we will go vote, and when we end
the recess, which will be about 15 minutes, to be over and
back, and we will be chaired by Mr. Ose, the distinguished
member of our committee and the chairman of Regulatory Affairs.
We are in recess.
[Recess.]
Mr. Ose [presiding]. I am going to reconvene this meeting.
I want to thank the witnesses for hanging with us. I apologize
for the delay. I will claim the time, there being no other
members.
First of all, for each of you, anybody who has any input on
this, of the 68,000 documents withheld for over a year, all but
150 pages have now been released under the new order. Doesn't
that sort of moot the criticism that you are registering on the
new order? Mr. Kutler.
Mr. Kutler. No, I don't think so. First of all, I assume
you have seen the list of what was withheld? There is a list.
Mr. Ose. All right.
Mr. Kutler. It is a very promising list, because it
promises to reveal internal debates over appointments and so
forth, which is really, you know, in our understanding of how
you make appointments and so forth is very, very important.
There are people, for example, Clarence Thomas, that are
mentioned in this, that obviously there is concern about
protecting him.
But I don't think it changes anything. I mean, it is clear
that none of this is stated on the basis of national security.
That was the first thing that struck me. It was all on the
basis of confidential advice.
So, you know, I take it back for 1 second to the Nixon
stuff. When the first great release occurred in April 1987,
150,000 pages were withheld, and we were given a list of
everything that was withheld at the time. And it was the
strangest thing. It was--I mean, there was things that--about
Mrs.--President Nixon's remarks to the Davis Cup team, Mrs.
Nixon's garden party and so forth, which is strange. Why
withhold that? But then as you ran further down the list, there
was, for example, H.R. Haldeman's file on the 1972 Presidential
campaign.
Well, the 1972 Presidential campaign clearly involved the
Watergate matter in some significant ways. But the whole file
was withheld on the basis of personal political, so, you know,
the material was--seemed to be very, very significant. And that
seems so here.
So I don't think that moots the matter at all.
Mr. Reeves. You say it seems significant, the new material.
Well, I would say that I thought that it kind of was not
mitigating because the material--not that I have seen every
page of it, but I have seen a lot of pages of it, was not--was
barely questionable to be withheld. The 150 pages that are
still not let go are some sort of internal papers on judges,
potential judges and whatnot. They undoubtedly have, if they
are candid, they undoubtedly have some things which might be
private. But the rest of the stuff doesn't seem to me to rise
to any test of need to be reviewed because, in the first case,
the President saw almost none of this. These are internal memos
between people within the White House. So that it was--it may
have evolved into advice to the President, but it isn't in
these pages. The President is barely in these pages.
Mr. Dallek. What I find troubling about it is that one is
gratified that so much of the material has now been released
and there are only some 150 pages that remain, but I think it
is the principle that is at stake here. Are we going to have to
fight and scrap every inch of the way in order to get materials
open, and then 2 years, 3 years later the White House concedes,
fine, we will open 90 percent of it? See, I mean, I think the
shoe needs to be on the other foot.
Mr. Ose. It actually looks like 99.8 percent.
Mr. Dallek. Right. But we had to battle to get this.
Ms. Hoff. These postponements can be important in terms of
your own personal research and in terms of the issue involved.
I think that should be taken into consideration, especially
when the postponement turned out to have really no basis in
reality with respect to either privacy or policy or national
security.
Mr. Ose. Well, let me, if I might then, just kind of go
backup the chain on this particular issue and ask the question:
Was the Reagan Executive order adequate or sufficient to
protect the claims of privilege by former Presidents?
Ms. Hoff. As a nonlawyer, my opinion of that was when he
issued it at the very end of his second term, that it did
perhaps open a kind of can of worms with respect to former
Presidents making claims of executive privilege long after they
are out of office. And since that wasn't challenged or, in this
case, codified until now, I don't think I gave it much thought
other than it seemed to me to open a door that perhaps would
cause a former President long out of office to decide that
somehow his papers--some papers reflected a need to be
protected by a claim of national security when he might not be
basically informed, well informed about what national security
was 12 years later.
Mr. Reeves. Can I read you an example of what the point I
hoped to make about whether this stuff was that sensitive at
all. This is a 1987--this is one of the things that was just
released. It is a 1987 memo to Howard Baker, who was then chief
of staff, from Gary Bower. It was about, as we recall the stock
market crash of 1987, that this is what they felt they had to
review to see if it involved national security when it had been
once passed already.
It is not sufficient for the President--this doesn't go to
the President, it only goes to Baker. It is--and the President
hasn't seen it, at least since his initials aren't on it. They
usually are.
``It is not sufficient for the President to only say that
this is not 1929 if the economy is good. I have attached
President Hoover's statement after the October crash. You will
note that it is exactly what Reagan said. We do not need to
give the press and liberals another quote parallel to draw
between then and now. The Democrats are on the floor now making
the Hoover/Reagan connection. We must move quickly,''
underlined, ``before the connection gets settled in the mind of
the average citizen.''
I would argue that doesn't fit any of the criteria for
papers that should not be released.
Mr. Ose. That existed under the Reagan Executive order, or
under the new order?
Mr. Reeves. Under the new.
Mr. Ose. Mr. Dallek, anything to offer?
Mr. Dallek. No.
Ms. Hoff. It would also have been restricted under the 1978
act.
Mr. Ose. Right.
Mr. Reeves. Could have been. This piece could have been.
Ms. Hoff. No, I am saying that couldn't have been. If that
act were applied evenhandedly, no, it couldn't have been.
Mr. Ose. Finally, if I might. This is my final question.
That is, do you think a statutory procedure that directs how an
incumbent President shall evoke executive privilege intrudes
too much on Presidential prerogatives? In other words, if the
Congress says you have to follow this process to invoke it, is
that too much of an intrusion from the legislative branch into
the legislative branch?
Mr. Dallek. You mean on past?
Mr. Ose. On executive privilege claims.
Mr. Dallek. About past Presidential materials, not current?
Mr. Ose. OK. Past. That is fine.
Mr. Kutler. OK. To answer your question, no, I don't think
so. I don't think that would be any intrusion whatsoever.
Again, I think that this involves extending the executive
privilege argument far beyond the confines of the incumbent
administration whoever it is.
So I don't see why that is an--how in any way that is an
intrusion upon the President's power, if the former President
has no objection to it. Now, you can say, well, the former
President may not know and may not appreciate the state of
national security at this moment. I find that hard to believe,
because I am assuming that past practice continues to this very
day, where former Presidents are regularly briefed by the CIA
and whoever does the briefing. I mean, that has been the
practice for about the last 40 years. I think it goes back to
when Eisenhower became President, and did this with Truman. And
succeeding Presidents have done the same. So it seems to me
unlikely that a former President would have no appreciation of
what is a national security matter today.
Mr. Reeves. Was that responsive to your question? I mean, I
understood the question differently and, in fact, would take a
different side. That is, since executive privilege is often a
contest between the executive and legislative branch, it would
be an intrusion for the legislative branch to be able to set
firm rules as to what----
Mr. Ose. But the executive could certainly veto any such
legislation.
Mr. Reeves. Yes. No. I think it should be an ongoing
negotiation which could include vetoes or anything else. But I
don't think that the law or anybody else would be helped if the
Congress had the power, if they could sustain the power to
define what executive privilege is. If I understood the
question.
Mr. Kutler. Well, executive privilege is a doctrine that
emerges by deduction. It is not out of the Constitution. It is
not out of statute. It is not out of anything. It is something
that comes up from time to time. And feelings toward it are
governed by the exigencies of the moment.
Now if you were to do this in a statutory sense as you are
proposing, I am sure that the President would, with your
cooperation, your consent, continue to exert executive
privilege in certain other matters. You are saying that this is
one we find no constitutional, no statutory or logical
authority for. That is all.
Ms. Hoff. As long as the legislation applies to
Presidential papers, and as long as, if I am reading it
correctly, it does specifically indicate that there will be a
time limit on both the former Presidents' claims to privilege
and the incumbent President's claim to this privilege, this
can't go on indefinitely. That was, I think, a defect of the
Reagan order, a flaw in the Reagan Executive order, that it did
not place a time limit on these claims of either the privacy or
national security with respect to former Presidents and
Presidents.
The time limit, I think, is essential. And I don't think
that would constitute an unnecessary congressional invasion of
Presidential prerogative.
Mr. Kutler. Which you do well in this legislation, the time
limit. No. I think it is very reasonable, very fair.
Mr. Dallek. As I understand it, the executive privilege is
in the service of the effective functioning of the Presidency.
And I think if you are trying to extend executive privilege to
past Presidential materials, I don't see the logic of it. What
I understand is that you want to defend national security
against intrusion. You want to defend privacy rights against
intrusion. But I am hard-pressed to understand why executive
privilege claims would still operate in relation to past
Presidential activity. That individual is no longer President
of the United States. His functioning as President is no longer
going to be--because I assume that you are talking about quite
specific things. You are not talking about some general
principle as to the functioning of the Presidency. But quite
specific instances in which the President is eager to maintain
control of information, of his communications between himself
and particular aides.
And so I find extending executive privilege to past
Presidential materials as something that I am not very
sympathetic to or sympathetic to at all.
Mr. Ose. Do any of you have any comments or suggestions on
our bill to amend the Presidential Records Act beyond what has
already been covered in your testimony, both written and oral?
Mr. Kutler.
Mr. Kutler. Yes. I have one.
Mr. Ose. We are going to open the door for you here. Don't
leave this room and say we didn't give you a chance.
Mr. Kutler. One little one, Congressman. I am not quite
clear that this is stated in the proposed bill. But one of the
most disturbing things to me, because I have been through this,
is the idea that the former President will be extended legal
counsel by the Department of Justice. That is not a very level
playing field.
Mr. Ose. In terms of financing the cost of any litigation?
Mr. Kutler. Right. And that is new in this Executive order.
That is new. That was proposed. And I would hope that would be
removed or specifically opposed, however you want to do it. But
I really think that there is a level playing field that is at
stake in this.
Mr. Ose. All right. Anybody else?
Ms. Hoff. I thought the current legislation does that,
though. Doesn't the proposed legislation?
Mr. Ose. The current Executive order extends the financial.
I don't believe the Horn legislation includes the financing of
defense. It is being whispered in my ear here ever so
eloquently that the Horn legislation would, in effect, repeal
the Executive order and thereby remove the financial
protection.
Ms. Hoff. It would also then remove the necessity for the
researcher to go to court to sue for these records. Yes.
Mr. Kutler. Well, if the overturning of the order does
that, then fine.
Mr. Ose. OK. Fine.
Ms. Hoff. These are the two key provisions, I think, with
respect to the average researcher that--the reversal of the
burden of proof simply would kill historical research for all
intents and purposes because we normally as researchers don't
have financial backing to bring suit.
Mr. Ose. All right. I think that concludes our hearing. I
want to thank the witness for joining us today. I appreciate
you all taking the time. It has been very informative. I know
that Chairman Horn is intent on pursuing this, as are many of
his colleagues on both sides of the aisle. Your comments and
insights will be incorporated into our deliberation. We thank
you for coming. We are adjourned.
[Whereupon, at 4:40 p.m., the committee was adjourned.]
[The prepared statement of Hon. Constance A. Morella, Hon.
Elijah E. Cummings, and additional information submitted for
the hearing record follows:]
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H.R. 4187, THE PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2002
----------
WEDNESDAY, APRIL 24, 2002
House of Representatives,
Subcommittee on Government Efficiency, Financial
Management and Intergovernmental Relations,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:02 a.m., in
room 2154, Rayburn House Office Building, Hon. Stephen Horn
(chairman of the subcommittee) presiding.
Present: Representatives Horn, Lewis, Ose, Burton [ex
officio], Schakowsky, Maloney, and Waxman [ex officio].
Staff present: J. Russell George, staff director and chief
counsel; Bonnie Heald, deputy staff director; Henry Wray,
senior counsel; Justin Paulhamus, clerk; Darin Chidsey,
professional staff member; David McMillen, minority
professional staff member; Jean Gosa, minority clerk; and Karen
Lightfoot, minority senior policy advisor.
Mr. Horn. A quorum being present, the Subcommittee on
Government Efficiency, Financial Management and
Intergovernmental Relations will come to order.
This is our third hearing on Executive Order 13233 and its
impact on the Presidential Records Act of 1978. Our
subcommittee held the first hearing on this subject last
November. The full Committee on Government Reform held a
similar hearing on April 11th of this year. At both hearings
historians, attorneys, and other experts testified that the
Executive Order 13233 violates the Presidential Records Act and
will greatly impede the public release of Presidential records
as intended by the act.
Our early hearings fully explored the problems with
Executive Order 13233. Today's hearing focuses on potential
solutions. Specifically, we will consider H.R. 4187, a bill
that I and several of my colleagues introduced on April 11th.
H.R. 4187 would replace the Executive order with a statutory
process for former and incumbent Presidents to review records
prior to their release and assert executive privilege claims if
they so choose.
Unlike Executive Order 13233, the review process in this
bill complies with the letter and spirit of the Presidential
Records Act. Most important, the bill imposes a firm time limit
on the review of records and assertions of privilege claims. It
would no longer be possible for a former or incumbent President
to prevent the release of records indefinitely simply by
inaction.
Given the safeguards already built into the Presidential
Records Act, a former or incumbent President should rarely, if
ever, need to resort to executive privilege claims. Indeed, no
such claims have yet been asserted. The problem is that the
open-ended and unreasonably long reviews have substantially
delayed public access for records under the act. The current
administration prevented the release of an initial portion of
former President Reagan's records for 1 full year after the
date on which they should have come public under the
requirements of the Presidential Records Act.
I hope that today's hearing will help us decide whether to
move forward with H.R. 4187, and, if so, whether there are ways
to improve the bill.
I regret that the Justice Department declined our
invitation to testify at today's hearing. However, we have an
excellent panel of witnesses who represent different
viewpoints. I welcome all of you and I look forward to your
testimony. We also have received several written statements,
and without objection they will be included in the hearing
record. One is the various parts of Judge Sirica to set the
record straight, a very worthwhile book to read if you're going
to talk about executive privilege and anything else. The other
is from John Bradamus, a very distinguished Member of the House
of Representatives and one of the key authors in the 1978 act.
So both Dr. Bradamus and the judge's books we will file.
Without objection, so ordered.
[The prepared statement of Hon. Stephen Horn and the text
of H.R. 4187 follow:]
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Mr. Horn. We will now get to panel one. As you know, this
is an investigatory subcommittee, and if you have any aides
helping you to answer the questions, we'll also put them under
oath.
[Witnesses sworn.]
Mr. Horn. Thank you. The clerk will note that all four
witnesses have affirmed the oath.
We will go as it is in the agenda, and that is by Jonathan
R. Turley, professor of law, George Washington University Law
School.
I'm going to yield first to the gentleman from California
and the ranking member for the minority.
Mr. Waxman. Good morning. Thank you very much, Mr.
Chairman.
I'd like to commend you and Representative Schakowsky for
the work you've done on H.R. 4187. I believe it's a good bill
and a necessary one. That's why I joined you and Chairman
Burton as original cosponsors.
The Bush Executive order which changes the management of
the Presidential Records Act is seriously flawed. The order
takes a law that was designed to make documents readily
available to the public and establishes procedures that are
designed to block access.
In 1989, President Reagan issued an Executive order to
implement the Presidential Records Act. This order set up a
process for claims of executive privilege by former Presidents
to be reviewed and evaluated. The new order by President Bush
eliminates any review. Any claim of executive privilege,
legitimate or not, must be followed by the Archivist. Once a
former President claims executive privilege, President Bush's
order also makes it very difficult for a citizen to challenge
that claim. In order to prevail in court, the order requires a
citizen to show a demonstrated and specific need for the
documents. How do you do this if you are denied access to the
documents?
President Bush's Executive order even appears to establish
a process for extending executive privilege to former Vice
Presidents. The first beneficiary of this new process would be
his own father. No court has ever recognized such a right for
Vice Presidents.
H.R. 4187 revokes the misguided Executive order issued by
President Bush. In its place, it essentially codifies the terms
of the Executive order issued by President Reagan. H.R. 4187
also puts into law specific time limits for the review of
documents, thereby preventing current and former Presidents
from delaying decisions indefinitely.
I hope we can move this bill through the committee quickly
and then bring it before the House. I want to commend you and
express my strong support for your efforts.
[The prepared statement of Hon. Henry A. Waxman follows:]
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Mr. Horn. I thank you for that.
We now have the gentleman from northern California, Mr.
Ose, for an opening statement.
Mr. Ose. Thank you, Mr. Chairman. I appreciate the
opportunity to join in this morning, and I do have an opening
statement.
In the 1978 Presidential Records Act, Congress clearly
intended to make Presidential records available for
congressional investigations and then for the public after a
12-year period. The act authorized the National Archives and
Records Administration to issue implementing regulations.
President Reagan's 1989 Executive Order 12267 expanded on
NARA's implementing regulations. This order clarified some
areas not specifically addressed in the regulations. Most
importantly, the order identified only three areas where access
to Presidential records could be limited: if disclosure might
impair national security, law enforcement issues, or the
deliberative processes of the executive branch--clearly,
logical exclusions.
However, President Bush's 2001 Executive Order 13233
changed these access limitations. In a nutshell, law
enforcement was dropped and two areas were added. The first
area is communications of the President or his advisors,
commonly known as the ``Presidential communications
privilege,'' and the second one is legal advice or legal work,
which is the attorney/client or attorney work product
privileges. Both of these added provisions could severely limit
congressional access to key documents in its investigations of
a former or current administration.
Last November, a week after issuance of President Bush's
order, I raised concerns in the subcommittee's hearing on the
order. I questioned the administration about the legal and
substantive justification for this or other policy changes of
this nature. After the hearing and further discussions with the
administration, I'd hoped that the administration would amend
or revoke its order. Unfortunately, it has not done so. As a
consequence, I believe that legislation is needed to void the
order--that's the Bush order--so that the Reagan order will
again govern access to Presidential records. H.R. 4187, the
Presidential Records Act Amendments of 2002, by the chairman
would do just that.
The Bush order violates not only the spirit but also the
letter of the Presidential Records Act, period. It undercuts
the public's rights to be fully informed about how its
Government operated in the past or operates today, period. It
needs to be rescinded, period.
I yield back.
[The prepared statement of Hon. Doug Ose follows:]
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Mr. Horn. I now yield to the gentleman from Kentucky, Mr.
Lewis. We're delighted to have you here.
Mr. Lewis. Thank you, Mr. Chairman. I have no opening
statement. Thank you, though.
Mr. Horn. OK. Well, we will then proceed with Jonathan R.
Turley, the professor of law for the George Washington
University Law School.
Professor Turley.
STATEMENT OF JONATHAN R. TURLEY, PROFESSOR OF LAW, GEORGE
WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Turley. Thank you, Chairman Horn. It is an honor to
once again appear before this subcommittee and its
distinguished members. I know that your time is limited today,
and so, with the consent of the committee I would like to
submit a longer statement into the record. It is also an honor
to lead a distinguished panel with three men that I have really
boundless respect for, even though we have some disagreement on
issues of executive privilege. That includes Professor Rozell,
who I consider perhaps the Nation's leading expert on executive
privilege, and Mr. Rosenberg, who is, I think, one of the
greatest experts within the government on that subject, and
also Mr. Gaziano, who takes, in my view, a different view of
the Constitution, but one that deserves most serious attention.
As many of the members have already heard the oft-cited
quote of James Madison that a popular government without
popular information or the means of acquiring it is but a
prologue to a farce or a tragedy. It is a warning that we all
have to take to heart, because it establishes a close
connection between popular government and public information.
Public information is in some ways the oxygen upon which
popular government lives and grows and flourishes, and in the
category of public information there is no information that is
more illuminating or important than Presidential papers. To
look at government policy without looking at Presidential
papers in a timely fashion is like reading the Bible without
reading Genesis--it misses the very essence and creation of
public policy when it is created in this country.
Obviously, when Presidents attempt to restrict access,
there are suspicions of tailoring a legacy through the control
of information. That suspicion, unfortunately, has been well
based historically, as Presidents have changed their position
on the release of information, depending on its content. As I
note in my testimony, Richard Nixon is a great example, where
in 1961 he was a great advocate for the release of information
after the Bay of Pigs controversy, and then, as we all know, he
changed his position and changed the government's entire
philosophy on Presidential records in a series of excessive
executive privilege assertions.
It is ironic to appear in a position today to advise this
committee that I believe that the Executive order of President
Bush is facially unconstitutional, because I was one of the
academics that strongly encouraged this administration to
attempt to repair executive privilege after a series of losses
during the Clinton administration. So my disagreement with the
Bush administration is one of degree rather than purpose.
I'm, quite frankly, perplexed by the executive privilege
fights that have been selected by this administration. With
executive privilege in a fairly anemic condition after a number
of negative rulings, it was essential for this administration
to select its fights carefully. I do not understand the
selection process that has been made on this issue or previous
issues in disagreements or confrontations with Congress.
In my view, Executive Order 13233 is flawed as a matter of
law and extremely misguided as a matter of public policy.
My testimony goes through the history on Presidential
papers and the disagreements that have occurred between these
two branches of government. Suffice it to say, for much of our
period we went through a proprietary period, as I refer to it
in my testimony, in which Presidents asserted that Presidential
papers were their personal property. That led to incredible
historical losses, as Presidents like Grant and Pierce and
Arthur had their papers destroyed. Some of Abraham Lincoln's
papers were destroyed, as were other Presidents. Of course, it
was Richard Nixon that brought a quantum change in this subject
in the status of Presidential papers, for the most unexpected
of reasons.
Out of the Nixon controversy Congress moved to change the
status of Presidential papers. Congress asserted that those
Presidential papers are public property. In my view, while this
is referred to as a ``change,'' I think it is more of a
recognition. I think the view of private ownership was flawed
from the beginning and these papers were always public
property.
I'd like to move quickly to what I consider to be some of
the flaws in the Executive order and why this particular piece
of legislation is warranted.
In any constitutional analysis of the Executive order you
have to start, I think, with a conceptual question, and that
is: if these documents are truly public property, it changes
the entire dimension of the constitutional analysis. Unless the
Bush administration is going to challenge that concept, the
threshold issue of public policy means that this body could
have designated any other office to hold these papers,
particularly after 12 years. For example, Congress could have
established that after 12 years these papers are given to the
Library of Congress, and thereby none of these executive
privilege arguments would be compelling except for the ability
to exert executive privilege and the possibility to go to court
to protect that.
So the fact that this body could have given these papers to
the legislative branch I think informs some of the questions
here and creates an option, quite frankly, that this body may
consider.
The problem with the Executive order is that it is in
direct disagreement with the language of a Federal statute. An
Executive order cannot engage in legislation. It cannot reverse
a legislative decision by this body. As my testimony goes
through, it does so.
Since my time is running out, I'll----
Mr. Horn. I'd just say with all you distinguished
professors, let's go at least for 10, and maybe 12, and we'll
give everybody the same thing, and when you're done we will
have the opening statement of the ranking member.
Mr. Turley. There are thousands of deceased academics who
are smiling from Heaven. Thank you. [Laughter.]
The 5-minute rule is like the final circle of hell for
someone trained to speak in 50-minute increments.
Moving beyond the threshold constitutional question, unless
there is a direct challenge to the constitutionality of the
PRA, the Executive order cannot contradict or amend what this
body has previously enacted, but it does so on a variety of
issues. First, there is a negation of the statutory buffer
period that the Congress established. In my view, the 12-year
period is a generous period to allow confidential
communications to go through a cooling period. After 12 years,
I think arguments of executive privilege over confidential
communications are somewhat suspect. It is a long period for
which public access will be denied.
Second, it materially changes the role of the Archivist. In
the PRA, the Archivist is a central player in this legislative
scheme. The Executive order reduces the Archivist to a bit
player. It negates his entire role or her entire role to move
this material as expeditiously as possible into the public
domain.
Under the Executive order, a former President can daisy-
chain extensions indefinitely, thereby negating the ability of
the Archivist to do what this body established as the
Archivist's responsibility.
Three, it changes the status of a former President and
allows the former President to exercise final control over
records. In my view, this raises not just legal questions in
terms of the statute, but constitutional questions. A former
President has been recognized by the Supreme Court to have some
lingering executive privilege authority, but in my view the
Executive order takes that limited precedent and moves it far
too radically in favor of an absolute privilege.
One of the most baffling aspects of executive privilege is
to essentially give the heirs or designees the right to use
executive privilege on behalf of a former President. Under the
language of this executive privilege, the designee may not even
be a family member. The designee could be a half-wit. It could
be a foreign citizen. It could be Rasputin for all we know. You
could have a foreign citizen exercising executive privilege
over American documents.
Now, if one looks at the ``L.A. Times'' recently, you'll
see that just yesterday the daughters of Richard Nixon have
gone into a terrible fight over the future of his library and
papers. That's an example of what this Executive order promises
for the future. It can turn executive privilege from a limited
constitutional doctrine into a matter for probate, in which the
question is who is bequeathed a very important constitutional
right. Well, the executive privilege isn't an ottoman. It is
something that cannot be passed down from Presidents to their
heirs or to their friends.
More importantly, the Executive order indicates that if a
President is disabled, where a President may not even agree
with the executive privilege, that the heirs can simply go to
court, find the disability, and start to exercise executive
privilege. In my view, that is an extremely dangerous and
counterintuitive approach to executive privilege.
It also changes the burden for the release of documents and
the standards for access to documents.
All of these, in my view, violate Federal law and therefore
also violate the Constitution of the United States in terms of
this body's inherent legislative authority.
I'll simply close by noting that I think it is unfortunate,
but I think that in the last few months we have a case of the
over-play of a constitutional hand. I think that the Bush
administration was correct to make executive privilege a
priority in terms of repairing damage done in the previous
years, but it has not selected those issues very carefully.
This is an issue that is enormously important to us as a people
because it's about our legacy, it's about who we are, and the
most incredible moment of a Madisonian democracy occurs in
January when a President is converted from the most powerful
person on Earth into an average citizen. That's something that
is as important as the legacy of access to public documents.
What's at stake here is not a simple, arcane, academic dispute.
It goes to the very foundations of who we are as a
Representative Democracy.
Thank you very much.
Mr. Horn. Thank you. That's a very eloquent statement.
[The prepared statement of Mr. Turley follows:]
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Mr. Horn. Now I yield to the gentlewoman from Illinois, Ms.
Schakowsky, for an opening statement.
Ms. Schakowsky. Thank you, Mr. Chairman, for holding this
legislative hearing and for your pursuit of the public's right
to know. I look forward to working with you to move this bill
quickly through the committee process and convincing the
Republican leadership of the House to allow a vote on the bill.
I appreciate Mr. Turley's testimony and look forward very
much to the others, and just want to make these comments.
President Bush has made an unprecedented assault on the
public's right to know. In doing so, the President has
challenged the Congress and is attempting to keep the public in
the dark. The intent of the Presidential Records Act is clear.
Deliberative documents are to become public after 12 years.
President Bush's intent is equally clear. He intends to do
everything in his power to keep deliberative Presidential
documents out of public hands.
Vice President Cheney refused to tell the GAO who he met
with in developing the administration's energy policy. He
claimed that to do so would make it difficult for the President
to get unvarnished advice; however, the President's Executive
order on Presidential records makes it clear that the goal is
to try to keep these documents from the public forever.
The President's men do not fear that the advice will be
tarnished. Their fear is that the public will discover their
real motivations for drilling in Alaska, for the tax cut, or
for privatizing Social Security.
In reality, the legislation we are discussing today I
believe is really a gift to President Bush. It's a way out. He
and his administration should support it. I don't think the
President and his men want to have a Papergate on their hands.
Secretary Evans is fighting the Congress and the public
over releasing corrected census counts. The courts have been
clear that these numbers should be public not deliberative and
should be released. Still, the administration persists.
When the Attorney General learned that the court had
ordered the census data released, he called in a new team of
lawyers to plead for reconsideration. They, too, failed, but in
doing so they laid the groundwork for the administration's
defense of not releasing the energy information.
The list of secret activities goes on and on--energy,
census, tobacco, health and the environment, to name just a
few.
The Executive order that led to the bill before us today is
particularly outrageous. First, it makes it easier for
Presidential records to be withheld from the public, just the
opposite of the reason Congress passed the act in the first
place. Second, the order tries to extend that protection into
the grave by giving the President's family or representatives
the right to assert executive privilege. If that weren't
enough, the order then tries to give executive privilege to the
Vice President. We've got Presidents, past Presidents, Vice
Presidents, dead Presidents.
We should not have been surprised at the goal of this
order. Just before the President left Austin, he made a deal to
move his gubernatorial papers out of the State archive to his
father's library, where no one can gain access to them. Those
are public records that do not belong to President Bush, Senior
or Junior.
The Presidential Records Act was a high-water mark for
Congress. It asserted the public's right to know how the
administration does business in an unprecedented way. For the
first time in the country's 200-year history, the public was
granted access to the documents that guided policy at the
highest levels. Now, just as the act is beginning to have an
effect, President Bush wants to undo it.
Again, I have to ask: What is he trying to hide? Is there
something in his father's papers about the Iran contra scandal
that would embarrass the family? Or did the President's
advisors know that the Reagan tax cut would drive the
government into deficit, just as the Bush tax cut has? Reagan's
Interior Secretary James Watt was convicted of withholding
documents from a grand jury investigating the scandals at HUD.
Do these papers tell more of that story? Just what is it they
are trying to hide?
Thank you, Mr. Chairman.
[The prepared statement of Hon. Janice D. Schakowsky
follows:]
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Mr. Horn. We now move to Morton Rosenberg, the specialist
in American public law for the Congressional Research Service,
Library of Congress, a group that we count on to give us a
bipartisan, correct view.
STATEMENT OF MORTON ROSENBERG, SPECIALIST IN AMERICAN PUBLIC
LAW, AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH SERVICE
Mr. Rosenberg. Thank you for having me here today. This is
an important subject and one that needs immediate attention,
which your committee is giving.
Let me start with my conclusion. I believe that Congress'
authority over the papers of past Presidents has been
recognized by the Supreme Court and lower courts since 1977.
Your bill, H.R. 4187, is well within the parameters of its
acknowledged authority in this area. The bill, therefore, may
repeal Executive Order 13233 and replace it with procedures
that assure an opportunity for former and incumbent Presidents
to assert constitutionally based privileges.
Moreover, the substantial legal and constitutional
questions that have been raised by key provisions of the
Executive order gives further impetus to the congressional
option of enacting a legislative solution immediately by
legislation rather than waiting for the outcome of litigation
that is likely to be quite extended and might not even be
dispositive of the merits issues.
Finally, I believe that experience under the order suggests
that unilateral delay is a strong likelihood, despite the
recent release of all but 150 pages of the originally withheld
68,000 pages. Millions of pages of documents are yet to be
processed, and the potential for unwarranted delay, however,
remains embedded in this order.
As you well know, the President's order has precipitated
much controversy and resulted in this being the third hearing
by this committee, the filing of a lawsuit challenging the
legality of the order, and an outpouring of public commentary.
I believe this has well served the committee's concerns
with the legal and practical problems raised by the order with
respect to the effective implementation of the Presidential
Records Act.
The bill would repeal Executive Order 13233 and establish a
new process for consideration of claims of constitutionally
based privileges by past and incumbent Presidents.
Like the President's order, the bill would require the
Archivist to notice past and present Presidents of his
intention to publicly release Presidential records that have
not been made previously available. The Archivist would be
required to withhold records or parts of records for which
incumbent Presidents claim privilege. Under the bill's scheme,
a requester would have the burden of going to court to
challenge the withholding, and the Archivist could not release
the materials until the court so ordered or the privileged is
waived by the incumbent President.
But with respect to a former President, the bill provides
that, after a review period by him of 20 work days, which may
be extended to an additional 20 work days, the Archivist may
release the records unless the past President invokes
privilege, and on receipt of the privilege claim the Archivist
must wait 20 days before releasing the subject material unless,
before the expiration of that period, the past President
initiates a legal action under Section 2204(e) of the act and a
court enjoins the release of those papers.
Claims of privilege under your bill would have to be in
writing, specify the record or the portion of the record to be
withheld, be signed by the incumbent or past President, and
state the nature of the privilege.
The bill, I believe, would appear to raise no substantial
constitutional or legal questions. There would appear to be no
question that Congress may repeal an Executive order. Well over
200 orders have been revoked or modified since the second
Cleveland administration. Nor do the procedures adopted in the
bill materially differ from those found constitutionally
appropriate by the Supreme Court in Nixon v. Administrator of
General Services dealing with the Nixon papers, or subsequent
lower court rulings treating issues under the Nixon papers
legislation.
H.R. 4187 does not appear to interfere with the ability of
a former or incumbent President to exercise to the fullest
extent the protections of executive privilege accorded them
under the Constitution and the case law interpreting the scope
of that privilege.
The D.C. Circuit's rule in Public Citizen v. Burke would
appear particularly supportive in its holding that an attempt
by the Justice Department to force the Archivist to acquiesce
in any claim of privilege asserted by former President Nixon,
and thereby block disclosure of materials, was inconsistent
with the Presidential Recordings and Material Preservation Act
and a regulation promulgated pursuant to it which empowered the
Archivist to reject claims of privilege and which required the
former President to seek court redress.
The court set the standard with respect to such a provision
as one that would afford an opportunity to Mr. Nixon to assert
his privileges. The opportunity to assert constitutionally
based privileges is fully accorded to the former and incumbent
Presidents under your bill, and therefore is likely to be held
constitutional.
As Professor Turley has pointed out, the Executive order is
considerably flawed. I think the most serious flaw in it, as
Professor Turley has pointed out, is the denigration of the
role of the Archivist. If you look at the litigation in
American Historical Association that is presently going on, the
view espoused by the government in attempting to defend against
the suit is essentially that the Archivist, who was appointed
by the President and is removable by him, is beholden to him.
It is an assertion or a reassertion of what I believe to be a
now-discredited theory of unitary executive, and it totally
ignores both the case law with regard to Congress' authority in
an area such as this, as well as another line of case law which
has rejected the idea of the hierarchical nature of the
executive branch.
As Professor Turley has pointed out, the PRA is the product
of a history which, prior to 1974, Presidents exercised
complete control over Presidential papers.
Following the resignation of President Nixon in 1974 and
his attempt to, through an agreement with the Administrator of
General Services to maintain control of his papers, Congress
acted to take control of official records of Presidents and
enacted the Presidential Recordings and Materials Preservation
Act, which directed GSA to take custody of all tape recordings
and other Presidential materials accumulated during that
Presidency and required the Administrator to promulgate
regulations governing access. The Supreme Court upheld that act
as facially constitutional.
But the controversy over the Nixon papers prompted further
action by the Congress, and that reconsideration resulted in
the passage of the Presidential Records Act in 1978, which
terminated the tradition of private ownership of Presidential
papers and reliance on volunteerism to determine the fate of
their disposition.
Under the PRA, the Archives Administration and the
Archivist are given total control of the management,
preservation, and ultimate public dissemination of records of
past Presidents, which are made the property of the United
States. The act gives specific directions for the custody and
administration of such records, the end goal being the
affirmative duty of the Archivist to make such records
available to the public as rapidly and as completely as
possible.
This encompassing supervisory role of the Archivist is
central to the accomplishment of the congressional purpose.
Section 2203 (a) and (b) directs the President, under the
supervision of the Archivist, to ensure adequate documentation
and to categorize and file appropriately those documents to the
extent practicable. It restricts the President while in office
from disposing of those materials.
The directions in the PRA start with a new administration,
ensure that records are preserved, ensure that, during the
period of an administration that--for instance, if a President
wants to destroy records, that the Archivist has a say over it,
and ultimately they can come to Congress and lay before--the
Archivist can come to Congress and place before Congress for a
60-day period a stay on disposition of records that allows the
Congress to stop any kind of destruction of documents. It
continues after, of course, a President leaves office.
This entire scheme is a complete scheme that, as two courts
recently have held, occupies the field of Presidential
documents. In those two cases, one during the Clinton
administration and the second in this Bush administration,
involved Executive orders that attempted to circumvent certain
labor laws established under the National Labor Relations Act,
which makes the National Labor Relations Board the focal point
of regulating and facilitating collective bargaining in the
private sector. Both those orders by President Clinton and
President Bush altered the scheme, and in both those cases the
courts declared those Executive orders unlawful, essentially on
the ground that Congress had delegated the authority with
respect to regulation in those areas specifically by law to
another office of the United States, and the President, by
Executive order, could not change them.
The question with respect to the power of a President over
subordinates whom he can fire is perhaps one of the most
important constitutional issues of this day and past days. The
question presented by the government's assertions in the
American Historical Association case is whether the President,
as in this--is whether the President may direct the head of an
agency to alter his judgment as to the appropriate manner in
which he complies with specific congressional mandates to him,
or even displace the judgment of the agency head by acting on
his own.
Based on a long line of Supreme Court precedents, this
question presents very little difficulty. The President does
not have the authority to displace the ultimate decisionmaking
power vested in the head of an agency by Congress. The Supreme
Court rulings in Morrison v. Olson in 1988 and Mistretta v. the
United States in 1989 have clearly dispelled the notion that
executive power is hierarchical and uniquely vested in the
President, alone--the so-called ``theory of the unitary
executive.'' Morrison and Mistretta confirmed what has been
understood since the dawn of the republic--that the President's
duty under Article Two to take care that the laws are
faithfully executed vests him with no supervening substantive
power, but simply is meant to enlist him to ensure that
subordinates in whom Congress vests the duty to carry out its
directions do so scrupulously.
Historically, Article Two has been seen as clearly
anticipating the creation of an administrative bureaucracy by
mentioning heads of departments, and the necessary and proper
clause makes it certain that it would be Congress, alone, that
would do the creating. In this scheme, Congress can assign to
the head of a department or a subordinate official executive
power not textually reserved to the President in Article Two.
Moreover, Congress has properly understood that the take care
clause has not been read by the courts to vest absolute power
in the President over heads of departments and other
subordinate officials. That clause has been held to require
only that the President shall take care that the laws be
faithfully executed, regardless of who executes them, a duty
that is quite different from the claim of a single-handed
responsibility for executing all the laws.
A literal reading of the take care clause confirms that the
President's duty to ensure that officials obey--confirms that
it is the President's duty to ensure that officials obey
Congress' instructions. It does not create a Presidential power
so great that it can be used to frustrate congressional
intention. In the words of the Supreme Court, where a valid
duty is imposed upon executive officials by Congress, the duty
and responsibility grow out of and are subject to the control
of the law and not to the direction of the President.
In the past, similar claims of broad substantive authority
deriving from the take care clause have been consistently
rejected by the courts. The Supreme Court at Youngstown Steel
is a principal one.
This constitutional flaw in itself condemns this order and
commends your action in attempting to repeal it and substitute
appropriate procedures in its stead.
Thank you.
Mr. Horn. I thank you.
[The prepared statement of Mr. Rosenberg follows:]
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Mr. Horn. We will now go to Professor Mark J. Rozell, the
Catholic University of America.
We're glad to have you here.
STATEMENT OF MARK J. ROZELL, PROFESSOR OF POLITICS, THE
CATHOLIC UNIVERSITY OF AMERICA
Mr. Rozell. Thank you. Thank you, Mr. Chairman, for the
opportunity to address the subcommittee.
I am the author of various studies on executive privilege,
and I testified last year before this subcommittee that the
Bush Executive order improperly expands the scope of the
executive privilege and that it wrongly supersedes Congress'
legislative authority. There was a very strong consensus at
that hearing--and the scholarly community has since
overwhelmingly weighed in--that the Executive order is deeply
flawed. In addition to violating the traditional standards of
executive privilege and the legislative power, the Executive
order unlawfully displaces the decisionmaking authority vested
in the Archivist. The Executive order, as Mr. Ose said in his
opening statement, undercuts both the text and the legislative
history of the Presidential Records Act.
In our constitutional system of separated powers, the
President does not have the authority to use Executive orders
to negate statutory policy, as my colleague Mr. Turley said in
his opening statement. An Executive order is proper when it
concerns an independent Presidential power contained in the
Constitution or some executive power granted by an act of
Congress. Neither circumstance exists in this case.
The Supreme Court ruled in Nixon v. Administrator of
General Services that Congress possesses the power to legislate
in the area of public access to Presidential papers. No
legislative enactment authorizes an Executive order to govern
the release of Presidential records.
Thus, the question no longer is whether the Executive order
is legitimate--clearly, it is not--but whether a legislative
remedy is proper or necessary. I believe that it is well within
the congressional authority to repeal this Executive order and
also to define the process for claiming and resolving executive
privilege claims that arise from requests for the papers of
past administrations.
It is not sufficient, in my view, for Congress merely to
reinstate the Presidential Records Act and to repeal the
Executive order. The administration, I believe, is correct in
its view that the Presidential Records Act needs to be
revisited and that, in hindsight, some of the law's provisions
may be flawed. And the Executive order raises some legitimate
points about the practical difficulties of implementing
Congress' intent under the law in certain circumstances such as
the disability of a former President. But a legislative remedy
is the appropriate course of action to solve such problems,
rather than to allow an Executive order to supersede an act of
Congress.
As my colleague, Mark Rosenberg, said in his statement, I
also believe that a legislative remedy is far preferable to
waiting for a resolution in the courts or a redrafting of the
Executive order by the executive branch, which I don't believe
is forthcoming.
Presidential papers I believe should be handled by statute
and not by Executive order. Presidential papers are ultimately
public documents. They are a part of our national records and
they are paid for with public funds. They should not be treated
merely as private papers.
The Bush Executive order conflicts with the established
principle that an ex-President's interest in maintaining
confidentiality erodes substantially once he leaves office and
it continues to erode over time, and that is quite clearly
established in constitutional law. Executive privilege exists
for former Presidents, but the standard for sustaining such a
claim of privilege is very, very high. Executive Order 13233
actually allows an ex-President's claim of privilege in almost
all cases to override a sitting President's judgment, and yet
executive privilege is an exclusive Presidential power.
The Bush Executive order creates overly burdensome
procedures that prevent access to Presidential records. The
legal constraints built into the Executive order will have the
effect of delaying documents for years as these matters are
fought over in the courts. These obstacles, alone, will settle
the issue in favor of former Presidents, because many with an
interest in access to governmental records will conclude that
they do not have the time or financial resources to stake a
viable challenge. Under the Executive order, the burden shifts
from those who must justify withholding information onto those
who have made a claim for the right of access to information.
The Bush Executive order allows a former President to
designate a representative to make executive privilege claims
on his behalf even after the former President has died. In
testimony before this subcommittee last year, the
administration's witness stated that a former President ``may
designate whomever he sees fit.'' Thus, the Executive order
wrongly allows executive privilege and exclusive Presidential
power to be transferred to a private citizen.
Now, as I stated in my November 6, 2001, testimony before
this subcommittee, I am very dubious about the idea of a
legislated definition of executive privilege. Very
appropriately, H.R. 4187 leaves the definition of the scope of
that power to Presidents and the courts and instead merely
remedies troublesome procedures over the exercise of the
privilege. Thus, this bill does not infringe on a President's
or ex-President's constitutional prerogative. Indeed, the bill
protects the interests of former and incumbent Presidents by
establishing a procedure whereby they are provided a reasonable
time period to review governmental records to consider whether
to claim executive privilege.
The bill further requires the Archivist to abide by any
such claim of privilege by an incumbent President, and it does
place a burden on those seeking access to such records to seek
a judicial remedy.
There is nothing in the bill that suggests the likely
outcome of any executive privilege dispute. The bill
appropriately allows such disputes to be settled on a case-by-
case basis, either through a process of accommodation or in the
courts.
H.R. 4187 thus fulfills some of the objectives of the Bush
Executive order without improperly expanding the scope of
executive privilege. It also allows a reasonable timeframe for
former and incumbent Presidents to consider a claim of
executive privilege, which protects the interest of those in
need of a timely release of information.
This bill remedies the problem of the Executive order
displacing the authority vested in the Archivist. Under the
Executive order, the Archivist loses his or her discretion to
rule on the propriety of a former President's claim of
privilege. This provision clearly conflicts with the
congressional intent of the Presidential Records Act of 1978.
H.R. 4187 offers a workable middle ground by requiring the
Archivist to withhold records long enough for the former
President to file a suit to protect his claim of privilege.
H.R. 4187 reaffirms the principle that executive privilege is a
Presidential power that cannot be delegated to some other
person and cannot be exercised independently by a current or
former Vice President.
The bill also reaffirms the important principle that the
incumbent or former President formally invoke executive
privilege in writing and specify the reasons for so doing.
Finally, this bill overcomes a major flaw in a provision of
the Bush Executive order that requires an incumbent President
to support a former President's claim of privilege even if the
incumbent disagrees. This provision clearly violates the
constitutional requirement that the President take care to
faithfully execute the law. For a President to uphold what he
believes may be an improper use of executive privilege by a
predecessor would violate the Article Two, Section Three Take
Care Clause of the Constitution.
In my previous testimony, I expressed a concern that the
Bush Executive order improperly shifts the burden from those
seeking to withhold documents to those seeking access to public
records. Consistent with the intent of the Presidential Records
Act, H.R. 4187 places the burden once again where it belongs--
on those who want to withhold information. Secrecy occasionally
is necessary for any government to function, even a democracy;
but in a democracy the presumption must be in favor of
openness. In our system of government, secrecy should be the
rare exception and not the rule.
Thank you.
Mr. Horn. Thank you very much.
[The prepared statement of Mr. Rozell follows:]
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Mr. Horn. Our next presenter is Todd Gaziano, director,
Center for Judicial and Legal Studies of the Heritage
Foundation.
Glad to have you here.
STATEMENT OF TODD GAZIANO, DIRECTOR, CENTER FOR JUDICIAL AND
LEGAL STUDIES, THE HERITAGE FOUNDATION
Mr. Gaziano. Thank you, Mr. Chairman and other members of
the subcommittee for inviting me here to testify on H.R. 4187.
Unfortunately, I must reluctantly disagree with my good
friends who are testifying with me today and express my grave
doubts about its constitutionality. I should add, as Professor
Turley did, that I agree with many of the premises in their
testimony. I believe they draw some of the wrong conclusions.
But I am grateful, because I have worked with them in the
past--particularly Professor Turley--in protecting executive
privilege in past administrations.
Let me begin with an important observation about the
relative openness of the three branches of government. The
Executive is by far the most open of the Federal branches in
terms of the release of internal deliberative documents and
almost every other kind of document.
As a result of the PRA, which I think is a very important
and sound legislative act that may have gone a little bit too
far, all Presidential documents from President Reagan's
administration onward will eventually be released to the
public, and I'm very grateful for that.
Moreover, the President does not have the final say, or a
former President, for that matter, over whether his claim of
executive privilege is valid or whether it will prevail over a
given requester. His claim of executive privilege is
presumptively valid, as I think it must be under Supreme Court
in separation of powers law, but it may be overridden by a
court with proper jurisdiction.
In contrast, almost no documents maintained by individual
Members of Congress or the Supreme Court, even those created
with public funds, are subject to public release, and very few
are released without the voluntary assent of the Member or the
justices. We can't examine the Supreme Court Law Clerk's memos
or memos from one justice to another, even of a case that
occurred 50 years ago. The heirs of those justices own those
papers outright. We can't examine the internal memos of Senate
staff that wrote to Senators about some momentous public issue
a decade ago, or a copy of any Representative's confidential
calendar, or a copy of staff notes taken when particular
interest groups met with a Member. No matter how historically
relevant or vital that information might be to an informed
public, it's our tough luck because no law or court can force
their release.
But my testimony today is in support of your private
communications and strategy sessions because I think they are
necessary for the well-functioning of your branch and of the
courts, and, as I've explained in my written testimony, I think
the Supreme Court got it exactly right that for you all to have
to open up every strategy session would not serve the public
interest. Nevertheless, Congress probably could require your
own papers to be opened up to the public. You can do that to
yourselves, but the constitutional separation of powers imposes
limits on Congress' attempts to invade or interfere with the
private sphere of the co-equal branches. You can go so far, and
the Presidential Records Act in the main is about as far as you
can go.
The Supreme Court correctly recognized that
constitutionally based privileges, including executive
privilege, are necessarily rooted in the separation of powers.
The Presidential Records Act of 1978 makes no attempt, as you
know, to expand or contract claims of executive privilege.
Instead, it recognizes in Subsection 2204(C)(2) of the codified
version--and two other places in the statute, I should add--
that the President will assert executive privilege with regard
to some documents that are otherwise subject to release under
the PRA.
Mr. Waxman said that he thought the 12-year period was long
enough, but, as the legislative history of the PRA makes clear
in 1978, Senator Percy said he expected executive privilege
claims to go on for 20 years. Senator Percy and the legislative
history make absolutely clear that they expected Presidents to
assert privilege for up to two decades.
And, as Congress knew at the time when it passed that law,
the Supreme Court had just ruled a year earlier that some
constitutionally based privileges survive the individual
President's tenure. Thus, former President Richard Nixon was
free to continue to assert executive privilege with regard to
documents from his administration. The Supreme Court cited the
practice of the Constitutional Convention with approval. The
Framers ensured that the records of the Convention would be
sealed for more than 30 years. I've explained in my written
testimony why that was important and necessary and serves the
public interest.
Let me turn briefly to an analysis of Executive Order 13233
because I think there has been, in my view, some mis-readings
of that Executive order.
President Bush established in that Executive order neutral
principles for the incumbent and former President to review
documents subject to release and neutral principles for the
invocation of constitutionally based privileges. The bulk of
the Executive order is not only lawful and prudent, but, with
minor exceptions, I believe practically the only way to
implement the Presidential Records Act in a constitutional
manner.
Most of the outside criticism focuses on a former
President's invocation of the privileges--which the Supreme
Court says he can--with respect to documents that contain
confidential communications or reflect high-level executive
branch deliberations, but it is even more important for a
former President to review these kind of documents. It is
possible, even likely, that only he is aware of the sensitive
nature of many Presidential documents from his administration.
He may have a personal recollection of requests for
confidentially. He has a duty to make sure that, by revealing
those documents, he doesn't hurt a future Presidents' ability
to get frank and candid advice.
Now, I do have a concern with allowing heirs to exercise a
constitutional executive privilege, but in my view there's
another way to read the Executive order that maybe the statute,
the Presidential Records Act, authorized that. There is also
the precedent, of course. Lady Bird Johnson has been exercising
control over the Presidential papers, as others did. If that
reading of the Executive order is right, this is one of the
areas that you all may be able to legislate, but I'd like to
explain why I think the President could respond in a different
way and create a committee of the former President's staff if
he's deceased to advise him in his privilege decisions.
Let me turn to another very important, I think,
misunderstanding of the Executive order. Witnesses today have
said that they believe the Executive order requires the
Archivist to follow orders from the previous President, but
that isn't so. In addition, a witness from the subcommittee's
earlier hearing asserted that a case called Public Citizen v.
Burke decided by the D.C. Circuit was inconsistent with a
former President's exercise of privilege, but that also is not
correct.
The D.C. Circuit in that case was concerned about the
Archivist's duty if he received a conflicting instruction from
both the former President and the incumbent President. The
court, in its view, believed that its duty to the incumbent
President was paramount in that potential conflict rendered the
directive invalid. That directive, by the way, didn't come from
President Reagan, so the theoretical conflict was possible. But
Executive Order 13233 doesn't have that flaw. It is an order
from the incumbent President telling him that he shall follow
the former President's invocation, but he is, in a sense, as
I've explained in the written testimony, ratifying every one of
the former President's invocations of privilege.
In that case there's no possible conflict. In that case,
the Archivist has all of the authority of the former President
and all of the authority of the incumbent President, and under
those dual commands--because we know they both possess some
constitutional authority--I submit the Executive order is
clear, and in that case the Archivist is not following any
order from the former President, he's following orders from the
current one.
Let me now turn to an analysis of your very-well-intended
legislation.
Subsection (C) of the new section to me is the most
constitutionally problematic. Subsection (C), as you know,
provides that former President's assertion of executive
privilege is good for only 20 days, and after that period the
Archivist must release the documents unless the former
President has already secured by that point a court order
barring the release.
Subsection (C) attempts to convert an executive privilege
that is presumptively valid and can only be overturned by an
affirmative court order into a right to delay the release for
20 days.
Executive privilege is not just a right to go to court, as
Mort said. It is a right to bar the release of documents
pending a court order otherwise, so the President's opportunity
to go to court is not a cure for the constitutional defect. In
separation of powers analysis, Congress simply has no power to
take a Presidential power that is exclusively his, like the
executive power, like the pardon power, like the Commander-in-
Chief power, and condition it on the affirmative assent of
another branch of government.
Let me turn now to what I believe are inadequate and
inflexible deadlines in Subsection (A)(3). Subsection (A)(3)
purports to grant the incumbent President or former President
20 days with the possibility of a 20-day extension to review up
to millions of documents that are going to be requested. It
doesn't matter if the President is engaged in a war. It doesn't
matter if the former President is recovering from a stroke. I
believe this inadequate 20--inflexible 20 to 40-day timeframe
for the review of hundreds of thousands of documents is
imprudent, to say the least, to the extent that it burdens the
President's ability to exercise his executive power and perform
other vital duties of his office. I believe it is
constitutionally suspect.
Now let me jump--by the way, I make an analogy to the
Congress' expansion of the power of the President to have
acting officers serve in Senate-confirmed offices--very
important offices. They extended it from 120 to 210 days, with
possibility of extension. And so I believe that the time
periods under the Executive order are positively speedy. But I
do discuss in my written testimony one way that you probably
would have authority to cabin the President's delay, and I
think it has been constructive that you are attempting to
engage the White House on that issue.
The next issue I want to briefly touch on--because Mort has
at some length--is a flaw I think in several provisions of the
bill that violate Article Two and Separation of Powers when
they attempt to make the Archivist the President's superior.
The Constitution provides that the executive power shall be
vested in the President, not some of it. The Supreme Court
properly held that this requires the President's control over
all officers who exercise significant executive power. That
decision, by the way, was the Myers decision in 1926 which some
people believe is completely superseded, but it hasn't been.
All other Supreme Court decisions make minor exceptions to it,
but the Supreme Court still recognizes that it's good law.
Let me address just very briefly Mort's comments. He cites
the fact in his written testimony that the heads of departments
are mentioned in the Constitution so this must anticipate that
Congress would give them statutory authority. Now, it is true
that the Framers knew that there were going to be departments
in Government and it is true that it expected Congress to give
them some specific role to play, but the reasons that the heads
of department were mentioned in the Constitution twice and in
both cases were to show that the President controlled them. The
first time the heads of department are mentioned in the
Constitution is to signify that they must give their opinion in
writing on any subject within their Department to the
President. That, as everyone knows, is a means of control.
The second time the heads of department are mentioned in
the Constitution is when it says who shall appoint them. And,
as the Myers opinion explains in about 300 pages in some
versions, the Supreme Court has said that was hotly debated
topic, meant that the President must be able to control them.
I also have a concern with Subsection (A)(4) that requires
the President to communicate his claims of privilege to the
Archivist in a particular way. I submit Congress could not tell
the President how he must communicate his military commands to
the troops on the field using congressionally approved memo
pads in triplicate. The President can communicate his commands
to his subordinates orally or in writing or any way he chooses,
and this is an area, when he's exercising his constitutional
power, I submit that you have no authority over his management
directives.
With regard to Morrison v. Olson as my written testimony
explains, it does muddy the water. I think there has been more
recent criticism of it than there was at the time. But even if
the court wouldn't reconsider it today, I believe that even
that court wouldn't sanction so basic a violation of executive
power regarding the interests identified in this legislation.
Let me touch one more concern, and that's with regard to
this committee or Congress' ability to overturn the Executive
order.
I clearly think, by the way, that is more likely to be
upheld than affirmative obligations, but I think both are
unconstitutional.
Congress' power to modify or overrule a Presidential
directive depends on the front of the President's authority
over the subject matter of the directive. With the chairman's
request, I have cited a study that I published a year ago on
the use and abuse of Executive orders and other Presidential
directions.
Congress certainly can revoke Executive orders based on
where the President is exercising a statutory power, and I was
fully in support of revoking a lot of President Clinton's
Executive orders. Where the President is exercising a power you
give him, clearly you can revoke those Executive orders, so
those may comprise all of the 200 orders that you all have
revoked. When you have shared powers, you all have some
authority, but it depends on the facts and circumstances and
clauses, as I've explained in my written testimony. But with
regard to powers like the executive powers that are conferred
solely on the President by the Constitution, Congress has
practically no authority to interfere with the President's
management decision.
Although Executive Order 13233 relates to the
implementation of the PRA, at its core it establishes
procedures for the invocation of the President's constitutional
powers.
In short, I think that it would be the legislation that
would be deemed to have no force and effect if it were passed,
and not the Executive order.
Let me tell you again that I think that this committee's
hearings have been very constructive. By highlighting the
concerns of the historians, journalists, and others regarding
the time in which the President reviews documents subject to
release under the PRA, I hope you have helped convince the
White House to speed up its review process, although I think
waging a war is cause for some delay, and having to do it the
first time, as President Bush did, is also a reason for some
delay.
But, notwithstanding the good intentions of the legislation
and these constructive hearings, my sincere and respectful
advice is that further progress will be advanced more
effectively based on an exchange with the White House rather
than on legislation that purports to dictate terms to the
President. I think under those circumstances, if I were in the
Justice Department, I would have to reluctantly urge a veto.
Thank you.
Mr. Horn. Thank you.
[The prepared statement of Mr. Gaziano follows:]
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Mr. Horn. The chairman of the full committee has arrived,
and I will yield such time as he needs.
Mr. Burton. Thank you, Mr. Chairman.
How long have you been in the White House? How long have
you been in government?
Mr. Gaziano. I was in government. I'm at the Heritage
Foundation now. I was in the Office of Legal Counsel in three
different periods, which is the office that advises the
President on executive privilege.
Mr. Burton. OK. Well, I have an opening statement I'd like
to put in the record, Mr. Chairman. I was going to read it, but
after listening to the dissertation of the gentleman that just
spoke I think I'll speak off the cuff.
We had a--so without objection I hope you'll put this in
the record.
Mr. Horn. Without objection, it is in the record at this
point. And if you want it, it will be as if spoken.
Mr. Burton. Thank you, Mr. Chairman.
[The prepared statement of Hon. Dan Burton follows:]
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Mr. Burton. You know, this Executive order goes too far.
That's all there is to it. It just goes too far. And we had a
similar situation where the President claimed executive
privilege after I talked to him about a fellow who was in
prison for 30-some years for a crime he did not commit and the
FBI knew he didn't commit it and they kept him there because
they were protecting informants from the mafia. And the
President said that we weren't going to get those documents
under any circumstances. And so I said I was going to move to
hold the President in contempt of Congress, and then we got the
documents.
Now, you know, you can go into all the hyperbole you want
to about the President's rights and all that other thing, but
he's got to work with the Congress of the United States and
he's got to have votes to pass a budget and appropriation bills
and everything else.
Now, the practical matter of the situation is this: one
House is Democrat and the other he has about a six-vote
majority that's Republican. Now, if this Executive order stands
and the Congress can't have access to the Presidential records
that we need, he's going to have big problems with me. That's
one vote. And when he needs a crucial vote on the budget or on
appropriations or other things, he's not going to get it.
Now, the message--I don't know if anybody is here from the
White House. It doesn't look like many people are paying much
attention. But for the White House to block the Congress from
documents that they rightfully have access or should have
access to is absolutely insane. Now, he can say all he wants to
that he has the right to do this, and he can go into all the
technical aspects of the Constitution that you believe gives
him that right, but from a political standpoint, with the
political situation in Washington being what it is right now,
it makes no sense to me. For him not to allow Congress to see
President Clinton's records or his father's records or Ronald
Reagan's records or Jimmy Carter's records over there without
them signing-off on it when Congress may need those for
pertinent investigations that deal with corruption or illegal
campaign contributions coming from communist China or Macao or
Indonesia or South America or wherever they came from, or other
things, is just wrong.
So I think this legislation has merit, and if the
legislation gets to the floor and it is explained properly, I
believe it will pass. And if he vetoes it, he vetoes it at his
own peril. And you're hearing this from a Republican that
supports him a great deal. I think he's doing a great job on
the war on terrorism. I think he's doing a great job in the
economy. He's my kind of guy. He says it like it is. But
somebody down there--Mr. Gonzales or somebody is giving him
pretty bad advice. They gave him bad advice on the Salvati case
over at the Justice Department, and as a result the White House
got egg all over its face because they gave us the documents
anyhow. We had to force it.
Now, I don't understand why when people sometimes become
President, they listen to people who say self flagellation is
the way to go. Let's just get a cat-of-nine-tails and beat the
hell out of ourselves. It makes no sense.
Now, I don't know if you still have influence down at the
White House or not, but I hope you'll take my statement and
take it back down there.
Mr. Gaziano. I'll----
Mr. Burton. Just give it to the President. He probably is
going to get this at some point.
Mr. Gaziano. He would get it anyway, but I'll be glad to.
Mr. Burton. But the point is I really like this guy. I have
been down there. I've had dinner with him and his wife. I've
gone to the movies at the White House. I think Laura Bush is a
wonderful lady. I think he's a great guy. But somebody is
leading that guy down the wrong path on some of this stuff and
it needs to be cleaned up.
Mr. Gaziano. I'm sure he would read your remarks, or the
White House will, but I'll be glad to pass on the emotion.
And let me tell you how much I admire----
Mr. Burton. You don't need to pass emotion. The words will
carry the emotion.
Mr. Gaziano. I'm sorry. Let me tell you how much I admire
your work, and when I served on a subcommittee under you how
much I tried to help the late, great Barbara Olson in her
endeavors, and I've worked with both Mort and Professor Turley
on some of the individual disputes. Comity is owed both
directions between the White House and Congress. And when I was
an oversight staffer, I think your points are absolutely valid
that the White House needs to respond to the legitimate
concerns of over-using executive privilege.
I do differ in one minor respect though, for the record. I
haven't followed every last detail of this President's
invocation of executive privilege, but I think that this
administration really does have a different approach than the
previous administration. And it may not appear that way, and
maybe if I was doing oversight still for this committee I
would----
Mr. Burton [assuming Chair]. I appreciate your comments,
but Congress still has power of the purse and they still have
power over taxation and everything else that the President
needs and appropriations, you know, and with the political
situation being like it is with her party controlling the
Senate and us controlling the House by a small majority, it
doesn't make any sense for them to be pulling these stunts
because it doesn't work, and we've already proven it once when
we had to take on the Justice Department. So they need to get
some smarts down there. They're doing a great job in a lot of
areas, but somebody has got them stepping on the long hair
running down their back, and it's a mistake.
Did you have any comments you want to make, or did you want
to go to questions?
Would you like to start? I yield to Ms. Schakowsky. Go
ahead.
Ms. Schakowsky. Thank you, Mr. Chairman.
This has been a level of testimony that doesn't often
happen at all of our committees, and I appreciate the academic
approach that all of you have taken, and actually would--
because there was such a difference of opinion expressed here,
and not to gang up on you, Mr. Gaziano, but because you had the
last word, I would actually like to ask the other three who
might differ in opinion with yours to comment on some of the
very different conclusions that you arrived at from their
testimony, and one that I would like to definitely address is
this question of the short-time period that Mr. Gaziano says
that he feels that the time limits imposed on the President are
much too short. So that's just one of those. But I noticed that
you were taking some notes, and I would appreciate your sharing
your views that might run different to his.
Mr. Turley. First of all, I try not to disagree with Todd,
because it indicates most likely that I'm wrong, but our
disagreements I think reflect a different view of executive
privilege and its limits.
The examples that Todd gave I think are good ones,
actually, for the committee to consider. When Todd refers to
this body requiring the President to communicate in a certain
way, and the analogy driven by Todd is, you know, could you
require him to speak to his military commanders in the field
using particular forms, I think that actually is a good
example, but I think it cuts the other way.
The difference between President Bush communicating with a
military officer in the field is that it's a conversation
occurring within the branch. The difference in this
circumstance is you have two branches involved. This is a
conversation between two branches, and the Constitution doesn't
allow one branch to control that conversation.
I think that this body can impose some methodology, some
procedure by which it will communicate with the executive
branch and the executive branch will communicate with it. I
think that it is----
Ms. Schakowsky. I'd just ask you that he argued that--and I
suppose you could argue that, yourself--that if one branch
can't--doesn't control the conversation, then does the Congress
have the right to prescribe the way the President would
communicate with it?
Mr. Turley. I think that it does, because the question is
whether the prescribed period cuts back upon the constitutional
authority. That is, you cannot prescribe a period that would
negate the constitutional authority of the President, but we're
not talking about 20 days. We're talking about 20 days plus 12
years. So when you look at 20 days, it looks actually sort of
short for most of us, particularly those of us who are
procrastinators. Twenty days can go by pretty quickly. But it's
not 20 days. It is a 12-year period, and this is an important
date on the calendar of any former President. So I believe that
period does not cut back on the constitutional authority of the
President. I think it can be prescribed.
But I do believe that we have to think seriously about Mr.
Gaziano's view, because it is a well-founded one, and for that
reason I think that you should put in a severability clause
into this bill to say that if the issue of writing or days is
found to transgress upon executive privilege, that it can be,
in fact, struck down by a court and the bill survive.
Ms. Schakowsky. Thank you for that suggestion.
Go ahead.
Mr. Gaziano. And then the other thing is that the example
of executive privilege in the analogy to pardons I think is
also a very good thing to focus on. There is a difference
between a constitutional right that is expressly given to the
President in terms of pardons and a constitutional right that
was defined by the Supreme Court.
I happen to agree, actually, with Professor Rozell who made
a terrific history of this to show that this privilege really
does go back to George Washington, but it was articulated in
its modern form by the Supreme Court in the Nixon cases. But it
is not the pardon power. That is, it is a limited and
conditional privilege. It is a privilege that, in Nixon v.
Administrator of General Services, the court said, erodes over
time. And so it is not the same thing, and so it is in that
ambiguity that all of us are struggling, I think--struggling in
good faith.
But I don't want to dominate this response. I would like to
give my colleagues a chance.
Mr. Rosenberg. Just a couple of comments. I've known Todd
for a long time, and I think it is very difficult not to
disagree with him, but we come from different perspectives,
obviously.
With regard to the length of time, I think the Congress can
prescribe it. I think Professor Turley has hit on the key
aspect that this is at the end of a 12-year period of
accumulation by the Archivist, and during which time the former
President has had opportunity to make claims, to restrict
various categories of documents, and as those come through--and
then, of course, the Congress has provided ex-Presidents with
sufficient staff, and I think perhaps they will be even more
utilized to screen documents and to know and to be able to go
back to them to see what documents they want to claim privilege
for.
With regard to making the former President and the present
President put in writing, I don't understand how you could take
exception to that. As Professor Turley and Todd understand, the
executive privilege is a qualified privilege which can be
overcome by certain levels of showing of necessity and
unavailability. It is a higher burden with regard to an
incumbent President, but, as Nixon v. Administrator of General
Services, made very, very clear, it is not so high with regard
to ex-Presidents.
This qualified privilege then has to be justified at some
particular point. It is presumptive, but presumptive doesn't
then allow and mean that nobody can look at what they want.
In this kind of--as the chairman is well aware, when
privilege claims are made, one of the things we want to know
about documents, since we can't see the documents, we require
that a privilege law be submitted to the particular committee,
you know, against which a claim of privilege is made so that we
can at least know what kind of a document we're talking about,
when it was executed, what its general subject matter is, and
that's an important part of the investigative process and of
determining what kind of deference or consideration to give the
claim of privilege.
To request or require under a statute that a President or
an ex-President put in writing the claim of privilege seems to
me to be important so that there can be an assessment that goes
on during this period. Without it, we're kept in the dark and
kept at bay.
I think that in that respect the time limits are
appropriate. The requirement of writing is almost implied in
the case law that a President has to claim himself and, you
know, make it clear, you know, that he is--as President Bush
did when he claimed executive privilege, and as President
Reagan and the first President Bush did. So I think this is an
unexceptionable requirement.
Mr. Gaziano. Certainly Congress' subpoenas are different
than--to the extent that you subpoena documents, I think
Professor Turley is absolutely right that it is a communication
between the branches and you certainly accommodate--suggest you
can require writing an explanation kind of privilege log, I
hope with the exception that if it implicates national security
that the President can take other precautions, as Dean Kmiec
has pointed out in his prepared testimony, it is not just that
it be in writing, but it is the type of writing that raises
concerns.
But with respect--this legislation requires the President
to communicate to the Archivist all of these formalities
whenever he is invoking privilege as against anybody, and that
is an internal executive branch communication that is analogous
to the military hypothetical that I gave, and there I think
lies a much more constitutional question.
Very briefly, with regard to the point that this is after
12 years and it's not just 20 days, a new President coming in
office could never have looked at those documents, and if there
are millions of documents requested, he has an obligation to
see that national security materials are gleaned out, and he
can't rely on the fact that the former President may have done
so.
I also submit it's a little bit curious that, as soon as a
President goes out of office, instead of going on vacation he
has to go through millions of documents, many of which may
never be requested, but he's got to be ready. He's got to be
ready, so he should go through--spend the next 12 years--I
don't--it's a helpful point, I agree, and in some cases 20 days
might be enough, but the inflexible period in this statute I
think is over-broad and probably would be struck down on its
face.
Ms. Schakowsky. There was one--I'm not an attorney, and so
when I heard you say the deference, it sounds, that is paid to
ex-President over current President, and that in a sense it
sounded to me that you were saying that the's all right, but
yet the current President would have to--was mandated to accept
the privilege that was being invoked by the current President.
That doesn't make a lot of sense to me.
Mr. Gaziano. Let me try to be more clear than I was, if you
don't mind. One of the most fascinating questions in all of
this--and I really enjoyed research--is whether the Archivist
would have to follow the former President's orders, regardless
of what the current President thinks. The D.C. Circuit said no.
I think that might be wrong. But the Executive order--the D.C.
Circuit law says he doesn't; that the former President has some
power, but it is unclear how much power he has.
But what this Executive order does say, ``You aren't going
to follow the former President's claims because he says so. You
are going to follow them because I say so, and I am going to .
. ..''
Ms. Schakowsky. But the current President has to say so.
Mr. Gaziano. Well, he's announced in advance. He's done two
things. There are two provisions at issue in Executive order.
The first says, ``I'm announcing to you, my subordinate, I will
defend any claim the former President makes. He has some power
over you, but I don't know how much, but I definitely have
power over you and I'm telling you whenever he says it I will
approve it.'' Two, he says in a separate section cited in my
written testimony, ``I will defend his claim in any court.''
Now, under that or under any forum, in that context--you
may think it is imprudent of him to do that, but I think it is
his constitutional power. There's a logical reason, by the way,
why he might do it, which is that he believes, as I think the
Supreme Court does, that only the former President is in a good
position to know whether the documents implicate a sensitive
area, so that's----
Ms. Schakowsky. I was persuaded by the take care argument.
Was that yours, Mr. Rozell? Maybe you could comment on it?
Mr. Rosenberg. I think each one of us made that argument,
actually, that the take care clause applies here, that it would
violate the President's authority under the Constitution; that
the President may disagree with a former President's invocation
of executive privilege. The President has the authority to take
care that the law is faithfully executed, but he's obligated to
accept the former President's claim of privilege and not do
what he, the President, believes is constitutionally proper or
necessary. I think that's wrong.
Mr. Gaziano. Since I went over, I'm the only one who didn't
address that. I do think the take care clause is absolutely
relevant to this case, but it supports the President.
Mort correctly said that the take care clause means the
President can't--in the government he can't execute the law all
by himself, so--but I think he draws the wrong conclusion from
that.
What that means is if he has responsibility to take care,
he and no one else has the constitutional obligation to take
care, that means if other people are exercising some of his
power--and that follows from Myers and from the vesting clause
of Section One, Clause One, of Article One--then he must manage
them and it's his word that is final.
Mort correctly said the take care clause gives him no
substantive power to legislate. That is correct. But it gives
him management responsibility. It gives him procedural
management power over the lower branch officials. It tells him,
``Not only can you supervise them, you must. You, Mr.
President--'' and this was the brilliance of the Framers'
design. They wanted it accountable and responsible. ``You, Mr.
President, are responsible. You can't get away with saying,
'Congress gave power to your heads of departments and they've
gone astray.' You are responsible. You shall take care that the
laws are faithfully executed, and since you can't execute the
laws yourself, that means you must supervise your
subordinates.''
Mr. Rosenberg. But you can't override a duty placed in a
subordinate. He can fire the Archivist just the way President
Nixon fired Archibald Cox and the way Andrew Jackson fired two
or three Secretaries of the Treasury who wouldn't disobey the
law Congress had passed which said you can't put money from the
Bank of the United States into State banks, and he fired a
couple of Secretaries of the Treasury until he found one--we
ultimately appointed Chief Justice of the United States,
apparently in reward--who did the unlawful act.
That's not to say--I mean, yes, he can be fired, but
Congress--it has been recognized since, as I said, the dawn of
our country, they had the say as to--you know, except with
regard to certain national security and things like that.
I think you're mistaken here about the power that Congress
has with respect to subordinates of the President.
Mr. Turley. Could I also throw in--I hate to gang up, but
that's what academic fights are all about. I just want to note
a couple things about what Todd said, and that is, first of
all, this is an independent agency, and the status of an
independent agency has always been something of a controversy
as to what extent an independent agency could disagree with the
President when it's part of the executive branch. There's one
easy way to get rid of this problem--that is, if the issue is
that the Archivist is part of the executive branch, I still
think that you can order all these documents to be given to the
Library of Congress, and then the President would be able to
utilize his executive privilege in court for any documents that
he feels are not being properly protected and protected from
release.
But, to cut to the chase, if these are public--if this is
public property, you can treat it like White House furniture
and you can direct that it be given to the Library of Congress
and leave it to the President to protect his constitutional
authority.
But I also want to note, very quickly, about two things.
First of all, I am perplexed by the idea that a former
President would invoke privilege, the current President would
not necessarily accept the invocation, but, absent compelling
circumstances, I feel that he must, therefore, defend it in
court.
As someone who has been in court on executive privilege a
number of times, I would be quite peeved if I found out the
Department of Justice opposite of me was fighting executive
privilege on an assertion that the White House didn't agree
with. There are serious ethical questions about going into
court and fighting for an executive privilege argument, a
constitutional argument that the lawyers and the White House do
not agree with.
Finally, I want to note, in terms of this business about
the President leaves and immediately has to, you know, come
back from Vale and start reading through millions of pages of
papers, I think we need to look at the practicalities of this.
The current President has a running obligation to protect
executive privilege, and that is a running obligation not to
his documents but also to the prior President's documents.
Now, the Justice Department may have to spend money to
review, as this 12-year period comes up, to guarantee that
there is nothing that gets over the transom that they don't
want, and they may come to you, and I would strongly encourage
you to give them that extra money to look at it, but it's not
the former President's obligation, alone. In my view, it rests
very heavily on the incumbent President.
Mr. Burton. Mr. Chairman, could I ask one question, because
I do have to leave.
Mr. Horn [resuming Chair]. Yes.
Mr. Burton. I'll just ask one question. Let's just say that
a President commits a crime while in office--and I'm speaking
hypothetically, not about any individual Presidents. You know
about what we've done in the past. But I'm just talking about
any President. Let's say he commits a crime, and the proof is
in documents that are in the archives, and you want to get to
this crime which may be a heinous crime before the statute of
limitations runs out. What's the position of Congress and what
can they do if this Executive order stands? Is there any
recourse that they have?
Mr. Turley. In my view, that's a lead pipe cinch of a case
because Congress would override any executive privilege
argument as to those documents. You have a stated
constitutional duty in terms of impeachment to investigate
those matters. I don't think it would withstand a serious
challenge from the White House to keep you from those. But I
also want to add----
Mr. Burton. What about the previous President claiming
executive privilege over the documents that may be detrimental
to him?
Mr. Turley. Well, I've been critical of those executive
privilege assertions in the past. But I do want to note one
thing, Mr. Chairman, and that is the Supreme Court, in United
States v. Nixon, not only rejected the absolute executive
privilege argument being made by that President, but
specifically called in an archaic view of the separation of
powers as requiring three airtight departments of government. I
think that's very relevant to these discussions.
First of all, the question you asked I think is a direct
branch-to-branch conflict, but in terms of the role of the
Archivist, the Supreme Court has recognized that the separation
of powers is not that neat, that there is overlap.
Mr. Burton. Well, maybe I didn't make my question clear
enough. The case can't be made. In the Nixon case they had the
tapes and they had a lot of other things, you know, that made
the case, but I'm talking about where there may be evidence in
the archives that we believe is there but there's no concrete
evidence, and so it's not in the public domain, and so you
can't make the case unless you get that evidence. So it's not
something that's out in the open, it's something that you know
is there or you think is there and you can't get to it because
of the executive privilege.
Mr. Turley. In my view--and I'm sorry to have moved on to
that secondary point, but, Mr. Chairman, in my view the
executive privilege argument would still fail; that this body's
constitutional authority would trump it in that circumstance.
Now, the executive branch can go to court to try to seek
restrictions if they wish, and this body----
Mr. Burton. What course of action would the Congress
follow? Let's say that this committee which has oversight
responsibilities over the executive branch wanted those
documents, and they said, ``Well, you can't get them because he
doesn't want those to be revealed or in the public domain at
the present time.''
Mr. Turley. Are you referring to under the Bush Executive
order?
Mr. Burton. Yes.
Mr. Turley. That's part of my miscommunication because I
really do believe the Bush Executive order is just facially
unconstitutional.
Mr. Burton. But you would have to go to court to----
Mr. Turley. That's right.
Mr. Burton [continuing]. Make that case.
Mr. Turley. Congress would. That's right. It would be----
Mr. Burton. So what you're talking about could be a long,
drawn-out legal procedure which, in and of itself, could take a
long time.
Mr. Turley. I think that's right, and----
Mr. Burton. So this Executive order has created a real
mischievous situation for the Congress and a Gordian knot that
we would have to cut in order to get through it.
Mr. Turley. I think that's actually one of the reasons this
bill is so useful, quite frankly. I truly believe that this
Executive order could not have been written in a way to more
guarantee its loss on a challenge, and so I believe this bill
will be found unconstitutional in part or in whole.
Mr. Burton. You mean the Executive order?
Mr. Turley. Bloody hell. I'm sorry. I believe that the bill
will be found--the Executive order will be found
unconstitutional, but that will take time and there will be an
appeal, and I don't believe that this body should remain
dormant during that period. I think that it is an institutional
interest for this body to protect itself. James Madison gave
you the devices to protect yourself and to preserve balance
between the branches, and I think this bill really comes out of
that principle.
Mr. Turley. Thank you.
Thank you, Mr. Chairman.
Mr. Horn. I thank you, Mr. Chairman, for coming, and I
share your remarks, having gone through the hearing with you on
the FBI situation, and it's so silly you can't imagine. I did
tell the new director just to chop heads, and you are here not
doing it. It happened under J. Edgar Hoover, and we ought to
have the Attorney General and the director do those things and
bring those papers to the chairman.
Do you have any specific changes in the bill, H.R. 4187?
What would you want to add or subtract? We'll start with you,
Mr. Turley.
Mr. Turley. I actually think the bill is very well written.
I would definitely add a severability clause to deal with
issues such as the writing requirement and the day requirement.
I tinkered with the idea of, well, maybe the days should be
extended, but, quite frankly, when you look at that you ask
yourself, well, how much, in addition to 12 years, would be
adequate? If you increase it to 30 days, is 10 days going to
change this dimension? Is 40 days going to do it? After 12
years, the period of time becomes, in my view, less
significant. Twenty days is sufficient for the President of the
United States to go into a Federal court and to get an order
that protects it from release, and I expect that most judges
would be highly accommodating to do that type of preliminary
order.
So I believe that it is, in fact, adequate, and I don't
have any other major changes. There are aspects, quite frankly,
of this field that I would change if I was declared emperor for
a day, but those go beyond the immediate issue of concern here
and I think would simply add controversy to something that
should not be controversial.
Mr. Horn. Thank you very much.
Now, Mr. Rosenberg, what would you subtract or add?
Mr. Rosenberg. It was actually one thing that I might add
as a note of caution, and I--in repealing the Executive order,
a question has arisen that has never been, I think, decided by
any court is that: What does that do to the repealed Executive
order of President Reagan? That is, if you, by statute, repeal
this order, are you thereby in some way reviving President
Reagan's Executive order which, itself, has some problems and
has been utilized to delay, as we well know? That order was
used to delay action from January through November because it
was utilized to delay, you know, the opening of the 68,000
pages until the new Executive order was issued which then
caused a further delay.
I'm not quite certain, and perhaps Professor Turley or one
of my colleagues here can say what effect that might have in
perhaps reviving the Reagan order.
The second question I have is I think the procedural
additions are excellent. I wonder if, as a pragmatic thought,
knowing the position of the Justice Department in the American
Historical Society suit and the position that they have
generally taken in this area, whether this will assure a veto
by the President. Without the additional procedures, it would
look--a veto would look simply like an attempt to continue
secrecy.
Based on Todd Gaziano's arguments and the view that there
are constitutional difficulties, intrusions on Presidential
prerogatives and privileges, that could be an excuse to veto.
On balance, I would go straight ahead with your entire
bill, however.
Mr. Horn. Thank you for that advice.
Mr. Rozell, what would you add or subtract?
Mr. Rozell. I, too, think it is a good bill and I, too,
would advise going forward with it, and I also expect that
there is a strong likelihood of a Presidential veto should it
get to the President's desk at some point. I also struggled
with the issue of the timeframe, the 20-day period, and really
that was the only part of the legislation, the proposed
legislation, that I thought could be looked at and
reconsidered. Again, as Mr. Turley said, whether you add it to
30 days or 40 days as opposed to 20 I'm not sure substantively
makes a great deal of difference, but we've heard one
substantial criticism of the bill on the basis that it is just
not enough time, and it is conceivable to me that that
provision could be struck down, so, perhaps as a matter of
protecting this legislation against other further criticism or
a constitutional test on that basis, increase the timeframe.
Mr. Horn. Well, would you do above 20 or below 20?
Mr. Rozell. Well, that's what I'm saying. I'm merely
suggesting this as an insurance policy perhaps as opposed to I
personally believe it needs to be more than 20 days. I do not.
But if it is a good insurance policy to increase 20 to 30 or 20
to 40, prudence may suggest doing so. But I don't think, from
my own standpoint, that it weakens the bill substantively not
to increase it. Merely that would be an insurance policy
against outside criticism and an argument by others that would
be a reason for opposing it or vetoing the bill.
Mr. Horn. Well, obviously we'd like to get this legislation
moving, and I would hope the White House would take a second
look and get things moving.
Mr. Rozell. I agree. Thank you.
Mr. Horn. Mr. Gaziano.
Mr. Gaziano. You have been very tolerant of me. I think the
time limit is one of the areas where you do have some remote
authority. I want to draw your attention to a citation in the
testimony from then Assistant Attorney General Antonin Scalia,
where he argued that you had little or no authority over the
procedure the President used to invoke executive privilege, and
since he taught a separations of powers course I attended, I
don't think his views have changed, and they're worthy of
review.
As far as the time limit is concerned, I suggested in my
written testimony that probably any deadline would be
constitutionally suspect. Maybe you could get one that's 365
days that might pass muster on a compromise vote. But the way
you can do that, in my view, constitutionally--and here I might
get in trouble for making this recommendation--is to say that
beyond some period of time--180 days would be reasonable by
analogy to some other statutes--you can authorize a person to
go to court and the court can then supervise the time in which
the President has to invoke executive privilege.
But I should add that, with regard to your own subpoenas, I
don't see that the Executive order changes things one way or
the other. And with regard to your own subpoenas, there is just
this longstanding period of debate between the branches. I've
worked on both sides, and I think that you can insist on
shorter deadlines that are more particularized based on the
particular requests that you have, and the executive branch is
responsible to try to accommodate your requests.
Mr. Horn. Well, thank you.
Let me just ask one question, and then that's it. The bill
rescinds the Executive Order 13233 and it replaces it with a
statutory process for Presidential reviews and possible
executive privilege claims. Do you think it would be better
just to rescind the current Executive order one way or the
other?
Mr. Gaziano. Me first this time?
Mr. Horn. Yes.
Mr. Gaziano. You know, yes, it's better to do less
constitutional harm than more.
Mr. Horn. Right.
Mr. Gaziano. I think that, you know, that act would also be
constitutionally problematic, since I think that as--that was
the nature of Scalia's testimony was that you couldn't regulate
the President's procedures for invoking executive privilege
either, but I clearly think that the legislation raises
additional problems that make it more problematic.
Mr. Horn. We have a little situation here of a markup
across the hall that I have to vote in, and Mr. Ose will be
taking over here for me.
Mr. Ose [assuming Chair]. Mr. Rozell, same question. Do you
think it would be better just to rescind the current Executive
order?
Mr. Rozell. I would like to see the Executive order
rescinded, but I believe that it is not sufficient merely to
reinstate the Presidential Records Act of 1978. It would be far
preferable, in my view, for there to be a legislative remedy at
this time.
I think, given the controversy over the Bush Executive
order, the various lawsuits that have been raised in response
to it, and the fact that I believe that there are some problems
with certain procedures articulated in the Presidential Records
Act, this is a particularly good time for a legislative action
and it's appropriate that the legislative branch should get
involved.
Mr. Ose. Mr. Rosenberg.
Mr. Rosenberg. I don't think it would be--I was thinking
what kind of a void would it leave, and the answer to that is
you have the Archivist who has rules and--you have the
Archivist. There are rules presently in place that provide an
orderly process, and if there is any doubts let's leave it at--
certainly let's get rid of this order and take our changes with
the Archivist, whose rules right now I think are pretty good.
Mr. Ose. Mr. Turley.
Mr. Turley. I would tend to agree with Professor Rozell. I
think that there is room to improve the act. Frankly, I think
that the act is ripe for improvement. It is about that time
when Congress can take another look at an act and tweak it and
improve it. I think this bill comes out with a better PRA, and
I think that you should go forward with it, not just simply
rescind the Executive order.
Mr. Rosenberg. One further addendum. What the Archivist
does is subject to congressional review under the Congressional
Review Act. He changes his current--the procedures with regard
to executive privilege claims, you can get it that way and very
effectively deal with the Archivist, and in some ways with that
weapon in the background, maybe leaving the Archivist and
coming back to the status quo with the PRA and the Archivist
regulations and no Executive order might be preferable.
Mr. Ose. Thank you for your answers to that question.
On behalf of Chairman Horn and the rest of the committee, I
want to especially thank our witnesses today for their
insightful testimony on this important matter. I think you hear
virtual unanimity up here that Congress must reclaim both the
spirit and the letter of the Presidential Records Act. In 1978,
Congress and the President decreed that Presidential records
belong to the public. It's a pretty unequivocal statement. I
believe that H.R. 4187 will ensure that this important goal is
achieved.
Next week this subcommittee will meet again to markup this
bill. Your suggestions for improvements to the legislation have
been appreciated. To the extent you have additional ones, we
would welcome those.
We're going to leave the record open for additional
questions or input you may have for a period of 5 days.
I would like to thank the following for their efforts on
this hearing: J. Russell George, our staff director and chief
counsel; Bonnie Heald, the deputy staff director; Henry Wray,
senior counsel; Justin Paulhamus, clerk; Darin Chidsey,
professional staff member; David McMillen, minority
professional staff member; Jean Gosa, minority clerk; and Karen
Lightfoot, minority senior policy advisor; and our court
reporter, Joan Trumps.
We thank you for coming. This hearing is adjourned.
[Whereupon, at 11:53 a.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
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