Historian challenges in court presidential order to seal Reagan's records

Graham

by Skip Anderson

A Vanderbilt historian is one of two scholars who, along with an army of First Amendment supporters, is challenging in court President Bush's recent order that limits public access to the records of former presidents.

The plaintiffs of the lawsuit -- filed in Washington, D.C., Nov. 28 by Public Citizen, a nonprofit organization specializing in watchdog litigation -- include Vanderbilt's Hugh Davis Graham and fellow historian Stanley Kutler, the American Historical Association, the Organization of American Historians, the National Security Archive and the Reporters Committee for Freedom of the Press.

"I don't know what President Bush's motives are, but the outcome could be a disaster for the country," said Graham, the Holland N. McTyeire Professor of History and professor of political science. "I'm not so cynical as to think that there are specific things that the current administration knows happened that they're particularly trying to cover up. What's chiefly driving this is the presidential preference for secrecy."

According to Graham, the executive order jeopardizes public access to the records from the Reagan administration that otherwise would have become available in January 2001, as well as to those of his successors by empowering former presidents to assert "executive privilege" to seal the documents.

The lawsuit's plaintiffs contend the executive order violates the Presidential Records Act of 1978, which came about after national debate over the control of documents and tape recordings from the Nixon administration. The act -- regarded as Washington's major post-Watergate reform -- limits to 12 years the amount of time former presidents and vice presidents can restrict access to confidential communications with their advisers.

"These documents include the most important correspondence between the president and senior policy advisers in all fields," Graham told the Register. He said they do not include documents pertaining to national security and international relations, which may remain closed for longer periods under separate provisions.

Bush's executive order delays indefinitely the release of 68,000 pages of President Reagan's records, which were slated to be the first confidential advisory documents made available under the Presidential Records Act.

"The fight over Reagan's documents is really the fight for the documents from 1981 on," said Graham. "The policies being set now are going to govern what we get to see in the future."

Prior to the PRA, former presidents generally donated to the public most of the White House documents generated during their terms.

"They voluntarily gave the papers to the nation to let them see and use the documents, which are maintained by the National Archives in the Presidential Libraries," said Graham. "On the whole, most presidents have been remarkably open. The problem is you couldn't count on that."

The Bush order reverses the PRA, which specifically designates all presidential documents as public property, and provides for their early release for public scrutiny. According to Graham, this could mean damaging documents showing "malfeasance and scandal and misbehavior" might never be seen.

"Beyond somebody's moral code, the greatest deterrent of wrongful behavior is the fear that you'll get caught," he said. "If presidents and their senior staff don't have to worry that someone will see the evidence, then their inhibitions will be greatly reduced."

Graham said the post-Sept. 11 bipartisan political climate made the lawsuit filed last month all the more important.

"Congress is not in a mood to pick a fight against the president right now," he said. "Therefore, if we didn't take him to court, he would have gotten away with it."

As of press time, a date for the court proceedings to begin had not been announced.

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