{"id":17450,"date":"2022-08-11T10:57:21","date_gmt":"2022-08-11T14:57:21","guid":{"rendered":"https:\/\/jimbovard.com\/blog\/?p=17450"},"modified":"2022-08-11T11:01:15","modified_gmt":"2022-08-11T15:01:15","slug":"my-first-bash-on-presidential-records-act-2004","status":"publish","type":"post","link":"https:\/\/jimbovard.com\/blog\/2022\/08\/11\/my-first-bash-on-presidential-records-act-2004\/","title":{"rendered":"My First Bash on Presidential Records Act (2004)"},"content":{"rendered":"<div id=\"branding\" class=\"row align-items-end\">\n<div id=\"site-info\" class=\"col-7 col-lg-6\">\n<div class=\"logo d-none d-lg-inline-block\"><a href=\"https:\/\/jimbovard.com\/blog\/wp-content\/uploads\/2013\/03\/bush_betrayal.jpg\"><img loading=\"lazy\" decoding=\"async\" class=\"alignleft size-full wp-image-4508\" src=\"https:\/\/jimbovard.com\/blog\/wp-content\/uploads\/2013\/03\/bush_betrayal.jpg\" alt=\"\" width=\"317\" height=\"475\" srcset=\"https:\/\/jimbovard.com\/blog\/wp-content\/uploads\/2013\/03\/bush_betrayal.jpg 317w, https:\/\/jimbovard.com\/blog\/wp-content\/uploads\/2013\/03\/bush_betrayal-100x150.jpg 100w\" sizes=\"auto, (max-width: 317px) 100vw, 317px\" \/><\/a><\/div>\n<\/div>\n<div id=\"rh-image\" class=\"col-4 offset-1 col-lg-2 offset-lg-4 clearfix\">Yesterday&#8217;s New York Post piece on the FBI raid on Trump&#8217;s Mar-a-Lago home discussed why the Presidential Records Act was a sham. I have been hitting this theme for almost 20 years.\u00a0 Here&#8217;s my first piece on the topic &#8211; an excerpt from my 2004 book The Bush Betrayal (St. Martin&#8217;s Press).\u00a0\u00a0 This article was published in 2005 by the <a href=\"http:\/\/fff.org\">Future of Freedom Foundation<\/a>.<\/div>\n<\/div>\n<div id=\"main\" role=\"main\">\n<div class=\"container pt-3 pb-5\">\n<div class=\"row\">\n<section id=\"content\" class=\"col-12 col-lg-8 pb-5\">\n<div class=\"hfeed row underline-links\">\n<article id=\"post-7518\" class=\"single-content-item col-12 post-7518 efarticle type-efarticle status-publish hentry efcategory-civil-liberties-amp-privacy efcategory-freedom-daily-archive\">\n<header class=\"pb-3\">\n<h1 class=\"entry-title h2\"><a href=\"https:\/\/www.fff.org\/explore-freedom\/article\/bushs-presidentialpapers-power-grab\/\">Bush\u2019s Presidential-Papers Power Grab<\/a><\/h1>\n<p class=\"published-by pt-2 pb-1 m-0\">by <span class=\"vcard\"><span class=\"author fn\"><a title=\"Posts by James Bovard\" href=\"https:\/\/www.fff.org\/author\/james-bovard\/\" rel=\"author\">James Bovard<\/a><\/span><\/span><\/p>\n<p class=\"entry-date pt-2\"><time class=\"updated\" datetime=\"2005-01-01\">January 1, 2005<\/time><\/p>\n<\/header>\n<section>On November 1, 2001, President Bush issued an executive order entitled \u201cFurther Implementation of the Presidential Records Act.\u201d His order effectively overturned an act of Congress and a Supreme Court decision and could make it far more difficult for Americans to learn of government abuses. Jonathan Turley, a George Washington University law professor, declared that the executive order \u201ceffectively rewrote the Presidential Records Act, converting it from a measure guaranteeing public access to one that blocks it.\u201d<\/p>\n<p>In 1978, Congress passed the Presidential Records Act, declaring, \u201cThe United States shall reserve and retain complete ownership, possession, and control of Presidential records.\u201d The act was a response to the titanic clashes between Congress, the Supreme Court, and the Nixon administration over who owned Nixon\u2019s records (especially those pesky tape recordings). The act requires that the unclassified papers of a president be routinely released 12 years after the president\u2019s term ends. There are provisions in the act to justify non-disclosure of information that could threaten national security.<\/p>\n<p>Two months after taking office, Bush\u2019s White House counsel, Alberto Gonzales, issued an order delaying the release of 68,000 pages of records from Ronald Reagan\u2019s administration that archivists at the Reagan library had already confirmed did not threaten national security or violate personal privacy. The release of records (including those pertaining to the Iran-Contra scandal) from the Reagan administration could have proven a profound embarrassment to many officials in George W. Bush\u2019s administration as well as to his father (who was vice president under Reagan).<\/p>\n<p>The White House completely misrepresented both the 1978 law and the new executive order. On the day after his surprise order, Bush commented, \u201cWe responded to a new law written by Congress that lays out a procedure that I think is fair for past presidents.\u201d (Most 23-year-old laws are no longer considered new.) At a press briefing on the day Bush\u2019s order was announced, White House press secretary Ari Fleischer said, \u201cAs a result of the new law that is now going into effect, and thanks to the executive order that the president will soon issue, more information will be forthcoming.\u201d Fleischer insisted that Bush\u2019s order was a triumph in open government because \u201cunder the existing procedures, existing law, a former president has the right to withhold anything for any reason, if they don\u2019t want to make it public.\u201d<\/p>\n<p>That was ludicrous, since a post-Watergate Congress would not have passed a law to make presidents czars in perpetuity over the records of their actions in office.<\/p>\n<\/section>\n<section class=\"entry-content pb-3 clearfix\">Fleischer insisted that there \u201cwill be a 90-day time limit\u201d on presidents\u2019 right to review requests. Bush\u2019s executive order mentioned 90 days, but a former president will be entitled to dally as long as he pleases.<\/p>\n<p>After a journalist asked Fleischer about the new requirement for \u201cpeople having to demonstrate their need for the information\u201d about a former president\u2019s actions, Fleischer snipped, \u201cSo you\u2019re making guesses and judgments, all of which would indicate malfeasance or withholding of information by this administration. And I just can\u2019t accept that; that\u2019s not the case.\u201d<\/p>\n<p>The journalist responded, \u201cSo you are saying, trust us, it\u2019ll all be fine?\u201d<\/p>\n<p>Fleischer snapped, \u201cYou are saying, we don\u2019t trust you.\u201d<\/p>\n<p>Trust was the issue \u2014 regardless of whether Bush\u2019s order was legal or constitutional and regardless of how much information could be hidden in perpetuity because of the new restrictions.<br \/>\n<strong>Suppression and secrecy<\/strong><\/p>\n<p>The <em>White House Weekly<\/em> summarized the changes in Bush\u2019s order:<\/p>\n<p>\u2022 It prohibits the release of records until both the former and incumbent presidents affirmatively consent to their release.<\/p>\n<p>\u2022 It imposes no firm time limit on record reviews and assertions of privilege claims. It allows the former or incumbent president to extend the review period unilaterally and indefinitely.<\/p>\n<p>\u2022 It requires the archivist to withhold records in response to any privilege claim by a former president, regardless of its merit. It thereby places the burden on the requester to sue to contest the privilege claim.<\/p>\n<p>\u2022 It may be read to permit a former vice president to claim executive privilege.<\/p>\n<p>\u2022 It asserts a very expansive view of the scope of executive privilege. It suggests that a requester under the Presidential Records Act must establish <em>\u201ca demonstrated, specific need\u201d<\/em> for records in order to overcome a privilege claim.<\/p>\n<p>The people\u2019s \u201cright to know\u201d has been replaced by former presidents\u2019 right to suppress. Bush\u2019s edict reversed the burden of proof in the law \u2014 as if a former president is presumptively entitled to have embarrassing facts and documents hidden forever.<\/p>\n<p>Bush also sought to create a hereditary privilege not only for former presidents but for their wives and children and others to assert \u201cstate secrets privilege.\u201d Turley notes that, under the order,<\/p>\n<blockquote><p><small> a former president can transfer the right to invoke executive privilege to anyone of his choosing. The order would also extend the privilege beyond the death of a former president, allowing the privilege to be passed on to anyone of his choosing: a half-wit nephew or a drinking buddy. <\/small><\/p><\/blockquote>\n<p>Bush created a document-review process custom-ade to create massive bottlenecks. <em>National Journal<\/em> noted,<\/p>\n<blockquote><p><small> Bush\u2019s own order commits the White House to a task \u2014 reviewing millions of documents \u2014 that it is probably physically unable to perform in a timely way. And why this Administration has concluded that the archivist has no more expertise, independence, or standing than, say, a White House deputy chief of staff, is also perplexing to scholars and members of Congress alike. <\/small><\/p><\/blockquote>\n<p><strong>Adverse reactions<\/strong><\/p>\n<p>Bush\u2019s order infuriated many historians. An American University historian, Anna Nelson, said that the order \u201csets up a minefield in front of what was a straightforward piece of legislation.\u201d A Vanderbilt University history professor, Hugh Graham, observed, \u201cUnless this executive order of his is overturned, it will be a victory for secrecy in government so total that it would make Nixon jealous in his grave.\u201d<\/p>\n<p>Bush\u2019s order will make it easier for former presidents to perpetuate their cons on the American people. Presidents don\u2019t suppress news of their good deeds and successes. Steven Hensen, president of the Society of American Archivists, commented, \u201cThe order effectively blocks access to information that enables Americans to hold our presidents accountable for their actions.\u201d<\/p>\n<p>In issuing this order, Bush sounded as if he had discovered a new constitutional right by which the president is entitled to be protected against the truth. Or perhaps it is merely a constitutional right entitling former presidents to a better reputation than they deserve.<\/p>\n<p>Congress began consideration of a bill to overturn the executive order. Assistant Attorney General Daniel J. Bryant criticized one bill as \u201cunnecessary and inappropriate and, more importantly, unconstitutional.\u201d The Bush administration sought to settle the dispute by releasing most of the 68,000 pages of requested Reagan records, thereby proving that no legislative remedy was needed. Bryant wrote that \u201cCongress lacks the authority to regulate by legislation the procedures for exercising\u201d executive privilege. But Bush\u2019s privilege is not the highest law of the land. (The bill stalled out.)<\/p>\n<p>In contrast to Bush\u2019s behavior, former President Clinton announced in early 2003 that he was waiving his rights to a 12-year delay in release of the vast majority of the confidential advice he received during his presidency (excluding arcane matters such as the Paula Jones, Monica Lewinsky, and Whitewater cases). Clinton declared,<\/p>\n<blockquote><p><small> The more information we can make available to scholars, historians, and the general public, the better informed people will be about the formulation of public policy and the decision-making process at the White House. <\/small><\/p><\/blockquote>\n<p><strong>Reversal of Clinton\u2019s doctrine<\/strong><\/p>\n<p>However, under the new executive order, Bush can veto the release of Clinton\u2019s papers.<\/p>\n<p>President Clinton issued an executive order in 1995 decreeing that most government documents will be automatically declassified after 25 years. His order contained an exemption for material that continued to be sensitive for national security. On March 25, 2003, Bush issued an executive order that delayed for years public access to millions of pages of documents that were scheduled for release in the following weeks. He claimed that \u201csensitive information\u201d needed to be reviewed prior to the release \u2014 though the feds had had years to get ready for this deadline. The Bush order reversed the Clinton order\u2019s presumption in favor of disclosure. Bush\u2019s order also awarded the vice president the prerogative to block disclosures. And, in a triumph of revisionism, Bush empowered federal agencies to reclassify documents that had already been publicly released.<\/p>\n<p>In April 2004, historians around the country became alarmed after the Bush administration nominated Allen Weinstein to be archivist of the United States. Many historians believe that the Bush administration may have nudged the current archivist, John Carlin, into retiring early so that Bush could put his own man in the slot \u2014 and thereby perhaps make it more difficult to get access both to his records and to the records of his father\u2019s administration (which were scheduled to be released in January 2005). Historians were concerned about Weinstein\u2019s close ties to Republican politicians and about former Secretary of State Henry Kissinger\u2019s place on the board of Weinstein\u2019s Center for Democracy. Timothy Slavin, president of the Council of State Historical Records Coordinators, complained, \u201cIt\u2019s the equivalent of the administration\u2019s thumbing its nose at the nation\u2019s history. It seems to me that they were trying to bum-rush an appointment.\u201d Anna Nelson observed of the administration\u2019s process, \u201cThis is pretty sneaky. There is only one motive here, and that is they [the White House] had to be worried that Bush was going to be defeated\u201d in the 2004 election.<\/p>\n<p>The national archivist will also have sway over how quickly the records of the National Commission on Terrorist Attacks on the United States are released. There may be more surprises in the commission\u2019s files than in its final report. The commission strained to appear bipartisan in its final report \u2014 but there was no such muzzle upon its digging and the information it acquired. Pointlessly restricting access to 9\/11 materials could delay for decades Americans\u2019 understanding of the role of government failures on that day.<\/p>\n<p>Has the people\u2019s \u201cright to know\u201d been replaced by presidents\u2019 right to suppress?<\/p>\n<p>Congress should reject Bush\u2019s nominee for national archivist and should pass a law razing Bush\u2019s Iron Curtain around presidential records. The more secrecy the government is permitted, the more lies the public will suffer.<\/p>\n<p><em>This article was originally published in the January 2005 edition of <strong>Freedom Daily<\/strong>.<\/em><\/p>\n<\/section>\n<\/article>\n<\/div>\n<\/section>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"<p>Yesterday&#8217;s New York Post piece on the FBI raid on Trump&#8217;s Mar-a-Lago home discussed why the Presidential Records Act was a sham. I have been hitting this theme for almost 20 years.\u00a0 Here&#8217;s my first piece on the topic &#8211; an excerpt from my 2004 book The Bush Betrayal (St. Martin&#8217;s Press).\u00a0\u00a0 This article was [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":10046,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[20,391,202,137,3086],"class_list":["post-17450","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized","tag-ashcroft","tag-censorship","tag-fraud","tag-george-w-bush","tag-presidential-records-act"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>My First Bash on Presidential Records Act (2004) - James Bovard<\/title>\n<meta name=\"description\" content=\"For almost 20 years, I have been thumping the Presidential Records Act as a fraud.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/jimbovard.com\/blog\/2022\/08\/11\/my-first-bash-on-presidential-records-act-2004\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"My First Bash on Presidential Records Act (2004) - James Bovard\" \/>\n<meta property=\"og:description\" content=\"For almost 20 years, I have been thumping the Presidential Records Act as a fraud.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/jimbovard.com\/blog\/2022\/08\/11\/my-first-bash-on-presidential-records-act-2004\/\" \/>\n<meta property=\"og:site_name\" content=\"James Bovard\" \/>\n<meta property=\"article:author\" content=\"https:\/\/www.facebook.com\/jim.bovard\" \/>\n<meta property=\"article:published_time\" content=\"2022-08-11T14:57:21+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2022-08-11T15:01:15+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/jimbovard.com\/blog\/wp-content\/uploads\/2017\/01\/bush_betrayal.jpg\" \/>\n\t<meta property=\"og:image:width\" content=\"317\" \/>\n\t<meta property=\"og:image:height\" content=\"475\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Jim\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@jimbovard\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Jim\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"9 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/jimbovard.com\\\/blog\\\/2022\\\/08\\\/11\\\/my-first-bash-on-presidential-records-act-2004\\\/#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/jimbovard.com\\\/blog\\\/2022\\\/08\\\/11\\\/my-first-bash-on-presidential-records-act-2004\\\/\"},\"author\":{\"name\":\"Jim\",\"@id\":\"https:\\\/\\\/jimbovard.com\\\/blog\\\/#\\\/schema\\\/person\\\/79550830ad81c14be529a2c37469974f\"},\"headline\":\"My First Bash on Presidential Records Act (2004)\",\"datePublished\":\"2022-08-11T14:57:21+00:00\",\"dateModified\":\"2022-08-11T15:01:15+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/jimbovard.com\\\/blog\\\/2022\\\/08\\\/11\\\/my-first-bash-on-presidential-records-act-2004\\\/\"},\"wordCount\":1825,\"commentCount\":1,\"image\":{\"@id\":\"https:\\\/\\\/jimbovard.com\\\/blog\\\/2022\\\/08\\\/11\\\/my-first-bash-on-presidential-records-act-2004\\\/#primaryimage\"},\"thumbnailUrl\":\"https:\\\/\\\/jimbovard.com\\\/blog\\\/wp-content\\\/uploads\\\/2017\\\/01\\\/bush_betrayal.jpg\",\"keywords\":[\"Ashcroft\",\"censorship\",\"fraud\",\"George W. 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The Wall Street Journal called Bovard \"the roving inspector general of the modern state\" and Washington Post columnist George Will called him a \"one-man truth squad.\" His 1994 book, Lost Rights: The Destruction of American Liberty, received the Free Press Association\u2019s Mencken Award as Book of the Year. His Terrorism &amp; Tyranny won the Lysander Spooner \"Best Book on Liberty in 2003\" award. He received the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought and the Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. 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