Deconstructing Tim Russert vs. the Clintons

Did Bill "specifically" block public access to records related to Hillary?


Tim Grieve
November 7, 2007 3:57AM (UTC)

When Tim Russert asked Sen. Hillary Clinton last week about the release of documents related to advice she may have given her husband during his presidency, he launched -- or at least helped shine a light on -- a cottage industry of attacks, explanations, recriminations and litigation. Bill Clinton called Russert's question "breathtakingly misleading." Barack Obama said Hillary Clinton's answer to the question suggested that she was following the lead of "one of the most secretive administrations in history."

Who's right here? Well, it's a little ... complicated.

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During last week's debate, Russert asked Clinton whether, "in order to give the American people an opportunity to make a judgment" about her experience, she would "allow the National Archives to release the documents about your communications with the president, the advice you gave."

Let's stop the tape right there.

Russert's initial question was based on a false premise -- the notion that Hillary Clinton herself could "allow" the National Archives to release documents about her communications with her husband. Under the Presidential Records Act of 1978, an outgoing president can direct the National Archives to "restrict access" to six broad categories of documents for as long as 12 years after he or she leaves office. Once a president issues such a directive -- as Bill Clinton did in 1994 -- the Archives can release documents it believes fall within one of the restricted categories only if the former president allows it to do so. There's no provision in the Presidential Records Act allowing a former first lady to waive her husband's restriction.

Back to Russert: "As you well know," he continued, "President Clinton has asked the National Archives not to do anything until 2012 ... There was a letter written by President Clinton specifically asking that any communication between you and the president not be made available to the public until 2012. Would you lift that ban?"

Again, Hillary Clinton couldn't "lift" any such ban even if she wanted to. But was the rest of Russert's question fair? That depends on how you read a letter the former president sent to the National Archives in November 2002.

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Clinton, complaining about Russert's question, says he wrote his letter in an effort "to speed up presidential releases, not to slow them down." And indeed, Clinton said in the letter that he wanted to "ease for review and processing purposes" the "application" of two of the restrictions he had imposed in 1994 -- one restricting access to documents "relating to appointments to federal office" and another restricting access to documents reflecting "confidential communications requesting or submitting advice, between the president and his advisers, or between such advisers."

So far, it seems as if Clinton has the better of the argument: That 2002 letter eased restrictions, including restrictions on documents showing advice Clinton got from his advisors, right? Well, sort of. Because even as Clinton "eased" two of the restrictions generally, he also created some exceptions to that "easing." Clinton said that documents covered by the categories whose restrictions he was "easing" should still be "considered for withholding" if they involved, among other things, "confidential communications" regarding "a sensitive policy, personal or political matter," a "foreign policy topic" or "legal issues and advice, including, but not limited to, matters in litigation and matters subject to investigation by Congress, the Department of Justice or an independent counsel."

If there were ever a case of an exception swallowing a rule, this would seem to be it: Clinton eased restrictions on "confidential communications" involving the advice of his advisors -- so long as it didn't concern sensitive policy, personal or political matters, foreign policy or legal matters. If you can think of something involving Hillary Clinton that wouldn't fall within that exception -- well, you don't have to, because Clinton also specifically exempted from his "easing" any "communications directly between the president and the first lady, and their families, unless routine in nature."

So was Russert's characterization correct? Well, not so fast: In creating all those exceptions to the categories he was "easing," Clinton didn't ask that the Hillary-related documents "not be made available to the public until 2012," as Russert said. He simply asked that they be "considered for withholding," which current and former Clinton advisor Bruce Lindsey says means only that if someone requests access to such documents, the Archives will consult with the former president's designee -- Lindsey -- to determine whether the documents should be released or withheld.

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When the Associated Press asked NBC to respond to the former president's criticisms last week, NBC spokeswoman Barbara Levin said: "Tim's question was entirely on the mark." But when we sent Levin an e-mail message this afternoon describing some of the ambiguities in Clinton's 2002 letter, she responded with what we'll call a more "nuanced" response.

"Tim's question was on the mark because, while President Clinton's 2002 letter does request the expedited release of some documents, he also requests the Archives to consider for withholding confidential communications involving foreign policy issues, sensitive policy, personal or political matters, and 'communications directly between the president and the first lady and their families, unless routine in nature,'" Levin wrote. "Certainly, the breadth and scope is open for interpretation. Brian [Williams'] and Tim's questions throughout the debate focused on Iraq, Iran, Social Security, energy, experience and immigration -- all critical issues in this presidential campaign."


Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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