Capitol Commentary

Bruce Craig, Director of the National Coordinating Committee for the Promotion of History

Presidential Records Lawsuit Update

On 28 November 2001, Public Citizen—a Washington, D.C., based nonprofit consumer advocacy organization—filed suit in a federal court in Washington, D.C., on behalf of the Organization of American Historians, the American Historical Association, the National Security Archive, the Reporters Committee for Freedom of the Press, Public Citizen, and eminent presidential historians Stanley Kutler and the late Hugh Graham. The plaintiffs seek to overturn an executive order issued by President Bush (E.O. 13233) that limits access to the records of former presidents. The plaintiffs maintain in their filing that the executive order violates the Presidential Records Act which opens most presidential records to public access twelve years after a president leaves office.

On 8 February 2002, Public Citizen filed its “Motion for Summary Judgement” stating that President Bush’s recent Executive Order 13233, “Further Implementation of the Presidential Records Act,” violates the law and should not be effected (see <http://www.citizen.org/litigation/briefs/FOIAGovtSec/articles.cfm?ID=7116>.) The motion explained that because the order violated the 1978 Presidential Records Act and has no constitutional basis, the court should instruct the Archivist of the United States and his agency, the National Archives and Records Administration (NARA), not to put the order into effect. The motion also seeks a permanent injunction against the implementation of the order and calls for the prompt release of Reagan and Bush presidential and vice-presidential records.

The same day, Justice Department lawyers filed the government’s “Motion to Dismiss” which claimed “whether viewed as a problem of standing, ripeness, or mootness (or some combination of the three), Plaintiffs’ claims are not justiciable. Most importantly, the only ‘injury’ Plaintiffs allege is neither traceable to the Bush Order provisions they challenge, nor redressable against the Defendants.” In anticipation of filing their motion, government lawyers apparently rushed to review and subsequently released the remaining 59,850 papers of the Reagan presidency P-5 papers (reflecting “confidential advice” to the president) called for by the Public Citizen suit. With the papers’ release, part of the suit becomes moot. The suit is expected to be heard in federal court in the fall.

Reagan Presidential and Bush Vice-Presidential Materials Released

On 15 March 2002 after months of delay, the Bush White House cleared for release a total of 59,850 pages of Reagan presidential records. Approximately 155 pages technically remain “under review” by administration officials; those papers contain “deliberations about potential appointees to public office.” In addition there are some 1,654 pages of new Reagan-Era P-5 papers now under review by the White House. Three months later, on 17 June 2002, the White House authorized the release of some 844 pages of the records of President Bush’s father when he was vice-president during the 1980s. Still under review at the Bush Presidential library are some forty pages pertaining to federal office appointments.

The National Coordinating Committee for the Promotion of History (NCC) secured an 11-page White House summary of the 155 pages of unreleased Reagan records. Virtually the entire collection reflects “confidential advice” given to the former president by his top advisors on a wide variety of political and judicial nominations including several Supreme Court nominees. A rather large assortment of memos and folders are included in these documents that relate to the controversial nomination of Robert Bork. The White House has not indicated whether these memos will ever be released.

History Office Authorization Proposed in Homeland Security Department Bill

In a 24 June letter to House and Senate leaders, the NCC urged members of Congress to authorize the creation of an Office of History in the marked-up version of President Bush’s proposed legislation to create a Department of Homeland Security. According to sources inside the House Committee on Government Reform the establishment of such an office in the office of the secretary was “embraced enthusiastically.” Reportedly, language suggested by the NCC has been incorporated in at least one subcommittee markup of the bill.

In the letter to Congressman Dan Burton (R-IN), Henry Waxman (D-CA), Senator Joseph I. Lieberman (D-Conn), Fred Thompson (R-TN), and others, the NCC noted that “If there ever was a need for a history office in a government agency, it is in the Homeland Defense Department. The attack on the World Trade Center and Pentagon on September 11 demonstrated the need to better understand our past both in terms of U.S.-Arab/Muslim relations and previous U.S. responses to terrorism.” The letter noted that, “without exception, every one of the other national defense, intelligence, and homeland-defense related departments benefit from the professional advice provided by a departmental or agency historical office . . . . to this end, we envision that staff historians would produce (or cause to produce by coordinating with other government agencies, with universities and think tanks) a range of reference, policy and historical background papers that would benefit both present and future Secretaries.”

The Homeland Security legislation advanced to the Congress by the Bush Administration also proposed exempting the new department from the requirements of the Federal Advisory Committee Act and a broad variety of businesses and others from disclosure provisions of the Freedom of Information Act. The NCC raised concerns on both the proposed FACA and FOIA exemptions with responsible committee staff. Here again, at least one subcommittee mark-up bill has dropped the Bush exemption proposals from the committee marks.

Future of Florida Ballots Still In Limbo

The NCC has long been tracking developments in the state of Florida regarding the preservation of the contested Florida ballots and related materials from the 2000 election. Florida law mandates that election ballots be retained for a minimum of twenty-two months. With less than three months left until that deadline, action by the Florida Division of Library and Information Services has now extended that disposition deadline to July 2003. The ultimate decision regarding the preservation of the ballots, however, rests with the Florida legislature.

When we last reported on this issue, the Florida Elections Supervision Association had created a special committee to survey the record types and formats of the information, analyze the documentary record, and make recommendations for disposition and retention of the ballots. Because the committee—which included several state archivists and historians—did not complete its charge, the Florida State Archives stepped in to help facilitate decision-making.

According to State Archivist Jim Berberich, Florida’s public records law and other statutes mandate that the state’s public records cannot be disposed of without the specific approval of the Division of Library and Information Services. Rules of retention are binding on all agencies and officers.

To insure the preservation of the election records, the Florida state archives sent a position statement to the state Elections Supervisor which noted, “In considering the ultimate disposition of the ballots and related records from the 2000 election in Florida, the Division of Library and Information Services has determined that the proper decision requires a balance between the potential historical significance of these ballots and the cost of their preservation that only the Florida legislature can strike effectively.” This extension, the statement continued, “will permit the Florida legislature to pass the necessary legislation to effectuate its wishes regarding the preservation of these ballots beyond July 1, 2003.” In addition to the statement, a directive will be forwarded to all sixty-seven county Elections Supervisors ordering them to continue to retain the election records.

According to Berberich, the costs associated with preservation of the ballots may be considerable. It involves moving the materials from sixty-seven counties to one central location, hiring staff to facilitate public access and otherwise providing for the records’ long-term preservation and security. While the ballots will not be scheduled for destruction until at least July 2003, once the Division of Library and Information Services mails its directive to the sixty-seven county Elections Supervisors the future of these historical records rests with the Florida legislature. The division also intends to submit a report on the issue to the state legislature by November. According to Berberich, it will then “be up to the House and Senate leadership to determine its legislative course.” At this point it is unclear what action, if any, the Florida legislature is prepared to take to preserve the historical record.

The ballots continue to be the focus of media attention. Most recently, the Department of Justice detailed numerous voting rights complaints (some five lawsuits emerged out of twenty-one active investigations), but—as reported in the national press—the Bush Administration opted not to pursue these complaints asserting that the allegations were “false or cannot be prosecuted.”