Those Evil Dems Are Preventing Bush from Archiving Properly

facade.gifI 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?

  1. MadDog says:

    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?

    I wonder if the OLC is one of those who has enthusiastically boxed up all those non-public opinions.

    I remember reading a press report where Marty Lederman, as a part of the Obama Transition Team, was refused access to a number of the non-public OLC opinions.

  2. JohnLopresti says:

    This is a complicated question posed in the post. On the historic side likely are still secret waivers granted Sara Taylor in exchange for her slight admissions of politicizing DoJ; put anything with her name on it in the box; quarantine those emails, many of which did not surface to the public, but many textmessagelike did. Same for KRove, but guarantee extra protection for his work in legitimate political organizing capacity; make sure RIM itself is not subpoenaed. Coordinate with Genachowski the experienced communications law maven to assure the way is open to modernize fcc. NB: Already this brooks the chasm beyond transition. Fortunately, ample constitutional law expertise is coming onboard in WHC; protect them from HJC excesses in some distant future time. Develop ways to ameliorate some of the work Fielding and his cohorts brought to bear to prevent advisors’ testimony in the US attorney purge which so intrigued HJC. Any document with Fielding’s name on it goes in the box, plus those of his advisors in capacity fairly adjudicable as germane and likely subpoenable. Plus, tuck in the fileboxes whatever HarrietM produced in the periAlito nomination timeframe, simply to protect her associations back in TX after her career in the White House. A lot of material on evanesced tapes may go into the escrowed boxes; preferably try to make it millions of comms with selected gaps to complicate vetting. Anything with W’s name on it, send to SMU for the 12-year process.

    Maybe OT, there might be some bulletins at the GU natseclaw site; one of the evidently current mentions there is to a Mukasey memo which MDog appears to be referencing, which I think is in the public sphere a while now, since the autumn.

  3. LabDancer says:

    Dumping on NARA – whatever hasn’t already been crumpled, corrupted, zapped, burned, buried, pilfered, “lost”, blacked out, whited out, cut out, burned, ‘preserved’ on dissolving paper, tossed up in the air, un-indexed, “mis-indexed”, mal-indexed, never indexed, mislaid in someone’s briefcase, eaten by someone’s anaconda, used as toilet paper in the DoJ Voting Rights section, never returned from the cleaners, outsourced for analysis, left on a train, bunched & scrunched every which way but loose into substandard cardboard containers & left to mature in the elements – does not appear likely to end the handling problems with these records. Secret Steve reported on the NARA mess as recently as January 5.

    Remember when the DoD put all the technical papers seized in Iraq up on the web for a couple of days? That’s not available under the Presidential Records Act — yet it appears that’s pretty much what NARA would have to do:

  4. freepatriot says:

    so let george and dick throw their little hissy fit

    just make sure we explain the law to the guy who runs the archives

    come January 20th, there is a new sheriff in town

    the archivist guy has to decide if he wants to take a felony conviction un order to protect george bush

    let george “explain: his problem, then conduct an interview with the archivist guy and a LAWYER

    once America hears george’s bullshit, and then has the LAW explained to them by the guy who would actually be convicted of george’s crimes, we’ll dispose of george’s objections REAL FUCKING QUICK

    once Obama is innagurated, these wingnuts are gonna have to chose between AMERICA and george bush

    support the fucking laws or get your slimy ass SPIT ON EVERY WHERE YOU GO

    anybodyfeeling unpatriotic out there ???


    gonna be awful easy to wipe the repuglitard party off the map in 2010 if these stupid fuckers fail to remember how often the word “TRAITOR” crossed their lips in 2008

    you questioned my patriotism pal, so why don’t you support AMERICA

  5. plunger says:

    If Obama fails to appoint multiple Special Prosecutors to run down the truth on multiple fronts, he will lose the American People.

    9/11 and the wars that followed ARE NOT “old news.”

    They are THE NEWS. All of it ties directly to the global depression and Middle East genocide with which we are presently faced. It’s ALL connected, and it all began as a grand conspiracy PRIOR to the start of the Bush Administration.

    Obama knows this. He also knows their is no “Osama Bin Laden.” He’s clearly choosing to operate against what many of us perceive to be America’s best interest…THE TRUTH.

    So whose interest is he actually beholden to if not ours?

    Look no further than the CFR and those behind it.

  6. plunger says:

    M O S S A D
    P R O P A G A N D A


    A new audio message purportedly from the al-Qaida leader, Osama bin Laden, has called for all Muslims to launch a holy war to stop the Israeli offensive in Gaza, according to Islamist websites.

    The recording, which the websites said was by Bin Laden, also condemned Arab governments for preventing their people from acting to “liberate Palestine”.…..-gaza-tape

    100% bullshit – guaranteed.

    The man does not exist.

  7. oldoilfieldhand says:

    Only pre-employment question to archivist:
    What exactly is it that makes you want to serve George Bush?

  8. Citizen92 says:

    The records I’m still most interested in are the RNC domain e-mails used by the White House throughout the Administration.

    And those are the records that are still in limbo.

    There has been repeated lip service that the WH is “working with” and “negotiating with” the RNC to recover those records. But that recovery is taking a gosh darned long time.

    And I think that Waxman’s investigations and letters have solidly established that the RNC has custody of those emails.

    So my question is, what is the status of those records. By definition of the PRA, many of those records are “Presidential Communications” created by White House aides on government time in furtherance of government activity. So those are covered records.

    Are those records going to be silently shuffled into the 12 year lockbox? Or will Congress be able to seize them after January 20?

  9. bmaz says:

    Just came to me:

    Judge Kennedy of the U.S. District Court for the District of Columbia just issued an order requiring:

    The Executive Office of the President (“EOP”) shall: (1) search the workstations, and any
    .PST files located therein, of any individuals who were employed between March 2003 and
    October 2005, and to collect and preserve all e-mails sent or received between March 2003 and
    October 2005 and (2) issue a preservation notice to its employees directing them to surrender
    any media in their possession–irrespective of the intent with which it was created–that may
    contain e-mails sent or received between March 2003 and October 2005, and for EOP to collect
    and preserve all such media.

    We will be sending our further details later this morning.

    Meredith Fuchs, General Counsel
    National Security Archive

  10. bmaz says:

    And here is the followup:

    Here is our press release:

    Court Grants National Security Archive Motion to Search White House Computers and Preserve E-mails

    One the eve of transition, court orders outgoing White House staff to surrender electronic media containing e-mails

    For More Information
    Contact: Meredith Fuchs/Tom Blanton – 202/994-7000
    John B. Williams/Sheila L. Shadmand [Jones Day] – 202/879-3939

    Washington, DC, January 14, 2009 – The United States District Court for the District of Columbia today granted the National Security Archive’s emergency motion for an extended preservation order to protect missing White House e-mails. With the transition from the Bush Administration to the Obama Administration taking place in six days, and all the records of the Bush White House scheduled for a physical transfer to the National Archives and Records Administration (NARA) on that same day, the Court has directed the Executive Office of the President (EOP) to search all its computer work stations and has ordered EOP employees to surrender any media in their possession that may contain e-mails from March 2003 to October 2005.

    “There is nothing like a deadline to clarify the issues,” said Archive Director Tom Blanton. “In six days the Bush Executive Office of the President will be gone and their records may disappear with them. The White House will complain about the last minute challenge, but this is a records crisis of the WH own making.”

    Counsel for the Archive, Sheila Shadmand from Jones Day made clear: “The White House has been on notice since we filed our lawsuit a year and a half ago that they would have to retrieve and preserve their e-mail. Instead of coming clean and telling the public what they have been doing to solve the crisis, they refused to say anything. At this point, it is critical to preserve evidence that can help get to the bottom of the problem and prevent it from happening again.”

    Magistrate Judge John M. Facciola has scheduled an emergency status conference today at 2 p.m. to consider additional measures that may be necessary to protect the records during the transition.

    The Archive filed its emergency motion for an extended preservation order on March 11, 2008. After considering the objections of the White House, Magistrate Judge Facciola issued two reports, on April 24 and July 29, 2008, recommending that District Judge Henry H. Kennedy issue an order requiring search, surrender and preservation of the Computer workstations and external media devices, such as CDs, DVDs, memory sticks, and external hard drives. Today’s order adopts those reports and recommendations, granting in part the Archive’s emergency motion.

    The National Security Archive filed its lawsuit on September 5, 2007 against the Executive Office of the President and NARA, seeking to preserve and restore missing White House e-mails. A virtually identical lawsuit filed subsequently by Citizens for Responsibility and Ethics in Washington (CREW) has been consolidated with the Archive’s lawsuit. A chronology of the litigation is available here

  11. sailmaker says:

    Late to the party, and IANAL but- my reading of executive order 13233 seems to me to say that they don’t even have to put Sara or Monica’s names on the boxes of emails. The burden of proof that some particular email is relevant to some person or trial seems to me to be on the plaintiff. Additionally,(perhaps I should say Addingtonally) all Bush has to say is that he thinks some evidence is not germane and they don’t have to turn over anything. See if you agree: Executive order 13233. This is also the order that covers Vice Presidential papers, binds former and incumbent Presidents, and gives the Bush in certain cases, hiding spots forever, if Bush says so. I think.

    I believe Bush 1’s papers are bundled into this, and rumor has it that Bush 2 moved his Texas State House Gubernatorial records to the National Archives.