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Group Fights Shield on Executive Records

November 29, 2001|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — A group of historians and journalists went to court Wednesday seeking to block President Bush's recent executive order that overrides a 1978 law calling for the release of White House records after 12 years.

Directly at issue is 68,000 pages of "confidential communications" from President Reagan's White House.

Beyond that, the legal battle may decide whether Bush's presidential records become public after he leaves office.

Congress passed the Presidential Records Act of 1978 to make clear that the papers and files of a president are the government's property. The measure was a reaction to the Watergate scandal and President Nixon's efforts to control his papers and secret White House tapes.

The law took effect in 1981, the year Reagan became president. It said most of a former president's papers would be opened to the public after a 12-year wait.

The open-access rule was to be triggered for the first time this year, but Bush issued an executive order that bars the archivist from releasing any former president's records until the current president and the former president's representative give their approval.

The Nov. 1 order also extended this secrecy rule to "vice presidential records." This gives the current president the power to block the public release of files from the office of former Vice President George Bush, his father.

"Inevitably, this has made people wonder what they are trying to hide," said Scott Nelson, a lawyer for Public Citizen, the public interest group that filed the suit Wednesday.

Nelson said none of Reagan's aides had sought the secrecy order. In all, the Reagan White House generated 44 million pages of files and records. About 4 million pages have been released so far. The law exempts from release any files that involve national security.

The files that spawned the lawsuit were requested by historians who are researching aspects of domestic policy during Reagan's presidency.

Anne Womack, a White House spokeswoman, describes Bush's move as "establishing an orderly process" for implementing the 1978 law.

She pointed out that the order relies on a Supreme Court ruling from Nixon's era that describes a former president as having a continuing legal right over his papers.

Bush's order says the extra delay in releasing old papers is necessary to protect various "constitutional privileges" such as the "state secrets privilege," the "deliberative process privilege" and the attorney-client privilege.

Critics, including the lawyers who filed the suit, said Bush had turned the 1978 law on its head. Rather than ensuring open access to presidential records, the order drew a veil of secrecy over them, they said.

"Bush's executive order violates not only the spirit but the letter of the law," said Joan Claybrook, president of Public Citizen.

The suit was filed on behalf of the American Historical Assn., the Organization of American Historians, the National Security Archive and the Reporters Committee for Freedom of the Press, as well as presidential historians Hugh Davis Graham of Vanderbilt University and Stanley I. Kutler of the University of Wisconsin.

It seeks a judge's order calling for the archivist to release the Reagan papers in keeping with the terms of the 1978 law.

The dispute also has an interesting twist.

Bush's order was drafted by White House lawyer Brett M. Kavanaugh, officials said. It says: "Presidential communications, legal advice, legal work (and) the deliberative process of the President and the President's advisors" are protected by the Constitution.

But three years ago, Kavanaugh was on the opposite side of a similar dispute. As a top deputy to independent counsel Kenneth W. Starr, he argued that the conversations of President Clinton and his aide Bruce Lindsey were not entitled to constitutional protection.

Starr had subpoenaed Lindsey to force him to testify before the grand jury probing the Monica S. Lewinsky scandal, and Kavanaugh won a 2-1 ruling from the U.S. Court of Appeals that rejected Clinton's claim of confidentiality.

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