Obama's Order Designed To Pry Loose Key Bush Docs

Clinton Lawyer: Obama's Order Designed To Pry Loose Key Bush Docs


By Zachary Roth - January 23, 2009, 11:25AM



Already, a consensus of experts has formed to tell TPMmuckraker and others that President Obama's executive order on presidential records, issued Wednesday, could impact efforts to pry loose key documents from the Bush White House.

And the man who served as President Clinton's lead attorney for executive privilege issues yesterday went further, suggesting that that was exactly Obama's goal.

Neil Eggleston, a White House counsel under Clinton, told TPMmuckraker that in his view, the Obama White House issued the order with specific ongoing cases in mind -- that is, with the goal of bolstering those efforts to obtain Bush's records.

Congress and good-government groups are currently fighting to get access to key Bush White House documents that might shed light on a range of subjects, from the level of White House involvement in the US Attorney firings, to the Valerie Plame leak probe, to the decision to invade Iraq. "This is absolutely about all those issues," said Eggleston.

At its heart, said Eggleston, Obama's order is about "who gets to assert executive privilege." It says that former presidents can claim such privilege, but they have no automatic ability to prevent the release of their records if the current administration deems it to be in the national interest. That echoes the view of other experts who have examined the order, including the conservative legal scholar Doug Kmiec, who spoke to TPMmuckraker yesterday.

In a sense, said Eggleston, it's a directive to the National Archivist. "It says: 'Archivist -- if Bush calls up and says don't release certain papers, don't listen to what he says, listen to what I say.'"

Eggleston, now a partner at Debevoise and Plimpton's Washington office, cautioned that if a decision were made to release certain Bush records, and the former president chose to go to court to stop it, it's not absolutely certain that he would lose -- since no executive order can alter the constitution's executive privilege guarantee. But he said that the order would at the very least be likely to sway a court towards openness.

So if we do eventually learn the full story of the Bushies' involvement in the US Attorney firings, and get access to information about their record on a range of other issues, it looks like we may have the new president to thank.

http://tpmmuckraker.talkingpointsmemo.c ... _loose.php

Experts: Obama Order Could Let Us See US Attorneys Docs
By Zachary Roth - January 22, 2009, 12:04PM


The experts' verdicts on the potential impact of President Obama's executive order on presidential records are starting to come in. And they're bolstering our initial take that Obama's move could significantly boost efforts to release crucial records that the Bush administration has fought to keep secret.

Doug Kmiec, a constitutional law professor at Pepperdine law school and expert on executive privilege, told TPMmuckraker that the order makes it harder for former presidents to block the release of their documents.

And, crucially, he said it could impact current high-profile struggles over Bush's records, "whether it be the dismissal of US Attorneys, whether it be other assertions of executive privilege dealing with White House emails and the like."

Congress and the Bush White House have been struggling over a key memo that details the level of White House involvement in the US Attorney firings of 2006. And open-government groups have sued the Bush administration to gain access to White House emails on a range of subjects, including the Valerie Plame leak probe and the decision to invade Iraq.

Kmiec, a noted conservative legal scholar who nonetheless supported Obama's campaign, said he had done some work with the Obama transition team, and had offered his assistance to the new administration.

Kmiec said the order appears to shift power from former presidents to the current administration, and to the National Archivist. Under an order issued by President Bush, former presidents and vice presidents could compel the Archivist to keep documents secret. Under the new order, former presidents can still ask the Archives to do so. But the burden of proof is squarely on the former president to prove that secrecy is in the nation's interest, and the Obama administration can decline the request if it's not convinced. That approach reorients things toward the original intention of the Presidential Records Act, passed in the wake of Watergate.

"If the Archivist were to make a determination that those materials would be made public," explained Kimiec, "then holding it back would take something extraordinary," in terms of an argument from the former president.

Kmiec's view is supported by open-government advocates. Scott Nelson of Public Citizen believes, in the words of the Associated Press, that "researchers should find it easier to gain access to records under the new order."

And yesterday, Anne Weissman of CREW, which unsuccessfully brought a lawsuit against Dick Cheney's office to compel him to hand over records to the Archives, told TPMmuckraker that the order "does have the potential to impact ongoing litigation," including over the US Attorney documents.

So when might we see those documents? If the Archivist and the Obama administration agree to it (in practice, the Archivist would likely defer to the administration), they could be made public as soon as the Archivist has prepared them for public display. Of course, President Bush could sue to stop the move -- but it looks like he'd face an uphill climb in convincing a court that there's a pressing need to keep them secret.

It really is a new day.

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