On January 21, in one of his first official acts, President Barack Obama revoked the Bush administration’s Executive Order 13233 that severely limited access by the public to presidential records. Click here to see a copy of President Obama’s new Executive Order 13489.
President Obama firmly committed his administration to a new policy of transparency by symbolically issuing the executive order on his first full day in office. The issuance of the Obama presidential records executive order ends a nearly eight year effort by historians, archivists, political scientists and other stakeholders in federal courts and on Capitol Hill to have the Bush EO revoked on legal grounds or by statute.
The language in the Obama executive order is similar to Executive Order 12667 issued by President Reagan in 1989 which was also in effect during the presidencies of George H.W. Bush and Bill Clinton. The Reagan executive order was revoked when President Bush issued EO 13233 in November 2001.
The Obama executive order restores the presumption that the incumbent president, not former presidents, their heirs or designees should be the one asserting claims of executive privilege. The executive order states that only “living” former Presidents can make claims of executive privilege. This removed one of the most egregious sections of the Bush EO that allowed heirs or designees to make claims of executive privilege for an indefinite period after the death of a former President.
In addition, the provisions in the Bush EO allowing former vice presidents to assert executive privilege are gone. In fact, the Obama EO makes it clear that vice presidential records are to be included under the definition of “presidential records.”
Executive Order 13489 also restores the function of the Archivist of the United States’ as an independent arbiter of initial claims of executive privilege. The executive order assumes the Archivist may release records 30 days after notifying the incumbent and former Presidents unless a claim of executive privilege is made.
The press release from the White House says the following:
“The Executive Order on Presidential Records brings those principles to presidential records by giving the American people greater access to these historic documents. This order ends the practice of having others besides the President assert executive privilege for records after an administration ends. Now, only the President will have that power, limiting its potential for abuse. And the order also requires the Attorney General and the White House Counsel to review claims of executive privilege about covered records to make sure those claims are fully warranted by the Constitution.”