White House chief's notebook raises question: What's a 'record'?

Former White House Chief of Staff Andrew Card sought to circumvent the Presidential Records Act -- which has governed the ownership of presidential and vice presidential records since President Nixon's shootout over the White House tapes -- by keeping a secret record of top government jobs paired with running lists of possible replacements.

Card, who left the White House last spring, described his "hit-by-a-bus" workbook to journalist Bob Woodward. He said he kept a roster of qualified candidates in a blue spiral notebook that he purchased himself, "so it wouldn't be considered a government document or presidential record that might someday be opened to history," according to Woodward's latest book, State of Denial. Although Card imagined his notebook would be for his eyes only, he revealed its existence to Woodward, adding that his list of possible replacements for controversial Defense Secretary Donald Rumsfeld ran to 11 names.

Experts in the legalities and mechanics of maintaining presidential records consulted by National Journal challenged Card's interpretation. Whether Card used a dime-store notebook or cocktail napkins, or believed his notebook was personal rather than government property, such qualifiers were irrelevant to the document's definition as a presidential record that should be preserved and archived for historical purposes.

"In this case, it was a conscious effort to try to get around the statute," said Scott Nelson, senior attorney with the Public Citizen Litigation Group. The idea that a notebook purchased privately might serve as a shield from the law "is just ridiculous," Nelson added, because of Card's own description of how he intended to use his personnel lists. "The definition of presidential records includes documents created by members of the president's immediate staff for the purposes of carrying out their official duties."

Although interpretations such as Card's have never been tested in court and no independent policing exists in real time, the general legal guidance offered to White House staffers at the start of each administration (including by then-White House Counsel Alberto Gonzales early in 2001) is that if a document is drafted for use by the government -- whether actually used or not -- it would still be a presidential record based on its intended use.

Card, caught between a boast of being well prepared as chief of staff and a dubious legal embrace of a once-secret notebook, explained to MSNBC this week, "I felt very strongly that the president should be prepared to make changes in case somebody got hit by a bus. And so it included every senior staff position at the White House, including the chief of staff's position and all of the positions in the Cabinet."