I noted the other day that–after years of trying to limit the Bush Administration’s responsibilities under the Presidential Records Act–the Bush Administration had found religion and was insisting that it had to box up all the documents proving they acted improperly when they fired nine US Attorneys. Basically, the first thing they did after the new year was to send Judge Bates a status report describing their solemn duty to throw everything in boxes, hopefully to make it unavailable for five years (to be fair, DOJ–and not Dick Cheney–sent the status report, so this is only partly hypocritical).
Although the PRA generally restricts access to presidential records for a period of five years (or until the Archivist completes processing and organizing the records), and further restricts disclosure of certain categories of information for a period of up to 12 years when presidential records are requested under the Freedom of Information Act, see 44 U.S.C. § 2204, the PRA contains special-access provisions that are relevant here. First, “[n]otwithstanding any restrictions on access imposed pursuant to section 2204, . . . subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available . . . pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding[.]” 44 U.S.C. § 2205(2)(A). Second, the same exceptions to restricted access apply to requests for access to presidential records of a former President by “an incumbent President if such records contain information that is needed for the conduct of current business of his office and that is not otherwise available.” Id. § 2205(2)(B).[my emphasis]
As I noted earlier this week, HJC believed–and Bates concurred–that putting these documents in boxes and requiring legalese to open them again might cause a bit of delay (not that that was the idea, I’m sure).
Sure enough, Bates was carried through on his concerns, and got both sides to stipulate that these documents will remain at the White House until the suit is done (and/or HJC gets their grubby paws on it).
Defendants will create a copy set of all materials responsive to the subpoenas, including both paper and electronic documents, in hard copy format to be stored, segregated, and maintained at the White House for use in this litigation until this litigation is finally resolved.
The White House shall make provisions to ensure the Archivist maintains the original set of materials responsive to the subpoenas intact at a facility in Washington, D.C. until this litigation is finally resolved, under appropriate security and in a manner that will enable ready access to the materials, if necessary.
That’s all well and good and I’m grateful that Bates–who spent a number of years shielding BushCo–remains on the side of transparency and oversight here.
But it’s got me thinking. What else is BushCo busily boxing up, preparing to bury it for five or twelve years, unless we find a way to identify it and withhold it?