A fight is brewing in Washington that may produce a perfect constitutional storm.
An executive order from President Bush has all three branches of government colliding over the question of who controls access to presidential papers. The outcome of this fight may redefine aspects of executive privilege as well as core principles of open government.
With this order, the president is not simply on the wrong side of history, he stands squarely in its path.
This order potentially could deprive history of some of its most important records. Trying to understand our history without reading presidential records is like trying to understand the Bible without reading Genesis.
At the center of this developing debate is a rather innocuous figure: the archivist of the United States. Bush became familiar with this position when the archivist sent him a notice that he was preparing to release the papers of President Reagan on Jan. 20, 2001.
This was done under the 1978 Presidential Records Act, which mandates the release of unclassified records 12 years after a president leaves office. Not only do some of these documents involve President Bush's father, George H.W. Bush, but they also involve more than a dozen current high-ranking administration officials, including Vice President Dick Cheney and Secretary of State Colin L. Powell.
Historians are particularly interested in the material to shed further light on the Iran-Contra scandal, as well as other controversies that led to the criminal convictions of some Reagan administration officials.
After reviewing the material, Bush responded with the executive order that effectively rewrote the Presidential Records Act, converting it from a measure guaranteeing public access to one that blocks it. The order strips the archivist of authority to give the public access to these papers and lets a former president indefinitely delay their release. The issuance of the order from the executive branch brought the judicial branch into the mix. A federal court is now reviewing the constitutionality of the order, which is much in doubt.
This week, the legislative branch will enter the fray with a bill in the House that would nullify the Bush order and reassert the authority of the legislative branch over these documents as public property. Not only is such a move relatively rare, but this fight is headed by leading Republicans.
A brief glance at the order explains why both Democrats and Republicans are so outraged. Under one of the order's more freakish provisions, 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. It would even allow a former president to transfer his executive privilege authority to a foreign citizen.
The Bush order is not simply unconstitutional, it is insulting to anyone who cherishes our constitutional structure. The order would convert a core presidential power into a matter of probate, like some ottoman that can be passed along.
Currently, Richard M. Nixon's daughters are in court because they cannot agree on the running of the Nixon library. Imagine how we would determine which daughter was favored by Daddy to exercise his presidential power.
The Bush order would even allow family members to go to court to declare a former president incompetent or disabled. They could then appoint a person or "group" to exercise executive privilege regarding presidential papers over the objections of a "disabled" former president.
James Madison once wrote that "[a] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both." Before the Bush order, the citizens were assured that they would eventually be able to review actions taken in their name. Likewise, government officials knew that their conduct would ultimately be judged by history.
No president relishes the moment on some cold January morning when he is transformed from a history maker to a subject of history. However, it is important for presidents to understand that, in the end, they are all mere players in the making of their own legacy.
Jonathan Turley teaches constitutional law at George Washington University Law School and was the lead witness in the congressional hearing on legislation to rescind the Bush executive order.