Out of sight, but not out of mind: how Executive Order 13,233 expands executive privilege while simultaneously preventing access to presidential records.

• Author: Karin, Marcy Lynn

Behind closed doors, there is no guarantee that the most basic of individual freedoms will be preserved. And as we enter the 21st Century, the great fear we have for our democracy is the enveloping culture of government secrecy and the corresponding distrust of government that follows.

--Senators Daniel Patrick Moynihan and Ron Wyden October 2000 (1)

INTRODUCTION

On November 1, 2001, President George W. Bush issued Executive Order 13,233 (the "Order" or "Bush's Order"). The Order allows a current or former president to block public access to the federal records created during his administration. In issuing the Order, President Bush revoked Executive Order 12,667 issued in 1989 by former President Ronald Reagan, and purported to implement the Presidential Records Act of 1978 (PRA). In so doing, President Bush continued a three-decade-long battle among the different branches of government over public access to federal documents.

The war over access to presidential records remains important today; the ability to view the records created during the business operations of this country is an important facet of our democracy. The public has a "fight to know how its government operates." (2) The power to read about, learn from, and critique the actions of past presidents and their staffs gives people confidence in the system to which they belong. Viewing historical records allows the public to inspect, question, and judge the efforts their government has undertaken and to trust the process in which decisions are made. When these records are blocked, hidden from public scrutiny, and factual information is unavailable, people begin to doubt the decisions of not just former administrations, but current and future ones as well. In sum, a culture of secrecy is not conducive to an open society. (3)

As discussed below, the current battle is essential to winning the war. Executive Order 13,233 fundamentally changes the public's ability to view official records. The Order shifts the burden of proof from the President to the person requesting information; extends the fight to exert executive privilege to the Vice President, a former vice president, or a designated representative; contradicts regulations issued by the National Archives and Records Administration (NARA); and indefinitely seals records from the public. Although it was intended as an internal executive-branch management tool, the Order implicates and incites an interbranch controversy by both superseding and fundamentally altering previous congressional legislation and Supreme Court precedent.

Part I of this Note defines executive privilege, traces its creation, and examines how the different branches have interpreted it. Part II explores the context in which President Bush issued Executive Order 13,233. Part III describes how the Order changes and interacts with the previous law surrounding executive privilege, examines the process for gaining access to presidential records, and explains how the Order violates constitutional separation of powers principles. Finally, Part IV considers the possibility of both a legislative and judicial solution to the problem and analyzes why the nonexecutive branches are better suited to resolve the dispute.

1. PUTTING EXECUTIVE PRIVILEGE IN THE PRESIDENTIAL TOOLBOX

   1. What Is Executive Privilege?

      Executive privilege is the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public. --Mark Rozell

      Executive Privilege and the Modern Presidents: In Nixon's Shadow (4)

      In its most basic form, "executive privilege" can be defined as a president's ability to withhold information from other branches of the government and from the American public. (5) Interestingly, the words "executive privilege" are not expressly mentioned anywhere in the Constitution, and the phrase is noticeably absent from Article II. This has led a few scholars to conclude that executive privilege is a "constitutional myth." The theory follows that because the Framers included a privilege under Article I, Section 5 for Congress to proceed in secret, the canon of expressio unius prevents the executive from acting in secret. (6) If the Framers had intended to grant this authority to the President, they would have explicitly stated so. (7) Nonetheless, even though the phrase "executive privilege" was not coined until President Eisenhower's Administration in 1958, every president since George Washington has practiced some form of "executive privilege." (8) For example, in 1852, President Fillmore asserted a claim of executive privilege to prevent the disclosure of his records pertaining to the King of Sandwich Islands' proposition to transfer the Sandwich Islands to the United States. (9) Similarly, in 1877, President Hayes blocked access to records that discussed the nomination of Theodore Roosevelt to the position of Port of New York Collector. (10) Moreover, since President Washington, presidents have maintained that they have the power to refuse requests for information. (11) For example, President Cleveland refused to provide information about documents pertaining to the removal of various federal officials in 1886 by claiming privilege. (12)

      A claim of privilege may be exercised over any demand for executive-branch papers. (13) Nonetheless, because it serves to exempt the President from releasing records related to his Article II duties, a claim of privilege will usually be defeated by a request for access to information. The main exception to this principle deals with records that relate to "highly important Executive responsibilities involved in maintaining governmental operations," particularly military and diplomatic secrets. (14) For example, President Polk's claim of privilege over records concerning the Mexican President's 1848 return home was upheld to prevent "diplomatic embarrassment." (15) At times it may also extend to "an appropriate exercise of the executive's domestic decisional and policy making functions," (16) and/or conversations between top advisors, which may be privileged even if the President is not a party to them. (17)

   2. Why Does the President Need This Particular Tool?

      It really reflects the very common sense principle that you couldn't conduct policy-making in the White House if every top aide to the President knew that his or her communications with the President or with each other could be revealed to the whole world at the drop of a hat. Nobody could make policy under that kind of circumstance. --Kathleen Sullivan March 24, 1998 (18)

      The office of the presidency is unlike any other position in the federal government. The president was established as the head of the executive branch to provide "unity, responsibility, and accountability." (19) Accordingly, the presidency is the only position in the government that requires a twenty-four-hour-a-day, seven-day-a-week commitment. (20) In that respect, the strained nature and time commitment involved creates a legitimate need for confidentiality. (21)

      In order to optimally perform his Article II duties, the President needs a degree of privacy to promote candid communication between top executive-branch officials. (22) This confidentiality and ability to have frank and honest conversations serves a "great public interest." (23) As the Supreme Court opined, "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process." (24) Executive privilege also allows a president to ensure that military and strategic objectives are not undermined by the disclosure of information. (25) For example, President Kennedy successfully defended a claim of privilege regarding his foreign policy both when his Military Supervisor was not required to provide testimony about the invasion of the Bay of Pigs and when his Secretary of Defense did not have to testify about the Cold War policies of his administration. (26)

   3. Legislative Treatment and Interpretation of Executive Privilege

      I realize that anyone saying a few kind words about Executive privilege after the events of the last few years is in a position somewhat akin to the man preaching the virtues of water after the Johnstown flood, or the utility of fire after the burning of Chicago. But fire and water are, for all that, essential elements of human existence. And Executive privilege is indispensable to the functioning of our system of checks and balances and separation of powers. --Senate Testimony of Antonin Scalia October 23, 1975 (27)

      Generally, Congress has a right to dispose of the property of the United States. (28) At first observation, one would assume that presidential records that are "generated, created, produced or kept" by a government officer pursuant to the duties and obligations of his office would belong to the government and not to the individual himself. (29) In contrast, presidential papers have historically been considered the personal property of the President who created them. (30)

      Over the years Congress has undertaken various steps to establish public ownership of presidential papers, beginning with the creation of the National Archives in 1934. (31) Franklin Roosevelt was the first president to grant property rights over his papers to the government. (32) Other presidents were persuaded to follow Roosevelt's lead and give their administrative records to government-owned facilities through the enactment of the Presidential Libraries Act of 1955 (the "Libraries Act"). (33) The Libraries Act was the first major congressional effort to deal with presidential records. Under the Libraries Act, if presidents decided to donate their papers to libraries, they could establish specific guidelines for access to and preservation of those papers. (34) Presidents Carter, Eisenhower, Ford, Hoover...