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” (H.R. 1255) would nullify the Bush executive order and establish procedures to ensure the timely release of presidential records.
On January 22, 2008, Senate Majority Leader Harry Reid (D-NV) brought the “Presidential Records Act Amendments of 2007” (H.R. 1255) to the floor under the Senate’s unanimous consent rule that allows non-controversial bills to be considered on an expedited basis. However, Senator Jeff Sessions (R-AL) became the latest Republican senator to publicly put a hold on the bill and blocked floor consideration.
Last September, Senator Jim Bunning (R-KY) blocked a vote in the Senate on the bill, preventing floor action throughout the fall. However, on December 18, 2007, without explanation, Senator Bunning suddenly lifted his hold. The next day, Senator Joseph Lieberman (ID-CT) requested that the bill be passed. However, an anonymous Senator placed a secret hold on the bill.
Since the White House has not rescinded its threat to veto the bill, it is reasonable to assume that Senator Sessions is holding up the bill at the behest of the Administration. Senator Sessions gave no explanation on the floor as to why he was blocking the consideration of the presidential records bill.
Passage of the bill is even more important given the on-going controversy over the extent of missing e-mails from White House servers from 2003-2005. In response to questions in a federal court case, the White House recently admitted it had recycled its e-mail back-up tapes before October 2003 and only began retaining the back-ups starting at that point. The White House also admitted that “at this stage, this office does not know if any emails were not properly preserved in the archiving process,” in the period 2003-2005.
On October 1, a federal district court judge gave historians and researchers a partial, but significant victory in a lawsuit questioning the legality of Executive Order (EO) 13233. The judge struck down the section of the EO that allows a former president to indefinitely delay the release of records. In November, the Administration declined to appeal the judge’s decision. On March 14, 2007, by a vote of 333-93, the U.S. House of Representatives approved H.R. 1255, the “Presidential Records Act Amendments of 2007.” (H. Rept. 110-44)
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:
1.) 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.
2.) 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.
3.) 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.
4.) 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.