[Congressional Record (Bound Edition), Volume 156 (2010), Part 7]
[Senate]
[Pages 10042-10043]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        PRESIDENTIAL RECORDS ACT

  Mr. LIEBERMAN. Madam President, recently the Obama administration 
asked the National Archives to speed up its already planned release of 
Supreme Court nominee Elena Kagan's records from her time in the 
Clinton administration.
  I applaud the administration's openness. But this speedy release of 
documents is not required by the current Presidential Records Act and 
might have been impossible under an Executive order issued by former 
President George W. Bush. That order allowed former Presidents, Vice 
Presidents, and their heirs to withhold the release of documents 
indefinitely by claiming Executive privilege.
  On his first day in office, President Obama repealed the Bush 
Executive order, but a future President could just as easily change it 
back or add new impediments to the timely release of an 
administration's records.
  I have long championed legislation to make it clear that these 
documents are

[[Page 10043]]

the property of the American people and therefore should be subject to 
timely release.
  But we cannot move forward with this legislation because my friend, 
colleague, and ranking member on the Judiciary Committee, Senator Jeff 
Sessions, has placed a hold on it.
  Regarding the release of the Kagan documents, Senator Sessions 
recently told the Washington Post:

       I think all the documents that are producible should be 
     produced. The American people are entitled to know what kind 
     of positions she took, and what kind of issues she was 
     involved with during her past public service.

  I agree with Senator Sessions and hope he will now release his hold 
on my legislation so this kind of speedy release of documents and the 
right of the American people to view them will be the legal standard 
for all future Presidents.
  A little history will help explain how we got to where we are today.
  Securing Presidential documents is a problem as old as the Republic. 
George Washington had planned to build a library on his estate at Mount 
Vernon to house his Presidential papers. But Washington died before he 
could get his plan underway and his heirs were not always careful 
stewards of our Founding President's legacy.
  Some of the documents were so badly stored they were eaten by mice. 
Others were sold off or given away haphazardly. One of Washington's 
heirs even took to cutting the signature from Washington's 
correspondence and sending it to collectors.
  In a letter, this heir wrote:

       I am now cutting up fragments from old letters and 
     accounts, some of 1760 . . . to supply the call for anything 
     that bears the impress of his venerated hand. One of my 
     correspondents says, ``Send me only the dot of an i or the 
     cross of a t, made by his hand, and I will be content.''

  Despite this inauspicious beginning in preserving our Nation's 
history, for nearly two centuries it was presumed that the papers of 
former Presidents were their personal property to be disposed of 
however they or their heirs saw fit.
  Think of all our national history that has been lost, destroyed or 
kept locked away far too long.
  The bulk of Andrew Jackson's papers were scattered among at least 100 
collections. Jackson's successor, Martin Van Buren, destroyed 
correspondence he decided was--I quote--``of little value.''
  The papers of Presidents Harrison, Tyler, Taylor, Arthur, and Harding 
were destroyed in fires--sometimes by accident, sometimes intentional.
  President Lincoln's son Todd burned his father's Civil War 
correspondence and threatened to burn all of his father's Presidential 
papers until a compromise was reached with the Library of Congress that 
kept most of the papers sealed until 1947. This delay helped fuel 
conspiracy theories that the papers were kept hidden because they would 
show that members of Lincoln's Cabinet were part of the assassination 
plot--in effect, that Lincoln died in a coup.
  Of course, when the papers were finally released, they showed that 
wasn't true, but it took 82 unnecessary years to put the rumor to rest.
  These historical records are too valuable to be left to the judgment 
of former Presidents, the whims of their heirs, the caprice of nature 
or--as in George Washington's case--the appetite of rodents.
  This situation finally began to change under President Franklin 
Roosevelt who, on December 10, 1938, announced he would build a library 
on his estate in Hyde Park, NY, to house the papers and collections of 
his public life that stretched back to 1910, when he was elected to the 
State Senate of New York.
  Roosevelt set a standard for openness, asking his aides and Cabinet 
Secretaries to contribute to the collection, and almost every President 
who followed carried on in the spirit of Roosevelt--also building 
libraries to house their papers.
  But this system was voluntary and began to crumble with the 
resignation of our 37th President, Richard Nixon.
  Nixon had an agreement with the General Services Administration, GSA, 
which would have allowed him to keep all his records locked away, 
including the infamous Watergate tapes, and mandated many of them be 
destroyed.
  This put us right back where we started, with a former President 
choosing what historical records the public was entitled to. Congress 
passed legislation in 1974 specifically ordering that the Federal 
Government take control of Nixon's records and then in 1978 passed 
legislation declaring that Presidential papers were public property 
that must be turned over to the National Archives at the end of an 
administration and be open to the public after 5 years.
  Systems, however, were put in place to allow a former President to 
review documents--and challenge their release on the grounds of 
Executive privilege. But the presumption was in favor of openness 
unless the former President could show the court a compelling reason to 
withhold the documents.
  But then, as mentioned, President Bush weakened the law with 
Executive Order No. 13233, issued on November 1, 2001. Just to repeat, 
under this order, not only former Presidents and their heirs, but Vice 
Presidents and their heirs as well, could withhold the release of 
documents by claiming Executive privilege.
  The order also required those challenging claims of Executive 
privilege to prove in court that they have a ``demonstrated, specific 
need'' for the documents--an impossibly high standard since only the 
document's author can know precisely what a document contains.
  And since the Executive order also allowed for an indefinite review 
period, these records--housed in Presidential libraries maintained by 
the taxpayers--could be locked away for indefinite periods of time, 
making them about as useful as the ashes of Lincoln's letters.
  In reversing Bush's Executive order, President Obama made clear that 
only the sitting President can claim Executive privilege--not their 
heirs, and not their Vice Presidents or the Vice Presidents' heirs.
  In signing the new Executive order, President Obama said:

       Going forward, anytime the American people want to know 
     something that I or a former President wants to withhold, we 
     will have to consult with the Attorney General and the White 
     House Counsel, whose business it is to ensure compliance with 
     the rule of law. Information will not be withheld just 
     because I say so. It will be withheld because a separate 
     authority believes my request is well grounded in the 
     Constitution.

  This is wise public policy and should be the law of the land--subject 
to repeal only by Congress, not by Executive order.
  When President Roosevelt dedicated his library and began opening up 
his records and other artifacts to public view, he made it clear that 
this kind of openness is good for a democracy. ``The dedication of a 
library,'' Roosevelt said, ``is in itself an act of faith. To bring 
together the records of the past and to house them in buildings where 
they will be preserved for the use of men and women in the future, a 
Nation must believe in three things. It must believe in the past. It 
must believe in the future. It must, above all, believe in the capacity 
of its own people so to learn from the past that they can gain in 
judgment in creating their own future.''
  This Congress can now reassert Roosevelt's faith in our democracy. 
That is why I urge my colleague, Senator Sessions, to release his hold 
on H.R. 35 so we can pass it, get it to the President, and make history 
now by preserving Presidential history as an open resource for 
Americans to learn from in the future.

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