Dean: George W. Bush's Presidential Library:

Can Democrats Stop Bush and Cheney From Depriving The Library of The Papers They Wish to Keep Secret?

By JOHN W. DEAN

Amid a slow, low-boiling, and mostly Texas-based controversy regarding the potential location of a future George W. Bush Presidential Library, a significant issue regarding such a future institution is being completely overlooked: Should there be federal support of the Bush Presidential Library, in light of the fact that President Bush has refused to comply with the 1978 Presidential Records Act?

Presidential libraries and records are on my mind because I attended a conference sponsored by all presidential libraries that was held at Franklin Roosevelt's Library in Hyde Park, New York. The conference addressed Presidents and the Supreme Court, but a question about presidential records arose during my panel. In addition, in conversations with presidential library professionals (of all political persuasions), I found that they are deeply troubled by Bush's and Cheney's actions regarding presidential records.

Previously, I have written about how Bush's Executive Order 13233 gutted the 1978 presidential records law enacted in the aftermath of Watergate. The law declared that presidential papers belong to the American people, and therefore, Congress placed strictures on what any White House can and cannot do with its records. The professionals, however, doubt that the Bush and Cheney records will be anything close to complete. If so, they will have little true value.

In a booklet issued by the Office of Presidential Libraries, which is part of the National Archives and Records Administration (NARA), former President Gerald Ford is quoted as saying, "The past can instruct the present not only in the art of leadership, but also in the opportunities of citizenship." Yet if the records of those libraries have been cleansed, or if they are indefinitely controlled by a president (or vice president), as Bush and Cheney can do under Bush's radical Executive Order 13233, then the past's message to the present can hardly be a very meaningful or realistic instruction.

Can, and Will, the Next President Reverse Bush's Presidential Records Executive Order?
As the Bush Administration winds down, the conference raised a timely question (albeit not one likely to go to the Supreme Court): Can the next president, elected in 2008, overturn Bush's Executive Order 13233, and thus restore the Presidential Records Act of 1978, which Bush's Order has interpreted in a manner that makes the Act a nullity?

The answer I gave, in the public session (which was being recorded by C-Span) was yes. Executive orders are binding only upon members of the executive branch, and are valid only so long as the sitting president is willing to enforce any prior president's order.

Later, I elaborated on my answer privately in talking with several persons associated with the presidential libraries, predicting that, if elected President, Hillary Clinton would likely follow the 1978 law with a new executive order. (Her husband had operated under an Executive Order relating to the 1978 law issued by Reagan.) Conversely, I added that I would expect that Rudy Giuliani, if elected President, would extend the law so broadly that even Barney Bush (the president's pooch) would have power over the Bush White House papers.

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