On his first day in office in January 2009, President Obama promulgated a number of executive orders that fulfilled various campaign promises. Like other presidents before him, Obama used these first executive actions to incorporate fundamental or symbolic aspects of his platform, such as banning the use of enhanced interrogation techniques to provide for the closure of Guantanamo Bay. Among these was Executive Order 13489, which established a new process for adjudicating claims of executive privilege made on the records of incumbent or former presidents. Revoking its controversial predecessor, which the Bush administration instituted as a substitute for an analogous, more limited Reagan era E.O., President Obama’s privilege order was intended to fulfill his promise to deliver a federal government of unprecedented transparency and openness.
In fact, Obama employed this issue to great political advantage in the 2008 Democratic primary campaign. When moderator Tim Russert asked Hillary Clinton about the release of communications between her and her husband during the Clinton administration — which the former president identified in a letter to the National Records and Archives Administration as records that may be withheld under the deliberative process privilege — she demurred, saying it was not her decision to make. “This is an example of not turning the page,” Obama chimed in. “We have just gone through one of the most secretive administrations in our history…Part of what we need to do is rebuild our trust in government again…And that means being open and transparent and accountable to the American people.” The inference was clear: whereas Obama offered the credible prospect of change, another Clinton presidency meant the continuation of the same secretive power politics which Americans had grown so weary of during the latter years of the Bush administration.
At this point, a little history is necessary to understand recent news about the delayed release of Clinton administration records relating to communications between the President and First Lady. Though the constitutional text nowhere mentions executive privilege, it does contemplate a role for secrecy in governmental proceedings, as Article I requires each House to publish a journal of their proceedings, “excepting such parts as may in their judgment require secrecy.” Read to secure both full and frank advice for legislators in their deliberations and immunity from impermissible interbranch scrutiny of them, the Speech and Debate Clause further supports this analogy. Of course, looking to Congress’s legislative powers merely helps discern the scope of those powers necessarily coextensive with those vested in the executive by Article II.
As most Brown students will recall, the Watergate scandal — and specifically, President Nixon’s withholding of his Oval Office tape recordings — presented the first opportunity for the judiciary to address claims of executive secrecy in the context of the separation of powers. In two cases, Nixon v. Administrator of General Services and United States v. Nixon, the Court acknowledged the separation of powers basis for both the existence and certain limits on claims of executive privilege. In the former case, the Court reviewed the constitutionality of the Presidential Recordings and Materials Preservation Act of 1974, which first established procedures for preserving and making publicly available the records of former presidents. Although the Court ruled that constitutionally based privileges “survive [] the individual President’s tenure,” it qualified that former presidents’ interests in keeping records secret erodes over time. Against this backdrop, Congress passed the Presidential Records Act of 1978, which stipulates “the United States shall reserve and retain complete ownership, possession, and control, of Presidential records.” Pursuant to the PRA, a president preparing to leave office can keep certain categories of records private for up to 12 years. Notwithstanding any Freedom of Information Act exemptions which may apply, these records are then subject to release pending assertion of privilege. Importantly, the PRA states that “[n]othing in this Act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President.”
To implement the PRA, President Reagan promulgated an executive order that defined the 12-year exemption to extend to records relating to national security, law enforcement and deliberative process. Although the Reagan Order acknowledged that both incumbent and former presidents could invoke privilege, the Archivist of the United States would be bound to accept only those made by the incumbent. If the archivist confronts a privilege claim made by a former president independent of an incumbent one, he or she would be obligated to abide by the incumbent’s determination of the claim’s validity. Absent a privilege claim by an incumbent president, then, the archivist could release the records 30 days after informing the former president that his claim would not be honored. It was in this context that then White House Counsel and future Attorney General Alberto Gonzales directed the Archivist to delay the release of — rather than make any claim of privilege over — certain Reagan administration records whose twelve year deliberative process exemption was about to expire.
The administration used the delay to formulate new standards that it implemented in E.O. 13233. This E.O., and the scope of privilege claims incident to it, served as a major battleground in the separation of powers conflict catalyzed by the Bush administration’s expansive conception of executive power. First, E.O. 13233 broadened the categories for constitutionally-based privileges to include military, diplomatic, or national security secrets; communications between the president and his advisors; attorney-client communications or attorney work product; and the deliberative processes of the president and his advisors. In addition, the Bush Order not only allowed former presidents’ privilege claims to supersede the determinations of the Archivist, but also obligated the incumbent president to concur in the former president’s claim absent compelling circumstances. Rather than allow the Archivist to discharge his authority under the PRA, the Order instead prevented him or her from doing so pending the concurrence of the incumbent and former presidents, the delay in obtaining which could effectively preclude records’ release even where no privilege claim has been made.
Ultimately, a district judge from the District of Columbia found that the Bush Order’s provision for prolonged and effectively endless delay constituted an arbitrary and capricious implementation of the PRA in violation of the Administrative Procedure Act. President Obama displaced any further controversy over the substantive scope of the privilege with his new E.O., however. Preserving the well-established authority of incumbents to invoke the privilege with little qualification — such as where the records presumptively implicate criminal activity — the Obama iteration moved away from the agency granted former presidents by the Bush E.O. Instead, it moved back toward the Reagan era regime by requiring the Archivist to consult incumbent administration officials as to whether to accept or reject the former president’s claim, bounding him or her to an incumbent’s claim of privilege over a former president’s records but removing the possibility of excessively circuitous delays without any final determination.
All of which brings us back to Clinton administration records of communications between the President and First Lady, the twelve year deliberative process exemption over which expired last January. On Wednesday, Politico‘s Josh Gerstein published a story mentioning resource constraints on the National Archives and Records Administration but also alluding to potential political motivations behind the 13-month delay. After all, these thousands of documents, relating to matters such as health care reform efforts and the Whitewater investigation, could cause embarrassment or otherwise receive unfavorable treatment as the former Secretary of State contemplates (prepares for) a presidential run. This situation also opened up the possibility of President Obama — bound by the procedures of the E.O. he implemented after criticizing Clinton on the very same issue in 2008 — having to adjudicate the privilege claim of a former president whose wife is about to seek his party’s presidential nomination.
A strong case for privilege would in fact exist over these documents, since they involve directly-sought presidential counsel from within the White House and implicate deliberative process, core, constitutionally assigned executive functions, or both. The issue was at least mostly mooted by Thursday, however, as the White House announced the impending release of 25,000 of the 33,000 documents in question and extended the deadline over the remaining 8,000 until March 26. Though President Clinton (or less likely, President Obama) could eventually claim privilege over these records (over which, again, a strong claim would likely exist) for now it seems that as in 2008 — when she did release her official schedules as First Lady, albeit belatedly — the former Secretary of State has concluded the costs of even successfully fighting the release would outweigh any benefits of delay.