WASHINGTON–Senate Homeland Security and Governmental Affairs Chairman Joe Lieberman, ID-Conn., entered the following statement into the record Tuesday on the Presidential Records Act:
Mr. President, recently the Obama Administration asked the National Archives to speed up its already planned release of Supreme Court nominee Elena Kagan’s records from her time in the Clinton Administration.
I applaud the Administration’s openness. But this speedy release of documents is not required by the current Presidential Records Act and might have been impossible under an executive order issued by former President George W. Bush. That order allowed former presidents, vice presidents, and their heirs to withhold the release of documents indefinitely by claiming executive privilege.
On his first day in office, President Obama repealed the Bush executive order, but a future President could just as easily change it back or add new impediments to the timely release of an Administration’s records.
Mr. President, I have long championed legislation to make it clear that these documents are the property of the American people and therefore should be subject to timely release.
But we cannot move forward with this legislation because my friend, colleague and Ranking Member on the Judiciary Committee, Sen. Jeff Sessions, has placed a hold on it.
Regarding the release of the Kagan documents, Sen. Sessions recently told The Washington Post: “I think all the documents that are producible should be produced. The American people are entitled to know what kind of positions she took, and what kind of issues she was involved with during her past public service.”
I agree with Senator Sessions and hope he will now release his hold on my legislation so this kind of speedy release of documents and the right of the American people to view them will be the legal standard for all future Presidents.
A little history will help explain how we got to where we are today.
Securing Presidential documents is a problem as old as the Republic. George Washington had planned to build a library on his estate at Mount Vernon to house his Presidential papers. But Washington died before he could get his plan underway and his heirs were not always careful stewards of our Founding President’s legacy.
Some of the documents were so badly stored they were eaten by mice. Others were sold off or given away haphazardly. One of Washington’s heirs even took to cutting the signature from Washington’s correspondence and sending it to collectors.
In a letter, this heir wrote: “I am now cutting up fragments from old letters and accounts, some of 1760 … to supply the call for anything that bears the impress of his venerated hand. One of my correspondents says, ‘Send me only the dot of an i or the cross of a t, made by his hand, and I will be content.’”
Despite this inauspicious beginning in preserving our nation’s history, for nearly two centuries it was presumed that the papers of former Presidents were their personal property to be disposed of however they or their heirs saw fit.
Think of all our national history that’s been lost, destroyed or kept locked away far too long.
The bulk of Andrew Jackson’s papers were scattered among at least 100 collections. Jackson’s successor, Martin Van Buren, destroyed correspondence he decided was – I quote – “of little value.”
The papers of Presidents Harrison, Tyler, Taylor, Arthur and Harding were destroyed in fires – sometimes by accident, sometimes intentional.
President Lincoln’s son Todd burned his father’s Civil War correspondence and threatened to burn all of his father’s Presidential papers until a compromise was reached with the Library of Congress that kept most of the papers sealed until 1947. This delay helped fuel conspiracy theories that the papers were kept hidden because they would show that members of Lincoln’s cabinet were part of the assassination plot – in effect, that Lincoln died in a coup.
Of course, when the papers were finally released, they showed that wasn’t true, but it took 82 unnecessary years to put the rumor to rest.
These historical records are too valuable to be left to the judgment of former Presidents, the whims of their heirs, the caprice of nature or – as in George Washington’s case – the appetite of rodents.
This situation finally began to change under President Franklin Roosevelt who, on Dec. 10, 1938, announced he would build a library on his estate in Hyde Park, NY, to house the papers and collections of his public life that stretched back to 1910, when he was elected to the state Senate of New York.
Roosevelt set a standard for openness, asking his aides and cabinet secretaries to contribute to the collection, and almost every President who followed carried on in the spirit of Roosevelt – also building libraries to house their papers.
But this system was voluntary and began to crumble with the resignation of our 37th President, Richard Nixon.
Nixon had an agreement with the General Services Administration (GSA) which would have allowed him to keep all his records locked away, including the infamous Watergate tapes, and mandated many of them be destroyed.
This put us right back where we started, with a former President choosing what historical records the public was entitled to. Congress passed legislation in 1974 specifically ordering that the federal government take control of Nixon’s records and then in 1978 passed legislation declaring that Presidential papers were public property that must be turned over to the National Archives at the end of an Administration and be open to the public after five years.
Systems, however, were put in place to allow a former president to review documents and challenge their release on the grounds of executive privilege. But the presumption was in favor of openness unless the former president could show the court a compelling reason to withhold the documents.
But then, as mentioned, President Bush weakened the law with Executive Order 13233, issued on Nov. 1, 2001. Just to repeat, under this order, not only former presidents and their heirs, but vice presidents and their heirs as well, could withhold the release of documents by claiming executive privilege.
The order also required those challenging claims of executive privilege to prove in court that they have a “demonstrated, specific need” for the documents – an impossibly high standard since only the document’s author can know precisely what a document contains.
And since the Executive Order also allowed for an indefinite review period, these records – housed in Presidential libraries maintained by the taxpayers – could be locked away for indefinite periods of time, making them about as useful as the ashes of Lincoln’s letters.
In reversing Bush’s executive order, President Obama made clear that only the sitting President can claim executive privilege – not their heirs, and not their vice presidents or the vice presidents’ heirs.
In signing the new executive order, President Obama said: “Going forward, anytime the American people want to know something that I or a former President wants to withhold, we will have to consult with the Attorney General and the White House Counsel, whose business it is to ensure compliance with the rule of law. Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well grounded in the Constitution.”
This is wise public policy and should be the law of the land – subject to repeal only by Congress, not by executive order.
When President Roosevelt dedicated his library and began opening up his records and other artifacts to public view, he made it clear that this kind of openness is good for a democracy:
“The dedication of a library,” Roosevelt said, “is in itself an act of faith. To bring together the records of the past and to house them in buildings where they will be preserved for the use of men and women in the future, a Nation must believe in three things. It must believe in the past. It must believe in the future. It must, above all, believe in the capacity of its own people so to learn from the past that they can gain in judgment in creating their own future.”
This Congress can now reassert Roosevelt’s faith in our democracy. That is why I urge my colleague, Sen. Sessions, to release his hold on H.R. 35 so we can pass it, get it to the President and make history now by preserving Presidential history as an open resource for Americans to learn from in the future.
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