Out of sight, but not out of mind: how Executive Order 13,233 expands executive privilege while simultaneously preventing access to presidential records.

Publication: Stanford Law Review

Publication Date: 01-NOV-02

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COPYRIGHT 2002 Stanford Law School

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.

--Senators Daniel Patrick Moynihan and Ron Wyden October 2000 (1)

INTRODUCTION

On November 1, 2001, President George W. Bush issued Executive Order 13,233 (the "Order" or "Bush's Order"). The Order allows a current or former president to block public access to the federal records created during his administration. In issuing the Order, President Bush revoked Executive Order 12,667 issued in 1989 by former President Ronald Reagan, and purported to implement the Presidential Records Act of 1978 (PRA). In so doing, President Bush continued a three-decade-long battle among the different branches of government over public access to federal documents.

The war over access to presidential records remains important today; the ability to view the records created during the business operations of this country is an important facet of our democracy. The public has a "fight to know how its government operates." (2) The power to read about, learn from, and critique the actions of past presidents and their staffs gives people confidence in the system to which they belong. Viewing historical records allows the public to inspect, question, and judge the efforts their government has undertaken and to trust the process in which decisions are made. When these records are blocked, hidden from public scrutiny, and factual information is unavailable, people begin to doubt the decisions of not just former administrations, but current and future ones as well. In sum, a culture of secrecy is not conducive to an open society. (3)

As discussed below, the current battle is essential to winning the war. Executive Order 13,233 fundamentally changes the public's ability to view official records. The Order shifts the burden of proof from the President to the person requesting information; extends the fight to exert executive privilege to the Vice President, a former vice president, or a designated representative; contradicts regulations issued by the National Archives and Records Administration (NARA); and indefinitely seals records from the public. Although it was intended as an internal executive-branch management tool, the Order implicates and incites an interbranch controversy by both superseding and fundamentally altering previous congressional legislation and Supreme Court precedent.

Part I of this Note defines executive privilege, traces its creation, and examines how the different branches have interpreted it. Part II explores the context in which President Bush issued Executive Order 13,233. Part III describes how the Order changes and interacts with the previous law surrounding executive privilege, examines the process for gaining access to presidential records, and explains how the Order violates constitutional separation of powers principles. Finally, Part IV considers the possibility of both a legislative and judicial solution to the problem and analyzes why the nonexecutive branches are better suited to resolve the dispute.

I. PUTTING EXECUTIVE PRIVILEGE IN THE PRESIDENTIAL TOOLBOX

A. What Is Executive Privilege?

Executive privilege is the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.

--Mark Rozell

Executive Privilege and the Modern Presidents: In Nixon's Shadow (4)

In its most basic form, "executive privilege" can be defined as a president's ability to withhold information from other branches of the government and from the American public. (5) Interestingly, the words "executive privilege" are not expressly mentioned anywhere in the Constitution, and the phrase is noticeably absent from Article II. This has led a few scholars to conclude that executive privilege is a "constitutional myth." The theory follows that because the Framers included a privilege under Article I, Section 5 for Congress to proceed in secret, the canon of expressio unius prevents the executive from acting in secret. (6) If the Framers had intended to grant this authority to the President, they would have explicitly stated so. (7) Nonetheless, even though the phrase "executive privilege" was not coined until President Eisenhower's Administration in 1958, every president since George Washington has practiced some form of "executive privilege." (8) For example, in 1852, President Fillmore asserted a claim of executive privilege to prevent the disclosure of his records pertaining to the King of Sandwich Islands' proposition to transfer the Sandwich Islands to the United States. (9) Similarly, in 1877, President Hayes blocked access to records that discussed the nomination of Theodore Roosevelt to the position of Port of New York Collector. (10) Moreover, since President Washington, presidents have maintained that they have the power to refuse requests for information. (11) For example, President Cleveland refused to provide information about documents pertaining to the removal of various federal officials in 1886 by claiming privilege. (12)

A claim of privilege may be exercised over any demand for executive-branch papers. (13) Nonetheless, because it serves to exempt the President from releasing records related to his Article II duties, a claim of privilege will usually be defeated by a request for access to information. The main exception to this principle deals with records that relate to "highly important Executive responsibilities involved in maintaining governmental operations," particularly military and diplomatic secrets. (14) For example, President Polk's claim of privilege over records concerning the Mexican President's 1848 return home was upheld to prevent "diplomatic embarrassment." (15) At times it may also extend to "an appropriate exercise of the executive's domestic decisional and policy making functions," (16) and/or conversations between top advisors, which may be privileged even if the President is not a party to them. (17)

B. Why Does the President Need This Particular Tool?

It really reflects the very common sense principle that you couldn't conduct policy-making in the White House if every top aide to the President knew that his or her communications with the President or with each other could be revealed to the whole world at the drop of a hat. Nobody could make policy under that kind of circumstance.

--Kathleen Sullivan March 24, 1998 (18)

The office of the presidency is unlike any other position in the federal government. The president was established as the head of the executive branch to provide "unity, responsibility, and accountability." (19) Accordingly, the presidency is the only position in the government that requires a twenty-four-hour-a-day, seven-day-a-week commitment. (20) In that respect, the strained nature and time commitment involved creates a legitimate need for confidentiality. (21)

In order to optimally perform his Article II duties, the President needs a degree of privacy to promote candid communication between top executive-branch officials. (22) This confidentiality and ability to have frank and honest conversations serves a "great public interest." (23) As the Supreme Court opined, "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process." (24) Executive privilege also allows a president to ensure that military and strategic objectives are not undermined by the disclosure of information. (25) For example, President Kennedy successfully defended a claim of privilege regarding his foreign policy both when his Military Supervisor was not required to provide testimony about the invasion of the Bay of Pigs and when his Secretary of Defense did not have to testify about the Cold War policies of his administration. (26)

C. Legislative Treatment and Interpretation of Executive Privilege

I realize that anyone saying a few kind words about Executive privilege after the events of the last few years is in a position somewhat akin to the man preaching the virtues of water after the Johnstown flood, or the utility of fire after the burning of Chicago. But fire and water are, for all that, essential elements of human existence. And Executive privilege is indispensable to the functioning of our system of checks and balances and separation of powers.

--Senate Testimony of Antonin Scalia October 23, 1975 (27)

Generally, Congress has a right to dispose of the property of the United States. (28) At first observation, one would assume that presidential records that are "generated, created, produced or kept" by a government officer pursuant to the duties and obligations of his office would belong to the government and not to the individual himself. (29) In contrast, presidential papers have historically been considered the personal property of the President who created them. (30)

Over the years Congress has undertaken various steps to establish public ownership of presidential papers, beginning with the creation of the National Archives in 1934. (31) Franklin Roosevelt was the first president to grant property rights over his papers to the government. (32) Other presidents were persuaded to follow Roosevelt's lead and give their administrative records to government-owned facilities through the enactment of the Presidential Libraries Act of 1955 (the "Libraries Act"). (33) The Libraries Act was the first major congressional effort to deal with presidential records. Under the Libraries Act, if presidents decided to donate their papers to libraries, they could establish specific guidelines for access to and preservation of those papers. (34) Presidents Carter, Eisenhower, Ford, Hoover, Johnson, Kennedy, and Truman donated portions of their records to the government to be placed in presidential libraries under this Act. (35) Despite the participation of these presidents, donations under the Libraries Act were voluntary. Accordingly, unless a president chose to donate them to the United States, records created during a president's term in office remained in the control of that president when he left office. (36) Because no congressional statute existed that attempted to reverse this historical custom, this practice served as a common barrier to prevent access to presidential papers). (37)

1. The Presidential Records and Materials Preservation Act.

The first time that ownership of presidential papers really came into dispute was during Watergate. There was a well-founded fear that the documents and recordings of President Nixon would be destroyed. On September 7, 1974, former President Nixon and Arthur Sampson, the General Services Administrator, entered into an agreement that provided for the presidential materials and tape recordings of the Nixon Administration to be "deposited temporarily" in an existing government facility. (38) By that agreement, President Nixon would maintain custody over the presidential materials and the tapes would be destroyed after a specified period of time. (39) Nixon further claimed that the documents created during his administration, particularly the tapes, were his property, and not the property of the American people. (40)

After Congress heard this, they moved to annul the agreement by passing the Presidential Records and Materials Preservation Act (PRMPA). (41) The PRMPA was passed with the immediate goal of preventing President Nixon from destroying his records. (42) Congress believed that the tapes and other records were too historically important to the nation to be destroyed. (43) Accordingly, the PRMPA only made the Nixon administration's records the property of the government. (44) Moreover, the PRMPA was Congress's first post-Watergate attempt to fill the statutory silence regarding presidential papers and the first time Congress mandated that presidents cannot destroy them. (45)

As discussed below, President Nixon brought a lawsuit with the hope of obtaining a declaration that the PRMPA was unconstitutional. (46) In 1977, the Court decided all claims against Nixon. In so doing, the Court upheld the PRMPA, and further determined that the Act nullified the Nixon-Sampson Agreement. (47) While the PRMPA mooted the question of whether or not the Nixon-Sampson Agreement was valid, it did not resolve all questions of ownership. (48) The PRMPA provided that the Administrator of General Services would take control over presidential papers and subsequently control access to them. (49) However, a footnote in the majority's opinion remarked that it remained "unsettled whether the materials in question are the property of [the former president] or of the Government." (50) With this note, the Court invited Congress to pass a statute that codified the historic custom of transferring presidential papers to the libraries through the Archivist. (51)

2. The Presidential Records Act.

In 1974, Congress created a National Study Commission on Records and Documents of Federal Officials as part of the PRMPA. (52) The Commission was created to examine the questions and problems relating to the "control, disposition, and preservation of [the] records and documents produced by or on behalf of government officials. (53) The Presidential Records Act of 1978 (PRA) was a culmination of the work produced by this Commission (54) and a response to the continued congressional fear that the public would not be granted access to the records of former President Nixon. (55) The PRA also served as a congressional response to the Court's footnote in the PRMPA litigation. (56)

Heralded by historians as "one of the most important pieces of reform legislation passed in the aftermath of Watergate," (57) it was created to establish public ownership of the documents and records of presidents and their staffs, and to establish fair and timely procedures to make these records available to the public and to preserve them for posterity. (58) As noted in the House Report of the Government Operation Committee:

The purpose of the [PRA] is (1) to establish the public ownership of records created by future presidents and their staffs in the course of discharging their official duties; and (2) to establish procedures governing the preservation and public availability of these records at the end of a presidential administration. (59)

The Committee Report continued to state that the PRA was intended to

[t]erminate the tradition of private ownership of presidential papers and the reliance on volunteerism to determine the fate of [the disposition of presidential papers. Moreover, the Act would preserve] the historical record of future presidencies ... and public access to the materials would be consistent with standards fixed in law. (60)

The Act clearly states that beginning on January 20, 1981, all "records" created by the President are subject to the provisions found within the Act. (61) That means that complete ownership, possession, and control over presidential records created after January 20, 1981 belong to the United States, and are to be administered by the Archivist according to [section] 2202 of the Act. (62)

Although the PRA affords access to federal documents, it also recognizes a need to limit that access. The PRA exhibited a legislative desire to balance the public's right to know with the privacy rights and confidentiality of the President and his staff. (63) This was accomplished by allowing former presidents to prevent particular documents from being disclosed for up to twelve years after their term ends. (64) Under the Act, the same process was true for vice-presidential records. (65) Procedurally, access to any record that fell within one of six specified categories could be restricted for up to twelve years. (66) However, before he left office, a president had to designate any record he wished to keep from the public as access-restricted under one of the following exemptions: national security, appointments to federal office, specifically exempt from disclosure by statute, trade secrets, clear invasion of his personal privacy, and "confidential communications requesting or submitting advice" to a president by his advisors. (67) Archivists generally refer to documents classified in this last category as "P-5" records. (68)

Upon conclusion of the President's term in office, the Archivist was granted custody of his records. (69) Unmodified by Bush's Order, [section] 2203(f)(1) of the Act provides that the Archivist has an "affirmative duty to make such records available to the public as rapidly and completely as possible." With that in mind, the PRA does not require public access to documents for the first five years after a president leaves office. (70) That period is given to the Archivist and NARA to organize and systematically...

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