By Stanley Kutler
The times are unprecedented. Not since 1861 have we watched the last gasps of an outgoing administration with such anxiety. Then the nation was concerned with drift and inertia; now we watch for further ideological mischief.
Republicans were aghast in 2001 to discover that President Bill Clinton’s staff allegedly had dropped the “W” from White House computer keyboards. Frat house stuff. George W. Bush has left a legacy significantly more troubling, measured by the breakdown of normal government processes, as well as of constitutional guarantees and practices. We watch last-minute rushes to implement new administrative rules, to transform and burrow political appointees into tenured civil servants, to further weaken environmental safeguards, to shift public funds to a desired end, and to lay down policy declarations to leave the current administration’s successors bound or embarrassed until they are undone.
Think, for example, about the fate of official records. Will they be removed or shredded to further obscure this administration’s doings? Nourished on secrecy from its inception, and carefully concealing many of its activities through the years, the Bush administration may be determined to make one last play for secrecy by taking its records and storing them in a Dallas warehouse, pending a Bush library. In these waning weeks, a group of us is locked in legal combat with Vice President Dick Cheney and his corps of unseen advisers, seeking an injunction to prevent them from leaving office with their e-mail records. [Citizens for Responsibility and Ethics in Washington, et al., v. Richard B. Cheney, et al, Civil Action No. 08-1548, U.S. District Court, District of Columbia]. Cheney and his team are resisting at every turn, following a strategy of running out the clock and thereby implicitly admitting their intention to destroy or take their records.
If Barack Obama as president would withdraw Bush’s infamous Executive Order 13233, which effectively repealed the Presidential Records Act of 1978, Bush and Cheney still can expect to seal their papers for at least 12 years. If Richard Nixon is their model, count on at least 20.
The president-elect’s Web site promises he will reverse Executive Order 13233 nullifying the timely, lawful release of presidential records. John Podesta, who heads the transition team, acknowledged that, as president, Obama will, “when appropriate,” reverse that order. Some will remember John F. Kennedy’s famous “stroke of the pen” promise for a federal fair housing ordinance in 1960—unfortunately, Kennedy’s pen paralysis resulted in an 18-month delay.
Bush’s order subverts the 1978 law’s provisions for public access to presidential records. It requires the Archivist of the United States to withhold materials if a former president asserts executive privilege, even if the incumbent president disagrees. Put another way, any assertions of privilege for the papers of Bush and his father must be honored by the incumbent president. Maybe now this is clearer.
Bush’s order also stands the right of access on its head. Now, the burden is on the researcher to show a “demonstrable, specific need.” In short, researchers retain a very expensive right to litigate. In 1988, the Circuit Court for the District of Columbia emphatically rejected President Ronald Reagan’s order directing the Archives to accept any claims advanced by former President Nixon to block release of his presidential materials, repudiating Reagan’s contention that the Archivist might legally and independently support a former president. The Bush order is no different, for it requires the Archivist to honor the former president’s claims even when the incumbent disagrees with them. Such a course constitutes nothing less than the incumbent’s abdication of his obligation of fidelity to the law.
Bush’s action provides no end to the mutual back-scratching for that fellowship of ex-presidents. If the incumbent and former president agree to block release, the president and his Department of Justice must defend the assertion of privilege, thus saving his predecessor potentially significant legal fees. Richard Nixon wrote endless volumes of memoirs to support his lawyer habit.
Make no mistake: the Bush order broke new ground. Allowing a former president’s family or personal representative to assert privilege is novel, if not bizarre. It delegates and brazenly enlarges an ever-more luxuriant executive privilege upon former presidents—something the Bush administration has been very adept at doing for itself. The shadowy doctrine of executive privilege has been elevated to a personal right, extending a lifetime, and even beyond. You can take it with you, if Bush has his way.
The order is beyond audacious. Incumbent presidents decide and judge the nature of national security, not former presidents. If the incumbent sees no national security issue at stake, why should a former president, ever anxious to preserve and enhance his reputation, make that determination?
Bush’s order already has freed his father from scholarly scrutiny, now some four years overdue. Only the timely and gracious intervention of Nancy Reagan prevented President Bush from sealing the Reagan papers. Those documents might tell us more about George H. W. Bush’s role in the Iran-Contra affair, other than having to go to the bathroom, or something like that, when the sordid business was discussed in the National Security Council’s proceedings.
Repudiating Executive Order 13233 is essential. This is not a partisan matter; even the Republican-controlled Congress favored repeal in 2004, but Tom DeLay effectively buried it for Bush, and Sen. Mitch McConnell, R-Ky., similarly blocked action in the Senate last year. Rep. Dan Burton, R-Ind.—of all people—led the move to repeal; apparently he believed this was the only way he could get at the Clinton papers.
The prospects of George W. Bush and Dick Cheney proclaiming executive privilege long after they fade from their official duties is staggering. Their penchant for secrecy undoubtedly would insure significant gaps in any attempts to fathom the history of their deeds and actions. President-elect Obama has given us a promise. It must be delivered.
Stanley Kutler wrote “The Wars of Watergate,” and he liberated the Nixon tapes.
AP photo / Ron Edmonds
Outgoing: President George W. Bush and Vice President Dick Cheney.