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Sollenberger and Rozell: Presidential Records Plan Sets a Worrisome Precedent

Congress has a stunningly poor record of protecting its institutional powers against presidential encroachments. Getting the legislative branch to step up and challenge executive branch expansion of powers is hard enough. But what are we to make of a Congressional initiative that goes out of its way to expand controversial privileges of the executive to include former presidents?

The Presidential Records Act Amendments, introduced by Rep. Edolphus Towns (D-N.Y.), is a well-intentioned but flawed effort to change the procedures for the disposition of presidential records. Recently, the House Oversight and Government Reform Committee reported the bill with an amendment in the nature of a substitute. That change, however, did not remove the most objectionable provisions from Towns’ original bill.

The intent of Towns’ bill is straightforward. It would provide former presidents, subject to the approval of the incumbent, the power to assert a “constitutionally based privilege” claim against disclosure of their papers.

On its face, the amendments may seem reasonable, as they do not provide an absolute privilege for former presidents to withhold information, as a President George W. Bush-era executive order did. The amendments even have a new restriction on access to original presidential records to any individual who “has been convicted of a crime relating to the review, retention, removal, or destruction of records of the Archives.” Certainly this provision is a levelheaded and useful restriction to place on the access of presidential records.

Regardless of the utility of some of these changes, the amendments would codify into law a new “constitutionally based privilege” for former presidents that is subject to the review and veto only of an incumbent president. Congress should not be providing former presidents that level of control over their presidential papers for the following reasons.

First, once a president leaves office presidential papers cease to be “his” in any ownership sense and become the property of the United States or, more generally, the people. It is a misguided proposition to treat them as merely private papers that can be subject to nondisclosure orders from nonelected, unaccountable individuals.

Second, a former president is a private citizen and does not retain constitutionally based presidential powers. No law passed by Congress can change how the Constitution confers powers and rights on individuals. This bill would attempt to do just that by granting constitutionally based powers to a private citizen. The fact is that anyone exercising presidential powers needs to be holding office through constitutionally prescribed means. Congress cannot change that maxim unless it is prepared to circumvent or amend the Constitution.

Finally, like Bush’s executive order, these amendments provide no standard for former presidents exercising a claim of privilege over presidential record. The mere act of withholding publicly owned papers that have the potential of giving insight into major policies and critical moments in the nation’s history should not be made lightly. A high threshold for making such claims is necessary.

The privacy interests of a president begin to erode substantially once he leaves office and continue to do so over time. If and when Congress does decide to amend the Presidential Records Act, it should do so with the basic principle of transparency in mind. These papers are not really one person’s property; they belong to all Americans.

The current law sets forth a reasonable requirement on incumbent presidents to make privilege claims on their records while they occupy office. In addition, participation in the restriction of access to records by former presidents is only statutorily permitted by way of the Archivist of the National Archives and Records Administration consulting with them. They have no constitutional or statutorily based power to unilaterally wall off information from the public.

To have Members of Congress so freely hand over a power first created by a president by way of an executive order is perplexing. It is one thing for occupants of the White House to seek more power. It is quite another for legislators to aid them in that effort.

In short, the bill sets a dangerous precedent for Congress to statutorily grant its consent that a private citizen may exercise a widely recognized Article II-based constitutional power. There are good reasons for Congress to take up the issue of clarifying procedures for the disposition of presidential records, but it absolutely should not be doing so in a way that creates further impediments to the public’s right to know.

Mitchel A. Sollenberger is an assistant professor of political science at University of Michigan-Dearborn. Mark J. Rozell is a professor of public policy at George Mason University.

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