Expert Witness Agrees With Portman That Federal Records Laws Need Clarification

WASHINGTON, DC – Today, at a hearing titled “Correcting the Public Record: Reforming Federal and Presidential Records Management,” expert witness Jonathon Turley, Professor of Public Interest Law at The George Washington University Law School, agreed with U.S. Senator Rob Portman (R-OH), Ranking Member of the Senate Homeland Security and Governmental Affairs Committee, that complexity and ambiguity lead to issues in interpreting federal records law.  Portman highlighted the importance of transparency and accountability in the federal government and how the Committee is working on bipartisan legislation reforming federal records laws to create brighter lines while also balancing the preservation of federal records and the value of public disclosure, with the importance of confidentiality of sensitive communications, particularly as they relate to the President of the United States. 

A transcript of Portman’s questioning can be found below and a video can be found here. 

Portman: “Great. Thanks, Mr. Chairman. Thank you to the witnesses. We talked about ambiguity a little, and earlier I mentioned that clarification is needed. And Professor Turley, you talked about how ambiguity can lead to problems. I think complexity can, too, which is part of ambiguity, I suppose, but specifically keeping it as simple as possible. I was Associate Counsel to the President under President George H. W. Bush, the first Bush, and one of my jobs was to try to help interpret the rules at the time, which were actually far different than they are now. And then I served in the second Bush administration as well, including at the Office of Management and Budget, so I had the same sort of issues with some of my team, which is just confusion about what the rules are. And people come in and out of the executive branch, particularly at the White House, with some frequency. So maybe in some of the agencies, people stay longer, but a lot of them are younger, and a lot of them really don’t have an intuitive sense of what this is about because it doesn’t make sense, given their private lives and their work lives where they’re free to be able to destroy records that might be sensitive or even embarrassing. So what do you all think about that and maybe start with you, Professor Turley, since you talked about ambiguity, and I would add complexity there as an issue. And you talked about the Capstone system, as an example, which is not mandated. That’s confusing to people, I think. So, what are your thoughts on that?” 

Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law, The George Washington University Law School: “Well, Senator Portman, I think that your concern is more than justified in the sense that real people have to use these rules. And you don’t want rules that only the White House Counsel and his experts understand. You need rules that your average official sitting there knows where that line is. In what may be one of the most unique hearings of my life, this actually would simplify things. Usually things get more complex around here, but we would simplify it in a couple of ways. One is by codifying Capstone, you’d have a consistent approach across the agencies, and it actually takes away a lot of decisions. It just goes ahead and preserves records. By getting rid of the disposal authority in the White House, I don’t really think the White House loses much. I’ve never understood why it was so necessary to have that instead of just preserving it, leaving it for the archives. And then banning ephemeral systems once again creates a bright line rule as to the sort of these regular certifications. So in those sense, in those terms, I think this does create bright lines and actually simplifies things, because I readily agree with you that the only way that we will be able to successfully accomplish this mission is for people to understand where those lines are.” 

Portman: “Yeah. The other part of this is and I understand we’re working on some legislation here to try to create brighter lines, but if the bright lines don’t make sense to people, in other words, it seems counterintuitive, that’s an issue as well. And so personal communication as an example, how do you delineate that? And then this broader issue that maybe all the panel can talk about, which is really the balance of preserving records and the value of public disclosure, which we talked about, and the importance of confidentiality of certain sensitive, particularly presidential communications. Where is that line? Maybe Mr. Baron, Ms. Weismann you could talk about that?” 

Jason Baron, Professor of Practice, University of Maryland College of Information Studies: “Thank you, Senator. I do want to say that your point about confusion is well taken, but there’s a larger issue about compliance in the government. And one of the reasons that Capstone is so successful, even though voluntary on the part of about 200 federal agencies, is because it automates the process. It takes the burden away from people, so that the system, the computer system can basically take senior level officials’ emails and put them into an archive without anybody having to manually do anything. So that’s that point. The rules of confidentiality, well, in one sense, it’s very important at the White House for every record to be permanently preserved. FOIA doesn’t apply. But FOIA does apply five years after a President leaves office, subject to restrictions. And so records are confidential in some sense, but they need to be made. They need to be created. And if ephemeral communications are essentially acting as an end run around normal record keeping at the White House or in the executive branch, those records will not be preserved.” 

Portman: “Yeah. And by ephemeral, you mean using the apps that destroy the message after it’s sent.” 

Professor Baron: “That’s right.” 

Portman: “Thank you for your time. Ms. Weismann?” 

Anne Weismann, Outside Counsel, Center for Responsibility and Ethics in Washington and the Project On Government Oversight: “On the issue of confidentiality, we have a rich history and tradition of protecting that through the assertion of executive privilege. And in this respect, I respectfully disagree with Professor Turley. I think the recent example with the assertion by former President Trump and the refusal of President Biden to recognize that assertion illustrates exactly that we have the right processes in place. President Trump had the ability to fully explain his position and assert his interests in several courts, as did the President. And several courts weighed those assertions and made a decision. And they did so based on, I think, a pretty well developed body of case law. Privilege claims are really the bread and butter of what courts do. So I think there are definitely protections already in place to ensure confidentiality. The PRA itself has those protections in place by providing for confidentiality for a set number of years. But we also now know that there are processes that a former President can use in order to protect interests that they believe need to be protected. So I am of the view that there are adequate protections already in the judicial system that we have.” 

Portman: “Mr. Turley, response to that?” 

Mr. Turley: “I would respectfully disagree. And I don’t think we’re that far apart. I think we share many of the same values with regard to these laws and I think we share the same conclusion as to this particular controversy. What I was suggesting in my testimony is that there is an ambiguity here. I don’t agree that the standard is so clear for Presidents and when they go to court that they can really address the full scope of the concerns here. If you procedurally are correct in the use of this act, the only thing that really a court can balance is the type of Nixon criteria as the separation of powers and that’s a standard that is largely still favoring disclosure in many of these cases. All I’m suggesting is that Congress can consider in addition to these other proposals that cut back on the executive branch, it can consider articulating a clearer standard. And it seems to me the standard on the shield laws fits sort of nicely with these issues that if you take, for example, the Trump controversy on the override, I expect you could have gotten a bicameral vote to get access. But putting that aside, the standard itself is simply suggesting that if you can get this information from another source as we do under shield laws, that should be the first course that you take because I think there is room for mischief in the future. And I am worried because if we see the terrible divisions in our politics today, I’m worried about President Biden and other successors in being able to feel confident that their communications will be confidential, particularly for that period immediately after they leave office.” 

Portman: “Yeah, I think it’s a good point. My time has expired. But if you all could make sure all three of you give us your specific views on the private right of action issue and whether there’s a necessary standard and basis that you would think be necessary in order for people to be able to pursue a private right of action. I have concerns about that, but I just want to hear from each of you if you could provide your written comments on that for the record, that’d be great. Thank you, Mr. Chairman.”