TODD F. GAZIANO
SENIOR FELLOW IN LEGAL STUDIES AND
DIRECTOR, CENTER FOR LEGAL AND JUDICIAL STUDIES
THE HERITAGE FOUNDATION*
214 MASSACHUSETTS AVENUE, NE
WASHINGTON, DC 20002
BEFORE THE UNITED STATES HOUSE OF REPRESENTATIVES
COMMITTEE ON GOVERNMENT REFORM
SUBCOMMITTEE ON GOVERNMENT EFFICIENCY,
FINANCIAL MANAGEMENT AND INTERGOVERNMENTAL RELATIONS
H.R. 4187, THE “PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2002”
AND OTHER PROCEDURES FOR THE INVOCATION OF EXECUTIVE PRIVILEGE
24 APRIL 2002
Thank you, Chairman Horn and Members of the Subcommittee, for inviting me to testify today on H.R. 4187. I will also be testifying more broadly on the procedures for the invocation of executive privilege under the Presidential Records Act and the resolution of those claims. As a former chief counsel of another subcommittee of the Government Reform Committee, I know that the Members of this Subcommittee, particularly its Chairman, are genuinely interested in hearing all relevant views and are open to them. That is fortunate for me, because I must reluctantly disagree with my friends who are testifying today and express my grave doubts about the constitutionality of H.R. 4187, the “Presidential Records Act Amendments of 2002.”
For the record, I am a Senior Fellow in Legal Studies and Director of the Center for Legal and Judicial Studies at The Heritage Foundation, a nonpartisan research and educational organization. I am a graduate of the University of Chicago Law School and a former law clerk to the U.S. Fifth Circuit Court of Appeals. Of special relevance today, I also served in the U.S. Department of Justice, Office of Legal Counsel (OLC), during separate periods in the Reagan, Bush, and Clinton Administrations, where I provided constitutional advice to the White House and four Attorneys General. Among its duties, OLC helps draft the President’s executive orders and is primarily responsible for advising him on matters relating to executive privilege.
The Most Open Branch
Let me begin with an important observation about the relative openness of the three branches of government with regard to internal, deliberative documents. This observation runs counter to the impression several historians have conveyed in their testimony at previous hearings before this Subcommittee and full Committee. All three branches create and make available some public documents that announce proposed actions and final decisions, and these documents often contain an explanation for the proposed or final action. For example, courts issue legal opinions that explain the rationale for their decisions. Executive branch agencies publish proposed regulations with an explanation of why they are being proposed and final regulations with a statement of how public comments were taken into account. Congressional committees publish committee reports with the committees’ recommendations or conclusions, and most legislative acts are public.
But the executive is by far the most open of the federal branches in terms of the release of internal, deliberative documents—and almost every other kind of document. When President Lyndon Johnson signed the Freedom of Information Act, he granted broad access to most executive branch documents. That Act was significantly strengthened and made judicially enforceable in 1974. See 5 U.S.C. 552. Even without being asked, executive agencies routinely release countless documents and raw data, ranging from weather reports to crime statistics and from hearing records to tide charts.
With regard to presidential documents, the Supreme Court ruled in 1977 that most presidential papers are the personal property of each President. When President Carter signed the Presidential Records Act of 1978 (PRA), he made the presidential papers of all future Presidents public documents. Pub. L. 95-591, § 2(a) (further references are to the amended statute at 44 U.S.C. 2201-2207). As a result, all presidential documents from President Reagan’s administration onward will eventually be released to the public. The PRA provides that a President may restrict access to certain types of sensitive presidential records for up to 12 years. § 2204. After that, the majority of presidential documents are subject to release if a request is made. Some documents containing national security secrets may remain exempt from disclosure at that time, but are subject to eventual release after being declassified under national security rules. Even documents which are subject to a valid claim of privilege will eventually be released, generally no later than thirty years after they were created.
Moreover, the President does not have the final say over whether his claim of privilege is valid or whether it will prevail over a given requester. His claim of executive privilege is presumptively valid, as it must be, but it may be overridden by a court with proper jurisdiction. In United States v. Nixon, 418 U.S. 683, 713 (1974), the Supreme Court held that a party seeking to overcome a constitutionally based privilege must first establish a “specific need” for the particular records at issue. That may turn on the nature of the proceeding or request and the importance of that information to the proceeding or other use. If such a showing is made, the court will weigh the President’s interest in maintaining the confidentiality of the particular documents against the asserted need of the requester.
Thus, a special prosecutor or a congressional committee with subpoena power might well be able to overcome a weak claim of executive privilege if it is shown that specific documents are relevant and important to an official investigation. By contrast, a broad fishing expedition launched by a voyeur or conspiracy theorist would be insufficient. Nevertheless, the Supreme Court has explained that the executive branch’s interest in confidentiality wanes continually with the passage of time. After thirty years or so, such an interest might be easily defeated by a routine inquiry. In sum, every presidential document eventually will be released, and even in the short run, the President does not have the final word over the confidentiality of documents he claims are privileged.
The Most Dangerous Branch
In contrast, almost no documents maintained by individual Members of Congress, even those created with public funds, are subject to public release, and very few are released without the voluntary assent of the Member. If The New York Times wanted a copy of the internal memos that Senate staff wrote to Senators about some momentous public issue, it has no legal means to obtain them (even if the documents are more than twelve years old). If historians or members of the press wanted a copy of a Representative’s confidential calendar or if they wanted a copy of staff notes taken when particular interest groups met with the Member, they would have no legal recourse to get them. With enactment of new campaign finance legislation, a majority of both houses of Congress seem to have accepted the argument (mistaken, in my view) that the potential for special interest groups to corrupt Members of Congress is great. Yet, the public has no enforceable right to examine correspondence between such special interest groups and Members of Congress. No matter how historically relevant or vital that information might be to an informed public, it’s our tough luck because no law or court can force their release (absent special circumstances such as a properly constituted criminal investigation).
Many of us also would be quite interested in reading the memoranda that Supreme Court law clerks write to the justices that employ them. Historians and legal scholars would find memoranda one justice sent to another to be particularly valuable, even if the memos were about cases decided a decade or more ago. But none of us has any legally enforceable right to such memoranda, notwithstanding that these documents were produced with public funds and involve decisions that have a tremendous impact on our lives. Even fifty years after a given case is decided, the heirs of a deceased justice have complete control over his or her official court papers. We get to see only what they want us to see.
I am not surprised that you have chosen to keep your internal staff documents and at least some of your communications with your colleagues confidential. My testimony today is in support of your private communications and strategy sessions. I don’t think it would be prudent for you to force your fellow Members of Congress to release such documents. Although it would keep us better informed about your individual decision-making processes and what influenced your decisions, it would not serve the overall public interest. The most probing legislative analysis is crystallized in writing, and good note-taking is essential to almost any productive office. I don’t want to inhibit your staff from giving you valuable and candid written advice, and I don’t want to chill communications between you and your constituents or interest groups, whether they are “special” or not. But if Congress did force the release of such information, at least that would not violate the constitutional separation of powers. Congress probably can inflict such wounds upon itself.
Yet, the constitutional separation of powers does impose limits on Congress’s attempts to invade or interfere with the private sphere of the other two co-equal branches. The separation of powers is not an amorphous, unwritten aspect of the Constitution. It is contained in the structure of our written Constitution and in many explicit provisions of the Constitution, including the vesting clauses of Articles I, II, and III. As the framers made clear, its ultimate purpose is to protect individual liberty by preventing any one branch, or two branches together, from usurping authority and prerogatives that were granted to another branch. James Madison lamented that the separation of powers had broken down at the state level, and that the price of failure at the federal level was nothing less than tyranny. Federalist Nos. 47-48. It is easy for one branch to discount the harm that flows from the violation of this principle, but the separation of powers itself was designed to counter this bias. Indeed, the framers observed that the legislative branch was throughout history “the most dangerous branch,” and they tried to strengthen the President’s hand by creating an office with “Energy in the Executive.” Federalist Nos. 48 and 70, respectively.
Executive Privilege and the Separation of Powers
Such refinements in separation of powers design take many forms and are among the most important innovations of the U.S. Constitution. The Supreme Court of the United States correctly recognized that constitutionally based privileges, including the executive privilege, are necessarily rooted in the separation of powers. Just as Congress may not order justices of the Supreme Court to release drafts of their opinions (even after they have been superseded by a published opinion), there are limits to how far Congress may invade the deliberative process and national security decisions of the President and his senior staff.
The Presidential Records Act makes no attempt to expand or contract claims of executive privilege. Instead, it recognizes in subsection 2204(c)(2), and elsewhere, that Presidents will assert executive privilege with regard to some documents that are otherwise subject to release under the PRA. That subsection provides that “[n]othing in [the PRA] shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President.”
As Congress knew, the Supreme Court ruled in Nixon v. Administrator of General Services, 433 U.S. 425, 449 (1977), that some constitutionally based privileges “survive the individual President’s tenure.” Thus, former President Richard Nixon could continue to exercise executive privilege with regard to documents from his administration. That decision also set forth the constitutional basis for including confidential communications within the privilege. “Unless [a President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depend.” Id. at 448-49.
The Supreme Court cited the practice of the Framers during the Constitutional Convention, who ensured that the records of the Convention would be “sealed for more than 30 years.” Id. at 447 n.11. The Framers did this for two reasons: (1) to promote vigorous and candid debate at the Convention, and (2) to permit the participants to present a unified front in support of the final product. A modern President has the same need to ensure confidential communications, especially among his senior advisors and cabinet officers. To get unvarnished advice, he must give assurances that the advice will remain confidential for some reasonable length of time. For success in his administration, he must also ensure that the vigorous debate we want to take place on important matters does not leak out prematurely and undermine the implementation of what is ultimately decided.
Several historians who have testified before this Committee or commented publicly on E.O. 13233 have expressed skepticism about the proposition that presidential advisers would either trim their advice out of fear of criticism or grandstand with an eye toward history. The historian-objectors’ view conflicts with the well-known principle of human behavior embodied in the Hawthorne Effect: the mere act of examining someone alters his character or behavior. The historians’ statements also have a self-contradictory quality, for they appear simultaneously to assert that the public remains tremendously interested in such confidential communications twelve or more years after the events have transpired but that none of the participants would ever bear that in mind. Has no high-ranking public official ever maintained a diary with the thought of using it for a memoir?
These self-interested historians imply that they are the only ones who would be conscious enough of an historic moment to think about how future generations would react to it. Yet, the careers and reputations of government officials often extend beyond twelve years, and they are very conscious of this. The automatic release of deliberative documents, even after twelve years, would undoubtedly affect the advice a President receives when he most desperately needs frank advice: when the stakes are momentous and when the matter being debated is highly sensitive or subject to disagreement.
Even if the historian-objectors (who may represent a small subset of all historians) are correct, their argument should be addressed to the Supreme Court. It is the Supreme Court that held the executive privilege extends to confidential communications and deliberative documents. It was the Court that decided (correctly, in my view) that this was necessary to ensure candid and complete deliberations. The objectors’ ire is misdirected at the President.
Executive Order 13233
President George W. Bush is the first President who has had to implement certain aspects of the PRA because he is the first President in office twelve years after the conclusion of the first administration (President Reagan’s) covered by the PRA. Last fall, President George W. Bush issued Executive Order No. 13233 to establish neutral procedures for the incumbent and former Presidents to review documents subject to release and invoke constitutionally based privileges. The bulk of E.O. 13233 is not only lawful and prudent, but it is—with minor exceptions—practically the only way to implement the PRA consistent with the incumbent and former Presidents’ constitutional obligations.
E.O. 13233 identifies several types of documents subject to constitutionally based privilege (state secrets, presidential communications, deliberative process documents). These are often thought of as subsets of the executive privilege. Separate laws govern the release of state secrets and national security information, and there is not much dispute that access to these documents should remain restricted. Some have argued, however, that all such documents are in fact removed by the Archivist before a request under the PRA is processed. With all due respect to the staff of the Archivist and the Archivist himself, the incumbent and former Presidents have an independent duty to ensure that no classified documents that would harm national security are released. And, in at least some cases, the incumbent and former Presidents’ access to other national security information would put them in a much better position to know whether a particular document implicates our national security or not.
Most of the outside criticism focuses on a former President’s invocation of privilege with respect to documents that contain confidential communications or that reflect high-level, executive branch deliberations. But it is even more important for a former President to review these types of documents. It is possible, even likely, that only he is aware of the sensitive nature of many presidential documents from his administration. The incumbent President might be from another party and be unfamiliar with the relationships between the advisors and other officers in the former President’s administration more than twelve years past. Moreover, the former President may have a direct recollection of the particular debate or discussion that the documents reflects. He may even remember specific requests for confidentiality or other reasons why the documents reveal a sensitive communication or deliberation.
The Supreme Court was not troubled that a former President might, in some cases, invoke executive privilege to protect former administration officials from embarrassment. Indeed, it is the former President’s obligation to shield officials from embarrassment (with regard to confidential communications or high-level deliberations) if he thinks that course is necessary to preserve a confidential atmosphere within which future Presidents can receive complete and frank advice when they need it.
Accordingly, E.O. 13233 establishes procedures for the incumbent and former Presidents to review all documents that are being sought under the PRA for potentially privileged documents. The review period for a request made by a non-governmental party is up to 90 days, but it may be extended if the request is “unduly burdensome.” E.O. 13222, § 3(b). The review period for a request originating from Congress or the Courts is 21 days, but it too may be extended if the request is “burdensome.” Id., § 6. In the executive order, President Bush also instructs the Archivist to withhold all documents that either the incumbent or former President assert are privileged. Id., § 3(d). Finally, the executive order states that “[a]bsent compelling circumstances, the incumbent President will concur in the privilege decision of the former President” to release documents under the PRA. Id., § 4.
Executive Order 13233 and D.C. Circuit Law
A witness at the Subcommittee’s earlier hearing asserted that Public Citizen v. Burke, 843 F.2d 1473 (D.C. Cir. 1988), was inconsistent with a former President’s exercise of executive privilege in E.O. 13233, but that is not correct. In Burke, the D.C. Circuit Court struck down a Justice Department directive that was similar in some respects to E.O. 13233, § 3(d), but distinguishable in two other critical respects. The Justice Department directive instructed the Archivist to defer to any claim of privilege asserted by former President Nixon. In Nixon v. Administrator of General Services, the Supreme Court made clear that a former President could continue to assert executive privilege over documents from his administration, but that case did not consider a possible clash with the incumbent President. What if the incumbent President disagreed with a former President’s privilege claim and instructed the Archivist not to honor the position of the former President? The D.C. Circuit believed that the Archivist’s obligation to the incumbent President was paramount, and that he need not defer to a former President’s claim if he concluded it was not proper.
Although I think the D.C. Circuit may have erred in Burke, E.O. 13233 is nevertheless fully consistent with it. The D.C. Circuit may have erred because the Archivist probably does have a responsibility to treat a former President’s privilege claims as presumptively valid (pending resolution by a court), even if the incumbent President disagrees. That said, the D.C. Circuit was principally concerned about the Archivist’s duty if he received conflicting instructions from the former President and the incumbent President. The Justice Department directive did not come from President Reagan himself; so a hypothetical conflict was possible.
In contrast, E.O. 13233 is an order from the incumbent President to the Archivist, instructing the Archivist to honor any privilege claim by a former President unless and until it is withdrawn or overturned by a court with proper jurisdiction. The executive order further states that “the incumbent President will support that privilege claim [by the former President] in any forum in which the privilege is challenged.” § 4. To the extent that Burke rested on the Archivist’s obligation to the incumbent President, that obligation is clear in E.O. 13233. Under E.O. 13233, the Archivist never has to take orders from a former President, but he does have to follow orders from the incumbent President. In effect, President George W. Bush has announced to the Archivist in advance that he will ratify and enforce a former President’s claim of privilege whenever it is asserted. The result is that the Archivist is acting under the combined constitutional authority of the former President (who clearly retains some constitutional authority as against outside parties) and the incumbent President. Burke has nothing to say about that situation.
Analysis of H.R. 4187
With the preceding framework in mind, there are several provisions of H.R. 4187 that appear to be flatly unconstitutional and others that raise serious constitutional concerns. These defects tend to compound each other, so that taken together, they render the entire bill even more clearly unconstitutional. The four most serious problems are analyzed below.
Subsection (c): Nullifying a Former President’s Executive Privilege Authority
Subsection (c) of the proposed new section 2208 of title 44 is the most constitutionally problematic. The historian-objectors before this Committee and Subcommittee have expressed particular angst that the Supreme Court has allowed former Presidents to continue to invoke executive privilege with regard to documents from their administrations. Subsection (c) provides that a former President’s assertion of such privilege is good for only twenty days. After that period, the Archivist of the United States must release the documents unless the former President has already secured a court order barring the release.
Subsection (c), if it were constitutional, would effectively nullify a former President’s right to assert executive privilege over documents from his administration. It would convert an executive privilege that is presumptively valid and can only be overturned by an affirmative court order into a right to delay the release for twenty days. The President’s opportunity to seek court action does not cure the constitutional defect, because Congress simply has no power to take an exclusive presidential power and condition it on the assent of another branch. That is a basic tenet of separation of powers doctrine. It should be self-evident that a power which flows from the separation of powers (the executive privilege) cannot be conditioned on approval from the courts (subsection (c)).
Subsection (c) may be predicated on the belief that the former President is in a better position to bear the cost of litigation than the requester. There are four logical responses to this notion. First, it is not true with regard to large media corporations. Second, Congress could subsidize such litigation, but since it failed to do so, it makes more sense for the person who seeks to profit by such information to bear the cost of litigation—regardless of relative wealth. Third, the former President already must devote substantial amounts of time to reviewing burdensome document requests for potentially privileged documents; he should not also have to bear the burden of initiating litigation when a requester might be satisfied with the balance of what is released. Fourth, and most important, a policy concern—no matter how well founded—cannot trump a constitutional right.
Subsection (a)(3): Inadequate and Inflexible Deadlines
When the President is exercising a power derived from the Constitution, as opposed to a statutory power, Congress has very limited authority to micromanage the timing of his actions. Congress could not pass a law requiring the President to make a pardon decision within 20 days after receipt of any such request from the Department of Justice. Nor could Congress require a President to decide whether to sign a treaty within 20 days of any international treaty convention. Many other examples are equally illustrative of the basic point: if the President derives a particular power from the Constitution and there is no time limit on the exercise of that power in the Constitution (such as the veto power), Congress cannot impose one on his exercise of that power.
Nevertheless, subsection (a)(3) purports to grant the incumbent President and former President only 20 days, with the possibility of a 20-day extension, within which to assert any constitutionally based privilege claims. It does not matter what number of documents is being requested by an outside party or group of parties—be they 1,000 or 100,000. It does not matter that the President may be engaged in prosecuting a war or responding to a terrorist attack. It does not matter whether the former President is recovering from a stroke or is traveling on an important diplomatic mission. Moreover, subsection (a)(4) requires that the incumbent or former President personally sign every claim of privilege, so they might feel it necessary to personally review each potentially privileged document.
An inflexible 20-40 day time frame for the review of thousands of documents and the invocation of privilege is imprudent to say the least. To the extent that it significantly burdens the President’s ability to exercise his executive privilege power and perform other vital obligations of his office, subsection (a)(3) is constitutionally dubious.
Several years ago, Congress extended the time President Clinton and future Presidents would have to fill vacancies in Senate-confirmed offices with acting appointments from 120 to 210 days, and that period can be further extended. 5 U.S.C. 3345-49. E.O. 13233 provides for an initial 21- or 90-day review period, with the possibility of an extension. By comparison to the Vacancies Act, the President’s proposed time frame for review of PRA documents is positively speedy. I see no reason to interfere with this scheme, particularly for documents that are already twelve years or more old.
If there were a vital need to place some outer limit on the President’s initial review of documents, I think the most Congress could do is to authorize some sort of court supervision if the President failed to act within a reasonable length of time (say, 180 days). Such a proceeding might be analogous to a mandamus action to force an agency to rule on a petition under 5 U.S.C. 553(e). Since a proper court can overrule a claim of executive privilege, it might (with appropriate legislation) be able to force a President to make a decision that will trigger the potential litigation. Such a process is also more likely to be upheld by the Supreme Court because the lower court will have had the opportunity to consider the special facts and circumstances of each request and the length of delay.
Making the Archivist Superior to the President
Several provisions of H.R. 4187 violate a separate aspect of Article II and separation of powers doctrine when they attempt to make the Archivist the President’s superior. The Constitution provides that “[t]he executive Power shall be vested in a President,” not some of it. Art. II, § 1, cl. 1 (emphasis added). The Framers debated and rejected the creation of a plural executive in favor of a unitary executive. Their conscious design was to vest “the execution of [the laws in] a single hand.” Federalist No. 37. The Supreme Court properly held that this requires the President’s control over all officers who exercise significant executive power. Myers v. United States, 272 U.S. 52 (1926).
Subsection (a)(3)(B) requires the Archivist to deny the President an additional 20 days to review the requested documents unless the Archivist determines that “such an extension is necessary to allow an adequate review of the record.” Imagine the following letter to the President from the Archivist: “Sorry Mr. President, but I just can’t determine in good faith that an extension is ‘necessary,’ given that the confidential calendar you sent over for next week includes a golf outing, a fundraising banquet, and a trip to Europe (again!). Better luck next time.”
Subsection (a)(4) requires the President to communicate his claim of executive privilege to the Archivist in a particular way, the failure of which purports to require the Archivist to treat the President’s claim as invalid. Congress could not pass a law telling the President he must communicate all military orders in triplicate, using only approved congressional memo pads. The President may communicate his orders to his subordinates any way he wishes, orally or in writing, in polite terms or peppered with profanity. But according to subsection (a)(4), if the President does not dot all “i”s and cross all “t”s, the Archivist must treat his command to withhold the documents as a nullity.
Morrison v. Olson, 487 U.S. 654 (1988) muddies the constitutional waters somewhat, because it created an exception to the rule in Myers for independent counsel under the now expired Ethics in Government Act. (Other exceptions for “independent” commissions are distinguishable because the Court concluded they do not exercise executive authority.) Many constitutional scholars who once defended Morrison have ceased to do so in recent years, and perhaps the Court would rule differently today. But surely even the Morrison Court would not sanction so basic a violation of the unitary executive doctrine in order to further the comparatively unimportant interest identified in H.R. 4187.
Attempting to Overrule E.O. 13233
A President may issue an executive order or other directive to implement any of the powers properly conferred to him. See generally Todd Gaziano, Legal Memorandum No. 2, “The Use and Abuse of Executive Orders and Other Presidential Directives,” The Heritage Foundation, Feb. 21, 2001 (available at http://www.heritage.org/library/legalmemo/lm2.html). Congress’s power to modify or overrule a presidential directive depends on the font of the President’s authority over the subject matter of the directive. See id. at 4; Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952) (the “Steel Seizure Case”). The President has express and implied powers conferred to him by the Constitution (e.g., the pardon power), powers that are shared with Congress under the Constitution (e.g., war powers), and powers that are conferred exclusively by statute (e.g., appropriations).
Congress has broad discretion to restrict or overrule presidential executive orders that are based solely on a statutorily conferred power, although there still are some limits to the congressional micro-management of the President’s execution of the laws. In other words, the greater power does not always include all lesser controls. See INS v. Chadha, 462 U.S. 919 (1983).
Congress has some power to regulate executive directives based on shared constitutional powers, but it would depend on the facts, circumstances, and clauses at issue. With regard to the war powers, Congress may condition when and how the President shall call up reserves to serve in the armed forces of the United Sates, but as explained above, it could not dictate how the President communicates his tactical commands to troops on the field of battle.
With regard to powers conferred solely on the President by the Constitution, Congress has practically no authority to interfere with the President’s management directives. The President may issue secret pardons or he may pardon whole categories of individuals in an executive order, as President Andrew Johnson did with regard to former confederate soldiers. See Legal Memorandum No. 2, supra at 11 (noting that the Supreme Court upheld President Johnson’s blanket pardon).
Section 3 of H.R. 4187 states that E.O. 13233 “shall have no force and effect.” Although E.O. 13233 relates to the implementation of the PRA, at its core, it establishes procedures for the invocation of presidential powers (executive privilege claims) that Congress cannot alter. It is axiomatic that the President’s authority to implement his constitutional powers is “vested in [him] by the Constitution.” See E.O. 13233, Preamble. Thus, E.O. 13233 contains the President’s public statement regarding how he will exercise his constitutional power (and respect the constitutional power of former Presidents) within the framework of the PRA. It also contains his instructions to the Archivist in such matters.
H.R. 4187 does not amend the framework of the PRA that is within Congress’s power, but it is an attempt to modify, condition, and partially nullify incumbent and former Presidents’ constitutional powers. In these respects, H.R. 4187 would be void even if it were passed. See generally Statement of Antonin Scalia, [then] Assistant Attorney General, Office of Legal Counsel, on S. 2170, the Congressional Right to Information Act, Before the Subcommittee on Intergovernmental Relations, Committee on Government Operations, United States Senate, Oct. 23, 1975 (explaining that Congress lacks the power to establish procedures that the President would have to use when invoking executive privilege). In sum, it is H.R. 4187 that “shall have no force and effect,” not E.O. 13233.
The Combined Defects of H.R. 4187
The combined defects of H.R. 4187 render it even more constitutionally questionable, in part because each defect compounds the rest. A 20-40 day initial review period is an even greater burden on a former President if he must also secure a court order within the next 20 days to enforce his privilege claims. Congress’s attempt to elevate the Archivist over the President (with regard to constitutionally based privilege claims) is based on the mistaken premise that Congress can overrule a presidential management directive.
I have no doubt that this Subcommittee and full Committee have proceeded with their oversight and legislative hearings in good faith. But a President has a responsibility to vigorously resist any erosion in the power of his Office. Separation of powers principles require no less. If I were still in the Office of Legal Counsel, I would strongly urge the President to veto any legislation similar to H.R. 4187. I think the Department of Justice under any President would take the same position.
My belief that H.R. 4187 is unconstitutional does not mean that the Subcommittee’s hearings have served no constructive purpose. By highlighting the concerns of historians, journalists, and others regarding the time in which the President reviews documents subject to release under the PRA, I hope you have helped convince the White House to speed up its review process (although waging war is cause for some delay). But my sincere and respectful advice to this Subcommittee is that further progress must be based on a polite exchange with the White House rather than legislation that purports to dictate terms to the President.
If the Subcommittee continues pursuing H.R. 4187 or similar legislation, it will engage in a futile act that will waste its time, and possibly that of the President and the courts. But if the Subcommittee properly engages the White House on this issue, I am confident that the White House will reach an appropriate accommodation regarding the Subcommittee’s concerns.
*The Heritage Foundation is a public policy, research, and educational organization. It is privately supported, and receives no funds from any government at any level; nor does it perform any government or other contract work. The Heritage Foundation is the most broadly supported think tank in the United States. During 2001, it had more than 152,000 individual, foundation, and corporate supporters representing every state. Its 2001 contributions came from the following sources: individuals and bequests (61%), foundations (27%), corporations (7%), investment income (2%), publication sales and other (3%). Staff of The Heritage Foundation testify as individuals. The views expressed are their own, and do not reflect an institutional position for The Heritage Foundation or its board of trustees.