From The Coalition Column of the September 2007 Perspectives

Historical Legacy of Bush Administration at Stake

Lee White, September 2007

Even the most seasoned observers of the Washington scene have been shocked by the bitterness and vitriol that has been flying back and forth between the two parties since the Democrats took control of the Congress in January. We see a volatile mix right now where one of the most unpopular presidents—and vice presidents—in recent memory is pitted against Democrats in Congress determined to flex their muscles after spending more than a decade mostly as a minority party.

Certainly no group is more aware of the long tradition of partisan bickering in Washington than historians. Within a few short years of the founding of the republic bitter battles over the future of the country were waged between the Federalists and the Democratic-Republicans. While Dick Cheney has not taken to challenging any Democrats to a duel like his predecessor Aaron Burr, the vice president has been under withering attack the past few months.

While skirmishes over the Iraq war, the firing of U.S. attorneys, and the nonresponsiveness of the White House to congressional subpoenas fill today's headlines, there are long-term implications for future historians who will be called on to analyze this important era in American history. For at the core of nearly all of these controversies is the attempt by the Bush administration to broaden the concept of executive privilege. In the end, the battle revolves around presidential records, both written and electronic, and who will have access to them today and in the future.

Let's focus on two examples where presidential records have played a prominent role in the current power struggle between the legislative and executive branch.

In a letter released on June 21, 2007, Representative Henry Waxman (D-Calif.), chair of the House Oversight and Government Reform Committee, accused Vice President Dick Cheney of seeking to abolish the Information Security Oversight Office (ISOO) at the National Archives. The vice president's action was allegedly in retaliation for the ISOO's attempts to force his office to comply with reporting requirements dealing with national security classification under Executive Order (EO) 12958.

EO 12958 set up a system for classifying, safeguarding, and declassifying national security information. One of ISOO's main functions is to oversee the security classification programs in federal agencies and to ensure compliance with its standards through inspections of federal agency records and procedures.

In 2006, the ISOO sent two separate letters to the Office of the Vice President requesting that it comply with the executive order and allow ISOO access to the records of the office, and both were ignored. In fact, in refusing to comply with ISOO's inspection and reporting requirements, the Office of the Vice President (OVP) argued that it did not fall within the definition of "agency" as set forth in EO 12958. The OVP asserted that it was not an "entity within the executive branch" and thus exempt from having to report its security classification activities to ISOO. The OVP initially claimed that it was not an executive branch entity since the vice president also had legislative responsibilities as the president of the senate. Jokes about Cheney's supposed new role as a "fourth branch" of government soon became fodder for editorialists and late night comedians.

In January 2007, the ISOO sent a letter to Attorney General Gonzales requesting his interpretation as to whether the vice president's office was subject to the reporting requirements of the executive order, but received no response.

According to Waxman's letter to Cheney, Executive Order 12958 is currently being revised by the Bush administration. ISOO Director J. William Leonard told the Oversight Committee that during the interagency review of the proposed changes, the OVP sought to abolish the ISOO, and also to amend the EO to include a provision exempting the OVP from oversight. Leonard stated that the interagency review group had rejected the OVP's recommendations.

Democrats' frustration with the failure of both the White House and the Attorney General to respond to their requests for clarification or compliance led to attempts to force Cheney's hand through the appropriations process.

When the Senate Financial Services and General Government Appropriations' Subcommittee marked up its funding bill on July 10, it included language that withheld funding for the activities of the vice president until the OVP complied with the reporting requirements under the executive.

After the subcommittee markup, its chair, Richard Durbin (D-Ill.), received a letter from White House General Counsel Fred Fielding stating the position that the president had never intended that the OVP be covered when he re-issued the executive order in 2003.

At the full Committee markup, Senator Sam Brownback (R-Kans.) offered an amendment to strike the language compelling the vice president to comply with the executive order, which passed by a razor-thin margin of 15-14. Democratic Senator Ben Nelson of Nebraska broke ranks with his party and supported the Brownback amendment, thus giving the Republicans the one vote margin they needed to adopt the amendment.

During House consideration of the Financial Services and General Government appropriations bill (H.R. 2829), a similar amendment eliminating funding for the OVP until the vice president complied with the executive order was offered on the floor, but failed by a 209-217 vote.

Democrats had narrowly lost both times, but they succeeded in keeping the story in the news, which may have been their intent all along.

Another controversy concerns whether White House officials violated the Presidential Records Act by using e-mail accounts maintained by the Republican National Committee (RNC) and the Bush-Cheney ‘04 campaign for official White House business.

On June 18, 2007, the House Oversight and Government Reform Committee issued an interim report on its investigation into the matter. Among the committee's preliminary findings were: the number of White House officials given RNC e-mail accounts was higher than previously disclosed; White House officials made extensive use of their RNC e-mail accounts; and there was extensive destruction of the e-mails of White House officials by the RNC. The report also alleged that there was evidence that the Office of White House Counsel under Alberto Gonzales may have known that White House officials were using RNC e-mail accounts for official business, but took no action to preserve these federal records.

The interim report concluded, "The evidence obtained by the Committee indicates that White House officials used their RNC e-mail accounts in a manner that circumvented these requirements. At this point in the investigation, it is not possible to determine precisely how many presidential records may have been destroyed by the RNC. Given the heavy reliance by White House officials on RNC e-mail accounts, the high rank of the White House officials involved, and the large quantity of missing e-mails, the potential violation of the Presidential Records Act may be extensive."

According to the report, 88 White House officials had RNC e-mail accounts, not a "handful of officials" as stated by White House spokesperson Dana Perino in March 2007. Of the 88 officials with RNC e-mail accounts, the RNC has preserved no e-mails for 51. For example, the RNC preserved no e-mails for former Director of Political Affairs Ken Mehlman. For many other White House officials, the RNC has no e-mails from before the fall of 2006.

The interim report also found that the Karl Rove (the president's senior adviser until recently) was the most extensive user of the system. The RNC has preserved 140,216 e-mails sent or received by Rove. Over half of these e-mails (75,374) were sent to or received from individuals using official ".gov" e-mail accounts. The RNC preserved only 130 e-mails sent to Rove during the President's first term and none of the e-mail messages sent by Rove prior to 2003 have been preserved.

In response to questions about the report, White House spokesman Tony Snow said, "Look, I can't respond specifically to things that the committee may have put out. But those e-mail accounts were set up on a model based on the prior administration, which had done it the same way in order to try to avoid Hatch Act violations. And we'll just leave it at that."

Rep. Tom Davis (R-Va.), ranking member on the House Committee on Oversight and Government Reform Committee, said committee Democrats had jumped to unsupported conclusions in their report on possible violations of the Presidential Records Act. The evidence, he said, simply does not support the report's conclusions. But this controversy remains unresolved.

The battle between Democrats and the White House over the shaping of the historical legacy of the Bush administration may not end even after the president leaves office in January 2009.

In November 2001, President George W. Bush issued Executive Order 13233, which gave current and former presidents and vice presidents broad authority to withhold presidential records or delay their release indefinitely.

Legislation introduced earlier this year, the "Presidential Records Act Amendments of 2007" (H.R. 1255) would nullify the Bush executive order and establish procedures to ensure the timely release of presidential records. In March, the U.S. House of Representatives approved the bill by a vote of 333-93.

On June 13, the Senate Homeland Security and Governmental Affairs Committee approved H.R. 1255 by voice vote. The bills is now ready for consideration on the Senate floor. However, the president has threatened to veto the bill should it pass the Congress. So the battle over access to his presidential records may still be going on long after George W. Bush has left town.

—Lee White is the executive director of the National Coalition for History.