TOPICS > Politics

Presidential Papers

January 3, 2002 at 12:00 AM EST


TERENCE SMITH: Today the Reagan Presidential Library made public for the first time some 8,000 previously restricted documents. These papers have been at the center of a dispute between historians and archivists and the Bush administration. The American presidency generates literally tons of documents: 45 to 50 million during Reagan’s eight years alone.

Since the beginning of the republic, access to these records has been a source of dispute: Are they private or public? In the wake of Watergate, the Presidential Records Act of 1978 put these documents in the public domain. It was envisioned that most papers would be released by the time a president was out of office for 12 years. Last November President Bush signed an executive order that allows either a sitting or former president to withhold the release of specific documents.

If a former President says documents are privileged, they would remain secret even if the sitting president disagrees, and vice-versa. Does the Bush order unduly restrict information that would offer insight into presidential decision-making?

We join that debate now with Anna Nelson, professor of history at American University, and with Todd Gaziano, a former Justice Department official in the Reagan, Bush, and Clinton administrations. He is now at the Heritage Foundation. Welcome to you both.

Anna Nelson, what’s the impact of this executive order? And why should the public care about it?

ANNA NELSON, American University: Well, I think the impact comes from the fact that we’re delayed in our understanding how presidencies work. The Presidential Records Act, when it was passed in 1978, had two parts to it: One was that records should be preserved. And the other was that they should be available to the public in a timely manner. And this executive order basically nullifies many provisions of the act by not releasing them in a timely way. The presidency… The president, as you know, is at the access of government now. I mean the government evolves around him, and the reason we should care is because the President is the one person who represents every person in the country. I think we saw this recently after September 11. So we need to know about the presidency. We need to know about the offices of the presidency. And we need to know about the way in which he and his advisors work, how did he get advice, where did he get advice from, and the decisions he made. Many of those decisions we’re still living with. Many decisions that were made 25 years ago we’re still living with. So we do need to know. That’s why they’re important. That’s why it’s important. People think only a few historians go to these libraries. But in fact political scientists use them quite a lot for more contemporary writings. And journalists use it, and they always have a few people in who do research for documentaries that people watch on television, the History News Channel, for example, but more than that, movies, documentaries, that sort of thing. That’s why it’s important.

TERENCE SMITH: Todd Gaziano, is it true that this order will delay the release of papers and has even already?

TODD GAZIANO, Heritage Foundation: The executive order was implemented, this is the first time that the act has come into full force 12 years after the end of the Reagan administration. And the executive order is not inconsistent with the Presidential Records Act. As a matter of fact, I think it is the only reasonable way that the act can be implemented consistent with the Constitution. The Act itself specifies that, beyond the 12-year period, presidents and former presidents expressly can invoke constitutional executive privileges. And the Bush… And the Act doesn’t specify what the procedure should be. So the bush administration, for the first time, had to come up with that procedure that Congress contemplated, and they did that in November. The Act requires a current and former President to exercise their constitutional responsibility within 90 days in most cases, if it’s a public request, and 21 days from such a request if it’s from Congress and from the public.

TERENCE SMITH: So you would argue that’s prompt, that’s soon enough?

TODD GAZIANO: That is quite prompt. Now, one thing we’ve got to understand, after these documents are reviewed, almost all of them will be released. And eventually, they all will be released. The executive branch is the most open branch of our government. We will never know what the deliberations are, the records, papers of the Supreme Court Justices between themselves or their law clerks or between Senators and their staff or Senators and each other unless they give them to us. So this process is much more forthcoming, and is the exact right balance between the president’s need to protect national security and deliberative process documents and the public’s right to know.

TERENCE SMITH: If Mr. Gaziano is right and these documents will be released eventually, then what’s the problem?

ANNA NELSON: Well, part of it is the word eventually. That can be a very long time away. And part of it is that what we’ve just seen has been a year’s delay. That does not make you sanguine about the future.

TERENCE SMITH: What might be the motivation of this, of the order and the process?

ANNA NELSON: One of the problems is that when secrecy is invoked in any way, what you have is suspicion. Often you have conspiracy theories. So there are suspicions now, and people are writing about the fact that President Bush is trying to defend his own… Members of his staff who were in the Reagan administration, others in his cabinet, and that he, in 2005, hopes to still be there and to protect his father’s papers, the 12 years will be up in 2005. It is true of course that the executive is open, but I have to remind you that the Congress and the Court both leave us with a record of their decisions, and the President actually doesn’t leave us with that kind of a record.

TODD GAZIANO: I concede that there are conspiracy theorists, and that’s why former Presidents release the vast majority of documents and that’s very good. But despite the perhaps voyeuristic interest of some people in these documents or legitimate interests, I am comforted much more to know that our enemies will not get national security information that’s still valuable to them. I am comforted that the deliberative process will not undermined. The framers, for example, sealed the debates on the Constitutional Convention for 30 years because they knew that, unless the deliberations were secret, people might be expanding or embellishing or… They wanted the kind of frank advice and frank debate that that kind of guarantee of secrecy provides. So that’s where the constitutional executive privilege is based, and I’m reassured that, despite the conspiracy theorists, that a President can only act responsibly if he protects the executive privilege.

TERENCE SMITH: Is there a risk, in your view, of this disclosure having a chilling effect on Presidents and their advisors?

ANNA NELSON: Well, a chilling effect is what’s always used as a kind of a red herring on these issues. But we never have seen that happen.

TERENCE SMITH: Or that they would be less candid?

ANNA NELSON: I’ll give you an example of that. During the Reagan years… I’m sorry — During the Nixon years, with all of the hullabaloo on his papers, the word was that are we would never again get a diary, that nobody would ever keep a diary. But in fact Casper Weinberger who had been in the Nixon administration, promptly kept after diary the next time he came into the government. There are those who keep papers, those who don’t, those who keep diaries, those who don’t. And they’re like people who are being interviewed with a tape-recorder in the middle of a tape, well, after a while you forget about it. And so they do forget about that. And I would like to just add one thing: The national security issue is not a very good issue for those who want to keep papers secret because national security is protected by about three other sets of provisions, including a presidential executive order on national security. The national archives does not have declassification ability. It must go back to the agencies. There’s a lot… There are a lot of ways to protect those papers.

TODD GAZIANO: Terry, of course a President has to ensure that the archivists have done the proper job of taking out those national security documents. He can’t just take their word for it. But as to the deliberative process and the chilling effect of releasing documents early, Professor Nelson doesn’t think it exists. But that’s really an argument against the Supreme Court’s holding. The Supreme Court says that, not only does this happen, it cited the framers’ example and it said this is a constitutional responsibility of the President, to protect. So if a President may voluntarily release some documents, but the President has a responsibility not to set up a precedent that would undermine the constitutionally based privilege.

TERENCE SMITH: All right. But under this order, this privilege is extended not just to former Presidents but to their families, as well, particularly if they’re disabled or deceased. Is that not an extension of the order?

ANNA NELSON: Well, of course it is. In the old era, before the Presidential Records Act, the families controlled the papers simply because they were not government records. They are government records now. And not only the families, but after the family, an executor of an estate can control these records.

TERENCE SMITH: Does that concern you?

TODD GAZIANO: Well, there is a historical precedent. For example, Lady Bird Johnson is still in control of much of the unreleased Johnson papers. So I suppose that was the rationale for the administration. I have to tell you I’m a little dubious about whether that minor provision of the executive order would stand if it ever came into place. But of course we don’t… That former order isn’t in place, and I would think that the current President could seek the advice of the family or top advisors of a former President in the exercise of his review of those documents.

TERENCE SMITH: Well, no surprise of course that this is already in court. A suit has been filed against it.

ANNA NELSON: Yes, it is.

TERENCE SMITH: So it’ll go on, but we’re out of time right now. Thank you both very much.