Posted on 12/26/2003 8:18:18 PM PST by mansion
Last January, as his presidential campaign was stirring to life, Howard Dean was asked why he had decided to keep nearly half of his records as governor of Vermont under seal until 2013.
"Well, there are future political considerations," Dr. Dean told statehouse reporters. "We didn't want anything embarrassing appearing in the papers at a critical time in any future endeavor."
Dr. Dean now says he was joking about why he invoked executive privilege to keep 145 boxes of his official records — about 47 percent of them — under a 10-year seal. But there is ample evidence in the letters and e-mail correspondence between the former Vermont governor's counsel, David M. Rocchio, and the state archivist, D. Gregory Sanford, that a possible presidential race was indeed part of the discussions concerning how long to keep the records private.
And with Dr. Dean now leading in polls in the race for the Democratic presidential nomination, many of his rivals are accusing him of harboring secrets, while a conservative watchdog group called Judicial Watch has sued in Vermont state court to open the records.
Dr. Dean said earlier this month that he would let the state judge decide which records should be opened. And this week, Vermont's attorney general, William H. Sorrell, who will represent both the state and Dr. Dean, filed his official response to the suit. He said that executive privilege had been often upheld by Vermont's top court and contended that sealing some records for a "reasonable but brief period" serves the public interest by encouraging governors to save and preserve their papers.
Dr. Dean and his top aides say that the sealing of such records is commonplace. Indeed, Dr. Dean has said he is not even entirely sure what is in the records, having left their selection up to Mr. Rocchio. But battles over executive privilege are not new to the former governor.
The Conservation Law Foundation, for instance, tried on at least four occasions to get Dr. Dean to release documents showing his contacts with Vermont industry and utility officials. Each time, the governor's counsel refused to hand them over, citing executive privilege, and the foundation decided it was not worth the time or expense to pursue the matter.
"I assume they were his perspectives on development projects or on regulatory conflicts," said Mark Sinclair, a staff lawyer for the foundation, a New England environmental group. "And I think Dean was also very concerned about anything that might be used against him in the future and he just wanted to be double careful that anything that looked embarrassing or compromising was kept out of the public's eyes."
Still, Mr. Sinclair said, he did not think the records contained anything that would rock the campaign. "There's no smoking gun," he said.
Peter Freyne, the political columnist for an alternative weekly in Burlington called Seven Days, also tangled frequently with the governor and once sought access to his records. In that instance, it was a lawsuit brought by his and two other Vermont newspapers for the governor's official schedule, hoping to pinpoint how much time Dr. Dean was spending on his nascent presidential campaign.
In November 2002, the state's high court ruled that the newspapers were entitled only to those parts of the governor's schedule that related directly to his presidential bid. The results were page after page of blank spaces interspersed with a handful of snippets that the newspapers already knew. "Useless," Mr. Freyne said.
But he also said he did not think there was much hidden in the sealed boxes. "The whole issue has been blown way, way out of proportion," Mr. Freyne said.
Mr. Sorrell, who had served as one of Dr. Dean's cabinet officers before becoming attorney general, said Dr. Dean was not known for writing e-mail messages or long memorandums to his staff. "He would once in a while write a little note in the margin or something," Mr. Sorrell said. But he added that Dr. Dean did not write long memorandums and certainly nothing blistering.
The Vermont Supreme Court extended executive privilege to cover a governor's official papers in a 1990 ruling, so it has affected only three former governors. Madeleine Kunin sealed 46 percent of her official papers for six years when she stepped down in 1990. In 1991, after Gov. Richard Snelling died of a heart attack, his aides sealed 40 percent of his records for seven and a third years.
But Mr. Rocchio negotiated to have Dr. Dean's records sealed for 10 years — long enough, his opponents have noted, to carry the seal through what could be two Dean presidential administrations.
Trying to keep this issue from becoming a big issue in the campaign, Dr. Dean has said he would consider a settlement that maintained the principle of executive privilege while maintaining the privacy of those who corresponded with him. "We're willing to be accommodating, because we think that transparency is important," he said earlier this month. "But executive privilege is a serious issue, and there are private things in there that can't be let out. It's not fair."
An examination of the correspondence between Mr. Rocchio and Mr. Sanford shows that future political considerations were indeed a part of the discussion.
In an Aug. 21, 2002, memorandum to Mr. Rocchio, Mr. Sanford said he was asked to "further develop the idea" that the term for the sealed documents might be automatically extended if Dr. Dean were a presidential candidate when it expired.
"The Willie Horton example was raised," Mr. Sanford wrote, referring to television ads about the pardon of a convicted felon that Republicans used against former Gov. Michael S. Dukakis of Massachusetts in 1988 when he was the Democratic presidential nominee.
Mr. Sanford, however, raised a caution. "Setting new barriers to access in an attempt to anticipate attacks would be, at best, unfortunate," he wrote. "Ironically, such barriers would probably become an issue, detracting from the governor's proud record of achievement."
The discussion about political ramifications was only one part of the negotiations, said William A. Dalton, Vermont's deputy secretary of state, who also took part in them. And the talks were limited to the length of time the papers would be sealed, he said, not what they contained.
Eventually, the idea of tying the closing to a presidential bid was abandoned in favor of a flat 10-year limit.
Keeping some documents sealed for a time is important, Mr. Roccio said, because it allows for a franker exchange when people are not afraid that their words will quickly become public, and because there are "lots of sensitive material about people you recruit for jobs, businesses you recruit and try to save, union negotiations."
He acknowledged there were also political considerations. "People who are in competition with him right now will look for ways to distort him based on his record," Mr. Rocchio said. "That is an extra argument."
The issue is not likely to be settled soon. At the very least, Mr. Sorrell said, a resolution is months away.
Even if Dr. Dean was to renounce his claim of executive privilege over the sealed documents, they would not immediately become public, Mr. Sorrell said. State statutes mandate that some records remain sealed, like those involving personnel or pending lawsuits. Thus, someone would have to go through all the boxes and decide what should be released.
Dean has a habit of publicizing that he will cheat, hide, change opinions, and pander.
A strange variant of honesty I don't think will get him far as a politician...but hey, maybe it's a new kind of politics.
Especially, stuff that has to do with, oh, say, Enron...
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