Partial Release of Reagan Presidential Papers Announced

Bruce Craig, February 2002

On January 3, 2002, the Bush administration authorized the release of some 8,000 pages of a total of over 68,000 pages of Reagan administration records that were required by law to be released in January 2001. Opening of the records was delayed by the Bush administration, which imposed new restrictions on release of Reagan's presidential records in the recently signed executive order 13233.

According to a National Archives press release (see http://www.fas.org/sgp/news/2001/12/reagan.html), "In accordance with Executive Order 13233, representatives of former President Reagan and President Bush have reviewed these records and have chosen not to assert any constitutionally based privilege." According to White House counsel Alberto R. Gonzales, whose op–ed appeared in the December 19, 2001, issue of the Washington Post, "Today's action shows that President Bush's executive order can and will work as intended to facilitate appropriate and expeditious release of presidential records consistent with the Constitution and the [presidential records] act."

In fact, the administration may well be holding back some of the materials slotted for release. A visit to the Reagan library on December 28, 2001, revealed that while the release includes alphabetical name and subject files for over 50 individuals and about a dozen presidential offices whose names or offices begin with the letters "A" through "F", some potentially controversial files appear to have been held back as they were not included in the release (For an inventory of records released, see http://www.reagan.utexas.edu/p5inv010302.htm). Name files for prominent and influential Reagan advisers such as Judge Robert Bork; Deputy Assistant to the President Lee Atwater; future Education Secretary William Bennett; and Assistant to the President for National Security Affairs Frank Carlucci, among others, are not included in the first release. According to Reagan Library archivists, no FOIA requests may be on file for these individuals (and hence no P–5 exemptions were processed for clearance), or these files simply may not yet have been cleared by the White House and will be reviewed for release sometime in the future.

A sampling of eight boxes of the 8,000 page release reveals that the P–5 exemption materials (the P–5 exemption states: "release would disclose confidential advice between the President and his advisors, or between such advisors;" see Section (a)(5) of the Presidential Records Act) includes important communications relating to a wide variety of domestic and foreign policy issues. For example, the P–5 materials relating to future Transportation Secretary Elizabeth Dole when she was assistant to the president for public liaison, is unusually large and rich when compared to the number of privilege claims in the papers of other policy advisers. Dole freely gave advice on wide ranging matters of concern to the Reagan White House including the administration's abortion policy, attitudes toward "liberal" union leaders, and Reagan's image as a "man's man," which she feared was hurting his appeal to women voters.

There is still no official word when the remaining 60,000 pages of records will be released. According to some informed sources, the White House intends to release all the remaining papers by the end of January just prior to the filing of a required response to the lawsuit brought by historians and public interest organizations who are seeking to overturn Bush's Executive Order 13233. The critics allege that it violates the provisions of the Presidential Records Act.

If the lawsuit has done nothing else, it has helped catapult the release of the Reagan presidential records into a Bush administration priority. Even if all the records are released in coming weeks and months, however, Public Citizen, a consumer advocacy group based in Washington that is providing legal counsel for the suit, intends to continue its court challenge of the executive order. While the release of the Reagan Papers was one element of the pending suit, of greater importance are the still outstanding issues relating to the legality of the executive order as it relates to the Presidential Records Act. Plaintiffs in the lawsuit—a broad coalition of historians, journalists, and archivists—maintain that the Bush executive order undermines the spirit, if not the legislative intent, of the Presidential Records Act.