By Jim VandeHei
Washington Post Staff Writer
Thursday, August 25, 2005
After the release of about 60,000 documents detailing the work of Supreme Court nominee John G. Roberts Jr., Democratic senators are setting their sights on what was not in the huge cache of papers: more than 2,100 memos and letters that have been withheld by government archivists working in concert with the Bush White House.
The subjects of the Reagan-era documents have been released, but their contents for now have been withheld. Those topics are, Democrats say, at a minimum intriguing: Roberts commenting on presidential pardons, the Equal Employment Opportunity Commission and aspects of what would become known as the Iran-contra scandal. One of the still-secret memos is from the young White House lawyer to then-Reagan aide Patrick J. Buchanan in March 1986. The topic: aid to Nicaraguans fighting the leftist Sandinista government.
With Senate hearings two weeks away, Democrats privately say the documents that have come to light about Roberts's White House work from 1981 through 1986 probably do not contain disclosures that would threaten his confirmation to the Supreme Court. But some Democratic senators -- working with liberal special-interest groups opposed to Roberts -- consider the other documents potentially relevant and are pressuring archivists and the White House to release them before the public hearings begin.
Despite Democrats' suspicions about why so many documents about such politically sensitive issues were withheld, officials at the National Archives said there is a benign explanation.
There are three reasons the papers were withheld under federal records laws, according to Archives officials. They include preliminary judgments by archivists that information in them would improperly invade a person's privacy (such as revealing a Social Security number), jeopardize law enforcement operations or potentially harm national security.
Under the ordinary course of business, archivists black out individual words or sentences before releasing a document. In this case, National Archives official Sharon Fawcett said, the rush to release a large volume of documents quickly did not allow enough time for surgical redactions -- so the entire page was pulled.
The White House involvement in this process is unclear. Fawcett said White House officials are allowed to offer input during the review process, but she would not discuss their involvement. Senior White House officials said administration lawyers typically examine the documents after the archivists complete the initial review, and they insisted they have not asked for any papers to be withheld that archivists did not first flag.
Now, Fawcett said, archivists are more carefully examining each page to see whether portions could be selectively blackened and the rest of the information released.
Sen. Patrick Leahy (Vt.), ranking Democrat on the Judiciary Committee, is taking these explanations at face value -- but is also insisting that officials at the Ronald Reagan Presidential Library in Simi Valley, Calif. -- which is run by the National Archives -- and the White House move quickly to make most of the documents public.
In a letter sent Monday night to R. Duke Blackwood, the library's executive director, Leahy said senators need "accurate and complete information" before they vote on Roberts.
In a reply, Blackwood said he would review and make public as much as possible of the 478 pages that were withheld from an initial batch of documents released early this month. Archives officials said they expect that the same treatment will be given to more 1,700 pages not released last week. Separately, Democrats continue to press for more details of a folder titled "affirmative action correspondence" that is missing from the library.
This is part of broader Democratic strategy to wrench loose more information about Roberts's political and legal views when he worked for Reagan and President George H.W. Bush -- first as special assistant to Attorney General William French Smith, then in the White House counsel's office and finally as principal deputy solicitor general.
Some Democrats believe this is the only way to build a case that Roberts is too conservative on issues such as abortion and civil rights to sit on the Supreme Court, according to two senior Democratic leadership aides. It also provides Senate Democratic leaders a way to pacify the liberal special-interest groups that want Roberts defeated and fear that party leaders are not aggressively challenging his nomination.
This approach is colliding with Bush's preference, long predating this Supreme Court fight, to enhance presidential power -- often by claiming privilege for sensitive documents and conversations. The Bush team, for instance, is refusing to make public Roberts's documents for his tour as deputy solicitor general in George H.W. Bush's administration, an effort to keep confidential litigation deliberations in cases involving the federal government. The White House also has the legal right to review the 2,100-plus yet-to-be-released documents and can claim executive privilege to keep them private, according to Fawcett, the assistant archivist for presidential libraries at the National Archives.
"The administration remains committed to providing all the material that is appropriate to give to the Judiciary Committee," said Steve Schmidt, a White House spokesman. "We look forward to facilitating the release of these additional documents as they move forward through the . . . process."
Many withheld documents seem to clearly fit within the privacy exemption, including a memo from November 1984 detailing Roberts's holiday plans. In other instances, archivists are keeping documents on controversial issues of the 1980s -- or portions of those documents -- secret, for reasons that are not self-explanatory.
One file withheld, regarding the Iran- contra affair, was a draft memo from Roberts to his bosses with the heading "re: establishment of NHAO" -- referring to the Nicaraguan Humanitarian Assistance Office.
The office was one of the ways the Reagan administration got around what were known as the Boland amendments, which prohibited U.S. intelligence agencies from spending money to overthrow the Sandinistas. The office was a way the administration could get funds to the contras for nonmilitary purposes, but once there the money was used for all sorts of things.
The only document authored by Roberts regarding Bob Jones University was also withheld. The Reagan administration reversed a long-standing Internal Revenue Service policy to deny tax-exempt status to the university because of its racially discriminatory policies, and Democrats want to know what Roberts had to say in the 1980s about this situation. Apparently unbeknownst to archivists, the memo was previously released to the public, but does not appear to contain information that would hurt his chance of confirmation.
Staff writers Jo Becker and R. Jeffrey Smith contributed to this report.