Somewhat lost in all the fonts dedicated to BushCo’s claims of executive power and secrecy is the fact that there is already pending before Congress a bill that will make some inroads into the unitary executive and executive privilege. I am referring to H.R. 1255, The Presidential Records Act Amendments, which recently passed in the House but is pending in the Senate. Although this Bill has been mentioned on this site in legislative updates by On the Bus and by KazHooker, I must confess that I only found it by following one of the more compelling loose threads in the U.S. Attorney purge. Because it so perfectly illustrates how all of these issues are intertwined, I present it to you now, as I found it, with a request that you take some action to get your Senator interested in it, as well.
One aspect of Purgeroo that has struck many of us as tremendously important is the apparent use by white house staff of non-white house e-mail servers for conducting some of their discussions with respect to the U.S.A. firings. Blogger Johnhas twice diaried this issue, and BobcatJH has weighed in, as well.
The short story is that in discussions concerning the USA’s, staffers have used as their e-mail server gwb43.com, which is a privately-owned, and decidedly political server. If you’d like to see a sample, TPM has a nice set of e-mails, in which Goodling talks to Sampson about Tim Griffin’s prospects for being appointed USA in Arkansas, given that he helped with election efforts to block absentee ballots, "coincidentally . . . in black precincts."
As MLDB and others have pointed out, the use of these servers appears to be in violation of the Presidential Records Act ("PRA"), which sets out the requirements and procedures for maintaining accurate and complete records of all official presidential business. This is the Act that ensures that a complete historical record will be transmitted to the national Archives and preserved after a President’s term in office has expired, for use by future historians, Congress, watchdogs, citizens, Wonkette and Drudge. As MLDB points out, Citizens for Responsibility and Ethics in Washington ("CREW") has sent a letter to Congressman Waxman demanding that he look into the apparent violation of the PRA. And as many have noted on this site, the use of these non-white house servers raises huge issues concerning the obstruction of ongoing congressional investigations. It also raises serious problems for white house claims of executive privilege for documents and communications that were not treated as executive communications by white house staffers. But wait, there’s more.
Let’s go back in time, now. In 2001, after taking office, BushCo issued Executive Order 13233, which virtually eviscerated the PRA by ensuring that no one can ever get their hands on any of the documents that are required to be maintained under the PRA. Let me repeat that in a different fashion. The PRA mandates that presidential records be preserved for future use by third parties. EO 13233, however, allows either a sitting President or a past President to veto their disclosure. The basis for the Order was, of course, the executive privilege of the 'unitary executive.’ As diarist mbw described it two years ago, the BushCo Order essentially "gives all present and former presidents since 1980 full veto authority, in perpetuity, over access to their presidential papers." In fact, under EO 13233, even former vice presidents can claim a ‘vice presidential executive privilege’, and withhold disclosure of their documents indefinitely. Not surprisingly, Abu Gonzales, in his then-capacity as Presidential Counsel, was responsible for the issuance of this Order, which was used at the time to block a request for presidential records dating from the Reagan administration, including records from the office of his Vice President, G.H.W. Bush. Now why would Shrub and Abu want to do that?
The watchdog group Public Citizensued unsuccessfully to overturn EO 13233 soon after it was promulgated, and has been working steadily since then to have Congress step in. With the recent elections and the dedicated oversight of Congressman Waxman and others, these efforts recently paid off, with House passage of H.R. 1255. H.R 1255 restores access to presidential documents (after certain waiting periods), limits the grounds for withholding access to them, and overrules EO 13233. It eliminates the Presidential veto over disclosure in perpetuity, and eliminates any notion of a vice-presidential executive privilege. In effect, it restores the rules concerning the preservation and disclosure of presidential records to their proper place under the PRA.
The rest of the story? H.R. 1255 has been referred to the Senate Committee on Homeland Security and Government Affairs, whose current chair is Joe Lieberman!
Now, I’m sure that "Tailkisser Joe (that’s a reference to Sen. Joe McCarthy, for you youngsters) is probably too busy with those Katrina hearings to spend a lot of time on this Bill. However, Senator Obama is also a member of that committee. So perhaps we can light a little fire there, after all.