From the Summer 2002 issue of The News Media & The Law, page 38.
A congressional effort to defang the effects of a presidential order governing the release of presidential records remains alive, largely through the efforts of two Republican House members.
Earlier this year, Rep. Stephen Horn (R-Calif.) offered the Presidential Records Act Amendments to require incumbent and former presidents to make specific claims of executive privilege before halting release of White House papers. Horn crafted the proposal in response to an executive order signed by President Bush, which some say gutted the post-Watergate Presidential Records Act.
Rep. Dan Burton ( R-Ind.), chairman of the House Government Reform Committee, has said he is ready to schedule a long-delayed vote for the amendments. Burton said work would begin after his committee finishes addressing the creation of a new homeland security office.
The Presidential Records Act, passed after the Watergate scandals, opened most records of a former president to the public 12 years after the end of his administration. The National Archives was prepared in January 2001 to release about 68,000 pages of White House records but the Bush administration requested numerous extensions until it could craft the executive order.
The Bush order — Executive Order 13233 — allows both a sitting president and a former president to halt the release of a past president’s records even after 12 years by simply exerting any privilege. Under the order, the burden of showing that the records should be open lies with the requester.
Horn’s bill, if passed, would require the former or incumbent president to exert any claim of privilege in writing, stating the specific grounds of 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 a court allows them to be disclosed.
Since it issued the executive order, the White House has authorized release of most of the 68,000 records due for release and more than 23,000 additional pages of Reagan records. But it continues to withhold 150 pages of Reagan papers for review.
Meanwhile, a lawsuit filed by historians and journalists challenging the constitutionality of the Bush order remains alive.
Scott Nelson, the Public Citizen attorney handling the case for the plaintiffs, said the lawsuit remained in discovery in mid-July. Although government attorneys contend the historians and journalists are not entitled to discovery, Nelson said White House officials have provided much of the requested information.
Nelson said the discovery also revealed that the National Archives did not issue its intent to open the vice presidential records of George Herbert Walker Bush until April, nearly 15 months after statutory restrictions expired. On June 17, the National Archives released 844 pages of those records but withheld 40 pages for further review.
While open government advocates and House members spar with the White House over the Reagan records, the attorney general in Texas determined that President George W. Bush acted lawfully when he placed the papers from his years as Texas governor into his father’s presidential library late last year.
But Attorney General John Cornyn said the records remain subject to the state’s open records act in a May opinion requested by both the state Office of the Governor and the Texas State Library and Archives Commission. Cornyn further added that the commission did not relinquish control of the records by allowing Bush to house them elsewhere.
The Texas Legislature in 1997 authorized its former governors, in consultation with state archivists, to place their official records into a repository other than the state archives. The Texas State Library and Archives, however, houses the official papers of every Texas governor before Bush, including the first one, James Pinckney, who served from 1846 to 1847.
Bush secured a one-page agreement on Dec. 19, 2001, to place records of his term in his father’s presidential library although the specific details were not specified. Soon after, Bush placed more than 1,800 boxes of documents into the care of the George Bush Library, the presidential library at Texas A&M University. — PT