The President is an elected public servant, and as such, the public is entitled to exercise oversight over his performance. Information documenting what the President and his advisors are doing on a day to day basis can reveal a tremendous amount about the agenda and priorities of the administration. How the President and his aides spend their time, whose input and opinions they solicit, what types of arguments they find persuasive, and what interests they seek to advance all can provide the type of insight that is essential to a well-functioning democracy.
Despite its vital nature, however, such information is often the most closely guarded and difficult for both Congress and the public to access. The Freedom of Information Act does not extend to presidential records. Moreover, the executive branch may curtail public disclosure of information by making overbroad assertions of executive privilege, failing to honor the letter or spirit of disclosure statutes such as the Presidential Records Act or the Federal Records Act, or simply favoring non-disclosure in cases where no law or privilege applies. The Obama administration already has had several opportunities to indicate its approach in this area, and initial indicators are good—with room for improvement.
Initiation of settlement talks in White House e-mails litigation
The Obama administration has entered into settlement discussions with the plaintiffs in a lawsuit challenging the Bush administration's failure to preserve White House e-mails. The outcome of those discussions could affect not only what we know about the actions of the Bush administration, but also the ongoing availability of White House electronic records and the wealth of information they reveal.
Under the Federal Records Act and the Presidential Records Act, the executive branch is required to maintain and archive its records. These records may then be accessed by the public under the terms set forth in the statutes. Access is important not only for the purpose of holding the executive accountable for its actions, but also for deconstructing and explaining decision-making in all areas of government—including those that relate to national security policy and the protection of civil liberties.
While the preservation of paper records is fairly straightforward, the preservation of electronic records under these statutes has posed problems from the beginning. The National Security Archive, an independent non-governmental research institute and library, filed a lawsuit against the Clinton administration challenging the adequacy of its electronic record-keeping. The lawsuit was settled, and as part of the settlement, the Clinton administration created a new electronic archiving system that helped ensure compliance with the statutes. The Bush administration, however, jettisoned this system.
In the spring of 2007, during the investigation into the firing of nine United States Attorneys, the Bush administration claimed that it had "lost" millions of its e-mails dating back to March 2003. It became apparent that the White House had failed to take appropriate steps to save electronic records and that White House officials had intentionally used non-governmental e-mail accounts to circumvent the laws requiring preservation of records. The National Security Archive, along with the non-profit organization Citizens for Responsibility and Ethics in Washington, filed suit against the White House to force it to recover its deleted e-mails and to preserve all records using a suitable archiving system. The Bush administration fought the lawsuit and steadfastly withheld information about what had happened from the court.
In his campaign literature, Obama pledged to "nullify the Bush attempts to make the timely release of presidential records more difficult." Immediately upon becoming the defendant in the e-mail litigation, however, the Obama administration filed a motion to dismiss the case. The motion asserted that the case was moot because the White House had "expended substantial time and resources to 'initiate action' to allocate and restore emails ... and confirm that millions of emails are not, in fact, missing as plaintiffs allege."
On March 30, 2009, in a commendable turnabout, the Justice Department joined the plaintiffs in filing a joint motion to stay the case to explore the possibility of reaching a settlement. The litigants will report to the court no later than June 30 regarding the progress of their negotiations. The plaintiffs have expressed cautious optimism that these talks will result in a settlement, like the one reached with the Clinton administration, that respects the record-keeping requirements of the law. Such a settlement would have ramifications for public access to electronic White House records, not just on the subject of the fired U.S. Attorneys, but on all subjects—including the subject of national security policy. But for now, it remains to be seen whether and how expeditiously the Obama administration will move forward in restoring Bush-era e-mails and ensuring that its own electronic records are adequately preserved.
Agree to a process for reconstructing and releasing the lost e-mails and ensuring proper retention of electronic records going forward.
Settlement in litigation over White House aides' congressional testimony
In early March, the House Judiciary Committee reached a settlement with former Bush aides Karl Rove and Harriet Miers over President Bush's refusal to allow these aides to testify before Congress. The agreement allows congressional investigators access to information they need in order to determine whether the Bush administration improperly fired several United States Attorneys and otherwise transformed the Justice Department into a tool of partisan political entrenchment.
The Committee had subpoenaed various documents, as well as the testimony of Miers and (later) Rove, to ascertain the role of the White House in the firing of the U.S. Attorneys. The Committee also sought to learn whether the administration had attempted to cover up its actions with respect to the firings. President Bush claimed "executive privilege" over the subpoenaed information—despite the fact that executive privilege applies only when the president is directly involved in an issue, and President Bush had asserted that he had no significant involvement in the firings. He also claimed that the aides had absolute testimonial immunity and could not even be required to appear before the committee to assert the privilege.
The House of Representatives filed a lawsuit against Miers and Joshua Bolten (in his role as custodian of the subpoenaed documents) to compel their compliance with the subpoenas, and the Justice Department represented the aides. (The Brennan Center filed an amicus brief in this case. In addition, the Brennan Center will soon issue a report entitled Executive Privilege: A Legislative Remedy, which proposes a bill to govern disputes between Congress and the Executive over access to information.) In June 2008, the trial court judge issued a ruling in the House's favor. Miers and Bolten appealed. Between the filing of the appeal and the deadline for the Justice Department to submit its brief to the appeals court, the change in administration took place.
The Obama Justice Department had three options: defend the Bush administration's position; assert a different position (including endorsing the trial court's ruling); or attempt to broker a settlement between the House and the former White House aides. It chose the third option. On March 4, the parties announced that they had reached a settlement under which the committee will receive most of the documents it sought and both Miers and Rove will be interviewed in private about the politicization of the Justice Department and the U.S. Attorney firings (although not about the potential cover-up). The interviews will be transcribed and may be made public.
By all accounts, the Obama administration exhibited strong leadership in the settlement negotiations and exerted significant pressure on the parties involved, virtually insisting that they reach a settlement and assisting them in doing so. The new administration was thus instrumental in achieving a resolution to this years-long standoff—a resolution that largely reaffirms Congress's right to carry out its oversight responsibilities and affords the opportunity finally to discover the truth.
Moreover, because the settlement leaves the trial judge's decision in place, the administration's action has helped to bolster the body of law that properly construes the boundaries of executive power. Even though the decision is binding only with regard to the particular facts of this case, future courts may look to it in conducting their own analysis. That would make it more difficult for presidents to resist disclosure of all kinds of information—including information that pertains to national security policy.
But while pressure from the administration to settle the lawsuit certainly contributed to what has been hailed as a victory for the rule of law, President Obama could have done better. The trial court judge—a George W. Bush appointee—had emphatically rejected President Bush's claims of immunity for his aides, referring to them as "unprecedented" and "without any support in the case law." Legal experts agree that the judge's decision was well-reasoned, careful, and correct. President Obama should have endorsed that decision and pledged to adhere to its precepts in all cases. And going forward, he should pledge to work with Congress to ensure that it has the information it needs to perform its oversight and legislative responsibilities.
Develop, publish, and enforce a policy that rejects Bush's claim of absolute testimonial immunity and ensures that assertions of executive privilege do not undermine Congress's right to obtain needed information; support the Brennan Center's proposal for an Executive Privilege Codification Act.
Executive order limiting former presidents' ability to withhold records
One of President Obama's "Day One" executive orders revised the implementation of the Presidential Records Act (PRA), revoking a Bush executive order that unduly restricted access to presidential records and reinstating the pre-Bush regime for implementing the Act.
The PRA governs the preservation and use of official records of presidents and vice presidents. It mandates that, when a president leaves office, his records automatically become the property of the federal government. They are transferred to the archivist of the United States and must be made available to the public under terms established by the Act. Specifically, the PRA allows the public to access presidential records through the Freedom of Information Act (FOIA) after a period of five years, but allows the President to impose certain restrictions to public access for up to 12 years.
Since 1989, the implementation of the PRA within the executive branch has been governed by executive order. Under the 1989 order issued by President Reagan, former presidents were permitted to claim executive privilege over records from their administrations—but the decision whether to honor the claim rested with the archivist, in consultation with the incumbent president and attorney general. In 2001, George W. Bush issued an executive order—Executive Order 13233—that altered this framework dramatically. The Bush order essentially forced the Archivist to honor claims of executive privilege, not only by living former presidents, but also by the heirs or designees of deceased former presidents and by former vice presidents.
Executive Order 13233 was extremely troubling. The PRA established the principle that presidential records are the property of the United States government, and that access to such records should be governed, not by the administration that generated the records, but by the archivist of the United States. President Bush's order subverted that principle, potentially denying journalists, historians, and government officials access to a rich trove of information on a limitless range of subjects. Equally disturbing from a legal perspective, the Bush order would have allowed people who had never even served in government to exercise a constitutional prerogative of the President of the United States.
President Obama's executive order repeals the Bush order and reverts nearly verbatim to the regime instituted by Reagan's order. It thus prevents anyone other than a former or incumbent president from asserting a claim of executive privilege, and it restores the final decision on former presidents' claims to the incumbent administration.
This action, taken on the first full day of the new administration, was a strong signal of President Obama's commitment to transparency and could result in much greater access to historical presidential records. Like President Obama's other "Day One" orders, however, much of its effect will depend on implementation. If the Attorney General and White House Counsel advise the Archivist to comply with every claim of executive privilege asserted by former presidents, the policy improvement that this order represents will become illusory.
The stakes for liberty and national security are significant. If we as a nation are to learn the lessons of the past, those lessons must be made available to us. The records of the Bush administration promise to reveal a host of cautionary tales about the formulation and implementation of post-9/11 national security policy. Those are tales that must be told.
Comply with both the letter and the spirit of the new executive order, exercising independent judgment over privilege claims by former presidents and limiting public access to presidential records only when strictly necessary.
Increased transparency in the President's public schedule
During the first 100 days of the Obama administration, much of the President's schedule has been made available to the public through a combination of disclosure to the media and posting information on the White House website.
This rather rudimentary step toward government transparency—enabling citizens, journalists, and members of Congress to see what the people's elected leader is doing on the job—is a shift from previous administrations. Presidential schedules released by prior White House offices have often consisted of a sparse list of public appearances. Aggregating the day's official public events does not provide much new information about government or present a meaningful accounting of the president's time.
By contrast, the Obama administration has provided references to private meetings, including the timing of the meetings and the identity of the participants, in its public schedules. Such information enables the press and the public to verify the government's assertions about which individuals, groups, and views are presented during the policy-making process. In addition, the White House Press Office releases written "readouts" describing the President's calls with foreign leaders, instead of mere oral reports to accompany the schedule (the previous practice). And, the White House releases a similarly detailed schedule for the Vice President, a marked improvement from the scant information provided about the Vice President's schedule and activities during the previous administration.
For citizens interested in seeing how the President spends his time and with whom he meets to make national security and other decisions, the Obama administration has made quick and substantive process on transparency. Nonetheless, the administration could go further. As the New York Times has reported, not all of the President's private meetings have made it into the public schedule. There are legitimate reasons for the President not to disclose some private meetings (for example, sensitive diplomatic contacts). But without knowing what kinds of meetings have been excluded and why, it is difficult to assess how transparent the President's public schedule is, or to understand the context of the information that the President chooses to present. The President accordingly should develop and disclose criteria for what aspects of his schedule will be publicly released.
Develop and disclose criteria for placing items on the public schedule; make the full public schedule available on the White House website.