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Experts: Obama Order Could Let Us See US Attorneys Docs
The experts' verdicts on the potential impact of President Obama's executive order on presidential records are starting to come in. And they're bolstering our initial take that Obama's move could significantly boost efforts to release crucial records that the Bush administration has fought to keep secret.
Doug Kmiec, a constitutional law professor at Pepperdine law school and expert on executive privilege, told TPMmuckraker that the order makes it harder for former presidents to block the release of their documents.
And, crucially, he said it could impact current high-profile struggles over Bush's records, "whether it be the dismissal of US Attorneys, whether it be other assertions of executive privilege dealing with White House emails and the like."
Congress and the Bush White House have been struggling over a key memo that details the level of White House involvement in the US Attorney firings of 2006. And open-government groups have sued the Bush administration to gain access to White House emails on a range of subjects, including the Valerie Plame leak probe and the decision to invade Iraq.
Kmiec, a noted conservative legal scholar who nonetheless supported Obama's campaign, said he had done some work with the Obama transition team, and had offered his assistance to the new administration.
Kmiec said the order appears to shift power from former presidents to the current administration, and to the National Archivist. Under an order issued by President Bush, former presidents and vice presidents could compel the Archivist to keep documents secret. Under the new order, former presidents can still ask the Archives to do so. But the burden of proof is squarely on the former president to prove that secrecy is in the nation's interest, and the Obama administration can decline the request if it's not convinced. That approach reorients things toward the original intention of the Presidential Records Act, passed in the wake of Watergate.
"If the Archivist were to make a determination that those materials would be made public," explained Kimiec, "then holding it back would take something extraordinary," in terms of an argument from the former president.
Kmiec's view is supported by open-government advocates. Scott Nelson of Public Citizen believes, in the words of the Associated Press, that "researchers should find it easier to gain access to records under the new order."
And yesterday, Anne Weissman of CREW, which unsuccessfully brought a lawsuit against Dick Cheney's office to compel him to hand over records to the Archives, told TPMmuckraker that the order "does have the potential to impact ongoing litigation," including over the US Attorney documents.
So when might we see those documents? If the Archivist and the Obama administration agree to it (in practice, the Archivist would likely defer to the administration), they could be made public as soon as the Archivist has prepared them for public display. Of course, President Bush could sue to stop the move -- but it looks like he'd face an uphill climb in convincing a court that there's a pressing need to keep them secret.
It really is a new day.
Josh
Zachary
Realignment of executive privilege and setting a deadline for closing Gitmo on the first day. I'm encouraged.
January 22, 2009 12:25 PM | Reply | Permalink
I'm really starting to feel like a veil has been lifted off the nation.
January 22, 2009 1:17 PM | Reply | Permalink
All these experts need to do is flip back to the Reagan Administration page in their notebook, because Obama's executive order simply restored the Reagan-era order that preceded Bush's revision.
January 22, 2009 12:41 PM | Reply | Permalink
Did Bush name a new Archivist that will be friendly to his causes? Or it this another post Obama has to fill?
January 22, 2009 1:19 PM | Reply | Permalink
Obama's order is well intentioned, but it's just a patch on this complete mess of Executive Privilege. Even if Obama's recent order were permanantly written into law, a President like Bush would have easily avoided document release by packing the advisory release body with hand picked toadies.
The overwhelming problem is that Executive Privilege isn't codified anywhere in the US Constitution or US law. What is desperately needed is an Act of Congress that precisely defines the Executive Privilege rights of the President and of his staff.
When writing a bill defining Executive Privilege, the authors should keep one phrase firmly in their heads.
"What Would Bush Do?"
How would Bush have gotten around each dictate? How long could Bush tie each document up in the courts? What are the loopholes Bush would have used? What possible penalties could be placed in such a bill that would prevent, scare, or otherwise completely dissuade a future Bush from being a secret squirrel.
Financial penalties? Criminal penalties? Who can say what would be enough. Even under such a law, a Bush would try to litigate each and every release all the way to SCOTUS.
I'm not entirely sure how to write a bill so water-tight as to prevent this. I suspect the only way to force a future Bush into a transparent government would be to assign a body outside the executive branch to be the final decider on document release. This would certainly have to be combined with strong penalties for any administration that refused to release documents to this decider.
This would be a tough bill to get right and may be a tough bill to get passed. While such a bill would probably sail through both houses of Congress, the very necessary Executive Branch penalties may need to be so onerous that few standing Presidents would be willing to sign it.
Though if any President would be willing to sign such a bill into law, it is likely Barack Obama.
January 22, 2009 1:50 PM | Reply | Permalink
This concerns FOIA more than it does executive privilege.
It also concerns who owns the documents -- the office/We the people, or the person who occupied the office when the documents were generated. Nixon faught long and hard over this -- and in the end lost. The tapes, and many other of "his" documents, belong to We the people.
In short: there's already sufficient law on the matter. The problem is that the Bushit criminal enterprise simply ignored laws they didn't like, or tortured them into bogus interpretations which would suit their ends.
Murder is illegal. Murders occur anyway because murderers choose to ignore the fact that it is illegal.
January 22, 2009 10:37 PM | Reply | Permalink
Will this allow a greater opportunity to see what was in the boxes that Cheney felt compelled to "move" without assistance?
January 22, 2009 1:56 PM | Reply | Permalink
EmptyWheel over at FireDogLake has a diary up about a 7 week statute of Limitations that is running out as it pertains to the FISA cases. Pres. Obama may be the only chance to get the documents needed in that time by ordering their release. No word yet on if that is even being considered. Any ideas ????
January 22, 2009 2:15 PM | Reply | Permalink
There may be conspiracy charges, as yet unconsidered, that transcend that particular statute. A RICO case might be made based on one or two people coming forward (out of potentially thousands) with information previously unavailable.
These crimes are so pervasive, there may be more to prosecute than we ever imagined on our best tin-foil-minority day.
And this transparency tactic from Obama may just provide the opportunity to give Justice a peek out from under that blindfold the Cheney junta took such egregious advantage of.
January 22, 2009 3:49 PM | Reply | Permalink
Allen Weinstein was the archivist Bush brought in. The previous archivist was pressured to quit (John Carlin?) so Weinstein could be brought in.
Interesting that he chooses to leave with the Bush administration.
January 22, 2009 4:15 PM | Reply | Permalink
The Archivist's position is a Presidential Appointment for a set term -- I believe 6 years, and it requires Senate Confirmation.
And yes, the Presidential Records Act needs revisiting, needs to be updated to reflect electronic records, (which didn't exist in the 70's when it was written) and it needs to give a lot less room for different administrations to change it via Executive Orders.
Back about 2002 American Historians wrote a model law but during the Bush years -- up till 2007, the votes didn't exist to pass it as a clean bill, so the mutual decision of the Historian Lobbyists and House Judiciary was to hold off till it could be done cleanly. It is something else that should now be put on Conyers plate. But they do have a starting point -- the Historian's model bill.
January 22, 2009 5:46 PM | Reply | Permalink
The Presidential Records doesn't only need revision, it needs penalties. Big penalties, Meaningful penalties, Financial and Criminal penalties.
Even the current, diminished act was flagrantly violated by the Bush administration. Does anyone truly believe an administration like Bush's would have been less likely to violate such an act, if only it had been a little more specific?
The only thing likely to have kept the Bushies from violating the act would have been penalties. Slaps on the wrist wouldn't cut it.
A future act would need large, personal financial penalties for those executive branch employees that grossly violate the act. For top decision makers who violate the act by telling others to violate the act or creating policies to purposefully avoid disclosure under the act, there should be criminal penalties.
For instance, Karl Rove's assistants would earn a 10k fine, Karl himself would be fitted for an orange jumpsuit.
Nothing less would keep a future Bush in check. Frankly, it's not worth the trouble of passing a new version of the records act unless it is designed to address and remedy Bush's disregard
It has to answer the question, What Would Bush Do?
January 23, 2009 2:17 PM | Reply | Permalink
Start at the very beginning of bush and company adminstration starting with 109th..They have done much damage and gotten away with it..Thank you
January 23, 2009 11:33 AM | Reply | Permalink
Please pay NO attention to Kmiec.
While on the Bush Jr. short list for a Sup. Ct. slot, the Federalist Society parked him at Pepperdine University Law School (where Ken Starr is dean.)
He indoctrinates conservative minds in the ways of obfuscating the history and meaning of the Constitution.
January 23, 2009 2:59 PM | Reply | Permalink
Well, it doesn't prevent Bush or anyone else from cleaning out all those records before leaving office now does it?
Remember, this is a man who does not grasp the concept of "rule of law" or "integrity". He has no conscience, thus no limitations provided by conscience.... only us dolts have that. We are prevented from doing wrong because we self limit based on our conscience, he has none and that could be the case for anyone, including Obama.
Trouble with psychopaths is they get to operate until we figure it out. That usually takes time and by then its too late and its even worse if the perp is intelligent. We were lucky Bush was so transparent. Who knows with Obama.
There could be so many loopholes in what he does that we would accept the good on the face of it without knowing the holes that he provided...
I am afraid to be too trusting after these past 8 years... for politicians my motto now is "fool me once, shame on you, fool me twice, shame on me".
His appointments and lack of commentary on the real serious issues of the day is what has kept me from getting too excited. These are good things he has done, but small and not critical to the nation destroying issues facing us right now.
A hold on all bailouts would have been great, until he can assess the impact of those already given and the potential impact on those proposed, but he didn't do it.... so I am hanging on to my sceptism til I see more.
January 24, 2009 1:16 PM | Reply | Permalink