[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]



 
 HEARINGS REGARDING EXECUTIVE ORDER 13233 AND THE PRESIDENTIAL RECORDS 
                                  ACT
=======================================================================

                                HEARINGS

                               before the

                 SUBCOMMITTEE ON GOVERNMENT EFFICIENCY,
                        FINANCIAL MANAGEMENT AND
                      INTERGOVERNMENTAL RELATIONS

                                and the

                     COMMITTEE ON GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                       FIRST AND SECOND SESSIONS

                               __________

                NOVEMBER 6, 2001; APRIL 11 AND 24, 2002

                               __________

                           Serial No. 107-73

                               __________

       Printed for the use of the Committee on Government Reform


  Available via the World Wide Web: http://www.gpo.gov/congress/house
                      http://www.house.gov/reform






                       U. S. GOVERNMENT PRINTING OFFICE
80-152                          WASHINGTON : 2002
___________________________________________________________________________

For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512-1800  
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001







                     COMMITTEE ON GOVERNMENT REFORM

                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland       TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut       MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida         EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York             PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California             PATSY T. MINK, Hawaii
JOHN L. MICA, Florida                CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia            ELEANOR HOLMES NORTON, Washington, 
MARK E. SOUDER, Indiana                  DC
STEVEN C. LaTOURETTE, Ohio           ELIJAH E. CUMMINGS, Maryland
BOB BARR, Georgia                    DENNIS J. KUCINICH, Ohio
DAN MILLER, Florida                  ROD R. BLAGOJEVICH, Illinois
DOUG OSE, California                 DANNY K. DAVIS, Illinois
RON LEWIS, Kentucky                  JOHN F. TIERNEY, Massachusetts
JO ANN DAVIS, Virginia               JIM TURNER, Texas
TODD RUSSELL PLATTS, Pennsylvania    THOMAS H. ALLEN, Maine
DAVE WELDON, Florida                 JANICE D. SCHAKOWSKY, Illinois
CHRIS CANNON, Utah                   WM. LACY CLAY, Missouri
ADAM H. PUTNAM, Florida              DIANE E. WATSON,California
C.L. ``BUTCH'' OTTER, Idaho          STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia                      ------
JOHN J. DUNCAN, Jr., Tennessee       BERNARD SANDERS, Vermont 
JOHN SULLIVAN, Oklahoma                  (Independent)


                      Kevin Binger, Staff Director
                 Daniel R. Moll, Deputy Staff Director
                     James C. Wilson, Chief Counsel
                     Robert A. Briggs, Chief Clerk
                 Phil Schiliro, Minority Staff Director

    Subcommittee on Government Efficiency, Financial Management and 
                      Intergovernmental Relations

                   STEPHEN HORN, California, Chairman
RON LEWIS, Kentucky                  JANICE D. SCHAKOWSKY, Illinois
DAN MILLER, Florida                  MAJOR R. OWENS, New York
DOUG OSE, California                 PAUL E. KANJORSKI, Pennsylvania
ADAM H. PUTNAM, Florida              CAROLYN B. MALONEY, New York

                               Ex Officio

DAN BURTON, Indiana                  HENRY A. WAXMAN, California
          J. Russell George, Staff Director and Chief Counsel
                 Earl Pierce, Professional Staff Member
                        Justin Paulhamus, Clerk
           David McMillen, Minority Professional Staff Member






                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on:
        November 6, 2001.........................................     1
        April 11, 2002...........................................   235
        April 24, 2002...........................................   387
    Text of H.R. 4187............................................   391
Statement of:
    Carlin, John W., Archivist of the United States, accompanied 
      by Lewis J. Bellardo, Deputy Archivist.....................     8
    Dallak, Robert, author of ``Lone Star Rising: Lyndon Johnson 
      and His Times, 1908-1960,'' ``Franklin D. Roosevelt and 
      American Foreign Policy, 1932-1945,'' ``Hail to the Chief: 
      the Making and Unmaking of American Presidents''...........   269
    Hoff, Joan, director, Contemporary History Institute, Ohio 
      University, former president, Organization of American 
      Historians, former editor, Presidential Studies Quarterly, 
      author of ``Nixon Reconsidered: the Nixon Presidency''.....   275
    Gaziano, Todd, director, Center for Judicial and Legal 
      Studies, the Heritage Foundation...........................   471
    Kutler, Stanley, professor, University of Wisconsin Law 
      School.....................................................   255
    Nelson, Anna, professor, American University.................    30
    Nelson, Scott L., attorney, Public Citizen Litigation Group..    78
    Reeves, Richard, author of ``President Nixon: Alone in the 
      White House'' and ``President Kennedy: Profile in Power''..   266
    Rosenberg, Morton, specialist in American public law, 
      American Law Division, Congressional Research Service......   440
    Rozell, Mark J., professor, Catholic University of America..37, 462
    Shane, Peter M., professor, University of Pittsburgh and 
      Carnegie Mellon University.................................    63
    Turley, Jonathan R., professor of law, George Washington 
      University Law School......................................   400
    Whelan, M. Edward, III, Acting Assistant Attorney General, 
      Office of Legal Counsel, Department of Justice.............    20
Letters, statements, etc., submitted for the record by:
    Burton, Hon. Dan, a Representative in Congress from the State 
      of Indiana, prepared statement of..........................   487
    Carlin, John W., Archivist of the United States, accompanied 
      by Lewis J. Bellardo, Deputy Archivist, prepared statement 
      of.........................................................    11
    Cummings, Hon. Elijah E., a Representative in Congress from 
      the State of Maryland, prepared statement of...............   362
    Dallak, Robert, author of ``Lone Star Rising: Lyndon Johnson 
      and His Times, 1908-1960,'' ``Franklin D. Roosevelt and 
      American Foreign Policy, 1932-1945,'' ``Hail to the Chief: 
      the Making and Unmaking of American Presidents'', prepared 
      statement of...............................................   271
    Hoff, Joan, director, Contemporary History Institute at Ohio 
      University, former president, Organization of American 
      Historians, former editor, Presidential Studies Quarterly, 
      author of ``Nixon Reconsidered: the Nixon Presidency'', 
      prepared statement of......................................   278
    Gaziano, Todd, director, Center for Judicial and Legal 
      Studies, the Heritage Foundation, prepared statement of....   476
    Gilman, Hon. Benjamin A., a Representative in Congress from 
      the State of New York, prepared statement of...............   352
    Horn, Hon. Stephen, a Representative in Congress from the 
      State of California:
        Nixon court case.........................................   288
        Prepared statements of..............................., 237, 389
    Kutler, Stanley, professor, University of Wisconsin Law 
      School, prepared statement of..............................   257
    Maloney, Hon. Carolyn B., a Representative in Congress from 
      the State of New York:
        Editorials...............................................   243
        Prepared statement of....................................   248
    Morella, Hon. Constance A., a Representative in Congress from 
      the State of Maryland, prepared statement of...............   360
    Nelson, Anna, professor, American University, prepared 
      statement of...............................................    32
    Nelson, Scott L., attorney, Public Citizen Litigation Group, 
      prepared statement of......................................    80
    Ose, Hon. Doug, a Representative in Congress from the State 
      of California, prepared statements of......................7, 399
    Rosenberg, Morton, specialist in American public law, 
      American Law Division, Congressional Research Service, 
      prepared statement of......................................   444
    Rozell, Mark J., professor, Catholic University of America, 
      prepared statements of....................................40, 465
    Schakowsky, Hon. Janice D., a Representative in Congress from 
      the State of Illinois, prepared statement of...............   438
    Shane, Peter M., professor, University of Pittsburgh and 
      Carnegie Mellon University, prepared statement of..........    65
    Turley, Jonathan R., professor of law, George Washington 
      University Law School, prepared statement of...............   404
    Waxman, Hon. Henry A., a Representative in Congress from the 
      State of California, prepared statements of..............240, 397
    Whelan, M. Edward, III, Acting Assistant Attorney General, 
      Office of Legal Counsel, Department of Justice, prepared 
      statement of...............................................    22


       THE IMPLEMENTATION OF THE PRESIDENTIAL RECORDS ACT OF 1978

                              ----------                              


                       TUESDAY, NOVEMBER 6, 2001

                  House of Representatives,
  Subcommittee on Government Efficiency, Financial 
        Management and Intergovernmental Relations,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2 p.m., in 
room 2154, Rayburn House Office Building, Hon. Stephen Horn 
(chairman of the subcommittee) presiding.
    Present: Representatives Horn and Ose.
    Staff present: J. Russell George, staff director and chief 
counsel; Henry Wray, senior counsel; Earl Pierce and Darin 
Chidsey, professional staff members; Bonnie Heald, deputy staff 
director; Jim Holmes, intern; Dan Wray, clerk, Census 
Subcommittee; David McMillen, minority professional staff 
member; and Jean Gosa, minority clerk.
    Mr. Horn. A quorum being present, the Subcommittee on 
Government Efficiency, Financial Management and 
Intergovernmental Relations will come to order. We are going to 
swear in all of the witnesses at this point and the assistants 
to the witnesses. Please have them stand up. The clerk will put 
their names in the record. So if you would stand up, raise your 
right hands.
    [Witnesses sworn.]
    Mr. Horn. All right. The clerk will note all of the 
witnesses and their assistants affirm the oath.
    As James Madison, the Father of the Constitution 
appropriately said, ``A popular Government without popular 
information or the means of acquiring it, is but a Prologue to 
a Farce or a Tragedy or perhaps both. Knowledge will forever 
govern ignorance, and a people who mean to be their own 
Governors must arm themselves with the power knowledge gives.''
    Today's hearing involves the public's right to acquire 
certain government information. We are here to examine 
implementation of the Presidential Records Act of 1978. This 
landmark law established the principle that the records of a 
President relating to his official duties belong to the 
American people. The act gives the Archivist of the United 
States custody of those records after the President leaves 
office. The act also assigns the Archivist, ``an affirmative 
duty to make such records available to the public as rapidly 
and completely as possible consistent with the provisions of 
this act.''
    At the same time, the act recognizes the need to place some 
limits on public access. It permits former Presidents to 
restrict certain records from disclosure for up to 12 years 
after leaving office. It also allows most of the public 
disclosure exemptions contained in the Freedom of Information 
Act to apply to Presidential records. Those exemptions protect 
records involving national defense, state secrets and other 
sensitive matters. However, the act did not allow records to be 
withheld beyond 12 years simply because they contained internal 
staff advice or deliberation among government officials.
    The records of former President Reagan were the first to 
become subject to the act. The 12-year restriction on the 
Reagan records expired in January of this year. Therefore, in 
February, the Archivist of the United States gave former 
President Reagan and incumbent President George W. Bush notice 
of his intent to grant public access to thousands of pages of 
the Reagan records. However, the release of those records has 
been delayed while the current administration developed new 
procedures to handle possible claims of ``executive privilege'' 
that might be made by former President Reagan or his 
representative, or by President Bush or his representative.
    Last Thursday, President Bush signed a new Executive order 
establishing the procedures. The new Executive order revoked an 
order on the same subject issued by President Reagan shortly 
before he left office. The Reagan order had established a 
fairly straightforward and expedient process for asserting and 
reviewing claims of ``executive privilege.'' The new order 
appears to create a more elaborate process. It also gives both 
the former and incumbent Presidents veto power over the release 
of the records.
    I appreciate the need to preserve whatever constitutional 
privileges may still be appropriate for a former President's 
records after many years. However, I am concerned that the new 
procedures may create additional delays and barriers to 
releasing the Reagan records. The public release of these 
records is already 9 months beyond the release date envisioned 
by the Presidential Records Act and there is no clear end in 
sight. Today's hearing will examine these issues. I welcome all 
of our witnesses and I look forward to their testimony.
    [The prepared statement of Hon. Stephen Horn follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.001
    
    [GRAPHIC] [TIFF OMITTED] 80152.002
    
    Mr. Horn. Mr. Ose has a short statement. We are delighted 
to have him here.
    Mr. Ose. Thank you, Mr. Chairman. Unaccustomed as I am to 
making these statements, I frankly flew back today because of 
the importance of this hearing, and I appreciate you convening 
us here today.
    Last February, after press accounts of President Clinton's 
last financial disclosure report and some furniture gifts which 
were ultimately returned to the White House residence, the 
Subcommittee on Energy Policy, Natural Resources and Regulatory 
Affairs, which I chair, began an investigation of Presidential 
gifts pursuant to legislation I am preparing. Among other 
records, the subcommittee sought to examine the White House 
Gifts Unit's database and related records for the Clinton 
administration. As a consequence, I have direct, firsthand 
experience with such requests under the Presidential Records 
Act of 1978 for Presidential records relevant to a 
congressional investigation.
    President Reagan's 1989 Executive order expanded on the 
implementing regulations issued by the National Archives and 
Records Administration. NARA's regulations were authorized by 
Section 2206 of the act. The order, that is, the Executive 
order of 1989, clarified some areas not specifically addressed 
in NARA's regulations. Most importantly, the order identified 
only three areas where access to Presidential records could be 
limited: If disclosure might impair national security, law 
enforcement, or the deliberative processes of the executive 
branch. I asked President Clinton's representative which of 
these privileges, if any, could be asserted to deny my request 
for access to specific records. In the end, President Clinton's 
representative claimed no privileges for any of the requested 
records. And, as a result, NARA provided the subcommittee with 
unfettered access to the requested records and we are 
appreciative of President Clinton's cooperation on that.
    President Bush's new Executive order, issued last Thursday, 
changed these access limitations. In a nutshell, law 
enforcement was dropped, so we went from three to two, and two 
areas were added, so it went from two to four: those two areas 
being communications of the President or his advisors--that is, 
the Presidential communications privileges--and legal advice or 
legal work, meaning the attorney/client or attorney/work 
product privilege.
    I am deeply concerned about the two new broad limitations 
in the order. Both of them, especially the Presidential 
communications privilege, could severely limit congressional 
access to key documents in its investigations of any former 
administration.
    In today's hearing I plan to question the Bush 
administration's witnesses about the legal and substantive 
justification for this restrictive policy change. The bottom 
line is that the new order appears to violate not only the 
spirit but also the letter of the Presidential Records Act. In 
1978, Congress very clearly expressed its intent to make 
Presidential records available for congressional investigations 
and then for the public after a 12-year period. This
new order undercuts the public's right to be fully informed 
about how this government, the people's government, operated in 
the past.
    Thank you, Mr. Chairman.
    Mr. Horn. Thank you.
    [The prepared statement of Hon. Doug Ose follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.003
    
    Mr. Horn. And we will now start with the witnesses in the 
order they are on the agenda. The first witness is the 
Honorable John W. Carlin, the Archivist of the United States. 
He is accompanied by Mr. Bellardo, who is the Deputy Archivist 
of the United States. Glad to have you here.

 STATEMENT OF JOHN W. CARLIN, ARCHIVIST OF THE UNITED STATES, 
       ACCOMPANIED BY LEWIS J. BELLARDO, DEPUTY ARCHIVIST

    Mr. Carlin. Chairman Horn, Mr. Ose, subcommittee staff.
    Mr. Ose. You have got to turn it on.
    Mr. Carlin. Thank you. But you did hear that I acknowledged 
your presence, Mr. Ose, so I will not repeat that. Thank you.
    I am John Carlin, Archivist of the United States. I thank 
you for the opportunity to appear before you this morning. As 
you know, we were scheduled at 10 o'clock--I did not catch the 
redraft there--this afternoon to speak about the implementation 
of the Presidential Records Act.
    Mr. Chairman, I particularly want to thank you for holding 
this hearing and for your continued interest in the programs 
and responsibilities of the National Archives and Records 
Administration. We are fully aware that with the jurisdiction 
of this subcommittee, attention to NARA is your job. However, 
you have taken a particular interest in our mission during your 
career in Congress, and the people of NARA along with our many 
constituent's groups thank you for that interest.
    In order to set the foundation for this dialog today, I 
would like to lay out a brief history of the Presidential 
Records Act and provide the subcommittee with an overview of 
our implementation to date. The Presidential Records Act [PRA], 
was enacted, as we have heard here already today, in 1978 to 
establish public ownership of the records created by subsequent 
Presidents and their staffs and to establish procedures 
governing the preservation and public availability of these 
records.
    The PRA mandates that the Presidential records of an 
administration be transferred to the legal and physical custody 
of the National Archives and Records Administration immediately 
upon the end of the President's last term of office. The 
Archivist of the United States is given the responsibility for 
the custody, control, preservation and access to these 
Presidential records. The PRA also requires the Archivist to 
appointment a Library Director ``in consultation with the 
former President.''
    Since the enactment of the PRA, NARA has taken legal 
custody of the Presidential records of Presidents Ronald 
Reagan, George Herbert Walker Bush, and William Jefferson 
Clinton.
    The PRA applies to all Vice Presidential records in the 
same manner as Presidential records, and affords the former 
Vice Presidents the same authority as the former Presidents. 
Accordingly, all of the procedures and authorities that I will 
discuss in reference to the former Presidents also apply to the 
former Vice Presidents, except that Vice Presidential records 
may be stored in a separate location from the Presidential 
records.
    Overall, the PRA represents an effort to legislate a 
careful balance between the public's right to know with its 
vast implications to historians, other academic interests, and 
the rights of privacy and confidentiality of certain sensitive 
records generated by the President and his staff during the 
course of their White House activities. The PRA mandates that 
the Archivist shall have an affirmative duty to make such 
records available to the public as rapidly and completely as 
possible consistent with the provision of this act.
    Presidential records are not subject to public access 
requests during the President's term of office, and may be made 
available only by decision of the incumbent President. After 
the President leaves office, the records are generally not 
available to the public for 5 years. This 5-year period was 
intended principally to give NARA an opportunity to organize 
the records and begin systematic archival processing.
    At the end of the 5-year period, all Presidential records 
are subject to public access requests in accordance with FOIA. 
However, for a period up to 12 years from when the President 
leaves office, the President is authorized, but not required, 
to impose up to six Presidential restrictions on the records. 
These restrictions must be imposed before the President leaves 
office and are not subject to judicial review. In addition, the 
PRA establishes that eight of the nine FOIA exemptions shall 
also apply to the Presidential records and stay in effect after 
the Presidential restrictions expire.
    Furthermore, four of the six Presidential restrictions are 
identical to corresponding FOIA exemptions. They are: 
exemptions for classified national security information; 
exemptions for information protected by other statute; 
exemptions for trade secrets and confidential business 
information; and exemptions for unwarranted invasions of 
personal privacy.
    The Presidential exemption concerning confidential 
communications between the President and his advisors or 
between such advisors themselves, is similar to the FOIA 
exemption and protects the disclosure of Presidential 
communications, deliberations, and other information that could 
be subject to a common law or constitutionally based privilege.
    However, after the 12-year period, the FOIA exemption does 
not apply to Presidential records. The PRA itself notes that 
Presidents have clear legal authority to assert executive 
privilege over the Presidential records of former Presidents. 
Specifically, the PRA does not prevent a former or incumbent 
President from arguing, even after the 12-year period, that a 
particular confidential communication between the President and 
an advisor should not be released.
    With the exception of the materials of former President 
Richard Nixon, the Presidential papers and materials created 
prior to the PRA and maintained under NARA's control at the 
Presidential libraries of former Presidents Hoover, Roosevelt, 
Truman, Eisenhower, Kennedy, Johnson, Ford and Carter, are 
controlled by the terms of the deeds of gift under which the 
former Presidents donated their records to the National 
Archives.
    The records of President Nixon are governed by the 
Presidential Recordings and Materials Preservation Act, passed 
by the Congress in 1974 to ensure government control over the 
Nixon papers and tapes.
    Each of the Presidential deeds has provisions outlining 
categories of records that may be withheld from public access 
for some period of time. All of them seek to protect 
information that could harm national security, invade personal 
privacy, or cause embarrassment or harassment to an individual. 
Some also seek to protect documents involving confidential 
communications directly with the President.
    The deeds of Presidents Ford and Carter model the 
restrictions of the PRA exemptions. In all instances, the 
director of the Presidential library was given the independent 
authority and discretion to process and open the papers, with 
very limited involvement by the former President or his 
representative.
    Because the materials at these libraries were donated to 
the United States, they are not subject to requests under the 
Freedom of Information Act or any other public access statute. 
This means that the libraries' staffs are able to process and 
open most records in an organized and systematic way based on 
archival considerations.
    However, researchers have no judicial recourse to challenge 
the withholding of records or delays in responding to requests. 
In contrast, because the PRA subjects all Presidential records 
beginning with the Reagan administration to public access 
through the Freedom of Information Act, Presidential libraries 
now open records almost exclusively in response to FOIA 
requests or mandatory declassification review requests. 
Therefore, there is very little opportunity to conduct 
systematic processing of records after the first 5 years. 
Moreover, congressional and grand jury investigations and other 
litigation has significantly limited systematic processing even 
during the first 5 years.
    As you know, last Thursday the President signed a new 
Executive Order 13233 on the Presidential Records Act. We are 
now beginning the process of understanding how this Executive 
order will work in practice. I intend to work with the former 
and incumbent Presidents to implement this order in a manner 
consistent with my statutory responsibility to make 
Presidential records available to the public as rapidly and 
completely as possible.
    That concludes my formal statement, Mr. Chairman, and at 
the appropriate time I would be happy to answer questions.
    Mr. Horn. Thank you very much.
    [The prepared statement of Mr. Carlin follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.004
    
    [GRAPHIC] [TIFF OMITTED] 80152.005
    
    [GRAPHIC] [TIFF OMITTED] 80152.006
    
    [GRAPHIC] [TIFF OMITTED] 80152.007
    
    [GRAPHIC] [TIFF OMITTED] 80152.008
    
    [GRAPHIC] [TIFF OMITTED] 80152.009
    
    [GRAPHIC] [TIFF OMITTED] 80152.010
    
    [GRAPHIC] [TIFF OMITTED] 80152.011
    
    [GRAPHIC] [TIFF OMITTED] 80152.012
    
    Mr. Horn. We will now get to the representative of the 
Department of Justice, Mr. Edward Whelan III, Acting Assistant 
Attorney General, Office of Legal Counsel.
    Glad to have you with us, Mr. Whelan.

 STATEMENT OF M. EDWARD WHELAN III, ACTING ASSISTANT ATTORNEY 
    GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

    Mr. Whelan. Thank you, Mr. Chairman. Mr. Chairman, 
Congressman Ose, thank you very much for affording me the 
opportunity to speak on behalf of the administration before 
this subcommittee on this important topic.
    As was discussed, last week President Bush signed an 
Executive order that implements the Presidential Records Act. 
Specifically, the Executive order implements section 2204(c) of 
that act. That section provides that the act shall not be, 
``construed to confirm, limit or expand any constitutionally 
based privilege which may be available to an incumbent or 
former President.''
    In enacting the act, Congress thus expressly recognized 
that both the incumbent President and former Presidents might 
invoke constitutionally based privileges to prevent the 
disclosure of Presidential records that might otherwise be 
disclosed pursuant to other provisions of the act, including 
after the expiration of the 12-year period of presumptive 
nondisclosure under the act.
    As Senator Percy explained at the time the act was enacted, 
if a President believed that the 12-year closure period does 
not suffice ``that President could object to release of some 
document in the 13th or 15th or 20th year.''
    Congress' recognition that former Presidents as well as an 
incumbent President might assert constitutionally based 
privileges is consistent with and indeed compelled by Supreme 
Court case law. In the 1977 case of Nixon v. Administrator of 
General Services, the Supreme Court in an opinion by Justice 
Brennan embraced the view that unless the President can give 
his advisors some assurance of confidentiality ``a President 
cannot expect to receive the full and frank submissions of 
facts and opinions upon which effective discharge of his duties 
depends.'' In order to provide this necessary assurance of 
confidentiality, the Court ruled that the President's 
constitutionally based privileges for confidential 
communications must survive the individual President's tenure. 
The court further held that a former President, although no 
longer a government official, is entitled to assert 
constitutionally based privileges with respect to his 
administration's Presidential records, and it expressly 
rejected the argument that only an incumbent President can 
assert the privilege of the Presidency.
    This Supreme Court ruling, together with Congress's express 
accommodation of that ruling in section 2204(c) of the 
Presidential Records Act entail a need for procedures to govern 
review of any records to which such privileges may apply. 
President Bush's Executive order establishes clear, sensible 
and workable procedures that will govern the decisions by 
former Presidents and the incumbent President whether to 
withhold or release privileged documents.
    Consistent with the Supreme Court's decision in Nixon v. 
Administrator of General Services, and with sound policy, 
President Bush's Executive order confers on former Presidents 
the primary responsibility for asserting privileges with 
respect to their Presidential records. Indeed, by providing 
that the incumbent President will, absent compelling 
circumstances, concur in the former President's decision 
whether or not to invoke a privilege, President Bush's 
Executive order grants the incumbent President less authority 
over the records of a former President than the incumbent 
President had under the previous 1989 Executive order 
implementing the act.
    Let me emphasize, moreover, that the Executive order is 
wholly procedural in nature. By its express terms, it does not 
and is not intended to indicate whether and under what 
circumstances a former President should assert or waive any 
privilege, nor does it in any respect purport to redefine the 
substantive scope of any constitutional privilege.
    Before the Presidential Records Act took effect, former 
Presidents generally released the vast majority of their 
Presidential records even though they were under no legal 
obligation to do so. The administration anticipates that this 
historical practice will continue. Indeed, because the act and 
the Executive order give former Presidents less power to 
withhold records than they had before the act was enacted, 
there is no reason to anticipate that former Presidents will 
exercise their constitutional privileges in a way that leads to 
greater withholding of records.
    I hope that this information is helpful, and I would be 
pleased to answer any questions you may have about this matter.
    Mr. Horn. Thank you. We will have questioning after the 
presenters have all presented.
    [The prepared statement of Mr. Whelan follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.013
    
    [GRAPHIC] [TIFF OMITTED] 80152.014
    
    [GRAPHIC] [TIFF OMITTED] 80152.015
    
    [GRAPHIC] [TIFF OMITTED] 80152.016
    
    [GRAPHIC] [TIFF OMITTED] 80152.017
    
    [GRAPHIC] [TIFF OMITTED] 80152.018
    
    [GRAPHIC] [TIFF OMITTED] 80152.019
    
    [GRAPHIC] [TIFF OMITTED] 80152.020
    
    Mr. Horn. Our next witness is Anna Nelson, professor, 
distinguished American University. Dr. Nelson.

    STATEMENT OF ANNA NELSON, PROFESSOR, AMERICAN UNIVERSITY

    Ms. Nelson. Thank you, Mr. Chairman.
    I have done research in five Presidential libraries, and I 
was a staff member of the Public Documents Commission in 1976-
1977, which was the--whose report was actually responsible for 
the passage of the Presidential Records Act.
    Today I am here representing the members of the American 
Historical Association, the Organization of American 
Historians, and the Society of American Archivists.
    Influenced by the actions of former President Nixon, then, 
as the Archivist Mr. Carlin noted, Congress passed the 
Presidential Records Act for two reasons: one, to ensure the 
protection of these records so that they could not be 
destroyed, since Mr. Nixon was in that business; and, second, 
to ensure that the records of the Presidents would be open 
within a reasonable period of time. Declaring Presidential 
records to be Federal records, they protected documents through 
archives oversight, as he pointed out. Establishing a time for 
disclosure, the statute gives the President 12 years to protect 
his records before they become available to the public. And, of 
course, there are all of the other safeguards in the act. With 
these exemptions, Congress felt it had duly protected the 
former President.
    It was unfortunate that 2 days before he left office, 
President Reagan issued his Executive order which is now being 
used to nullify the congressional intent to open Presidential 
records within a reasonable time. This Executive order required 
the Archivist to notify both the former and the incumbent 
President when records are to be released after the 12-year 
period. After examining these records, the incumbent and the 
former President can invoke ``executive privilege.'' An 
incumbent President is given 30 days to respond. The Bush 
administration has taken 9 months to make their decision, thus 
delaying the release of the records until they could in fact 
issue their own Executive order.
    The Bush administration did not look at each record, or 
groups of records, so much as they went looking for a way not 
to release these records. And yet the Reagan Executive order, 
if one reads it carefully, assumes that there will be certain 
records among the group that will be held back, not whole 
groups of records.
    The papers of President Reagan are the first to be 
organized and opened under the Presidential Records Act. The 
Reagan papers will set the precedent for all other papers 
opened under the act. We must look ahead and not think in terms 
of 10, 12, 15 years. This act will continue for 30 years. It 
has enormous political implications.
    It is difficult to know why President Reagan chose to allow 
the incumbent to review the records, but by capitalizing on 
this review and further extending its provisions, the Bush 
administration, perhaps unwittingly, has thwarted the intention 
of Congress to open these government records to the public.
    This Executive order, I would argue, goes beyond management 
and process. For example, theoretically a President in 2050 can 
continue to review for closure the records of the current Bush 
administration. Now more than ever, we need to know the history 
of our recent past. The policies made more than 12 years ago 
still affect us. We need to know about these policies, the 
failures as well as the successes, so that we can understand 
our own recent history.
    The release of 12 to 25-year-old records is not the same as 
yesterday's leak to a favorite journalist. Nor need we fear the 
release of national security information which is protected by 
the Presidential Records Act, the Freedom of Information Act, 
and the Presidential Executive Order on National Security.
    The records in Presidential libraries have become more 
important in American history as the power of the Presidency 
has grown with each passing year. It is not unusual, however, 
for past Presidents and their staffs to worry about the content 
of papers they no longer remember. And yet most Presidents gain 
stature from an examination of their records which tend to 
highlight the pervasive problems and illustrate the competence 
and the skills of the President and his staff.
    Congress passed the Presidential Records Act so that the 
American people could learn about their recent past. Congress 
acted wisely. This Executive order should not be allowed to 
nullify that act.
    I would be happy to answer questions, Mr. Chairman, at the 
appropriate time.
    Mr. Horn. Thank you very much.
    [The prepared statement of Ms. Nelson follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.021
    
    [GRAPHIC] [TIFF OMITTED] 80152.022
    
    [GRAPHIC] [TIFF OMITTED] 80152.023
    
    [GRAPHIC] [TIFF OMITTED] 80152.024
    
    [GRAPHIC] [TIFF OMITTED] 80152.025
    
    Mr. Horn. And our next professor is Mark J. Rozell, 
professor at Catholic University of America.

STATEMENT OF MARK J. ROZELL, PROFESSOR, CATHOLIC UNIVERSITY OF 
                            AMERICA

    Mr. Rozell. Thank you, Mr. Chairman, for the invitation to 
speak to the committee on the constitutional principle of 
executive privilege.
    Although nowhere mentioned in the Constitution, executive 
privilege has a long history in Presidential politics. 
Presidents since George Washington have claimed the right to 
withhold information from either Congress or the judicial 
branch. Despite this long history and many precedents for its 
exercise, executive privilege remains a controversial power. 
And that is understandable because the very notion that a 
President may withhold information from those who have 
compulsory powers strikes at the core of our democratic 
principles, especially accountability in government.
    My prepared statement, submitted for the record, focuses on 
the proper definition of executive privilege and the evolution 
of its exercise. Very briefly, executive privilege is a 
legitimate Presidential power when it is exercised under 
appropriate circumstances. Like most other Presidential powers, 
it is limited by the legitimate needs of the other branches. 
Executive privilege also is limited by the democratic principle 
of openness in government. Therefore, throughout U.S. history, 
claims of executive privilege have been subject to various 
balancing tests.
    No claim of executive privilege should stand merely because 
a President or a high-ranking administration official has 
uttered the words ``national security'' or ``ongoing criminal 
investigation.'' A President's claim of executive privilege 
must be balanced against other needs and must also meet certain 
standards of acceptability.
    Some scholars have argued that executive privilege is a 
myth, and during the Watergate scandal, former President Nixon 
claimed that executive privilege was a power that belonged to 
the entire executive branch of the government and therefore was 
not subject to any limits.
    Both of these views are unsupportable. The relevant debate 
today is over the proper scope and limits of executive 
privilege. Few any longer argue that executive privilege is a 
myth, fewer still cling to the belief that the privilege is an 
absolute Presidential power not subject to the compulsory 
powers of the other branches.
    Presidents have legitimate needs of confidentiality. The 
other branches and the public have legitimate needs of access 
to executive branch information. The question is not whether 
executive privilege is a legitimate power, but, rather, how to 
balance competing needs when a President makes a privilege 
claim.
    Now, some critics of executive privilege are quick to point 
out that the phrase ``executive privilege'' does not appear 
anywhere in the Constitution. To be precise, that phrase was 
not a part of the common language until the Eisenhower 
administration, leading some to suggest that executive 
privilege therefore can never be constitutional. This argument 
ultimately fails, because every President since George 
Washington has exercised some form of what we today call 
executive privilege, regardless of the words used to describe 
their actions.
    Executive privilege is an implied power derived from 
Article II. It is most easily defined as the right of the 
President and high-level executive branch officers to withhold 
information from those who have compulsory power, particularly 
Congress and the courts, and therefore to withhold information 
ultimately from the public. But this right is not absolute.
    The modern understanding of executive privilege has evolved 
over a long period, the result of Presidential actions, 
official administration policies, and court decisions. In the 
statement that I am submitting to the committee for the record, 
I provide a detailed explanation of the evolution of the 
meaning of executive privilege and of its exercise by modern 
Presidents.
    For our immediate purposes, I will focus my comments on 
President Bush's Executive order, which I see as a big part of 
an emerging pattern by this administration to expand executive 
privilege and governmental secrecy more broadly. As you are 
aware, the administration has been embroiled in other 
controversies over access to information disputes, particularly 
the refusal to provide certain requested Department of Justice 
documents.
    The Bush administration is making far-reaching efforts to 
expand the scope of executive privilege. In one such case, the 
administration has made the claim that Congress can be refused 
access to documents in the Department of Justice regarding 
prosecutorial matters. In this particular case, the 
administration maintains that it has the right to refuse a 
congressional request for access to such documents, even though 
the Department of Justice has closed down the particular 
investigation under dispute.
    A congressional hearing on that controversy scheduled in 
mid-September was understandably postponed. But in due time, 
Congress needs to take up this issue again, because if allowed 
to stand, the administration's position on expanding executive 
privilege anytime the Department of Justice utters the words 
``prosecutorial'' would set an impossible standard for Congress 
to overcome in trying to conduct its oversight function. In 
short, it would set a terrible precedent.
    Today Congress is rightly concerned about the 
administration's Executive order that would allow executive 
privilege to be vastly expanded to prevent the release of past 
Presidents' official papers. I have a few reactions, very 
quickly. First, the handling of Presidential papers is a matter 
that should be handled by statute and not by Executive order. 
Presidential papers are ultimately public documents, a part of 
our national records, and they are paid for with public funds. 
They should not be treated merely as private papers.
    Second, there is legal precedent for allowing ex-Presidents 
to assert executive privilege, yet the standard for allowing 
such a claim is very high, and executive privilege cannot stand 
merely because an ex-President has some personal or political 
interest in preserving secrecy. An ex-President's interest in 
maintaining confidentiality erodes substantially once he leaves 
office, and it continues to erode even further over time.
    Third, this Executive order makes it easy for such claims 
by former Presidents to stand, and almost impossible for those 
challenging the claims to get information in a timely way in 
order to be useful. The legal constraints will effectively 
delay requests for information for years as these matters are 
fought out in the courts. These obstacles alone will settle the 
issue in favor of former Presidents, because many with an 
interest in access to information will conclude that they do 
not have the ability or the resources to stake a viable 
challenge. The burden will shift from those who must justify 
withholding information to fall instead on those who have made 
a claim for access to information.
    Fourth, executive privilege may actually be frivolous in 
this case, because there are already other secrecy protections 
in place for national security purposes. Why expand executive 
privilege so dramatically to cover what is already potentially 
covered by existing statutes and regulations? Furthermore, a 
general interest in confidentiality is not enough to sustain a 
claim of executive privilege over old documents that may go 
back as far as 20 years.
    Executive privilege traditionally has been limited to 
withholding information regarding current matters of 
substantial national interest. In a democratic system, the 
presumption is generally in favor of openness, not secrecy. 
There is no denying that Presidents have need of 
confidentiality, yet the President's current efforts appear 
designed to substantially tip the balance in favor of secrecy.
    If the President's support for limiting access to 
Department of Justice memoranda and this Executive order are 
allowed to stand, the administration will be able to withhold 
just about any materials going back many years, as long as 
someone in the administration utters the words ``national 
security'' or ``prosecutorial.''
    Congress and the American public have an interest in making 
sure that does not happen. What is striking about these latest 
executive privilege controversies is that the administration 
seeks to protect secrecy; in the one case, over documents 
regarding a terminated investigation; and in the other case, 
over the Presidential papers of past administrations. Usually 
when an administration seeks to protect secrecy with executive 
privilege, it does so with regard to some matter of immediate 
national concern. That is not to suggest that all such claims 
necessarily are valid, but just that current administration has 
chosen some very untraditional cases with which to expand 
executive privilege.
    With regard to legislative executive disputes over 
information, the burden is on the President to demonstrate a 
need for confidentiality and not on Congress to prove that it 
has the right to conduct oversight. Similarly, the burden 
should be on a President or ex-President to demonstrate a need 
to close off access to past Presidential records, and not on 
citizens to prove that they have a right to examine public 
records. The Bush administration actions on executive privilege 
dramatically shift the burden away from where it belongs.
    Thank you.
    Mr. Horn. Thank you.
    [The prepared statement of Mr. Rozell follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.026
    
    [GRAPHIC] [TIFF OMITTED] 80152.027
    
    [GRAPHIC] [TIFF OMITTED] 80152.028
    
    [GRAPHIC] [TIFF OMITTED] 80152.029
    
    [GRAPHIC] [TIFF OMITTED] 80152.030
    
    [GRAPHIC] [TIFF OMITTED] 80152.031
    
    [GRAPHIC] [TIFF OMITTED] 80152.032
    
    [GRAPHIC] [TIFF OMITTED] 80152.033
    
    [GRAPHIC] [TIFF OMITTED] 80152.034
    
    [GRAPHIC] [TIFF OMITTED] 80152.035
    
    [GRAPHIC] [TIFF OMITTED] 80152.036
    
    [GRAPHIC] [TIFF OMITTED] 80152.037
    
    [GRAPHIC] [TIFF OMITTED] 80152.038
    
    [GRAPHIC] [TIFF OMITTED] 80152.039
    
    [GRAPHIC] [TIFF OMITTED] 80152.040
    
    [GRAPHIC] [TIFF OMITTED] 80152.041
    
    [GRAPHIC] [TIFF OMITTED] 80152.042
    
    [GRAPHIC] [TIFF OMITTED] 80152.043
    
    [GRAPHIC] [TIFF OMITTED] 80152.044
    
    [GRAPHIC] [TIFF OMITTED] 80152.045
    
    [GRAPHIC] [TIFF OMITTED] 80152.046
    
    [GRAPHIC] [TIFF OMITTED] 80152.047
    
    [GRAPHIC] [TIFF OMITTED] 80152.048
    
    Mr. Horn. Our next witness is Peter M. Shane, professor, 
the University of Pittsburgh and Carnegie Mellon University. 
Dr. Shane.

     STATEMENT OF PETER M. SHANE, PROFESSOR, UNIVERSITY OF 
           PITTSBURGH AND CARNEGIE MELLON UNIVERSITY

    Mr. Shane. Thank you, Mr. Chairman, Mr. Ose. Is this 
microphone on? Better.
    I want to thank you also for the privilege of appearing 
before you today to discuss these very important issues. It is 
an honor to be part of this distinguished panel. The new 
Executive Order 13233 addresses some gaps in the system for 
managing Presidential records that exist under the terms of the 
Presidential Records Act.
    My own review suggests that whether this order on its face 
would impede or expedite the process actually is not so much 
related to the terms of the order but the kinds of 
circumstances outlined by the Archivist with respect to his 
capacity to process those records in the years of restricted 
access. I will try to explain that conclusion.
    The Presidential Records Act seeks on one hand the rapid 
and complete disclosure of Presidential records, but it leaves 
intact the constitutionally based privileges of both incumbent 
and former Presidents.
    It leaves open two questions. It really provides no 
direction as to how cases should be handled of disagreements 
between the Archivist and former or incumbent Presidents about 
the release of Presidential records. It doesn't provide any 
procedure for a review of former Presidents' records by 
incumbent Presidents trying to decide whether or not to assert 
their own privileges.
    The Archivist, by regulation, addressed the second problem, 
in part, by mandating that whenever notice went forward to a 
former President that records might be disclosed, that notice 
would also go to the incumbent President. But the regulations 
of the National Archives do not tell the President, the 
incumbent President, how to conduct his review.
    President Reagan tried to fill this gap through Executive 
Order 12677. That order provided that the President would 
review all notices by the Archivist that the Archivist intended 
to disclose the records of past Presidents. Under the order, 
that review would last no longer than 30 days, unless 
lengthened on request of an incumbent or former President.
    Executive Order 13233 changes both parts of the procedure. 
On one hand, it lengthens the period for review, although I 
don't know whether in practice the 30 days was kept under 
12677, or I guess we don't know because it was never actually 
implemented. But under 13233, the Bush order, the former 
President now gets 90 days to review documents. There is no 
time limit in the order for the incumbent.
    The potential good news here, however, is that the Bush 
order does not apply to all disclosures; it only applies to 
disclosures pursuant to specific requests that are managed by 
the Archivist, in a manner like a FOIA request. So the real 
question is how large will this category be?
    As it has already been explained, the Presidential Records 
Act allows a former President to ask for up to 12 years of 
protection for documents in six categories that the statute 
provides. When any such access restriction expires, the 
Archivist manages records under the Freedom of Information Act 
standards, except that the section 5 exemption for deliberative 
records no longer is available to limit withholding.
    Under this scheme, it is at least theoretically possible 
that the Archivist could process documents during the period of 
restrictions and identify thousands of documents for 
potentially immediate post-restriction release on the grounds 
that FOIA would not permit withholding these documents under 
any standard. That is, there is no theoretical reason why it 
couldn't be determined within the 12-year period that a great 
many Presidential documents, upon the expiration of the 
restricted access, will simply be automatically disclosable. 
And if that is the case, then 13233 will not kick in.
    As I read it, the Executive order would not restrict the 
authority of the Archivist to arrange the wholesale disclosure 
of such documents at his own initiative. It only restricts--it 
only kicks in when there is a specific FOIA-type request that 
triggers the Archivist's intent to disclose.
    Following up Professor Rozell's suggestion, one wonders 
whether a statute might direct that Presidential records be 
handled this way. If Presidential records were handled this 
way, if the Archivist had that capacity either under his own 
initiative or pursuant to statute, or if the President is 
simply expeditious in reviewing disclosures sought under FOIA 
criteria, then 13233 need not slow down disclosure. Most 
documents, however, are released, if at all, only based on 
specific requests. Then 13233 does auger a slower process than 
12677 would have provided. Some irony here, because, of course, 
12677 was the order written by the President, whose records 
would now be protected by the new order.
    But, in either case, the problem is not because of a facial 
conflict between 13233 and the Presidential Records Act, the 
question is whether the Presidential Records Act will be 
observed in spirit as well as in its letter based on the actual 
implementation of the Executive order. Thank you.
    Mr. Horn. Thank you.
    [The prepared statement of Mr. Shane follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.049
    
    [GRAPHIC] [TIFF OMITTED] 80152.050
    
    [GRAPHIC] [TIFF OMITTED] 80152.051
    
    [GRAPHIC] [TIFF OMITTED] 80152.052
    
    [GRAPHIC] [TIFF OMITTED] 80152.053
    
    [GRAPHIC] [TIFF OMITTED] 80152.054
    
    [GRAPHIC] [TIFF OMITTED] 80152.055
    
    [GRAPHIC] [TIFF OMITTED] 80152.056
    
    [GRAPHIC] [TIFF OMITTED] 80152.057
    
    [GRAPHIC] [TIFF OMITTED] 80152.058
    
    [GRAPHIC] [TIFF OMITTED] 80152.059
    
    [GRAPHIC] [TIFF OMITTED] 80152.060
    
    [GRAPHIC] [TIFF OMITTED] 80152.061
    
    Mr. Horn. Our last presenter is Scott L. Nelson, the 
attorney for the Public Citizen Litigation Group. Mr. Nelson.

    STATEMENT OF SCOTT L. NELSON, ATTORNEY, PUBLIC CITIZEN 
                        LITIGATION GROUP

    Mr. Nelson. Thank you, Mr. Chairman. I have set forth my 
testimony in detail in writing. In my remarks this afternoon, I 
would like to get right to what I conceive to be the heart of 
the matter as to the legality of the new Executive order.
    Archivist Carlin this afternoon has announced his intention 
to implement the order in a manner consistent with his 
statutory responsibility under the Presidential Records Act. I 
am afraid he has taken on an impossible task because the terms 
of the Executive order, in fact, cannot be reconciled with the 
Archivist's responsibilities under the act. In short, the act 
requires that the Archivist must release, after the 12-year 
restriction period, materials relating to communications 
between the President and his advisors upon request, and that 
the Archivist can only withhold those materials from public 
release if they are subject to a valid constitutionally based 
claim of privilege.
    The new Executive order, far from simply providing new 
procedures, turns that requirement on its head. It provides 
that if the former President makes a claim of privilege, even 
if the incumbent President and the Archivist disagree and find 
that there are compelling circumstances that render that claim 
of privilege legally unfounded, the Archivist must still 
withhold those records from the public, and anyone who doesn't 
like it is relegated to going to court.
    Beyond that, the order also purports to require those who 
would seek access to demonstrate a particularized specific need 
for the information, which again is contrary to the public--or 
the Presidential Records Act premise that FOIA standards, under 
which such a need need not be shown, are applicable to requests 
under the PRA.
    The only possible justification for the new standards 
imposed by the Presidential Records Act is if, as the Executive 
order tries to suggest, these new standards are required by the 
constitutional nature of the executive privilege.
    But judicial precedents on that subject make it clear that 
the order's standards are not constitutionally compelled. In 
the Nixon v. Administrator of General Services decision of the 
Supreme Court, the court emphasized two features of executive 
privilege that I think are particularly relevant here. The 
first is that it erodes over time, and that years after the 
President leaves office it can be overridden by a public need 
for access to historical materials.
    The second is that the President--the former President's 
ability to claim privilege is adequately protected so long as 
he has the ability to make a claim and present it for 
consideration by the Archivist and by the sitting President.
    There is no suggestion in Nixon v. Administrator of General 
Services, as there is in this order, that the current 
administration has to rubber stamp a claim of privilege by the 
former President.
    More to the point even than the Nixon v. Administrator of 
General Services is a decision rendered by the D.C. Circuit in 
1988, Public Citizen v. Burke. In that case the Justice 
Department had attempted precisely the same thing that is now 
being attempted by the Executive order. In that case pertaining 
to Nixon Presidential records, the Justice Department had 
issued a directive requiring that if a former President, in 
that case Mr. Nixon, claimed privilege, the Archivist was 
required to withhold those materials and let anyone who wanted 
access bear the burden of going to court. The D.C. Circuit held 
that order was unlawful, that the Archivist could not shirk his 
responsibility to rule on a claim of executive privilege made 
by a former President and release materials to the public as 
required by statute if that was in fact what the law required, 
in his view.
    I speak from sad experience here, as I was among the losing 
attorneys in that case. Now I feel like it is deja vu all over 
again. Once again, a policy is being advocated by the 
administration that would give a former President carte blanche 
to direct the Archivist in effect not to comply with his 
statutory responsibilities. That is bad law, it is bad policy, 
it is contrary to the notion that the Presidential Records Act 
exists in order to give citizens access to government records 
and after the 12-year period expires, to place the burden of 
justifying any withholding of those materials on the person who 
seeks withholding, not on the person who wants access. Thank 
you.
    Mr. Horn. Thank you very much.
    [The prepared statement of Mr. Nelson follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.062
    
    [GRAPHIC] [TIFF OMITTED] 80152.063
    
    [GRAPHIC] [TIFF OMITTED] 80152.064
    
    [GRAPHIC] [TIFF OMITTED] 80152.065
    
    [GRAPHIC] [TIFF OMITTED] 80152.066
    
    [GRAPHIC] [TIFF OMITTED] 80152.067
    
    [GRAPHIC] [TIFF OMITTED] 80152.068
    
    [GRAPHIC] [TIFF OMITTED] 80152.069
    
    [GRAPHIC] [TIFF OMITTED] 80152.070
    
    [GRAPHIC] [TIFF OMITTED] 80152.071
    
    [GRAPHIC] [TIFF OMITTED] 80152.072
    
    [GRAPHIC] [TIFF OMITTED] 80152.073
    
    [GRAPHIC] [TIFF OMITTED] 80152.074
    
    [GRAPHIC] [TIFF OMITTED] 80152.075
    
    [GRAPHIC] [TIFF OMITTED] 80152.076
    
    [GRAPHIC] [TIFF OMITTED] 80152.077
    
    Mr. Horn. We are now going to ask questions. We have got 
two of us here for the majority. We haven't seen the minority. 
But it will be 10 minutes a side, and I am starting with 10 
minutes and then Mr. Ose will have 10 minutes.
    Governor, I think earlier this year you notified the former 
and current Presidents of your intention to release to the 
public about 68,000 pages of records that former President 
Reagan had restricted for the last 12 years under the 
Presidential Records Act. Is that correct?
    Mr. Carlin. That is correct.
    Mr. Horn. When you gave this notice, had you completed your 
review of the records and determined that there was no basis to 
withhold them down--under any of the exemption categories 
specified in the act?
    Mr. Carlin. My staff had worked with the Reagan 
representatives to come to that conclusion, yes.
    Mr. Horn. What steps do you take to protect against 
disclosures of records that might contain military, diplomatic, 
or national security secrets?
    Mr. Carlin. The staff at the Reagan Library, as well as my 
immediate staff, as well as the representatives of the former 
President, look very closely at all of those records to make 
sure that we are complying with all of those restrictions, 
whether they be for national security or classified documents, 
obviously. At the Reagan Library, I think there are about 8 
million pages of classified records that will be open down the 
road several years from now.
    Mr. Horn. How did you ensure that the other exceptions from 
disclosure are properly applied? What is the archival staff 
criteria?
    Mr. Carlin. Well, the staff has--I have been fortunate to 
inherit as well as add some very talented people to the staff 
that has had experience and developed more experience in 
implementing the Presidential Records Act. And the key to that 
success I think for the most part has been with the staff 
working very closely with the reps of the former President to, 
in a dialog, almost partnership way, work through so that over 
a period of time more guidance and direction could be given to 
the NARA staff, to the Reagan--in this case the Reagan 
Presidential Library staff, so a lot of the work has moved 
forward in a rapid, efficient way.
    But the key has been, obviously, talented staff committed 
to the appropriate implementation of the law and the Executive 
order.
    Mr. Horn. Did your notice, when you identified the two 
Presidents, any of these records that raised, ``a substantial 
question of executive privilege'' as defined in Executive Order 
12667?
    Mr. Carlin. Well, obviously, the incumbent has the right to 
make the judgment call as to whether there is something that 
rises to that level.
    The former in this case, and based on our experience with 
opening some--I think we are at about 5.3 million pages of 
records that we have opened in the Reagan Library, that we have 
had a very small, modest number, percentage-wise that have 
fallen under further scrutiny, for records that come under P5.
    Mr. Horn. You want to define P5?
    Mr. Carlin. Well, this is the exemption that deals with the 
confidential advice to the President from staff, or from staff 
to staff, in terms of the process of moving forward on various 
decisionmaking activities.
    Mr. Horn. When a scholar goes into the Reagan Library, and 
when you are faced with 5 to 8 million, the question would be, 
is the best way to get at it is with the certain--White House 
personnel, let's say, national security, or urban planning or 
whatever, is--what is the best way for any scholar to get at 
such a vast bit of material?
    Mr. Carlin. Well, because as I explained in my opening 
statement, systematic processing has been hampered by an 
extensive use of FOIA, which is--we are not being critical of, 
but just sharing our professional experience, it has been very 
difficult to move as fast as we would like in opening as many 
records as possible in an efficient manner.
    From a practical point of view, FOIA, it has been the FOIA 
line that has determined how records have been opened and 
processed. And to anyone now, you know, get in line is my first 
bit of advice and get your FOIA request in, because between 
court order and congressional requests and FOIA, there is not 
much opportunity for just a general request to be made, because 
the chances are the records have not been processed. The way to 
bring that request to the top is to make a FOIA request.
    Mr. Horn. When you receive a request for these records, do 
you conduct an initial review and make your own determination 
on whether any of the act's exemptions from release have any 
application?
    Mr. Carlin. Yes. We do some initial work ourselves, and 
then obviously--if somebody makes a request for Record A and it 
is a classified record, we don't need to proceed any further. 
It is obvious that record is not going to be opened up. And if 
no other exemption stands out, obviously, then we proceed to 
take the next step, which is sharing the request with both the 
former and the incumbent representative.
    Mr. Horn. Has the White House started a substantive review 
of those records to determine whether to invoke executive 
privilege for any of them?
    Mr. Carlin. The current incumbent?
    Mr. Horn. Current.
    Mr. Carlin. No.
    Mr. Horn. I understand that the White House Counsel's 
Office consulted extensively with you and your agency in 
developing the new Executive order; is that true? Did you 
provide----
    Mr. Carlin. That is correct. We would have to acknowledge 
on the record that we have had unprecedented access and 
opportunity to share our experiences and share our professional 
concerns that we may have. It has been over a several-month 
period, and we certainly cannot in any way be critical of the 
administration as far as leaving us out in any fashion.
    Mr. Horn. In terms of any type of transition of Presidents, 
whether they are in the same party or not, would you give us 
some advice as to--or if a President was thinking about it--
should you be putting archivists right in the White House now, 
if you want to get a decent archival file? Is any of that ever 
done, or are Presidents just a little leery of that?
    Mr. Carlin. Well, consistent with the interest that you 
had, Mr. Chairman, with transition in the last few years, we 
likewise were committed with the then-coming change of 
administrations, as a result of the last election, to be in a 
position to work with the new administration on records 
management, particular emphasis on the electronic side, to try 
to avoid some of the problems that we had, make use of lessons 
learned from the previous administration. And we were 
privileged to have had the opportunity to work extensively in 
the very short transition period that did eventually develop, 
and then since then, and are working very closely with the 
White House, with the Office of Administration on Records 
Management issues. So, come whenever that time is when those 
records are transferred to us, there is a much better 
opportunity they will be in a condition that will allow the 
maximum efficiency of processing.
    Mr. Horn. What views or comments do you have about the 
final Executive order that the administration put in the 
Federal Register?
    Mr. Carlin. Well, obviously, as you are well aware, policy 
is developed by you and/or the administration, and it is our 
role to implement. We did share some--what we would call 
professional concerns, and, as I indicated earlier, appreciate 
the fact that we were given the opportunity to do so, based on 
12 years of experience with now three former Presidents.
    But the policy side of things we will let the Congress and 
the administration work out.
    Mr. Horn. Thank you. I now yield 10 minutes to Mr. Ose.
    Mr. Ose. Thank you, Mr. Chairman.
    Mr. Whelan--before I go there, Mr. Chairman I just want 
to--I am relatively new here. One of the things that I have 
always come to admire about President Reagan is the fact that 
when he had finished his work, he was not afraid to put his 
stuff in the public domain. He just said, I got these three 
exemptions, But, you know, let's just trust the people and tell 
them what it is that we know. And if there were to be one thing 
that I would say to President Reagan today, it would be that I 
am most appreciative of his faith in the citizens of this 
country in that respect.
    Mr. Whelan, I am curious about something. In President 
Bush's--or in the Executive order of last Thursday, the--three 
exemptions, if you will, that were embedded in the Presidential 
Records Act--that would be national security, deliberative 
process and law enforcement--were changed. Law enforcement was 
dropped. And Presidential communications in one case, and legal 
advice and legal work in another were added. Am I correct in 
that?
    Mr. Whelan. You are certainly correct that the wording is 
different from the previous Executive order.
    Mr. Ose. Now, under my interpretation, that is an expansion 
of the Presidential Records Act. Am I correct in that?
    Mr. Whelan. No, you are not, sir. No substantive change is 
intended or effected by the difference in words used to 
describe the privilege, nor could any President through an 
Executive order change the contours of the constitutional 
privileges available to existing and former Presidents. So 
certainly nothing is intended by it.
    I will note, for example, you note that the previous 
Executive order didn't use the term ``communications of the 
President.'' Well, the communications privilege was at the core 
of the two Nixon cases. It was clearly covered by this 
Executive order, which just used different labels.
    Mr. Ose. We are going to get to that. But you are saying 
that there was no intended change meant by the change in 
wording?
    Mr. Whelan. That's correct, sir.
    Mr. Ose. So why did you change the words?
    Mr. Whelan. The language used to describe the 
constitutional privileges of the President, as one of the other 
panelists indicated, has changed over time. Different people 
have different phrasings that they find appropriate.
    The Department of Justice has long described the 
constitutional privileges as subsuming the privileges that are 
listed here in the Executive order.
    Mr. Ose. Attorney General Reno--just for an ordinary person 
like me, what does subsuming mean, just in common person's 
language?
    Mr. Whelan. Well, I won't pretend to serve as a thesaurus, 
but the notion that the very materials that would in other 
contexts be covered in these privileges are for the President 
covered by his constitutional privilege.
    Mr. Ose. So it's analogous to including something, 
basically?
    Mr. Whelan. That is at least a rough----
    Mr. Ose. I am kind of a rough guy, so you will have to bear 
with me. I didn't mean to interrupt you on the other.
    So going back to my original question, why the change in 
the wording? If there is no intended change in the 
interpretation, why do you need to change the words?
    Mr. Whelan. I am not aware of any decision on that other 
than the Department of Justice, say, from Assistant Attorney 
General Olson in the Reagan administration through Attorney 
General Reno, has used language that we used in this Executive 
order.
    Mr. Ose. This brings me to a very specific question, and 
that is, the Presidential Records Act in Section 2204(a) talks 
about confidential communications--focusing in on one of the 
new words that didn't have any change in meaning, it talks 
about confidential communications between the President and his 
advisors; and yet the Executive order under section 2(a) makes 
no distinction between confidential and regular communications 
between the President and his advisers. Now, are you attempting 
to expand the protections, if you will, that the President 
might seek to exercise?
    Mr. Whelan. No. There is no intention via this order to 
expand or redefine the constitutional privileges available to 
the President. This order is procedural.
    Mr. Ose. A plain reading of the Executive order suggests to 
me in no uncertain terms that it's all communications between 
the President and his advisors that are covered by what you 
contend is not an expanded Presidential Records Act.
    Mr. Whelan. Insofar as such communications are subsumed by 
the President's constitutionally based privileges.
    Mr. Ose. OK. Let's talk about that. Are the attorney/client 
or work product or deliberative process privileges common law 
privileges or constitutional privileges?
    Mr. Whelan. When invoked by you or me, these are common law 
privileges. But, again, the Department of Justice has 
consistently maintained that these common law privileges are 
subsumed or incorporated under the President's constitutional 
privilege.
    Mr. Ose. OK. This is very interesting. Don't court cases 
hold that an executive privilege does not include attorney/
client privilege? Isn't that what court cases hold?
    Mr. Whelan. The Supreme Court has never held that the 
President's constitutional privilege does not subsume materials 
that would otherwise be protected by attorney/client privilege.
    Mr. Ose. Can I ask you a favor? Instead of using the word 
``subsume,'' can you just use regular language with me, however 
long the definition you might substitute? I mean, you are 
confusing me with the word subsume.
    Mr. Whelan. You can use incorporate, if you would like.
    Mr. Ose. You are saying the President, whether it's this 
President or a future President, has a constitutional privilege 
to exercise this exclusion, if you will, this protection?
    Mr. Whelan. That much is clear from the Nixon v. 
Administrator of General Services case.
    Mr. Ose. And yet----
    Mr. Whelan. I am sorry. From the Nixon v. Administrator of 
General Services, case.
    Mr. Ose. Mr. Chairman, I just need a moment, please.
    Mr. Horn. While you are doing that, let me get a question 
in here.
    Mr. Whelan, I'm curious, when we talk about a former 
President, a current President and/or their representative, how 
do we get the--what kind of representative? Is there any 
legitimacy to that? And, if so, who is it? Is it their cousin? 
Is it their little brother? Is it another President or what? 
How do you know that is the representative and how that would 
be agreed to by either the counsel in the White House or the 
Department of Justice, etc? Can you give us some advice on 
that?
    Mr. Whelan. Well, Mr. Chairman, the former President is to 
designate his representative. So the person he has designated 
as such shall be his representative.
    Mr. Horn. And who would that be?
    Mr. Whelan. That depends whom the former President 
designates. He may designate whomever he sees fit.
    Mr. Horn. Well, is a person that is an expert on, let's 
say, national security policy or whatever, does it have to be 
an attorney? Could it be anybody that the former President has 
faith in?
    Mr. Whelan. Well, let me go back to the Nixon v. 
Administrator of General Services, case, and I think that will 
help explain some of the considerations that a former President 
would take into account in selecting a representative. As that 
case and the Nixon v. Administrator of General Services, case 
recognized, the constitutional privilege of the other President 
is essential and serves the public interest by guaranteeing 
that advisors to the President have some real assurance of 
confidentiality so that they can give their full, frank advice 
and not worry about how they might be portrayed. The essential 
goal is that the President and the country benefit from their 
full advice.
    With that said, a former President presumably would want to 
select as his representative someone who was knowledgeable 
about and sensitive to the interests that advisors would have 
so that advisors in the future would have confidence that they 
could give their full, frank advice.
    Mr. Horn. The Presidential Records Act clearly envisions 
that the Archivist will initially decide whether claims of 
executive privilege by a former President are justified. The 
act specifically provides a judicial remedy that, ``a former 
President asserting that a determination made by the Archivist 
to the United States violates the former President's rights or 
privileges.'' What's your reaction to that? For example, can an 
Executive order take away from the Federal official authority 
and responsibility granted by Congress?
    Mr. Whelan. Mr. Chairman, I don't believe anything in this 
Executive order takes away any authority conferred by Congress. 
So I am not--perhaps I missed the specifics of your question, 
but I don't believe the Executive order does that in any 
respect.
    Mr. Horn. Well, I get the--it might not mean that, but I 
would think that the Executive order is attempting to make laws 
that Congress makes.
    Mr. Whelan. No, that is not right. I believe Professor 
Shane mentioned the Executive order is designed to set forth 
procedures, to fill gaps, to implement the Presidential Records 
Act. It is not designed and does not in any respect override 
any of the provisions of that act.
    Mr. Horn. Well, where--the representative bit, how would 
you know? How would anybody in the government know? Is it 
simply a letter from the former President and that does it on 
the representative, or what?
    Mr. Whelan. Yes. A notice concerning--given via letter to 
the current President or the Archivist.
    Mr. Horn. Well, that would be a good idea.
    Mr. Ose, 10 minutes.
    Mr. Ose. Thank you, Mr. Chairman. I appreciate the moment 
to gather my thoughts.
    Mr. Whelan, would you please cite for me the legal or 
constitutional precedent that subsumes or incorporates the 
attorney/client or work product privilege under the executive 
privilege?
    Mr. Whelan. I don't know that there is case law on that 
point, Congressman Ose.
    Mr. Ose. Is there any law on that point?
    Mr. Whelan. Well, there certainly is a long-established 
practice of the Executive Department with respect to the 
constitutional privilege, which practice has been recognized.
    Mr. Ose. OK. But is the attorney/client and work product 
privilege a constitutional privilege or a common law privilege?
    Mr. Whelan. Well, I'm going to have to go back to the 
phrasing that I think we used before, which is the President's 
constitutional privilege subsumes or incorporates the attorney/
client or work product privilege. There was a letter from 
Attorney General Reno citing the Office of Legal Counsel 
opinions by Ted Olson and Chuck Cooper to this effect in this 
last administration.
    Mr. Ose. I have some passing knowledge of former Attorney 
General Reno's positions.
    Mr. Nelson, do you have any observations on these points? 
I'd be curious what input you might provide.
    Mr. Scott Nelson. Well, I think that there might be 
circumstances where there would be some overlap between 
attorney/client privilege and the constitutional executive 
privilege. For example, if the President were consulting with 
his White House counsel on some matter of legal policy, I would 
think that conversation would likely fall within the bounds of 
both the potential at least constitutional executive privilege 
and the attorney/client privilege. I don't think that those two 
categories necessarily are mutually exclusive, but I also don't 
think that they necessarily are co-extensive. In other words, I 
think there might very well be some communications and 
certainly some writings that could fall within the common law 
attorney/client and work product privileges that would not 
necessarily qualify for the constitutional executive privilege 
attaching to confidential communications between the President 
and his advisors.
    Mr. Ose. Are you familiar with the 8th Circuit or the D.C. 
Court's rulings with respect to Mr. Lindsey that have occurred 
since the Supreme Court ruling Mr. Whelan referred to?
    Mr. Scott Nelson. Well, I believe that the courts have held 
that attorney/client privilege is not constitutionally 
compelled in that context, but I would want to go back, 
frankly, and study them before I was prepared to give detailed 
testimony on what they meant before a congressional 
subcommittee, I am afraid.
    Mr. Ose. Professor Nelson, Professor Rozell, Professor 
Shane, do you have any thoughts on this matter?
    Ms. Anna Nelson. I can't talk about the legal matters, but 
I've been very interested in this conversation. Going back to 
the chairman's question of what the researcher finds when they 
go into a Presidential library, and I think it's an esoteric 
conversation for those of us who go looking for documents, what 
will happen----
    Mr. Ose. Before you leave that, it is not esoteric in the 
sense the citizens of this country deserve this information----
    Ms. Anna Nelson. You are quite right.
    Mr. Ose [continuing]. In terms of what their leaders are 
basing their decisions on.
    Ms. Anna Nelson. You are quite right, and what will happen, 
in spite of the insistence that this is a management problem, 
is that records will be withheld. It's very dangerous--secrecy 
is a dangerous thing. It always causes conspiracy theories. As 
a member of--former member of the John F. Kennedy Assassination 
Record Board, I can tell you all about that. It was secrecy 
that bred those conspiracy theories, and I think that's one 
aspect about it.
    In your question about what you will find when you go into 
the 68,000 pages, you will find that the Archivists have done a 
wonderful job of organizing them, and there will be file 
folders that will tell you where to go for your research. 
That's why people like Presidential libraries.
    The problem of using FOIA requests and not having 
systematic review is one that has persisted in many 
Presidential libraries over the years. The difference is that 
we have to regard these as government papers, government 
documents. In the past, the designated individual when the 
President dies is a member of the family or a member of the 
administration protecting the family's interests. This is not 
going to be possible when the records are Federal records, and 
I think we have to rethink many of these aspects for public 
access, which is the very key issue here.
    When the subcommittee staff that created the Presidential 
Records Act and the committee decided to include the 12 years, 
they felt that was enough for confidentiality. It may not be, 
but, in any case, their motive was to open records.
    President Nixon managed through the courts to keep his 
records closed for over 20 years. Just by using legal attempts 
through the courts, he tied them up. And this was on the minds 
of people when he began to do that before that act was passed. 
So I think that anything that hinders public access is 
hindering the American people from understanding the recent 
past.
    Mr. Ose. Professor Rozell. Professor Shane.
    Mr. Rozell. Thank you.
    There are many things about this Presidential Executive 
order that disturb me, but one in particular that you raised 
before is a provision that allows a former President to 
designate someone, whomever he may choose, to make a decision 
with regard to asserting executive privilege. I would like to 
know specifically who would be considered qualified to render 
such judgments.
    If you follow the history of case law and Presidential 
practice with regard to the use of executive privilege, 
executive privilege has come to mean the right of the President 
and high executive branch officers with the President's consent 
to withhold information that has a direct impact on the 
national security or information that, if released publicly, 
would cause undue embarrassment to individuals within an 
administration for no public gain whatsoever.
    It bothers me greatly to see in this Executive order that a 
former President may designate someone who may at heart have 
the former President's own political interests or standing in 
history primarily in mind rather than the traditional 
categories for which executive privilege normally would be 
asserted. And, again, executive privilege exists to protect the 
national security or the privacy of internal deliberations when 
it is in the political interest to do so, not when it's in the 
public interest of an administration or of a past Presidential 
administration.
    Mr. Ose. You bring up an interesting point, because the 
cases that were actually before us have to do with previous 
administrations.
    Mr. Rozell. Yes.
    Mr. Ose. It's nothing where President Bush is on the line. 
It's just----
    Mr. Rozell. That's right. That's what I find so curious, 
that they are taking a stand on an executive privilege issue 
with regard to past Presidential administrations' papers, and 
that's not the traditional category for which an administration 
would be staking a claim for executive privilege.
    I am not, by the way, opposed to the concept of executive 
privilege. I am not opposed to the concept of secrecy. As I 
said in my statement, I believe that Presidents have needs of 
confidentiality, but as with other constitutional powers there 
is a balancing test. There has to be a balancing test with 
regard to different needs--the needs of Congress, the needs of 
the public. To have access to information must be weighed 
against the need of an administration to withhold information 
or the presumed need of a past administration to withhold 
documents from public review.
    And one final point. One thing that hasn't been raised is 
this question. As I understand the Executive order, if a past 
President's designant or a past President wants to withhold 
information, wants to withhold Presidential documents from his 
administration and the current President disagrees, then the 
former President's claim of executive privilege stands. What if 
the current administration needs access to such information for 
current policy deliberations and development? You mean to tell 
me that the current administration cannot have access to the 
historic records and documents of a past administration when 
those records, those documents may be crucial to the 
development of policy in the current context? What's more 
important here?
    Mr. Ose. Professor.
    Mr. Shane. Thank you.
    I think, the starting point, I would underscore in reaction 
to what the other speakers have said, with which I agree, is 
it's important to remember that executive privilege is intended 
to protect the Presidency. It's not a privilege to protect 
particular individuals in their individual capacity as 
incumbent President or their individual capacity as past 
President. It's intended to protect the office.
    Now, with regard to the wording of the Executive order, I 
would say that operationally, with one caveat, with one sort of 
warning, operationally it doesn't make much difference what 
verbiage the Executive order chooses to describe the contours 
of executive privilege. What counts is--because even if they 
assert in the Executive order that they could conceivably 
assert privilege on 4 or 5 or 25 grounds, the order obviously 
doesn't compel them to do it. The President, this President, 
successor Presidents, former Presidents could decide I'm not 
going to rest on privilege even if hypothetically I could 
assert one. So in practice, except for one thing, the verbiage 
doesn't much matter.
    The reason why it might matter, the one exception is that, 
for reasons Professor Rozell has mentioned, this administration 
seemed to develop what might be called a kind of idealogy of 
executive privilege. It is picking fights over records of past 
administrations. In one case, with regard to the Vice 
President's meetings in his contest with GAO, I have to say it 
is a current President, but the information seems almost 
trivial. It seems like almost an intent to pick a fight. And in 
that context leaving the verbiage unchallenged by Congress does 
raise the possibility if that verbiage just stays on the books 
unchallenged by Congress some subsequent President will say, 
well, we asserted that Presidents could claim privilege on this 
particular ground and Congress never objected, so we must have 
the law right. That's----
    Mr. Ose. Just for the record, Congress objects.
    Mr. Shane. Well, I think that's quite significant. It's 
more than mere ritual to do that.
    Could I just add one other puzzle that I have about 
Executive order and--but I have to say, with regard to the 
Presidential Records Act, too, and that is both documents say 
with regard to the Vice President's record, the Vice President 
shall be treated as the President. And if I may ask 
rhetorically, why in heaven's name would that be?
    The Vice President's privileges, such as they are, could 
only be part and parcel of the privilege that protects the 
Presidency. I don't read into the Constitution--I know of no 
authority that suggests there's independent executive privilege 
to protect the Office of the Vice Presidency. As a Presidential 
advisor, Vice Presidents are undoubtedly protected in their 
communications in order to protect the Presidency, but I would 
imagine that huge quantities of what Vice Presidents read and 
deliberate upon are no more protected by executive privilege 
than, say, the records of the Federal Energy Regulatory 
Commission or the Small Business Administration. He's just 
another Federal administrator. And I wonder whether Congress 
might want to turn its attention to that question.
    Mr. Ose. Thank you, Mr. Chairman. You've been very 
generous.
    Mr. Horn. If I might just add on a question on this, Aaron 
Burr and Thomas Jefferson would not have gotten along. And in 
terms of Franklin Roosevelt, his Postmaster General, Mr. 
Farley, wanted to run and then he was thrown aside when the 
boss won three battles on that. And I am just curious about the 
Vice President relationship. It isn't the first ones that have 
turned on a President or later said I will run in the next time 
and I'll get the votes. So what do you think on who deals with 
those papers which can really be damaging to the Vice President 
as with the incumbent, present President?
    Mr. Shane. Constitutionally, my intuition is--and I use the 
word ``intuition'' because there's not a lot of law on this 
subject, but my intuition is that only a President can assert 
executive privilege. So for better or worse with regard to 
Aaron Burr, whether or not his records would remain secret 
would be up to Thomas Jefferson, not Aaron Burr.
    Mr. Horn. Any other comments from the professor?
    Ms. Anna Nelson. Well, I think there is one more thing to 
add, and that is that records at Presidential libraries, you 
know, don't come out in one or two times. We're still getting 
records out of the Kennedy Library, and we're getting records--
we're getting a lot of records out of the Johnson Library. So 
that we do have to look ahead. I want to emphasize that. And we 
have to look ahead to the political ramifications as Presidents 
of one party make some determinations of the papers of 
Presidents of another party.
    And I think that if it is true, and I didn't read it this 
way, that this only applies to FOIA, I suppose that's not 
nearly as bad. When I read the Executive order I read it to 
mean that every time records were released that they would be 
subject to the incumbent as well as the past President, and 
that's a terrible burden and a terrible chore for the National 
Archives, and it just means that we'll see the papers less and 
less. Because even now the national security records are held 
back so long that--because it must go through so many different 
people. The more people you have to go through, the longer 
records are kept out of the public eye.
    Mr. Horn. There's obviously a certain number of years in 
the law that's there. When that was put together, to what 
degree, if any, did the issue come up of why don't we do it 
until the President dies and then you don't have to worry about 
it?
    Ms. Anna Nelson. Well, some Presidents live very long.
    Mr. Horn. Adams and Jefferson, as a matter of fact.
    Ms. Anna Nelson. That's right.
    Mr. Horn. They were healthier than we are.
    Ms. Anna Nelson. They were very healthy men, and even Harry 
Truman lived a long time. So I think that there's no question 
about the fact--but even when Presidents died young in the past 
the families have taken over their papers, much as President 
Kennedy's family, and so there's no guarantee that they will be 
opened. But I think that was the reason. I think they felt that 
just too many years would pass.
    For the historian I have to say that it's wonderful to get 
records out that are within the lifetime of the people who 
wrote them. Documents don't tell you everything. Especially I 
think this is true of Congress where a lot's done in the halls 
and elsewhere. But documents even in the executive branch don't 
tell you everything, and when you have people to interview, to 
counter, you get a much better picture of it. When you don't 
have those and you don't have the records, then you're dealing 
with people's memoirs.
    So in the case of the Nixon administration, for example, 
there are a lot of memoirs. And in the case of the Reagan 
administration there were a lot of disaffected White House 
personnel who wrote memoirs, and you get an incorrect view of 
history. You need the documents, and you also need the 
interviews.
    Mr. Horn. They didn't do anything more in their memoirs 
that they did in sort of being a cat scratcher and media of 
doing in one of their people, and I don't know how President 
Reagan really was able to get through that, because they had 
three little cliques there, and I think some of those memoirs 
show it rather----
    Ms. Anna Nelson. Yes, they do. And I think the next 
generation won't understand what went on; and, therefore, 
they're going to be reading memoirs as, in fact, history.
    Mr. Horn. Let me ask Mr. Carlin and Mr. Whelan this. Is it 
correct that the Executive order applies only to Freedom of 
Information Act [FOIA], requests?
    Mr. Whelan. No, it's not. It applies to all records, ones 
that are requested by the former President.
    Mr. Horn. Is that your view of it?
    Mr. Carlin. That's one of the views. I don't think it's 
maybe as clear as it maybe should be, but in practice we'll 
certainly accept the interpretation of the drafters in terms of 
their intent.
    Mr. Shane. Mr. Chairman, may I just say that I find the 
answer puzzling. Because the Executive order says it's 
triggered at the appropriate time after the Archivist receives 
a request for access for Presidential records under 2204(c)(1). 
It strikes me as fairly unambiguous as to when the order 
applies.
    Mr. Horn. Is that the way you all feel on this?
    Mr. Scott Nelson. Mr. Chairman, I think that the President 
read a proper reading of the words in the order. I think as the 
Archivist explained, however, it may not really make that much 
difference since in the Presidential Records Act libraries, of 
which the Reagan Library is the first one, almost all the 
records that are being opened up are being opened up in 
response to requests, unlike in the prior libraries where the 
President's directions as to the order in which materials would 
be processed tended to govern. So to say that this applies to 
FOIA requests in the Reagan Library really means that it 
applies to almost any document that gets opened up in the 
Reagan Library.
    Ms. Anna Nelson. But one reason these FOIA requests are 
coming in is because there's uncertainty as to when systematic 
review will be completed. Generally, if you have a set system, 
for example, the State Department pretty much opens in 25-30 
years or no more than 30, then people are willing to wait a 
little bit. Not everyone. I know----
    Mr. Horn. Excuse me. I was curious. Maybe you can tell me 
this, that the First World War records were still bottled up in 
the Department of State, is that correct?
    Ms. Anna Nelson. They were in the archives. However, they 
were code records, as I understand them. I am sure Mr. Carlin 
could----
    Mr. Horn. How do you break something like that loose? I 
mean, that's just silly.
    Ms. Anna Nelson. Well, all records that are classified have 
to go through the agencies that classified them. The archive 
has no declassification authority.
    Mr. Carlin. That is correct, Mr. Chairman. In fact, as long 
as the original agency or in many cases there are several 
equities involved in a piece of classified information, as long 
as they feel they have justification for keeping it classified, 
it stays classified. We can do a lot of work at order to 
declassify if we're given guidance to do so, but if we get no 
guidance, we're totally dependent on the agency.
    Mr. Horn. That's interesting. You are saying we haven't put 
up a law to solve that problem?
    Mr. Carlin. The past administration's Executive order, 
which is still standing today, went a long ways toward pushing 
the envelope as far as declassification, setting a deadline. 
But that deadline included the fact that, if the creating 
agency had justification, they could raise that issue at the 
time and there was a process by which they could proceed and 
have their day in court, so to speak, and unless they were 
overruled at some point by another process the record would 
remain classified. And we do have classified records that go 
back to the early 20th century.
    Mr. Horn. I wonder, Mr. Archivist, whether you can give us 
some language to get at that problem. It just seems to me to 
have the First World War still around, I mean, was the Kaiser a 
secret spy for us and we might hurt German feeling or what? 
This is crazy time, that those documents aren't free and 
available.
    Mr. Carlin. I'm sure my staff will be very happy to work 
with your staff on creative ideas that might be of interest to 
this committee.
    Mr. Horn. Mr. Whelan, the Executive order requires the 
Archivist to automatically accept any claim of executive 
privilege by a former President even if the Archivist and the 
incumbent President, for that matter, believes the claim is 
beyond the scope of executive privilege. Is that reading 
correct?
    Mr. Whelan. I'm sorry, Mr. Chairman. Could I ask you to 
repeat the beginning of that question?
    Mr. Horn. The Executive order, the one we're talking about, 
requires the Archivist to automatically accept any claim of 
executive privilege by a former President even if the Archivist 
and the incumbent President, for that matter--in other words, 
you have got the former President and you have got the 
incumbent President and let's say the incumbent President 
believes the claim is beyond the scope of executive privilege. 
Is that reading correct? Who has it finally? Is it the 
incumbent----
    Mr. Whelan. In that event--I'm sorry.
    Mr. Horn. Isn't it basically incumbent, the President 
there, and they can overrule the former Presidents?
    Mr. Whelan. In that event, pursuant to the Executive order, 
the incumbent President directs the Archivist not to make the 
records available until such time as the incumbent President 
and the former President agree on disclosure.
    I should add, however, that in the event that the former 
President makes a claim that in the incumbent President's view 
is outside the scope of a constitutionally based privilege, the 
incumbent President, pursuant to this Executive order, need not 
concur in that privilege decision.
    Mr. Horn. Is this consistent with the President's 
obligation to see that the laws are faithfully executed?
    Mr. Whelan. Absolutely, Mr. Chairman.
    Again, the central recognition in the Nixon v. 
Administrator of General Services, case is that the former 
President has a constitutional privilege that he may invoke. 
President Bush has determined that the best way to provide 
procedures with respect to such privileges is pursuant to his 
Executive order. In the same way that the court recognized in 
Nixon v. Administrator of General Services, that the incumbent 
President must be presumed to be in the best position to assess 
the present and future needs of the executive branch, so 
President Bush has determined that this Executive order is the 
best way to respect the privilege claims that the former 
President has with respect to the records created during his 
administration.
    Now, again what we are trying to do here is create 
procedures for an orderly, workable process that in the end we 
believe will facilitate disclosure in an expeditious manner 
while respecting the former President's constitutional 
privilege. I think we can look to the lessons of history. As I 
indicated at the outset, under the old regime where the former 
President was under no legal obligation whatsoever to make his 
records available, former Presidents always did so, and there's 
simply no reason to anticipate that under the much more limited 
protections that the former President now has that he will seek 
to withhold more documents than he previously did.
    Mr. Ose. Mr. Chairman, can I chime in here for a minute?
    Mr. Horn. Ten minutes.
    Mr. Ose. Thank you.
    Mr. Whelan, I am not quite sure I understood your question. 
Under the old regime that would have been under President 
Reagan's Executive order, you suggested that the past 
Presidents were under no obligation to release. It's my 
understanding that they only had three bases on which they 
could refuse to release, that absent one of these three bases 
they could not refuse to release.
    Mr. Whelan. Congressman Ose, pardon me for the ambiguity. 
When I referred to the old regime, I meant the regime prior to 
the Presidential Records Act.
    Mr. Ose. Prior to 1978?
    Mr. Whelan. That's correct.
    Mr. Ose. Thank you for clarifying that.
    I want to follow up with Governor Carlin on something. 
Chairman Horn has asked about the 68,000 pages of records that 
President Reagan's administration is involved in. Do you have 
any information on where former President Reagan's 
representatives are in reviewing these records and whether they 
are likely to object to their release or have objected or have 
communicated in any manner whatsoever about whether or not to 
go ahead and release these records?
    Mr. Carlin. I don't think that there's any way I can answer 
that today, because I think they were, one, waiting for the 
final product and will now with the new Executive order make 
their decision which would allow them to object.
    Mr. Ose. Let me just make sure I got this right. There is a 
request for the release of these 68,000 pages that predates 
last Thursday?
    Mr. Carlin. Pardon?
    Mr. Ose. There's a request for these 68,000 pages from the 
Reagan administration days that was existing prior to last 
Thursday?
    Mr. Carlin. Yeah. There was 68,000 pages shortly after the 
first of the year that we advised both the former and the 
incumbent that these papers were ready for release.
    Mr. Ose. And did I just understand you to say that the 
Executive order that was issued last week will be applied 
retroactively to a request predating the Executive order?
    Mr. Carlin. It's my understanding that is the case, because 
these records have not been OKed, and that they will have the 
opportunity to insert--that's what my counsel has advised me 
that the interpretation will be, not ours, but how the 
implementation will be from the current administration, that 
the former will have the opportunity to exert executive 
privilege on those records. They can't go back to records that 
have already been released. We have 5.3 million papers that are 
out there, pages of records.
    Mr. Ose. I have a request in to you dated March 5 of this 
year for two items. Are you going to apply last Thursday's 
Executive order retroactively--now that you found those items 
retroactively to deny me access to those items?
    Mr. Carlin. Have we provided you access to them?
    Mr. Ose. Not yet. Are you going to apply this Executive 
order retroactively to two items that you've told us you found 
pursuant to a request of March 5 of this year?
    Mr. Carlin. I would have to check with staff. I would not 
want to comment for sure in terms--it would depend on exactly 
what steps had been taken and where we were in the process.
    Mr. Bellardo. If I could just add, we have been in--these--
if I remember correctly, these are records of the previous 
administration which there has been a congressional request 
for.
    Mr. Ose. Correct.
    Mr. Bellardo. I believe that this Executive order lays out 
an abbreviated process, and I would defer to Mr. Whelan on that 
in the case of special access requests, as opposed to what we 
are talking about in the Executive order for the period after 
12 years. So you would have a different set of processes for 
these special access requests. But I would defer to you.
    Mr. Ose. Mr. Whelan.
    Mr. Whelan. Congressman, let me first say, with respect to 
the 68,000 documents, that the administration is committed to 
processing those documents expeditiously and we expect that 
those documents will be available expeditiously.
    On your question----
    Mr. Ose. Before you leave that, what does that mean? Does 
that mean 30 days, 60 days? Because we have been waiting 9 
months.
    Mr. Whelan. Well, the wait that you referred to is I think 
the desire to process those records consistent with the 
procedures. And I don't know the timetable, but I think it will 
be relatively soon.
    Mr. Ose. What does that mean?
    Mr. Whelan. I am not in a position to say, sir. That's the 
information I have received.
    Mr. Ose. Could we direct a letter to somebody who's in a 
position to say, if you could give us their name?
    Mr. Whelan. I will provide a name for you.
    Mr. Ose. I appreciate that.
    Mr. Whelan. Now, with respect to your other question, I am 
not familiar with the particular matter you have in mind. I do 
not think that the concepts of prospective and retrospective 
are meaningful in this context. An Executive order applies from 
the date forward to the conduct of the executive branch, except 
as otherwise provided.
    Mr. Ose. You're telling me you are going to apply it 
retroactively?
    Mr. Whelan. I'm saying I am not familiar with the 
particular matter that you raised. I simply don't know about 
it.
    Mr. Ose. Well, the logic--I don't want to be argumentative. 
Never mind. I hear you loud and clear, and I can tell you that 
I am going to get those documents. OK?
    Now I want to go to Section 2204 of the Presidential 
Records Act--and this is directed to you, Mr. Whelan--
2204(c)(2), which you cite in your testimony that the act shall 
not be ``the section provides that the Act shall not be 
construed to confirm, limit, or expand any constitutionally 
based privilege which may be available to an incumbent or 
former President.''
    We've had some discussion whether this is a common law 
privilege or a constitutional privilege. More erudite people 
than me will resolve that.
    The question I have is, when we talk about confirming, 
limiting, or expanding any constitutionally based privilege, 
when I look at 2204(a) (1) through (6), it lists the items that 
are subject to restrictions, and down under item (a)(5) it 
talks about confidential communications. Then I look at the 
Executive order in paragraph--or section (2)(a) and it clearly 
does not talk about confidential communications between the 
President and his or her advisors but communications of the 
President and his or her advisors. The question I have is that 
you have eliminated or this Executive order eliminates the word 
confidential which to me is an expansion because it goes from a 
select group to the entire portfolio.
    Mr. Whelan. Congressman--I'm sorry.
    Mr. Ose. Can you reconcile that?
    Mr. Whelan. Certainly. Section 2204(a) does not purport to 
be a definition of constitutionally based privileges, and the 
fact that there may be some overlap between the provisions that 
govern the first 12 years and the scope of constitutionally 
based privileges does not create any conflict whatsoever. 
Obviously, communications protected by the constitutionally 
based privilege, if the President gives a communication on 
television, no one's going to claim that is protected. So I 
think you are going to find in practice constitutionally based 
privileges protect confidential communications, but there's no 
particular reason to borrow language from a section which has 
nothing to do with constitutionally based privileges in 
describing the order of----
    Mr. Ose. But it's your testimony, not mine. That's why I'm 
asking. It's not my testimony. It's yours.
    But I come back to my central question. Why was the word 
``confidential'' eliminated from the Executive order of last 
Thursday? Why was it expanded to all communications?
    Mr. Whelan. My point is there is no expansion, and I do not 
believe that--we are certainly not maintaining that 
nonconfidential communications--so far as I am aware of the 
scope of the privilege, it probably does not apply to such 
communications. But the fact that we have not included that 
word here is not some effort to edit a section of the 
Presidential Records Act that doesn't relate to this.
    Mr. Ose. I want to go back to a question I asked Mr. Shane 
earlier. Are you familiar with the 8th Circuit or the D.C. 
Court's rulings as it relates to, for instance, Mr. Lindsey's 
claims?
    Mr. Whelan. I am not. I am told, however, that the 
description that another panelist gave is not accurate, but I 
do not know that myself.
    Mr. Ose. Thank you, Mr. Chairman. I have got more.
    Mr. Horn. Go ahead. We're very liberal in this group.
    Mr. Ose has some questions here, and then we're going to 
wrap it up.
    Mr. Carlin. Mr. Chairman, would be it be possible for me to 
respond to an earlier question from Mr. Ose and then excuse 
myself, if at all possible?
    Mr. Horn. Sure.
    Mr. Ose. Are you going to talk about the retroactive----
    Mr. Carlin. Yes.
    Mr. Ose [continuing]. Application?
    Mr. Carlin. Yes, I am.
    Mr. Ose. We may not be out of here very soon.
    Mr. Carlin. I actually think you might be pleased in some 
respect. Because one of the things we've been told here today 
and that has been told to us by this administration over the 
last several weeks and months is that, in practice, this is 
going to work much better than your fears.
    I was advised by staff in the interim from the time you 
asked the original question that the two records you make 
reference to we have just found. They have not been shared with 
either the former or the incumbent. We will now test the 
current process. We will have an example now to take those two 
records quickly to the former--to the current incumbent, and 
the process would be that, if it follows like it should, that 
within 90 days we should have an answer and hopefully the 
records to you.
    Mr. Ose. Is it 90 days or is there some other time 
limitation?
    Mr. Carlin. Well, it could be 10 days, it could be 5, it 
could be immediately. But 21 days they're now saying.
    Mr. Ose. Under the new Executive order.
    Mr. Whelan. It's 21 days under section 6 of the new 
Executive order, that's correct.
    Mr. Ose. It used to be 30 and 30----
    Mr. Carlin. Oh, that's on special. Excuse me, sir. Yes, on 
special access it's to move faster. But what I'm saying is we 
will have an opportunity to find out with experience how this 
is really going to work and the record we will take to both 
sides and see how they want us to proceed.
    Mr. Ose. All right. I appreciate that. I just want to be 
very clear. I certainly want to look at those two documents.
    Mr. Carlin. And we have them. We've now found them, and we 
will follow the process, follow the law and Executive order to 
hopefully give you the opportunity to see them.
    Mr. Ose. I appreciate your cooperation.
    Mr. Chairman, if I might go on.
    Mr. Horn. You certainly can.
    Mr. Ose. Mr. Whelan, under section 4 of the Executive order 
last Thursday, there is a provision that, with respect to 
noncongressional requests, ``absent compelling circumstances, 
the incumbent President will concur in the privileged decision 
of the former President.'' With respect to congressional 
requests, however, no such standard is applied. In effect, 
therefore, the Executive order makes it easier for----
    Mr. Horn. Excuse me. The Archivist has another appointment. 
Will you have your deputy here so he can answer some of these 
questions that Mr. Ose might have?
    Mr. Carlin. Unfortunately, we have the same obligation 
we're trying to get to. I will have staff that will remain 
behind that are sworn in and would be able to testify, and 
obviously we will get any answers back post committee action if 
necessary.
    Mr. Horn. OK. Mr. Ose.
    Mr. Ose. To continue, in effect, therefore, the Executive 
order makes it easier for the incumbent and former Presidents 
to exercise independent vetoes over congressional requests. The 
question is, why are congressional requests under this 
Executive order treated, from my perspective, less fairly than 
noncongressional requests?
    Mr. Whelan. Congressman Ose, if I heard your question--I'm 
sorry, your voice came through softly. But I believe the 
opposite is the result. That is, section 4 operates as a rule 
that the incumbent President will concur in a decision of the 
former President to request withholding of records. There is no 
such rule with respect to requests under section 6. Therefore, 
that makes it easier for Congress.
    Mr. Ose. Does section 6 trump section 4?
    Mr. Whelan. Section 6 is independent of section 4.
    Mr. Ose. How do you resolve an incumbent President 
declining to provide access and Congress seeking to exercise 
its rights under section 6?
    Mr. Whelan. Ultimately, that is what we have the third 
branch for. The courts can decide that when push comes to 
shove.
    Mr. Ose. What's the legal authority for the establishment 
of the 21 and 21-day timeframe within the Executive order 
beyond what is permitted by the Constitution and the 
Presidential Records Act? What's the basis for the 21 and 21-
day windows?
    Mr. Whelan. Well, it is necessary to have procedures that 
accommodate the constitutional privileges of the former and 
incumbent Presidents. When you refer to time periods beyond the 
Constitution or beyond statute, I don't know what--sorry. I 
just don't know what you're referring to there.
    Mr. Ose. Let's focus on the statute then. The Presidential 
Records Act has a certain timeframe that is established in 
statute for a response back and forth. That's being changed. 
What is the basis for the change? All right. It was a 1989 
Reagan order that had the 30-day timeframe for a response and 
what have you and yet that's now being changed under this 
Executive order. And my question is, what's the legal authority 
for such a change?
    Mr. Whelan. Well, first of all, I would call to your 
attention that the 1989 Executive order does not simply provide 
a 30-day rule. Among other things, that 30 days can be extended 
to no limit. But, beyond that, as a purely legal matter, the 
answer to your question is that just as the President had the 
authority to issue the Executive order in 1989 so he has the 
authority to issue the Executive order in 2001.
    Mr. Ose. Does he have the authority to establish a review 
period of any length whatsoever?
    Mr. Whelan. Yes, he does. There is certainly no conflict 
with any applicable constitutionally valid statutory provision. 
Obviously, if there were such a conflict, that would be a 
different issue.
    Mr. Ose. Is it the position of the administration that 
under the Presidential Records Act the President has the right 
to establish a time window of whatever he or she determines?
    Mr. Whelan. As in 1989 so in 2001 the administration 
understands that the Presidential Records Act does not purport 
to set time limits with respect to assertion of 
constitutionally based privileges and with respect to 
procedures implementing those privileges.
    Mr. Ose. And that would be regardless of which committee is 
asking for it, whether it's Senate, House, what have you? I 
mean, the President can establish the timeframe, and the 
timeframe is the timeframe.
    Mr. Whelan. That's correct.
    Mr. Ose. OK.
    Mr. Horn. Well, is it correct in terms of, say, 30 days, 
that what the President could do is to do the 30 days or 
because of some overload or loss of archivists or whatever to 
change things that they might do less than that, or would they 
do more than that, in which case there being the article one, 
they're taking out of the Congress this? What do you think on 
that, either way?
    Mr. Whelan. Well, surely, Chairman Horn, the time limits 
need to be reasonable in terms of implementing the 
constitutional protections. I would emphasize that I believe 
there seems to be a reading of the 1989 Executive order that 
construes its time provisions in the light most favorable to it 
and a reading of this Executive order that construes the time 
provisions in the opposite way. I would call to your attention 
that section (3)(b) specifies that the former President shall 
review those records as expeditiously as possible. So there's 
certainly no effort here to delay.
    Mr. Ose. Is there a requirement under--excuse me, Mr. 
Chairman, I am sorry.
    Mr. Horn. No. Go ahead.
    Mr. Ose. Under FOIA is there a requirement for timely 
response to a request for records?
    Mr. Whelan. The Freedom of Information Act has its own time 
limits.
    Mr. Ose. So after 12 years there's a time statute, if you 
will, by which somebody has to respond to a request for 
records; is that correct?
    Mr. Whelan. I could not hear your question. I apologize.
    Mr. Ose. If I understand how this would work, is it under 
12 years under a FOIA request there is a statutory time window 
during which a response must be proffered?
    Mr. Whelan. That is my understanding. I believe from what 
the Archivist was saying there may be a question as to how 
those FOIA time limits are operating in practice.
    Mr. Ose. My understanding is that FOIA says there's 20 days 
to reply.
    Mr. Whelan. I believe that is the case, at least for 
requests that are not burdensome. I am not an expert on FOIA.
    Mr. Ose. If I understand correctly from the new Executive 
order, if Congress puts forward a request for records after 12 
days, the President can determine the period of time during 
which a response can be made. Am I correct or incorrect?
    Mr. Whelan. Under the Executive order----
    Mr. Ose. For a congressional request.
    Mr. Whelan. Yes. Under section 6, the former President 
shall review the records in question and within 21 days of 
receiving the notice from the Archivist indicate to the 
Archivist his decision with respect to any privilege.
    Mr. Ose. So it's a 21-day window for a request from 
Congress or the courts and it's a 20-day window under FOIA?
    Mr. Whelan. The FOIA simply does not apply and does not 
purport to apply to assertion of constitutional privileges 
under this act.
    Mr. Ose. I'm just trying to get to response windows. You 
know, I'm trying to figure out what difference, if any, there 
is in response windows under FOIA versus the Executive order. I 
mean, it's nominal, if anything. It's 20 days in one case and 
21 in the other, from what I understand; is that--I mean, the 
rest of the panelists? Professor Nelson.
    Ms. Anna Nelson. Well, the response is a letter saying we 
received your request. That's the response you have to get back 
in 10 or 20 days. If the information, for example, is security 
classified, you may wait 7 years. I have. You can wait 5 years. 
You can wait 30 days. But the request must be responded to to 
the public simply by a letter saying we've received your 
question. I hope that hasn't happened with Congress.
    Mr. Horn. It did, and then we did get some appropriations 
to move these things along in the various executive agencies.
    Ms. Nelson. Because many of them do not have the staff to 
handle that.
    Mr. Shane. Mr. Ose, just to follow up, both panelists have 
indicated that the practice may not, with regard to all 
agencies, may not comply in fact with the 20-day rule of FOIA. 
But the 20-day rule of FOIA--what the law requires is simply 
not that you get notice of the receipt of your request, the law 
actually does require that the agency tell you within 20 days 
whether it will comply with your request.
    That does raise an interesting question, because since the 
Presidential Records Act says that following the expiration of 
restricted access, requests are to be handled pursuant to FOIA 
except with regard to exemption 5, that could well be read as 
setting that same 20-day limit, which would mean on its face 
any procedure that requires the Archivist to wait longer than 
20 days directs him to violate the terms of the Presidential 
Records Act.
    Mr. Ose. I wonder whether the Executive would prosecute the 
Archivist under a situation such as that, not that I am 
suggesting that.
    Mr. Shane. I think it is not a criminal offense.
    But, Mr. Ose.
    Mr. Ose. You see my concern here is it seems to me that you 
can--the Executive can indefinitely extend the response period 
by claiming--or writing a new Executive order or whatever it 
is.
    Mr. Nelson. Mr. Ose, if I could respond to that concern. I 
think you will find in the terms of this Executive order, they 
don't even have to write a new Executive order to extend the 
time. All they have to do is request an extension of time, and 
it is automatically granted to them under this Executive order.
    So the 90-day period for responding to requests for access 
by a citizen is 90 days, unless the former President requests a 
further extension of time, in which case the Archivist is 
forbidden to release the records.
    As to the congressional request, it is 21 days unless 
either the incumbent or the former President says this request 
is burdensome and I would like more time, in which case they 
get the discretion to set the amount of time that they take to 
respond.
    And further, with respect to congressional requests, if 
either one of them says no, under this Executive order Congress 
is out of luck. So I think that is yet another respect in which 
the order departs from the language and spirit of the PRA. And 
I would further add that the notion that it is up to the 
President, by Executive order, to set all of these timeframes 
seems contrary to another provision of the PRA, which grants 
the Archivist the authority to promulgate regulations through 
the lawful notice and comment process for implementation of the 
act and, in fact, the Archivist has promulgated such 
regulations which themselves set timeframes during which claims 
must be made to restrict access, and the Executive order's 
timeframes are different from those set forth in the archives 
regulations.
    Mr. Whelan. Congressman Ose, if I may. The time limits 
under this Executive order are effectively identical to the 
time limits under the 1989 Executive order.
    On the second point, I simply do not see how the delegation 
of authority to the Archivist to issue regulations can be seen 
to detract from the President's inherent authority to issue 
Executive orders. The Archivist answers to the President. I 
don't think there is any serious legal issue there.
    Mr. Ose. I have but a couple more questions, if you will.
    Mr. Horn. Go ahead.
    Mr. Ose. We have talked about the legal basis for the new 
exemptions, whether it is common law or constitutionally based. 
There is clearly some disagreement there. I have asked why this 
word ``confidential'' was removed from the new Executive order 
and why the previous three exemptions are now four. Those are 
all legal questions.
    Let me go to policy. What is the policy basis for the two 
new broad categories of records with access restrictions, that 
being the--I got it here, don't leave me--the Presidential 
communications; and then, second case, legal advice/legal work. 
I mean, national security and deliberative process remain, law 
enforcement is dropped, the Presidential communications; and 
then in the second case, legal advice/legal work is added.
    What is the policy basis for that?
    Mr. Whelan. Congressman Ose, there is no expansion, 
therefore there is no policy basis for an expansion. This is 
just simply a different way of listing matters. It is a 
listing. Were it not exhaustive, there could be confusion as to 
what happens when there is an assertion of a constitutionally 
based privilege that isn't listed.
    Again, there is no expansion, there is no policy basis for 
the expansion.
    Mr. Ose. Is this new Executive order--I mean, I asked this 
question earlier, and I would hope that whether in writing or 
otherwise we can get a response. Is this new Executive order 
consistent with the Eighth Circuit's or the D.C. Court's 
decisions?
    Mr. Whelan. If you are asking me about the decisions 
before, which I told you I am not fully aware of, I obviously 
can't answer your question. This Executive order is fully 
consistent with applicable law.
    Mr. Ose. I think there is some question here about that. 
Professor Shane.
    Mr. Shane. Just to echo I think what Mr. Nelson said 
before, there may be examples. I think this is consistent with 
the Lindsey case in which a President's conversation with a 
senior advisor who is an attorney might be a Presidential 
communication and privileged on that ground.
    But, my understanding, my recollection--I confess I didn't 
read the case for today. My recollection of the case is, except 
for that Presidential communications privilege, there is not a 
separate constitutionally based attorney/client privilege; that 
otherwise the attorney/client privilege exists as it would 
between any client and any attorney.
    Mr. Ose. Thank you.
    Mr. Whelan, if I might, I would like to direct a written 
question at you, and then you can provide a response 
accordingly.
    Mr. Whelan. OK.
    Mr. Ose. Subsequent to this hearing--and I want to be 
clear; I am not averse to what you are trying to do, which is 
protect the President's ability to act. But I have a slightly 
different role here in the legislative branch, and I am trying 
to exercise that. And I will tell you, someday I am going to go 
back to that position of just being a citizen, ``just being a 
citizen,'' and I expect my leaders to share with me, to the 
extent that they can, every piece of information on which they 
base their decisions.
    I am just absolutely convinced that the American people can 
face up to that and are willing to do so. And I have to say 
that the way I read this Executive order last Thursday, with 
all due respect, it is an expansion of what had been the regime 
previously.
    With that, Mr. Chairman, I will yield back the rest of my 
time.
    Mr. Horn. I thank the gentleman. And I would like to thank 
the staff that put the hearing together: J. Russell George, the 
staff director and chief counsel of the Government Efficiency 
Subcommittee. On my left here is Henry Wray, the senior counsel 
for this; Earl Pierce, professional staff; Bonnie Heald, deputy 
staff director; Darin Chidsey, professional staff; Dan Wray, 
clerk of the Census Subcommittee, who has helped us in this 
hearing; Jim Holmes, intern; Michael Sazonov, intern; David 
McMillen, for the minority; and Jean Gosa for the minority.
    And thank you, reporters Mark Stuart and Lori Chetakian.
    Let me just note that this has been an enlightening 
hearing, and we must ensure that the spirit of this law, the 
Presidential Records Act, needs to be upheld. And in light of 
the issues raised today and research conducted by the committee 
staff, the administration should revisit the issue.
    In a meeting yesterday, with Judge Gonzalez, the counsel to 
the President, he graciously said that any suggestions the 
subcommittee might have would be welcomed. And we plan to take 
him up on that offer.
    And so we--any of you want to put some more written views 
for the hearing record, we will have 2 weeks for that. And with 
that, we are adjourned.
    [Whereupon, at 4:10 p.m., the subcommittee was adjourned.]
    [Additional information submitted for the hearing record 
follows:]
[GRAPHIC] [TIFF OMITTED] 80152.078

[GRAPHIC] [TIFF OMITTED] 80152.079

[GRAPHIC] [TIFF OMITTED] 80152.080

[GRAPHIC] [TIFF OMITTED] 80152.081

[GRAPHIC] [TIFF OMITTED] 80152.082

[GRAPHIC] [TIFF OMITTED] 80152.083

[GRAPHIC] [TIFF OMITTED] 80152.084

[GRAPHIC] [TIFF OMITTED] 80152.085

[GRAPHIC] [TIFF OMITTED] 80152.086

[GRAPHIC] [TIFF OMITTED] 80152.087

[GRAPHIC] [TIFF OMITTED] 80152.088

[GRAPHIC] [TIFF OMITTED] 80152.089

[GRAPHIC] [TIFF OMITTED] 80152.090

[GRAPHIC] [TIFF OMITTED] 80152.091

[GRAPHIC] [TIFF OMITTED] 80152.092

[GRAPHIC] [TIFF OMITTED] 80152.093

[GRAPHIC] [TIFF OMITTED] 80152.094

[GRAPHIC] [TIFF OMITTED] 80152.095

[GRAPHIC] [TIFF OMITTED] 80152.096

[GRAPHIC] [TIFF OMITTED] 80152.097

[GRAPHIC] [TIFF OMITTED] 80152.098

[GRAPHIC] [TIFF OMITTED] 80152.099

[GRAPHIC] [TIFF OMITTED] 80152.100

[GRAPHIC] [TIFF OMITTED] 80152.101

[GRAPHIC] [TIFF OMITTED] 80152.102

[GRAPHIC] [TIFF OMITTED] 80152.413

[GRAPHIC] [TIFF OMITTED] 80152.103

[GRAPHIC] [TIFF OMITTED] 80152.104

[GRAPHIC] [TIFF OMITTED] 80152.105

[GRAPHIC] [TIFF OMITTED] 80152.106

[GRAPHIC] [TIFF OMITTED] 80152.107

[GRAPHIC] [TIFF OMITTED] 80152.108

[GRAPHIC] [TIFF OMITTED] 80152.109

[GRAPHIC] [TIFF OMITTED] 80152.110

[GRAPHIC] [TIFF OMITTED] 80152.111

[GRAPHIC] [TIFF OMITTED] 80152.112

[GRAPHIC] [TIFF OMITTED] 80152.113

[GRAPHIC] [TIFF OMITTED] 80152.114

[GRAPHIC] [TIFF OMITTED] 80152.115

[GRAPHIC] [TIFF OMITTED] 80152.116

[GRAPHIC] [TIFF OMITTED] 80152.117

[GRAPHIC] [TIFF OMITTED] 80152.118

[GRAPHIC] [TIFF OMITTED] 80152.119

[GRAPHIC] [TIFF OMITTED] 80152.120

[GRAPHIC] [TIFF OMITTED] 80152.121

[GRAPHIC] [TIFF OMITTED] 80152.122

[GRAPHIC] [TIFF OMITTED] 80152.123

[GRAPHIC] [TIFF OMITTED] 80152.124

[GRAPHIC] [TIFF OMITTED] 80152.125

[GRAPHIC] [TIFF OMITTED] 80152.126

[GRAPHIC] [TIFF OMITTED] 80152.127

[GRAPHIC] [TIFF OMITTED] 80152.128

[GRAPHIC] [TIFF OMITTED] 80152.129

[GRAPHIC] [TIFF OMITTED] 80152.130

[GRAPHIC] [TIFF OMITTED] 80152.131

[GRAPHIC] [TIFF OMITTED] 80152.132

[GRAPHIC] [TIFF OMITTED] 80152.133

[GRAPHIC] [TIFF OMITTED] 80152.134

[GRAPHIC] [TIFF OMITTED] 80152.135

[GRAPHIC] [TIFF OMITTED] 80152.136

[GRAPHIC] [TIFF OMITTED] 80152.137

[GRAPHIC] [TIFF OMITTED] 80152.138

[GRAPHIC] [TIFF OMITTED] 80152.139

[GRAPHIC] [TIFF OMITTED] 80152.140

[GRAPHIC] [TIFF OMITTED] 80152.141

[GRAPHIC] [TIFF OMITTED] 80152.142

[GRAPHIC] [TIFF OMITTED] 80152.143

[GRAPHIC] [TIFF OMITTED] 80152.144

[GRAPHIC] [TIFF OMITTED] 80152.145

[GRAPHIC] [TIFF OMITTED] 80152.146

[GRAPHIC] [TIFF OMITTED] 80152.147

[GRAPHIC] [TIFF OMITTED] 80152.148

[GRAPHIC] [TIFF OMITTED] 80152.149

[GRAPHIC] [TIFF OMITTED] 80152.150

[GRAPHIC] [TIFF OMITTED] 80152.151

[GRAPHIC] [TIFF OMITTED] 80152.152

[GRAPHIC] [TIFF OMITTED] 80152.153

[GRAPHIC] [TIFF OMITTED] 80152.154

[GRAPHIC] [TIFF OMITTED] 80152.155

[GRAPHIC] [TIFF OMITTED] 80152.156

[GRAPHIC] [TIFF OMITTED] 80152.157

[GRAPHIC] [TIFF OMITTED] 80152.158

[GRAPHIC] [TIFF OMITTED] 80152.159

[GRAPHIC] [TIFF OMITTED] 80152.160

[GRAPHIC] [TIFF OMITTED] 80152.161

[GRAPHIC] [TIFF OMITTED] 80152.162

[GRAPHIC] [TIFF OMITTED] 80152.163

[GRAPHIC] [TIFF OMITTED] 80152.164

[GRAPHIC] [TIFF OMITTED] 80152.165

[GRAPHIC] [TIFF OMITTED] 80152.166

[GRAPHIC] [TIFF OMITTED] 80152.167

[GRAPHIC] [TIFF OMITTED] 80152.168

[GRAPHIC] [TIFF OMITTED] 80152.169

[GRAPHIC] [TIFF OMITTED] 80152.170

[GRAPHIC] [TIFF OMITTED] 80152.171

[GRAPHIC] [TIFF OMITTED] 80152.172

[GRAPHIC] [TIFF OMITTED] 80152.173

[GRAPHIC] [TIFF OMITTED] 80152.174

[GRAPHIC] [TIFF OMITTED] 80152.175

[GRAPHIC] [TIFF OMITTED] 80152.176

[GRAPHIC] [TIFF OMITTED] 80152.177

[GRAPHIC] [TIFF OMITTED] 80152.178

[GRAPHIC] [TIFF OMITTED] 80152.179

[GRAPHIC] [TIFF OMITTED] 80152.180

[GRAPHIC] [TIFF OMITTED] 80152.181

[GRAPHIC] [TIFF OMITTED] 80152.182

[GRAPHIC] [TIFF OMITTED] 80152.183

[GRAPHIC] [TIFF OMITTED] 80152.184

[GRAPHIC] [TIFF OMITTED] 80152.185

[GRAPHIC] [TIFF OMITTED] 80152.186

[GRAPHIC] [TIFF OMITTED] 80152.187

[GRAPHIC] [TIFF OMITTED] 80152.188

[GRAPHIC] [TIFF OMITTED] 80152.189

[GRAPHIC] [TIFF OMITTED] 80152.190

[GRAPHIC] [TIFF OMITTED] 80152.191

[GRAPHIC] [TIFF OMITTED] 80152.192

[GRAPHIC] [TIFF OMITTED] 80152.193



    THE IMPORTANCE OF ACCESS TO PRESIDENTIAL RECORDS: THE VIEWS OF 
                               HISTORIANS

                              ----------                              


                        THURSDAY, APRIL 11, 2002

                          House of Representatives,
                            Committee on Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:03 p.m., in 
room 2154, Rayburn House Office Building, Hon. Stephen Horn 
(acting chairman of the committee) presiding.
    Present: Representatives Gilman, Morella, Horn, Ose, 
Waxman, Maloney, Norton, Kucinich, Tierney, Schakowsky, Watson, 
and Lynch.
    Staff present: James C. Wilson, chief counsel; Robert A. 
Briggs, chief clerk; Robin Butler, office manager; Elizabeth 
Frigola, communications director; Joshua E. Gillespie, deputy 
chief clerk; Nicholis Mutton, assistant to chief counsel; 
Corinne Zaccagnini, systems administrator; Phil Barnett, 
minority chief counsel; Karen Lightfoot, minority senior policy 
advisor; David McMillen, minority professional staff member; 
Ellen Rayner, minority chief clerk; Jean Gosa, minority 
assistant clerk; and Earley Green, minority assistant clerk.
    Mr. Horn. A quorum being present, the Committee on 
Government Reform will come to order. I ask unanimous consent 
that all Members and witnesses' written and opening statements 
be included in the record. Without objection, so ordered.
    I ask unanimous consent that all articles, exhibits and 
extraneous or tabular material referred to be in the record. 
Without objection, so ordered. I ask unanimous consent that a 
binder of exhibits for this hearing be included in our record. 
Without objection, so ordered.
    Chairman Burton unfortunately is unable to be here and 
asked that I chair this important hearing, and I am reading now 
a statement of Chairman Dan Burton, April 11, 2002. The 
Chairman says,

    I regret that I'm unable to be present for this very 
important hearing. Unfortunately, there is a serious illness in 
my family, and I'm unable to be in Washington. As you are 
aware, I have strong feelings about archived Presidential 
records and the ability of the American people to obtain access 
to these valuable resources. It is my belief that Executive 
Order 13233 is not appropriate. The President is doing a great 
job, and he has my unconditional support. Unfortunately, he got 
some bad advice on this issue. This is not the first time I 
have said this. Last month we were finally given access to 
documents that President Bush had claimed were subject to 
executive privilege. Those documents relate to law enforcement 
corruption in New England and goes back to 1960's and that has 
resulted in $2 billion of civil litigation. It was right for 
Congress to fight that fight, and I'm grateful that we were 
finally able to reach an accommodation. It is my hope that 
Congress will show similar diligence when it comes to 
correcting the excesses of Executive Order 13233. I urge my 
colleagues, Republicans and Democrats, to support the 
legislation introduced this afternoon by Representative Horn. I 
particularly want to thank Representative Horn for chairing 
today's hearing and for his and his staff's hard work on this 
issue.

    From the chairman of the Committee on Government Reform, 
Dan Burton.
    Today's hearing involves public access to the records of 
our former Presidents. The Presidential Records Act of--are you 
speaking for the--well, I am going to wait until the ranking 
member is here. Do you want to--the ranking member today is the 
usual one, which is the ranking member from California, Mr. 
Waxman. And I will finish this one paragraph and then you have 
got a lot.

    Today's hearing involves public access to the records of 
our former Presidents. The Presidential Records Act of 1978 
declared for the first time that the official records of former 
Presidents belong to the American people. The act gave the 
Archivist of the United States custody of those records and 
imposed on the Archivist ``an affirmative duty to make such 
records available to the public as rapidly and completely as 
possible, consistent with the provisions of this act.''

    Now I am delighted to yield 5 minutes or whatever he needs 
to the gentleman from California, Mr. Waxman, the ranking 
member.
    [The prepared statement of Hon. Stephen Horn follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.194
    
    [GRAPHIC] [TIFF OMITTED] 80152.195
    
    Mr. Waxman. Thank you very much, Mr. Chairman. I want to 
commend you for holding today's hearing, and I want to thank 
this distinguished panel of witnesses for appearing at the 
hearing today.
    What is at stake is extraordinarily important: the public's 
right to know how its government operates. Unfortunately, the 
Bush administration is undermining the public's right to know 
and Congress's responsibility to oversee the administration. 
Vice President Cheney chaired a taskforce that developed the 
administration's energy policy. One year ago next week, 
Representative Dingell and I asked the General Accounting 
Office, the nonpartisan watchdog agency for the Congress, to 
find out who attended those taskforce meetings, who were the 
professional staff, who did the taskforce members meet with, 
and what costs were incurred in the process. The Vice 
President's office has refused to comply with that request, 
forcing the Comptroller General to go to court for the first 
time in the history of this country.
    Also 1 year ago, the Secretary of Commerce refused to 
release corrected census counts, claiming they were 
deliberative documents. As a result, I and 15 of my colleagues 
from this committee were forced to go to court. The court 
granted summary judgment in our favor on January 18, 2002, and 
ordered Secretary Evans to turn over the adjusted census data. 
Despite the court order, the administration continues to resist 
releasing this information.
    In October 2001, Attorney General Ashcroft issued guidance 
to agencies on implementing the Freedom of Information Act. The 
thrust of that guidance was when you have discretion, use it to 
withhold documents. You can be assured the Department of 
Justice will defend your decisions, wrote the Attorney General. 
The list goes on and on. One particularly objectionable aspect 
of this secrecy campaign is the Bush Executive order 
restricting access to Presidential records, which is the 
subject of this hearing. In this Executive order, the President 
tries to turn the law upside down, making it more difficult to 
get access to Presidential records. The first victims of this 
attack are the historians who pour through thousands of pages 
of documents to piece together the story about what happened 
within past administrations. Our witnesses today can each speak 
to how important these records are and were to their work.
    Ultimately, however, the real victims are the American 
people who are denied their right to an open government. There 
is a bipartisan consensus that the President's Executive order 
was a serious mistake, and I am very pleased that I will be 
joining with subcommittee Chairman Horn, subcommittee Ranking 
Member Schakowsky, and full committee Chairman Burton in 
introducing the Presidential Records Act Amendments of 2002. 
This legislation will nullify the President's Executive order 
and codify in statute procedures based on the Reagan Executive 
order that are designed to expedite the release of Presidential 
records. And I look forward to the testimony today, and I hope 
that my colleagues on this committee will join Representatives 
Horn, Schakowsky, Burton and me in supporting our important 
open government legislation. Thank you.
    [The prepared statement of Hon. Henry A. Waxman follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.196
    
    [GRAPHIC] [TIFF OMITTED] 80152.197
    
    Mr. Horn. I thank the gentleman, and now the gentlewoman 
from New York, Mrs. Maloney.
    Mrs. Maloney. Thank you very much. I feel very strongly 
about this. It really, really flies in the face of everything 
we are doing. Currently right now I am in a markup of the 
Financial Services Committee, which is attempting to address 
the abuses in the Enron scandal, and one of the prime focuses 
is disclosure, information, transparency, and what are we doing 
here but reversing this. Presidential papers and other 
documents should not be kept secret, and elected officials have 
to remember we are public servants. We are elected to serve, 
and our work belongs to the people of this country who either 
voted for us or did not vote for us. And I feel that this is so 
important that we see a bipartisan leadership coming together 
with my good friend subcommittee chairman, Mr. Horn, who has 
championed many good causes, Chairman Burton, we have had many 
disagreements with him, with the Ranking Member Waxman and 
other members of the committee, but he joins us, along with 
Ranking Member Schakowsky, with legislation to nullify or 
dissolve this ill-conceived Presidential Order 13233. And I am 
extremely proud to be a co-sponsor of it.
    I would like to say that the leading opinion molders in 
this country agree, the Los Angeles Times, on this action. On 
November 1st they called it ``an attack on the principle of 
open government.'' They called it ``the dark Oval Office.'' The 
Washington Post called it a ``flawed approach on records.'' The 
USA Today in their editorial called it ``self-serving secrecy, 
Bush seeks to thwart release of the administration papers.'' 
And the New York Times called it ``cheating history.''
    So I would like to request that all of these editorials in 
support of the public's right to know, that it be placed in the 
record.
    And I----
    Mr. Horn. Without objection.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.198
    
    [GRAPHIC] [TIFF OMITTED] 80152.199
    
    [GRAPHIC] [TIFF OMITTED] 80152.200
    
    [GRAPHIC] [TIFF OMITTED] 80152.201
    
    Mrs. Maloney. Thank you, Mr. Chairman. And it is often 
quoted that Supreme Court Justice Louis Brandeis said, and it 
is as correct today when he said it many years ago, ``sunshine 
is the best disinfectant,'' and there is a public right to 
know. And as the people's representatives, we must never forget 
this fundamental right.
    I believe that Ranking Member Waxman outlined some 
outrageous examples of--even with a court order to release the 
information on the census that the current administration is 
thwarting that. This is information that the taxpayers pay for 
that they should have, and I regret that I am in a banking 
committee Financial Services Committee markup on really 
basically this same point, transparency, the openness of 
information. I support this legislation, and I appreciate very 
much the leadership moving this hearing forward. Thank you.
    [The prepared statement of Hon. Carolyn B. Maloney 
follows:]
[GRAPHIC] [TIFF OMITTED] 80152.202

[GRAPHIC] [TIFF OMITTED] 80152.203

[GRAPHIC] [TIFF OMITTED] 80152.204

    Mr. Horn. I am shocked that you would go for financial 
matters rather than morality. So--but I----
    Mrs. Maloney. We are trying to put morality into financial 
matters. We are putting morality into financial matters and 
really the theme is disclosure, disclosure, disclosure, 
transparency. And then to move and try to block records that 
belong to the people that were created with their tax dollars, 
I find absolutely outrageous. And in fact I think we should 
have two or three more hearings on it. Thank you. Bye bye.
    Mr. Horn. Do you want to do them this afternoon?
    OK. I will now yield to the gentleman from Massachusetts, 
Mr. Tierney.
    Mr. Tierney. Thanks, Mr. Chairman. Thanks for having this 
hearing, highlighting an area that we all think is extremely 
important. Thank you to all the witnesses for listening through 
all these opening statements before we hear from you, and I 
will say up front that I also have to leave, not to go to the 
Financial Committee, but to deal with a hearing before the Ways 
and Means Committee on welfare reform and I do not want to try 
to equate or rank one above the other. It is just that I have 
to be there. But what you said and what you provided in your 
written remarks are certainly helpful and useful, and I thank 
you for that and you can trust that they will be reviewed and 
taken to heart. We have got a serious problem with this 
administration, as I think you have heard from a number of 
people on both sides of the aisle, with this proclivity toward 
secrecy, toward keeping things under wraps, toward not sharing 
with the American public or even Congress information and 
documents that ought to be made available and that would be 
very useful for the democratic process if they were made 
available. This morning members of this committee in fact 
received a so-called briefing from Homeland Security Director 
Tom Ridge, but unfortunately this briefing was somewhat less 
than that. It was also held behind closed doors when it should 
have been held in full public view. The committee was not 
seeking classified information from Governor Ridge, and there 
really was no reason why he could not have subjected himself to 
the congressional questioning and to the public light when we 
have such a serious issue as homeland security. Because of his 
vast responsibility on operational, budgetary and planning 
functions, it should have been a formal hearing. Yet the 
administration, as in other matters, has stonewalled efforts to 
achieve that goal.
    We should not necessarily be surprised, I guess, that the 
White House is taking these actions. For more than a year, 
Members of Congress and public interest groups have struggled 
to obtain from this White House documents related to its energy 
taskforce and I think Mr. Waxman went into that in some detail 
of how it took a lawsuit just to get a small amount of 
documentation that should have been provided and there is much 
more that should be released. They will confirm the worst fears 
of environmentalists, that when they were preparing the energy 
plans, the White House listened almost exclusively to energy 
groups and industry heavyweights and largely ignored the 
concerns of the environmental community. So it is no surprise, 
I guess, that the administration sought to hide their 
decisionmaking process, but at the same time, it has shown the 
administration's unwillingness to publicly disclose other 
important information, including meetings between 
administration officials and Enron executives. And in a memo to 
executive branch officials, the Attorney General stated his 
support for the rejection of Freedom of Information requests, 
and that is something I think is extraordinary and, before his 
statement, unheard of.
    Even more egregiously in some sense is the administration's 
invocation of executive privilege over Justice Department 
documents that this committee sought for its efforts to uncover 
why several men were sent to prison in Massachusetts for more 
than 30 years when Federal law enforcement officials knew of 
their innocence. It is an absolute disgrace that the 
administration has claimed executive privilege and kept from 
the public light documents that would shed information on how 
we might make sure that something like that never happens 
again.
    When last November the signing of the Executive Order 13233 
was completed, the administration served notice that it would 
work hard to maintain secrecy over its White House documents, 
not only of this White House but for past Presidents, and it is 
surprising that this President would be even more concerned 
about past Presidents' documentation than they appear to be, 
but it is simply wrong for him to assert authority over those 
documents if it is being done for political reasons. So I am 
pleased that you all have come here today to share your 
perspective on this and your wealth of information and 
knowledge. I think you can certainly speak to the importance of 
access to Presidential records. This is just one area that I 
join my colleagues in hoping the administration will reverse 
its course and allow the public access to information to which 
it is entitled. I want to thank you all for being here. Again I 
apologize for my early exit, but I want you to really 
understand that what you provide here today is useful and 
helpful and very much appreciated. Thank you.
    Mr. Horn. I thank the gentleman. Does the delegate from the 
District of Columbia want to file a statement as read or----
    Ms. Norton. I would like to make a few remarks, Mr. 
Chairman.
    Mr. Horn. OK. It will be about 3 or 4 minutes, if we could. 
We need to get to the----
    Ms. Norton. Well, indeed I apologize that I am going to 
make a few remarks because of the importance of this hearing, 
but I have another hearing simultaneously here and in the 
Senate. But I had to stop by this hearing to say first I am 
pleased to be a co-sponsor of your bill, Mr. Chairman, to amend 
the Presidential Records Act and to commend you for having this 
panel come to testify today. Perhaps all of us are students of 
history. My two degrees in history I think have been perhaps 
more important to me than my law degree. It is with some 
understanding of history that we should approach our daily 
tasks here, and we do not always get to do that, to have that 
understanding of history. Of course, we turn to those who look 
deeply into the record. We are here talking not about current 
history but about the--current matters, but about the kind of 
understanding of the past that should inform any responsible 
legislature. It is time that these matters were clarified as 
they can be clarified only through legislation. I think we will 
be all the wiser when we hear today's testimony. I apologize to 
today's witnesses for whom I have the most profound respect. I 
assure them that I will be looking closely at their testimony. 
Thank you, Mr. Chairman.
    Mr. Horn. I thank the gentlewoman. I want to give a few 
more paragraphs, and then we will get to the Members looking at 
us and the very distinguished--oh, do you want to make a 
statement?
    Ms. Schakowsky. I would like to.
    Mr. Horn. Yes. Great.
    Ms. Schakowsky. Thank you, Mr. Chairman. I appreciate it. 
Last November, President Bush tried to subvert the intent of 
Congress when it passed the Presidential Records Act. Today we 
begin the process of undoing that subversion. I am pleased that 
we have worked together to produce the bipartisan bill that 
addresses public access to Presidential records. The 
Presidential Records Act was passed by Congress in 1978 to 
assure that Presidential records created at the expense of the 
public became available to the public 12 years after the 
President left office. This law was designed to inhibit the 
kind of secrecy and dirty tricks that characterized the Nixon 
re-election campaign. If officials know their acts will become 
a matter of public record in the future, Congress reasoned, 
they will alter their behavior today. If officials know their 
acts will become a matter of public record in the future, 
President Bush reasons, they will not speak honestly. I find 
that formulation troubling. What is it about the advice the 
President's advisers are putting forward that they do not want 
the public to know? Did the President and his advisers have 
conversations about Enron that would damage his reputation if 
they became public? Have his advisers told the President that 
his tax cut benefits the wealthy while endangering the Social 
Security Trust Fund? Are the President's advisers telling him 
that they have developed an energy policy that will fatten the 
wallets of his oil buddies in Texas? If so, I can understand 
why they would want to keep their advice secret.
    However, if the President's advisers are giving him their 
honest opinion about what is best for the country, I do not 
understand why they would want to hide. The opinion of the 
President's advisers is generally well known. The Bush 
Executive order permits an incumbent President to block the 
release of papers from a former administration, even if that 
President has asked the papers be released.
    The Bush Executive order allows a former President to claim 
executive privilege to block the release of documents without 
any independent review of the legitimacy of that claim. The 
order even allows a former President's family to make this 
claim after the President's death. The Bush Executive order is 
not about protecting state secrets or homeland security. Those 
concerns are already addressed in the law. Rather, this 
Executive order allows the Bush administration to lock away 
documents that would reveal how Presidents Reagan and George 
H.W. Bush handled affairs in Afghanistan. This Executive order 
can be used to make sure the rest of the Iran contra story is 
never told. The more the public knows about how its government 
works, the stronger the government and the safer our democracy. 
This attempt to undo the Presidential Records Act is one more 
act by this administration to close the curtain between the 
government and the public, an act Congress cannot allow to 
continue. Thank you.
    Mr. Horn. I am going to set the stage of this. The records 
of former President Reagan are the first to become subject to 
the Presidential Records Act. Near the end of his 
administration, President Reagan issued an Executive order that 
established a process for former and incumbent Presidents to 
review records before they are released to the public under the 
act. The purpose of this review was to permit a former or 
incumbent President to claim executive privilege in the event 
he felt that a particular record should not be made public. 
Basically, the Reagan Executive order provided for the release 
of records unless the former or incumbent President claimed 
executive privilege within 30 days after being notified by the 
Archivist of the United States of the proposed release of those 
records.
    On November 1, 2001, President Bush replaced the Reagan 
order with a new order, Executive Order 13233. This new order 
creates a much more restrictive process. For example, it gives 
both the former and incumbent President veto power over the 
release of records. It also provides an open-ended review 
process that permits either the former or incumbent President 
to prevent the release of records indefinitely, even without 
claiming executive privilege.
    Finally, the new order requires the Archivist to 
automatically honor any claim of executive privilege by a 
former President regardless of merit. Last November the 
Subcommittee on Government Efficiency, Financial Management and 
Intergovernmental Relations, which I chair, held a hearing on 
the implementation of the Presidential Records Act. Witnesses 
at our hearing raised serious policy and legal concerns over 
the Executive Order 13233. Since the hearing, many historians, 
archivists and others have written to me expressing similar 
concerns. Based on those concerns, I have drafted that bill 
that would replace Executive Order 13233 with a statutory 
process for reviewing records for possible claims of executive 
privilege. My bill preserves the constitutional right of a 
former or incumbent President to claim an executive privilege.
    However, unlike the Executive order, it does so in a way 
that I believe is fully consistent with the letter and the 
spirit of the Presidential Records Act. I am introducing my 
bill today. I am pleased that a number of members have joined 
me as original co-sponsors of the bill, including Chairman 
Burton and Ranking Committee Member Mr. Waxman and subcommittee 
member, the ranking member, Ms. Schakowsky. I believe that this 
bill represents a reasonable and fair solution to the problems 
created by the Executive Order 13233. I hope that the committee 
will consider the bill in the near future.
    At today's hearing, we will receive testimony from noted 
historians on the importance of access to Presidential records 
and the impact of Executive Order 13233. I welcome today's 
witnesses and look forward to their testimony.
    Gentlemen, the way this committee functions, both the full 
committee and the subcommittee are oversight committees, and 
therefore we ask all witnesses to take the oath, and if you and 
anybody that supports you, will stand and put your right hands 
up.
    [Witnesses sworn.]
    Mr. Horn. OK. The clerk will note that all 4 affirmed.
    And we will begin now as the agenda has with Robert Dallek, 
the very distinguished author of the 1960's and the 1970's and 
the 1980's, the author of Lone Star Rising: Lyndon Johnson and 
His Times, 1908-1960; Franklin D. Roosevelt, An American 
Foreign Policy, 1932-1945; Hail to the Chief: The Making and 
Unmaking of American Presidents. And Mr. Dallek, I believe, is 
still at UCLA.
    Mr. Dallek. No.
    Mr. Horn. You are not. OK. You mean you do not like our 
sunshine in California?
    Mr. Dallek. No. I retired and----
    Mr. Horn. Oh, you did?
    Mr. Dallek. And seized one of these packages. I've been 
teaching at Boston University.
    Mr. Horn. Go ahead.
    Mr. Dallek. Well, Mr. Chairman, if you don't object, I 
would like to defer to my colleague, Professor Stanley Kutler, 
and let him lead off, because, sir, he has been a driving force 
through the years in working to open Presidential materials, 
and he was at the center of the struggle to open the Richard 
Nixon tapes. And as perhaps just a symbolic expression of 
deference, I'd like to ask him to speak first.
    Mr. Horn. Stanley Kutler is professor at the University of 
Wisconsin Law School, author of Abuse of Power: The New Nixon 
Tapes, and The Wars of Watergate.

STATEMENT OF STANLEY KUTLER, PROFESSOR, UNIVERSITY OF WISCONSIN 
                           LAW SCHOOL

    Mr. Kutler. Thank you. Thank you, Bob. I'm still younger, 
though. But I just want to--you have the formal testimony, and 
let me just make a few remarks here. The 1978 Presidential 
Records Act is one of those rare exceptional moments in 
American legislative history when we get the compromise of 
competing ideas that seems to work very, very well. There were 
those who said, as of 1978, that Presidential papers, all 
papers of public officials, belong to the man or the woman, and 
they were theirs to deal with and dispose of as they saw fit. 
There were those who argued that, no, these are public records 
generated by public funds, and therefore the public should have 
access to them at some date certain.
    There were some who wanted immediate release, too. Between 
the advocates on the two extremes, we sort of found a middle of 
this compromise of 12 years, of waiting till a President has 
left office for 12 years and then we would have access to the 
papers.
    12 years seemed to be reasonable and fair, and as I said, 
the idea seems to have been relatively settled. But now 
suddenly in 2001, the President's counselors have said no. One 
has been quoted as saying that, well, 12 years was not enough, 
and I asked at one point, well, 15 years, 20 years, 50, 100 
years? And I had no answer, because I think any is too many in 
this man's mind.
    So it seems to me that we're now at a special moment in 
terms of whether or not we're going to retain this kind of 
openness at a reasonable time.
    I'm a member of both the law and the history faculties, and 
I have taught constitutional and legal history for many more 
years than I care to remember. I am delighted that in this 
action today, what we're here for, is that Congress seems to 
wish to assert itself in matters of legislative prerogatives. 
The most sophisticated course in constitutional law to 
elementary courses in public school civics, the lesson is that 
Congress enacts laws. The Presidents' execute them. I am 
suggesting in my formal testimony that President Bush has a 
special personal interest in closing Presidential papers, an 
action that has nothing whatsoever to do with national 
security. It is hardly a secret at this point that the 
Executive order had been in the making since January 21, 2001, 
long before September 11th. President Bush's attempt has 
resulted also, I think, in the most luxuriant interpretation of 
executive privilege I have ever encountered. Fair-minded and 
prominent people have fought over the parameters, the extent of 
executive privilege. They will continue to do so, to be sure. 
But we now have extended these parameters in an extraordinary 
way. The Presidents' heirs and designees can exert executive 
privilege from generation unto generation, it seems. And if 
that is not enough, the order conveniently extends to Vice 
Presidents, past and present.
    My understanding is that executive privilege lies with the 
incumbent officeholder and does not follow him into retirement 
or to the grave and beyond.
    The effect of this Presidential order, quite simply, is to 
overturn an act of Congress, an act that followed all the 
procedures as dictated by the Constitution. The act--the effect 
of the Executive order has been to--its effect has been to 
nullify the 1978 law and has brought us together here today in 
what I think is strictly a nonpartisan issue.
    [The prepared statement of Mr. Kutler follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.205
    
    [GRAPHIC] [TIFF OMITTED] 80152.206
    
    [GRAPHIC] [TIFF OMITTED] 80152.207
    
    [GRAPHIC] [TIFF OMITTED] 80152.208
    
    [GRAPHIC] [TIFF OMITTED] 80152.209
    
    [GRAPHIC] [TIFF OMITTED] 80152.210
    
    [GRAPHIC] [TIFF OMITTED] 80152.211
    
    [GRAPHIC] [TIFF OMITTED] 80152.212
    
    [GRAPHIC] [TIFF OMITTED] 80152.213
    
    Mr. Horn. We thank you for that statement, or are you 
complete?
    Mr. Kutler. No. I'm complete.
    Mr. Horn. We will now go back to Richard Reeves, the author 
of ``President Nixon: Alone in the White House and President 
Kennedy, A Profile of Power.''

STATEMENT OF RICHARD REEVES, AUTHOR OF ``PRESIDENT NIXON: ALONE 
   IN THE WHITE HOUSE'' AND ``PRESIDENT KENNEDY: PROFILE IN 
                            POWER''

    Mr. Reeves. Thank you. It's a privilege to be here. It's a 
privilege to be an American citizen.
    In the Declaration of Independence, the fourth complaint 
against the King of England and why we should break away reads, 
``his call together legislative bodies at places unusual, 
uncomfortable and distant from the depository of the public 
records for the sole purpose of fatiguing them into compliance 
with his measures.''
    That was Thomas Jefferson in 1776. There have been since 
that time first a closing and then an opening, somewhat by 
accident, I think, of the public's right to know. On November 
1st when the President signed Executive Order 13233, I sent him 
copies of my books on President Kennedy and President Nixon 
saying that I thought they might be worth a lot of money some 
day as an artifact, because if this law stands, books like this 
will never be written again. The classification system and--
that has gone on over the years has touched the comic. I always 
thought that the best classification I saw to keep from 
historians and then from the public was a copy of Evergreen 
Magazine in the Kennedy Library with an inscription from 
Brendan Behan. The Evergreen, for those of us who remember, was 
considered something of a dirty book at the time, and 
apparently it was classified to keep it away. For 25 years, the 
U.S. Government said it would not be in the interest of the 
people to read these words: To my lantsman John Kennedy, best, 
Brendan Behan. For 25 years that was classified and kept.
    This is James Madison writing in 1822: ``A popular 
government without popular information or the means of 
acquiring it is but a prologue to a farce or a tragedy, or 
perhaps both. Knowledge will forever govern ignorance, and a 
people who mean to be their own Governors must arm themselves 
with the power which knowledge gives.''
    Now, not everyone agreed with that, including Presidents. 
President Lincoln's papers, for instance, did not become public 
until 1949. To someone like me, and I think other people at 
this table, the Presidential papers in fact are self-
protecting. First, the Presidents and their governments have 
the right, the power to exclude most anything on the grounds of 
national security, on executive privilege or personal privacy, 
and in fact there are too many papers. 44 million papers in the 
Nixon archives, 50 million in the Reagan archives, where I now 
work in Simi Valley, CA. So that it takes a great deal of time 
and then a great deal of interviews and study to determine 
which papers you should look for. I think historians, and I'm a 
journalist, really, a reporter, understand the reason that some 
papers have to be kept secret for political embarrassment and 
such, and also Presidential papers are a commodity. They are 
extremely valuable, and they can be sold. They can be used for 
various reasons.
    It is my opinion that our government works on a system of 
deferred compensation. Yes, the pay is not very good to be in 
the government, but you get the money later. I'm told President 
Clinton made more than $15 million last year. That was almost 
as much as George Stephanopoulos made.
    So the documents as private property are very valuable to a 
President. Three of us here, particularly Dr. Kutler, have 
worked on the Nixon papers, and without seeing most of those 
papers, I think it is hard to understand even now what happened 
during the Nixon administration. By that I don't mean the 
scandals of Watergate, as much as I mean a systematic attempt 
to skirt the checks and balances of the U.S. Constitution. 
General Charles DeGaulle of France was a great role model for 
President Nixon. He governed more or less by edict, but most of 
us here are old enough to realize that President Nixon's two 
great accomplishments, the opening to China which changed the 
politics, geopolitics of the world, and the--taking the United 
States off the gold standard. He really was the godfather of 
globalization in some ways. What we tend to forget, and what 
historians have had to try to find out, is that both of those 
world-changing edicts from a President of the United States had 
never been considered in public in this country. The Congress 
was not considered. The people were not considered. The press 
were not considered. Only four men, Nixon and Kissinger, in the 
case of China, and Nixon and John Connolly in the case of the 
new economics of the time knew. We learned of this when the 
President appeared on television and announced it as a fete 
accompli. It is only through searching the records that you can 
realize what it is that happened and what was actually so 
different about that President. And no matter what archival 
system is used, the families and the former aides will try to 
protect their reputation, which is what you would expect of 
them, and you would expect of us to try to bring that into more 
objective light. They were greatly influenced, the American 
Presidents of our generation, by Winston Churchill, who once 
said, ``my task, my goal is to make the history and then write 
it before anyone else does.''
    That is one of the reasons Richard Nixon was keeping tapes. 
There is no doubt also that the world is changing, and that we 
have to take into account what will happen. Globalization 
brought great benefits, I think, to the economy of the world, 
certainly to the economy of the United States. It also, as we 
learned to our regret, made terror global, and it also is in 
the process of making law international--more international 
than Americans generally like to see. I don't think that 
President Bush wants to sit in The Hague 20 years from now 
explaining why he signed a certain paper involving certain 
people in the Middle East, and I think that is something the 
Congress should consider in terms of why this move is being 
made so strongly right now by the White House and to evaluate 
those arguments within a new context.
    Luckily for us, history has been changed by the greatest--
the great historian of the 20th century is the Xerox machine. 
It is now pretty hard to hide records unless you go to great 
efforts, and these are the great efforts that we are seeing. I 
love what I do, and I know that the people I'm lucky enough to 
sit here with people who love their work. I mean, it is--going 
through the archives is like sloshing through the mud of a 
mine, and every once in a while stumbling on a diamond, every 
once in a while finding out, for instance, that John Kennedy 
knew of the Berlin Wall plans before the wall was built, and he 
thought it would prevent a war. The communists had their 
problem, which was their best and brightest fleeing. We had our 
problems, that we had only 15,000 soldiers in Berlin, and we 
could not defend either Berlin, Germany or Europe without using 
nuclear weapons. And President Kennedy did not want to use 
nuclear weapons. The wall, Check Point Charlie and all that 
solved that. President Kennedy emphasized in both public and 
private that as long as occupation rights were honored, the 
fact that American officers could drive through East Berlin, 
the United States had no objection to what the East Germans or 
the Russians did on their side of the border. That was not 
understood at the time, because had Kennedy gotten up and 
announced that, I suspect there would have been an attempt to 
impeach him. But, in fact, it is what prevented a war, and as 
he said privately, better a wall than a war. No one knew that, 
and that is the job, I think, of historians to try to find out 
what that meant.
    There are many ways now to avoid it, and it involves not 
only this act. It involves a system that Dr. Kissinger set up 
basically to hide his papers in the Library of Congress, and 
since I'm doing a book now on President Reagan using his 
papers, I would--I'll close with just a note that our--a 
friendly note I received from the Library of Congress when I 
applied to look at the papers of Alexander Haig, who was, after 
all, the Secretary of State of the United States during that 
period. And once, or so he said, even ran the government. This 
is what you get under the kind of legislation--or the kind of 
process that the Bush administration has put in. I'll end with 
this:
    ``Dear Mr. Reeves, we have been notified that your request 
for permission to consult Alexander Haig's papers have been 
denied. Please let me know if we can be of any further 
assistance. Thank you.''
    Mr. Horn. Could you tell me who signed that letter?
    Mr. Reeves. It was signed by John Haynes who is the Chief 
of the Documentary Section of the Library of Congress.
    Mr. Horn. Did you try the Librarian of Congress?
    Mr. Reeves. I haven't gone there. I was giving the Library 
of Congress a lecture that year. I didn't bring it up. The fact 
of the matter, he's going to say the same thing, because 
Kissinger and Haig figured out a way to hide their papers, not 
only from you and from us, but from the National Archives.
    Mr. Horn. Well, an endowed chair has been in the 
Congressional library of Mr. Kissinger's.
    Mr. Reeves. They don't let us see that.
    Mr. Horn. We now have our last presenter----
    Mr. Reeves. We have forgotten our first presenter.
    Mr. Dallek. I only deferred for the moment.
    Mr. Horn. OK. Bob.

   STATEMENT OF ROBERT DALLAK, AUTHOR OF ``LONE STAR RISING: 
   LYNDON JOHNSON AND HIS TIMES, 1908-1960,'' ``FRANKLIN D. 
 ROOSEVELT AND AMERICAN FOREIGN POLICY, 1932-1945,'' ``HAIL TO 
  THE CHIEF: THE MAKING AND UNMAKING OF AMERICAN PRESIDENTS''

    Mr. Dallek. Thank you. Thank you, Mr. Chairman, for 
inviting me to testify at this hearing about your proposed 
legislation, nullifying President Bush's Executive Order 13233, 
revising procedures for release of Presidential documents 
established under the Presidential Records Act of 1978. As I 
understand matters, the Executive order would give a sitting 
President, as well as past Presidents and their heirs the power 
to withhold Presidential documents for as long as they believe 
necessary. This control of historical papers would also extend 
to Vice Presidents.
    I read President Bush's Executive order as essentially 
nullifying earlier legislation, making Presidential papers 
public rather than private property, and that of course has 
been a long struggle for historians to assure that these papers 
should be in the possession, so to speak, the ownership of the 
public rather than the Presidents themselves.
    If Mr. Bush's order is left standing, I believe it will 
return us to the era when Presidents owned and controlled 
access to the documentary record generated during their 
administrations. The committee's amendment to the Presidential 
Records Act would eliminate this return to a state of affairs 
the Congress ended in the 1970's. My work over the last 30 
years in five Presidential libraries, FDR, Truman, Eisenhower, 
Kennedy and Johnson, for books on Presidents Roosevelt, Kennedy 
and Johnson, leaves me unconvinced that President Bush's 
Executive order, as the administration alleges, will contribute 
to a more orderly release of Presidential documents, 
particularly greater assurance against breaches of national 
security and of privacy rights to the country. The President's 
directive will make the study and understanding of recent 
Presidential history more difficult. It will undermine Justice 
Felix Frankfurter's definition of government, ``as the 
government which accepts in the fullest sense responsibility to 
explain itself.''
    Attorney General Ashcroft has asserted that the Executive 
order was essential for protecting, ``national security, 
enhancing the effectiveness of our law enforcement agencies, 
protecting sensitive business information and, not least, 
preserving personal privacy.''
    I find the Attorney General's statement unconvincing. The 
1978 Presidential Records Act makes ample provision for the 
protection of both national security and personal privacy. More 
to the point, in my 30 years of work in Presidential libraries, 
I have never heard of a breach of national security by 
premature release of Presidential documents, nor do I know of 
any notable violation of personal privacy by an unauthorized 
release of documents in the holdings of the libraries. Indeed, 
next year will be 40 years since the death of President 
Kennedy, and in the coming week, I'm completing a biography of 
President Kennedy. I'm going to have access to President 
Kennedy's medical records. I'll be the first biographer or 
historian to gain access to these materials. I shouldn't be the 
only one. This should have been available a long time ago so 
that we could have known a great deal more about President 
Kennedy's medical history, but better late than never, as they 
say.
    I will leave it to others with greater expertise than I 
have to comment on the claims of executive privilege asserted 
by the President as an additional basis for his order of 
November 1st. I can say, however, that to the best of my 
knowledge, it is unprecedented to claim that Presidents 
maintain executive privilege after they have left office, nor 
will I speculate on what exactly motivated President Bush's 
Executive order, except to say that it is hard to believe that 
either national security or personal privacy are genuine 
central considerations. I would like to focus instead on the 
importance of opening Presidential records to journalists and 
historians in a timely fashion. No one interested in the 
country's well being favors inappropriate release of 
Presidential materials. Some matters relating to national 
security and personal privacy should remain secret for the 
proper functioning of our government. As my colleague Arthur 
Schlesinger, Jr., said in a letter to this committee last 
November ``a measure of secrecy is certainly essential to 
executive operations. But secrecy should be rigidly reserved 
for specific categories--weapons technology and deployment, 
diplomatic negotiations, intelligence methods and sources, 
personnel investigations, tax returns, personal data given the 
government on the presumption that it would be kept 
confidential. Secrecy, Schlesinger adds, carried too far 
becomes a means by which the executive branch dissembles its 
purposes, buries its mistakes, manipulates its citizens, 
escapes its accountability and maximizes its power.''
    Holding back Presidential documents impoverishes our 
understanding of recent history and handicaps a President 
wrestling with difficult contemporary policy questions. The 
more Presidents have known about past White House performance, 
the better they have been at making wise policy judgments. 
President Franklin Roosevelt's close knowledge of President 
Wilson's missteps at the end of World War I were of 
considerable help to him in leading the country into and 
through the Second World War. Lyndon Johnson's effectiveness in 
passing so much Great Society legislation in 1965 and 1966 
partly rested on direct observation of how Roosevelt had 
managed relations with Congress. President Truman's problems on 
the Korean War following the move across the 38th parallel into 
North Korea was one element in persuading George Bush not to 
invade Iraq in 1991. Every President uses history in deciding 
current actions. The principal victim of President Bush's 
directive will be himself and the country. The study and 
publication of our Presidential history is no luxury or form of 
public entertainment. It is a vital element in assuring the 
best governance of our democracy. No one, no one has a monopoly 
on truth or wisdom in the making of public policy, nor can 
historians or history offer a fool-proof blueprint on sensible 
causes of action. But it is a useful guide in helping an 
administration make decisions about domestic and foreign 
affairs. The more we know about our past, the better we will be 
able to chart a sensible future. Your amendment to the 
Presidential Records Act will serve the Nation. Thank you for 
listening to my remarks. I'll be happy to answer any questions 
if they could in any way be helpful to your additional 
deliberations.
    [The prepared statement of Mr. Dallak follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.214
    
    [GRAPHIC] [TIFF OMITTED] 80152.215
    
    [GRAPHIC] [TIFF OMITTED] 80152.216
    
    [GRAPHIC] [TIFF OMITTED] 80152.217
    
    Mr. Horn. We thank you for that presentation. Our last 
presenter, and we need to get to her because, we are going to 
be called to the floor soon for votes. I want to make sure Ms. 
Hoff has a chance to get her presentation in. You are certainly 
welcome to sort of give a from-the-heart speech rather than all 
of the, you know, single things, because we do not have the 
time for it, frankly. But please give us a summary of your 
statement.
    So Joan Hoff is director of Contemporary History Institute 
at Ohio University, former president of the Organization of 
American Historians, former editor of the Presidential Studies 
Quarterly, author of ``Nixon Reconsidered: The Nixon 
Presidency.'' We are glad to have you here.

    STATEMENT OF JOAN HOFF, DIRECTOR, CONTEMPORARY HISTORY 
 INSTITUTE, OHIO UNIVERSITY, FORMER PRESIDENT, ORGANIZATION OF 
   AMERICAN HISTORIANS, FORMER EDITOR, PRESIDENTIAL STUDIES 
     QUARTERLY, AUTHOR OF ``NIXON RECONSIDERED: THE NIXON 
                          PRESIDENCY''

    Ms. Hoff. Thank you, Mr. Chairman, for the opportunity to 
testify. In the capacity that I held as head of some of these 
national organizations, I've long been concerned with access to 
Presidential papers. I've worked in all of the Presidential 
libraries, except for the Reagan library, and published 
primarily on Presidents Herbert Hoover and Richard Nixon. To a 
degree, I kind of claim a monopoly on unpopular Republican 
Quaker Presidents of whom we have had two. Anyway, today I want 
to simply reiterate what some of my colleagues have said, but 
also to place the Presidential Records Act of 1978 into 
historical perspective. It is one of the most important pieces 
of reform legislation passed in the aftermath of Watergate. 
Historians generally concur that Watergate was about holding 
top government officials accountable to people in a democratic 
system. The issue of government accountability is inextricably 
linked to access to information. Watergate aroused the 
historical profession, other scholars, and journalists to this 
important linkage. But that linkage remains fragile and needs 
to be constantly guarded.
    The 1978 Presidential Records Act provides this protection, 
primarily, as you've heard, because it terminates private 
ownership of Presidential papers and made those papers property 
of the Federal Government. But in November, President Bush with 
his Executive order, I think, stepped backward with respect to 
holding government officials accountable. The very issue that 
was at the heart of Watergate.
    Moreover, this Executive order would appear in at least my 
reading of it to be incompatible with the 1978 statute by 
allowing a former or incumbent President to assert a laundry 
list of privileges beyond those recognized in the 1978 law. It 
also places undue financial burden on academic researchers, a 
point that hasn't been raised here today, in particular, to the 
degree that these researchers would have to retain counsel and 
sue for restrictive documents without knowing what was in them. 
I don't think there is any point in second-guessing why the 
Bush administration issued its Executive order, because that 
would bog us down in political speculation, but I think the 
simple fact, in my opinion, is that like the War Powers Act, 
Presidents in general are suspicious of the Presidential 
Records Act and of the Freedom of Information Act.
    Hence, each President since Nixon has devised slightly 
different ways for protecting secrecy, either through 
officially claiming executive privilege or calling it something 
else, such as Presidential or constitutional privilege.
    But President Bush, I think, has gone beyond all of these 
previous attempts by Presidents to operate in secret with this 
Executive order. If vigorously enforced, it would constitute an 
executive rewriting of two congressional statutes, the 
Presidential Records Act and the Freedom of Information Act.
    We talk about people's right to know. But more often than 
not, it is Congress that has to protect that right when the 
public isn't paying attention and demanding it. That is why we 
are all here today, to consider Congressman Horn's proposed 
legislation.
    I have outlined on page 3 of my official report the 
segments of the Executive order that disturb me. But I want to 
reiterate one of them in particular that I have already 
mentioned. In contrast to the 1978 Act, the burden of judicial 
proof is shifted to the researcher by this Executive order who, 
at his or her expense, must show a demonstrated specific need 
when requesting restricted records.
    Research is already too expensive and time-consuming for 
most academics, especially graduate students. And this 
provision would simply discourage many of them from working on 
Presidential papers. In general, it seems to me that in 
contrast to the PRA, which mandates that the Archivist of the 
United States shall have an affirmative duty to make such 
records available to the public as rapidly and as completely as 
possible, that this Executive order, in order to carry it out, 
the Archivist of the United States would be put in the 
untenable position of having to violate the 1978 Act.
    Congressman Horn's bill rectifies most of my specific 
concerns. However, I still believe that it gives incumbent 
Presidents too much unlimited authority over the release of 
papers of former Presidents. The need for government 
accountability and access to information in our democracy 
hasn't changed, but the public doesn't always think it is 
important. We are in one of these times of public indifference 
because of September 11th. The Bush administration is taking 
advantage of the legitimate public fear about national security 
to take steps to keep its activities secret, especially its 
decisionmaking activities, and has extended that secrecy in 
this Executive order to the policy formulating processes of 
previous administrations.
    In doing so, I think the President and his aides and the 
Attorney General, at least in their public statements, have set 
a dangerous tone and are sending the wrong message to 
Government employees and to the American public. That message 
is frightening in its simplicity: Secrecy is more important 
than openness in government.
    Presidential tone is often more important than direct 
Presidential action and less easy to contain. In this case it 
is creating an atmosphere of hostility and suspicion that can 
permeate the minds of government officials and dull public 
awareness about the dangers of secrecy in a democracy such as 
ours.
    Last, I think it has been abundantly evident since Nixon 
that any administration which arrogantly asserts executive 
privilege to prevent public access to decisionmaking processes 
or to dodge accountability does not ingratiate itself with 
members of the media or scholars who usually become all of the 
more determined to ferret out government secrets.
    The general historical rule of thumb is that Presidents' 
reputations do not usually suffer as more of their papers are 
opened. Closed papers do not protect Presidents in the long-
run, however tempting it may be to restrict them in the short-
run. Thank you, Mr. Chairman.
    [The prepared statement of Ms. Hoff follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.218
    
    [GRAPHIC] [TIFF OMITTED] 80152.219
    
    [GRAPHIC] [TIFF OMITTED] 80152.220
    
    [GRAPHIC] [TIFF OMITTED] 80152.221
    
    Mr. Horn. We thank you for that very helpful practical bit. 
And that goes to the other historians. If you take a look at 
the measure we are putting in today, that is simply one step. 
And if you have some more ideas, let us know. We would 
appreciate it.
    We are now going into the question period, and I am going 
to start yielding myself 5 minutes, and then the ranking 
member. We have a number of people we will simply alternate 
between both parties. I was very interested in the--I am going 
to just ask a few fast questions because time is going. And I 
would like to know how many of you know if the First World War 
papers are still locked up? Why? Do we know why?
    Mr. Kutler. It is like the First World War buildings the 
buildings that were on Constitution Avenue for years dated from 
the First World War that were called temporary. No one knew why 
they were still there.
    Mr. Horn. My mother worked there in the Navy.
    Mr. Kutler. I know this about the First World War papers. I 
don't know why anyone would be interested in trench warfare 
right now.
    Mr. Horn. Well, I will pass to another one. Now, as we 
drive in from Dulles every Saturday we hear the Johnson tapes 
brought from the Johnson papers, and I take it somebody is in 
with the people that run the Johnson Library. And--because 
apparently nobody else can get them. And now they will release 
them. But it seems to me, Dr. Dallek, certainly, when you were 
writing on Lyndon Johnson, you wish you had those tapes.
    Mr. Dallek. Well, I had a handful of them. But, in fact, 
President Johnson directed that they should be closed for 50 
years after his death, which meant that they would not be open 
until 2023.
    In her wisdom, Mrs. Johnson and the head of the Johnson 
Library, Harry Middleton, agreed that they would open them 
sooner. And, indeed, as Joan Hoff said, in essence, Johnson's 
reputation had nowhere to go but up. And by opening these 
papers, I think it served his reputation. And who can listen to 
them now, which I sometimes do, without a certain amount of 
amusement. And you are educated by them. But there are still 
many of these tapes that are closed. Indeed, at the John 
Kennedy Library, which----
    Mr. Horn. Well, let's stick with LBJ for a while. Do you 
know what type, generically, of phone calls that are not being 
released?
    Mr. Dallek. Well, they claim that what is held back are 
these materials which would jeopardize national security or 
violate personal privacy rights. Now, of course, I can never 
tell what in fact they have held back, whether it meets 
sensible judgments on national security and personal privacy 
rights.
    Over my career, I have been mystified at times when I have 
seen papers that were released later, and I wondered why was 
this a national security consideration? It just mystified me. 
So these are the two criteria that they are using.
    Mr. Horn. Well, Dr. Kearns, I believe, has written on 
Johnson; isn't that correct? And then you have written on it. 
Mr. Caro has two volumes out in his very fine effort there. He 
has got the third one now on Johnson as majority leader, and 
that is coming out in a week or so.
    Mr. Dallek. Yes.
    Mr. Horn. So I don't know who else is out there wanting it. 
But it just seems to me that it ought to be open to everybody.
    Mr. Reeves. Well, it was a piece of either historical or 
journalistic entrepreneurship that got to these papers. 
Basically, one of our distinguished colleagues, Michael 
Beschloss, charmed, with the help of Simon Schuster, my 
publisher, Ms. Johnson into releasing them by a certain date.
    This goes on in all libraries. But one of the ways it was 
done is that Michael had access to them for months, so that it 
was released to everybody on the same day, but he had a book 
finished that day and everybody else was knocking on the front 
door.
    I think all of us have been in situations, particularly at 
the Kennedy Library, where there are researchers and then 
researchers, friends considered, Mrs. Kearns, Mrs. Goodwin, 
considered a friend and Arthur Schlesinger, considered a 
friend, see different things.
    I don't know how other people feel about it. I would prefer 
a system where it truly was an equal starting line. But, so 
far, that has not happened.
    Mr. Horn. I have just one question and then I will turn it 
over to Mr. Waxman. Are you aware of any instance in which the 
release of Presidential records has created a personal hardship 
or otherwise resulted in public harm?
    Mr. Dallek. Well, I remarked on that in my statement. I 
know of no instance.
    Ms. Hoff. And there have been a number of surveys done of 
former officials of the government who, when interviewed, and 
asked whether they felt inhibited in giving the President 
advice because of the Presidential Records Act, all of them 
said no. And most of them said they couldn't even remember what 
were in the memos that were currently being restricted in any 
given time period. So that the people who work for the 
Government don't seem to think after the fact that this was an 
inhibiting factor.
    Mr. Kutler. Any number of incidents--it is not necessarily 
the President that comes to mind immediately here, but with 
materials that were released under Freedom of Information that 
have helped the individual enormously.
    For example, I was the first person to receive the Justice 
Department records on the woman you know as Tokyo Rose, Ms. 
Toguri. Ms. Toguri, the government knew that the perjury had 
been suborned in her case. The government knew that this was--
the prosecution resulted from the relentless persecution by 
Walter Winchell and other reporters, that General McArthur's 
staff, the FBI had declined prosecution for 4 years.
    Now that all finally came out in all of these materials. I 
think Tokyo Rose got her pardon from President Ford in 1977. 
But clearly what she has now is a pardon before the bar of 
history because she was no more guilty of treason than you or I 
were.
    Mr. Reeves. The victim recently within the last couple of 
weeks has been, and I think in the course of justice, Dr. 
Kissinger, that is, that the release of the transcripts of the 
conversations between the Americans and the Chinese that led to 
the 1972 summit revealed something about the elegance and 
cleverness of Dr. Kissinger as a historian. That is in his 
description, he said Taiwan was not a major issue in these 
talks.
    It was mentioned briefly at the beginning. There was only a 
single mention, that is it. The papers revealed--it happened 
that I have had favoritism and had these papers before.
    The papers revealed that was exactly true, if you follow it 
word for word. The first thing said was--by the Americans, by 
Dr. Kissinger, look, Taiwan is yours. Do whatever you want with 
it. With that, Chairman Lai said, OK, let's have a summit. But 
that was the single mention which made it so unimportant.
    And for the first time last week, Dr. Kissinger finally had 
to say, well, perhaps there were things in his memoirs that he 
could have studied a bit closer to get a little bit closer to 
what happened. A clever man.
    Mr. Horn. Thank you. I now yield to the gentleman from 
California, Mr. Waxman.
    Mr. Waxman. Thank you very much, Mr. Chairman. I want to 
thank all of you for your testimony. I think it has been 
excellent. And I have been admirers of all four of you in your 
work.
    It is interesting when you look at this issue. There really 
are two losers. There is clearly the public's loss of 
information to which they have a right. And the other loser is 
the President himself or herself.
    Now we should understand this is all happening at this 
moment with this President, and it only affects the Reagan 
administration, and President Bush's father, who was the Vice 
President at the time.
    So the Executive order is to try to keep the information 
about former President Bush, when he was Vice President, from 
being public, and also any records that will happen--any 
records that would happen to come due to be released for the 
Reagan, Bush, Clinton and Bush administrations as time may go 
on.
    Now, Ms. Hoff, you said one of the dangers to the public is 
dulling our senses about secrecy. Now could you elaborate on 
that?
    Ms. Hoff. Well, as I didn't say it in my opening remarks, 
but it is in my formal remarks, that especially in time of war, 
government secrets tend to increase incrementally, anyway. And 
I think what has happened since September 11th, and then in 
conjunction with this Executive order, is that national 
security has become a kind of mantra of the administration. The 
public is being led to believe that everything can be protected 
or kept secret in the name of national security. And that, I 
think, does have a kind of dulling effect on public opinion and 
the public sense of what it needs to know in time of war.
    For example, if we had known about the terms of the secret 
negotiations that Henry Kissinger was carrying on with the 
North Vietnamese before 1973, even 6 months or a year before 
1973, I think you would have found that these terms would have 
shown what historians later showed after they were able to get 
to some of these records, that the terms were no better than 
what the Nixon administration inherited in 1969 from the 
Johnson administration.
    Mr. Waxman. Well, let me turn to Mr. Reeves. You are 
pointing out the dulling of senses about secrecy, particularly 
at this time in our history where we have a war on terrorism. 
But, Mr. Reeves, you talked about the balance of power, the 
checks and balances that are envisioned in our Constitution. 
How is that affected by this move toward secrecy?
    Mr. Reeves. Well, by withholding--that is not so much in 
records. You can do it in retrospect. If there are records, the 
incident I spoke of with Nixon, and there are others, are 
basically the Congress not having any issue--any true 
information on----
    Mr. Waxman. Well, the President wants to keep information 
secret either about the past or the present, and is doing it, 
it seems to me, for purposes of enhancing his power. And he is 
enhancing his power at the present time if the Vice President 
of the United States doesn't have to reveal who he met with in 
the energy taskforce. We have other examples where there is not 
the transparency in the way decisions are made, the Congress is 
kept in the dark and the public is kept from knowing what is 
happening. It really keeps a check on the ability of a 
President. Let me put it this way.
    It keeps the checks and balances from operating, because a 
President starts getting more power because he can operate 
without the Congress and the public saying, no, wait, you may 
be going too far.
    Mr. Reeves. Right. Well, that was the effect in these two 
cases, and I am sure has been in others. And if we believe in 
democracy, we essentially believe that the more people who are 
involved in a national decision, the better decision that will 
be. Presidents routinely, I think, try to subvert that idea. 
They think they know better.
    Mr. Waxman. Well, I suppose whenever you have power, you 
want more power. I would submit that a President becomes the 
victim not only of the ways you all pointed out in your 
testimony, by this secrecy of these records, but I think the 
President becomes a victim, because when a President gets too 
much power--when anybody gets too much power, as power 
corrupts, and absolute power corrupts absolutely--the President 
doesn't have the usual checks on him that will help make 
decisions properly. I thought it was an excellent point that 
you made that if a President doesn't know history in making 
decisions at the present, he can repeat the mistakes or fail to 
learn from previous mistakes. And I would submit that it 
becomes a disservice to the President in making decisions not 
to have the advantage of information from the past and also to 
have too much power without the usual checks the democracy 
would bring on that power.
    I notice my time is up. But you have all made an excellent 
presentation, and I think a compelling reason why we ought to 
pass the legislation to prevent this President from taking the 
law that said the public has a right to these Presidential 
papers and turning it on its head and trying to deny the public 
and his history the benefit of these papers. Thank you very 
much.
    Mr. Horn. I thank the gentleman. And we now yield for 
questions, the distinguished member on this committee, Mr. 
Gilman, the gentleman from New York.
    Mr. Gilman. Thank you, Mr. Chairman. I certainly want to 
welcome our panelists today and thank them for their very 
astute analysis of where we are on Presidential Executive 
orders. As you probably are aware, this committee has been 
trying to get some information on the criminal background and 
the FBI association with Mafia cases in the Boston area.
    Let me ask, would the executive privilege apply to anything 
before the Reagan administration? And could it be utilized as a 
basis for restricting our access to information prior to the 
Reagan administration?
    Mr. Reeves. My reading of the law, I am not a lawyer, is 
that it would not.
    Mr. Dallek. You know, Mr. Gilman, executive privilege goes 
way back in our history. And Presidents had or claimed 
executive privilege in relation to their principal aides, but 
it was only in the 1950's that we first began to have this 
broader approach to the whole idea of executive privilege. And 
claims were made that any kind of document that was generated 
in the executive branch could come under this rubric of 
executive privilege.
    But I do not know of a single instance in which executive 
privilege applies to past Presidents, to historical records. My 
understanding is that executive privilege, so to speak, expires 
with the President's term. Now my colleague, Professor Kutler, 
I think knows more about this than I do. But that is my 
impression of executive privilege.
    Mr. Kutler. We just never recognized, as far as I know, I 
know of no legal precedents that have recognized executive 
privilege lingering 1 day beyond a President's terms of office. 
You asked before if any particular President before Reagan 
would declare that. Well, the only President, I hope I am right 
here, that is alive before Reagan right now is Jimmy Carter. Am 
I missing somebody? Oh, Ford. That is right. Sorry.
    Well, they are the only Presidents who are alive before 
Reagan. Now, and I don't see either one of them as ever having 
exerted executive privilege from the day they left office. I 
wouldn't expect them to begin that now. I mean, that is what is 
so extraordinary about this order, the way this seems to 
perpetuate this beyond the President's terms of office into his 
retirement, and then upon his heirs and designees. That is 
extraordinary, it seems to me. And, incidentally, to former 
Vice Presidents.
    Mr. Gilman. In your opinion, if this were tested in the 
court, do you think it would survive?
    Mr. Kutler. I don't think so. But certainly there are 
members of the District D.C. Court of Appeals who have very 
strong conservative credentials who have ruled precisely 
against this kind of thing in the past. I am thinking of 
Justice Silverman who has spoken out on this in the past. And I 
just can't see this surviving a challenge. But it seems to me 
that it is right here in Congress to assert its proper 
legislative prerogatives on this matter and reassert what was 
stated here in 1978.
    I mean, ideally, as a student of these things, that is what 
I would really like to see and that it stay out of court.
    Mr. Gilman. Well, let me ask the panel. Should Executive 
Order 13233 be rescinded?
    Ms. Hoff. Yes. Definitely.
    Mr. Reeves. It would be unanimous at this table.
    Mr. Gilman. Unanimous on this issue.
    Mr. Kutler. I think you would be hard-pressed to find any 
serious historian who would want to sustain it. I know of no 
one.
    Mr. Gilman. One other thought. Should the act be amended to 
provide a statutory process for consideration of potential 
executive privilege claims?
    Ms. Hoff. You mean beyond the 1978 act?
    Mr. Gilman. Yes.
    Mr. Horn. Well, as I remember the Nixon v. Administrator of 
General Services, the Supreme Court held that a former 
President can claim executive privilege. And we are going to 
put that in, without objection, into the hearing record, and 
put the whole case in so everybody can look and see that.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.222
    
    [GRAPHIC] [TIFF OMITTED] 80152.223
    
    [GRAPHIC] [TIFF OMITTED] 80152.224
    
    [GRAPHIC] [TIFF OMITTED] 80152.225
    
    [GRAPHIC] [TIFF OMITTED] 80152.226
    
    [GRAPHIC] [TIFF OMITTED] 80152.227
    
    [GRAPHIC] [TIFF OMITTED] 80152.228
    
    [GRAPHIC] [TIFF OMITTED] 80152.229
    
    [GRAPHIC] [TIFF OMITTED] 80152.230
    
    [GRAPHIC] [TIFF OMITTED] 80152.231
    
    [GRAPHIC] [TIFF OMITTED] 80152.232
    
    [GRAPHIC] [TIFF OMITTED] 80152.233
    
    [GRAPHIC] [TIFF OMITTED] 80152.234
    
    [GRAPHIC] [TIFF OMITTED] 80152.235
    
    [GRAPHIC] [TIFF OMITTED] 80152.236
    
    [GRAPHIC] [TIFF OMITTED] 80152.237
    
    [GRAPHIC] [TIFF OMITTED] 80152.238
    
    [GRAPHIC] [TIFF OMITTED] 80152.239
    
    [GRAPHIC] [TIFF OMITTED] 80152.240
    
    [GRAPHIC] [TIFF OMITTED] 80152.241
    
    [GRAPHIC] [TIFF OMITTED] 80152.242
    
    [GRAPHIC] [TIFF OMITTED] 80152.243
    
    [GRAPHIC] [TIFF OMITTED] 80152.244
    
    [GRAPHIC] [TIFF OMITTED] 80152.245
    
    [GRAPHIC] [TIFF OMITTED] 80152.246
    
    [GRAPHIC] [TIFF OMITTED] 80152.247
    
    [GRAPHIC] [TIFF OMITTED] 80152.248
    
    [GRAPHIC] [TIFF OMITTED] 80152.249
    
    [GRAPHIC] [TIFF OMITTED] 80152.250
    
    [GRAPHIC] [TIFF OMITTED] 80152.251
    
    [GRAPHIC] [TIFF OMITTED] 80152.252
    
    [GRAPHIC] [TIFF OMITTED] 80152.253
    
    [GRAPHIC] [TIFF OMITTED] 80152.254
    
    [GRAPHIC] [TIFF OMITTED] 80152.255
    
    [GRAPHIC] [TIFF OMITTED] 80152.256
    
    [GRAPHIC] [TIFF OMITTED] 80152.257
    
    [GRAPHIC] [TIFF OMITTED] 80152.258
    
    [GRAPHIC] [TIFF OMITTED] 80152.259
    
    [GRAPHIC] [TIFF OMITTED] 80152.260
    
    [GRAPHIC] [TIFF OMITTED] 80152.261
    
    [GRAPHIC] [TIFF OMITTED] 80152.262
    
    [GRAPHIC] [TIFF OMITTED] 80152.263
    
    [GRAPHIC] [TIFF OMITTED] 80152.264
    
    [GRAPHIC] [TIFF OMITTED] 80152.265
    
    [GRAPHIC] [TIFF OMITTED] 80152.266
    
    [GRAPHIC] [TIFF OMITTED] 80152.267
    
    [GRAPHIC] [TIFF OMITTED] 80152.268
    
    [GRAPHIC] [TIFF OMITTED] 80152.269
    
    [GRAPHIC] [TIFF OMITTED] 80152.270
    
    [GRAPHIC] [TIFF OMITTED] 80152.271
    
    [GRAPHIC] [TIFF OMITTED] 80152.272
    
    [GRAPHIC] [TIFF OMITTED] 80152.273
    
    [GRAPHIC] [TIFF OMITTED] 80152.274
    
    [GRAPHIC] [TIFF OMITTED] 80152.275
    
    [GRAPHIC] [TIFF OMITTED] 80152.276
    
    [GRAPHIC] [TIFF OMITTED] 80152.277
    
    [GRAPHIC] [TIFF OMITTED] 80152.278
    
    [GRAPHIC] [TIFF OMITTED] 80152.279
    
    [GRAPHIC] [TIFF OMITTED] 80152.280
    
    [GRAPHIC] [TIFF OMITTED] 80152.281
    
    [GRAPHIC] [TIFF OMITTED] 80152.282
    
    [GRAPHIC] [TIFF OMITTED] 80152.283
    
    Ms. Hoff. But that decision also said that executive 
privilege erodes over time. And consequently it reaches a point 
of diminishing returns, according to that decision.
    Mr. Kutler. And there is nothing said in that opinion also 
that implies that an incumbent executive branch official must 
honor that claim. What is so extraordinary here is that, 
talking about putting things on its head, the present order 
that exists today provides that if there is any claim of 
executive privilege, that if upon a claim of executive 
privilege, anyone were to challenge that, such as a historian 
or a journalist or forth, that the President and the Department 
of Justice shall defend the claim. So, in other words, former 
Presidents don't have any expense of going to court.
    Now we all know that Richard Nixon wrote book after book in 
order to maintain that lawyer habit. But now this is put on its 
head and the government of the United States will continue to 
defend former Presidents in the exertion of that privilege.
    Ms. Hoff. Putting researchers then in the position of using 
their money to bring suit against a former President whose suit 
is being financed by the government.
    Mr. Reeves. It is a tremendous disincentive to people who 
do this for a living, because it is very rare to find anybody 
who can afford a lawyer in the historic community to sell a 
house, much less take on the U.S. Government.
    Mr. Gilman. So, and what is your answer? Should the act be 
amended then to provide a statutory process for consideration 
of potential executive privilege claims?
    Mr. Reeves. I can't answer that. It is a very large step, 
it seems to me.
    Mr. Kutler. Well, I would just prefer that the language in 
the current Executive order relating to the extension of 
executive privilege just be rendered null and void. That is 
all.
    Ms. Hoff. Yes.
    Mr. Kutler. That would be the simplest way, it seems to me.
    Ms. Hoff. And that the claim of an incumbent to block 
opening, for example, of the papers of a former President, 
should be very definitely limited, either to a time period or 
at least to review by the Archivist of the United States.
    Mr. Dallek. Under the statute or under this Executive 
order, as I understand it, a sitting President can override 
what a past President decides to do about opening his papers, 
and an incumbent President can say, yes, Mr. Reagan or Mr. 
Carter has said they can open these papers, but I am not going 
to permit that. And I find that mind-boggling.
    Mr. Kutler. What we have here is the concurrent veto, which 
we all know about in terms of 19th Century American history, 
that Calhoun proposed that if one section didn't like what the 
other section likes, it was null and void.
    Well, President Carter, President Reagan, President George 
H.W. Bush can want to release something, but the incumbent can 
say, no, you can't. So, so much for control over one's own 
papers.
    Ms. Hoff. That has actually happened in this last 14 months 
when the Reagan Library was prepared to open 68,000 Reagan 
documents which were no longer restricted under the 1978 act, 
and the Bush administration delayed that opening three times. 
And yet when we saw what was opened, there was no national 
security. There might have been embarrassment in terms of some 
of the advice that the President was receiving about 
appointments, personnel matters. But embarrassment is not 
national security.
    Ms. Watson. Mr. Chairman, on this issue.
    Mr. Gilman. I want to thank our panelists for your 
analysis.
    [The prepared statement of Hon. Benjamin A. Gilman 
follows:]
[GRAPHIC] [TIFF OMITTED] 80152.284

[GRAPHIC] [TIFF OMITTED] 80152.285

[GRAPHIC] [TIFF OMITTED] 80152.286

    Mr. Horn. The Q and A to the distinguished new Member of 
the House from California, Diane Watson.
    Mr. Gilman. Mr. Chairman, may I insert in the record an 
opening statement?
    Mr. Horn. Yes. It will be put in at the beginning as if 
read.
    Mr. Gilman. Thank you.
    Ms. Watson. Mr. Chairman, as I understand, there is a bill 
ready to be introduced by Waxman, Burton----
    Mr. Horn. Yes. It is my bill.
    Ms. Watson. I just wanted to know, would this solve the 
problem, and do you know of the bill, the chairman's bill, Mr. 
Horn? I think it gets to the points that you are raising. I 
would hope that you would elaborate on it, Mr. Chairman.
    Mr. Horn. We have three or four Members that want to 
question, and we have a vote, so we are going to have to take a 
recess, if you can stay. And we will go vote, and when we end 
the recess, which will be about 15 minutes, to be over and 
back, and we will be chaired by Mr. Ose, the distinguished 
member of our committee and the chairman of Regulatory Affairs. 
We are in recess.
    [Recess.]
    Mr. Ose [presiding]. I am going to reconvene this meeting. 
I want to thank the witnesses for hanging with us. I apologize 
for the delay. I will claim the time, there being no other 
members.
    First of all, for each of you, anybody who has any input on 
this, of the 68,000 documents withheld for over a year, all but 
150 pages have now been released under the new order. Doesn't 
that sort of moot the criticism that you are registering on the 
new order? Mr. Kutler.
    Mr. Kutler. No, I don't think so. First of all, I assume 
you have seen the list of what was withheld? There is a list.
    Mr. Ose. All right.
    Mr. Kutler. It is a very promising list, because it 
promises to reveal internal debates over appointments and so 
forth, which is really, you know, in our understanding of how 
you make appointments and so forth is very, very important. 
There are people, for example, Clarence Thomas, that are 
mentioned in this, that obviously there is concern about 
protecting him.
    But I don't think it changes anything. I mean, it is clear 
that none of this is stated on the basis of national security. 
That was the first thing that struck me. It was all on the 
basis of confidential advice.
    So, you know, I take it back for 1 second to the Nixon 
stuff. When the first great release occurred in April 1987, 
150,000 pages were withheld, and we were given a list of 
everything that was withheld at the time. And it was the 
strangest thing. It was--I mean, there was things that--about 
Mrs.--President Nixon's remarks to the Davis Cup team, Mrs. 
Nixon's garden party and so forth, which is strange. Why 
withhold that? But then as you ran further down the list, there 
was, for example, H.R. Haldeman's file on the 1972 Presidential 
campaign.
    Well, the 1972 Presidential campaign clearly involved the 
Watergate matter in some significant ways. But the whole file 
was withheld on the basis of personal political, so, you know, 
the material was--seemed to be very, very significant. And that 
seems so here.
    So I don't think that moots the matter at all.
    Mr. Reeves. You say it seems significant, the new material.
    Well, I would say that I thought that it kind of was not 
mitigating because the material--not that I have seen every 
page of it, but I have seen a lot of pages of it, was not--was 
barely questionable to be withheld. The 150 pages that are 
still not let go are some sort of internal papers on judges, 
potential judges and whatnot. They undoubtedly have, if they 
are candid, they undoubtedly have some things which might be 
private. But the rest of the stuff doesn't seem to me to rise 
to any test of need to be reviewed because, in the first case, 
the President saw almost none of this. These are internal memos 
between people within the White House. So that it was--it may 
have evolved into advice to the President, but it isn't in 
these pages. The President is barely in these pages.
    Mr. Dallek. What I find troubling about it is that one is 
gratified that so much of the material has now been released 
and there are only some 150 pages that remain, but I think it 
is the principle that is at stake here. Are we going to have to 
fight and scrap every inch of the way in order to get materials 
open, and then 2 years, 3 years later the White House concedes, 
fine, we will open 90 percent of it? See, I mean, I think the 
shoe needs to be on the other foot.
    Mr. Ose. It actually looks like 99.8 percent.
    Mr. Dallek. Right. But we had to battle to get this.
    Ms. Hoff. These postponements can be important in terms of 
your own personal research and in terms of the issue involved. 
I think that should be taken into consideration, especially 
when the postponement turned out to have really no basis in 
reality with respect to either privacy or policy or national 
security.
    Mr. Ose. Well, let me, if I might then, just kind of go 
backup the chain on this particular issue and ask the question: 
Was the Reagan Executive order adequate or sufficient to 
protect the claims of privilege by former Presidents?
    Ms. Hoff. As a nonlawyer, my opinion of that was when he 
issued it at the very end of his second term, that it did 
perhaps open a kind of can of worms with respect to former 
Presidents making claims of executive privilege long after they 
are out of office. And since that wasn't challenged or, in this 
case, codified until now, I don't think I gave it much thought 
other than it seemed to me to open a door that perhaps would 
cause a former President long out of office to decide that 
somehow his papers--some papers reflected a need to be 
protected by a claim of national security when he might not be 
basically informed, well informed about what national security 
was 12 years later.
    Mr. Reeves. Can I read you an example of what the point I 
hoped to make about whether this stuff was that sensitive at 
all. This is a 1987--this is one of the things that was just 
released. It is a 1987 memo to Howard Baker, who was then chief 
of staff, from Gary Bower. It was about, as we recall the stock 
market crash of 1987, that this is what they felt they had to 
review to see if it involved national security when it had been 
once passed already.
    It is not sufficient for the President--this doesn't go to 
the President, it only goes to Baker. It is--and the President 
hasn't seen it, at least since his initials aren't on it. They 
usually are.
    ``It is not sufficient for the President to only say that 
this is not 1929 if the economy is good. I have attached 
President Hoover's statement after the October crash. You will 
note that it is exactly what Reagan said. We do not need to 
give the press and liberals another quote parallel to draw 
between then and now. The Democrats are on the floor now making 
the Hoover/Reagan connection. We must move quickly,'' 
underlined, ``before the connection gets settled in the mind of 
the average citizen.''
    I would argue that doesn't fit any of the criteria for 
papers that should not be released.
    Mr. Ose. That existed under the Reagan Executive order, or 
under the new order?
    Mr. Reeves. Under the new.
    Mr. Ose. Mr. Dallek, anything to offer?
    Mr. Dallek. No.
    Ms. Hoff. It would also have been restricted under the 1978 
act.
    Mr. Ose. Right.
    Mr. Reeves. Could have been. This piece could have been.
    Ms. Hoff. No, I am saying that couldn't have been. If that 
act were applied evenhandedly, no, it couldn't have been.
    Mr. Ose. Finally, if I might. This is my final question. 
That is, do you think a statutory procedure that directs how an 
incumbent President shall evoke executive privilege intrudes 
too much on Presidential prerogatives? In other words, if the 
Congress says you have to follow this process to invoke it, is 
that too much of an intrusion from the legislative branch into 
the legislative branch?
    Mr. Dallek. You mean on past?
    Mr. Ose. On executive privilege claims.
    Mr. Dallek. About past Presidential materials, not current?
    Mr. Ose. OK. Past. That is fine.
    Mr. Kutler. OK. To answer your question, no, I don't think 
so. I don't think that would be any intrusion whatsoever. 
Again, I think that this involves extending the executive 
privilege argument far beyond the confines of the incumbent 
administration whoever it is.
    So I don't see why that is an--how in any way that is an 
intrusion upon the President's power, if the former President 
has no objection to it. Now, you can say, well, the former 
President may not know and may not appreciate the state of 
national security at this moment. I find that hard to believe, 
because I am assuming that past practice continues to this very 
day, where former Presidents are regularly briefed by the CIA 
and whoever does the briefing. I mean, that has been the 
practice for about the last 40 years. I think it goes back to 
when Eisenhower became President, and did this with Truman. And 
succeeding Presidents have done the same. So it seems to me 
unlikely that a former President would have no appreciation of 
what is a national security matter today.
    Mr. Reeves. Was that responsive to your question? I mean, I 
understood the question differently and, in fact, would take a 
different side. That is, since executive privilege is often a 
contest between the executive and legislative branch, it would 
be an intrusion for the legislative branch to be able to set 
firm rules as to what----
    Mr. Ose. But the executive could certainly veto any such 
legislation.
    Mr. Reeves. Yes. No. I think it should be an ongoing 
negotiation which could include vetoes or anything else. But I 
don't think that the law or anybody else would be helped if the 
Congress had the power, if they could sustain the power to 
define what executive privilege is. If I understood the 
question.
    Mr. Kutler. Well, executive privilege is a doctrine that 
emerges by deduction. It is not out of the Constitution. It is 
not out of statute. It is not out of anything. It is something 
that comes up from time to time. And feelings toward it are 
governed by the exigencies of the moment.
    Now if you were to do this in a statutory sense as you are 
proposing, I am sure that the President would, with your 
cooperation, your consent, continue to exert executive 
privilege in certain other matters. You are saying that this is 
one we find no constitutional, no statutory or logical 
authority for. That is all.
    Ms. Hoff. As long as the legislation applies to 
Presidential papers, and as long as, if I am reading it 
correctly, it does specifically indicate that there will be a 
time limit on both the former Presidents' claims to privilege 
and the incumbent President's claim to this privilege, this 
can't go on indefinitely. That was, I think, a defect of the 
Reagan order, a flaw in the Reagan Executive order, that it did 
not place a time limit on these claims of either the privacy or 
national security with respect to former Presidents and 
Presidents.
    The time limit, I think, is essential. And I don't think 
that would constitute an unnecessary congressional invasion of 
Presidential prerogative.
    Mr. Kutler. Which you do well in this legislation, the time 
limit. No. I think it is very reasonable, very fair.
    Mr. Dallek. As I understand it, the executive privilege is 
in the service of the effective functioning of the Presidency. 
And I think if you are trying to extend executive privilege to 
past Presidential materials, I don't see the logic of it. What 
I understand is that you want to defend national security 
against intrusion. You want to defend privacy rights against 
intrusion. But I am hard-pressed to understand why executive 
privilege claims would still operate in relation to past 
Presidential activity. That individual is no longer President 
of the United States. His functioning as President is no longer 
going to be--because I assume that you are talking about quite 
specific things. You are not talking about some general 
principle as to the functioning of the Presidency. But quite 
specific instances in which the President is eager to maintain 
control of information, of his communications between himself 
and particular aides.
    And so I find extending executive privilege to past 
Presidential materials as something that I am not very 
sympathetic to or sympathetic to at all.
    Mr. Ose. Do any of you have any comments or suggestions on 
our bill to amend the Presidential Records Act beyond what has 
already been covered in your testimony, both written and oral? 
Mr. Kutler.
    Mr. Kutler. Yes. I have one.
    Mr. Ose. We are going to open the door for you here. Don't 
leave this room and say we didn't give you a chance.
    Mr. Kutler. One little one, Congressman. I am not quite 
clear that this is stated in the proposed bill. But one of the 
most disturbing things to me, because I have been through this, 
is the idea that the former President will be extended legal 
counsel by the Department of Justice. That is not a very level 
playing field.
    Mr. Ose. In terms of financing the cost of any litigation?
    Mr. Kutler. Right. And that is new in this Executive order. 
That is new. That was proposed. And I would hope that would be 
removed or specifically opposed, however you want to do it. But 
I really think that there is a level playing field that is at 
stake in this.
    Mr. Ose. All right. Anybody else?
    Ms. Hoff. I thought the current legislation does that, 
though. Doesn't the proposed legislation?
    Mr. Ose. The current Executive order extends the financial. 
I don't believe the Horn legislation includes the financing of 
defense. It is being whispered in my ear here ever so 
eloquently that the Horn legislation would, in effect, repeal 
the Executive order and thereby remove the financial 
protection.
    Ms. Hoff. It would also then remove the necessity for the 
researcher to go to court to sue for these records. Yes.
    Mr. Kutler. Well, if the overturning of the order does 
that, then fine.
    Mr. Ose. OK. Fine.
    Ms. Hoff. These are the two key provisions, I think, with 
respect to the average researcher that--the reversal of the 
burden of proof simply would kill historical research for all 
intents and purposes because we normally as researchers don't 
have financial backing to bring suit.
    Mr. Ose. All right. I think that concludes our hearing. I 
want to thank the witness for joining us today. I appreciate 
you all taking the time. It has been very informative. I know 
that Chairman Horn is intent on pursuing this, as are many of 
his colleagues on both sides of the aisle. Your comments and 
insights will be incorporated into our deliberation. We thank 
you for coming. We are adjourned.
    [Whereupon, at 4:40 p.m., the committee was adjourned.]
    [The prepared statement of Hon. Constance A. Morella, Hon. 
Elijah E. Cummings, and additional information submitted for 
the hearing record follows:]
[GRAPHIC] [TIFF OMITTED] 80152.287

[GRAPHIC] [TIFF OMITTED] 80152.288

[GRAPHIC] [TIFF OMITTED] 80152.289

[GRAPHIC] [TIFF OMITTED] 80152.290

[GRAPHIC] [TIFF OMITTED] 80152.291

[GRAPHIC] [TIFF OMITTED] 80152.292

[GRAPHIC] [TIFF OMITTED] 80152.293

[GRAPHIC] [TIFF OMITTED] 80152.294

[GRAPHIC] [TIFF OMITTED] 80152.295

[GRAPHIC] [TIFF OMITTED] 80152.296

[GRAPHIC] [TIFF OMITTED] 80152.297

[GRAPHIC] [TIFF OMITTED] 80152.298

[GRAPHIC] [TIFF OMITTED] 80152.299

[GRAPHIC] [TIFF OMITTED] 80152.300

[GRAPHIC] [TIFF OMITTED] 80152.301

[GRAPHIC] [TIFF OMITTED] 80152.302

[GRAPHIC] [TIFF OMITTED] 80152.303

[GRAPHIC] [TIFF OMITTED] 80152.304

[GRAPHIC] [TIFF OMITTED] 80152.305

[GRAPHIC] [TIFF OMITTED] 80152.306

[GRAPHIC] [TIFF OMITTED] 80152.307

[GRAPHIC] [TIFF OMITTED] 80152.308

[GRAPHIC] [TIFF OMITTED] 80152.309

[GRAPHIC] [TIFF OMITTED] 80152.310

[GRAPHIC] [TIFF OMITTED] 80152.311

[GRAPHIC] [TIFF OMITTED] 80152.312



       H.R. 4187, THE PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2002

                              ----------                              


                       WEDNESDAY, APRIL 24, 2002

                  House of Representatives,
  Subcommittee on Government Efficiency, Financial 
        Management and Intergovernmental Relations,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:02 a.m., in 
room 2154, Rayburn House Office Building, Hon. Stephen Horn 
(chairman of the subcommittee) presiding.
    Present: Representatives Horn, Lewis, Ose, Burton [ex 
officio], Schakowsky, Maloney, and Waxman [ex officio].
    Staff present: J. Russell George, staff director and chief 
counsel; Bonnie Heald, deputy staff director; Henry Wray, 
senior counsel; Justin Paulhamus, clerk; Darin Chidsey, 
professional staff member; David McMillen, minority 
professional staff member; Jean Gosa, minority clerk; and Karen 
Lightfoot, minority senior policy advisor.
    Mr. Horn. A quorum being present, the Subcommittee on 
Government Efficiency, Financial Management and 
Intergovernmental Relations will come to order.
    This is our third hearing on Executive Order 13233 and its 
impact on the Presidential Records Act of 1978. Our 
subcommittee held the first hearing on this subject last 
November. The full Committee on Government Reform held a 
similar hearing on April 11th of this year. At both hearings 
historians, attorneys, and other experts testified that the 
Executive Order 13233 violates the Presidential Records Act and 
will greatly impede the public release of Presidential records 
as intended by the act.
    Our early hearings fully explored the problems with 
Executive Order 13233. Today's hearing focuses on potential 
solutions. Specifically, we will consider H.R. 4187, a bill 
that I and several of my colleagues introduced on April 11th. 
H.R. 4187 would replace the Executive order with a statutory 
process for former and incumbent Presidents to review records 
prior to their release and assert executive privilege claims if 
they so choose.
    Unlike Executive Order 13233, the review process in this 
bill complies with the letter and spirit of the Presidential 
Records Act. Most important, the bill imposes a firm time limit 
on the review of records and assertions of privilege claims. It 
would no longer be possible for a former or incumbent President 
to prevent the release of records indefinitely simply by 
inaction.
    Given the safeguards already built into the Presidential 
Records Act, a former or incumbent President should rarely, if 
ever, need to resort to executive privilege claims. Indeed, no 
such claims have yet been asserted. The problem is that the 
open-ended and unreasonably long reviews have substantially 
delayed public access for records under the act. The current 
administration prevented the release of an initial portion of 
former President Reagan's records for 1 full year after the 
date on which they should have come public under the 
requirements of the Presidential Records Act.
    I hope that today's hearing will help us decide whether to 
move forward with H.R. 4187, and, if so, whether there are ways 
to improve the bill.
    I regret that the Justice Department declined our 
invitation to testify at today's hearing. However, we have an 
excellent panel of witnesses who represent different 
viewpoints. I welcome all of you and I look forward to your 
testimony. We also have received several written statements, 
and without objection they will be included in the hearing 
record. One is the various parts of Judge Sirica to set the 
record straight, a very worthwhile book to read if you're going 
to talk about executive privilege and anything else. The other 
is from John Bradamus, a very distinguished Member of the House 
of Representatives and one of the key authors in the 1978 act. 
So both Dr. Bradamus and the judge's books we will file. 
Without objection, so ordered.
    [The prepared statement of Hon. Stephen Horn and the text 
of H.R. 4187 follow:]
[GRAPHIC] [TIFF OMITTED] 80152.313

[GRAPHIC] [TIFF OMITTED] 80152.314

[GRAPHIC] [TIFF OMITTED] 80152.315

[GRAPHIC] [TIFF OMITTED] 80152.316

[GRAPHIC] [TIFF OMITTED] 80152.317

[GRAPHIC] [TIFF OMITTED] 80152.318

[GRAPHIC] [TIFF OMITTED] 80152.319

    Mr. Horn. We will now get to panel one. As you know, this 
is an investigatory subcommittee, and if you have any aides 
helping you to answer the questions, we'll also put them under 
oath.
    [Witnesses sworn.]
    Mr. Horn. Thank you. The clerk will note that all four 
witnesses have affirmed the oath.
    We will go as it is in the agenda, and that is by Jonathan 
R. Turley, professor of law, George Washington University Law 
School.
    I'm going to yield first to the gentleman from California 
and the ranking member for the minority.
    Mr. Waxman. Good morning. Thank you very much, Mr. 
Chairman.
    I'd like to commend you and Representative Schakowsky for 
the work you've done on H.R. 4187. I believe it's a good bill 
and a necessary one. That's why I joined you and Chairman 
Burton as original cosponsors.
    The Bush Executive order which changes the management of 
the Presidential Records Act is seriously flawed. The order 
takes a law that was designed to make documents readily 
available to the public and establishes procedures that are 
designed to block access.
    In 1989, President Reagan issued an Executive order to 
implement the Presidential Records Act. This order set up a 
process for claims of executive privilege by former Presidents 
to be reviewed and evaluated. The new order by President Bush 
eliminates any review. Any claim of executive privilege, 
legitimate or not, must be followed by the Archivist. Once a 
former President claims executive privilege, President Bush's 
order also makes it very difficult for a citizen to challenge 
that claim. In order to prevail in court, the order requires a 
citizen to show a demonstrated and specific need for the 
documents. How do you do this if you are denied access to the 
documents?
    President Bush's Executive order even appears to establish 
a process for extending executive privilege to former Vice 
Presidents. The first beneficiary of this new process would be 
his own father. No court has ever recognized such a right for 
Vice Presidents.
    H.R. 4187 revokes the misguided Executive order issued by 
President Bush. In its place, it essentially codifies the terms 
of the Executive order issued by President Reagan. H.R. 4187 
also puts into law specific time limits for the review of 
documents, thereby preventing current and former Presidents 
from delaying decisions indefinitely.
    I hope we can move this bill through the committee quickly 
and then bring it before the House. I want to commend you and 
express my strong support for your efforts.
    [The prepared statement of Hon. Henry A. Waxman follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.320
    
    Mr. Horn. I thank you for that.
    We now have the gentleman from northern California, Mr. 
Ose, for an opening statement.
    Mr. Ose. Thank you, Mr. Chairman. I appreciate the 
opportunity to join in this morning, and I do have an opening 
statement.
    In the 1978 Presidential Records Act, Congress clearly 
intended to make Presidential records available for 
congressional investigations and then for the public after a 
12-year period. The act authorized the National Archives and 
Records Administration to issue implementing regulations.
    President Reagan's 1989 Executive Order 12267 expanded on 
NARA's implementing regulations. This order clarified some 
areas not specifically addressed in the regulations. Most 
importantly, the order identified only three areas where access 
to Presidential records could be limited: if disclosure might 
impair national security, law enforcement issues, or the 
deliberative processes of the executive branch--clearly, 
logical exclusions.
    However, President Bush's 2001 Executive Order 13233 
changed these access limitations. In a nutshell, law 
enforcement was dropped and two areas were added. The first 
area is communications of the President or his advisors, 
commonly known as the ``Presidential communications 
privilege,'' and the second one is legal advice or legal work, 
which is the attorney/client or attorney work product 
privileges. Both of these added provisions could severely limit 
congressional access to key documents in its investigations of 
a former or current administration.
    Last November, a week after issuance of President Bush's 
order, I raised concerns in the subcommittee's hearing on the 
order. I questioned the administration about the legal and 
substantive justification for this or other policy changes of 
this nature. After the hearing and further discussions with the 
administration, I'd hoped that the administration would amend 
or revoke its order. Unfortunately, it has not done so. As a 
consequence, I believe that legislation is needed to void the 
order--that's the Bush order--so that the Reagan order will 
again govern access to Presidential records. H.R. 4187, the 
Presidential Records Act Amendments of 2002, by the chairman 
would do just that.
    The Bush order violates not only the spirit but also the 
letter of the Presidential Records Act, period. It undercuts 
the public's rights to be fully informed about how its 
Government operated in the past or operates today, period. It 
needs to be rescinded, period.
    I yield back.
    [The prepared statement of Hon. Doug Ose follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.321
    
    Mr. Horn. I now yield to the gentleman from Kentucky, Mr. 
Lewis. We're delighted to have you here.
    Mr. Lewis. Thank you, Mr. Chairman. I have no opening 
statement. Thank you, though.
    Mr. Horn. OK. Well, we will then proceed with Jonathan R. 
Turley, the professor of law for the George Washington 
University Law School.
    Professor Turley.

   STATEMENT OF JONATHAN R. TURLEY, PROFESSOR OF LAW, GEORGE 
                WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Turley. Thank you, Chairman Horn. It is an honor to 
once again appear before this subcommittee and its 
distinguished members. I know that your time is limited today, 
and so, with the consent of the committee I would like to 
submit a longer statement into the record. It is also an honor 
to lead a distinguished panel with three men that I have really 
boundless respect for, even though we have some disagreement on 
issues of executive privilege. That includes Professor Rozell, 
who I consider perhaps the Nation's leading expert on executive 
privilege, and Mr. Rosenberg, who is, I think, one of the 
greatest experts within the government on that subject, and 
also Mr. Gaziano, who takes, in my view, a different view of 
the Constitution, but one that deserves most serious attention.
    As many of the members have already heard the oft-cited 
quote of James Madison that a popular government without 
popular information or the means of acquiring it is but a 
prologue to a farce or a tragedy. It is a warning that we all 
have to take to heart, because it establishes a close 
connection between popular government and public information. 
Public information is in some ways the oxygen upon which 
popular government lives and grows and flourishes, and in the 
category of public information there is no information that is 
more illuminating or important than Presidential papers. To 
look at government policy without looking at Presidential 
papers in a timely fashion is like reading the Bible without 
reading Genesis--it misses the very essence and creation of 
public policy when it is created in this country.
    Obviously, when Presidents attempt to restrict access, 
there are suspicions of tailoring a legacy through the control 
of information. That suspicion, unfortunately, has been well 
based historically, as Presidents have changed their position 
on the release of information, depending on its content. As I 
note in my testimony, Richard Nixon is a great example, where 
in 1961 he was a great advocate for the release of information 
after the Bay of Pigs controversy, and then, as we all know, he 
changed his position and changed the government's entire 
philosophy on Presidential records in a series of excessive 
executive privilege assertions.
    It is ironic to appear in a position today to advise this 
committee that I believe that the Executive order of President 
Bush is facially unconstitutional, because I was one of the 
academics that strongly encouraged this administration to 
attempt to repair executive privilege after a series of losses 
during the Clinton administration. So my disagreement with the 
Bush administration is one of degree rather than purpose.
    I'm, quite frankly, perplexed by the executive privilege 
fights that have been selected by this administration. With 
executive privilege in a fairly anemic condition after a number 
of negative rulings, it was essential for this administration 
to select its fights carefully. I do not understand the 
selection process that has been made on this issue or previous 
issues in disagreements or confrontations with Congress.
    In my view, Executive Order 13233 is flawed as a matter of 
law and extremely misguided as a matter of public policy.
    My testimony goes through the history on Presidential 
papers and the disagreements that have occurred between these 
two branches of government. Suffice it to say, for much of our 
period we went through a proprietary period, as I refer to it 
in my testimony, in which Presidents asserted that Presidential 
papers were their personal property. That led to incredible 
historical losses, as Presidents like Grant and Pierce and 
Arthur had their papers destroyed. Some of Abraham Lincoln's 
papers were destroyed, as were other Presidents. Of course, it 
was Richard Nixon that brought a quantum change in this subject 
in the status of Presidential papers, for the most unexpected 
of reasons.
    Out of the Nixon controversy Congress moved to change the 
status of Presidential papers. Congress asserted that those 
Presidential papers are public property. In my view, while this 
is referred to as a ``change,'' I think it is more of a 
recognition. I think the view of private ownership was flawed 
from the beginning and these papers were always public 
property.
    I'd like to move quickly to what I consider to be some of 
the flaws in the Executive order and why this particular piece 
of legislation is warranted.
    In any constitutional analysis of the Executive order you 
have to start, I think, with a conceptual question, and that 
is: if these documents are truly public property, it changes 
the entire dimension of the constitutional analysis. Unless the 
Bush administration is going to challenge that concept, the 
threshold issue of public policy means that this body could 
have designated any other office to hold these papers, 
particularly after 12 years. For example, Congress could have 
established that after 12 years these papers are given to the 
Library of Congress, and thereby none of these executive 
privilege arguments would be compelling except for the ability 
to exert executive privilege and the possibility to go to court 
to protect that.
    So the fact that this body could have given these papers to 
the legislative branch I think informs some of the questions 
here and creates an option, quite frankly, that this body may 
consider.
    The problem with the Executive order is that it is in 
direct disagreement with the language of a Federal statute. An 
Executive order cannot engage in legislation. It cannot reverse 
a legislative decision by this body. As my testimony goes 
through, it does so.
    Since my time is running out, I'll----
    Mr. Horn. I'd just say with all you distinguished 
professors, let's go at least for 10, and maybe 12, and we'll 
give everybody the same thing, and when you're done we will 
have the opening statement of the ranking member.
    Mr. Turley. There are thousands of deceased academics who 
are smiling from Heaven. Thank you. [Laughter.]
    The 5-minute rule is like the final circle of hell for 
someone trained to speak in 50-minute increments.
    Moving beyond the threshold constitutional question, unless 
there is a direct challenge to the constitutionality of the 
PRA, the Executive order cannot contradict or amend what this 
body has previously enacted, but it does so on a variety of 
issues. First, there is a negation of the statutory buffer 
period that the Congress established. In my view, the 12-year 
period is a generous period to allow confidential 
communications to go through a cooling period. After 12 years, 
I think arguments of executive privilege over confidential 
communications are somewhat suspect. It is a long period for 
which public access will be denied.
    Second, it materially changes the role of the Archivist. In 
the PRA, the Archivist is a central player in this legislative 
scheme. The Executive order reduces the Archivist to a bit 
player. It negates his entire role or her entire role to move 
this material as expeditiously as possible into the public 
domain.
    Under the Executive order, a former President can daisy-
chain extensions indefinitely, thereby negating the ability of 
the Archivist to do what this body established as the 
Archivist's responsibility.
    Three, it changes the status of a former President and 
allows the former President to exercise final control over 
records. In my view, this raises not just legal questions in 
terms of the statute, but constitutional questions. A former 
President has been recognized by the Supreme Court to have some 
lingering executive privilege authority, but in my view the 
Executive order takes that limited precedent and moves it far 
too radically in favor of an absolute privilege.
    One of the most baffling aspects of executive privilege is 
to essentially give the heirs or designees the right to use 
executive privilege on behalf of a former President. Under the 
language of this executive privilege, the designee may not even 
be a family member. The designee could be a half-wit. It could 
be a foreign citizen. It could be Rasputin for all we know. You 
could have a foreign citizen exercising executive privilege 
over American documents.
    Now, if one looks at the ``L.A. Times'' recently, you'll 
see that just yesterday the daughters of Richard Nixon have 
gone into a terrible fight over the future of his library and 
papers. That's an example of what this Executive order promises 
for the future. It can turn executive privilege from a limited 
constitutional doctrine into a matter for probate, in which the 
question is who is bequeathed a very important constitutional 
right. Well, the executive privilege isn't an ottoman. It is 
something that cannot be passed down from Presidents to their 
heirs or to their friends.
    More importantly, the Executive order indicates that if a 
President is disabled, where a President may not even agree 
with the executive privilege, that the heirs can simply go to 
court, find the disability, and start to exercise executive 
privilege. In my view, that is an extremely dangerous and 
counterintuitive approach to executive privilege.
    It also changes the burden for the release of documents and 
the standards for access to documents.
    All of these, in my view, violate Federal law and therefore 
also violate the Constitution of the United States in terms of 
this body's inherent legislative authority.
    I'll simply close by noting that I think it is unfortunate, 
but I think that in the last few months we have a case of the 
over-play of a constitutional hand. I think that the Bush 
administration was correct to make executive privilege a 
priority in terms of repairing damage done in the previous 
years, but it has not selected those issues very carefully. 
This is an issue that is enormously important to us as a people 
because it's about our legacy, it's about who we are, and the 
most incredible moment of a Madisonian democracy occurs in 
January when a President is converted from the most powerful 
person on Earth into an average citizen. That's something that 
is as important as the legacy of access to public documents. 
What's at stake here is not a simple, arcane, academic dispute. 
It goes to the very foundations of who we are as a 
Representative Democracy.
    Thank you very much.
    Mr. Horn. Thank you. That's a very eloquent statement.
    [The prepared statement of Mr. Turley follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.322
    
    [GRAPHIC] [TIFF OMITTED] 80152.323
    
    [GRAPHIC] [TIFF OMITTED] 80152.324
    
    [GRAPHIC] [TIFF OMITTED] 80152.325
    
    [GRAPHIC] [TIFF OMITTED] 80152.326
    
    [GRAPHIC] [TIFF OMITTED] 80152.327
    
    [GRAPHIC] [TIFF OMITTED] 80152.328
    
    [GRAPHIC] [TIFF OMITTED] 80152.329
    
    [GRAPHIC] [TIFF OMITTED] 80152.330
    
    [GRAPHIC] [TIFF OMITTED] 80152.331
    
    [GRAPHIC] [TIFF OMITTED] 80152.332
    
    [GRAPHIC] [TIFF OMITTED] 80152.333
    
    [GRAPHIC] [TIFF OMITTED] 80152.334
    
    [GRAPHIC] [TIFF OMITTED] 80152.335
    
    [GRAPHIC] [TIFF OMITTED] 80152.336
    
    [GRAPHIC] [TIFF OMITTED] 80152.337
    
    [GRAPHIC] [TIFF OMITTED] 80152.338
    
    [GRAPHIC] [TIFF OMITTED] 80152.339
    
    [GRAPHIC] [TIFF OMITTED] 80152.340
    
    [GRAPHIC] [TIFF OMITTED] 80152.341
    
    [GRAPHIC] [TIFF OMITTED] 80152.342
    
    [GRAPHIC] [TIFF OMITTED] 80152.343
    
    [GRAPHIC] [TIFF OMITTED] 80152.344
    
    [GRAPHIC] [TIFF OMITTED] 80152.345
    
    [GRAPHIC] [TIFF OMITTED] 80152.346
    
    [GRAPHIC] [TIFF OMITTED] 80152.347
    
    [GRAPHIC] [TIFF OMITTED] 80152.348
    
    [GRAPHIC] [TIFF OMITTED] 80152.349
    
    [GRAPHIC] [TIFF OMITTED] 80152.350
    
    [GRAPHIC] [TIFF OMITTED] 80152.351
    
    [GRAPHIC] [TIFF OMITTED] 80152.352
    
    [GRAPHIC] [TIFF OMITTED] 80152.353
    
    Mr. Horn. Now I yield to the gentlewoman from Illinois, Ms. 
Schakowsky, for an opening statement.
    Ms. Schakowsky. Thank you, Mr. Chairman, for holding this 
legislative hearing and for your pursuit of the public's right 
to know. I look forward to working with you to move this bill 
quickly through the committee process and convincing the 
Republican leadership of the House to allow a vote on the bill.
    I appreciate Mr. Turley's testimony and look forward very 
much to the others, and just want to make these comments.
    President Bush has made an unprecedented assault on the 
public's right to know. In doing so, the President has 
challenged the Congress and is attempting to keep the public in 
the dark. The intent of the Presidential Records Act is clear. 
Deliberative documents are to become public after 12 years. 
President Bush's intent is equally clear. He intends to do 
everything in his power to keep deliberative Presidential 
documents out of public hands.
    Vice President Cheney refused to tell the GAO who he met 
with in developing the administration's energy policy. He 
claimed that to do so would make it difficult for the President 
to get unvarnished advice; however, the President's Executive 
order on Presidential records makes it clear that the goal is 
to try to keep these documents from the public forever.
    The President's men do not fear that the advice will be 
tarnished. Their fear is that the public will discover their 
real motivations for drilling in Alaska, for the tax cut, or 
for privatizing Social Security.
    In reality, the legislation we are discussing today I 
believe is really a gift to President Bush. It's a way out. He 
and his administration should support it. I don't think the 
President and his men want to have a Papergate on their hands.
    Secretary Evans is fighting the Congress and the public 
over releasing corrected census counts. The courts have been 
clear that these numbers should be public not deliberative and 
should be released. Still, the administration persists.
    When the Attorney General learned that the court had 
ordered the census data released, he called in a new team of 
lawyers to plead for reconsideration. They, too, failed, but in 
doing so they laid the groundwork for the administration's 
defense of not releasing the energy information.
    The list of secret activities goes on and on--energy, 
census, tobacco, health and the environment, to name just a 
few.
    The Executive order that led to the bill before us today is 
particularly outrageous. First, it makes it easier for 
Presidential records to be withheld from the public, just the 
opposite of the reason Congress passed the act in the first 
place. Second, the order tries to extend that protection into 
the grave by giving the President's family or representatives 
the right to assert executive privilege. If that weren't 
enough, the order then tries to give executive privilege to the 
Vice President. We've got Presidents, past Presidents, Vice 
Presidents, dead Presidents.
    We should not have been surprised at the goal of this 
order. Just before the President left Austin, he made a deal to 
move his gubernatorial papers out of the State archive to his 
father's library, where no one can gain access to them. Those 
are public records that do not belong to President Bush, Senior 
or Junior.
    The Presidential Records Act was a high-water mark for 
Congress. It asserted the public's right to know how the 
administration does business in an unprecedented way. For the 
first time in the country's 200-year history, the public was 
granted access to the documents that guided policy at the 
highest levels. Now, just as the act is beginning to have an 
effect, President Bush wants to undo it.
    Again, I have to ask: What is he trying to hide? Is there 
something in his father's papers about the Iran contra scandal 
that would embarrass the family? Or did the President's 
advisors know that the Reagan tax cut would drive the 
government into deficit, just as the Bush tax cut has? Reagan's 
Interior Secretary James Watt was convicted of withholding 
documents from a grand jury investigating the scandals at HUD. 
Do these papers tell more of that story? Just what is it they 
are trying to hide?
    Thank you, Mr. Chairman.
    [The prepared statement of Hon. Janice D. Schakowsky 
follows:]
[GRAPHIC] [TIFF OMITTED] 80152.354

[GRAPHIC] [TIFF OMITTED] 80152.355

    Mr. Horn. We now move to Morton Rosenberg, the specialist 
in American public law for the Congressional Research Service, 
Library of Congress, a group that we count on to give us a 
bipartisan, correct view.

 STATEMENT OF MORTON ROSENBERG, SPECIALIST IN AMERICAN PUBLIC 
   LAW, AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH SERVICE

    Mr. Rosenberg. Thank you for having me here today. This is 
an important subject and one that needs immediate attention, 
which your committee is giving.
    Let me start with my conclusion. I believe that Congress' 
authority over the papers of past Presidents has been 
recognized by the Supreme Court and lower courts since 1977. 
Your bill, H.R. 4187, is well within the parameters of its 
acknowledged authority in this area. The bill, therefore, may 
repeal Executive Order 13233 and replace it with procedures 
that assure an opportunity for former and incumbent Presidents 
to assert constitutionally based privileges.
    Moreover, the substantial legal and constitutional 
questions that have been raised by key provisions of the 
Executive order gives further impetus to the congressional 
option of enacting a legislative solution immediately by 
legislation rather than waiting for the outcome of litigation 
that is likely to be quite extended and might not even be 
dispositive of the merits issues.
    Finally, I believe that experience under the order suggests 
that unilateral delay is a strong likelihood, despite the 
recent release of all but 150 pages of the originally withheld 
68,000 pages. Millions of pages of documents are yet to be 
processed, and the potential for unwarranted delay, however, 
remains embedded in this order.
    As you well know, the President's order has precipitated 
much controversy and resulted in this being the third hearing 
by this committee, the filing of a lawsuit challenging the 
legality of the order, and an outpouring of public commentary.
    I believe this has well served the committee's concerns 
with the legal and practical problems raised by the order with 
respect to the effective implementation of the Presidential 
Records Act.
    The bill would repeal Executive Order 13233 and establish a 
new process for consideration of claims of constitutionally 
based privileges by past and incumbent Presidents.
    Like the President's order, the bill would require the 
Archivist to notice past and present Presidents of his 
intention to publicly release Presidential records that have 
not been made previously available. The Archivist would be 
required to withhold records or parts of records for which 
incumbent Presidents claim privilege. Under the bill's scheme, 
a requester would have the burden of going to court to 
challenge the withholding, and the Archivist could not release 
the materials until the court so ordered or the privileged is 
waived by the incumbent President.
    But with respect to a former President, the bill provides 
that, after a review period by him of 20 work days, which may 
be extended to an additional 20 work days, the Archivist may 
release the records unless the past President invokes 
privilege, and on receipt of the privilege claim the Archivist 
must wait 20 days before releasing the subject material unless, 
before the expiration of that period, the past President 
initiates a legal action under Section 2204(e) of the act and a 
court enjoins the release of those papers.
    Claims of privilege under your bill would have to be in 
writing, specify the record or the portion of the record to be 
withheld, be signed by the incumbent or past President, and 
state the nature of the privilege.
    The bill, I believe, would appear to raise no substantial 
constitutional or legal questions. There would appear to be no 
question that Congress may repeal an Executive order. Well over 
200 orders have been revoked or modified since the second 
Cleveland administration. Nor do the procedures adopted in the 
bill materially differ from those found constitutionally 
appropriate by the Supreme Court in Nixon v. Administrator of 
General Services dealing with the Nixon papers, or subsequent 
lower court rulings treating issues under the Nixon papers 
legislation.
    H.R. 4187 does not appear to interfere with the ability of 
a former or incumbent President to exercise to the fullest 
extent the protections of executive privilege accorded them 
under the Constitution and the case law interpreting the scope 
of that privilege.
    The D.C. Circuit's rule in Public Citizen v. Burke would 
appear particularly supportive in its holding that an attempt 
by the Justice Department to force the Archivist to acquiesce 
in any claim of privilege asserted by former President Nixon, 
and thereby block disclosure of materials, was inconsistent 
with the Presidential Recordings and Material Preservation Act 
and a regulation promulgated pursuant to it which empowered the 
Archivist to reject claims of privilege and which required the 
former President to seek court redress.
    The court set the standard with respect to such a provision 
as one that would afford an opportunity to Mr. Nixon to assert 
his privileges. The opportunity to assert constitutionally 
based privileges is fully accorded to the former and incumbent 
Presidents under your bill, and therefore is likely to be held 
constitutional.
    As Professor Turley has pointed out, the Executive order is 
considerably flawed. I think the most serious flaw in it, as 
Professor Turley has pointed out, is the denigration of the 
role of the Archivist. If you look at the litigation in 
American Historical Association that is presently going on, the 
view espoused by the government in attempting to defend against 
the suit is essentially that the Archivist, who was appointed 
by the President and is removable by him, is beholden to him. 
It is an assertion or a reassertion of what I believe to be a 
now-discredited theory of unitary executive, and it totally 
ignores both the case law with regard to Congress' authority in 
an area such as this, as well as another line of case law which 
has rejected the idea of the hierarchical nature of the 
executive branch.
    As Professor Turley has pointed out, the PRA is the product 
of a history which, prior to 1974, Presidents exercised 
complete control over Presidential papers.
    Following the resignation of President Nixon in 1974 and 
his attempt to, through an agreement with the Administrator of 
General Services to maintain control of his papers, Congress 
acted to take control of official records of Presidents and 
enacted the Presidential Recordings and Materials Preservation 
Act, which directed GSA to take custody of all tape recordings 
and other Presidential materials accumulated during that 
Presidency and required the Administrator to promulgate 
regulations governing access. The Supreme Court upheld that act 
as facially constitutional.
    But the controversy over the Nixon papers prompted further 
action by the Congress, and that reconsideration resulted in 
the passage of the Presidential Records Act in 1978, which 
terminated the tradition of private ownership of Presidential 
papers and reliance on volunteerism to determine the fate of 
their disposition.
    Under the PRA, the Archives Administration and the 
Archivist are given total control of the management, 
preservation, and ultimate public dissemination of records of 
past Presidents, which are made the property of the United 
States. The act gives specific directions for the custody and 
administration of such records, the end goal being the 
affirmative duty of the Archivist to make such records 
available to the public as rapidly and as completely as 
possible.
    This encompassing supervisory role of the Archivist is 
central to the accomplishment of the congressional purpose. 
Section 2203 (a) and (b) directs the President, under the 
supervision of the Archivist, to ensure adequate documentation 
and to categorize and file appropriately those documents to the 
extent practicable. It restricts the President while in office 
from disposing of those materials.
    The directions in the PRA start with a new administration, 
ensure that records are preserved, ensure that, during the 
period of an administration that--for instance, if a President 
wants to destroy records, that the Archivist has a say over it, 
and ultimately they can come to Congress and lay before--the 
Archivist can come to Congress and place before Congress for a 
60-day period a stay on disposition of records that allows the 
Congress to stop any kind of destruction of documents. It 
continues after, of course, a President leaves office.
    This entire scheme is a complete scheme that, as two courts 
recently have held, occupies the field of Presidential 
documents. In those two cases, one during the Clinton 
administration and the second in this Bush administration, 
involved Executive orders that attempted to circumvent certain 
labor laws established under the National Labor Relations Act, 
which makes the National Labor Relations Board the focal point 
of regulating and facilitating collective bargaining in the 
private sector. Both those orders by President Clinton and 
President Bush altered the scheme, and in both those cases the 
courts declared those Executive orders unlawful, essentially on 
the ground that Congress had delegated the authority with 
respect to regulation in those areas specifically by law to 
another office of the United States, and the President, by 
Executive order, could not change them.
    The question with respect to the power of a President over 
subordinates whom he can fire is perhaps one of the most 
important constitutional issues of this day and past days. The 
question presented by the government's assertions in the 
American Historical Association case is whether the President, 
as in this--is whether the President may direct the head of an 
agency to alter his judgment as to the appropriate manner in 
which he complies with specific congressional mandates to him, 
or even displace the judgment of the agency head by acting on 
his own.
    Based on a long line of Supreme Court precedents, this 
question presents very little difficulty. The President does 
not have the authority to displace the ultimate decisionmaking 
power vested in the head of an agency by Congress. The Supreme 
Court rulings in Morrison v. Olson in 1988 and Mistretta v. the 
United States in 1989 have clearly dispelled the notion that 
executive power is hierarchical and uniquely vested in the 
President, alone--the so-called ``theory of the unitary 
executive.'' Morrison and Mistretta confirmed what has been 
understood since the dawn of the republic--that the President's 
duty under Article Two to take care that the laws are 
faithfully executed vests him with no supervening substantive 
power, but simply is meant to enlist him to ensure that 
subordinates in whom Congress vests the duty to carry out its 
directions do so scrupulously.
    Historically, Article Two has been seen as clearly 
anticipating the creation of an administrative bureaucracy by 
mentioning heads of departments, and the necessary and proper 
clause makes it certain that it would be Congress, alone, that 
would do the creating. In this scheme, Congress can assign to 
the head of a department or a subordinate official executive 
power not textually reserved to the President in Article Two. 
Moreover, Congress has properly understood that the take care 
clause has not been read by the courts to vest absolute power 
in the President over heads of departments and other 
subordinate officials. That clause has been held to require 
only that the President shall take care that the laws be 
faithfully executed, regardless of who executes them, a duty 
that is quite different from the claim of a single-handed 
responsibility for executing all the laws.
    A literal reading of the take care clause confirms that the 
President's duty to ensure that officials obey--confirms that 
it is the President's duty to ensure that officials obey 
Congress' instructions. It does not create a Presidential power 
so great that it can be used to frustrate congressional 
intention. In the words of the Supreme Court, where a valid 
duty is imposed upon executive officials by Congress, the duty 
and responsibility grow out of and are subject to the control 
of the law and not to the direction of the President.
    In the past, similar claims of broad substantive authority 
deriving from the take care clause have been consistently 
rejected by the courts. The Supreme Court at Youngstown Steel 
is a principal one.
    This constitutional flaw in itself condemns this order and 
commends your action in attempting to repeal it and substitute 
appropriate procedures in its stead.
    Thank you.
    Mr. Horn. I thank you.
    [The prepared statement of Mr. Rosenberg follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.356
    
    [GRAPHIC] [TIFF OMITTED] 80152.357
    
    [GRAPHIC] [TIFF OMITTED] 80152.358
    
    [GRAPHIC] [TIFF OMITTED] 80152.359
    
    [GRAPHIC] [TIFF OMITTED] 80152.360
    
    [GRAPHIC] [TIFF OMITTED] 80152.361
    
    [GRAPHIC] [TIFF OMITTED] 80152.362
    
    [GRAPHIC] [TIFF OMITTED] 80152.363
    
    [GRAPHIC] [TIFF OMITTED] 80152.364
    
    [GRAPHIC] [TIFF OMITTED] 80152.365
    
    [GRAPHIC] [TIFF OMITTED] 80152.366
    
    [GRAPHIC] [TIFF OMITTED] 80152.367
    
    [GRAPHIC] [TIFF OMITTED] 80152.368
    
    [GRAPHIC] [TIFF OMITTED] 80152.369
    
    [GRAPHIC] [TIFF OMITTED] 80152.370
    
    [GRAPHIC] [TIFF OMITTED] 80152.371
    
    [GRAPHIC] [TIFF OMITTED] 80152.372
    
    [GRAPHIC] [TIFF OMITTED] 80152.373
    
    Mr. Horn. We will now go to Professor Mark J. Rozell, the 
Catholic University of America.
    We're glad to have you here.

    STATEMENT OF MARK J. ROZELL, PROFESSOR OF POLITICS, THE 
                 CATHOLIC UNIVERSITY OF AMERICA

    Mr. Rozell. Thank you. Thank you, Mr. Chairman, for the 
opportunity to address the subcommittee.
    I am the author of various studies on executive privilege, 
and I testified last year before this subcommittee that the 
Bush Executive order improperly expands the scope of the 
executive privilege and that it wrongly supersedes Congress' 
legislative authority. There was a very strong consensus at 
that hearing--and the scholarly community has since 
overwhelmingly weighed in--that the Executive order is deeply 
flawed. In addition to violating the traditional standards of 
executive privilege and the legislative power, the Executive 
order unlawfully displaces the decisionmaking authority vested 
in the Archivist. The Executive order, as Mr. Ose said in his 
opening statement, undercuts both the text and the legislative 
history of the Presidential Records Act.
    In our constitutional system of separated powers, the 
President does not have the authority to use Executive orders 
to negate statutory policy, as my colleague Mr. Turley said in 
his opening statement. An Executive order is proper when it 
concerns an independent Presidential power contained in the 
Constitution or some executive power granted by an act of 
Congress. Neither circumstance exists in this case.
    The Supreme Court ruled in Nixon v. Administrator of 
General Services that Congress possesses the power to legislate 
in the area of public access to Presidential papers. No 
legislative enactment authorizes an Executive order to govern 
the release of Presidential records.
    Thus, the question no longer is whether the Executive order 
is legitimate--clearly, it is not--but whether a legislative 
remedy is proper or necessary. I believe that it is well within 
the congressional authority to repeal this Executive order and 
also to define the process for claiming and resolving executive 
privilege claims that arise from requests for the papers of 
past administrations.
    It is not sufficient, in my view, for Congress merely to 
reinstate the Presidential Records Act and to repeal the 
Executive order. The administration, I believe, is correct in 
its view that the Presidential Records Act needs to be 
revisited and that, in hindsight, some of the law's provisions 
may be flawed. And the Executive order raises some legitimate 
points about the practical difficulties of implementing 
Congress' intent under the law in certain circumstances such as 
the disability of a former President. But a legislative remedy 
is the appropriate course of action to solve such problems, 
rather than to allow an Executive order to supersede an act of 
Congress.
    As my colleague, Mark Rosenberg, said in his statement, I 
also believe that a legislative remedy is far preferable to 
waiting for a resolution in the courts or a redrafting of the 
Executive order by the executive branch, which I don't believe 
is forthcoming.
    Presidential papers I believe should be handled by statute 
and not by Executive order. Presidential papers are ultimately 
public documents. They are a part of our national records and 
they are paid for with public funds. They should not be treated 
merely as private papers.
    The Bush Executive order conflicts with the established 
principle that an ex-President's interest in maintaining 
confidentiality erodes substantially once he leaves office and 
it continues to erode over time, and that is quite clearly 
established in constitutional law. Executive privilege exists 
for former Presidents, but the standard for sustaining such a 
claim of privilege is very, very high. Executive Order 13233 
actually allows an ex-President's claim of privilege in almost 
all cases to override a sitting President's judgment, and yet 
executive privilege is an exclusive Presidential power.
    The Bush Executive order creates overly burdensome 
procedures that prevent access to Presidential records. The 
legal constraints built into the Executive order will have the 
effect of delaying documents for years as these matters are 
fought over in the courts. These obstacles, alone, will settle 
the issue in favor of former Presidents, because many with an 
interest in access to governmental records will conclude that 
they do not have the time or financial resources to stake a 
viable challenge. Under the Executive order, the burden shifts 
from those who must justify withholding information onto those 
who have made a claim for the right of access to information.
    The Bush Executive order allows a former President to 
designate a representative to make executive privilege claims 
on his behalf even after the former President has died. In 
testimony before this subcommittee last year, the 
administration's witness stated that a former President ``may 
designate whomever he sees fit.'' Thus, the Executive order 
wrongly allows executive privilege and exclusive Presidential 
power to be transferred to a private citizen.
    Now, as I stated in my November 6, 2001, testimony before 
this subcommittee, I am very dubious about the idea of a 
legislated definition of executive privilege. Very 
appropriately, H.R. 4187 leaves the definition of the scope of 
that power to Presidents and the courts and instead merely 
remedies troublesome procedures over the exercise of the 
privilege. Thus, this bill does not infringe on a President's 
or ex-President's constitutional prerogative. Indeed, the bill 
protects the interests of former and incumbent Presidents by 
establishing a procedure whereby they are provided a reasonable 
time period to review governmental records to consider whether 
to claim executive privilege.
    The bill further requires the Archivist to abide by any 
such claim of privilege by an incumbent President, and it does 
place a burden on those seeking access to such records to seek 
a judicial remedy.
    There is nothing in the bill that suggests the likely 
outcome of any executive privilege dispute. The bill 
appropriately allows such disputes to be settled on a case-by-
case basis, either through a process of accommodation or in the 
courts.
    H.R. 4187 thus fulfills some of the objectives of the Bush 
Executive order without improperly expanding the scope of 
executive privilege. It also allows a reasonable timeframe for 
former and incumbent Presidents to consider a claim of 
executive privilege, which protects the interest of those in 
need of a timely release of information.
    This bill remedies the problem of the Executive order 
displacing the authority vested in the Archivist. Under the 
Executive order, the Archivist loses his or her discretion to 
rule on the propriety of a former President's claim of 
privilege. This provision clearly conflicts with the 
congressional intent of the Presidential Records Act of 1978.
    H.R. 4187 offers a workable middle ground by requiring the 
Archivist to withhold records long enough for the former 
President to file a suit to protect his claim of privilege. 
H.R. 4187 reaffirms the principle that executive privilege is a 
Presidential power that cannot be delegated to some other 
person and cannot be exercised independently by a current or 
former Vice President.
    The bill also reaffirms the important principle that the 
incumbent or former President formally invoke executive 
privilege in writing and specify the reasons for so doing.
    Finally, this bill overcomes a major flaw in a provision of 
the Bush Executive order that requires an incumbent President 
to support a former President's claim of privilege even if the 
incumbent disagrees. This provision clearly violates the 
constitutional requirement that the President take care to 
faithfully execute the law. For a President to uphold what he 
believes may be an improper use of executive privilege by a 
predecessor would violate the Article Two, Section Three Take 
Care Clause of the Constitution.
    In my previous testimony, I expressed a concern that the 
Bush Executive order improperly shifts the burden from those 
seeking to withhold documents to those seeking access to public 
records. Consistent with the intent of the Presidential Records 
Act, H.R. 4187 places the burden once again where it belongs--
on those who want to withhold information. Secrecy occasionally 
is necessary for any government to function, even a democracy; 
but in a democracy the presumption must be in favor of 
openness. In our system of government, secrecy should be the 
rare exception and not the rule.
    Thank you.
    Mr. Horn. Thank you very much.
    [The prepared statement of Mr. Rozell follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.374
    
    [GRAPHIC] [TIFF OMITTED] 80152.375
    
    [GRAPHIC] [TIFF OMITTED] 80152.376
    
    [GRAPHIC] [TIFF OMITTED] 80152.377
    
    [GRAPHIC] [TIFF OMITTED] 80152.378
    
    [GRAPHIC] [TIFF OMITTED] 80152.379
    
    Mr. Horn. Our next presenter is Todd Gaziano, director, 
Center for Judicial and Legal Studies of the Heritage 
Foundation.
    Glad to have you here.

 STATEMENT OF TODD GAZIANO, DIRECTOR, CENTER FOR JUDICIAL AND 
             LEGAL STUDIES, THE HERITAGE FOUNDATION

    Mr. Gaziano. Thank you, Mr. Chairman and other members of 
the subcommittee for inviting me here to testify on H.R. 4187.
    Unfortunately, I must reluctantly disagree with my good 
friends who are testifying with me today and express my grave 
doubts about its constitutionality. I should add, as Professor 
Turley did, that I agree with many of the premises in their 
testimony. I believe they draw some of the wrong conclusions. 
But I am grateful, because I have worked with them in the 
past--particularly Professor Turley--in protecting executive 
privilege in past administrations.
    Let me begin with an important observation about the 
relative openness of the three branches of government. The 
Executive is by far the most open of the Federal branches in 
terms of the release of internal deliberative documents and 
almost every other kind of document.
    As a result of the PRA, which I think is a very important 
and sound legislative act that may have gone a little bit too 
far, all Presidential documents from President Reagan's 
administration onward will eventually be released to the 
public, and I'm very grateful for that.
    Moreover, the President does not have the final say, or a 
former President, for that matter, over whether his claim of 
executive privilege is valid or whether it will prevail over a 
given requester. His claim of executive privilege is 
presumptively valid, as I think it must be under Supreme Court 
in separation of powers law, but it may be overridden by a 
court with proper jurisdiction.
    In contrast, almost no documents maintained by individual 
Members of Congress or the Supreme Court, even those created 
with public funds, are subject to public release, and very few 
are released without the voluntary assent of the Member or the 
justices. We can't examine the Supreme Court Law Clerk's memos 
or memos from one justice to another, even of a case that 
occurred 50 years ago. The heirs of those justices own those 
papers outright. We can't examine the internal memos of Senate 
staff that wrote to Senators about some momentous public issue 
a decade ago, or a copy of any Representative's confidential 
calendar, or a copy of staff notes taken when particular 
interest groups met with a Member. No matter how historically 
relevant or vital that information might be to an informed 
public, it's our tough luck because no law or court can force 
their release.
    But my testimony today is in support of your private 
communications and strategy sessions because I think they are 
necessary for the well-functioning of your branch and of the 
courts, and, as I've explained in my written testimony, I think 
the Supreme Court got it exactly right that for you all to have 
to open up every strategy session would not serve the public 
interest. Nevertheless, Congress probably could require your 
own papers to be opened up to the public. You can do that to 
yourselves, but the constitutional separation of powers imposes 
limits on Congress' attempts to invade or interfere with the 
private sphere of the co-equal branches. You can go so far, and 
the Presidential Records Act in the main is about as far as you 
can go.
    The Supreme Court correctly recognized that 
constitutionally based privileges, including executive 
privilege, are necessarily rooted in the separation of powers. 
The Presidential Records Act of 1978 makes no attempt, as you 
know, to expand or contract claims of executive privilege. 
Instead, it recognizes in Subsection 2204(C)(2) of the codified 
version--and two other places in the statute, I should add--
that the President will assert executive privilege with regard 
to some documents that are otherwise subject to release under 
the PRA.
    Mr. Waxman said that he thought the 12-year period was long 
enough, but, as the legislative history of the PRA makes clear 
in 1978, Senator Percy said he expected executive privilege 
claims to go on for 20 years. Senator Percy and the legislative 
history make absolutely clear that they expected Presidents to 
assert privilege for up to two decades.
    And, as Congress knew at the time when it passed that law, 
the Supreme Court had just ruled a year earlier that some 
constitutionally based privileges survive the individual 
President's tenure. Thus, former President Richard Nixon was 
free to continue to assert executive privilege with regard to 
documents from his administration. The Supreme Court cited the 
practice of the Constitutional Convention with approval. The 
Framers ensured that the records of the Convention would be 
sealed for more than 30 years. I've explained in my written 
testimony why that was important and necessary and serves the 
public interest.
    Let me turn briefly to an analysis of Executive Order 13233 
because I think there has been, in my view, some mis-readings 
of that Executive order.
    President Bush established in that Executive order neutral 
principles for the incumbent and former President to review 
documents subject to release and neutral principles for the 
invocation of constitutionally based privileges. The bulk of 
the Executive order is not only lawful and prudent, but, with 
minor exceptions, I believe practically the only way to 
implement the Presidential Records Act in a constitutional 
manner.
    Most of the outside criticism focuses on a former 
President's invocation of the privileges--which the Supreme 
Court says he can--with respect to documents that contain 
confidential communications or reflect high-level executive 
branch deliberations, but it is even more important for a 
former President to review these kind of documents. It is 
possible, even likely, that only he is aware of the sensitive 
nature of many Presidential documents from his administration. 
He may have a personal recollection of requests for 
confidentially. He has a duty to make sure that, by revealing 
those documents, he doesn't hurt a future Presidents' ability 
to get frank and candid advice.
    Now, I do have a concern with allowing heirs to exercise a 
constitutional executive privilege, but in my view there's 
another way to read the Executive order that maybe the statute, 
the Presidential Records Act, authorized that. There is also 
the precedent, of course. Lady Bird Johnson has been exercising 
control over the Presidential papers, as others did. If that 
reading of the Executive order is right, this is one of the 
areas that you all may be able to legislate, but I'd like to 
explain why I think the President could respond in a different 
way and create a committee of the former President's staff if 
he's deceased to advise him in his privilege decisions.
    Let me turn to another very important, I think, 
misunderstanding of the Executive order. Witnesses today have 
said that they believe the Executive order requires the 
Archivist to follow orders from the previous President, but 
that isn't so. In addition, a witness from the subcommittee's 
earlier hearing asserted that a case called Public Citizen v. 
Burke decided by the D.C. Circuit was inconsistent with a 
former President's exercise of privilege, but that also is not 
correct.
    The D.C. Circuit in that case was concerned about the 
Archivist's duty if he received a conflicting instruction from 
both the former President and the incumbent President. The 
court, in its view, believed that its duty to the incumbent 
President was paramount in that potential conflict rendered the 
directive invalid. That directive, by the way, didn't come from 
President Reagan, so the theoretical conflict was possible. But 
Executive Order 13233 doesn't have that flaw. It is an order 
from the incumbent President telling him that he shall follow 
the former President's invocation, but he is, in a sense, as 
I've explained in the written testimony, ratifying every one of 
the former President's invocations of privilege.
    In that case there's no possible conflict. In that case, 
the Archivist has all of the authority of the former President 
and all of the authority of the incumbent President, and under 
those dual commands--because we know they both possess some 
constitutional authority--I submit the Executive order is 
clear, and in that case the Archivist is not following any 
order from the former President, he's following orders from the 
current one.
    Let me now turn to an analysis of your very-well-intended 
legislation.
    Subsection (C) of the new section to me is the most 
constitutionally problematic. Subsection (C), as you know, 
provides that former President's assertion of executive 
privilege is good for only 20 days, and after that period the 
Archivist must release the documents unless the former 
President has already secured by that point a court order 
barring the release.
    Subsection (C) attempts to convert an executive privilege 
that is presumptively valid and can only be overturned by an 
affirmative court order into a right to delay the release for 
20 days.
    Executive privilege is not just a right to go to court, as 
Mort said. It is a right to bar the release of documents 
pending a court order otherwise, so the President's opportunity 
to go to court is not a cure for the constitutional defect. In 
separation of powers analysis, Congress simply has no power to 
take a Presidential power that is exclusively his, like the 
executive power, like the pardon power, like the Commander-in-
Chief power, and condition it on the affirmative assent of 
another branch of government.
    Let me turn now to what I believe are inadequate and 
inflexible deadlines in Subsection (A)(3). Subsection (A)(3) 
purports to grant the incumbent President or former President 
20 days with the possibility of a 20-day extension to review up 
to millions of documents that are going to be requested. It 
doesn't matter if the President is engaged in a war. It doesn't 
matter if the former President is recovering from a stroke. I 
believe this inadequate 20--inflexible 20 to 40-day timeframe 
for the review of hundreds of thousands of documents is 
imprudent, to say the least, to the extent that it burdens the 
President's ability to exercise his executive power and perform 
other vital duties of his office. I believe it is 
constitutionally suspect.
    Now let me jump--by the way, I make an analogy to the 
Congress' expansion of the power of the President to have 
acting officers serve in Senate-confirmed offices--very 
important offices. They extended it from 120 to 210 days, with 
possibility of extension. And so I believe that the time 
periods under the Executive order are positively speedy. But I 
do discuss in my written testimony one way that you probably 
would have authority to cabin the President's delay, and I 
think it has been constructive that you are attempting to 
engage the White House on that issue.
    The next issue I want to briefly touch on--because Mort has 
at some length--is a flaw I think in several provisions of the 
bill that violate Article Two and Separation of Powers when 
they attempt to make the Archivist the President's superior. 
The Constitution provides that the executive power shall be 
vested in the President, not some of it. The Supreme Court 
properly held that this requires the President's control over 
all officers who exercise significant executive power. That 
decision, by the way, was the Myers decision in 1926 which some 
people believe is completely superseded, but it hasn't been. 
All other Supreme Court decisions make minor exceptions to it, 
but the Supreme Court still recognizes that it's good law.
    Let me address just very briefly Mort's comments. He cites 
the fact in his written testimony that the heads of departments 
are mentioned in the Constitution so this must anticipate that 
Congress would give them statutory authority. Now, it is true 
that the Framers knew that there were going to be departments 
in Government and it is true that it expected Congress to give 
them some specific role to play, but the reasons that the heads 
of department were mentioned in the Constitution twice and in 
both cases were to show that the President controlled them. The 
first time the heads of department are mentioned in the 
Constitution is to signify that they must give their opinion in 
writing on any subject within their Department to the 
President. That, as everyone knows, is a means of control.
    The second time the heads of department are mentioned in 
the Constitution is when it says who shall appoint them. And, 
as the Myers opinion explains in about 300 pages in some 
versions, the Supreme Court has said that was hotly debated 
topic, meant that the President must be able to control them.
    I also have a concern with Subsection (A)(4) that requires 
the President to communicate his claims of privilege to the 
Archivist in a particular way. I submit Congress could not tell 
the President how he must communicate his military commands to 
the troops on the field using congressionally approved memo 
pads in triplicate. The President can communicate his commands 
to his subordinates orally or in writing or any way he chooses, 
and this is an area, when he's exercising his constitutional 
power, I submit that you have no authority over his management 
directives.
    With regard to Morrison v. Olson as my written testimony 
explains, it does muddy the water. I think there has been more 
recent criticism of it than there was at the time. But even if 
the court wouldn't reconsider it today, I believe that even 
that court wouldn't sanction so basic a violation of executive 
power regarding the interests identified in this legislation.
    Let me touch one more concern, and that's with regard to 
this committee or Congress' ability to overturn the Executive 
order.
    I clearly think, by the way, that is more likely to be 
upheld than affirmative obligations, but I think both are 
unconstitutional.
    Congress' power to modify or overrule a Presidential 
directive depends on the front of the President's authority 
over the subject matter of the directive. With the chairman's 
request, I have cited a study that I published a year ago on 
the use and abuse of Executive orders and other Presidential 
directions.
    Congress certainly can revoke Executive orders based on 
where the President is exercising a statutory power, and I was 
fully in support of revoking a lot of President Clinton's 
Executive orders. Where the President is exercising a power you 
give him, clearly you can revoke those Executive orders, so 
those may comprise all of the 200 orders that you all have 
revoked. When you have shared powers, you all have some 
authority, but it depends on the facts and circumstances and 
clauses, as I've explained in my written testimony. But with 
regard to powers like the executive powers that are conferred 
solely on the President by the Constitution, Congress has 
practically no authority to interfere with the President's 
management decision.
    Although Executive Order 13233 relates to the 
implementation of the PRA, at its core it establishes 
procedures for the invocation of the President's constitutional 
powers.
    In short, I think that it would be the legislation that 
would be deemed to have no force and effect if it were passed, 
and not the Executive order.
    Let me tell you again that I think that this committee's 
hearings have been very constructive. By highlighting the 
concerns of the historians, journalists, and others regarding 
the time in which the President reviews documents subject to 
release under the PRA, I hope you have helped convince the 
White House to speed up its review process, although I think 
waging a war is cause for some delay, and having to do it the 
first time, as President Bush did, is also a reason for some 
delay.
    But, notwithstanding the good intentions of the legislation 
and these constructive hearings, my sincere and respectful 
advice is that further progress will be advanced more 
effectively based on an exchange with the White House rather 
than on legislation that purports to dictate terms to the 
President. I think under those circumstances, if I were in the 
Justice Department, I would have to reluctantly urge a veto.
    Thank you.
    Mr. Horn. Thank you.
    [The prepared statement of Mr. Gaziano follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.380
    
    [GRAPHIC] [TIFF OMITTED] 80152.381
    
    [GRAPHIC] [TIFF OMITTED] 80152.382
    
    [GRAPHIC] [TIFF OMITTED] 80152.383
    
    [GRAPHIC] [TIFF OMITTED] 80152.384
    
    [GRAPHIC] [TIFF OMITTED] 80152.385
    
    [GRAPHIC] [TIFF OMITTED] 80152.386
    
    [GRAPHIC] [TIFF OMITTED] 80152.387
    
    [GRAPHIC] [TIFF OMITTED] 80152.388
    
    [GRAPHIC] [TIFF OMITTED] 80152.389
    
    Mr. Horn. The chairman of the full committee has arrived, 
and I will yield such time as he needs.
    Mr. Burton. Thank you, Mr. Chairman.
    How long have you been in the White House? How long have 
you been in government?
    Mr. Gaziano. I was in government. I'm at the Heritage 
Foundation now. I was in the Office of Legal Counsel in three 
different periods, which is the office that advises the 
President on executive privilege.
    Mr. Burton. OK. Well, I have an opening statement I'd like 
to put in the record, Mr. Chairman. I was going to read it, but 
after listening to the dissertation of the gentleman that just 
spoke I think I'll speak off the cuff.
    We had a--so without objection I hope you'll put this in 
the record.
    Mr. Horn. Without objection, it is in the record at this 
point. And if you want it, it will be as if spoken.
    Mr. Burton. Thank you, Mr. Chairman.
    [The prepared statement of Hon. Dan Burton follows:]
    [GRAPHIC] [TIFF OMITTED] 80152.390
    
    [GRAPHIC] [TIFF OMITTED] 80152.391
    
    [GRAPHIC] [TIFF OMITTED] 80152.392
    
    [GRAPHIC] [TIFF OMITTED] 80152.393
    
    [GRAPHIC] [TIFF OMITTED] 80152.394
    
    Mr. Burton. You know, this Executive order goes too far. 
That's all there is to it. It just goes too far. And we had a 
similar situation where the President claimed executive 
privilege after I talked to him about a fellow who was in 
prison for 30-some years for a crime he did not commit and the 
FBI knew he didn't commit it and they kept him there because 
they were protecting informants from the mafia. And the 
President said that we weren't going to get those documents 
under any circumstances. And so I said I was going to move to 
hold the President in contempt of Congress, and then we got the 
documents.
    Now, you know, you can go into all the hyperbole you want 
to about the President's rights and all that other thing, but 
he's got to work with the Congress of the United States and 
he's got to have votes to pass a budget and appropriation bills 
and everything else.
    Now, the practical matter of the situation is this: one 
House is Democrat and the other he has about a six-vote 
majority that's Republican. Now, if this Executive order stands 
and the Congress can't have access to the Presidential records 
that we need, he's going to have big problems with me. That's 
one vote. And when he needs a crucial vote on the budget or on 
appropriations or other things, he's not going to get it.
    Now, the message--I don't know if anybody is here from the 
White House. It doesn't look like many people are paying much 
attention. But for the White House to block the Congress from 
documents that they rightfully have access or should have 
access to is absolutely insane. Now, he can say all he wants to 
that he has the right to do this, and he can go into all the 
technical aspects of the Constitution that you believe gives 
him that right, but from a political standpoint, with the 
political situation in Washington being what it is right now, 
it makes no sense to me. For him not to allow Congress to see 
President Clinton's records or his father's records or Ronald 
Reagan's records or Jimmy Carter's records over there without 
them signing-off on it when Congress may need those for 
pertinent investigations that deal with corruption or illegal 
campaign contributions coming from communist China or Macao or 
Indonesia or South America or wherever they came from, or other 
things, is just wrong.
    So I think this legislation has merit, and if the 
legislation gets to the floor and it is explained properly, I 
believe it will pass. And if he vetoes it, he vetoes it at his 
own peril. And you're hearing this from a Republican that 
supports him a great deal. I think he's doing a great job on 
the war on terrorism. I think he's doing a great job in the 
economy. He's my kind of guy. He says it like it is. But 
somebody down there--Mr. Gonzales or somebody is giving him 
pretty bad advice. They gave him bad advice on the Salvati case 
over at the Justice Department, and as a result the White House 
got egg all over its face because they gave us the documents 
anyhow. We had to force it.
    Now, I don't understand why when people sometimes become 
President, they listen to people who say self flagellation is 
the way to go. Let's just get a cat-of-nine-tails and beat the 
hell out of ourselves. It makes no sense.
    Now, I don't know if you still have influence down at the 
White House or not, but I hope you'll take my statement and 
take it back down there.
    Mr. Gaziano. I'll----
    Mr. Burton. Just give it to the President. He probably is 
going to get this at some point.
    Mr. Gaziano. He would get it anyway, but I'll be glad to.
    Mr. Burton. But the point is I really like this guy. I have 
been down there. I've had dinner with him and his wife. I've 
gone to the movies at the White House. I think Laura Bush is a 
wonderful lady. I think he's a great guy. But somebody is 
leading that guy down the wrong path on some of this stuff and 
it needs to be cleaned up.
    Mr. Gaziano. I'm sure he would read your remarks, or the 
White House will, but I'll be glad to pass on the emotion.
    And let me tell you how much I admire----
    Mr. Burton. You don't need to pass emotion. The words will 
carry the emotion.
    Mr. Gaziano. I'm sorry. Let me tell you how much I admire 
your work, and when I served on a subcommittee under you how 
much I tried to help the late, great Barbara Olson in her 
endeavors, and I've worked with both Mort and Professor Turley 
on some of the individual disputes. Comity is owed both 
directions between the White House and Congress. And when I was 
an oversight staffer, I think your points are absolutely valid 
that the White House needs to respond to the legitimate 
concerns of over-using executive privilege.
    I do differ in one minor respect though, for the record. I 
haven't followed every last detail of this President's 
invocation of executive privilege, but I think that this 
administration really does have a different approach than the 
previous administration. And it may not appear that way, and 
maybe if I was doing oversight still for this committee I 
would----
    Mr. Burton [assuming Chair]. I appreciate your comments, 
but Congress still has power of the purse and they still have 
power over taxation and everything else that the President 
needs and appropriations, you know, and with the political 
situation being like it is with her party controlling the 
Senate and us controlling the House by a small majority, it 
doesn't make any sense for them to be pulling these stunts 
because it doesn't work, and we've already proven it once when 
we had to take on the Justice Department. So they need to get 
some smarts down there. They're doing a great job in a lot of 
areas, but somebody has got them stepping on the long hair 
running down their back, and it's a mistake.
    Did you have any comments you want to make, or did you want 
to go to questions?
    Would you like to start? I yield to Ms. Schakowsky. Go 
ahead.
    Ms. Schakowsky. Thank you, Mr. Chairman.
    This has been a level of testimony that doesn't often 
happen at all of our committees, and I appreciate the academic 
approach that all of you have taken, and actually would--
because there was such a difference of opinion expressed here, 
and not to gang up on you, Mr. Gaziano, but because you had the 
last word, I would actually like to ask the other three who 
might differ in opinion with yours to comment on some of the 
very different conclusions that you arrived at from their 
testimony, and one that I would like to definitely address is 
this question of the short-time period that Mr. Gaziano says 
that he feels that the time limits imposed on the President are 
much too short. So that's just one of those. But I noticed that 
you were taking some notes, and I would appreciate your sharing 
your views that might run different to his.
    Mr. Turley. First of all, I try not to disagree with Todd, 
because it indicates most likely that I'm wrong, but our 
disagreements I think reflect a different view of executive 
privilege and its limits.
    The examples that Todd gave I think are good ones, 
actually, for the committee to consider. When Todd refers to 
this body requiring the President to communicate in a certain 
way, and the analogy driven by Todd is, you know, could you 
require him to speak to his military commanders in the field 
using particular forms, I think that actually is a good 
example, but I think it cuts the other way.
    The difference between President Bush communicating with a 
military officer in the field is that it's a conversation 
occurring within the branch. The difference in this 
circumstance is you have two branches involved. This is a 
conversation between two branches, and the Constitution doesn't 
allow one branch to control that conversation.
    I think that this body can impose some methodology, some 
procedure by which it will communicate with the executive 
branch and the executive branch will communicate with it. I 
think that it is----
    Ms. Schakowsky. I'd just ask you that he argued that--and I 
suppose you could argue that, yourself--that if one branch 
can't--doesn't control the conversation, then does the Congress 
have the right to prescribe the way the President would 
communicate with it?
    Mr. Turley. I think that it does, because the question is 
whether the prescribed period cuts back upon the constitutional 
authority. That is, you cannot prescribe a period that would 
negate the constitutional authority of the President, but we're 
not talking about 20 days. We're talking about 20 days plus 12 
years. So when you look at 20 days, it looks actually sort of 
short for most of us, particularly those of us who are 
procrastinators. Twenty days can go by pretty quickly. But it's 
not 20 days. It is a 12-year period, and this is an important 
date on the calendar of any former President. So I believe that 
period does not cut back on the constitutional authority of the 
President. I think it can be prescribed.
    But I do believe that we have to think seriously about Mr. 
Gaziano's view, because it is a well-founded one, and for that 
reason I think that you should put in a severability clause 
into this bill to say that if the issue of writing or days is 
found to transgress upon executive privilege, that it can be, 
in fact, struck down by a court and the bill survive.
    Ms. Schakowsky. Thank you for that suggestion.
    Go ahead.
    Mr. Gaziano. And then the other thing is that the example 
of executive privilege in the analogy to pardons I think is 
also a very good thing to focus on. There is a difference 
between a constitutional right that is expressly given to the 
President in terms of pardons and a constitutional right that 
was defined by the Supreme Court.
    I happen to agree, actually, with Professor Rozell who made 
a terrific history of this to show that this privilege really 
does go back to George Washington, but it was articulated in 
its modern form by the Supreme Court in the Nixon cases. But it 
is not the pardon power. That is, it is a limited and 
conditional privilege. It is a privilege that, in Nixon v. 
Administrator of General Services, the court said, erodes over 
time. And so it is not the same thing, and so it is in that 
ambiguity that all of us are struggling, I think--struggling in 
good faith.
    But I don't want to dominate this response. I would like to 
give my colleagues a chance.
    Mr. Rosenberg. Just a couple of comments. I've known Todd 
for a long time, and I think it is very difficult not to 
disagree with him, but we come from different perspectives, 
obviously.
    With regard to the length of time, I think the Congress can 
prescribe it. I think Professor Turley has hit on the key 
aspect that this is at the end of a 12-year period of 
accumulation by the Archivist, and during which time the former 
President has had opportunity to make claims, to restrict 
various categories of documents, and as those come through--and 
then, of course, the Congress has provided ex-Presidents with 
sufficient staff, and I think perhaps they will be even more 
utilized to screen documents and to know and to be able to go 
back to them to see what documents they want to claim privilege 
for.
    With regard to making the former President and the present 
President put in writing, I don't understand how you could take 
exception to that. As Professor Turley and Todd understand, the 
executive privilege is a qualified privilege which can be 
overcome by certain levels of showing of necessity and 
unavailability. It is a higher burden with regard to an 
incumbent President, but, as Nixon v. Administrator of General 
Services, made very, very clear, it is not so high with regard 
to ex-Presidents.
    This qualified privilege then has to be justified at some 
particular point. It is presumptive, but presumptive doesn't 
then allow and mean that nobody can look at what they want.
    In this kind of--as the chairman is well aware, when 
privilege claims are made, one of the things we want to know 
about documents, since we can't see the documents, we require 
that a privilege law be submitted to the particular committee, 
you know, against which a claim of privilege is made so that we 
can at least know what kind of a document we're talking about, 
when it was executed, what its general subject matter is, and 
that's an important part of the investigative process and of 
determining what kind of deference or consideration to give the 
claim of privilege.
    To request or require under a statute that a President or 
an ex-President put in writing the claim of privilege seems to 
me to be important so that there can be an assessment that goes 
on during this period. Without it, we're kept in the dark and 
kept at bay.
    I think that in that respect the time limits are 
appropriate. The requirement of writing is almost implied in 
the case law that a President has to claim himself and, you 
know, make it clear, you know, that he is--as President Bush 
did when he claimed executive privilege, and as President 
Reagan and the first President Bush did. So I think this is an 
unexceptionable requirement.
    Mr. Gaziano. Certainly Congress' subpoenas are different 
than--to the extent that you subpoena documents, I think 
Professor Turley is absolutely right that it is a communication 
between the branches and you certainly accommodate--suggest you 
can require writing an explanation kind of privilege log, I 
hope with the exception that if it implicates national security 
that the President can take other precautions, as Dean Kmiec 
has pointed out in his prepared testimony, it is not just that 
it be in writing, but it is the type of writing that raises 
concerns.
    But with respect--this legislation requires the President 
to communicate to the Archivist all of these formalities 
whenever he is invoking privilege as against anybody, and that 
is an internal executive branch communication that is analogous 
to the military hypothetical that I gave, and there I think 
lies a much more constitutional question.
    Very briefly, with regard to the point that this is after 
12 years and it's not just 20 days, a new President coming in 
office could never have looked at those documents, and if there 
are millions of documents requested, he has an obligation to 
see that national security materials are gleaned out, and he 
can't rely on the fact that the former President may have done 
so.
    I also submit it's a little bit curious that, as soon as a 
President goes out of office, instead of going on vacation he 
has to go through millions of documents, many of which may 
never be requested, but he's got to be ready. He's got to be 
ready, so he should go through--spend the next 12 years--I 
don't--it's a helpful point, I agree, and in some cases 20 days 
might be enough, but the inflexible period in this statute I 
think is over-broad and probably would be struck down on its 
face.
    Ms. Schakowsky. There was one--I'm not an attorney, and so 
when I heard you say the deference, it sounds, that is paid to 
ex-President over current President, and that in a sense it 
sounded to me that you were saying that the's all right, but 
yet the current President would have to--was mandated to accept 
the privilege that was being invoked by the current President. 
That doesn't make a lot of sense to me.
    Mr. Gaziano. Let me try to be more clear than I was, if you 
don't mind. One of the most fascinating questions in all of 
this--and I really enjoyed research--is whether the Archivist 
would have to follow the former President's orders, regardless 
of what the current President thinks. The D.C. Circuit said no. 
I think that might be wrong. But the Executive order--the D.C. 
Circuit law says he doesn't; that the former President has some 
power, but it is unclear how much power he has.
    But what this Executive order does say, ``You aren't going 
to follow the former President's claims because he says so. You 
are going to follow them because I say so, and I am going to . 
. ..''
    Ms. Schakowsky. But the current President has to say so.
    Mr. Gaziano. Well, he's announced in advance. He's done two 
things. There are two provisions at issue in Executive order. 
The first says, ``I'm announcing to you, my subordinate, I will 
defend any claim the former President makes. He has some power 
over you, but I don't know how much, but I definitely have 
power over you and I'm telling you whenever he says it I will 
approve it.'' Two, he says in a separate section cited in my 
written testimony, ``I will defend his claim in any court.''
    Now, under that or under any forum, in that context--you 
may think it is imprudent of him to do that, but I think it is 
his constitutional power. There's a logical reason, by the way, 
why he might do it, which is that he believes, as I think the 
Supreme Court does, that only the former President is in a good 
position to know whether the documents implicate a sensitive 
area, so that's----
    Ms. Schakowsky. I was persuaded by the take care argument. 
Was that yours, Mr. Rozell? Maybe you could comment on it?
    Mr. Rosenberg. I think each one of us made that argument, 
actually, that the take care clause applies here, that it would 
violate the President's authority under the Constitution; that 
the President may disagree with a former President's invocation 
of executive privilege. The President has the authority to take 
care that the law is faithfully executed, but he's obligated to 
accept the former President's claim of privilege and not do 
what he, the President, believes is constitutionally proper or 
necessary. I think that's wrong.
    Mr. Gaziano. Since I went over, I'm the only one who didn't 
address that. I do think the take care clause is absolutely 
relevant to this case, but it supports the President.
    Mort correctly said that the take care clause means the 
President can't--in the government he can't execute the law all 
by himself, so--but I think he draws the wrong conclusion from 
that.
    What that means is if he has responsibility to take care, 
he and no one else has the constitutional obligation to take 
care, that means if other people are exercising some of his 
power--and that follows from Myers and from the vesting clause 
of Section One, Clause One, of Article One--then he must manage 
them and it's his word that is final.
    Mort correctly said the take care clause gives him no 
substantive power to legislate. That is correct. But it gives 
him management responsibility. It gives him procedural 
management power over the lower branch officials. It tells him, 
``Not only can you supervise them, you must. You, Mr. 
President--'' and this was the brilliance of the Framers' 
design. They wanted it accountable and responsible. ``You, Mr. 
President, are responsible. You can't get away with saying, 
'Congress gave power to your heads of departments and they've 
gone astray.' You are responsible. You shall take care that the 
laws are faithfully executed, and since you can't execute the 
laws yourself, that means you must supervise your 
subordinates.''
    Mr. Rosenberg. But you can't override a duty placed in a 
subordinate. He can fire the Archivist just the way President 
Nixon fired Archibald Cox and the way Andrew Jackson fired two 
or three Secretaries of the Treasury who wouldn't disobey the 
law Congress had passed which said you can't put money from the 
Bank of the United States into State banks, and he fired a 
couple of Secretaries of the Treasury until he found one--we 
ultimately appointed Chief Justice of the United States, 
apparently in reward--who did the unlawful act.
    That's not to say--I mean, yes, he can be fired, but 
Congress--it has been recognized since, as I said, the dawn of 
our country, they had the say as to--you know, except with 
regard to certain national security and things like that.
    I think you're mistaken here about the power that Congress 
has with respect to subordinates of the President.
    Mr. Turley. Could I also throw in--I hate to gang up, but 
that's what academic fights are all about. I just want to note 
a couple things about what Todd said, and that is, first of 
all, this is an independent agency, and the status of an 
independent agency has always been something of a controversy 
as to what extent an independent agency could disagree with the 
President when it's part of the executive branch. There's one 
easy way to get rid of this problem--that is, if the issue is 
that the Archivist is part of the executive branch, I still 
think that you can order all these documents to be given to the 
Library of Congress, and then the President would be able to 
utilize his executive privilege in court for any documents that 
he feels are not being properly protected and protected from 
release.
    But, to cut to the chase, if these are public--if this is 
public property, you can treat it like White House furniture 
and you can direct that it be given to the Library of Congress 
and leave it to the President to protect his constitutional 
authority.
    But I also want to note, very quickly, about two things. 
First of all, I am perplexed by the idea that a former 
President would invoke privilege, the current President would 
not necessarily accept the invocation, but, absent compelling 
circumstances, I feel that he must, therefore, defend it in 
court.
    As someone who has been in court on executive privilege a 
number of times, I would be quite peeved if I found out the 
Department of Justice opposite of me was fighting executive 
privilege on an assertion that the White House didn't agree 
with. There are serious ethical questions about going into 
court and fighting for an executive privilege argument, a 
constitutional argument that the lawyers and the White House do 
not agree with.
    Finally, I want to note, in terms of this business about 
the President leaves and immediately has to, you know, come 
back from Vale and start reading through millions of pages of 
papers, I think we need to look at the practicalities of this. 
The current President has a running obligation to protect 
executive privilege, and that is a running obligation not to 
his documents but also to the prior President's documents.
    Now, the Justice Department may have to spend money to 
review, as this 12-year period comes up, to guarantee that 
there is nothing that gets over the transom that they don't 
want, and they may come to you, and I would strongly encourage 
you to give them that extra money to look at it, but it's not 
the former President's obligation, alone. In my view, it rests 
very heavily on the incumbent President.
    Mr. Burton. Mr. Chairman, could I ask one question, because 
I do have to leave.
    Mr. Horn [resuming Chair]. Yes.
    Mr. Burton. I'll just ask one question. Let's just say that 
a President commits a crime while in office--and I'm speaking 
hypothetically, not about any individual Presidents. You know 
about what we've done in the past. But I'm just talking about 
any President. Let's say he commits a crime, and the proof is 
in documents that are in the archives, and you want to get to 
this crime which may be a heinous crime before the statute of 
limitations runs out. What's the position of Congress and what 
can they do if this Executive order stands? Is there any 
recourse that they have?
    Mr. Turley. In my view, that's a lead pipe cinch of a case 
because Congress would override any executive privilege 
argument as to those documents. You have a stated 
constitutional duty in terms of impeachment to investigate 
those matters. I don't think it would withstand a serious 
challenge from the White House to keep you from those. But I 
also want to add----
    Mr. Burton. What about the previous President claiming 
executive privilege over the documents that may be detrimental 
to him?
    Mr. Turley. Well, I've been critical of those executive 
privilege assertions in the past. But I do want to note one 
thing, Mr. Chairman, and that is the Supreme Court, in United 
States v. Nixon, not only rejected the absolute executive 
privilege argument being made by that President, but 
specifically called in an archaic view of the separation of 
powers as requiring three airtight departments of government. I 
think that's very relevant to these discussions.
    First of all, the question you asked I think is a direct 
branch-to-branch conflict, but in terms of the role of the 
Archivist, the Supreme Court has recognized that the separation 
of powers is not that neat, that there is overlap.
    Mr. Burton. Well, maybe I didn't make my question clear 
enough. The case can't be made. In the Nixon case they had the 
tapes and they had a lot of other things, you know, that made 
the case, but I'm talking about where there may be evidence in 
the archives that we believe is there but there's no concrete 
evidence, and so it's not in the public domain, and so you 
can't make the case unless you get that evidence. So it's not 
something that's out in the open, it's something that you know 
is there or you think is there and you can't get to it because 
of the executive privilege.
    Mr. Turley. In my view--and I'm sorry to have moved on to 
that secondary point, but, Mr. Chairman, in my view the 
executive privilege argument would still fail; that this body's 
constitutional authority would trump it in that circumstance. 
Now, the executive branch can go to court to try to seek 
restrictions if they wish, and this body----
    Mr. Burton. What course of action would the Congress 
follow? Let's say that this committee which has oversight 
responsibilities over the executive branch wanted those 
documents, and they said, ``Well, you can't get them because he 
doesn't want those to be revealed or in the public domain at 
the present time.''
    Mr. Turley. Are you referring to under the Bush Executive 
order?
    Mr. Burton. Yes.
    Mr. Turley. That's part of my miscommunication because I 
really do believe the Bush Executive order is just facially 
unconstitutional.
    Mr. Burton. But you would have to go to court to----
    Mr. Turley. That's right.
    Mr. Burton [continuing]. Make that case.
    Mr. Turley. Congress would. That's right. It would be----
    Mr. Burton. So what you're talking about could be a long, 
drawn-out legal procedure which, in and of itself, could take a 
long time.
    Mr. Turley. I think that's right, and----
    Mr. Burton. So this Executive order has created a real 
mischievous situation for the Congress and a Gordian knot that 
we would have to cut in order to get through it.
    Mr. Turley. I think that's actually one of the reasons this 
bill is so useful, quite frankly. I truly believe that this 
Executive order could not have been written in a way to more 
guarantee its loss on a challenge, and so I believe this bill 
will be found unconstitutional in part or in whole.
    Mr. Burton. You mean the Executive order?
    Mr. Turley. Bloody hell. I'm sorry. I believe that the bill 
will be found--the Executive order will be found 
unconstitutional, but that will take time and there will be an 
appeal, and I don't believe that this body should remain 
dormant during that period. I think that it is an institutional 
interest for this body to protect itself. James Madison gave 
you the devices to protect yourself and to preserve balance 
between the branches, and I think this bill really comes out of 
that principle.
    Mr. Turley. Thank you.
    Thank you, Mr. Chairman.
    Mr. Horn. I thank you, Mr. Chairman, for coming, and I 
share your remarks, having gone through the hearing with you on 
the FBI situation, and it's so silly you can't imagine. I did 
tell the new director just to chop heads, and you are here not 
doing it. It happened under J. Edgar Hoover, and we ought to 
have the Attorney General and the director do those things and 
bring those papers to the chairman.
    Do you have any specific changes in the bill, H.R. 4187? 
What would you want to add or subtract? We'll start with you, 
Mr. Turley.
    Mr. Turley. I actually think the bill is very well written. 
I would definitely add a severability clause to deal with 
issues such as the writing requirement and the day requirement. 
I tinkered with the idea of, well, maybe the days should be 
extended, but, quite frankly, when you look at that you ask 
yourself, well, how much, in addition to 12 years, would be 
adequate? If you increase it to 30 days, is 10 days going to 
change this dimension? Is 40 days going to do it? After 12 
years, the period of time becomes, in my view, less 
significant. Twenty days is sufficient for the President of the 
United States to go into a Federal court and to get an order 
that protects it from release, and I expect that most judges 
would be highly accommodating to do that type of preliminary 
order.
    So I believe that it is, in fact, adequate, and I don't 
have any other major changes. There are aspects, quite frankly, 
of this field that I would change if I was declared emperor for 
a day, but those go beyond the immediate issue of concern here 
and I think would simply add controversy to something that 
should not be controversial.
    Mr. Horn. Thank you very much.
    Now, Mr. Rosenberg, what would you subtract or add?
    Mr. Rosenberg. It was actually one thing that I might add 
as a note of caution, and I--in repealing the Executive order, 
a question has arisen that has never been, I think, decided by 
any court is that: What does that do to the repealed Executive 
order of President Reagan? That is, if you, by statute, repeal 
this order, are you thereby in some way reviving President 
Reagan's Executive order which, itself, has some problems and 
has been utilized to delay, as we well know? That order was 
used to delay action from January through November because it 
was utilized to delay, you know, the opening of the 68,000 
pages until the new Executive order was issued which then 
caused a further delay.
    I'm not quite certain, and perhaps Professor Turley or one 
of my colleagues here can say what effect that might have in 
perhaps reviving the Reagan order.
    The second question I have is I think the procedural 
additions are excellent. I wonder if, as a pragmatic thought, 
knowing the position of the Justice Department in the American 
Historical Society suit and the position that they have 
generally taken in this area, whether this will assure a veto 
by the President. Without the additional procedures, it would 
look--a veto would look simply like an attempt to continue 
secrecy.
    Based on Todd Gaziano's arguments and the view that there 
are constitutional difficulties, intrusions on Presidential 
prerogatives and privileges, that could be an excuse to veto.
    On balance, I would go straight ahead with your entire 
bill, however.
    Mr. Horn. Thank you for that advice.
    Mr. Rozell, what would you add or subtract?
    Mr. Rozell. I, too, think it is a good bill and I, too, 
would advise going forward with it, and I also expect that 
there is a strong likelihood of a Presidential veto should it 
get to the President's desk at some point. I also struggled 
with the issue of the timeframe, the 20-day period, and really 
that was the only part of the legislation, the proposed 
legislation, that I thought could be looked at and 
reconsidered. Again, as Mr. Turley said, whether you add it to 
30 days or 40 days as opposed to 20 I'm not sure substantively 
makes a great deal of difference, but we've heard one 
substantial criticism of the bill on the basis that it is just 
not enough time, and it is conceivable to me that that 
provision could be struck down, so, perhaps as a matter of 
protecting this legislation against other further criticism or 
a constitutional test on that basis, increase the timeframe.
    Mr. Horn. Well, would you do above 20 or below 20?
    Mr. Rozell. Well, that's what I'm saying. I'm merely 
suggesting this as an insurance policy perhaps as opposed to I 
personally believe it needs to be more than 20 days. I do not. 
But if it is a good insurance policy to increase 20 to 30 or 20 
to 40, prudence may suggest doing so. But I don't think, from 
my own standpoint, that it weakens the bill substantively not 
to increase it. Merely that would be an insurance policy 
against outside criticism and an argument by others that would 
be a reason for opposing it or vetoing the bill.
    Mr. Horn. Well, obviously we'd like to get this legislation 
moving, and I would hope the White House would take a second 
look and get things moving.
    Mr. Rozell. I agree. Thank you.
    Mr. Horn. Mr. Gaziano.
    Mr. Gaziano. You have been very tolerant of me. I think the 
time limit is one of the areas where you do have some remote 
authority. I want to draw your attention to a citation in the 
testimony from then Assistant Attorney General Antonin Scalia, 
where he argued that you had little or no authority over the 
procedure the President used to invoke executive privilege, and 
since he taught a separations of powers course I attended, I 
don't think his views have changed, and they're worthy of 
review.
    As far as the time limit is concerned, I suggested in my 
written testimony that probably any deadline would be 
constitutionally suspect. Maybe you could get one that's 365 
days that might pass muster on a compromise vote. But the way 
you can do that, in my view, constitutionally--and here I might 
get in trouble for making this recommendation--is to say that 
beyond some period of time--180 days would be reasonable by 
analogy to some other statutes--you can authorize a person to 
go to court and the court can then supervise the time in which 
the President has to invoke executive privilege.
    But I should add that, with regard to your own subpoenas, I 
don't see that the Executive order changes things one way or 
the other. And with regard to your own subpoenas, there is just 
this longstanding period of debate between the branches. I've 
worked on both sides, and I think that you can insist on 
shorter deadlines that are more particularized based on the 
particular requests that you have, and the executive branch is 
responsible to try to accommodate your requests.
    Mr. Horn. Well, thank you.
    Let me just ask one question, and then that's it. The bill 
rescinds the Executive Order 13233 and it replaces it with a 
statutory process for Presidential reviews and possible 
executive privilege claims. Do you think it would be better 
just to rescind the current Executive order one way or the 
other?
    Mr. Gaziano. Me first this time?
    Mr. Horn. Yes.
    Mr. Gaziano. You know, yes, it's better to do less 
constitutional harm than more.
    Mr. Horn. Right.
    Mr. Gaziano. I think that, you know, that act would also be 
constitutionally problematic, since I think that as--that was 
the nature of Scalia's testimony was that you couldn't regulate 
the President's procedures for invoking executive privilege 
either, but I clearly think that the legislation raises 
additional problems that make it more problematic.
    Mr. Horn. We have a little situation here of a markup 
across the hall that I have to vote in, and Mr. Ose will be 
taking over here for me.
    Mr. Ose [assuming Chair]. Mr. Rozell, same question. Do you 
think it would be better just to rescind the current Executive 
order?
    Mr. Rozell. I would like to see the Executive order 
rescinded, but I believe that it is not sufficient merely to 
reinstate the Presidential Records Act of 1978. It would be far 
preferable, in my view, for there to be a legislative remedy at 
this time.
    I think, given the controversy over the Bush Executive 
order, the various lawsuits that have been raised in response 
to it, and the fact that I believe that there are some problems 
with certain procedures articulated in the Presidential Records 
Act, this is a particularly good time for a legislative action 
and it's appropriate that the legislative branch should get 
involved.
    Mr. Ose. Mr. Rosenberg.
    Mr. Rosenberg. I don't think it would be--I was thinking 
what kind of a void would it leave, and the answer to that is 
you have the Archivist who has rules and--you have the 
Archivist. There are rules presently in place that provide an 
orderly process, and if there is any doubts let's leave it at--
certainly let's get rid of this order and take our changes with 
the Archivist, whose rules right now I think are pretty good.
    Mr. Ose. Mr. Turley.
    Mr. Turley. I would tend to agree with Professor Rozell. I 
think that there is room to improve the act. Frankly, I think 
that the act is ripe for improvement. It is about that time 
when Congress can take another look at an act and tweak it and 
improve it. I think this bill comes out with a better PRA, and 
I think that you should go forward with it, not just simply 
rescind the Executive order.
    Mr. Rosenberg. One further addendum. What the Archivist 
does is subject to congressional review under the Congressional 
Review Act. He changes his current--the procedures with regard 
to executive privilege claims, you can get it that way and very 
effectively deal with the Archivist, and in some ways with that 
weapon in the background, maybe leaving the Archivist and 
coming back to the status quo with the PRA and the Archivist 
regulations and no Executive order might be preferable.
    Mr. Ose. Thank you for your answers to that question.
    On behalf of Chairman Horn and the rest of the committee, I 
want to especially thank our witnesses today for their 
insightful testimony on this important matter. I think you hear 
virtual unanimity up here that Congress must reclaim both the 
spirit and the letter of the Presidential Records Act. In 1978, 
Congress and the President decreed that Presidential records 
belong to the public. It's a pretty unequivocal statement. I 
believe that H.R. 4187 will ensure that this important goal is 
achieved.
    Next week this subcommittee will meet again to markup this 
bill. Your suggestions for improvements to the legislation have 
been appreciated. To the extent you have additional ones, we 
would welcome those.
    We're going to leave the record open for additional 
questions or input you may have for a period of 5 days.
    I would like to thank the following for their efforts on 
this hearing: J. Russell George, our staff director and chief 
counsel; Bonnie Heald, the deputy staff director; Henry Wray, 
senior counsel; Justin Paulhamus, clerk; Darin Chidsey, 
professional staff member; David McMillen, minority 
professional staff member; Jean Gosa, minority clerk; and Karen 
Lightfoot, minority senior policy advisor; and our court 
reporter, Joan Trumps.
    We thank you for coming. This hearing is adjourned.
    [Whereupon, at 11:53 a.m., the subcommittee was adjourned, 
to reconvene at the call of the Chair.]
    [Additional information submitted for the hearing record 
follows:]
[GRAPHIC] [TIFF OMITTED] 80152.395

[GRAPHIC] [TIFF OMITTED] 80152.396

[GRAPHIC] [TIFF OMITTED] 80152.397

[GRAPHIC] [TIFF OMITTED] 80152.398

[GRAPHIC] [TIFF OMITTED] 80152.399

[GRAPHIC] [TIFF OMITTED] 80152.400

[GRAPHIC] [TIFF OMITTED] 80152.401

[GRAPHIC] [TIFF OMITTED] 80152.402

[GRAPHIC] [TIFF OMITTED] 80152.403

[GRAPHIC] [TIFF OMITTED] 80152.404

[GRAPHIC] [TIFF OMITTED] 80152.405

[GRAPHIC] [TIFF OMITTED] 80152.406

[GRAPHIC] [TIFF OMITTED] 80152.407

[GRAPHIC] [TIFF OMITTED] 80152.408

[GRAPHIC] [TIFF OMITTED] 80152.409

[GRAPHIC] [TIFF OMITTED] 80152.410

[GRAPHIC] [TIFF OMITTED] 80152.411

[GRAPHIC] [TIFF OMITTED] 80152.412

[GRAPHIC] [TIFF OMITTED] 80152.413

[GRAPHIC] [TIFF OMITTED] 80152.414

                                   - 
