Bush's executive-privilege two-step

His documents are too precious to give Congress, but those of the previous administration aren't worth protecting -- as long as they make Bill Clinton look bad.

Published February 8, 2002 12:20AM (EST)

For the last year President Bush's White House has pursued what amounts to a two-tiered policy on executive privilege and prerogative: Nixonian secrecy when it comes to the records of his own administration, and a let-it-all-hang-out openness when it comes to those of his reviled predecessor. Even the Bush administration's inconsistency is inconsistent: Clinton-era records that tarnish the former president's reputation are offered up with alacrity, while those that might cast him in a better light are hoarded as executive-branch secrets.

In the brewing battle over the release of Vice President Cheney's energy task force records, Cheney says he's taking a stand on principle. And he has a point: From its earliest days, the second Bush administration has demonstrated a deep ideological commitment to restoring the prerogatives of the executive branch. Right out of the box, the White House put a freeze on the release of Reagan-era records scheduled to be made public last year. Whether or not the White House has something to hide, Cheney's refusal to turn over the energy task force records is in line with this stance.

The problem with this commitment to principle, however, is how ready the Bush White House is to abandon it for political convenience. Press reports have already noted the contrast between the White House's current stance on the Cheney records and the release last summer of transcripts of private conversations between former President Bill Clinton and then Israeli Prime Minister Ehud Barak. But to date none has detailed the tortured, even comical lengths to which the Bush White House has gone in violating its own stated principles to try to embarrass Clinton.

Last August, Newsweek's Michael Isikoff reported on excerpts of three conversations between Clinton and Barak that touched on the then-notorious, but now long-forgotten Marc Rich pardon. When congressional investigators led by Rep. Dan Burton, R-Ind., had requested the transcripts, the Bush White House provided them. "The two leaders had no reason to believe their confidential chat would ever become public," wrote Isikoff. And for good reason: The release of such transcripts of private conversations to a congressional investigating committee (let alone their subsequently leaking to the press) is all but unprecedented.

Administration officials argue that the release of the Clinton-Barak transcripts was simply part of their long-standing effort to make more information available to Congress. "The excerpts were not classified," a White House spokesperson told Salon last August. "The decision to make the documents available was entirely consistent with past practice. You don't just slap Top Secret on a whole document."

Perhaps not. But numerous knowledgeable observers in and out of government say that's not how the executive branch -- particularly this executive branch -- normally acts.

"Given the secrecy that the Bush-Cheney administration has pursued, it's inconceivable that they would turn this information over if it affected President Bush," says Phil Schiliro, Democratic staff director for the House Government Reform Committee, the committee now trying to gain access to the Cheney energy records.

Lynne Weil, press secretary for the Senate Foreign Relations Committee, called the decision "highly unusual. People who have worked for the Foreign Relations Committee for years can't recall the last time such a thing happened."

Even open-government activists who cheer the decision, like the National Security Archives' Tom Blanton, can't help expressing a note of surprise. "This kind of disclosure is exactly what the law calls for. But the extraordinary, almost complete deference the courts give the executive branch on matters of national security [means this sort of thing almost never happens]. This disclosure was uncharacteristically helpful."

For his part, Blanton believes the White House's penchant for secrecy really is rooted in ideology. When I asked him why this same ideological concern for the prerogatives of the presidency didn't extend to the Clinton transcripts, he pointed out that I was ignoring "a rather more focused version of that ideology that's about hating Bill Clinton."

So how exactly did these documents come to see the light of day? And was the Bush White House -- which has primary control over the release of such documents -- changing the rules to knock the former president and give an assist to the notorious Clinton-hater Burton? It sure seems that way.

The Bush White House claims that President Clinton's own representatives agreed with its decision to make the documents available -- and it was, if anything, actually assisting the former president rather than acting to embarrass him.

The truth is rather different.

Under the Presidential Records Act, which is the 1978 law governing the custody of current and former presidents' records, requests for presidential documents follow a two-tiered decision-making process. Requests from congressional committees are forwarded from the National Archives (where the records are stored) to the White House. The White House then makes a decision about what is and what isn't classified, and thus what's available to be subpoenaed and what's not. That decision is made by the White House Counsel's Office in consultation with the National Security Council. If the current White House gives the go-ahead, the former president in question still has the right to try to invoke executive privilege to block the release.

In the case of the Clinton-Barak transcripts, the normal procedure would have been for the White House simply to reject Burton's request. Transcripts of private conversations between presidents and foreign heads of government are simply not made available to congressional committees -- certainly not when the conversations are only months old. It wasn't just "out of the ordinary," said one of former President Clinton's high-level advisors. "It was extraordinarily out of the ordinary." Nonetheless, Bush White House counsel Al Gonzales' office decided to be uncharacteristically generous and declassify the material the Burton committee wanted to look at (and, presumably, to leak).

This put the matter back on the former president. Clinton could have attempted to invoke executive privilege to prevent the release of the transcripts. But as the Bush White House Counsel's Office well knew, such an attempt would have been legally questionable and, more importantly, politically disastrous. Early in the pardon scandal, the former president had pledged full cooperation with all investigations and specifically ruled out any executive privilege claims, so he had little choice but to let the documents go. "The standard response would have been to deny access to these records," said one legal source close to the former president back in August. "But the current White House declassified [these] portions of the tape, thereby putting it back on the [former] president."

In other words, narrowly speaking, the former president did indeed agree to the release of the documents -- but that was only because the Bush White House gave him no choice. Once the current White House Counsel's Office took the nearly unprecedented step of declassifying the transcripts, their release was pretty much a fait accompli.

In common parlance, the new occupants of the White House had put the squeeze on the old one. But that's not the end of the story.

After Newsweek published the Clinton-Barak excerpts, lawyers close to former President Clinton decided that other excerpts that had not been released would place the conversations and Clinton's actions in a more benign context. Former deputy White House counsel Bruce Lindsey, now acting on the former president's behalf, filed a request with the National Archives to secure the release of all the passages in which Clinton and Barak talked about the Marc Rich, not just those the Bush team had already sent to Congress.

Following established procedures, the National Archives sent the request along to the Bush White House. But the reply they received was a firm "no."

The reason from the White House? Those other passages were classified.

By Joshua Micah Marshall

Joshua Micah Marshall, a Salon contributing writer, writes Talking Points Memo.

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Bill Clinton Dick Cheney