Which Party is Better on Executive Branch Disclosure?

The Washington Post editorial board takes former Secretary of State Hillary Clinton to the woodshed for being “disturbingly unmindful of the rules” surrounding the use of government email, basic cybersecurity, and the preservation of records. While Fred Hiatt’s crew is careful to note that Clinton didn’t do anything illegal, they are highly critical of the way Clinton “breezed through all the warnings and notifications” she received about not using private email for “information that was sensitive but unclassified, or SBU,” and they encourage the FBI to quickly conclude their criminal investigation “so all information about this troubling episode will be before the voters.”

That’s all fair enough. Certainly, Clinton can offer some defenses of her actions, some of which are actually pretty convincing as far as they go, but she earned the criticism she’s taking from the Post. As long as we remember some basic things to keep this all in context, like the fact that Colin Powell was significantly worse about following the rules and preserving records, it should result in future cabinet heads doing a much better job of protecting and preserving our information.

So, I write the following not to excuse Clinton’s handling of her email, but to help people who are concerned about the issues implicated in this controversy decide what it might mean for choosing the next president.

The Freedom of Information Act was enacted in 1966 and, while it has been amended many times, it is still the law we use to make sure that government officials preserve their records and produce them upon request. It was passed over the objections of the Johnson administration by the most Democratic Congress of the 20th Century.

When Gerald Ford became president in the wake of disclosures like the Vietnam Pentagon Papers, the CIA’s family jewels, and the exposure of the Watergate scandal, he was inclined to strengthen the Freedom of Information Act, but he was dissuaded by some familiar folks.

Following the Watergate scandal, President Gerald R. Ford wanted to sign FOIA-strengthening amendments in the Privacy Act of 1974, but concern (by his chief of staff Donald Rumsfeld and deputy Dick Cheney) about leaks and legal arguments that the bill was unconstitutional (by government lawyer Antonin Scalia, among others) persuaded Ford to veto the bill, according to documents declassified in 2004. However, Congress voted to override Ford’s veto, giving the United States the core Freedom of Information Act still in effect today, with judicial review of executive secrecy claims.

Of course, in January 2001, Rumsfeld and Cheney came back to power as Bush’s Secretary of Defense and vice-president, and so the following should come as no surprise:

Executive Order 13233, drafted by Alberto R. Gonzales and issued by President George W. Bush on November 1, 2001, restricted access to the records of former presidents.

This order was revoked on January 21, 2009, as part of President Barack Obama’s Executive Order 13489. Public access to presidential records was restored to the original extent of five years (12 for some records) outlined in the Presidential Records Act.

There was a general principle involved in Bush’s decision to restrict access to the records of prior presidents. It was the same one that Rumsfeld and Cheney had appealed to back in 1974. And that’s just that the chief executive shouldn’t have to disclose what he does.

There was also a specific thing that Bush the Younger was concerned about, and that was that the Presidential Records Act only allowed a maximum delay of twelve years in disclosing presidential records. Poppy left office in 1993, which meant that his records might become public during his son’s presidency. Given the way Bush the Elder dealt with the Iran-Contra investigation, Dubya wasn’t interested in disclosing his father’s records. Here’s how the New York Times reported the cover-up at the time.

Six years after the arms-for-hostages scandal began to cast a shadow that would darken two Administrations, President Bush today granted full pardons to six former officials in Ronald Reagan’s Administration, including former Defense Secretary Caspar W. Weinberger.

Mr. Weinberger was scheduled to stand trial on Jan. 5 on charges that he lied to Congress about his knowledge of the arms sales to Iran and efforts by other countries to help underwrite the Nicaraguan rebels, a case that was expected to focus on Mr. Weinberger’s private notes that contain references to Mr. Bush’s endorsement of the secret shipments to Iran.

In one remaining facet of the inquiry, the independent prosecutor, Lawrence E. Walsh, plans to review a 1986 campaign diary kept by Mr. Bush. Mr. Walsh has characterized the President’s failure to turn over the diary until now as misconduct.

But in a single stroke, Mr. Bush swept away one conviction, three guilty pleas and two pending cases, virtually decapitating what was left of Mr. Walsh’s effort, which began in 1986. Mr. Bush’s decision was announced by the White House in a printed statement after the President left for Camp David, where he will spend the Christmas holiday.

Mr. Walsh bitterly condemned the President’s action, charging that “the Iran-contra cover-up, which has continued for more than six years, has now been completed.”

The Christmas Eve massacre of Lawrence Walsh’s investigation took place after Bush had been defeated by Clinton but before Clinton was sworn in as his successor.

Presidents, going back to Johnson’s opposition to the FOIA, have been reluctant to submit to congressional oversight and public disclosure of executive branch deliberations. But congressional Democrats passed the FOIA anyway, and they overcame President Ford’s veto, and they passed the Presidential Records Act in 1978. It was President Bill Clinton who in response to the controversy caused by Oliver Stone’s JFK movie “issued executive directives (and amendments to the directives) that allowed the release of previously classified national security documents more than 25 years old and of historical interest, as part of the FOIA.”

And it was President Obama who countermanded Dubya’s executive order that was supposed to shield his father from retrospective scrutiny.

So, there’s a long record here that spans a half a century at this point, and it tells a clear story. The story is that Democratic presidents and Democratic congresses have created the regime and the standards that are being used to judge Hillary Clinton harshly, and that those rules and regulations wouldn’t even exist if the Republicans had had their way.

The only conclusion I can draw is that anyone who is really concerned about executive branch accountability, the preservation of records, or even basic cybersecurity, would be nuts to conclude that those issues would be better served by a Republican Congress or a Republican president.

It’s okay to criticize Hillary Clinton and hold her accountable, but you should make sure to compare what’s she’s done here to something like Dick Cheney’s Energy Task Force. Remember that the Supreme Court essentially ruled in favor of Dick Cheney keeping the Task Force’s deliberations secret.

The question the Court was debating was whether or not the D.C. District Court should have rejected the request from the Vice President to block disclosure of records from his energy policy task force.

The Court ruled 7–2 that the lower appeals court had acted “prematurely” and sent the case back to the court.

The Court did not rule on whether or not [the Federal Advisory Committee Act] FACA should or should not apply to the task force, and left to the Court of Appeals.

Anthony Kennedy wrote the majority opinion, agreed to by four other justices. Two justices, Clarence Thomas and [Antonin] Scalia would have had the case end there with Cheney not having to disclose any information. Ruth Bader Ginsburg was joined by David H. Souter in dissenting, arguing the Supreme Court should let the case proceed in the District Court.

The case received press attention when Antonin Scalia refused to recuse himself from the case, despite having hunted ducks with Cheney and others while the case was pending in the lower courts. Scalia filed a lengthy statement explaining why he was not recusing himself. In the end, Scalia supported Cheney.

Scalia, Rumsfeld, and Cheney were fighting executive disclosure in 1974 and they were still at it thirtysomething years later.

Anyone who knows this history won’t believe for a second that a Republican administration would do a better job of complying with disclosure requirements than a [chastened] Clinton administration.

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