The end may finally be in sight to the seven-year battle historians and archivists have waged to overturn President Bush’s Executive Order 13233 of November 2001 that restricted access to presidential records. On January 7, 2009, the House of Representatives approved H.R. 35, the “Presidential Records Act Amendments of 2009,” by an overwhelmingly bi-partisan vote of 359-58. H.R. 35 was chosen by the House leadership as the first piece of substantive legislation passed in 2009 as a symbol of government transparency.
President-elect Obama has already committed himself to revoking EO 13233. However, the hope is that the Senate will move swiftly to pass the bill in time for the new president to sign it soon after his inauguration.
An identical bill (H.R. 1255) to overturn Executive Order 13233 overwhelmingly passed the House in March 2007. At the time the legislation was considered in the House, the Bush administration issued a veto threat.
Similar legislation cleared the Senate Homeland Security and Government Affairs Committee by voice vote in the summer of 2007. Senator Joseph I. Lieberman (ID-CT), chairman of the Senate Homeland Security and Governmental Affairs Committee, worked tirelessly to get the bill through the Senate the last two years. However, a series of Republican senators put consecutive holds on the bill and it never came to the Senate floor for a vote.
Senator Lieberman’s task may be easier this year. First, with President Bush no longer in office, Republican senators like Jim Bunning (R-KY) and Jeff Sessions (R-AL) will likely not want to be seen as holding up passage of a pro-transparency bill. It was widely assumed that the Republican senators who put the holds on the bill did so at the behest of the White House. In addition, with their new larger majority the Democratic leadership will likely have the 60 votes they need to overcome any possible Republican efforts to keep the bill off the floor.
As passed by the House, H.R. 35 would require the following:
- Overturn Bush Executive Order 13233: 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, which 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 2009” would nullify the Bush executive order and establish procedures to ensure the timely release of presidential records.
- Establish a Deadline for Review of Records: Under the Bush executive order, the Archivist of the United States must wait for both the current and the relevant former president to approve the release of presidential records, meaning that the review process could 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, even designees of a 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 designees, 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 held only by presidents.
The bill would also require the Archivist of the United States to deny access to original presidential records to any designated representative of a former president if the designee had been convicted of a crime relating to the review, retention, removal, or destruction of records of the archives. The bill language was inspired by the well-publicized theft of documents from the National Archives by President Clinton’s former National Security Advisor Samuel R. (Sandy) Berger. On April 1, 2005, Berger pleaded guilty to one misdemeanor count of unauthorized removal and retention of classified documents.