Presidential dynasties can add layer of secrecy

Executive privilege allows for keeping documents sealed

Bill Clinton campaigned for his wife yesterday at a college in North Charleston, S.C. If elected president, Hillary Clinton could block the release of his White House papers, and her power would become especially important if she were reelected in 2012. (Tyrone Walker/The Post and Courier)

WASHINGTON - A dispute over limits that Bill and Hillary Clinton have placed on the National Archives' ability to release their White House records is highlighting a consequence of family dynasties in contemporary American politics: A president has sweeping power to keep potentially embarrassing documents from past administrations a secret.

When George W. Bush became president in 2001, one of his first acts was to slow the scheduled release of his father's papers from the Reagan-Bush and Bush-Quayle administrations. The younger Bush later asserted executive privilege to maintain the secrecy of several Reagan-era documents related to the Iran-Contra scandal, in which the extent of his father's role remains murky, historians say.

Similarly, should Hillary Clinton become president in 2009, she would exercise sweeping power over what documents from her husband's administration can be made public. Scholars say that the Bush family's experience in matters of presidential records suggests that a return to power for the Clinton family could complicate the release of White House papers from the 1990s.

"There is an extra incentive to suppress documents for presidents who have relatives with records whose disclosure might hurt both them and the incumbent," said Bruce Buchanan, a political science professor at the University of Texas. "Family ties add an emotional and personal dimension to what would otherwise be a purely political or policy issue."

Under a post-Watergate law called the Presidential Records Act of 1978, White House records are public property. A former president can ask the National Archives to seal confidential communications with advisers for 12 years after leaving office. After that, all such documents are supposed to be opened, with only narrow exceptions.

Invoking the 12-year exemption, Bill Clinton has asked the archives to "consider for withholding" his written communications with his wife until Jan. 20, 2013. At a debate two weeks ago, NBC's Tim Russert asked Hillary Clinton whether she would lift the restriction, but she demurred.

"Well, that's not my decision to make," Clinton said. "And I don't believe that any president or first lady has. But certainly we'll move as quickly as our circumstances and the processes of the National Archives permits."

Clinton's answer drew rebukes from her rivals. Barack Obama compared the Clinton administration restrictions to the Bush administration's penchant for secrecy. In response, the Clinton camp said that the archives were asked only for the right to review such document requests, and no releases have been blocked. Obama, in turn, is facing accusations that he failed to disclose all his records from the Illinois Senate, a charge he disputes.

Family dynasties have entangled the Presidential Records Act in recent years. The first administration to which the law applied was that of the winners of the 1980 election - Ronald Reagan and George H. W. Bush. Their confidential records were due to be thrown open on Jan. 20, 2001 - which happened to be the day Bush's son became president.

But the younger Bush signed an executive order that gave former presidents, starting with Reagan and his father, the right to review document requests to decide whether to assert executive privilege over them.

Historians led by the public-interest group Public Citizen sued, saying Bush's order violated the law. Last month, a federal judge ruled that at least one part of Bush's order was an "impermissible exercise of executive power." By not giving former presidents a deadline, Bush effectively gave them power to delay the release forever, according to the ruling.

Bush's order has already slowed the release of his father's papers. And despite last month's ruling, sitting presidents still have the power to assert executive privilege to block the release of papers from past administrations.

In 2004, Bush used executive privilege to block the release of 35 pages of unclassified Reagan-Bush documents, including nine pages related to the Iran-Contra scandal. A federal judge sided with the younger Bush, saying that a president's assertion of executive privilege over a historic document trumps any scholarly interest in reading such a record.

Under that precedent, a President Hillary Clinton could exercise the same power to block the release of Clinton-Gore papers. And her power would become especially important if she is reelected in 2012, when the Presidential Records Act's exemption for Clinton-Gore documents expires.

The power that presidents wield over a past administration's records will always contain the potential for abuse, scholars say. It could be especially tempting to keep a historic record sealed for political reasons in a case when a current and former president are of the same party and the same officials worked for them.

When the president has family ties to a predecessor, concerns are heightened that the president might block release of a document to avoid personal embarrassment

"In the ordinary course, you wouldn't be afraid of a sitting president looking at the historic records and saying 'this can't come out because it would hurt the country,' but here it is more complicated," said Meredith Fuchs, the general counsel to the National Security Archive, a nonprofit group that collects public records and was part of the executive order lawsuit. "There is something about the [familial] relationship that makes it much more open to suspicion."