Transparency in Government?
By Joan Indiana Rigdon

At dawn on January 20, some of the earliest of millions of inauguration-goers stationed along Pennsylvania Avenue might have caught a glimpse of a truck—or three—backing up to the White House to take deliveries of history: calendars, disks, executive orders, hard drives, memos, notes, photographs, tapes, and any other records former President George W. Bush had not turned over to the United States National Archives and Records Administration by then.

It is still unclear exactly what Bush’s records contain. Along with the usual dolly loads of paper files and drives, tapes, and disks containing gigabytes of e-mails, Bush also generated newer types of records, including text messages, and a series of videoconferences on war strategy with then British Prime Minister Tony Blair.

According to the National Archives, only 2 or 3 percent of records generated by the Executive Office of the President are important enough to be forever archived. The Executive Office of the President may sort through its own records to decide what goes to the National Archives, but in making its decisions, it must comply with the Presidential Records Act of 1978.

Under the act, which was established to thwart President Richard M. Nixon’s efforts to conceal his records from the public following Watergate, the Executive Office of the President must file, and later send to the nation’s archives, any records related to how the president and vice president performed their jobs—whether the records were created by the president or vice president themselves, their immediate staff, or a member of the Executive Office of the President who advised or assisted them in their official duties. While still in office, the president may separately dispose of records that have no historical significance, but only after consulting with the nation’s chief archivist.

One thing is sure: by the time the Bush administration turned over its records to the National Archives on January 20, much was missing. According to various lawsuits, the Bush White House lost some five million e-mails during the early years of the Iraq War, possibly because it never implemented the e-mail archiving system it had hired contractors to develop after scrapping the system the Clinton administration had used since 1994.

Separately, congressional investigators have concluded that scores of White House officials conducted official business on private e-mail servers which, for years, automatically purged messages that were more than a month old.

Finally, as part of a larger debate over the role and powers of the vice president, Dick Cheney had argued that he was not really part of the Executive Branch and, therefore, could not be compelled to turn over his records.

Clearly, Democrats were concerned that some records may be improperly destroyed. In November, a little more than a week after the election, Democrats on the U.S. Senate Select Committee on Intelligence and the Judiciary Committee sent a letter to the White House asking the Bush administration to document how it planned to preserve records that would be turned over to the National Archives.

Many presidential administrations, including that of Bill Clinton, have been less than forthcoming when it came to surrendering official presidential records to the public domain. Indeed, the Clinton administration has earned the distinction of being the only administration to hire a cabinet member who went on to plead guilty to stealing classified information from the National Archives. The cabinet member, former national security advisor Sandy Berger, stole the documents after Clinton’s term had ended. During hearings of the National Commission on Terrorist Attacks Upon the United States (9/11 Commission), Berger reviewed documents on how the White House handled a 1999 terrorist threat to bomb U.S. airports. He stole some of the classified documents while pretending to be simply reviewing them.

Still, according to the National Security Archive, an independent, nongovernmental group that seeks to preserve the nation’s history by collecting and publishing documents obtained through the Freedom of Information Act (FOIA), the Bush administration was especially secretive.

“The Bush administration without a doubt is one of the most unnecessarily secretive that we’ve had in contemporary times,” says Meredith Fuchs, general counsel for the National Security Archive.

“Some of the secrecy comes from a political philosophy that I think is held by people in the White House, that we shouldn’t have to be responsive. Part is bad planning and bad reactions to real threats that we’re worried about,” she adds.

The Bush administration set the tone for its policy on open government in 2001, when Bush issued the highly controversial Executive Order 13233, which essentially gutted the Presidential Records Act. The order allowed incumbent or former presidents to use executive privilege to veto the public release of records of former presidents. Under the act, that veto can take place as many as 12 years after an administration leaves office. The executive order also granted former presidents and vice presidents the right to review their records indefinitely before such documents can be released under the FOIA. In October 2007 the U.S. District Court for the District of Columbia struck down the provision on indefinite review, but it did not rule on whether presidents or former presidents may invoke executive privilege to block public release of records obtained under the Presidential Records Act.

9/11 Aftermath
What many remember about the aftermath of the 9/11 attacks was the Bush administration’s increased emphasis on security, which we later learned included secret Central Intelligence Agency (CIA) jails in Europe, policies on torture, and warrantless authorization for the National Security Agency to eavesdrop on Americans’ telephone conversations in search of evidence of terrorist activity.

The underlying assumption of these activities is that secrecy always improves security. Fuchs disputes that. The findings of the 9/11 Commission “have a footnote that references interrogations. Had there been publicity about the arrest of [Zacarias Moussaoui, the 20th hijacker], the attackers might have called off the attack,” Fuchs says.

“That’s what the 9/11 Commission said. I personally don’t know whether that’s true or not. Obviously, if we could have prevented 9/11, it would have been really wonderful. You can always look back in retrospect …”

With the commission’s comments on Moussaoui in mind, “We shouldn’t always be saying it’s either secrecy or security. Sometimes secrecy actually harms our security,” Fuchs says.

Fuchs adds that while some secrets are necessary, keeping too many comes at a high cost, not only to national security, but also to taxpayers. “We should be working toward keeping real secrets secret and not spending time, effort, and money keeping fake secrets.

“Every time we label something secret, there are consequences to our cost stream. In 2007 we spent more than $8 billion on secrecy,” Fuchs says. “That doesn’t include what the CIA spent, because the CIA’s budget is classified.” In fact, the government spent $8.65 billion on classifying secrets in fiscal year 2007, according to the Information Security Oversight Office, which oversees security classification systems for government and industry and reports its findings to the president.

Public vs. Private
No law requires White House or any other public officials to send official e-mails through government servers or to avoid using private e-mail accounts. Instead, the Presidential Records Act requires the preservation of presidential records, including electronic records such as e-mails, no matter where they were created or sent. Separately, the Hatch Act forbids White House staff from using government resources, including government e-mail accounts, for “purely political” activities such as campaigning.

To keep official, historical records separate from personal or campaign records, various government officials have tried using separate computers, or e-mail accounts. According to Anne Weismann, chief counsel for the Citizens for Responsibility and Ethics in Washington (CREW), the Clinton administration assigned a computer for purely political activities. On the campaign trail last summer, voters often spied Alaska Gov. Sarah Palin with her two BlackBerry devices—one for official business, one not.

The trouble is, it is almost impossible to keep official business completely segregated from campaign activities or private affairs. The messages often are mixed together or sent on the wrong server, sometimes by mistake, sometimes for convenience’s sake, and sometimes, according to various investigations and congressional probes, to conduct official business away from the public eye.

“Increasingly there is a broad array of alternative modes of communication that all of us use in all aspects of our lives, and the concept of one e-mail account that’s used exclusively for one purpose is really starting to erode due to mobility and a variety of other factors,” says David Sobel, who litigates FOIA cases as a senior counsel for the Electronic Frontier Foundation, a nonprofit group that seeks to protect civil liberties threatened by emerging technologies.

“So obviously convenience comes into the picture. All official work is not necessarily conducted at a desk in a particular office. People travel, people commute. People often are at different locations when they’re doing work. The problem that arises in the context of the federal government, or any government environment, is how to square that reality with the requirements of open government laws and record-keeping requirements,” Sobel says.

“To the extent that official government business is conducted solely on an agency-provided and administered e-mail account, it’s relatively easy to say that that e-mail system is subject to the requirements of the Federal Records Act. There are very strict requirements governing retention and disposal of those records in the same way that has traditionally applied to paper records in an agency filing cabinet. Once you start taking official communications off those servers and out of the control of the agency, you begin to have problems with circumvention,” purposeful or not, he adds.

According to CREW, the Clinton administration took steps to prevent the misuse of external e-mail accounts in 1993. John Podesta, then White House staff secretary, issued a memo reminding colleagues of their obligations under the Presidential Records Act, and specifically forbidding them from using external e-mail networks for official communications as external e-mails would not be saved.

Republican National Committee
The Bush administration, however, failed to disclose its policy on external e-mails. In fact, congressional investigators have concluded that key Bush administration officials used external e-mail accounts in questionable ways.

In 2004, while investigating since-convicted lobbyist Jack Abramoff’s contacts with the White House, Rep. Henry Waxman (D–Calif.), chair of the House Oversight and Government Reform Committee, discovered that many e-mails sent between Abramoff and the White House were routed through nongovernmental e-mail servers, including gwb43.com, which is maintained by the Republican National Committee (RNC).

In one e-mail thread later reviewed by Waxman’s committee, Abramoff reveals his intent to keep at least some of his communications with White House officials off of White House servers. “Dammit. It was sent to Susan on her RNC pager and was not supposed to go into the WH system,” Abramoff wrote after learning that his message to then presidential assistant Susan Ralston, regarding a U.S. Department of the Interior gaming compact with Louisiana, had been forwarded to another White House aide. The e-mail is referenced in a March 26, 2007, letter from Waxman’s committee to Marc Racicot, former chair for Bush-Cheney ’04.

Congressional investigations showed that White House officials also used private servers to discuss the controversial firings of nine U.S. attorneys.

“Top White House officials were using private e-mail accounts, mostly ones associated with the RNC, clearly to conduct government business,” says Weismann of CREW. “We know that as opposed to carelessness on their part, it was used so [the e-mails] wouldn’t get preserved.”

The Oversight Committee ultimately concluded that 88 White House officials, including Bush Deputy Chief of Staff Karl Rove, used RNC e-mail accounts, and that huge numbers of those e-mails were missing.

In an April 12, 2007, letter to former Attorney General Alberto Gonzales, Waxman reports that RNC counsel Rob Kelner had stated that White House officials used RNC e-mail accounts since 2001, but that the RNC had not preserved any e-mails before 2004. Moreover, the RNC did not have any e-mails of any date for 15 White House officials who had used its e-mail accounts.

According to Waxman’s letter, Kelner revealed that before 2004, the RNC automatically purged e-mails after 30 days. In 2004 it began retaining e-mails of White House officials, but it did not prevent officials from deleting their own e-mails from RNC servers. Possibly for that reason, Kelner stated to Waxman, the RNC did not have any of Rove’s e-mails for 2004. Starting in 2005, the RNC developed a system for automatically archiving Rove’s e-mails, in such a way that Rove could not delete them, according to the letter.

In other words, during the seven years he served as senior advisor to President Bush, Rove sent almost all of his e-mails through RNC servers, yet the RNC has no record of any of those e-mails sent during the first four years of his term.

Were they relevant? Waxman thinks so. A few months after Waxman’s letter to Gonzales, the Oversight Committee issued an interim report[1] declaring that RNC servers “were used by White House officials for official purposes, such as communicating with federal agencies about federal appointments and policies.”

Conducting Public Business…on Yahoo!
While Rove was a heavy user of his RNC-issued BlackBerry and his RNC e-mail account, other government officials—from White House advisors to city councilmembers—routinely use America Online (AOL), Yahoo!, or other Web-based e-mail services. As with the RNC accounts, some officials end up using their Web-based e-mail to conduct official business.

Last summer, for instance, The Washington Post reported that Gov. Palin, whose campaign promises had included increased government transparency, used her private Yahoo! account to discuss “Troopergate”—Alaska officials’ investigation of Mike Wooten, a state trooper who also was her former brother-in-law. Palin wanted Wooten fired.[2]

In one message sent from her Yahoo! account, addressed to Alaska Public Safety Commissioner Walter Monegan, Palin discussed two matters of official business: a state investigation into Wooten’s job performance, and whether Monegan had permission to speak before the state legislature on a violent crime bill (she granted him permission).

Palin has maintained she is not using her private e-mail accounts inappropriately. Still, if her published Yahoo! e-mails are any indicator, she has conducted at least some official business on private e-mail. Anytime a government official does that, it “is a very big problem for two reasons,” says Lisa Rosenberg, government affairs consultant for Sunlight Foundation, a nonprofit dedicated to making government more transparent. “The first reason is it gives the appearance, if not the actuality, of impropriety. It looks like people are trying to hide things.

“The second problem is historical. The Presidential Records Act and Federal Records Act and Freedom of Information Act were put in place so we can look back at an administration and judge them fairly. If we don’t have complete and well-documented records, we can never get the information to make those decisions,” Rosenberg says.

FOIA, for instance, requires federal agencies to honor “any request for records”… “from any person.” The request must be “reasonably described” so agency officials can find it. “If the government is not in control” of the records because they exist only on private e-mail servers, for example, “you’re depending on the honesty and good will of employees” charged with responding to the request, says Sobel of the Electronic Frontier Foundation. “You’re going to be at the mercy of that person.”

Security Risk
When public officials use private e-mails, they are trying to make their private communiqués more secure. Ralston spelled this out in one e-mail later obtained by Rep. Waxman’s Oversight Committee. In the e-mail, dated July 11, 2001, Ralston alerted two lobbyists working for Abramoff: “I now have an RNC Blackberry which you can use to e-mail me at any time. No security issues like my WH e-mail.”

While there haven’t been any reported breaches of RNC e-mail accounts, AOL, Yahoo!, and other Web-based e-mail services are very susceptible to hackers—and also are used by White House and other key government officials. Ralston, for instance, used an AOL account in addition to her RNC and White House accounts.

How easily can Web-based e-mail be hacked? Shortly after The Washington Post reported on the existence of Palin’s Yahoo! account, (gov.palin@yahoo.com—since closed down), hackers broke into her e-mail and posted several screenshots on the Internet, for all to see. The screenshots showed private family photos, names and e-mail addresses of more than a dozen contacts, and an e-mail from a self-described “good” hacker who said he changed Palin’s password so the original hackers could not continue to access the governor’s account.

Conducting official business on private e-mail “could be a situation where taking this stuff out of a government system would potentially violate security requirements when classified or confidential information is being discussed outside of the presumably secure government systems,” Sobel says, alluding to the fact that even White House servers have been hacked.

Weismann believes the lack of policy on e-mail has led to a certain amount of mayhem. “You have the use of private e-mail accounts [to conduct public business] seemingly on purpose and no effort to stop that. For any incoming administration, there needs to be a clear policy,” she says.

Weismann also wants a clear policy on how to preserve e-mails. “People conduct agency business using private e-mail accounts. But if you’re going to use a private e-mail account, you’d have to print it out from your private e-mail account and put it in a file, or you’d have to forward it to [your] government e-mail account” so it can be preserved, she says. “People aren’t doing that. It hasn’t become enough of a priority.”

According to a June 2008 U.S. Government Accountability Office (GAO) report[3] on how well federal agencies are preserving e-mails, all four agencies reviewed—Department of Homeland Security, Department of Housing and Urban Development, Environmental Protection Agency (EPA), and Federal Trade Commission—were relying on “print and file” systems for preserving e-mail records. In a statement about the report, Waxman’s Oversight Committee called the printing and filing of e-mails “outdated and unreliable.”

The committee also noted the GAO’s finding that the use of a private e-mail account by a former acting administrator for the EPA “may have led to the loss of records concerning the agency’s response to the September 11 attack.”

Rosenberg, of the Sunlight Foundation, doesn’t think the law should be amended to specify how government officials should use public versus private e-mail accounts. She says the laws are clear as they stand. “If people know they’re conducting government business, they should be using their government e-mails to do that. I don’t think the law needs to be changed. You’re either breaking the law or you’re not,” she says.

Nor does she think it’s necessary to change records-keeping laws to reflect newer methods of communication, ranging from Twitters (a way to instant-message people who, in essence, subscribe to you) to podcasts.

“I think it’s dangerous to start legislating on a particular technology because, of course, technology will change,” she says.

Missing E-Mail
It is one thing to make archivists hunt for official e-mails that lived only on private e-mail servers, and another to have them search for millions of e-mails missing from White House servers.

One of the earliest indications of missing e-mails came in 2007, during the trial of former Vice President Dick Cheney’s chief of staff, I. Lewis “Scooter” Libby, who was being prosecuted for perjury and obstruction of justice related to the disclosure of Valerie Plame’s identity as a covert CIA agent. During the trial, prosecutors told Libby’s defense team that several e-mails from Cheney’s office were missing. Libby was convicted on March 6, 2007, and later sentenced to 30 months in prison. President Bush commuted Libby’s sentence before it began.

A month after Libby’s conviction, CREW released a report based on confidential sources that alleged the vice president’s office wasn’t the only one missing e-mails. According to CREW, the White House was missing more than five million e-mails.[4]

On September 25, 2007, CREW filed CREW v. Executive Office of the President in the U.S. District Court for the District of Columbia, alleging that e-mails were improperly deleted from White House servers, and that the office had broken the law by failing to develop an electronic records management system as required by both the Presidential Records Act and the Federal Records Act.

CREW asked the court to order the defendants to restore deleted e-mails from backup tapes and to develop and implement an effective records management system.

From 1994 to 2002 the Clinton White House had used a system called Automated Records Management System (ARMS). It automatically backed up, categorized, and separately archived e-mails that were required to be preserved under either the Presidential Records Act or the Federal Records Act. The Bush administration scrapped ARMS in 2002 and paid to replace it, but it never implemented the replacement system.

“They’ve had at least two different contractors” working on an e-mail archiving system, Weismann says. “They spent the money to develop electronic record-keeping systems, but they never implemented them.” She adds that although the White House has set out plans to restore the missing e-mails from backup tapes, it has yet to do so.

CREW’s lawsuit was later consolidated with a similar case filed by the National Security Archive. The defendants presented five reasons why the suit should be dismissed, leading with their claim that the Presidential Records Act is not subject to judicial review. This past November, the D.C. District Court dismissed the arguments and ruled that the suit may proceed.

An Alternative Act
The magnitude of missing White House e-mails inspired Rep. Waxman to attempt to modernize the Presidential Records Act and the Federal Records Act with the introduction H.R. 5811, the Electronic Communications Preservation Act. The bill would have required federal agencies to archive e-mails and other electronic communications in electronic format, in contrast to the method of printing out e-mails and stuffing them in paper files that many agencies still use. The bill also would have required the National Archives to set minimum standards for archiving systems, conduct audits to ensure agency compliance, and certify that the Executive Office of the President was meeting the standards.

The National Coalition for History, which comprises more than 60 groups, endorsed the legislation. CREW, however, opposed it, going so far as to tell The Washington Post that it was “anemic.” “We opposed it because it didn’t go far enough,” Weismann says.

Among other things, she objected to a provision that would have given federal agencies four years to comply, and to the idea of putting most of the responsibility for ensuring compliance on the National Archives, as opposed to the agencies themselves.

Bush threatened to veto the bill, saying it gave the National Archives too much leeway to establish archiving procedures that could cost too much and interfere with the president’s ability to do his job. The bill was approved by the House, but died in the Senate.

Cheney: Executive or ‘Weird Duck’
Historians and advocates for transparency in government are alternately amused and horrified at Cheney’s repeated insistence, since 2007, that he was not really part of the Executive Branch.

To bolster his theory, Cheney alternately described the vice presidential role as a “weird duck” on CNN’s “Larry King Live,” and a “unique creature” in an interview which aired on CBS. Cheney explained that while he had some executive duties, he also was president of the Senate and paid by the Senate.

When CREW filed its lawsuit over the missing White House e-mails, Cheney’s staff assured CREW it was preserving records under the Presidential Records Act. “They said: We’re complying with the law. We’re saving everything that the [Presidential Records Act] requires. Here are declarations, one from the Office of the Vice President and one from Archives. Because we’re preserving everything, plaintiffs don’t have standing because they haven’t been injured,” Weismann recaps.

“The problem is, what they say they are preserving appears to be two very under-inclusive categories: records of specially assigned functions that the president assigns the vice president and records [from his role] as president of the Senate.

“We said, well, everything that the vice president does isn’t presidentially assigned. First of all, he has statutorily assigned functions. He sits on the National Security Council. What about those functions that aren’t specially assigned? And what about the vice president’s position that he’s not part of the executive branch? Does he act, in his view, in a nonexecutive branch capacity when he sits on the National Security Council?” Weismann asks.

CREW v. Cheney
On September 9, 2008, CREW sued Cheney and the National Archives in the U.S. District Court for the District of Columbia over Cheney’s narrow interpretation of the Presidential Records Act. After the district court gave CREW permission to depose a Cheney aide, the White House filed an emergency petition for a writ of mandamus with the U.S. Court of Appeals for the District of Columbia Circuit seeking to block all discovery. The D.C. Circuit allowed discovery to proceed.

Fuchs, the general counsel for the National Security Archive, was surprised that the former vice president did not think his records were subject to the Presidential Records Act. “It’s clear from our laws that what Congress intends is for the records of those in the White House to ultimately become public. That’s what the [the act] says.

“What I find fascinating regarding Cheney is that the Office of the Vice President won’t simply agree that everything created related to the vice president’s business is going to be protected and preserved and turned over as presidential records at the end of the administration. They’re trying to parse the language in order to leave open the possibility that there could be records that aren’t part of the presidential records.

“I think it’s outrageous. I think it’s quite stunning that they would take that position. They’re trying to protect their opportunity to remove things” from the public record, Fuchs adds.

Weismann agrees: “The alarming thing about that one is we think the vice president is trying to self-select out of the statute altogether. If we’re right, it has pretty far-reaching consequences beyond just this statute.”

Rob Weiner, who heads the litigation and business litigation practice groups at Arnold & Porter LLP, and who has written on Cheney’s view of the vice presidential role, says he doubts Cheney would have complied with the act without a major fight. “I’m not suggesting that he’s concealing anything. I think he has a very robust view of the powers of the executive, and whether or not he’s correct, he tends to act on the view,” he says.

A Long-Term Effort
Weismann believes Cheney used several methods, both major and minor, to reinforce the idea that the vice president’s office is an office in its own right—neither part of the executive nor the legislative.

She believes Cheney laid the groundwork for this position in 2004, in the Supreme Court case Cheney v. United States District Court for the District of Columbia. In the case,
Cheney sought the dismissal of a lawsuit brought by Judicial Watch, a group that promotes transparency and accountability in government, and the environmentalist group Sierra Club. In that suit, Judicial Watch v. National Energy Policy Development Group, the plaintiffs argued that records of Cheney’s energy task force should be made public because private lobbyists were present in the task force’s meetings.

Cheney’s lawyers, however, argued that the lawsuit’s discovery was too broad and could interfere with the work of high-level presidential advisors. The Supreme Court agreed, voting 7–2, to send the case back to district court, which it said should consider a writ of mandamus to stop discovery.

For Weismann, the take-away is, “They got a decision out of the Supreme Court … that it was appropriate to use a writ of mandamus to stop discovery against the vice president. So what this [Bush] administration does is [it] goes and takes that language and keeps pushing it to say that the vice president has his own powers.”

CREW is representing outed CIA agent Plame and her husband Joe Wilson in their civil lawsuit for damages stemming from the leak of Plame’s identity. The defendants include Cheney, whose arguments Weismann summarizes: “Like the president, I’m entitled to absolute immunity from suit…. We’re the equivalent of the president. We get the same immunities and the same power.”

She adds, “At the same time, the vice president is saying, I’m not part of the executive branch” in response to requests for documents. “You can’t have it both ways.”

Weiner agrees that Cheney’s claims about his role are self-contradictory. “He claims to be in the executive branch for purposes of asserting executive privilege. But then when it comes to the Presidential Records Act, all of the sudden he’s not.”

He scoffs at the notion that anyone could take seriously Cheney’s claims that he was not part of the executive branch. “It seems to me, if he were part of the legislative branch, then shouldn’t executive privilege be exercised against him rather than by him? His sole function as vice president with regard to the legislative branch is that he breaks a tie in the event that there’s an even vote in the Senate. Otherwise, he’s part of the executive. He’s housed in the executive. He functions in the executive. He takes over in the event of the disability or death of the president,” Weiner says.

In retrospect, Weismann believes the Office of the Vice President has taken care to use even small opportunities to advance the notion that the vice president is not part of the executive branch. “Some of it is very subtle. … You don’t always understand what they’re doing at the time they’re doing it.”

For instance, in one document that Cheney’s lawyers filed in CREW v. Cheney, “They dropped a footnote saying the Office of the Vice President is not part of the Executive Office of the President. It’s part of this process to establish the Office of the Vice President as this stand-alone power in its own right. I don’t think anything they do is an accident. This is a subtle, little thing, but it makes a difference to them,” Weismann says.

Change With Obama?
It is unclear how the Obama administration will handle the legacy of the Bush administration vis a vis transparency. However, advocates of open government see some positive portents. Podesta, for instance, the former Clinton White House staff secretary who reminded colleagues of their obligations under the Presidential Records Act, headed up Obama’s transition team.

What’s more, Obama has announced plans to immediately repeal several executive orders to make an immediate impact upon assuming office. Several transparency advocates hope that Bush’s Executive Order 13233 is one of them, since the U.S. District Court for the District of Columbia has let stand its provision allowing sitting presidents and former presidents to invoke executive privilege to veto the release of records of former presidents.

Weismann worries that the Obama administration could be tempted to hold on to some of the powers left behind by the Bush administration. “It’s very hard to give up power. To the extent that Bush and Cheney have been beefing up the power of the executive branch, there’s going to be a natural inclination of anyone coming in not to give up that power.

“To the extent that the courts have blessed the unilateral actions that [Bush] has taken [to increase executive branch powers], it’s going to be hard for a new president, even if his heart is in the right place and he believes in accountability and transparency, to give up power,” she says.

Weismann hopes Obama will be different. “We can’t have what happened in the last eight years. It will be interesting to see what this [new] administration does.”

Freelance writer Joan Indian Rigdon has covered an array of topics for Washington Lawyer including universal health care and legislation involving No Child Left Behind.

Notes
[1] United States House of Representatives Committee on Oversight and Government Reform Majority Staff, Interim Report: Investigation of Possible Presidential Records Act Violations (2007).
[2] Michael D. Shear & Karl Vick, Hackers Access Palin’s Personal E-mail, Post Some Online, Wash. Post, Sept. 8, 2008, at A04.
[3] United States Government Accountability Office, National Archives and Selected Agencies Need to Strengthen E-Mail Management (2008).
[4] Without A Trace: The Missing White House E-Mails and the Violations of the Presidential Records Act (2007).