Cornell Law Review 88 (March 2003) 651-732
Jonathan Turley: PRESIDENTIAL PAPERS AND POPULAR GOVERNMENT: THE CONVERGENCE OF CONSTITUTIONAL AND PROPERTY THEORY IN CLAIMS OF OWNERSHIP AND CONTROL OF
PRESIDENTIAL RECORDS
SUMMARY:
… ” Madison’s warning is particularly apt in the context of presidential
records. … The Archivist also performs a sentinel function in protecting
executive privilege. … In order to pass constitutional muster, the Bush
Administration must establish that (1) executive privilege may be exercised
indefinitely by a former president; (2) the right to assert executive privilege
may be transferred to a third partly by a former president; (3) the right to
assert executive privilege may be passed to an heir or designated party upon
death or disability; and (4) third parties may designate an individual or group
to assert executive privilege when a former president dies or suffers a
disability without executing a prior designation. … It is difficult to trace
the origins of the theory that a former president can transfer executive
privilege to a third party. … If the will had attached the transfer of
executive privilege authority to the transfer of presidential papers, six people
would have claim to its assertion. … The transfer of the authority to assert
executive privilege by will or designation carries a faint notion of the
original proprietary theory of presidential papers. … However, this view
stemmed less from an executive privilege viewpoint than from a sense of personal
ownership in the Hegelian sense. …
[…]
Conclusion
When one considers the copious amounts of records and documents produced each
day in the federal government, it is hard to imagine that at the beginning of
the Republic, the country had a reputation for the reckless disregard of records
and documentation. Alexis de Tocqueville noted in his masterpiece, Democracy in
America, that:
[In America, no one] bothers about what was done before his time. No method
is adopted; no archives are formed; no documents are brought together, even when
it would be easy to do so. When by chance someone has them, he is casual about
preserving them. Among my papers I have original documents given to me by public
officials to answer some of my questions. American society seems to live from
day to day, like an army on active service. n459
Today, the very suggestion that public officials give original documents in
response to inquiries is enough to send the most stalwart archivist into a fetal
position. n460 Perhaps the most valuable of such documents are presidential
papers. Although agencies generate important material in the execution of
policy, it is from presidential papers [*731] that historians can divine the
genesis of policy. n461 As the interest in these documents has increased, their
value as property has increased in proportion to that interest. Both historians
and heirs value these documents for what they reveal about the development of
policy and government actions. For some heirs, these documents serve as a
valuable commodity to be sold to the highest bidder. For others, they offer a
way of controlling or suppressing historical reviews of an administration. n462
Still others view the value of ownership as the right to destroy the papers to
preserve a legacy. n463 Many heirs may have identified with the explanation of
President Harding’s widow’s decision to destroy his papers: “‘We must be loyal
to Wurr’n and preserve his memory.'” n464
The recent controversy over the Bush order reveals not only the different
uses of this property, but the absence of a cohesive theory of ownership. In the
shift toward a constitutional paradigm, conflicting utilitarian rationales for
control have muddled the debate over presidential papers. In fairness to the
Bush Administration, the conceptual basis for the exercise of either private or
public ownership of presidential papers was mired in contradiction and ambiguity
long before [*732] its arrival. From the earliest dispute over Washington’s
papers, there was a failure to address the basic claims of ownership of either
the public or private collectors. This Article attempts to offer some foundation
for that debate. Although certain provisions of the Bush order are facially
unconstitutional, they highlight this confusion on a conceptual level that has
reigned in this area for over two hundred years. They also offer an intriguing
microcosm to explore basic notions of ownership and how those notions changed
from the eighteenth to the twenty-first century. With the maturation of the
United States, Americans have come to cherish their historical legacy to an
extent that might surprise someone like de Tocqueville. Americans now understand
that an archive is not some dead zone of boxed documents, but is part of a
nation’s active search for self-meaning. These documents are part of an American
legacy that defines not only a prior administration, but also a people.
Presidential records are the most vital form of jus publicum because they serve
as the very gateway for the exploration of public policy – the only true
manifest destiny of a free people.