Journalists, historians say lawsuit, congressional hearing helped dislodge Reagan papers

From the Winter 2002 issue of The News Media & The Law, page 32.

By Phillip Taylor

When nearly 100 presidential historians gather this March in Santa Barbara, Calif., for the Conference of the Reagan Presidency, they plan to scrutinize everything from the former president’s reputation as the Great Communicator to his alliance with the Religious Right to his domestic and economic policies to his handling of international affairs.

The only thing missing from the Ronald Reagan years: more than 68,000 White House pages.

“We scheduled this conference for March so everybody would have at least a year’s access to the good documents we were supposed to get,” said Hugh Graham, a Vanderbilt University historian and co-organizer of the conference, about the records which were due for release on Jan. 20, 2001.

But the Bush administration effectively stymied the release, asking for extension after extension to review the records.

“The whole point of their game was to give them an occasion to develop a weapon, and we saw it on Nov. 1,” Graham said.

Executive Order 13233.

That order, historians like Graham claim in a lawsuit filed in December, effectively allows former or sitting presidents to sit on unclassified presidential records indefinitely. The five-page order allows both a sitting president or a former president to withhold the former president’s records from public view, despite a 24-year-old law mandating their release.

White House officials say Bush’s order merely improves access by creating a procedure for releasing the records.

And the papers have been seeping out . . . gradually. The National Archives and Records Administration released 8,000 pages from this cache of Reagan files on Jan. 3. More, perhaps all, may be released in the coming weeks.

“For months skeptics have questioned President Bush’s motives in establishing these sensible procedures,” wrote White House counsel Alberto Gonzales in a Dec. 20 guest column for The Washington Post. “The order, they said, was an affront to open government and would put procedural roadblocks in the way of disclosure of important historical information. The critics were wrong.”

Despite Gonzales’ claims, the administration’s efforts to improve procedures for releasing the records prevented the public from glancing at the records more than a year after their scheduled release.

The records fall under the Presidential Records Act of 1978, a post-Watergate measure that became law after President Richard Nixon attempted to hold onto his papers and tape recordings as personal property. This act made presidential records, starting with Reagan’s, government property.

The law keeps records containing “confidential communications requesting or submitting advice between the president and his advisors, or between such advisors” sealed for 12 years. After 12 years, the documents may no longer be kept secret.

The 12-year period for the Reagan papers expired on Jan. 20, 2001.

But an executive order signed by Reagan in the final days of his administration required the National Archives to notify the sitting president about pending disclosure of records. (E.O. 12667)

The current Bush administration followed with a series of requests to the National Archives to delay the release of the records. In letters, the White House claimed it sought the extensions “to review the many constitutional and legal questions raised by the potential release of sensitive and confidential presidential records and to decide the proper legal framework and process to employ in reviewing such records.”

On Nov. 1, Bush issued the executive order, an edict that allows both a former president and incumbent president to halt the release of presidential records even after 12 years. Gonzales denied that the order was designed to prevent embarrassing records from seeing the light and said it was crafted to improve the release process.

The following month, a coalition of open-government advocates and two historians filed a lawsuit in federal court in an effort to overturn the order. Those filing the lawsuit, including the Reporters Committee for Freedom of the Press, contend the order illegally limits access to the records by circumventing the Presidential Records Act.

Congressmen and witnesses appearing before the House Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations only days after Bush issued the order also expressed skepticism.

Mark Rozell, a professor at Catholic University, said the order, combined with Bush’s reluctance to give Congress and the public information about the current war and other matters, displays “an emerging pattern” of a president using executive privilege to avoid turning over documents.

“The administration will be able to withhold just about any materials going back many years as long as someone in the administrations utters the words ‘national security’ or ‘prosecutorial,'” Rozell said during the Nov. 5 hearing. “Congress and the American public have an interest in making sure that does not happen.”

National Archivist John Carlin testified that archivists worked closely with Reagan associates and Reagan Presidential Library officials to ensure that none of the 68,000 pages of documents contained sensitive security or privileged information. They found none among the records, he said.

While Reagan associates did not exert any privilege over the records, the Bush administration, using the notification requirement mandated by the Reagan executive order, requested three extensions to review the records.

But Carlin said White House officials never examined the actual records. Instead, they crafted the executive order.

M. Edward Whelan, an acting assistant attorney general, said Bush’s order does not substantially change Reagan’s order but only clarifies some of the wording in releasing the records.

But Rep. Doug Ose (R-Calif.) was not so sure, expressing concern that the president’s order attempts to hide embarrassing information.

“If there is no intended change, then why the change in the wording?” Ose asked.

He added that he is proud that Reagan released most of his records soon after his presidency ended.

“When Reagan finished his work, he was ready to put it in the public domain,” said Ose, adding that more than 5.3 million records from the Reagan era are already available to the public. “It was one of the most impressive things he did. He had faith in the citizens of this country.”

Gonzales said observers can expect similar public releases in the future.

“There is no fair or logical basis for presuming that former presidents subject to the act will exercise their constitutional and statutory authority to seek withholding of privileged records more aggressively than have earlier presidents,” Gonzalez said. “We are confident that, over time, the vast majority of presidential records — including many otherwise privileged records — will be made available to the public.”

Public Citizen’s Scott Nelson, the lead attorney for the groups filing the lawsuit, said he’s not sure that would have been the case without the congressional hearing or the lawsuit.

“It’s clear that the pressure from the lawsuit, together with criticism from members of Congress, scholars and journalists, has spurred the White House to try to release documents before the government has to respond to the suit,” Nelson said. “It looks as if they’re nervous about whether the executive order will hold up in court and are trying to avoid the issue by not claiming executive privilege.”

The lawsuit remains alive regardless of how many records are released, said Nelson, who came to Public Citizen after several years in private practice that included representing Nixon in the former president’s records battles.

And there are more Reagan papers to be released, said historian Stanley Kutler, a plaintiff in the lawsuit. Perhaps as significantly, thousands of vice-presidential records from former President George Bush, also due for release, are currently held in the Bush Presidential Library.

“Let us be perfectly clear,” Kutler wrote in a Jan. 2 guest column for the Chicago Tribune. “Bush’s action has nothing whatsoever to do with protecting the nation. It has everything to do with protecting our exclusive club of ex- and future ex-presidents. Most immediately, he is also covering for Reagan’s vice president, as his order, incredibly, extends executive privilege to that office as well.”

A particular part of the order that has historians and journalists incredulous allows a former president’s family or personal representative to assert privilege on his behalf. Presumably, such a right could be extended even beyond a former president’s lifetime.

In the long term, that could mean valuable records remain in presidential vaults indefinitely.

For the short term, it means Graham and other presidential historians won’t be using the records for their upcoming conference.

“We’ll still go ahead and have it,” Graham said. “It’s hard to say how much you lose when you don’t have the access you thought you had.” (American Historical Association v. National Archives)