Records in the Open . . .
THE PAPERS generated by a president and his White House staff are the property of the American people. Or at least they should be. A 2001 executive order by President George W. Bush that has been roundly -- and rightly -- criticized by Democrats, Republicans and historians effectively makes them the property of the officeholder and his or her descendants. But that could change if a bipartisan bill championed by Rep. Henry A. Waxman (D-Calif.), chairman of the House Oversight and Government Reform Committee, is approved.
Tradition, as established by the Presidential Records Act of 1978, let the president choose which records to keep out of the public realm for 12 years after leaving office. In 1989, President Ronald Reagan issued an executive order that amended the law to allow former presidents to ask the current occupant of the Oval Office to stop the public release of certain papers. The sitting president could choose not to honor the request, in which case the predecessor would have to go to court to keep the records private.
But with his 2001 order, Mr. Bush not only compelled presidents to honor the requests of their predecessors but also took the unprecedented step of extending to their relatives and to the vice president the right to invoke executive privilege. Archivists would have to go to court to try to get the documents they were seeking. The emphasis is on "try," because even if archivists won in court, the former and current president could delay the release of documents indefinitely.
Mr. Waxman wants to go back to reasonable rules similar to those established by Mr. Reagan. Only the president could ask for executive privilege -- there would be no extension of that right to descendants of former presidents and no executive privilege for the vice president. And both the current and former president would have no longer than 40 days to object to the release of records.
Presidents are fond of saying that history will be the judge of their decisions and their administrations. True -- and that's one reason Mr. Bush should not be permitted to stand in history's way.