STATEMENT OF
PROFESSOR JONATHAN TURLEY
SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
WASHINGTON, D.C.
“H.R. 4187: The Presidential Records Act Amendments of 2002”
April 24, 2002
_______________
Thank you, it is an honor to appear again before this Subcommittee and its distinguished members. Chairman Horn, Vice-Chairman Lewis, Ranking Member Schakowsky, members of the Subcommittee, my name is Jonathan Turley and I am a law professor at the George Washington University Law School where I hold the J.B. and Maurice C. Shapiro Chair for Public Interest Law. I know that your time is limited today and, with the consent of the Subcommittee, I would like to submit a longer written statement to augment my oral testimony on the Presidential Records Act (PRA) and its amendment in light of Executive Order (E.O.) 13233.[1]
I.
INTRODUCTION
James Madison once warned that “[a] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Government must arm themselves with the power which knowledge gives.”[2] Madison’s warning is particularly apt in the context of presidential records. There is no information that is more illuminating in terms of public policy and governmental abuse than presidential records. Yet, every administration appears to develop a certain reflective hostility to the release of presidential material. In part this is due to the long-standing view of presidents that confidentiality is essential to the effective operations of the White House. It may also be due in part to the vulnerability that raw records can pose to the legacy of a former president and his administration.
It is precisely that latter issue that concerns both those seeking to restrict and those seeking to release presidential material. Efforts of an administration to restrict access or release immediately trigger suspicions of tailoring a legacy through the control of information. These suspicions may in fact be misplaced but it is based on a history of such motivations. A president’s support for open government and unfettered access to government documents can change when the content of such material becomes known. For example, in 1961, Richard Nixon objected to possible restrictions to information involving the Bay of Pigs debacle under President John F. Kennedy. Nixon insisted that
The concept of a return in peacetime demonstrates a profound misunderstanding of the role of a free press as opposed to that of a controlled press. The plea for secrecy could become a cloak of error, misjudgments, and other failings of government.”[3]
Nixon’s transformation from an advocate of maximum freedom to maximum control over government information should be a lasting lesson to the unwary. Public access to government information will remain an unreliable and content-driven policy so long as it is left to the discretion of those who have the most to fear from its release. The mere element of discretion invites officials to yield to temptation to control and regulate the flow of information. Such discretion is like a currency of fleeting value and only redeemable in its use. Officials who are given authority tend to use it, particularly when a legacy or historical record may hang in the balance. The only solution is to reduce such control and discretion to a minimum; to affirm a bright-line rule for the release of information to the public. After all, it was in the name of the American people that these communications and documents were made. They have a right to not only see what was done in their name but to be assured that access of these records will be afforded within a defined and determinate period.
The question raised by E.O. 13233 is an interesting mix of issues touching on the separation of powers, executive privilege, statutory interpretation, and fundamental notions of democratic government. I come to this subject as an academic who teaches, writes,[4] and litigates[5] in the area of constitutional law. This past work includes two areas of particular relevance to this hearing: legisprudence[6] and executive privilege.[7] After significant losses in the areas of executive privilege and attorney-client privilege under former President Clinton, I was one of the academics who encouraged the Bush Administration to make the repair of executive privilege a priority issue.[8] Accordingly, my disagreement with the Bush Administration in a series of recent controversies over executive privilege is one of degree rather than purpose. Quite frankly, I have been perplexed by the Administration’s selection of issues on which to fight executive privilege. Given the anemic condition of executive privilege after the Clinton losses in court, it was essential that the Administration chose wisely when and how to defend this vulnerable asset. Instead, the Administration has invoked and fought privilege claims that were often excessive and even unprecedented.[9] This has led to a number of losses and subsequent reversals by the Administration in areas ranging from the release of Energy Task Force documents to the appearance of Homeland Security Director Tom Ridge before Congress.[10] To put this developing record in the kindest possible light, there appears a lack of a coherent and consistent strategy in this Administration for the assertion and protection of executive privilege. The Administration’s unexpected issuance of E.O. 13233 follows this pattern. Not only was there an apparent lack of consultation with Congress,[11] but the executive order was written in a fashion that seems to maximize the chances of another loss in court. As someone who is often on the other side of executive privilege assertions in court, I should be delighted by such a pattern. However, as someone who cares deeply about the Madisonian system of tripartite government, this record is as distressing as it is baffling.
In my view, E.O. 13233 is fatally flawed as a matter of law and extremely misguided as a matter of public policy. For that reason, I am supportive of H.R. 4187 in both its language and purpose. I commend Chairman Horn and the bipartisan supporters of this bill for defending a long-held policy of public disclosure.[12] It is the type of public interest legislation that has distinguished your career in this body, Chairman Horn, and it is all the more meaningful as one of your final legislative objectives before retirement. E.O. 13233 represents a troubling anomaly after decades of support for the maximum release of presidential records. This record extends through both democratic and republican administrations and the underlying policy has been championed by both parties in Congress. Fortunately, our system allows for corrective action to be taken when an Administration takes an action that is unwise or ill-considered. H.R. 4187 is precisely such a measured legislative response.
II.
A QUESTION OF OWNERSHIP:
PRESIDENTIAL PAPERS AS PUBLIC PROPERTY.
To understand the legal and policy issues relating to E.O. 13233, it is important to understand how we came to the enactment of the Presidential Records Act. The change in policy by the Bush Administration is far more fundamental than simply a new procedural framework for the release of presidential papers. There are aspects of the executive order that hearken back to a quasi-proprietary sense reminiscent of a long-abandoned view of some early presidents.[13]
When one considers the copious amounts of government records and documents produced each day in the federal system, it is hard to imagine that at the beginning of the republic we had a reputation for disdaining records and documentation. Alexis de Touqueville noted in his masterpiece, Democracy in America, that
[In America, no one] bothers about what was done before his time. No method is adopted; no archives are formed; no documents are brought together, even when it would be easy to do so. When by chance someone has them, he is casual about preserving them. Among my papers I have original documents given to me by public officials to answer some of my questions. America seems to live from day to day, like an army on active service.[14]
Today, the very suggestion of public officials giving original documents to answer inquiries is enough to send the most stalwart archivist into a fetal position. Perhaps the most valuable of such documents are presidential papers. While agencies generate important material in the execution of policy, it is in presidential papers that historians can divine the genesis of policy.[15] Moreover, the weakening of the PRA would be particularly damaging to our historical record because the act serves a unique function vis-à-vis record-keeping statutes like the Federal Records Act (FRA)[16] and information-forcing statutes like the Freedom of Information Act (FOIA).[17] The FRA not only does not cover White House offices, but the Supreme Court has ruled that it was intended “not to benefit private parties, but solely to benefit the agencies themselves and the Federal Government as a whole.”[18] FOIA conversely mandates conditions for release, but does not contain record-keeping standards for the government.[19] The PRA strives to serve not the interests of agencies but that of history. It does this through a detailed process for the safekeeping and dissemination of presidential material.
For much of our early period as a republic, presidents and Congress assumed that presidential papers were the property of the departing Chief Executive. Accordingly, it was common for departing presidents to take their papers with them into retirement except for those papers with on-going significance or application in government.[20] This led to a series of historical losses of the greatest magnitude.[21] George Washington left his papers to the control of his nephew, Associate Supreme Court Justice Bushrod Washington, who was described as a man of “little discretion” and “hazardous generosity.”[22] In relatively short order, Washington’s papers were dispersed among a wide array of private parties. Other presidents like Andrew Jackson allowed their papers to be distributed in equally haphazard ways.[23] Those presidents who did order the consolidation and preservation of their papers did not always succeed. Larry Berman has recounted how William Henry Harrison’s papers were lost in a fire at the Harrison home in Ohio.[24] Civil war claimed the papers of John Tyler when Richmond burned in 1965.[25]
Other presidents or their relatives preferred destruction to dispersion in handling presidential papers. Fillmore’s son actually ordered the destruction of his father’s correspondence “at the earliest practicable moment” after his death.[26] Ulysses S. Grant followed this view and destroyed most of his presidential papers[27] as did Franklin Pierce and Chester A. Arthur.[28] and virtually all of the private papers of Harding were destroyed by his wife.[29] Perhaps most shocking was the effort of Abraham Lincoln’s son Robert, who “was caught by Mary Butler in the very process of destroying his father’s Civil War correspondence.”[30] While recognizing the public’s interest in these papers, most presidents until the middle of the twentieth century took the view of Grover Cleveland that “if I desired to take [my presidential papers] into my custody I might do so with entire propriety, and if I saw fit to destroy them no one could complain.”[31]
Presidents were not alone in this proprietary view of presidential papers. Congress and archivists treated presidential papers as personal property, as evidenced by purchases of collections by the government.[32] Over time, a new view emerged that did not deny the claim of personal ownership of some presidential papers, but viewed their sale or destruction as a public wrong. Franklin Delano Roosevelt symbolizes this shift in thinking in his decision to donate both land and his papers for the establishment of the first presidential library in Hyde Park, New York. He did so, however, in full recognition that this was a gift to the American people and not an obligation.[33] After Roosevelt, there was an expectation that these papers would eventually be placed in a public library or archive.[34]
After Roosevelt, the view of a public duty rather than a public obligation continued to control the release of presidential records. Even when Congress enacted the Presidential Libraries Act of 1955,[35] presidents were not required to deposit their records into the libraries and, when they chose to do so, they controlled the conditions under which they would be available to researchers or the public.[36] Thus, Congress either did not consider presidential records to be public property or, more likely, it was content to leave the issue unresolved and to rely on the good intentions of former presidents.
It was Richard Nixon who brought about a quantum change in the status of presidential papers for most unexpected of reasons. Nixon would be the catalyst for the Supreme Court’s modern articulation of executive privilege and its limits in his struggle with Congress over its investigations and impeachment. It is less known that Nixon also caused a reconsideration of the status of presidential documents and the process by which such documents would be acquired and released by government archivists. In a modern replay of prior scandals involving the destruction of presidential papers of presidents like Lincoln and Harding, an agreement was discovered by Congress that reasserted not only personal proprietary claims to these papers but also the right to destroy such property.[37] This so-called Nixon-Sampson agreement is often referred to by professional archivists with the same loathing that international politics scholars refer to the Stalin-Molotov agreement. Arthur Sampson was the Administrator of General Services and signed an agreement with Nixon that recognized his private property claim over all of his presidential papers. This private property included the incriminating tapes recorded in the Oval Office. Under the agreement, “Nixon could begin to destroy the tape recordings on or after September 1, 1979, so that all of them would be destroyed by September 1, 1984, or following the death of the former President, whichever occurred first.”[38] The resulting controversy led to the enactment of the Presidential Recordings and Materials Preservation Act of 1974 (PRMPA),[39] which nullified the Nixon-Sampson agreement and protected the Watergate tapes from destruction.[40] A challenge from Nixon led to the Supreme Court’s constitutional ruling in favor of Congress’ right to protect such material from unilateral destruction by a president in Nixon v. Administrator of General Services.[41]
The Nixon-Sampson controversy also led to the establishment of a commission to study the question of presidential records.[42] The National Study Commission on Records and Documents of Federal Officials called for a final rejection of the private proprietary theory of presidential papers. Not only did the commission recommend that all such papers be viewed as public property but further suggested the current 15-year time period as a transition period to eventual public release.[43] This was the position ultimately adopted by Congress and President Jimmy Carter in the enactment of the Presidential Records Act of 1978.[44]
The Nixon litigation reveals a transition from a period of reliance on private proprietary claims to reliance on executive privilege as a basis for withholding material. Nevertheless, a private proprietary claim was made by Nixon and led to a brief consideration of the issue of title to presidential records in United States v. Nixon.[45] While the Supreme Court declined to hold that presidential records are the property of the public rather than the president, it strongly suggested that there was a strong public claim to these documents, even against the wishes of a claim of private ownership. In a footnote that was a catalyst for the enactment of the PRA, the Court stated:
We see no reason to engage in the debate whether appellant has legal title to the materials. . . . It has been accepted at least since Mr. Justice Story's opinion in Folsom v. Marsh, 9 F. Cas. 342, 347 (No. 4,901) (CC Mass 1841), that regardless of where legal title lies, "from the nature of the public service, or the character of the documents, embracing historical, military, or diplomatic information, it may be the right, and even the duty, of the government, to give them publicity, even against the will of the writers." Appellant's suggestion that the Folsom principle does not go beyond materials concerning national security and current Government business is negated by Mr. Justice Story's emphasis that it also extended to materials "embracing historical... information." Ibid. Significantly, no such limitation was suggested in the Attorney General's opinion to President Ford. Although indicating a view that the materials belonged to appellant, the opinion acknowledged that "Presidential materials" without qualification "are peculiarly affected by a public interest" which may justify subjecting "the absolute ownership rights" to certain "limitations directly related to the character of the documents as records of government activity."[46]
Congress responded quickly to establish legislatively that title to this material belongs to the public, as position accepted by President Jimmy Carter and all of his successors in office.[47]
On this historical spectrum, it would be unfair to characterize President Bush’s position as analogous to the line of presidents asserting private proprietary claim to presidential records. President Bush appears entirely respectful of the federal law making these documents public property and subject to public dissemination. Rather, President Bush appears to hold a view akin to a constitutional proprietary rather than a private proprietary claim over these records. By giving not only former presidents but their designated heirs a veto over the release of documents, he has created a new form of proprietary claim that returns a degree of unilateral control to former presidents and their heirs. With the exception of the right to sell or destroy material, this new constitutional proprietary view affords a degree of private control that has not been realized since the demise of the private proprietary theory.
III.
THE PRESIDENTIAL RECORDS ACT AND E.O. 13233
A. A Brief Overview of the Presidential Records Act.
Unlike its immediate predecessor, the PRMPA, the Presidential Records Act was enacted with the purpose of “establish[ing] the public ownership of records created by future Presidents . . . in the course of discharging their official duties.”[48] For decades, no president has questioned the public claim to these records. This may be in part due to both its genesis in a Supreme Court decision as well as its recognition of executive privilege and national security claims for withholding information.
A great deal of material under the PRA is either excluded or subject to destruction. The PRA does not cover personal records.[49] Rather presidential records are “any documentary materials relating to the political activities of the President or members of his staff, but only if such activities related to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.”[50] Even when covered by the PRA, Congress imposes a delay in the release of information to protect the immediate confidentiality or sensitivity of the information. Thus, a president is allowed to unilaterally demand a delay in the release of information for up to 12 years for material that fall into one of six categories.[51] These categories include material:
(1) authorized to be kept secret for national security and foreign policy reasons; (2) relating to the appointment of federal officials; (3) exempted from disclosure by statute; (4) trade secrets and commercial or financial information which is confidential; (5) confidential communications between the President and advisors concerning requests for advice; and (6) personnel and medical files of which disclosure would be an invasion of privacy.[52]
The most relevant category for a review of E.O. 13233 is number five – the confidential communications category.
It is important to understand that the twelve-year limitation under the PRA does not mean that any and all material is then released. To the contrary, Congress incorporated the standards from FOIA as to allow the indefinite withholding of information under eight distinct categories. Only one category for withholding FOIA information was excluded – the FOIA exemption that covers most confidential communications.[53] The remaining exemptions include (1) any national security information that has been classified pursuant to an executive order;[54] (2) information that is “related solely to the internal personnel rules and practices of an agency”;[55] (3) information that Congress has statutorily exempted from release;[56] (4) trade secrets and other information that would reveal privileged or confidential commercial or financial information;[57] (5) information that would violate an invasion of privacy;[58] (6) certain law enforcement records;[59] (7) information used by “an agency responsible for the regulation or supervision of financial institutions;”[60] and (8) maps and other geological or geophysical information “concerning wells.”[61]
The PRA allows for a fair degree of flexibility in both the maintenance and release of information. The Act does allow for destruction of records but bars the destruction of any records “that no longer have administrative, historical, informational, or evidentiary value.”[62] The Act further requires an examination by the Archivist of the material who can notify Congress and trigger a 60-day waiting period to allow for a countermanding legislative act. For all other material, the Act establishes a simple process for the archiving and later public dissemination of material. As for a president’s policies on record-keeping during his or her term, the Act leaves the matter entirely to his own discretion and does not provide for judicial review.[63]
The role of the Archivist is central to the legislative intent and operation of the PRA. Congress essentially left to the Archivist to be a sentinel for history. While the Archivist has no independent authority to challenge a decision by a president, he has the authority to raise an alarm as to the loss of valuable material and to delay the destruction to allow Congress to act. This sentinel function is triggered by a requirement in the Act that a president must notify the Archivist of any destruction of records and the Archivist can then issue, if warranted, a written opinion in opposition to such a policy.[64] If the president chooses to ignore the recommendation of the Archivist, the latter may delay any destruction by 60 days and alert Congress to the potential loss.[65] The Archivist is given the express duty to release presidential records “as rapidly and completely as possible.”[66] To accomplish this vital role, Congress sought “to shield the Archivist from unnecessary pressure” given the expected interest of a president to forestall the “release of embarrassing and inappropriate material concerning a predecessor, and from the predecessor to withhold materials. . . .”[67]
The Archivist also serves a sentinel function in protecting of executive privilege. The Archivist is required to notify a former president of the possible release of any documents that “may adversely affect any rights and privileges which the former President may have.”[68] The former president then has 30-days to object to such a release and, if the Archivist rejects the claim of privilege, the former president is given an additional 30 days after notification of denial to seek judicial relief.[69]
At the end of his administration, President Ronald Reagan signed an executive order imposing additional procedures on the archiving and release under the PRA.[70] Notably, neither President Reagan nor President George P. Bush opposed the provisions changing in E.O. 13233. Rather, President Reagan imposed relatively modest procedural requirements on the Archivist that did not trigger any substantial opposition from the public or Congress. For example, E.O. 12, 667 required the Archivist to “identify any specific materials, the disclosure of which [the Archivist] believes may raise a substantial question of Executive privilege.”[71] This executive order was superceded by E.O. 13233.
B. Constitutional Analysis of E.O. 13233.
It is important to remember that the PRA recognized the newly defined principle of executive privilege, but did not seek to expand on the privilege in the control of presidential records.[72] In United States v. Nixon,[73] the Supreme Court had rejected Nixon’s extreme view of executive privilege and held that such a privilege is qualified.[74] The resulting privilege was limited and fully incorporated into the PRA. The language of the executive order strongly suggests a view of executive privilege that contradicts not only the PRA but prior decisions of the federal courts in this area. In this sense, E.O. 13233 would effectuate fundamental changes in both an act of the legislative branch as well as prior rulings of the judicial branch. Since an executive order cannot constitutionally do either task under the separation of powers doctrine, the Administration can hardly expect to achieve both tasks in E.O. 13233.
There are a host of constitutional problems raised in this executive order. Given the limitation on time, I would like to focus on two general constitutional issues. First, there is the question of the constitutionality of the PRA as a threshold question. Despite the acceptance of prior administrations, the authority of Congress to compel the release of confidential communications could be challenged by the Bush Administration as violative of executive privilege. Second, if the authority of Congress to compel the release of such documents is accepted, there is the question of whether the President has attempted to use an executive order to negate or amend a statute.[75] This secondary question goes to the inherent conflict between the statute and E.O. 13233.
1. The Constitutionality of the Compelled Disclosure of Confidential Communications under the Presidential Records Act.
The threshold constitutional analysis of the PRA naturally focuses on the assertion of congressional authority over confidential communications. This analysis begins with the clear decision of Congress not to exempt confidential communications when it decided not to incorporate FOIA exemption (b)(5). It is the category of confidential communications that appears to be the primary concern of the Bush Administration despite its earlier statements. The Bush Administration initially justified E.O. 13233 on the need to protect national security.[76] However, as already noted, there is ample protection for national security protection since both the PRA and the incorporated FOIA exemptions specifically cover information “properly classified pursuant to . . . Executive order.”[77] The national security protections expressly bar the release of national security information during and after the twelve-year period. The extent that the Administration believed that E.O. 13233 was needed to protect national security information, it was simply incorrect in its reading of PRA.
A direct constitutional challenge to the PRA would seem both unwise and unwarranted. Executive privilege has long occupied a certain place in constitutional law. The privilege remains relatively recent in its articulation by the Supreme Court, though it can be traced to the very first administration of George Washington.[78] The Court recognized this privilege with considerable reservation as to its scope and duration of use. The Court has noted that an executive privilege claim of a former president is facially less compelling than it is for an incumbent.[79] Moreover, the Court has held that executive privilege is time-sensitive. Thus, while the Court has accepted that a former president can raise an executive privilege claim,[80] this claim diminishes with time. The Court was clear on this point in Nixon v. Administrator of General Services when it noted that “[t]he expectation of the confidentiality of executive communications thus has always been limited and subject to erosion over time after an administration leaves office.”[81] The only question is the rate of this decline. Congress clearly believed that twelve years was ample time for the confidentiality of communications to recede to the point that it is over-ridden by the countervailing need of public disclosure.
E.O. 13233 is premised on the notion that some confidential communications would remain privileged after twelve years. There is no question that some communications may prove embarrassing for a president or an advisor. This is particularly the case for younger presidents like former president Bill Clinton and President Bush who will live long after the release of their records. However, there is no evidence that a twelve-year period would in anyway diminish the frank communication of information in the White House. There is no guarantee that a former president will in fact invoke privilege over a particular communication at the time of its making. More importantly, the executive privilege builds on the highly uncertain ground of an invocation of a former privilege. It then attempts to project this claim beyond a decade in time. Given the Court’s repeated position that this is a qualified and time-sensitive privilege, the suggested extension beyond the twelve-year period is highly dubious.
Ultimately, Congress has authority to assert public ownership over this material and to determine an adequate buffer period for confidential communication. Given the countervailing need for disclosure and the absence of any compelling evidence of a chilling effect on communications, it is doubtful that a court would reconsider the constitutionality of the PRA in a direct constitutional challenge.
2. The Inherent Conflict Between the Presidential Records Act and E.O. 13233.
Unless the President is challenging the constitutionality of the PRA, he cannot supercede or modify a federal statute through an executive order.[82] Thus, the constitutional analysis must turn to the question of whether this executive order truly only adds a few additional procedures consistent with the statute, as claimed by the White House,[83] or abridges the statute in violation of the Constitution. In my view, there is little question that E.O. 13233 violates the PRA in changing almost every major element of the statutory scheme. As such, the executive order transgresses upon the constitutional authority of Congress and should be found unlawful in any challenge.
i. The Negation of the Statutory “Buffer Period.”
E.O. 13233 stands in direct contradiction of a variety of statutory provisions and is, therefore, in violation of federal law. The most obvious is the stated statutory period for the release of information that is not exempted under the PRA. Congress expressly stated that the twelve-year delay was conceived as a “buffer period” for confidential communications.[84] It viewed the period as balancing the legitimate concerns of the Executive Branch with the need of the public to receive this information. The executive order would extend this period indefinitely and, in doing so, violates the very foundation of the PRA.
ii. The Reduction of the Authority of the Archivist.
E.O. 13233 also materially alters the statutory role of the Archivist. Despite the decision in Public Citizen v. Burke[85] in highly analogous claims, the executive order would transform the Archivist from a central to a bit player in disputes over presidential records. Where the PRA allows the Archivist to override an unreasonable assertion of privilege by a former president, the executive order would give the former president an effective veto – even when the incumbent president views the assertion to be unfounded.[86] Moreover, in cases of death or disability, the PRA expressly gives the Archivist the authority to exercise the authority of the former president.[87] This authority is expressly transferred to the family under the executive order, even without the approval of the former president.[88] Even the duty of the Archivist to carry out the insular schedule for review is changed under the executive order. E.O.13233 allows a former president to take 90 days for such review. However, it then mandates that a president can simply request an extension and effectively bar release.[89] A former president can simply daisy-chain such extension indefinitely. Once the most active component of the PRA process, the Archivist is reduced to a largely pedestrian role. Such changes negate authority given to the Archivist by Congress to control these records, which cannot be accomplished through an executive order.
iii. The Expansion of the Authority of a Former President.
E.O. 13233 also materially changes the authority of a former president. In the PRA, Congress declined to give a former president control over presidential records.[90] A former president was required to yield to the judgment of the Archivist or seek judicial relief. The executive order violates the Act by reconstructing the status of the former president in giving him final control over his records. Under the executive order, a former president is allowed to independently veto the release of material even when the Archivist finds the basis to be unsupported and the incumbent president finds “compelling circumstances” to disagree with the assertion of privilege.[91] Giving a private citizen (let alone his heirs) the continuing right to unilaterally control access not only violates the PRA, but raises serious constitutional questions.[92] A former president is simply a private citizen and cannot compel an executive official to impose improper or unsupported restrictions on public material. This point was specifically addressed in Public Citizen v. Burke, where the court rejected the notion that a former president could supplant the jurisdiction of the Archivist through an assertion of privilege. Such authority would allow the former president to “gain[] power to withdraw from the Archivist some indefinite portion of the responsibilities that Congress delegated to him.”[93]
iv. The Expansion of Parties with Ability to Control Access to Presidential Records.
E.O. 13233 also materially changes the PRA by adding parties who can claim privilege and control access to presidential records.[94] In perhaps the most baffling element of the executive order, the Bush Administration would add parties who may invoke privilege, including an unconstitutional extension of authority to a family member or designees. Under this executive order, a president could select any designee from a foreign citizen to a half-wit to assert executive privilege. [95] Moreover, the executive order allows for family members to designate a representative in the case of “death or disability,” including a series or group of individuals at their sole discretion.[96]
Putting aside the obvious policy implications, this would create new authority not just under the PRA but under federal law. As a general matter, executive privilege rests exclusively with the government and “can neither be claimed nor waived by a private party.”[97] Executive privilege is not some ottoman that can be bequeathed to successive generations. The executive order would mutate a limited constitutional doctrine into a matter for probate. Given the fact that a former president’s claim to executive privilege is itself both derivative and time-sensitive, the suggested extension to family members shows a breathtaking misunderstanding of the law in this area. There is no constitutional basis for such a transfer of authority to the heirs of a former president.
v. Shifting of the Burden for Release.
E.O. 13233 also fundamentally changes the legal burden in disputes over the withholding of presidential records. Under the PRA, it was the duty of a former president to seek a court order to override a decision of the Archivist to release material after the twelve-year period has run. The executive order would place this burden on the person seeking the material, a burden that is likely to discourage most researchers with limited funds. A former president is given public support both in terms of his administrative costs as well as his library. Moreover, a former president has access to a legion of lawyers who would gladly serve pro bono in any litigation. The burden imposed under the PRA is not particularly heavy for a former president, but could be determinative if shifted to a researcher or scholar. Regardless of the public policy implications of such a shift, it is clearly a material change in the federal statute and, therefore, unlawful.
vi. Imposition of New Standards for Access to and Withholding of information.
E.O. 13233 also introduces an entirely new threshold standard for access to presidential material. Under the executive order, “a party seeking to overcome the constitutionally based privileges that apply to Presidential records must establish at least ‘a demonstrated, specific need’ for particular records, a standard that turns on the nature of the proceeding and the importance of the information to that proceeding.”[98] This standard is grafted onto the statute, which places no such threshold showing for access.[99] In combination with the shifting of the burden, it represents an impermissible amending of a federal statute through the promulgation of an executive order.
The executive order also imposes a curious standard on the incumbent president who “will concur” with the claim of a former president absent “compelling circumstances.” It is a mystery where this standard comes from. An incumbent president presumably will either agree or disagree with an executive privilege assertion made by a former president. There is no basis on which to mandate agreement of an incumbent president with an unfounded privilege assertion. There is no indication what “compelling circumstances” are supposed to entail[100] but the implication is highly disturbing. The executive order mandates that, absent the undefined “compelling circumstances,” an incumbent “will support” the claim of a former president “in any forum in which the privilege claim is challenged.”[101] That would presumably include a federal court, where a president is expected to support valid assertions of privilege. The executive order seems to suggest that an incumbent president could seriously question an assertion, but lacking “compelling circumstances,” litigate for its recognition in court. This raises serious ethical and legal questions as well as constitutional questions. Moreover, it impermissibly changes the structure and process of the PRA.
vii. The Expansion of Executive Privilege.
Finally, E.O. 13233 clearly violates the decision of Congress not to expand executive privilege authority under the PRA.[102] As aforementioned areas indicate, the executive order would radically expand executive privilege under the auspices of the PRA. Not only is this expansion unsupported by controlling constitutional precedent, but it does precisely what Congress barred under the PRA. If the Bush Administration believes that the PRA violates executive privilege, then it may initiate a direct constitutional challenge to that statute. However, if the constitutionality of the statute is conceded (as it should be), the PRA was written to avoid its use as a vehicle for the expansion of executive privilege claims. E.O. 13233 would impermissibly use the PRA for a radical expansion of executive privilege beyond the confines articulated by the federal courts.
C. An Analysis of the Policy and Historical Implications of E.O. 13233.
The constitutional and legal infirmities of E.O. 13233 should be determinative in any review of this controversy. However, it is also important to note that the executive order would be a disservice to both history and the public. In some respects, the executive order constitutes a throw-back to an earlier period of executive authority over presidential records. The transfer of absolute control of access to documents to former presidents and their heirs is closely analogous to the private proprietary model that was rejected by the federal courts, Congress, and prior presidents. The Bush Administration has placed itself on the wrong side of history in trying to resurrect such family control over public material.
The executive order also moves constitutional law in the wrong direction by inflating the status of former presidents and their families. The Madisonian democracy is a curious system for many outsiders. We give a single man or woman the greatest power in the world but they, as presidents, cannot use any of that power for themselves. More importantly, at the end of their term, these presidents are transformed into citizens with no lingering claims of official status or power. It is this transformation that is a defining part of our system. From our earliest debates, we have resisted efforts to give presidents or former presidents trappings of a monarchy. Even the smallest symbol of such monarchial authority was rejected. In an earlier academic piece, I recounted the debate over whether writs should be issued in the name of the president or in the name of the people of the United States.[103] James Madison and others rejected the call from John Adams to issue writs in the name of the president.[104] Senator William Maclay referred to such views as the “old leaven” of an earlier royal period.[105] While not well-known, this debate reflects a fundamental change brought about with our revolution in the status of a chief executive. The attempt to extend executive privilege not only for the life of former presidents, but also for his heirs is precisely the type of “old leaven” that Maclay and other stood against in the First Congress.[106]
The transfer of privilege assertions to designated family members only magnifies the fundamental conflicts between E.O. 13233 and our constitutional system. It also creates the opportunity for endless controversy. As noted earlier, the greatest abuses during the private proprietary period were often committed by relatives acting by such designation. Destruction of material was often the result of sheer ignorance or simply recklessness.[107] The executive order also opens up the possibility of legal challenges over who has the right to exercise a former president’s executive privilege. Just yesterday, the Los Angeles Times reported on an intense fight between daughters of former president Nixon over his library.[108] There is no reason why the bequeathed privilege will not also become an object of intrafamily litigation. This is particularly the case when the executive order leaves open the possibility that “the family of the former president may designate a representative (or series or group of alternative representatives, as they in their discretion may determine) to act on the former President’s behalf.”[109] Moreover, the Administration would allow the family to act without the approval of a living but “disabl[ed]” president.[110] Thus, we could see litigation in which a president is legally found to have a disability and his view of privilege overridden by his family. Ironically, it is fortunate that this provision if facially unconstitutional because it would otherwise be a recipe for disaster in actual application.
Ultimately, however, the executive order presents the greatest threat to history. The executive order would allow for endless delay in the release of documents, long past the death of a former president. Such was once the case when papers of presidents like Lincoln were sealed for over 80 years before scholars could see them.[111] The loss to history is in the inability to use documents to interview individuals who may have played a role in events. As time passes, the ability of history and law professors to delve into particular events is severely retarded and curtailed. This does not mean that such release is costless for former presidents. However, a free and open society comes at some cost. It is a choice that has been made by the citizens through their representatives in Congress. This Administration may believe that it was the wrong choice, but it is binding on this president unless and until he seeks a legislative change in the PRA.
IV.
H.R. 4187:
The Presidential Records Act Amendments of 2002
As should be obvious from my critique of E.O. 13233, I strongly favor the enactment of H.R. 4187. In my view, this legislation represents precisely the type of institutional role that James Madison foresaw in the design of the tripartite system of government. The Madisonian system depends greatly on the integrity of the legislative process and the avoidance of what I called “legislative circumvention.”[112] I previously testified against such legislative circumvention by the Clinton Administration vis-à-vis the courts.[113] E.O. 13233 is another variation on this theme; an attempt to avoid a legislative debate over a highly controversial and questionable change in the law. This executive order would work a new and radical change in the status of former presidents. It is a question that should not be answered by some unilateral presidential fiat.
I have little doubt that E.O. 13233 is unconstitutional. However, the issuance of a facially unconstitutional executive order should not be used to gain an effective exemption from federal law during the period of appeal. Congress should respond without delay and in a bipartisan manner to such direct challenges to its constitutional authority. When one branch goes outside the lines of the Madisonian democracy, the aggrieved branch is given the authority needed to check the assertion of extraconstitutional authority and thereby preserve the constitutional balance. It is this exercise of institutional vigilance and self-protection that brings stability to the system as a whole. To put it simply, in a Madisonian democracy, good fences do make for good neighbors.
H.R. 4187 further improves the PRA by creating some procedures designed to assist former presidents in their review of material. While I personally have some question over the exercise of executive privilege authority by former presidents, H.R. 4187 complies with the clear precedent permitting such assertion by former presidents and fully accommodates the exercise of this privilege. The result is a PRA that is both reaffirmed in its most fundamental provisions and improved in its procedures. It is the type of balanced legislation that should receive the support of this Administration in combination with the immediate recision of the E.O. 13233.
V.
CONCLUSION
E.O. 13233 appears a case of the over playing of a constitutional hand. At a time of international conflict, the Administration may have expected greater deference in asserting executive privilege. Certainly, this was the ideal environment to repair the losses under the Clinton Administration. However, the assertions of executive privilege by the Bush Administration have been so excessive that it may soon rival the Clinton Administration in losses and reversals in the area. E.O. 13233 is indicative of the absence of a coherent and well-constructed strategy. E.O. 13233 is so far out of the bounds of accepted executive privilege that it almost seems designed for failure. Congress, however, should not wait for a final judicial judgment on appeal. In 1978, the United States made a historic commitment in the enactment of the PRA. It is now time for this Congress to protect the historic work of a prior Congress. H.R. 4187 will protect that legacy and further improve a statute that has become a symbol of our unique form of open and democratic government.
I would be happy to answer any questions that the Subcommittee may have on this subject.
[1] This testimony is taken in part from a forthcoming article. Jonathan Turley, Presidential Records and Popular Government: The Continuing Struggle Between Executive Privilege and Legislative Authority in the Control of Presidential Material (2002).
[2] The Writings of James Madison 103 (G. Hunt ed., 1910).
[3] Martha J. Kumar & Michael B. Grossman, “The Refracting Lens: The President as He Appears Through the Media,” in Presidency and Information Policy 107 (Harold C. Relyea, ed. 1981) (quoting an article in the New York Times)
[4] My prior scholarship covers a variety of aspects of the separation of powers, presidential powers, and executive privilege. See, e.g., Jonathan Turley, The Military Pocket Republic, 97 Northwestern University Law Review 1 (2002) (forthcoming); Jonathan Turley, Tribunals and Tribulations: The Antithetical Elements of Military Governance in a Madisonian Democracy, 70 George Washington Law Review ___ (2002) (forthcoming); Jonathan Turley, Paradise Lost: The Clinton Administration and the Erosion of Presidential Privilege, 60 Maryland Law Review 205 (2000) (Symposium); Jonathan Turley, “From Pillar to Post”: The Prosecution of Sitting Presidents, 37 American Criminal Law Review 1049 (2000); Jonathan Turley, A Crisis of Faith: Congress and The Federal Tobacco Litigation, 37 Harvard Journal on Legislation 433 (2000); Jonathan Turley, Through a Looking Glass Darkly: National Security and Statutory Interpretation, 53 Southern Methodist University Law Review 205 (2000) (Symposium); Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke Law Journal 1 (1999); Jonathan Turley, The “Executive Function” Theory, the Hamilton Affair and Other Constitutional Mythologies, 77 North Carolina Law Review 1791 (1999); Jonathan Turley, Congress as Grand Jury: The Role of the House of Representatives in the Impeachment of an American President, 67 George Washington University Law Review 735 (1999) (Symposium); Jonathan Turley, Reflections on Murder, Misdemeanors, and Madison, 28 Hofstra Law Review 439 (1999) (Symposium); see also Jonathan Turley, Nothing Bars Questioning the President’s Bad Ideas: The Limits of Executive Privilege, The Los Angeles Times, September 27, 1999, at A7.
[5] I have litigated a number of constitutional claims against both the legislative and executive branches. In the latter context, I represented four former attorneys general in the successful opposition to the so-called “secret service privilege.” See In re Sealed Case, 148 F.3d 1073 (D.C. Cir. 1998) (counsel for the Hons. William Barr, Griffen Bell, Edwin Meese, and Dick Thornburgh); see also Susan Schmidt, Starr Wins Appeal in Privilege Dispute; Secret Service Fears Dismissed by Court, The Washington Post, July 8, 1998, at A01. I also serve as counsel to the workers at Area 51 who successfully compelled compliance with federal law as a secret military facility and defeated claims that federal laws were superceded by the President’s inherent authority as commander-in-chief. See Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998); Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1997); Frost v. Perry, 919 F. Supp. 1459 (D. Nev. 1996); John Doe v. Browner, 902 F. Supp. 1240 (D. Nev. 1995). See generally Jonathan Turley, Through a Looking Glass Darkly, supra.
[6] “Legisprudence” is the term often used for the study of statutory interpretation and such closely related constitutional doctrines as the separation of powers. I have explored the proper scope and function of statutory interpretation in a variety of contexts. See, e.g., Jonathan Turley, Dualistic Values in the Age of International Legisprudence, 44 Hastings Law Journal 145 (1992); Jonathan Turley, "When in Rome": Multinational Misconduct and the Presumption Against Extraterritoriality 84 Northwestern University Law Review 598 (1990); Jonathan Turley, Transnational Discrimination and the Economics of Extraterritorial Regulation, 70 Boston University Law Review 339 (1990); Jonathan Turley, Laying Hands on Religious Racketeers: Applying Civil RICO to Fraudulent Religious Solicitation, 29 William and Mary Law Review 441 (1988); Jonathan Turley, The Not-So-Noble Lie: The Nonincorporation of State Consensual Surveillance Standards in Federal Court, 79 Journal of Criminal Law and Criminology 66 (1988); Jonathan Turley, United States v. McNulty: Title III and the Admissibility in Federal Court of Illegally Gathered State Evidence, 80 Northwestern University Law Review 1714 (1986).
[7] Despite my litigation history in opposition to a variety of executive privilege claims, I have criticized the loss of executive privilege and related privileges under former President Clinton as weakening the presidency. Id.; see also Jonathan Turley, Checking the Executive Pulse, The Los Angeles Times, November 19, 1998, at A11; Jonathan Turley, The President and the Damage Done, The Legal Times, April 20, 1998, at 24; Jonathan Turley, Clinton Maneuvers Threaten His Office, The National Law Journal, February 23, 1998 at A19.
[8] Turley, Paradise Lost, supra; see also Jonathan Turley, Nothing Bars Questioning the President’s Bad Ideas: The Limits of Executive Privilege, The Los Angeles Times, September 27, 1999, at A7; Turley, Checking the Executive Pulse, supra, at A11; Jonathan Turley, Praetorian Privilege, The Wall Street Journal, April 27, 1998 at A23; Turley, The President and the Damage Done, supra, at 24; Turley, Clinton Maneuvers Threaten His Office, supra, at A19; Jonathan Turley, Guarding the King, Not His Secrets, The Legal Times, February 2, 1998, at 28.
[9] A distinction can be drawn between invoking and litigating claims. Most administrations have been vigilant in asserting executive privilege in the natural institutional struggles with the legislative and judicial branches. However, there has been a long-standing policy to avoid court fights over executive privilege to protect the president and future presidents from adverse rulings. See Turley, Through a Looking Glass Darkly, supra. Accordingly, administrations have compromised with Congress and used non-binding waivers to reach mutual accommodation on divisive issues.
[10] The Ridge fight was particularly curious given the weakness of the White House arguments, the clear ability of Congress to compel his appearance, and the unnecessary d