On June 13, 2007, the Senate Homeland Security and Governmental Affairs Committee, by voice vote, approved (H.R. 1255) and a companion bill (S. 886), the “Presidential Records Act Amendments of 2007.” The bills are now ready for consideration on the Senate floor. However, we have learned that a temporary hold has been put on the bill to allow concerns expressed by Senator Tom Coburn (R-OK) and some other Republicans to be addressed before proceeding with floor action.
On March 14, 2007, by a vote of 333-93, the U.S. House of Representatives approved H.R. 1255.
In November 2001, President George W. Bush issued Executive Order 13233, which gave current and former presidents and vice presidents broad authority to withhold presidential records or delay their release indefinitely. The Presidential Records Act Amendments of 2007 would nullify the Bush executive order and establish procedures to ensure the timely release of presidential records.
The National Coalition for History is asking everyone in the historical and archival community to contact their U.S. Senators to ask them to urge Majority Leader Harry Reid to bring the “Presidential Records Act Amendments of 2007″ (H.R. 1255/S. 886) to the Senate floor. All Senate offices can be reached through the U.S. Capitol switchboard at (202)-224-3121.
Under the Presidential Records Act, presidential records are supposed to be released to historians and the public 12 years after the end of a presidential administration. In November 2001, President George W. Bush issued Executive Order 13233 that overturned an executive order issued by President Reagan and gave current and former presidents and vice presidents broad authority to withhold presidential records or delay their release indefinitely. The “Presidential Records Act Amendments of 2007” establishes procedures to ensure access to presidential records in the following way:
- Establish a Deadline for Review of Records. Under the Bush executive order, the Archivist must wait for both the current and former president to approve the release of presidential records, a review process that can continue indefinitely. Under the bill, the current and former president would have a set time period of no longer than 40 business days to raise objections to the release of these records by the Archivist.
- Limit the Authority of Former Presidents to Withhold Presidential Records. Under the Reagan executive order, a former president could request that the incumbent president assert a claim of executive privilege and thereby stop the release of the records. If the incumbent president decided not to assert executive privilege, however, the records would be released unless the former president could persuade a court to uphold the former president’s assertion of the privilege. The Bush executive order reversed this process and required the incumbent president to sustain the executive privilege claim of the former president unless a person seeking access could persuade a court to reject the claim. In effect, the Bush order gave former presidents virtually unlimited authority to withhold presidential records through assertions of executive privilege. The legislation would restore the Reagan approach, giving the incumbent president the discretion to reject ill-founded assertions of executive privilege by former presidents.
- Require the President to Make Privilege Claims Personally. Under the Bush executive order, designees of the former president could assert privilege claims after the death of the president, in effect making the right to assert executive privilege an asset of the former president’s estate. The bill would make clear that the right to claim executive privilege is personal to current and former presidents and cannot be bequeathed to assistants, relatives, or descendants.
- Eliminate Executive Privilege Claims for Vice Presidents. In an unprecedented step, the Bush executive order authorized former vice presidents to assert executive privilege claims over vice presidential records. The bill restores the long-standing understanding that the right to assert executive privilege over presidential records is a right held only by presidents.