Closing the book on presidential records

In the midst of his research on presidential records in 2001, the late historian Hugh Davis Graham ran afoul of a little-known executive order that keeps presidential records out of the public domain for longer than 12 years.

Graham, a professor of history and political science at Vanderbilt University, and Stanley Kutler, an emeritus professor of law at the University of Wisconsin at Madison, subsequently became involved in a lawsuit challenging the legality of the executive

order.

Although a federal judge recently issued a decision effectively settling the lawsuit, it left unclear whether an executive order trumps a congressional statute in governing access to presidential records.

On March 28, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia dismissed the lawsuit brought by the historians against the National Archives and Records Administration. In 2001, the historians alleged that NARA had unlawfully blocked access to 68,000 pages of former President Reagan's records.

Electronic records were not the focus of the decision, but observers say the principle in the case applies to electronic and nonelectronic records.

The district judge dismissed the case as moot because NARA had released the sought-after records before the conclusion of the lawsuit. Consequently, Kollar-

Kotelly failed to rule on what she wrote was the principle of the case: Did President Bush overstep the limitations of his power when he issued an executive order altering the terms of the Presidential Records Act of 1978?

The American Historical Association, which filed the lawsuit, had asked the court to overrule the executive order that Bush issued on Nov. 1, 2001. Calling it "an impermissible exercise of executive power," the historians' group alleged that Bush's executive order put new restrictions on records to which public access had been guaranteed under the Presidential Records Act.

Kutler said the lawsuit was to challenge an action in which "a president on his own has, in effect, suspended a law of Congress."

Although the historians' group has not decided whether to appeal the district judge's decision, some observers of the case say that Congress might push legislation to revoke the executive order.

Under the statute, restrictions on access to many presidential records expire 12 years after a president leaves office. But Bush's order asserts a constitutionally based privilege to control access to former presidential and vice presidential records that does not expire after 12 years. The order states that access to those records can be gained only at the discretion of the sitting president in consultation with the former president, if the former president is still living.

Scott Nelson, an attorney with the nonprofit group Public Citizen and the principal attorney representing historians in the lawsuit, said the judge based her decision on a technicality. But Nelson said he is confident that a future decision on the merits of the case would find the executive order "inconsistent with the Presidential Records Act and with the constitutional principles that govern presidential privilege."

The judge's decision might even push Congress into action, said Patrice McDermott, deputy director for government relations for the nonprofit American Library Association.

In 2002, then Rep. Stephen Horn (R-Calif.) introduced legislation revoking the executive order and establishing procedures for considering claims of constitutionally based privilege against the public's right to disclosure of presidential records. The legislation, H.R. 4187, gained 44 sponsors but never passed.