Roberts urged keeping presidential files secret

Reagan Library releases old documents related to Supreme Court nominee

August 16, 2005|By David G. Savage and Henry Weinstein | David G. Savage and Henry Weinstein,LOS ANGELES TIMES

WASHINGTON - As a young lawyer for President Ronald Reagan, John G. Roberts Jr. argued strongly that the White House should keep its internal files secret and refuse to release them to the Senate for confirmation of a presidential nominee to a senior government post.

"We should take whatever steps are necessary to ensure the general opening of files to Hill scrutiny ... does not become routine," he said. "I would hope that ... we would be in a better position to resist committee demands."

He also denounced as "pernicious" the Presidential Records Act of 1978, in which Congress called for the future public release of files housed in a president's library.

"By 2001," Roberts wrote with alarm on Aug. 29, 1985, "Hill staffers need only go to the Reagan Library to see any internal White House deliberative document they want to see."

This memo by Roberts, whom President Bush has nominated to the Supreme Court, appears among 5,300 pages of White House files released yesterday by the Reagan Library.

The bulk of the files released yesterday did not contain the writings - or the views - of Roberts. Instead, they consisted of court opinions, speeches, letters and memos that were written by others and collected in files held by Roberts during the years he served in the White House counsel's office, beginning in 1982, when he was 27. He left four years later to join a Washington law firm.

In addition to winnowing the files released thus far, the Bush White House has refused to release many of the internal files covering Roberts' later service in the Justice Department under President George H.W. Bush. Those files are being sought by Senate Democrats.

In particular, files from Roberts' time as the top political deputy to U.S. Solicitor General Kenneth W. Starr are off-limits, the White House has said.

It also appeared to follow Roberts' advice in moving to control the release of files from the Reagan Library.

In his 1985 memo, Roberts said the "pernicious effect of [the Presidential Records Act] will have to be addressed in any effort to revitalize the deliberative privilege." The "deliberative privilege" refers to the idea that the debate and deliberation within the White House would be crimped if the president's advisers believed their comments and memos would be released to the public in the future.

Shortly after taking office, Bush issued an executive order asserting that the "incumbent president" must review and approve files before they are released from the libraries of former presidents, including those of Ronald Reagan and George H.W. Bush. The order said the current president could block the release of files based on his "constitutionally based privileges."

The Reagan Library said it had more than 50,000 pages of records that related to John Roberts. In a statement issued yesterday, the National Archives and Records Administration said it was releasing 5,393 pages of Roberts files in response to requests from Senate Democrats. It said 478 pages were withheld by the archivist and the Reagan Library.

A spokeswoman for the archivist said yesterday that 459 of the 478 withheld pages were not released because of "privacy" concerns under the federal Freedom of Information Act. The other 19 pages were withheld under three other exemptions to FOIA.

One glimpse into Roberts' personal views on the issue of school prayer is contained in a 1985 memo in which he objected strongly to a Supreme Court ruling that struck down an Alabama law requiring a daily moment of silent prayer in schools.

Two decades before, the high court had banned state-sponsored prayers and Bible readings in the public schools. Roberts and other Reagan lawyers were upset that the justices refused - in a case called Jaffe v. Wallace - to relax this ban so as to permit the states to begin the school day with a "voluntary" or "silent" prayer.

"The conclusion in Jaffe v. Wallace that the Constitution prohibits such a moment of silent reflection - or even silent `prayer' - seems indefensible," he said.

Alabama's lawmakers, hoping to restore daily prayers to the schools, had enacted a law that said teachers must begin each day with a one-minute period "for meditation or voluntary prayer." But the high court, in a 6-3 decision, struck down the law because state officials were intent on restoring voluntary prayers to the schools.

In a concurring opinion, Justice Sandra Day O'Connor, whom Roberts has been nominated to replace, drew a fine line.

She said students were free to engage in voluntary prayer on their own. Moreover, states could require a "moment of silence." But she also agreed that state lawmakers crossed the line when they told teachers to set aside a daily moment for "voluntary prayer."

The Los Angeles Times is a Tribune Publishing newspaper.

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