The privacy interests of a president begin to erode substantially once he leaves office and continue to do so over time. If and when Congress does decide to amend the Presidential Records Act, it should do so with the basic principle of transparency in mind. These papers are not really one person’s property; they belong to all Americans.
The current law sets forth a reasonable requirement on incumbent presidents to make privilege claims on their records while they occupy office. In addition, participation in the restriction of access to records by former presidents is only statutorily permitted by way of the Archivist of the National Archives and Records Administration consulting with them. They have no constitutional or statutorily based power to unilaterally wall off information from the public.
To have Members of Congress so freely hand over a power first created by a president by way of an executive order is perplexing. It is one thing for occupants of the White House to seek more power. It is quite another for legislators to aid them in that effort.
In short, the bill sets a dangerous precedent for Congress to statutorily grant its consent that a private citizen may exercise a widely recognized Article II-based constitutional power. There are good reasons for Congress to take up the issue of clarifying procedures for the disposition of presidential records, but it absolutely should not be doing so in a way that creates further impediments to the public’s right to know.
Mitchel A. Sollenberger is an assistant professor of political science at University of Michigan-Dearborn. Mark J. Rozell is a professor of public policy at George Mason University.