As historians at SMU we have no collective position about bringing the Bush Presidential Library, Museum and Institute to this campus. Some of us favor it; others do not. We do believe, however, that there is one related issue on which we can speak. This is the matter of Presidential Order 13233, which gives current and former presidents the power to withhold records in presidential libraries virtually at their discretion.
Like many historians elsewhere, we are worried about several provisions of the order. In our opinion, these go against Congress’s purpose when it passed the Presidential Libraries Act.
First, the order grants power to incumbent presidents to overrule determinations by former presidents that records in “their” presidential libraries may be released. We are very concerned that an incumbent president might exert this power to block the release of a former administration’s material merely because it would be politically detrimental. That could happen in either direction, a Democratic incumbent blocking the access to the records of a Republican predecessor, or a Republican blocking access to those of a Democrat.
Second, the order empowers former presidents to designate representatives who can act for them, including in cases of the former president’s death or disability. If in such a case there is no designated representative, the former president’s family may appoint one. These representatives will act with the full power of the former president, “including with respect to . . . constitutionally based privileges.”
In our opinion, these provisions create real possibilities for stifling legitimate and necessary public discussion. We accept that a former president may enjoy some continuation of the executive privilege that obtained during that person’s time in office. But “designated representatives” exercising legal privileges on matters of public interest without public accountability are unknown to the Constitution. Moreover, until Executive Order 13233, membership in an American presidential family has never led to extraordinary political rights, beyond the rights we all share as citizens.
Our two primary professional organizations, the American Historical Association and the Organization of American Historians, are on record as opposing Executive Order 13233. They have sought in court to have the order overturned. In their opinion, which they seek to have tested in the courts, the order contravenes the spirit and intent of the Presidential Records Act.
As the act makes plain, presidential papers from Reagan onward are the property of the United States, not of any individual or family. The clear purpose of the Presidential Records Act is to permit and encourage the fullest possible discussion of presidents and their policies at an early point following a presidency’s end. Under the Act, release of materials is intended to begin 12 years after a president leaves office. The act already establishes conditions and procedures for withholding certain records. Mere choice by a former or incumbent president, by a “designated representative,” or by a former president’s family should not be enough to do so, beyond the provisions of the act.
We believe that the greatest benefit to SMU of having a presidential library will be to make the university a center of serious research on matters of the highest public import. We recognize that the records of this Administration will be of immense historical and civic interest. We believe that like its counterparts, the proposed George W. Bush Presidential Library should be a place of serious study and discussion, to the fullest extent and at the earliest time possible as mandated by the statute that makes the library possible.
We are making this statement in regard to the Presidential Order, not in regard to the proposed Bush Library, Museum, and Institute. We do not expect that our opposition to the order could lead to its being rescinded. That will require a decision by the Supreme Court, or an act of Congress, or an executive order by a subsequent president. But we do believe that all material in all presidential libraries, including the Bush Library, should be open to full access in accord with the letter and the spirit of the Presidential Records Act.
Signed by SMU History Department:
Melissa Barden Dowling
R. Hal Williams
Published in the SMU Daily Campus, February 8, 2007