Monday, September 15, 2008
BROOKE GLADSTONE: So we called the Vice President’s office, and this is what they told us, quote: “The office of the Vice President currently follows the Presidential Records Act and will continue to follow the requirements of the law, which includes turning over vice-presidential records to the National Archives at the end of the term. Since the matter is currently under investigation, we will not comment further,” unquote.
So, Anne, why don't you believe the Vice President?
ANNE WEISMANN: Well, it’s not a question of not believing them, although I will say their track record is far from great on that score. But if you listen to what he actually said, it’s fine for him to give the bland assurance that they're complying with the act, but they have a completely different view than we do as to what that act actually requires him to do.
BROOKE GLADSTONE: So what is that difference?
ANNE WEISMANN: Well, the law says that the President and Vice President have to preserve essentially all the records that they create in fulfillment of their statutory, constitutional, ceremonial and other duties.
Now, the Vice President’s Office and the Archives take the position that the legislative records that the Vice President creates and receives don't have to be preserved.
BROOKE GLADSTONE: What sort of documents, then, is he saying are exempt?
ANNE WEISMANN: Well, that actually is a very good question, and here’s why. This Vice President has taken the view that he’s not part of the executive branch. He’s covered by executive privilege but he doesn't have any of the responsibilities that go with being part of the executive.
He says, if I'm attached anywhere, it’s to Congress, which opens up a huge loophole here, because, for example, he’s refused to tell the Archives how he and his office handle classified information. He’s refused to comply with Ethics in Government laws that require reporting of trips that are funded by outside groups. He hasn't even been willing to give his staff list to Congress.
BROOKE GLADSTONE: Anne, can you take me through the history of the Presidential Records Act quickly?
ANNE WEISMANN: Mm-hmm [AFFIRMATIVE].
BROOKE GLADSTONE: I know that it was passed in 1978 in response to the Watergate scandal.
ANNE WEISMANN: Well, the original act - it’s gone through one or two permutations since then – made clear that the records belong to the public, because recall that President Nixon left office and, much to everyone’s shock, said, these are my papers and I'm not going to share them with the public. In the past, presidents had taken their papers but they had put them in presidential libraries.
So Congress passed a law to make sure that when the President leaves office, the records, all of them, will be transferred over to the archivists, who will prepare them for eventual release to the public. It’s clear that Congress envisioned, really, that it would cover the broadest possible group of records.
BROOKE GLADSTONE: So back in 2001, President Bush signed an executive order trying to alter the Presidential Records Act of 1978. What was he trying to do, and how effective was he at doing it?
ANNE WEISMANN: It’s clear that what he was trying to do is protect the legacy of his father and his own legacy going forward. He allowed former presidents to extend beyond 12 years, which the act has in it, the time period under which their records could be sealed. He gave rights to family members of former presidents to assert interests on behalf of the president. And in a little-noticed provision, he said for purposes of the Presidential Records Act, the Vice President’s records are the executive records of the Vice President.
BROOKE GLADSTONE: Oops!
ANNE WEISMANN: And it was the expression “executive record,” exactly. But who knew at the time that we would be looking at a vice president who would take the view, I'm not part of the executive branch? The problem with that is that a president doesn't have the authority to unilaterally change the law by executive order or any other order.
The problem with that is that a president doesn't have the authority to unilaterally change the law by executive order or any other order.
BROOKE GLADSTONE: So if he couldn't change the law, how effective was this executive order? For instance, was he able to prevent the release of the papers of President George Herbert Walker Bush?
ANNE WEISMANN: He was, and it’s my understanding that a cache of documents that would otherwise have been released were not. There was a lawsuit over the executive order, and it succeeded in small part. It mostly failed on sort of legal/technical grounds.
Of course, our lawsuit is a little different because we're not talking about records that we think eventually will become available for public review. The issue isn't when is that going to happen, now or later? We're talking about records that, unless they're covered by this act, may be destroyed altogether.
And I think it’s an especially acute loss when you consider how enormously active this vice president has been, probably more than any other vice president in history.