'01 Bush order may block airing of Roberts memos

WASHINGTON -- A little- noticed order, issued by President Bush almost four years ago, gives White House lawyers the right to block the release of memos written by Supreme Court nominee John G. Roberts Jr. when he worked for President Reagan.

The order, signed by Bush in November 2001, said the ''incumbent president" had the right to approve the release of papers from the presidential libraries of his father, George H.W. Bush, and Ronald Reagan.

It set off a furor among historians, archivists, and librarians. They said it all but repealed the Presidential Records Act, a 1978 law. It said a president's records were the public's property, not that of the former president. Under this law, the papers of a former president were to be opened to the public 12 years after he left office. Exceptions could be made for national security reasons.

Bush's executive order said the ''incumbent president may assert any constitutionally based privilege" after the 12 years have lapsed to block the release of these files. Included among these many ''privileges" were ''records that reflect . . . legal advice or legal work."

This week, Democrats on the Senate Judiciary Committee questioned whether White House lawyers were using this authority to delay the release of memos Roberts wrote in the mid-1980s, when he was a White House lawyer.

In that job, Roberts may have offered advice that Democrats say could offer insight into his personal views on several issues, including civil rights and abortion.

''I fear that . . . the timely production of important documents located at the Reagan Library related to Judge Roberts's work in the White House Counsel's Office is being delayed and possibly politicized," Senator Charles E. Schumer, Democrat of New York, said in a letter yesterday to the White House counsel, Harriet Miers. ''The time for such partisan review of documents was before" Roberts' Supreme Court nomination in late July, he added.

Shortly after Roberts's nomination, the National Archives office said it was prepared to release thousands of pages of files from the Reagan Library in Simi Valley, Calif., that came from Roberts' work as a White House lawyer from 1982 to 1986. But Bush's executive order did not permit their release until ''the incumbent president" can ''review all the records," the archivists said.

Two White House lawyers have been sent to Simi Valley to review the files, an aide to Bush confirmed yesterday. The White House has said the Reagan-era files will be released on or before Aug. 22.

The White House aide, who spoke on condition of anonymity, said political considerations are not one of the administration's criteria in reviewing the documents for release.