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JOHN DEAN – 2001-12-04

On November 1, President George W. Bush signed his latest
effort to govern by secrecy – Executive Order 13233. For good reason this
Order has a lot of historians, journalists, and Congresspersons (both
Republican and Democratic) upset.

The Order ends 27 years of Congressional and judicial efforts
to make Presidential papers and records publicly available. In issuing the
Order, the President has pushed his lawmaking powers beyond their limits.

As President watchers know, we have a President who likes
secrecy. He has hired only tested leak-proof and loyal staffers,
effectively sealing the Bush White House. He has had his records as the
Governor of Texas hidden, shipping them off to his father’s Presidential
library, where they are inaccessible. He has stiffed the Congressional
requests for information about how he developed his energy policy –
refusing to respond.

No President can govern in a fishbowl. But not since Richard
Nixon went to work in the Oval Office has there been as concentrated an
effort to keep the real work of a President hidden, showing the public only
a scripted President, as now. While this effort was evident before the
September 11th terrorist attacks, the events of that day have become the
justification for even greater secrecy.

The mystical veil of “national security” has been cast over
much of the Bush administration. There were the secret arrests of
terror-related suspects (currently over 1000 publicly unknown people).
There was the expansion of the wiretap granting powers of a secret federal
court hidden within the Department of Justice. There was, and continues to
be, an apparent policy of precluding news organizations and congressional
leaders from access to anything other than managed and generic news about
the war in Afghanistan.

With all these moves, President Bush is brushing aside one
historical tradition of openness after another. It is in this context that
the President’s latest action must be viewed.

The Executive Order suggests that President Bush not only does
not want Americans to know what he is doing, but he also does not want to
worry that historians and others will someday find out. Certainly that is
the implicit message in his new effort to preclude public access to
Presidential papers – his, and those of all Presidents since the
Reagan-Bush administration. There is, however, no justification whatsoever
for this latest effort to hide the work of past, present, and future

There has been some confusion about the meaning of the
President’s actions in addressing Presidential papers. He has not repealed
the existing law, as some have asserted, because he does not have that
power. But he has sought to significantly modify the law, and made its
procedures far more complex, cumbersome and restrictive. In doing so, he
has exceeded his executive powers under the Presidential Records Act of

White House Press Secretary Ari Fleischer has tried,
unsuccessfully, to spin Executive Order 13233 as doing nothing more than
implementing the existing law, but in fact, the Order does much more.
Perhaps unsurprisingly, when pressed during his briefing, Mr. Fleischer
dodged the tough questions, or said “that’s a matter for the lawyers.”
Fleischer contention that the Order is innocuous would not hold up under
close scrutiny, and so he avoided that scrutiny.

One lawyer who appreciates exactly what has been done is
Washington attorney Scott L. Nelson, who represents Public Citizen, the
public advocacy group that flushed out the Nixon papers during several
decades of litigation. Mr. Nelson knows these laws well because Richard
Nixon was his client for 15 years – ironically, much of that time fighting
Public Citizen. Indeed, Scott Nelson has been involved in the litigation
that has shaped the body of law that President Bush has ignored in issuing
his Executive Order.

On November 6, Nelson appeared before a subcommittee of the
House Committee on Government Reform, chaired by Congressman Stephen Horn,
to address the new Bush Order. He explained in detail its flaws – which I
have only summarized below, by highlighting a few examples of how the Bush
Order ignores, or seeks to change, the law.

Under the 1978 Presidential Records Act, virtually all of a
former President’s records are to be made publicly available by the
Archivist twelve years after that President leaves office. There are narrow
exceptions for papers that still must be withheld for national security

But the 1978 statute specifically states that among the
material to be released by the Archives twelve years after a President
leaves office are his confidential and private communications with his
advisers (White House staff and Cabinet Departments). The existing law does
not provide an exception for withholding “attorney-client” or “attorney
work product” materials.

Through Executive Order 13233, President Bush has sought to
re-interpret the 1978 law. To put it briefly, the Order adds and enumerates
privileges upon which a former or incumbent President can block release of
a former President’s materials.

In claiming that the Order does not contradict the Records
Act, Bush relies on a clause in the Act that states that it does not
“confirm, limit, or expand constitutionally-based privileges which may be
available to an incumbent or former President.”

Bush’s lawyers read this clause as bringing into play all of
the privileges the law has precluded. They cite specifically the Supreme
Court’s 1977 holding in Nixon v. Administrator of General Services, which
says that a former President can exert executive privilege.

The 1978 law only recognizes the enumerated privileges set
forth in the Freedom Of Information Act. Nevertheless, Bush’s Executive
Order makes clear that he reads the law as entitling a former or incumbent
President to assert a laundry list of privileges: the state secrets or
national security privilege; the communications with advisors privilege,
the attorney-client and attorney work product privileges, and the
deliberative process privilege.

President Bush has also shifted the burden from the former
President to the person seeking the material. Under the Executive Order,
the person seeking material must show that he should be given it; it is no
longer necessary for the former President to show why material must not be

Bush’s Executive Order also takes the Archivist of the United
States out of the role of deciding if a former President’s invocation of
privilege should or should not be honored. That role is now assigned to the
incumbent President. And obviously, it is likely that Presidents – wanting
successors to honor their own invocations of privilege – might tend to
accept former President’s claims.

The new Executive Order also creates an elaborate procedure
for an incumbent President to block his predecessor from releasing
documents. In addition, under Bush’s order, a former President can
indefinitely block release of his material, which is not possible under
existing law.

Another added benefit for former Presidents is this: When the
incumbent President agrees with the former President about his decision to
not release records, the incumbent President (through the Department of
Justice) will defend the privilege against attack. That saves the former
President what can be significant legal expenses for attorney’s fees to
contest the case in court.

While Scott Nelson did not mention it in his testimony, the
most remarkable change the Executive Order effects is that it gives not
just a President, but also a Vice President, the power to invoke executive
privilege over his papers.

The Presidential Records Act includes Vice Presidential
records. But it does not give a former Vice President the right to invoke
executive privilege – for Congress does not have the power to do so.

Indeed, under the Constitution, the executive privilege is
unique to the President. Bush’s Order is nothing less than absurd in
purporting to grant the power to invoke this privilege to the Vice
President, (and may only feed suspicion that Dick Cheney’s role is more
Presidential than may be appropriate to his office).

President Bush has not stated why he revoked the existing
Executive Order (Number 12667) addressing Presidential Records. President
Reagan issued the Order in 1989 after studying the law for almost eight
years of his presidency. Many believed Reagan’s Order went beyond the law.
Yet President Clinton did not challenge or change it during his eight years
in office.

Ironically, if President Clinton – not President Bush – had
been the one who issued this new Executive Order, Republicans in Congress
would no doubt have called for his impeachment for failure to execute the
laws (that is, failure to abide by the Presidential Records Act.)

Just as Clinton’s assertions of privilege in court were
repeatedly questioned – and even argued by some to be abuse of process or
even obstruction of justice – Clinton’s extension of Presidential
privileges through an Executive Order would have faced heavy criticism. But
when Bush takes the same action – especially now, with his new popularity –
the criticism is highly modulated in tone.

What appears to have provoked President Bush’s action is the
fact that some 68,000 documents from the Reagan presidency were waiting at
the White House when Bush arrived, ready for release by the National

These documents passed the twelve-year deadline for public
release on January 12, 2001, but their release has been stalled by the Bush
White House until now. The documents are believed to contain records that
Papa Bush, as Reagan’s Vice President, is not happy to have made public.
They also contain papers of others now working for Bush, who might be
embarrassed by their release.

Look for either Papa Bush, or someone designated by former
President Reagan, to object to any of these 68,000 documents’ release
pursuant to the new Executive Order. If that happens, it will confirm my
guess as to why the Order was written at this time. The effect will be to
tie the release of those records up for years.

The most certain effect of this new Order will be litigation.
The Order will be tested in court, if the President does not withdraw it as
requested by both Republicans and Democrats in the Congress. And should the
Order not be overturned by the courts, I believe Congress will act. In
fact, Congress could act even before the courts resolve these matters.

In short, the prospects for Bush’s Executive Order 13233
remaining the law of the land is slim to none.

More troubling than the Order’s throwing a monkey wrench into
the process of releasing Presidential papers, however, is the President’s
penchant for secrecy. Secrecy provokes the question of what is being hidden
and why.

If President Bush continues with his Nixon-style secrecy, I
suspect voters will give him a Nixon-style vote of no confidence come 2004.
While secrecy is necessary to fight a war, it is not necessary to run the
country. I can assure you from firsthand experience that a President acting
secretly usually does not have the best interest of Americans in mind. It
is his own personal interest that is on his mind instead.

The Bush administration would do well to remember the
admonition of former Senator Daniel Patrick Moynihan in his report on
government secrecy: “Behind closed doors, there is no guarantee that the
most basic of individual freedoms will be preserved. And as we enter the
21st Century, the great fear we have for our democracy is the enveloping
culture of government secrecy and the corresponding distrust of government
that follows.”

John Dean, a FindLaw columnist, is a former Counsel to the
President of the United States. His most recent book, The Rehnquist Choice:
The Untold Story of the Nixon Appointment That Redefined the Supreme Court,
was just published by the Free Press.


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