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JGR/Presidential Records (5 of 5)
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Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Presidential Records
(5 of 5)
Box: 39
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
1/16/84
THE WHITE HOUSE
WASHINGTON
TO: J6R
FROM: Richard A. Hauser
Deputy Counsel to the President
FYI:
COMMENT:
ACTION:
plr note requirement
to publish regs. 82206
MEMORANDUM
DATE:
May 19, 1981
TO:
Fred Fielding, Counsel to the President
FROM:
R. Stan Mortenson
RE:
Presidential Records Act of 1978
The following are problems I see lurking for the Reagan
Administration under the Presidential Records Act.
1. The Act provides that all presidential records
within the White House office which "relate to or have a direct
effect upon the carrying out of the official or ceremonial duties
of the President" are encompassed by the regulatory provisions of
the Act. The House Committee Report, in explaining the intent of
this language, conveys the impression that the Act will "not
impinge on the President's First Amendment right to free speech
or political association" because the Act will not cover those
materials which have [only] a tangential effect upon [the
President's] or his staff's official or ceremonial
responsibilities, but consist of purely personal political
communications." Despite this language, the Committee report in
a subsequent section states that "almost all of the President's
political activities relate to or have a direct effect on his
official duties and, as such, records reflecting these activities
are included within the scope of what constitutes a "presidential
record." (Id. 12.) Later in the report, in denigrating the
burden imposed by the Act's requirement that a President
segregate his presidential materials from his private materials,
the report indicates that the amount of material which will have
to be segregated into this "personal" category is "miniscule."
(Id.)
In the Senate's compromise version, language was added
to insure that political documents strictly relating to the
President's efforts to regain his own reelection, or the election
of a particular individual, would be considered as purely
personal. However, the ultimate legislative interpretation of
what constitutes political activities having a "relation to or
direct effect upon" the President's official or ceremonial duties
is basically equivalent to the criteria the Archivist are
applying to the Nixon presidential materials. The examples
incorporated in the Nixon archivists' manual as to what
activities have a direct effect or relationship to official
duties -- which serve as a guide to the reviewing archivists --
-2-
provide that a memorandum concerning the President's activities
as the leader of his party are to be considered private materials
unless it incorporates a reference to his official or ceremonial
duties as President. The existence of such a pristinely
"political" memorandum is not likely. The Reagan Administration
should be alerted that the Act provides virtually no protection
for political memoranda generated or received by members of the
White House staff. Neither the Act's definition -- nor the
examples incorporated in the Nixon archivists' manual which will
be the same guidelines used under the Act -- draws an adequate
line between what constitutes a President's official materials
and his political documents.
2. The Act ($2204) provides that with respect to six
specifically defined categories of materials, a President can
elect to restrict access to those materials for a period of up to
twelve years following his departure from office. Although the
categories themselves are fairly all encompassing, there are
several pitfalls with respect to this provision.
(a) The President must make the designated
restrictions prior to leaving office. He is not
permitted to delegate that responsibility to anyone.
Consequently, if a President were to become
incapacitated while in office but prior to imposing his
chosen restrictions, he will have forever lost the
ability to exercise his right under the Act. Those
restrictions can be altered at a later point if he SO
chooses. Indeed, they can even be altered by an
appointed designate. But the initial imposition of the
restrictions must be made by the incumbent before
leaving office.
(b) The period for applying the twelve-year
restriction on public access commences at the time the
President leaves office. This twelve year limitation
would not necessarily impact adversely on President
Reagan since twelve years from his earliest departure
from office (absent death) will be January 1997.
However, the principal inadequacy of the twelve year
restriction is that it leaves unprotected those members
of the Administration who are likely to seek future
public office. Even President Carter, upon leaving
office, expressed doubt that the twelve year limitation
1/ The Act does not permit this election to be made by a former
President.
-3-
is adequate, particularly for an outgoing President in
his early fifties who will remain active well beyond
the otherwise applicable twelve year period.
The fact that President Reagan will not be
personally impacted by the twelve year restriction is a
forceful reason why he can take the aggressive position
of seeking to lengthen this restriction period. The
President can point to the adverse impact the twelve
year limitation has upon his receiving thorough and
candid written advice from his staff. At the same
time, he can indicate that his push for an extension of
the twelve year limitation has no selfish motivation
since it will have little if any effect on his personal
papers.
(c) Prior to the Nixon Administration, when
Presidents were able to impose restrictions on access
to their presidential materials without respect to any
limitations, the Archives would consult with the former
President or his designees in determining whether any
particular document or categories of documents fell
within the intended scope of the limitations specified
in the President's deed of gift. Under this Act,
although the President can designate a restriction of
twelve years upon the six legislatively specified
categories, he has no control over the archivists'
determination as to which documents fall within those
specifications. The President's only avenue for a
challenge is through administrative and judicial appeal
on a document-by-document basis.
3. The Act provides that material restricted by a
former President is to remain available, nevertheless, to the
incumbent President and Congress -- or any committee or
subcommittee -- for ongoing government business. ($2205.) Such
access is subject only to the "assertion of any rights,
privileges or defenses" anyone may have. This provision places
President Reagan and all future Presidents in the position of
having to contend in court that an incumbent President or
committee of Congress is attempting to gain access to his
presidential materials for political reasons, not for legitimate
government concerns. This is an unrealistic burden.
4. The Act provides that the President and his staff
are required to adequately document his official and ceremonial
functions. ($2203 (a) ) While the "adequately document" language
seems to give the President leeway in deciding what paper record
-4-
to create on various matters, have this provision may well
provide a basis on which reporters or historians can sue an
Administration, seeking a declaratory judgment which forces that
Administration to create records of the President's conduct of
the office.
5. The Act provides for an elaborate procedural
mechanism which must be employed before the White House can
dispose of any documents that are created or received during the
President's term, including the requirement that the President
ask the Archivist whether he can dispose of some material. The
Committee Report on this provision alludes to the possibility of
a private cause of action in which the litigant may attempt to
enjoin the disposal of documents and is entitled to review all of
the documents which are subject to the proposed disposal prior to
the implementation of the Archivist's disposal order. (Committee
Report, P. 13.)
6. With regard to materials that are subject to a
twelve year restriction imposed by the President, public access
will be permitted to any of such restricted materials in the
event the President or his agent makes disclosure of the
materials while the materials are under restriction. While it
may appear rational to permit the Archives to give public access
to any document a President or his associates have previously
disclosed, this particular provision of the Act is subject to a
judicial interpretation under which "disclosure" could stem
simply from the fact that the President or his agent discussed an
event or item referred to in a document. For example, if within
three or four years after leaving office President Reagan were to
write his memoirs and discuss the decision process underlying
some event, historians could demand immediate access to all
documents (even those otherwise carrying a twelve year
restriction) on the basis that "disclosure" had been made by the
President. There is language in the floor discussion in the
House which supposedly ties this "disclosure" criteria to some
actual revelation of the document or "a description of the
document." Cong. Rec. October 10, 1978, 11927. However, one may
take little comfort in this colloquy. The stated purpose of this
provision is to permit "unbiased historians" to evaluate the
written record if a President or his agent presents his own
version. This purpose is served by access to the raw data,
whether or not the President's revelations are tied to specific
documents.
7. The Act specifically provides that all of the rules
concerning public access discussed above are applicable to the
-5- - -
records of the Vice President. Although the materials of the
Vice President will presumably not be as all-encompassing as
those of the President, this provision brings into focus even
more dramatically the inadequacies of the twelve year
limitation. Presumably the Vice President is someone with a
great deal of interest in a longer period of public access
restriction.
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
October 19, 1984
STATEMENT BY THE PRESIDENT
I am pleased to sign today S. 905, the "National Archives
and Records Administration Act of 1984."
This legislation establishes the National Archives and
Records Administration -- currently part of the General
Services Administration ---- as an independent agency within the
Executive Branch. The agency will be headed by the Archivist
of the United States, who will be appointed by the President,
with the advice and consent of the Senate.
The principal purpose of S. 905 is to extend independence
to an agency that many believe has suffered as a result of its
placement within the General Services Administration in 1949.
I concur in this assessment, and my Administration has sup-
ported independence for the Archives.
The public papers and other materials that the Archives
safeguards are precious and irreplaceable national treasures,
and the agency that looks after the historical records of the
Federal government should be accorded a status that is commen-
surate with its important responsibilities. Independence for
the Archives this year, in which we are commemorating the
fiftieth anniversary of its creation, is a particularly
fitting step, both practical and symbolic, in achieving that
important goal.
# # # # # #
DRAFT
February 4, 1985
Dear Fred:
As I have discussed with members of your staff, I will be
taking to the Department of the Treasury extra copies of
certain notes and other documents created during my tenure
as Chief of Staff. These copies were produced only for
convenience of reference, and have been clearly identified
as extra copies. They will be segregated in separate files
at the Department of the Treasury and will in no way become
part of the Treasury filing or records system. Only myself
and my immediate staff, acting on my behalf, will have
access to these files. I will obtain clearance from the
White House Counsel's office or the appropriate officials of
a future Reagan Presidential Library before granting others
access to the files or permitting them to become public in
any manner.
Sincerely,
James A. Baker, III
DRAFT
THE WHITE HOUSE
WASHINGTOn
4-15
TO:
RAH
FROM: John G. Roberts, Jr.
Associate Counsel JJR
to the President
FYI
COMMENT
ACTION
HERE'S THE KIMMITT
MEMO; ITS MORE GENERAL
AND SIMPLY REQUESTS BROAD
GUIDANCE. I THINK WE'D
BETTER WAIT UNTIL THE R.R,
FOUNDATION ISSUES ARE
RESOLVED BEFORE DOING AS
BOB SUGGESTS.
ID # 270708 CU
WHITE HOUSE
FEOIO
CORRESPONDENCE TRACKING WORKSHEET
o . OUTGOING
H . INTERNAL
I INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Robert M. Kemmitt
MI Mail Report
User Codes: (A)
(B)
(C)
Subject:
Preudential Records act
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
@0 Holland
ORIGINATOR DDI 85103125
/
/
Referral Note:
WATI8
A 85,03,25
/
/
Referral Note:
/
/
/
/
Referral Note:
/
/
/
/
Referral Note:
/
/
/
/
-
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A * Appropriate Action
I Info Copy Only/No Action Necessary
A Answered
C Completed
C . Comment/Recommendation
R - Direct Reply w/Copy
B - Non-Special Referral
S Suspended
D Draft Response
S For Signature
F - Furnish Fact Sheet
X . Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments: nsc 8500992
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
0992
MEMORANDUM
THE WHITE HOUSE
PJR PJR- action 1Pls see are
WASHINGTON
February 6, 1985
ACTION
MEMORANDUM FOR FRED F. FIELDING
FROM:
ROBERT M. KIMMITT Bo
Bob
12
SUBJECT:
Presidential Records Act
On an increasing basis, we are being asked questions about
the Presidential Records Act. As agencies begin to box up
first-term files for transport to their respective depositories,
I think it would be prudent for us to convey to those agencies
our guidance on Presidential records, or copies thereof, in
those files. Would it be possible to set up a meeting on this
subject, with appropriate White House and selected agency
representation, e.g., Justice and Archives? I think it
would pay dividends downstream.
Thank you.
PRESIDENTIAL RECORDS ACT
This is the first Administration to be subject to the
Presidential Records Act of 1978, 44 U.S.C. § 2201 et seq.
Our review of the Act has disclosed numerous problems, some
rising to a constitutional level. For example, the Act
specifies that access to Presidential records may be
restricted for no more than 12 years after the conclusion of
the Administration, but the constitutionally-based doctrine
of executive privilege could justify restricting access for
a longer period. We are beginning to develop suggested
amendments to the Act, and are also beginning to develop an
approach to our responsibilities under the Act and the
Constitution in the event the problems with the Act are not
cured.
Many of the issues surrounding the Presidential Records Act
could well be decided in the context of litigation by former
President Nixon and members of the Nixon White House staff
against the Archives, which has been attempting to open
Nixon White House files to the public under the Nixon
Records Act. That litigation has been pending in one form
or another for over a decade, and will enter a new round
shortly when the Archivist re-issues regulations recently
held invalid because the Nixon Records Act contained an
unconstitutional legislative veto. The Counsel's office
closely monitors this dispute between Nixon and the
Archivist to protect against adverse precedent concerning
the treatment to be accorded the Reagan White House files.
ID # 397685 CU
WHITE HOUSE
FE010
CORRESPONDENCE TRACKING WORKSHEET
o OUTGOING
H INTERNAL
I . INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Tred 7, Julding
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Threat to Veliberation Privilege Posed by
the Presidential Records act
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CU Halland
ORIGINATOR 86/03/28
/
/
CUAT 24
Referral Note:
C 86,03,28
/ /
Referral Note:
/
/
/
/
-
Referral Note:
/
/
/
/
I
Referral Note:
/
/
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I - Info Copy Only/No Action Necessary
A Answered
C Completed
C Comment/Recommendation
R - Direct Reply w/Copy
B Non-Special Referral
S Suspended
D Draft Response
S For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
Dean McGath
Dean-
-
I'd like you to become
profecient in the Presidential
Plcords Oct (ask Bob Knuger
for assistance with research)
Fred seems to assume that
a constitutional challenge is
not" "mpl" until 12 years
have passed, but if in fact
candid advice is chilled
today, the repeness
issue might be overcome.
Please look at this
question with Bob.
I agul with Fred's
suggestion for a task force,
and would like your
recomendations on
membership.
Pitter
PRESER COPY
THE WHITE HOUSE
WASHINGTON
3/28/86
TO:
DEAN MCGRATH
FROM:
PETER WALLISON
I'd like you to become proficient in
the Presidential Records Act (ask Bob
Kruger for assistance with research)
.
Fred seems to assume that a constitutional
challenge is not "ripe" until 12 years
have passed, but if in fact candid
advice is chilled today, the ripeness
issue might be overcome. Please
look at this question with Bob.
I agree with Fred's suggestion for a task
force, and would like your recommendations
on membership.
PRESERVATION COPY
THE WHITE HOUSE
WASHINGTON
-
3/27/86
TO: Peter Wallism
FROM: DONALD T. REGAN
CHIEF OF STAFF
Welcome aboard 11
Re the attached-
K.I.M. -
and let's discuss once
7 on 've found the key to
you know where -
Won
PRESERVATION COPY
THE WHITE HOUSE
WASHINGTON
March 25, 1986
MEMORANDUM FOR DONALD T. REGAN
CHIEF OF STAFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Threat to Deliberative Privilege Posed by the
Presidential Records Act
This is the first Administration to be subject to the
Presidential Records Act of 1978, 44 U.S.C. §§ 2201-2207. That
Act provides, among other things, that internal White House
memoranda and notes are the property of the United States, and
pass under the control of the Archivist of the United States upon
the conclusion of President Reagan's second term. Pursuant to 44
U.S.C. $ 2204, a President, prior to leaving office, may specify
durations, not to exceed 12 years, for which access to certain
types of Presidential records shall be restricted. One type of
document for which access may be restricted, but for no more than
12 years, is "confidential communications requesting or
submitting advice, between the President and his advisers, or
between such advisers." 44 U.S.C. § 2204 (a) (5). I took steps to
have President Reagan and Vice President Bush exercise this
option to the fullest extent possible by law.
After expiration of the specified period of restricted access
(the year 2001 at the latest), all Presidential records -- even
the most sensitive, confidential communications -- will be
administered in accord with the Freedom of Information Act
(FOIA). Pursuant to 44 U.S..C. § 2205 (c) (1), however, exemption
(b) (5) of FOIA -- the provision most frequently used to block
disclosure of confidential documents -- is explicitly not
available to withhold Presidential records from disclosure. In
other words, the most non-national security sensitive White House
document from this Administration may be fully open to the public
by the year 2001. (I should also note that Vice Presidential
records are subject to the foregoing in the same manner as
Presidential records, 44 U.S.C. $2207).
Twelve years is a brief time in history and public life. Many of
the personalities that may be candidly discussed in White House
memoranda, and certainly many of the authors of the memoranda,
will still be active twelve years from now. My concern is not so
much the embarrassment that might result in the year 2001 when
-2-
comments made under different circumstances become public, but
the danger that the prospect of disclosure after such a brief
period might inhibit the free flow of candid advice and
recommendations within the White House. That flow is protected
by the constitutionally based doctrine of executive privilege,
and a strong argument can be mounted that the statutory 12-year
ceiling on restricting access is unconstitutional, at least as
applied to the most sensitive internal White House
communications.
This argument was in fact raised by the Carter Department of
Justice when the Presidential Records Act was being considered by
Congress. A representative of the Department's Office of Legal
Counsel testified as follows:
The Supreme Court has clearly recognized that a
constitutional privilege rooted in the doctrine of
separation of powers extends to confidential communications
between the President and his advisers and among those
advisers. Although the justifications supporting the
privilege may become less critical with the passage of time,
there is no indication that it can be said to dissipate
altogether after the passage of any particular period of
years. An effective declaration that the privilege can be
asserted for 10, 13, or 15 years but no longer must
consequently be seen as of doubtful constitutionality.
Statement of Deputy Assistant Attorney General Larry A.
Hammond, Hearing Before the Senate Committee on Governmental
Affairs on S. 3494, 95th Congress, 2d Session 14 (1978).
The Act contains a statement that "Nothing in this Act shall be
construed to confirm, limit, or expand any constitutionally-based
privilege which may be available to an incumbent or former
President, 44 U.S.C. $ 2205 (c) (2), but that statement merely
frames the dispute.
As noted, this is the first Administration subject to the Act.
Prior Presidents were considered to have control over the records
of their Administration, and when these records were donated to
the Archives the former Presidents typically reserved to
themselves or aides chosen by them the right to restrict access
to sensitive communications, for periods considerably longer than
the 12-year period permitted under the Act. President Nixon's
case was an exception, and the authority of the Government to
seize the Nixon papers and open them to public access is still
not totally resolved. In any event, the validity of the present
Act is very much in doubt.
The difficulty is that in all likelihood no court challenge to
the 12-year ceiling on restricting access can be mounted until
the case is legally "ripe," which will not be until the year
2001, when the Archivist actually proposes to release Reagan
Administration documents and someone with legal standing sues to
-3-
block disclosure. At that point any executive privilege claim
would hinge to a large extent on the views of the incumbent
President, who may or may not be in a position to place the
long-term interests of the institution above short-term political
interests that may be served by disclosure of Reagan
Administration documents. In any event, the existence of the
statute, however vulnerable to later challenge, still serves to
chill the full and robust exchange of views the President
requires to discharge the office; it also may lead to personal
attempts by staff members to "write history" instead of giving
candid advice where there is a general awareness of the Act.
For these reasons, steps should be taken before the end of the
Administration to cure the infirmities of the Act. The most
obvious possibility is legislative amendment. Other
possibilities include Archives regulations explicitly recognizing
the validity of possible executive privilege claims to block
disclosure after the expiration of the statutory 12-year period.
I urge that a task force be formed to work on this issue. From
informal discussions, I think you will find bipartisan support
among members of previous White House Staffs.
CC: William L. Ball, III