Drama in the Senate Over a Very Boring Law: The Presidential Records Act

Zachary Harris

There has been extensive drama this week in the United States Senate over the nomination of Judge Brett Kavanaugh to the Supreme Court. When the Senate considers a nominee, they typically review documents from the nominee’s career. These documents must undergo an extensive process before they can be released. Senate Democrats claimed the process for releasing the documents was a partisan “sham” meant to prevent the American People from getting “the full truth.” Republicans say the process is meant to speed the release of documents and allow Senators more time to review them. They claim the process is prescribed by the Presidential Records Act.^[1]

The Act, first passed in 1978, governs the storage and release of Presidential Records. There are six categories of documents which the outgoing President can ask not be released for up to twelve years following his departure from office. Many of the disputed documents fall within these categories. Importantly, the former President can waive this restriction at any time and allow the documents to be released prior to the twelve-year expiration.

At issue with Kavanaugh’s nomination are thousands of documents created during his tenure in George W. Bush’s White House, where he served in the Counsel’s Office, as an Assistant to the President, and Staff Secretary. The National Archives, which stores all of a former President’s documents, says they have in their possession “the equivalent of several million pages of paper and email records related to Judge Kavanaugh . . . .” By comparison, during the confirmation of Justice Kagan, they released 170,000 pages of documents; for Chief Justice Roberts, only 70,000.

The process for the National Archives to review and release the documents is extensive. First, staff review the material and remove personal documents like diaries and journals. Next, any documents which fall within the six exceptions undergo further review. The Archivist collects these documents and gives notice to the President under which the documents were created and the current President. Both have thirty days to determine whether to assert any sort of privilege over the documents, like attorney-client privilege or executive privilege.^[2] If both Bush and Trump waive privilege, then the documents head to the Senate for their use. If either asserts a privilege, however, the Senate would then have to sue to secure the release of the records.

This process takes a tremendous amount of time. There is a workable solution to speed things up, however. The former President, and the people he designates, have immediate access to the documents. They can conduct their own review and waive privilege before the National Archives finishes their review. This is precisely the arrangement Senator Grassley and President Bush’s representative, attorney Bill Burck, came to. President Bush requested the entire collection referencing Brett Kavanaugh and had his representatives review the documents. Some documents they deemed to be personal, outside the scope of the Senate hearings, or protected by privilege. They sent these documents back to the National Archives to review the documents under their process. Other documents did not need any protection and could be released publicly. For these documents, they waived privilege (President Trump followed suit) and released the documents to the Senate with no restrictions.

Some of the documents were closer calls. They were not clearly privileged but were not clearly ready for public release. The documents fell within the six PRA exceptions. To avoid subjecting each document to a lengthy privilege analysis, Bush’s team agreed to expeditiously review the collection for the Senate’s use only. They agreed to provide these documents to the Senate on a condition of confidentiality. If a Senator wanted to release the document, they would ask President Bush to waive privilege. If President Bush agreed, the document could be released, if not, the document would go through the standard National Archives process which was happening concurrently.

The problem is timing. The National Archives process takes too long for Senators to review the documents before Kavanaugh’s confirmation hearing—assuming both Bush and Trump waive privilege. If either does not, an even longer court battle would begin. The alternative, however, places President Bush—and more troubling to some, Bill Burck, a colleague of Brett Kavanaugh—as the gatekeepers to what documents the Senate is entitled to review and release.

Whether the process was effective remains to be seen, but it was not an egregious departure from the law and likely found its roots not in partisanship, but in convenience.

^[1]44 U.S.C. 2201 et. seq.

^[2]74 FR 4669