Historians, journalists continue records lawsuit even as Reagan documents become available

Congressman offers bill to nullify several parts of Bush executive order

From the Spring 2002 issue of The News Media & The Law, page 39.

For months, White House attorneys tried to console historians and journalists wishing to see tens of thousands of pages of Ronald Reagan-era White House documents due for release in January 2001 by promising an imminent release date.

Although open-government advocates feared that President Bush effectively gutted the Presidential Records Act of 1978 by signing Executive Order 13233, White House counsel Alberto Gonzales, for one, insisted the order merely improved the release of records, not stifled it.

And when the National Archives and Records Administration finally released a torrential load of 59,850 pages of Reagan papers on March 15, White House attorneys hailed the event as clear evidence that the order’s instructions concerning presidential records not only worked but worked well.

But open-government advocates, historians and journalists who filed a lawsuit last fall asking a federal court in Washington, D.C., to dismantle the Bush order are not convinced.

About 150 pages of Reagan-era advisory records remain boxed, including dozens of documents about one-time Supreme Court nominee Robert Bork and a myriad of discussions concerning judicial appointments. And then there are the untold thousands of records from Reagan’s vice president, George Herbert Walker Bush.

All of these records fall under the Presidential Records Act of 1978, a post-Watergate measure drafted and approved after former President Richard Nixon attempted to exert an executive privilege over all of his presidential papers and tape recordings. The act made presidential and vice-presidential records, starting with the Reagan administration, government property.

But as Reagan’s advisory papers came due for release on Jan. 20, 2001, the Bush administration blocked the release until it could craft a new order. Under Executive Order 13233, both a former and incumbent president could exert executive privilege to halt the release of records. The order also allowed former vice presidents to exert such a claim over his records.

A coalition of historians and open-government advocates, including the Reporters Committee for Freedom of the Press, filed a federal lawsuit on Nov. 28, claiming that Bush’s order illegally circumvents the law. The lawsuit, in part, seeks the immediate release of the Reagan papers. (American Historical Association v. National Archives)

White House officials dismiss arguments that the order stifles the release of president records now or later. In court briefs, they defend the order as a sincere effort to perfect a mechanism for their release.

In a motion to dismiss the case, Gonzales told the court that concerns raised in the American Historical Association case aren’t ripe, that the fears of nondisclosure haven’t surfaced yet nor does it appear that they ever will.

The time for a lawsuit, Gonzalez wrote, is only when plaintiffs could show the order has harmed them.

That situation is now, said Scott Nelson, an attorney with Public Citizen, which is litigating the lawsuit on behalf of the plaintiffs.

He noted in court papers that the historians and journalists have been harmed by the lack of records and only with a lawsuit were they able to jimmy the records loose. If the Bush administration hadn’t held up the records in order to draft the order, the records would have been released early last year.

“As long as any pages are held back, the claim for their release remains alive,” Nelson wrote. “An assertion of privilege as to some of the documents will place in issue the legal validity of the claim of privilege.”

Meanwhile, a Republican congressman has been gathering support for a bill designed to nullify many effects of the order. Rep. Stephen Horn (R-Calif.) said his bill, the Presidential Records Act Amendments of 2002, would “fix a serious but readily solvable, problem in the implementation of the Presidential Records Act of 1978.”

In a letter sent to all Congress members, Horn said the Bush administration caused excessive delays in releasing records from the Reagan years by crafting the order.

He said neither Congress nor the public could wait for the completion of a lawsuit to ensure the release of records.

“We need to act now in order to get implementation of the act back on track,” Horn said.

If passed, Horn’s bill would require the former or incumbent president to exert any claim of privilege in writing, stating the specific nature and grounds for such a claim.

If a former president makes the claim, the National Archives would hold the records for 20 working days to allow him to seek judicial recourse.

The Archives would release the records after 20 days unless a court directed the records to be withheld.

If an incumbent president makes such a claim, the Archives would hold the records until the president or the court allows them to be disclosed.

But historians said a proper mechanism was already in place with the 1978 law.

The late historian Hugh Graham, a plaintiff in the case, noted that the law worked fine before Bush got involved. Graham, however, died on March 26 after a battle with cancer, only two days before the start of the Conference on the Reagan Presidency, an academic review of the Reagan years organized by Graham.

Two of Graham’s brothers participated in the conference.

Fred Graham of Court TV chaired a discussion on Reagan’s judicial strategies, while historian Otis Graham of the University of North Carolina in Wilmington presented a paper on Reagan’s immigration policies.

Fred Graham, also a steering committee member for the Reporters Committee, said he’s pleased that the case his brother helped develop continues and expects that the courts will eventually say “that this is decision for Congress to make and is, in fact, a decision that Congress has already made.” — PT