Critics Snap at Dean's Heels Over Sealed Records
By Jonathan Finer
Washington Post Staff Writer
Friday, December 12, 2003; Page A07
In his last news conference as governor of Vermont, Howard Dean chatted jovially with about a dozen members of the local press corps who knew he had bigger goals on his mind.
They presented him with a map of the United States and joked about which states would be key to his long-shot run for the White House. Then they asked Dean a more serious question: Why, just days earlier, had he invoked executive privilege to bar some of his official correspondence from public view for 10 years?
"Well, there are future political considerations," he answered. "We didn't want anything embarrassing appearing in the papers at a critical time in any future endeavor."
Dean now says his response was meant in jest -- when a follow-up question suggested he must be hoping to serve two terms as president, the room erupted in laughter, according to an audiotape of the meeting. But, as his front-running presidential campaign comes under increasing scrutiny, Dean's words, and his decision to keep some official records sealed longer than any recent Vermont governor, are coming back to haunt him.
"He wasn't giving the punch line of a joke; he was answering a question," said John Dillon of Vermont Public Radio, the only journalist at the Jan. 7, 2003, meeting to report Dean's remarks about his records. "He can sometimes be extremely candid."
In recent weeks Dean's Democratic rivals have attacked him for refusing to unseal the documents, and Judicial Watch, a conservative-leaning nonprofit group that wants the records released, has filed a lawsuit in a Vermont court. Dean's critics, including some of his Democratic rivals, say that his unwillingness to waive executive privilege smacks of a coverup and undermines his attempts to portray himself as a straight-talking candidate.
"This is a man who preaches about openness, and who has criticized the secretiveness of the Bush administration," said Judicial Watch President Tom Fitton, who has also sued to see records from Vice President Cheney's energy task force. "It is the epitome of hypocrisy."
But Dean and his former attorney have defended the decision as standard practice for outgoing governors, and said a judge should decide which papers to make public.
"Courts talk about the need for the executive to have frank discussions and receive good quality briefings," said David Rocchio, the lawyer who negotiated Dean's privilege arrangement with the state archivist. "Executive privilege is not meant to protect the executive -- it is meant to protect the effectiveness of government. To say this is unusual is a distortion."
One hundred forty-six boxes of Dean's correspondence -- an estimated 500,000 pages -- are housed in a storage facility in Middlesex, Vt., alongside records from various state agencies. They represent nearly half of the documents from his 11-year tenure as governor, with the rest available for public viewing at the state archives in Montpelier. The sealed documents will become available on Jan. 10, 2013.
Most federal officials seal records for at least 12 years, while in some states, such as New Jersey, governors have sealed theirs for 20 years or more. But in Vermont, which has only had an executive privilege doctrine since 1990, the two governors who directly preceded Dean sealed theirs for six years and 71/2 years, respectively.
"I think this is being blown way out of proportion; there is probably nothing there that is all that interesting," said Madeleine Kunin, who governed Vermont from 1985 to 1991. Kunin said she never sought to have her gubernatorial papers sealed any longer than six years.
Dean, who originally pushed to have his papers sealed for more than 20 years, has said that some papers must remain private to protect citizens who wrote to him about personal matters, such as their health. But according to a recent Boston Herald report, some such letters are among Dean's publicly available records.
Correspondence from the period in which Dean's privilege arrangement was negotiated shows that future political concerns played a role in the discussions.
In an Aug. 21, 2002, letter to Vermont archivist Gregory Sanford, Rocchio said, "It would be impossible to anticipate how opponents would misuse even the most innocuous of documents" and cited the " 'Willie Horton' example," a reference to the disclosure of a prison furlough granted to a convicted murderer by Michael S. Dukakis that helped doom the Massachusetts governor's 1988 presidential bid.
In a Sept. 4, 2002, memorandum, Sanford explained that he and Rocchio discussed how various time frames for releasing the documents would coincide with Dean's potential presidential terms.
Rocchio said in an interview that Dean's political ambitions were "an ancillary argument but not a core argument" in the discussions.
Dean said on a Fox News program earlier this month that he would release his papers when President Bush "unseals all of his" from his tenure as governor of Texas. A Texas state archivist said at the time that most of Bush's records are already available.
Sen. Joseph I. Lieberman (D-Conn.), who is also running for president, ran a television ad in New Hampshire last week that blasted Dean's handling of the records flap saying, "We Democrats are better than that." Republican National Committee Chairman Ed Gillespie told Vermont's GOP in a recent speech that Dean's statements on his records "were completely at odds with all the facts."
Responding to the mounting criticism, Dean said this week that he would leave the matter up to the judge in the Judicial Watch lawsuit. Deputy Secretary of State William A. Dalton, whose staff oversees the archives, said a decision could be months away, but he is preparing his staff for the possibility that the court, or Dean himself, will make some documents available sooner.
Fitton, of Judicial Watch, said that Dean is trying to delay the process. Last year, three Vermont newspapers sued for access to Dean's schedules. It took several months for a judge to rule that some should be made public. "It is clearly a stall tactic to say, 'Let the judge decide,' " Fitton said. "Once people realize that, the pressure to open them up himself will increase."
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