Can Democrats Stop Bush and Cheney fom Depriving the Library of the Papers They Wish to Keep Secret?

by John W. Dean

Amid a slow, low-boiling, and mostly Texas-based controversy regarding the potential location of a future George W. Bush Presidential Library, a significant issue regarding such a future institution is being completely overlooked: Should there be federal support of the Bush Presidential Library, in light of the fact that President Bush has refused to comply with the 1978 Presidential Records Act?

Presidential libraries and records are on my mind because I attended a conference sponsored by all presidential libraries that was held at Franklin Roosevelt's Library in Hyde Park, New York. The conference addressed Presidents and the Supreme Court, but a question about presidential records arose during my panel. In addition, in conversations with presidential library professionals (of all political persuasions), I found that they are deeply troubled by Bush's and Cheney's actions regarding presidential records.
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Previously, I have written about how Bush's Executive Order 13233 gutted the 1978 presidential records law enacted in the aftermath of Watergate. The law declared that presidential papers belong to the American people, and therefore, Congress placed strictures on what any White House can and cannot do with its records. The professionals, however, doubt that the Bush and Cheney records will be anything close to complete. If so, they will have little true value.

In a booklet issued by the Office of Presidential Libraries, which is part of the National Archives and Records Administration (NARA), former President Gerald Ford is quoted as saying, "The past can instruct the present not only in the art of leadership, but also in the opportunities of citizenship." Yet if the records of those libraries have been cleansed, or if they are indefinitely controlled by a president (or vice president), as Bush and Cheney can do under Bush's radical Executive Order 13233, then the past's message to the present can hardly be a very meaningful or realistic instruction.

Can, and Will, the Next President Reverse Bush's Presidential Records Executive Order?

As the Bush Administration winds down, the conference raised a timely question (albeit not one likely to go to the Supreme Court): Can the next president, elected in 2008, overturn Bush's Executive Order 13233, and thus restore the Presidential Records Act of 1978, which Bush's Order has interpreted in a manner that makes the Act a nullity?

The answer I gave, in the public session (which was being recorded by C-Span) was yes. Executive orders are binding only upon members of the executive branch, and are valid only so long as the sitting president is willing to enforce any prior president's order.

Later, I elaborated on my answer privately in talking with several persons associated with the presidential libraries, predicting that, if elected President, Hillary Clinton would likely follow the 1978 law with a new executive order. (Her husband had operated under an Executive Order relating to the 1978 law issued by Reagan.) Conversely, I added that I would expect that Rudy Giuliani, if elected President, would extend the law so broadly that even Barney Bush (the president's pooch) would have power over the Bush White House papers.

If a Future President Hillary Clinton Passed a New Presidential Records Executive Order, Would It Affect President Bush and Vice-President Cheney?

One person asked me, Would Hillary's Executive Order apply to Bush and Cheney, too? It seems that those associated with the presidential libraries share my belief that Cheney plans to either destroy all the papers of his that he does not want the public to see, or to walk out of the White House with his papers under his control indefinitely, and that Bush will follow his lead. Not surprisingly, this is deeply troubling to these professionals, for they know it is contrary to both the spirit and letter of the laws relating to presidential papers.

Unfortunately, even if a President Hillary were to change Executive Order 13233, the change would have no impact on Bush and Cheney, for, by the time it occurs, they will have done whatever they are doing, and when they leave, they will not yet be subject to a new order. Moreover, violations of the 1978 Presidential Records Act carry no sanctions whatsoever.

Conversely, however, if a President Rudy were to make even more aggressive changes than Bush did, and include past presidents within the scope of his new Executive Order, Bush and Cheney could benefit, taking advantage of the even more favorable situation to further hide their history. "That's horrible," one professional told me. I agreed.

In fact, it is long past time for Congress to fix this problem, and there is a very simple solution. All it will take is a little spine on the part of Congressional Democrats, whose spine has not been on conspicuous display since they took control of Congress.

Earlier Unsuccessful Efforts to Reverse Bush's Executive Order

Shortly after Bush issued his 2001 Executive Order, which turned the 1978 law upside down by reinterpreting it, a number of historians sued to enforce the 1978 law. However, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia has been sitting on the case for years. Apparently, she has accepted the token compliance by the Bush White House (which produced a few of the Reagan documents that prompted the lawsuit) as justification for not addressing the legitimacy of the underlying Executive Order. At this point, unfortunately, no one expects Judge Kollar-Kotelly to do anything further in the case.

In early March 2007, Democrats in the House of Representatives (joined by a significant number of Republicans) passed a bill to preserve Presidential records in the Senate, with an overwhelming majority vote of 333 to 93. When the bill arrived in the Senate, it similarly flew through the Homeland Security and Government Affairs Committee. However, on its way to the passage in the Senate, this bill met the fate many others passed by the House have met: Senate Republicans stopped it.

More specifically, one or more secret holds have been placed on the legislation, which surely would pass the Senate with a solid majority, if put to a vote. It seems that Republican Senators are willing to allow the Bush White House to do whatever it wants with its papers. Moreover, the very fact that Bush has threatened to veto any new law that reversed his Executive Order 13233 has been sufficient for the Senate Democrats to back off, since they do not have a veto-proof Senate. Yet forcing President Bush to veto a bill that merely required him to do as other presidents have done, and place his full papers into his presidential library, for scholars and others to access, might be a good idea. This shameful veto would draw further attention to the Bush Administration's corrosive penchant for secrecy.

What Might Be Done To Force Bush and Cheney to Comply? The Option of Refusing to Fund Bush's Library

If you think that Bush and Cheney intend to follow the law on presidential records, then you have not read the law along with Executive Order 13233, nor have you followed reports of how Cheney has all but confirmed that he is already destroying his papers. Since there are no sanctions if Bush and Cheney do as they wish with their papers - except for an outstanding restraining order preventing them from destroying backup records of emails - no doubt they will do just that.

As noted above, the lawsuit that might have forced Bush and Cheney to comply with the 1978 law and might have overturned Executive Order 13233 is comatose in Judge Kollar-Kotelly's chambers, and the House-passed legislation proved to be dead on arrival in the Senate. Given this situation, there is only one thing that yet might be done: Democrats could advise Bush that if he does not comply with the 1978 law, they will not fund his presidential library when it is turned over to the National Archives and Records Administration (NARA).

In 1955, Congress enacted the Presidential Libraries Act, institutionalizing a concept that FDR began: The library facilities are built with private funds, and then the library and all papers are turned over to the U.S. Government, which operates the library thought NARA. Since 1978, presidents have no choice but to turn over their papers to NARA.

Administration by NARA is essential for presidential libraries, as the Nixon Library discovered. Before it agreed to play by the rules, the Nixon Library was fast going into financial failure, barely supporting itself by renting out a mock East Room of the White House for weddings. Moreover it had only copies of a few of Nixon's papers, since the bulk of them remained at NARA's College Park, Maryland facilities.

Democratic Congressional leaders should warn Bush and Cheney that if they insist on ignoring the law, then there will be consequences: There will be no NARA funding for the administration of the George W. Bush Presidential Library. Such a warning might dampen the ardor of the Senate Republicans who are blocking efforts on Capitol Hill to overturn Bush's Executive Order 13233.

This warning could be conveyed by a resolution of either the House or Senate. It could also be conveyed by a small group of Democratic Senators, who could merely advise the President that if he does not play by the rules, then they will filibuster any effort to fund his library so long as they remain in the Senate.

Unfortunately, while George Bush understands tough talk, it seems the Democrats don't. Thus, Bush and Cheney will no doubt get away with robbing history of the truth of their presidency, just as they have robbed the public of that truth while in office.
John W. Dean, a FindLaw columnist, is a former counsel to the president.
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