Los Angeles Times
August 11, 2005
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 at the time among historians, archivists and librarians. They said it all but repealed the Presidential Records Act, a 1978 law that decreed a president's records were public property, not the private property of the former president. Under this law, a former president's papers 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 added a new check. It said the "incumbent president may assert any constitutionally based privilege" after the 12 years had lapsed to block the release of files. Included among these many privileges were "records that reflect legal advice or legal work."
This week, several Democrats on the Senate Judiciary Committee questioned whether White House lawyers were using this authority to delay the release of memos written by Roberts 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' work in the White House Counsel's Office is being delayed and possibly politicized," Sen. Charles E. Schumer (D-N.Y.) said in a letter Wednesday to White House Counsel Harriet Miers.
"The time for such partisan review of documents was before" Roberts' nomination for the high court in late July, he added.
After Roberts' nomination, the National Archives office said it was prepared to release thousands of pages of files from the Ronald Reagan Presidential Library near Simi Valley 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 [has] an opportunity to 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 Wednesday. 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 were not one of the administration's criteria in reviewing the documents for release.
"Documents that opponents [of Roberts] would try to twist and launch attacks on would not be a criterion for withholding documents for release," the aide said.
Also Wednesday, Democrats suffered a setback when Judiciary Committee Chairman Arlen Specter (R-Pa.) said he opposed the release of internal memos from Roberts' time as the top deputy solicitor general in the administration of Bush's father.
Specter said that the release of internal documents would cause a "chilling effect" on lawyers in the solicitor general's office "who would understandably be reluctant or unwilling to give their candid views if they thought they would later be subject to public scrutiny."
Documents — in fact, three separate batches of them — have become the central point of contention between Republicans and Democrats as the Senate Judiciary Committee gears up for Roberts' confirmation hearing in early September.
One group of documents has already been released. They came from 1981 and 1982, when Roberts, now a federal appeals court judge, was a Justice Department lawyer working for Atty. Gen. William French Smith. Among the files were several memos in which Roberts took a conservative stand on controversies involving the Voting Rights Act, sex discrimination and Congress' power to halt busing for school desegregation.
The second are the documents at the Reagan Library. Some of these memos were released earlier because they had been sought by historians, journalists or others who obtained them through the Freedom of Information Act.
But other files from this period have been held up, awaiting clearance from the White House.
The third group of documents concerns Roberts' work at the solicitor general's office between 1989 and 1993. That office represents the government in the Supreme Court, and Democrats hoped to probe briefs by Roberts on such topics as abortion, the death penalty and the environment.
But the White House says it would not release any internal memos from this time.
Even as Specter endorsed that stand, he took the side of Democrats complaining that the White House was moving too slowly in the release of documents from the Reagan library.
"It is imperative that the White House provide expeditiously those documents it intends to release," he said in a letter to the White House counsel.
Since Bush issued his executive order on the "implementation of the Presidential Records Act," many historians and archivists have maintained that the president's edict subverted the open records law.
"This law was passed in the wake of Watergate, and it responded to the abuse of power in the Nixon administration," said Randall Jimerson, president of the Society of American Archivists.
After resigning the presidency, President Nixon went to court to seek control of the Watergate tapes and other records from his time in the White House. The 1978 law said that in the future, these records were public property.
"This executive order removes these records from public disclosure and puts them in the control of the president," Jimerson said.
His organization, along with the American Historical Assn., the National Security Archive, the Organization of American Historians, and Public Citizen filed suit in 2001, insisting that Bush's order was illegal. A federal judge in Washington has not issued a final ruling.
White House officials said the president's order simply set up a process for releasing documents, one that allowed the administration to protect national security, privacy and other concerns.
But Thomas S. Blanton, executive director of the nonprofit National Security Archives, said the dispute over the Roberts' papers could revive the legal challenge.
"I'm told that the Reagan Library people and the staff of the National Security Archives are ready to release this material. But instead, politically minded lawyers from the White House are deciding what can be released," he said. "It's a sorry state of affairs."
Times staff writer Catherine Sailliant in Ventura contributed to this report.