Kagan’s White House Records and the Presidential Records Act

In preparation for the confirmation hearings for Supreme Court nominee Elena Kagan, the Senate Judiciary Committee has requested that the National Archivist produce records of Kagan’s service in the Clinton White House, where she served first as Associate White House Counsel and then as Deputy Assistant to the President for Domestic Policy.   It appears that the documents related to her domestic policy position have been largely, if not entirely, released, but those relating to her service as counsel are still being reviewed.

These records are subject to the Presidential Records Act, 44 U.S.C. § 2201, et seq., which provides that the records of an outgoing administration belong to the public and are to be transferred to the National Archives for preservation and processing.  After a specified period (up to 12 years depending on the type of record), the public may seek access to these records under the Freedom of Information Act.

Congressional committees are not subject to either the PRA’s time restrictions or to FOIA’s limitations on public access.  Nevertheless, the PRA recognizes that congressional requests for presidential records may be subject to claims of privilege.  44 U.S.C. § 2205(2).

In 2001, President Bush issued an executive order on presidential records which was widely criticized for, among other things, broadly interpreting the rights of both the incumbent and former President to prevent the disclosure of presidential records to Congress.  Bush’s order (1) allowed the former President a 21-day period to review records requested by a congressional committee and decide whether to assert a privilege, (2) gave the incumbent President a sequential 21-day period to make his own decision with regard to privilege, (3) permitted either to extend these periods indefinitely for “burdensome” requests, and (4) prohibited the National Archivist from disclosing the records unless both the former and incumbent Presidents agreed to do so.

President Obama, in one of his first official actions, revoked the Bush executive order and replaced it with a new executive order on presidential records.  The Obama order more closely tracks the National Archives regulations than did the Bush order.  Under the revised procedure, the Archivist is responsible for initially determining if records will be disclosed, whether in response to a congressional request or otherwise; the Archivist then provides the former and incumbent Presidents with a notice period (normally 30 days) during which either may invoke executive privilege.  However, the Archivist is only bound to follow the privilege decision of the current President; he may choose, unless otherwise instructed by the current President or his designee, not to honor a privilege invocation by the former President.  He must, however, provide the former President notice of this decision, thereby permitting the former President to seek judicial relief.

White House Counsel Bob Bauer has informed Senator Jeff Sessions, Ranking Member on Senate Judiciary, that “President Obama does not intend to assert executive privilege over any of the documents requested by the Committee.”  However, Bauer notes that the documents are being reviewed by a representative of President Clinton, and he leaves open the possibility that Clinton may assert a privilege with respect to some of the documents.  In that event, Bauer states that the administration would first try to reach a “mutually satisfactory accommodation” with the Committee and Clinton.  He doesn’t say what would happen if an accommodation cannot be reached, but, under the regulations and executive order, the Obama administration could decide to accept or reject Clinton’s claim, or it could leave the decision up to the Archivist.

If Clinton decides to invoke executive privilege for documents related to Kagan’s service as White House counsel, it will likely raise a number of unsettled issues.  Bush’s executive order, for example, claimed that executive privilege covers “legal advice or legal work,” but many in Congress hotly disputed this claim, arguing that common-law privileges such as attorney-client privilege are not part of the constitutionally-based executive privilege.  Moreover, as a former President, Clinton’s ability to claim privilege is subject to further uncertainty as the executive privilege tends to erode over time.