President Trump issues statement on signing of
S. 3191 – The Civil Rights Cold Case Records Collection Act of 2018:
Notice how similar Trump’s Statement on signing the
Cold Case Act is to
President George H.W. Bush’s statement on signing
the JFK Act 1992.
STATEMENTS & RELEASES
Statement by the President
Issued on: January 8, 2019
“….Accordingly, I have signed the Act on the
understanding that the public disclosure of records may be postponed where
necessary to protect executive privilege.”
Today, I have signed into law S. 3191, the “Civil
Rights Cold Case Records Collection Act of 2018” (the “Act”). The Act
provides for the review and, where possible, the release of records of criminal
investigations relating to alleged Federal civil rights violations between 1940
and 1980 (“cold case records”). These records, however, include
information in the possession of any branch of the Government and could encompass
even recently created records that “relate to” alleged civil rights violations
from that period. I fully support the goals of the Act; however, it
raises several serious constitutional concerns.
First, section 4 of the Act, which enumerates
exceptions from the general requirement to release cold case records, could be
read to compel disclosure of material covered by executive privilege.
Section 4 does not explicitly protect records containing confidential executive
branch deliberations, which fall within the deliberative process component of
executive privilege. It does provide some protection for law enforcement
and national security information, albeit on narrow grounds. In any
event, my responsibility to protect these categories of information comes from the
Constitution and cannot be limited by statute.
Absent this protection, certain interests the Act
seeks to safeguard, such as the integrity of the law enforcement process, could
be harmed. Investigators and prosecutors must be free to conduct candid
internal deliberations, and persons identified in investigatory files — such as
victims, witnesses, and others — must be protected from unwarranted
reprisals. Section 4 provides that records should not be disclosed
if doing so would cause identifiable or describable harm to national security
or law enforcement, invade personal privacy, risk substantial harm to
cooperating witnesses or confidential informants, or interfere with ongoing law
enforcement proceedings. These exceptions protect the confidentiality of
certain deliberative material, sensitive law enforcement information, and other
privileged information, but there may be circumstances that require the
postponement of the disclosure of documents beyond what is expressly provided
for under the Act. I cannot abdicate my constitutional responsibility to
protect such information when necessary. Accordingly, I have signed
the Act on the understanding that the public disclosure of records may be
postponed where necessary to protect executive privilege.
Similarly, section 3(f) of the Act could require
disclosure, without regard to executive privilege, after 25 years of the
date of enactment. This section provides that a record may be
exempted from disclosure based on identifiable or describable damage to national
security, military defense, law enforcement, intelligence operations, or the
conduct of foreign relations. I will interpret this provision consistent
with my authority under the Constitution to protect confidential executive
branch materials. Section 3(f)(4)(A)(iii), however, suggests that the
Archivist of the United States would need to concur in any decision of the
President to continue to exempt such records beyond the 25-year mark.
Because the Archivist is an official within the executive branch subject
to plenary presidential supervision, and because executive privilege is
a core Article II prerogative of the President, I do not understand this
provision to empower the Archivist to countermand a decision of the President
to exempt records.
Related constitutional concerns arise with respect
to the provision purporting to give the Civil Rights Cold Case Records Review
Board — the agency established by the Act and charged with reviewing the
decision of a Government office to postpone disclosure of cold case records —
the authority to compel agency heads to provide cold case records to the Board,
as well as with the provision giving certain congressional committees
“access to any records held or created by the Review Board.” My Administration
will treat these provisions of the Act consistent with the President’s
authority under the Constitution to protect confidential executive branch
materials and to supervise and guide executive branch officials. In
addition, my Administration will follow the standard for automatic
declassification and the categories of protected information set forth in
section 3.3(b) of Executive Order 13526, of December 29, 2009, as well
as in any subsequent revisions to that order.
Second, section 5 of the Act raises serious concerns
under the Appointments Clause of the Constitution.
That provision vests
in the Review Board responsibility to assess the applicability of statutory
grounds for withholding records and, in some cases, to make final decisions for
the executive branch on whether to disclose potentially privileged information
in covered records. The members of this Review Board will be principal
officers, for whom the President has the sole power of nomination and the
Senate has the sole power of advice and consent. Yet section 5(b)
purports to set restrictive qualifications for the members and to direct the
appointment of any replacement members, in the event of vacancies, within
60 days. These provisions conflict with the constitutional division
of responsibility between the President and the Congress in appointing
principal officers. I will make every effort to heed them but,
consistent with my constitutional authorities, will treat the qualifications as
advisory and will treat the timing requirement as permitting appointments after
60 days when additional time is necessary for me to find appropriate
candidates to appoint to the Review Board.
Third, section 5(f) of the Act purports to protect
the members of the Review Board from removal by the President except on grounds
of “inefficiency, neglect of duty, malfeasance in office, physical disability,
mental incapacity, or any other condition that substantially impairs the
performance of the member’s duties.” The Review Board will be responsible
for determining whether, when, and to whom to disclose potentially privileged
information in cold case records. The Congress may not insulate
decision makers who exercise core executive functions from plenary presidential
supervision. I will, therefore, comply with these removal restrictions
only insofar as they comport with my constitutional responsibility to supervise
the executive branch, including the protection of information subject to
executive privilege.
Relatedly, section 5(i)(2) of the Act provides that
a Federal court may enforce a subpoena issued by the Review Board pursuant to a
“lawful request of the Review Board.” I have signed the Act on the
understanding that the Board must request judicial enforcement of a subpoena
through the Department of Justice, consistent with 28 U.S.C. 516 and the
President’s supervisory authority under Article II of the Constitution.
Finally, the Administration considers civil rights
cold case records to be a matter of public importance. I have, therefore,
signed this Act without generally endorsing the establishment
of independent agencies to review and facilitate the declassification and
release of Government records. I also note that the Act does not contain
any authorization of funds to be appropriated for its implementation, which
will likely place a significant strain on agency resources. I
encourage the Congress to appropriate such funds.
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