- The Washington Times - Tuesday, April 22, 2003

Government in the sunshine is the best disinfectant and deterrent. Confidentiality of presidential advice is pivotal to candor and enlightened decisions.
Experience teaches that the latter axiom is counterfactual; it should bow to full disclosure to advance historical accuracy and public understanding of the office of the presidency unless state secrets are implicated.
The law is otherwise, and should be set aright by Congress in amending the Freedom of Information Act (FOIA). The recent federal district court decision sustaining the withholding of former President William Jefferson Clinton's "Midnight Pardon Documents" from public examination in Judicial Watch, Inc. vs. United States Justice Department (March 28, 2003) is instructive.
Conjugating the verbs of the Clinton administration was to scandalize in all its moods and tenses. President Clinton's pardon of indicted business scoundrel Marc Rich reveling in Swiss opulence after an overture from a voluptuous temptress was emblematic. The pardon was cleverly issued but hours before President Clinton's second term expired to frustrate political retribution. It smacked of bribery because of companion campaign contributions and the involvement of former Clinton administration grandees. It was President Clinton's parting sneer at the law and public morals.
The Marc Rich forgiveness was but one in Mr. Clinton's pinata of 11th-hour pardons. And several last-minute pardon applications that were rejected wore the trappings of impropriety. The historical verdict of Mr. Clinton's presidency and preventatives against pardon abuses would be assisted by placing in the public record all the Midnight Pardon Documents.
Accordingly, Judicial Watch, a nonprofit public interest organization, invoked FOIA to demand access to thousands of pardon-related records in the custody of the deputy attorney general of the United States. The act generally entitles any person to obtain copies of federal agency records, subject to enumerated exemptions. Exemption 5 shields presidential communications from public disclosure. It was relied on by the deputy to keep bosomed 4,341 pages of pardon documents.
The argument for non-disclosure, found persuasive by District Judge Gladys Kessler, was uncomplicated. The pardon power is an exclusive constitutional prerogative of the president. Candid and critical advice from subordinates is imperative to statesmanlike exercises of the pardon power. Such advice would be distorted or vapid if presidential advisers feared routine breaches of confidentiality that could ruin their careers or embarrass them socially. Thus, Mr. Clinton's Midnight Pardon Documents must be kept secret to promote the enlightened use of presidential clemency.
In rebuffing Judicial Watch, District Judge Kessler was guided by the United States Supreme Court's ill-conceived veneration of presidential confidentiality in United States vs. Nixon (1974). Writing for the court, Chief Justice Warren Burger maintained: "The expectation of a president to the confidentiality of his conversations and correspondence … has all the values to which we accord deference … [and is necessary] for protection of the public interest in candid, objective, and even blunt or harsh opinions in presidential decisionmaking. A president and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately."
But not a word of the chief justice is convincing. Confidentiality of presidential advice is honored more in the breach than the observance. Leaks to the media are legion. Presidents commonly disclose advice documents to congressional investigating committees. And presidential communications must be disclosed to grand juries or at criminal trials.
During my long years of government service, virtually every official I encountered assumed his advice might appear in the next day's newspapers. The governing motto was to act as though you were in a fishbowl. Yet candor in presidential advice was neither tepid nor skewed. In any event, as President Harry Truman sermonized, "If you can't stand the heat, get out of the kitchen." A presidential adviser who economizes on bluntness from fear of publicity has no business in government.
But suppose a president is denied full and frank advice from a timid or spineless subordinate worried by the prospect of public knowledge. The enlightened remedy is to fire the adviser, not to conceal the advice. Furthermore, presidential communications that cannot be honorably defended to the satisfaction of the public are not worth receiving, unless mischief is intended.
Time and experience have discredited Chief Justice Burger's romanticizing about the benefits of document confidentiality to sound presidential decisions. The office of the presidency would be unimpaired, and public confidence in the president would climb, if written presidential communications from agencies unrelated to national security or foreign policy were customarily open to public scrutiny. Congress should narrow exemption 5 of FOIA accordingly.


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