Should Hillary Clinton's White House Records Be Disclosed?

The Los Angeles Times has an interesting report on the White House records of Hillary Clinton. Apparently, many of the White House files documenting her role in various policy matters will not be publicly disclosed until after the 2008 election. There's nothing nefarious going on here. It simply takes time for archivists to process the relevant materials, respond to FOIA requests, and redact privileged or otherwise confidential material.

At the Clinton library overlooking the Arkansas River, federal archivists clad in protective smocks are sorting through 80 million pages of records and another 20 million e-mails from a Clinton presidency that ended in January 2001. About 2 million of those pages concern the first lady's office.

A staff of 11 spends most of its time answering some 250 requests for documents submitted under the Freedom of Information Act. Requests are fulfilled largely on a first-come, first-served basis. Because the earliest requests involved other Clinton administration activities, the requests for the now-New York senator's records are further back in line, staff members said. . . .

Before documents are released, archives staff must read them and, by law, must redact material that they determine contains classified information, invades a person's privacy, reveals trade secrets, reveals confidential advice from presidential advisors or raises other concerns specified in the records law.

Asked how long it might be before Hillary Clinton's records are released, the library's chief archivist said it could take years.

"We're processing as fast as we can," Melissa Walker said.

rarango (mail):
It would seem to me that Mrs Clinton should enjoy something like executive privilege. She attempted to reform the health care system. Clearly every policy decision also has a political calculus involved. But the larger issue it seems to me is the policy issue. Her policy work and surrounding deliberations should be protected. The same arguments for executive privilege should pertain.
8.14.2007 5:00pm
I can't see how rarango gets to that point. She was not presidential staff.

But I've worked with State Department archivists, and I know they are overburdened. I would /like/ to have all the information before deciding whom to vote for, but there doesn't seem to be a "speed-it-up/jump-the-queue" procedure.
8.14.2007 5:06pm
D Palmer:
Isn't interesting that the library staff redacts "confidential advice from presidential advisors " for a FORMER president, while congress fails to offer the same consideration to the current one.
8.14.2007 5:08pm
Just Dropping By (mail):
D Palmer, do you not perceive a slight legal difference between a FOIA request and a subpoena?
8.14.2007 5:11pm
D Palmer's comment is interesting to me: I'm a diplomatic historian, and so I have to deal with issues of document classification. (Or perhaps I should say "had to," since my new research project deals with the 1780s.)

I initially considered Congressional Democrats' demands quite out-to-lunch. I have been so accostomed to accepting that advice from WH staff is privileged, even back to the JFK Administration. Never occurred to me that current or recent staff could be compelled to "talk about what was talked about."
8.14.2007 5:14pm
rarango (mail):
Hoosier--True enough; but, I would afford the executive privilege to any person appointed by any President to develop public policy. True, Ms. Clinton's status was unique--but I think policy deliberations should, in general, enjoy protection.
8.14.2007 5:14pm
Her unique status always struck me as a serious problem, in part for this very reason. In addition, I would not want to be the guy who bluntly disagrees with the First Spouse at policy meetings. And, finally, it's just plain nepotism.
8.14.2007 5:18pm
Duffy Pratt (mail):
None of this matters. For the really good stuff, you would have to look at the boxes that have been "misplaced" in her various bedrooms, and no FOIA request is gonna reach those.
8.14.2007 5:28pm
OK lawyer (mail):
Why should these be protected in any way? For that matter, why should policy deliberations, in general, be protected? Granted immunity from prosecution, fine. but why can't we look at them?
8.14.2007 6:37pm
Anderson (mail) (www):
The post title asks "Should," but the real issue appears to be "when."

For that matter, why should policy deliberations, in general, be protected?

Because then they would have all the intellectual incisiveness of a presidential debate.
8.14.2007 6:42pm
Al Maviva (mail) (www):
Why should these be protected in any way? For that matter, why should policy deliberations, in general, be protected

Because if you make policy deliberations (which include legal advice, BTW) subject to disclosure, no policy wonk, politico or attorney hoping to be employed in the future will venture a new (and possibly stupid) idea, or stand up in the manner sometimes required to disabuse proponents of stupid ideas, of their plans. Moreover, it would open decisionmakers to endless second-guessing of their decisions. Can't wait to see what Congress and the Courts could do with a dozen bankers boxes full of stupid ideas floated by policy makers, even though the stupid ideas never saw the light of day...

Let's put it a different way. Would you want the court and the opposition to be able to see the draft copies of your briefs, including the metadata in the documents reflecting erroneous statements and cites?
8.14.2007 6:44pm
Al Maviva (mail) (www):
Oh yeah, and I'm of the inclination to think Mrs. Clinton's papers ought to stay under seal for now, to the extent any presidential aide's papers would stay sealed, since that's the capacity she appeared to be acting in.
8.14.2007 6:45pm
C'mon, folks! What's in the files isn't 'policy deliberations,' which is a phrase that covers anything and everything. Hillary refuses to disclose her record for the same reason John Kerry won't sign the DoD SF-180 to disclose his military record.

They've both got unpleasant things they want to keep hidden from the voters.
8.14.2007 7:43pm
Horatio (mail):
They've both got unpleasant things they want to keep hidden from the voters.

Amen, brother
8.14.2007 7:55pm
I can't wait until we get to see what Vice President Man Sized Safe has been stamping with his non-existant super double secret classifications all these year.
8.14.2007 8:06pm
CaseyL (mail):
If the standard for disclosure is "finding nefarious doings," then no one ever has Executive Privilege to conceal their records. No one.

And if y'all want to trawl through Hillary Clinton's records on a fishing expedition, with no criterion but your dislike of her, then I sure as hell want to trawl through Bush's records, and Cheney's, and Rove's, and Gonzales', and Rumsfeld's, and Addington's, and Rice's. And for better criteria than mere dislike: a terrorist attack that "no one could have expected" despite so many warnings; a misbegotton war based on manipulated data; a CIA operative investigating WMD whose identity and cover employer were disclosed out of sheer spite; a domestic surveillance program we already know was illegal; an attempted end-run around a duly appointed Acting Attorney General which involved a midnight visit to a semi-conscious man recovering from surgery...

You want to know about, what? travel agents? Whitewater-era legal files?


I want to know about policies which have broken our military, killed our people, endangered our nation, and illegally spied on our citizens.
8.14.2007 10:31pm
Gaius Marius: convenient. I'll just bet her records won't become available until after January 2016.
8.14.2007 11:19pm
On the one hand, you'd think given the amount (and duration) of speculation that she'd run that somebody'd have FOIAed her stuff earlier, putting it higher in line for processing.

On the other hand... those are really big numbers of pages to go through. Being part of that staff of 11 is decidedly not my job of choice.
8.15.2007 1:27am
They're working as fast as they can?

Sure they are...
8.15.2007 1:45am
What I want to see are the 120 or so pages of the Barrett Report, the report of the Independent Counsel investigating Cisneros, that the Clintons have been fighting tooth and nail to keep secret and unreleased.

Rumors say those pages document in great detail the Clintons' use of the IRS against their political adversaries.

I want to know.
8.15.2007 3:30am
Perseus (mail):
I can't wait until we get to see what Vice President Man Sized Safe has been stamping with his non-existant super double secret classifications all these year.

The Freedom of Information Act does not apply to Congress, and since the Office of Vice-President is part of Congress, you may have to wait till hell freezes over.
8.15.2007 3:36am
I'm not in the Clinton camp. In fact I would very much like to see someone other than HRC as POTUS.

But I don't imagine for a minute that the professionals who work on declassification issues are stalling in any way. I'm not a lawyer, so someone please correct me if I'm wrong. But I always understood that FOIA requires a first-requested/first-processed work schedule.

And since jerks like me tie up the system with requests for documents to insert into the footnotes of articles that no one ever reads, it is not hard to imagine that eleven people are kept very busy with this work.

An Energy Dep't. archivist told me that she had to check with all other executive units that were involved with any given document's generation. So NSC report on, say, Carter's options for Gulf oil after the iranian Revolution might have to be cross-checked before release by--let's see-- ME at State, NSC, CIA, DoD, PPS, Treasury, as well as Energy.

And /still/ the US does a MUCH better job of getting docs out than do the Brits--who are OK; or the French--who are horrible. There are still documents from the 1920s that the French won't let me see.
8.15.2007 11:28am
Duffy Pratt (mail):
Does anyone know what level security clearance the first lady gets?
8.15.2007 1:04pm
Oh, just get someone to smuggle them out in his socks.
8.15.2007 3:18pm
Re CaseyL's post above: GWB released all his records during each campaign, including signing his DoD Standard Form 180, which released his military records to the news media. Kerry and Hillary are both hiding their record from the electorate.

John Kerry has never signed the SF-180 [although he's promised to on numerous occasions, both before and after his failed election bid]. He's hiding something very bad, probably a less-than-honorable discharge.
8.15.2007 3:21pm
NickM (mail) (www):
Why are there only 11 archivists assigned to this? If there is a multi-year backlog, the government is not reasonably meeting its obligations under FOIA.

8.15.2007 4:25pm
Buck Turgidson (mail):
I find it curious how most of the commenters on this thread suddenly lose their ability to read (and to think) when the Clintons are involved. Jonathan specifically wrote, "There is nothing nefarious going on". No one is saying that the Clintons are blocking the records. And the article clearly states two things:

1. Before documents are released, archives staff must read them and, by law, must redact material that they determine contains classified information, invades a person's privacy, reveals trade secrets, reveals confidential advice from presidential advisors or raises other concerns specified in the records law.

2. Requests are fulfilled largely on a first-come, first-served basis.

And, while we are on the subject, let me pose a different question--should Dick Cheney keep his records in the archives? Or should he be allowed to purge them at will, as he has been doing?
8.17.2007 11:40am
Buck Turgidson (mail):
VP's people tried to make the argument that VP is not a part of the executive. Then they quickly realized that this would eviscerate any claims of executive privilege they might otherwise have had to fight subpoenas. So they gave up on that argument. VP is not a member of Congress or Congressional staff and the protections do not extend to the VP or any member of his staff.
8.17.2007 11:48am
Former Archivist:
According to the Presidential Records Act of 1978, the former President may apply the so-called P5 restriction on confidential advice for 12 years after leaving office. After that, information may be withheld by archivists for privacy or national security but not simply because it represents confidential advice.

However, the former President still may exert executive privilege over materials the archivists mark for opening. The right to do so was strengthened under Executive Order 31233, November 1, 2001. The E.O. currently is under review in a court case and also is the subject of proposed legislative action (see H.R. 1255, The Presidential Records Act Amendments of 2007).

Courts generally have found that the privilege erodes over time. If you want to study this, I suggest you look at Nixon v. Administrator and also Nixon v. Freeman.

Also useful is James D. Lewis's article, "White House Electronic Mail and Federal Record keeping Law: Press "D" to Delete History," Michigan Law Review, Vol. 93, No. 4. (February 1995).

FYI, the Code of Federal Regulations states at
§1250.26(e) that

"(e) If you have requested Presidential records and NARA decides to grant you access, NARA must inform the incumbent and former Presidents of our intention to disclose information from those records. After receiving the notice, the incumbent and former Presidents have 30 days in which to decide whether or not to invoke Executive privilege to deny access to the information. NARA will send you an initial response to your FOIA request within 20 working days informing you of the status of your request. However, the final response to your FOIA can only be made at the end of the 30-day Presidential notification period."
8.18.2007 1:43pm
Former Archivist:
The Presidential Records Act of 1978 applies both to the President and the Vice President. Here is what the National Archives states on its website:

"The Presidential Records Act (PRA) of 1978, 44 U.S.C. ß2201-2207, governs the official records of Presidents and Vice Presidents created or received after January 20, 1981. The PRA changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents must manage their records.

Specifically, the Presidential Records Act:

* Defines and states public ownership of the records.
* Places the responsibility for the custody and management of incumbent Presidential records with the President.
* Allows the incumbent President to dispose of records that no longer have administrative, historical, informational, or evidentiary value, once he has obtained the views of the Archivist of the United States on the proposed disposal.
* Requires that the President and his staff take all practical steps to file personal records separately from Presidential records.
* Establishes a process for restriction and public access to these records. Specifically, the PRA allows for public access to Presidential records through the Freedom Of Information Act (FOIA) beginning five years after the end of the Administration, but allows the President to invoke as many as six specific restrictions to public access for up to twelve years. The PRA also establishes procedures for Congress, courts, and subsequent Administrations to obtain special access to records that remain closed to the public, following a thirty-day notice period to the former and current Presidents..
* Requires that Vice-Presidential records are to be treated in the same way as Presidential records."

The Act states at § 2201 that

"(2) The term "Presidential records" means documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President."
8.18.2007 2:00pm