Topic: The Effect of The New Executive Order, conclusion of former Nixon lawyer John Dean's article.

topic by
John Calvin
12/4/2001 (20:35)

The Effect of The New Executive Order

President Bush has not stated why he revoked the existing Executive Order (Number 12667) addressing Presidential Records. President Reagan issued the Order in 1989 after studying the law for almost eight years of his presidency. Many believed Reagan's Order went beyond the law. Yet President Clinton did not challenge or change it during his eight years in office. Ironically, if President Clinton -- not President Bush -- had been the one who issued this new Executive Order, Republicans in Congress would no doubt have called for his impeachment for failure to execute the laws (that is, failure to abide by the Presidential Records Act.)

Just as Clinton's assertions of privilege in court were repeatedly questioned -- and even argued by some to be abuse of process or even obstruction of justice -- Clinton's extension of presidential privileges through an Executive Order would have faced heavy criticism. But when Bush takes the same action -- especially now, with his new popularity -- the criticism is highly modulated in tone.

Why Bush Apparently Issued the New Executive Order

What appears to have provoked President Bush's action is the fact that some 68,000 documents from the Reagan presidency were waiting at the White House when Bush arrived, ready for release by the National Archives.

These documents passed the twelve-year deadline for public release on January 12, 2001, but their release has been stalled by the Bush White House until now. The documents are believed to contain records that Papa Bush, as Reagan's vice president, is not happy to have made public. They also contain papers of others now working for Bush, who might be embarrassed by their release.

Look for either Papa Bush, or someone designated by former President Reagan, to object to any of these 68,000 documents' release pursuant to the new Executive Order. If that happens, it will confirm my guess as to why the Order was written at this time. The effect will be to tie the release of those records up for years.

The most certain effect of this new Order will be litigation. The Order will be tested in court, if the president does not withdraw it as requested by both Republicans and Democrats in the Congress. And should the Order not be overturned by the courts, I believe Congress will act. In fact, Congress could act even before the courts resolve these matters.

In short, the prospects for Bush's Executive Order 13233 remaining the law of the land is slim to none.

A Troubling Penchant For Secrecy

More troubling than the Order's throwing a monkey wrench into the process of releasing presidential papers, however, is the president's penchant for secrecy. Secrecy provokes the question of what is being hidden and why.

If President Bush continues with his Nixon-style secrecy, I suspect voters will give him a Nixon-style vote of no confidence come 2004. While secrecy is necessary to fight a war, it is not necessary to run the country. I can assure you from firsthand experience that a president acting secretly usually does not have the best interest of Americans in mind. It is his own personal interest that is on his mind instead.

The Bush administration would do well to remember the admonition of former Senator Daniel Patrick Moynihan in his report on government secrecy: 'Behind closed doors, there is no guarantee that the most basic of individual freedoms will be preserved. And as we enter the 21st Century, the great fear we have for our democracy is the enveloping culture of government secrecy and the corresponding distrust of government that follows.'