Barbara Boxer

Experts: Obama Order Could Let Us See US Attorneys Docs

Zachary Roth | January 22, 2009, 12:04PM

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.

FBI

Boxer Aide Facing Child Porn Charges

Zachary Roth | November 13, 2008, 2:03PM

Jeff Rosato, a senior staffer for Sen. Barbara Boxer (D-CA), has been fired after he was charged by authorities late last week with distributing and receiving child pornography.

Roll Call reports (subscription required):

He was arrested after he sent more than 600 images and movies of child pornography to an undercover FBI agent he believed was a 13-year-old boy, according to an FBI affidavit.

The online chats occurred from Jan. 2 to Jan. 23 over Google Hello, a photo-sharing program that was shut down in June. To identify Rosato, the FBI subpoenaed Google and Comcast.

In a Nov. 7 search of Rosato's Alexandria home, FBI agents found a computer with "approximately 200 images of child pornography and child erotica, and several movies containing child pornography and child erotica." Many of the images showed prepubescent boys engaged in sexual acts, according to the affidavit.

Rosato, who had served as senior policy advisor and counsel on the Environment and Public Works Committee, which Boxer chairs, had worked for the California senator since 2005.