As with Clinton’s letter, Bush’s also lays out categories of greater sensitivity. Bush surprises on W.H. records

President George W. Bush, whose White House was legendary for its secrecy, seems to have turned over a new leaf in his post-presidency.

A previously undisclosed directive Bush signed almost two years after leaving office could result in many of his official records becoming public faster than those of his predecessor, President Bill Clinton, experts say — a move that’s drawing praise from unlikely quarters.


Bush’s letter to the National Archives about his presidential records, obtained by POLITICO under the Freedom of Information Act, establishes nine categories of documents cleared for release to the public. They include memoranda and reports provided to Bush and his aides that are “purely informational or factual in content,” talking points on policy decisions, scheduling files and recommendations about whether to sign legislation, while still allowing for withholding of some details of sensitive policy debates.

(LETTER: Read Bush’s letter on presidential records)

The relatively expansive directive stands in contrast to Bush’s approach to the public’s right to know while he was in office, when his administration battled to the Supreme Court to keep secret the work of Vice President Dick Cheney’s Energy task force and reversed a Clinton-era presumption favoring disclosure in Freedom of Information Act cases. The Bush order also sets his approach apart from Clinton’s instructions for his White House records — a process that led to about 33,000 pages being held back for more than 12 years after the 42nd president left office.

On Friday, the latest batch of about 7,300 pages of those Clinton-era records emerged from the Clinton Library, revealing the scramble to lay political blame for the failure of the Clinton health care reform drive and how the president was advised to tackle questions during a trip to Vietnam about his avoidance of the Vietnam War draft.

While Bush’s letter was signed about 3½ years ago, its true test has just gotten under way. That’s because, by law, White House records become subject to Freedom of Information Act requests from the public five years after a president leaves office. That window opened at the Bush Library in January of this year. In the first week, it was open to FOIAs, the Bush Library received more than 200 requests from journalists, scholars and activists.

A close observer of White House operations, Towson University political science professor Martha Kumar, said Bush likely views himself as having little to lose and something to gain by being open with his official files.

“He left the presidency very comfortable with his record. I think that’ll carry through into the release of information from it,” Kumar said. “I think he believes his actions were justified and that the records will demonstrate that.”

An analogous letter Bill Clinton signed in 2002 took a different approach, appearing to lift the legal restrictions on all confidential advice unless it was covered by certain exceptions. However, experts and former National Archives officials say that the outlines of those exceptions were so unclear that even mundane records were often withheld.

(LETTER: Read Clinton’s letter on presidential records)

“In general, I would say that the Bush letter is more helpful and concrete than the Clinton one,” said Scott Nelson of Public Citizen, an attorney who has fought for broader public access under the Presidential Records Act. “On its face, the Bush letter appears to do more to ‘ease’ the restrictions than the Clinton one did, and to empower the Archives to make its own decisions about releasing materials as to which the restrictions have been ‘eased.’”

“Bush chose to delineate categories in which he was waiving restrictions,” said Sharon Fawcett, who retired in 2011 as director of the Archives’ presidential libraries division. “He operated more from: ‘This is what you should open. This is what you must close….’ That helps to speed up the review, rather than saying, ‘I’m mostly willing to open confidential advice, but I want to look at it first.’”

That extra step, said Fawcett, means “great quantities of materials have to go through the eyeballs of the [president’s] personal representative to identify material everyone is comfortable with.” That’s what happened following Clinton’s 2002 directive, she said.

The high marks Bush is receiving for his letter are startling, since historians and a media coalition complained loudly and bitterly in 2001 about an executive order he issued ceding additional power to former presidents to prevent disclosure of their records. A judge struck down part of the order in 2007.

In a measure of liberal disdain for Bush’s action, the first executive order President Barack Obama signed after taking office revoked the earlier order.

( PHOTOS: George W. Bush’s career)

Bush’s post-presidential directive is careful to preserve his ability to hold back what many researchers would consider the crown jewels: the most sensitive memos and emails created during his eight years in the White House. Departing from Clinton’s letter, Bush’s order seeks to give special protection to communications involving his most senior advisers by designating senior staff memos for possible withholding.

“I further request that the NARA staff pay particular attention to, and appropriately consult with, my designated representatives regarding confidential communication, including electronic communications, containing substantive advice or recommendations involving White House staff serving as Assistants to the President,” Bush wrote in the Nov. 15, 2010, letter.

( WATCH: Driving the Day)

As with Clinton’s letter, Bush’s also lays out categories of greater sensitivity, including “confidential communications on a national security or foreign policy topic,” “substantive policy communications to or from the President,” and communications with the vice president or first lady.

Here, too, there are nuanced differences. Bush’s letter says he’s considering easing even those restrictions and appears to give his representative authority to do so. Clinton’s urges that the restrictions be interpreted “as narrowly as possible,” but doesn’t appear to give the go-ahead to disclose any of the information in the categories deemed most sensitive.

“The Clinton letter didn’t clearly specify anything that would definitely be subject to release,” Nelson said.

“This is a very generous sounding letter,” Fawcett said of Clinton’s instructions. “But there were these restrictions.”

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Emails POLITICO obtained from the National Archives indicate that the Bush letter was negotiated by Tobi Young, a former Bush White House lawyer who now serves as general counsel at the Bush Presidential Center in Dallas. She declined an interview request.

Bush spokesman Freddy Ford said Bush’s “easing letter” wasn’t an attempt to one-up Clinton, but to follow his lead.

“This letter essentially aims to make it easier for NARA to make documents available and respond to FOIA requests — and to do so earlier than prescribed by law,” Ford said in an email. “My understanding is that we followed President Clinton’s example on this in an effort to make 43’s library, like 42’s, more open and transparent.”

A Clinton spokesman declined to comment.

Bush’s directive will remain in effect until 2021, 12 years after the end of his presidency. At that time, the Presidential Records Act’s protections for confidential advice fall away and a president must formally assert executive privilege to withhold records. Of the four former presidents covered by the 1978 law, only President Ronald Reagan has done so thus far, withholding 74 pages that were set to become public in 2001.

Clinton’s records hit the 12-year mark early last year, rendering his “easing letter” moot. However, records previously withheld under the letter did not begin to emerge until February of this year. Officials at the archives, Clinton’s office and the White House have not explained the delay.

Just over half of the 33,000 pages withheld under the letter have been released so far. Some of the records are still under review, and there has been no commitment to release them all.

Clinton’s letter received little or no attention until October 2007, when it suddenly became an issue of contention in then-Sen. Hillary Clinton’s race for the Democratic presidential nomination.

During a nationally televised debate, late NBC Washington Bureau Chief Tim Russert brandished the directive and said it put any White House records of communications between Mrs. Clinton and her husband off limits until 2012. “Would you lift that ban?” Russert asked.

“We’ll move as quickly as our circumstances and the processes of the National Archives permits,” candidate Clinton responded.

Obama leapt on the political opening. He raised his hand to chime in, calling the secrecy “a problem” that made it hard for Democrats to criticize Bush for leading “one of the most secretive administrations in our history.”

Bill Clinton complained that his wife had been sandbagged and that Russert had mischaracterized the letter.

“She was incidental to the letter,” the former president insisted. “It was a letter to speed up presidential releases, not to slow them down.”

While Clinton’s letter seemed in theory to carry the promise of more liberal releases, in practice archivists were fairly conservative, sometimes withholding talking points, speech drafts with minor edits and memos from outside advisers who were not part of the 42nd president’s inner circle.

Just who’s responsible for that secrecy remains a subject of dispute.

In 2008, Archives spokeswoman Susan Cooper said officials there had misunderstood Clinton’s letter — then six years old — and were holding back more information than the former president had intended.

“We had been interpreting the easing letter President Clinton wrote in a particular way and were interpreting it very conservatively,” the spokeswoman told The Associated Press. “We then discovered in the course of conversations with [Clinton adviser Bruce Lindsey] that the president’s desire was to interpret the easing letter less conservatively and more openly.”

Fawcett had a different recollection, saying that the Archives was always operating at Clinton’s direction.

“Originally, they did ask for a more conservative interpretation. They may have eased their interpretation over time. I don’t believe the Archives interpreted it more conservatively than the former president intended,” the former Archives official said. “Of course, if they failed to tell us, we wouldn’t know … It’s very idiosyncratic at times.”

Clinton’s letter also contained a less-discussed provision instructing archivists to consider withholding memos and emails about “legal issues and advice, including , but not limited to matters in litigation and matters subject to investigation by Congress, the Department of Justice or an Independent Counsel.“

However, in a statement issued after Hillary Clinton’s run-in with Russert, former President Clinton’s camp said he had made an unprecedented effort to make records public.

“Bill Clinton has not blocked the release of a single document from his Library,” longtime Clinton aide and lawyer Lindsey said at the time. “Bill Clinton has actively encouraged the National Archives to release more policy and substantive presidential records sooner than any other president subject to the Presidential Records Act … No other President subject to the Presidential Records Act has authorized such a broad release.”

The largest obstacles to the release of presidential records remain beyond the control of any former president: the lack of resources at the National Archives-run libraries to process the records in a timely way and a painstaking system of page-by-page review. Even when a former president explicitly approves release of certain files, the Archives is required by law to scour the records and delete classified national security information as well as personal information like Social Security numbers.

The result is that the bulk of the records at the modern presidential libraries remain off-limits and are likely to be under wraps for decades.

Some White House records are also entirely excluded from the Presidential Records Act. Researchers hoping to expose instances of Machiavellian political strategy on the part of Bush White House adviser Karl Rove could be disappointed, since the law renders purely political files exempt from disclosure. Records of a strictly personal nature also fall outside the act.

Kumar said that, unlike Clinton, Bush doesn’t need to worry about the potential political fallout from putting White House records in the public domain.

“He’s not in a situation where his wife is running. His brother could be running, but I don’t see that as something that’s really going to be determined by whether he released records or not,” Kumar added.