Published May 2002

Constitutional scholars and weatherman share an unstated fascination with the worst conditions; the freak storms that join together to release fantastic energy and fireworks. A fight is brewing in Washington this week that may produce such a perfect constitutional storm. All three branches of government are now colliding over the question of who controls access to presidential papers. The outcome of this fight, however, may also redefine aspects of executive privilege as well as core principles of open government.

At the center of this developing storm is a rather innocuous figure: the Archivist of the United States. President Bush became intimately familiar with this position when the Archivist sent him a little notice that he was preparing to release the presidential papers of President Ronald Reagan on January 20, 2001. This was done under the Presidential Records Act, which mandates the release of unclassified records at the end of a twelve-year period. Not only do some of these documents involve President Bush¹s father, George H.W. Bush, but they also involve over a dozen current high-ranking officials, including Vice-President Dick Cheney and Secretary of State Colin Powell. Historians are particularly interested in the material to shed further light on the Iran-contra scandal as well as other controversies that led to the conviction of various Reagan Administration officials.

After a series of delays to review the material, President Bush responded with an executive order that effectively rewrites the Presidential Records Act in its inverse image; converting the Act from a measure guaranteeing public access to one that blocks such access. The order strips the Archivist of authority to give the public access to these papers and gives a former president the ability to indefinitely delay their release.

The issuance of the order from the executive branch brought the judicial branch into the mix. A federal court is now the constitutionality of the order, which is much in doubt and could lead to a sharp rebuke of the White House. This week, Congress also entered the fray with a bill that would nullify the Bush order and reassert the authority of the legislative branch over these documents as public property. Not only is such a move relatively rare, but this fight is being led by leading republicans like chief sponsors Government Oversight Committee Chairman Dan Burton (R-Ind.) and Rep. Stephen Horn (R-Calif.).

A brief glance at the order explains why both Democrats and Republicans are so outraged. Take, for example, one of the more freakish provisions. Under the order, a former president is allowed to transfer the right to invoke executive privilege to anyone of his choosing.

The right of a former president to even use executive privilege is itself controversial. While recognizing such a right, the Supreme Court has stressed that the privilege is “subject to erosion over time.” The Bush order would not only extend the privilege beyond the death of a former president but would allow the privilege to passed onto his heirs. Under the order, a former president could simply give this presidential power to anyone from a half-wit nephew to a drinking buddy. Former President Jimmy Carter could have transferred his authority to his brother Billy, who is best known for his appearances in a suit of armor made of beer tabs. The Bush order would even allow a former president to transfer his executive privilege authority to a foreign citizen, including Russian President Vladimir Putin if the mood should take him.

The Bush order is not simply unconstitutional, it is insulting to anyone who cherishes our constitutional structure. The order would convent a core presidential power to a matter of probate like some ottoman that can be passed along to those who might “make good use of it.” It is not difficult to imagine the outcome. Currently, the Nixon¹s daughters are in court because they cannot agree on the most mundane aspects of running the Nixon library in California. Imagine what they could do with the question over which daughter was favored by daddy to exercise his presidential power.

The Bush order would even allow family members to go to court to declare a former president as incompetent or disabled. They could then appoint a person or “group” to exercise executive privilege over the objections of a “disabled” former president.

Putting the facial unconstitutionality of the order aside, the order could potentially deprive history of some of its most important records. Trying to understand our history without reading the presidential records is like trying to understand the Bible without reading Genesis.

James Madison once said 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.” Before the Bush order, citizens were assured that they would eventually be able to review the actions that were taken in their name. Likewise, government officials knew that their conduct would ultimately be judged by history.

With this unconstitutional order, President Bush does not simply stand on the wrong side of history, he stands squarely in its path.