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Should an Unaccountable Former Officeholder Retain Power over Public Information? - Personal vs. Public Interest
Tuesday, July 8th, 2008
Robert Wechsler
One of the interesting things about the attorney-client privilege in a
government setting is that the privilege -- which is, of course, the
client's, not the lawyer's -- is held by the office, not by the
individual
holding the office at the time of the communication. This is a major
reason why the attorney-client privilege is
different in a government context: whenever a government
official tells something to a government attorney, the official knows
that his or her successor might waive the privilege and disclose the
communication or direct the lawyer to do so. In other words, in the
government context there is no assured privilege.
In 1989, President George H. W. Bush recognized this in Executive Order 12667. This Order directed that a former president could ask that information not be disclosed, but that the incumbent Attorney General and Counsel to the President make the final decision.
In 2001, President George W. Bush changed this in Executive Order 13,233. Now the former president can make the final decision. In other words, now the privilege is officially held by the individual, not the office.
Click here to read the rest of this blog entry.
The Society of American Archivists asked Congress to reassert its power over this issue, as expressed in 44 U.S.C. Sect. 2201-2207. Other such organizations have attacked the Order, and there have been attempts to prevent SMU from accepting the Bush Library due to this order. But the argument has been about access to government documents, ignoring the issue of who is the holder of executive and attorney-client privileges.
Government ethics is based on the idea that government service involves placing the public interest over personal interests. While in office, an official has the right to wield the power of the office, and he or she also has the obligations that go with the office, and both involve the public interest. Once out of office, the former officeholder still has some obligations (such as confidentiality), but no powers. For former officials to retain powers of their office (other than honorifics) would allow them, rather than their successors, to determine the public interest with respect to their actions. This not only creates a conflict, but it is also anti-democratic, because the former officeholder is completely unaccountable for his or her actions.
Executive Order 13,233 sets a terrible precedent for all levels of executive. What is to stop a mayor from making such an executive order? I believe that the government ethics community should add its voice to those demanding a repeal of this Order.
In March 2008, Senate Majority Leader Harry Reid brought to the Senate floor a bill to repeal the Executive Order: S. 886, the Presidential Records Act Amendments of 2007 (the same bill as HR 1255), and replace it with an amendment that would require a former president to go to the Federal District Court in Washington, D.C., pursuant to U.S.C. Section 2204(e). It was blocked by Senator Jeff Sessions. Also, President Bush vowed to veto the bill, although it passed the House 333-93 and Sen. Reid sought a unanimous vote. The same bill was blocked in October 2007 by Senator Jim Bunning.
Even this bill is inadequate. It still allows a former president to have some authority over the disclosure of communications, even if this authority can be checked by a court. Simply repealing the Executive Order (I'm assuming this can be done) and reinstating the earlier Executive Order seems to me a better approach.
I have sent the below versions of this blog entry to both senators who blocked this bill (the first version), to my two senators (the second version), and to the Office of the President. Please add your voice if you agree that this is a dangerous precedent, undermining government transparency, accountability, and the distinction between an individual and his or her government office. In addition, Senator Bunning can be reached online here, or at 316 Hart Senate Office Building, Washington, DC 20510, 202.224.4343, Fax: 202.228.1373. Senator Sessions can be reached online here, or at 335 Russell Senate Office Building, Washington, DC 20510-0104, (202) 224-4124, Fax: (202) 224-3149. The President can be e-mailed at [email protected].
Robert Wechsler
Director of Research-Retired, City Ethics
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In 1989, President George H. W. Bush recognized this in Executive Order 12667. This Order directed that a former president could ask that information not be disclosed, but that the incumbent Attorney General and Counsel to the President make the final decision.
In 2001, President George W. Bush changed this in Executive Order 13,233. Now the former president can make the final decision. In other words, now the privilege is officially held by the individual, not the office.
Click here to read the rest of this blog entry.
The Society of American Archivists asked Congress to reassert its power over this issue, as expressed in 44 U.S.C. Sect. 2201-2207. Other such organizations have attacked the Order, and there have been attempts to prevent SMU from accepting the Bush Library due to this order. But the argument has been about access to government documents, ignoring the issue of who is the holder of executive and attorney-client privileges.
Government ethics is based on the idea that government service involves placing the public interest over personal interests. While in office, an official has the right to wield the power of the office, and he or she also has the obligations that go with the office, and both involve the public interest. Once out of office, the former officeholder still has some obligations (such as confidentiality), but no powers. For former officials to retain powers of their office (other than honorifics) would allow them, rather than their successors, to determine the public interest with respect to their actions. This not only creates a conflict, but it is also anti-democratic, because the former officeholder is completely unaccountable for his or her actions.
Executive Order 13,233 sets a terrible precedent for all levels of executive. What is to stop a mayor from making such an executive order? I believe that the government ethics community should add its voice to those demanding a repeal of this Order.
In March 2008, Senate Majority Leader Harry Reid brought to the Senate floor a bill to repeal the Executive Order: S. 886, the Presidential Records Act Amendments of 2007 (the same bill as HR 1255), and replace it with an amendment that would require a former president to go to the Federal District Court in Washington, D.C., pursuant to U.S.C. Section 2204(e). It was blocked by Senator Jeff Sessions. Also, President Bush vowed to veto the bill, although it passed the House 333-93 and Sen. Reid sought a unanimous vote. The same bill was blocked in October 2007 by Senator Jim Bunning.
Even this bill is inadequate. It still allows a former president to have some authority over the disclosure of communications, even if this authority can be checked by a court. Simply repealing the Executive Order (I'm assuming this can be done) and reinstating the earlier Executive Order seems to me a better approach.
I have sent the below versions of this blog entry to both senators who blocked this bill (the first version), to my two senators (the second version), and to the Office of the President. Please add your voice if you agree that this is a dangerous precedent, undermining government transparency, accountability, and the distinction between an individual and his or her government office. In addition, Senator Bunning can be reached online here, or at 316 Hart Senate Office Building, Washington, DC 20510, 202.224.4343, Fax: 202.228.1373. Senator Sessions can be reached online here, or at 335 Russell Senate Office Building, Washington, DC 20510-0104, (202) 224-4124, Fax: (202) 224-3149. The President can be e-mailed at [email protected].
For Senators Bunning and Sessions
As a government ethics professional, I feel obligated to express my opposition to your position on presidential records.
You blocked a bill to repeal the Executive Order: S. 886, the Presidential Records Act Amendments of 2007 (the same bill as HR 1255), and replace it with an amendment that would require a former president to go to the Federal District Court in Washington, D.C., pursuant to U.S.C. Section 2204(e).
By doing so, you created a dangerous precedent, which places the personal interest of government officeholders above the interest in having the current, accountable officeholder make determinations of the public interest.
In a government setting, privileges involving disclosure (e.g., executive or attorney-client) are held not by the individual holding the office at the time of the communication, but by the incumbent holder of the office.
In 1989, President George H. W. Bush recognized this in Executive Order 12667. This Order directed that a former president could ask that information not be disclosed, but that the incumbent Attorney General and Counsel to the President make the final decision.
In 2001, President George W. Bush changed this in Executive Order 13,233. Now a former president can make the final decision. In other words, now the privilege is officially held by the individual, not the office.
While in office, an official has the right to wield the power of the office, and he or she also has the obligations that go with the office, and both involve the public interest. Once out of office, the former officeholder still has some obligations (such as confidentiality), but no powers. For former officials to retain powers of their office (other than honorifics) would allow them to determine the public interest with respect to their actions, rather than their successors. This creates a clear conflict, and it is also anti-democratic because former officeholders are unaccountable.
Executive Order 13,233 also sets a dangerous precedent for all levels of executive. What is to stop a mayor from making such an executive order?
As a government ethics professional, I feel obligated to express my opposition to your position on presidential records.
You blocked a bill to repeal the Executive Order: S. 886, the Presidential Records Act Amendments of 2007 (the same bill as HR 1255), and replace it with an amendment that would require a former president to go to the Federal District Court in Washington, D.C., pursuant to U.S.C. Section 2204(e).
By doing so, you created a dangerous precedent, which places the personal interest of government officeholders above the interest in having the current, accountable officeholder make determinations of the public interest.
In a government setting, privileges involving disclosure (e.g., executive or attorney-client) are held not by the individual holding the office at the time of the communication, but by the incumbent holder of the office.
In 1989, President George H. W. Bush recognized this in Executive Order 12667. This Order directed that a former president could ask that information not be disclosed, but that the incumbent Attorney General and Counsel to the President make the final decision.
In 2001, President George W. Bush changed this in Executive Order 13,233. Now a former president can make the final decision. In other words, now the privilege is officially held by the individual, not the office.
While in office, an official has the right to wield the power of the office, and he or she also has the obligations that go with the office, and both involve the public interest. Once out of office, the former officeholder still has some obligations (such as confidentiality), but no powers. For former officials to retain powers of their office (other than honorifics) would allow them to determine the public interest with respect to their actions, rather than their successors. This creates a clear conflict, and it is also anti-democratic because former officeholders are unaccountable.
Executive Order 13,233 also sets a dangerous precedent for all levels of executive. What is to stop a mayor from making such an executive order?
For My Senators
As a government ethics professional, I want to express my opinion on presidential records.
In a government setting, privileges involving disclosure (e.g., executive or attorney-client) are held not by the individual holding the office at the time of the communication, but by the incumbent holder of the office.
In 1989, President George H. W. Bush recognized this in Executive Order 12667. This Order directed that a former president could ask that information not be disclosed, but that the incumbent Attorney General and Counsel to the President make the final decision.
In 2001, President George W. Bush changed this in Executive Order 13,233. Now a former president can make the final decision. In other words, now the privilege is officially held by the individual, not the office.
While in office, an official has the right to wield the power of the office, and he or she also has the obligations that go with the office, and both involve the public interest.
Once out of office, the former officeholder still has some obligations (such as confidentiality), but no powers. For former officials to retain powers of their office (other than honorifics) would allow them to determine the public interest with respect to their actions, rather than their successors. This creates a clear conflict, and it is also anti-democratic because former officeholders are unaccountable.
Executive Order 13,233 also sets a dangerous precedent for all levels of executive. What is to stop a mayor from making such an executive order?
A bill to repeal the Executive Order: S. 886, the Presidential Records Act Amendments of 2007 (the same bill as HR 1255), and replace it with an amendment that would require a former president to go to the Federal District Court in Washington, D.C., pursuant to U.S.C. Section 2204(e), has been blocked twice by Republican Senators, Bunning and Sessions.
By doing this, they have allowed the creation of a dangerous precedent, which places the personal interest of government officeholders above the interest in having the current, accountable officeholder make determinations of the public interest.
Please try to get the bill brought to the floor again, and focus not just on transparency issues, but also on this dangerous precedent of allowing an unaccountable former officeholder to retain powers over public information.
As a government ethics professional, I want to express my opinion on presidential records.
In a government setting, privileges involving disclosure (e.g., executive or attorney-client) are held not by the individual holding the office at the time of the communication, but by the incumbent holder of the office.
In 1989, President George H. W. Bush recognized this in Executive Order 12667. This Order directed that a former president could ask that information not be disclosed, but that the incumbent Attorney General and Counsel to the President make the final decision.
In 2001, President George W. Bush changed this in Executive Order 13,233. Now a former president can make the final decision. In other words, now the privilege is officially held by the individual, not the office.
While in office, an official has the right to wield the power of the office, and he or she also has the obligations that go with the office, and both involve the public interest.
Once out of office, the former officeholder still has some obligations (such as confidentiality), but no powers. For former officials to retain powers of their office (other than honorifics) would allow them to determine the public interest with respect to their actions, rather than their successors. This creates a clear conflict, and it is also anti-democratic because former officeholders are unaccountable.
Executive Order 13,233 also sets a dangerous precedent for all levels of executive. What is to stop a mayor from making such an executive order?
A bill to repeal the Executive Order: S. 886, the Presidential Records Act Amendments of 2007 (the same bill as HR 1255), and replace it with an amendment that would require a former president to go to the Federal District Court in Washington, D.C., pursuant to U.S.C. Section 2204(e), has been blocked twice by Republican Senators, Bunning and Sessions.
By doing this, they have allowed the creation of a dangerous precedent, which places the personal interest of government officeholders above the interest in having the current, accountable officeholder make determinations of the public interest.
Please try to get the bill brought to the floor again, and focus not just on transparency issues, but also on this dangerous precedent of allowing an unaccountable former officeholder to retain powers over public information.
Robert Wechsler
Director of Research-Retired, City Ethics
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