The most important House action for the historical and archival communities was the passage of H.R. 1255, the “Presidential Records Act Amendments of 2007.” The National Coalition for History (NCH) issued a legislative alert to the historical and archival communities that generated nearly 1,700 letters to the House in support of the bill. I would like to thank everyone who responded to the alert!
H.R. 1255 passed the House on March 14, 2007, by a vote of 333-93. It is key to note that 104 Republicans voted for the bill with 93 opposed. Democrats unanimously supported the bill. This overwhelming level of support may prove to be critical down the road since it is well above the two-thirds total that would be required to override a possible presidential veto. On March 13, 2007, the Office of Management and Budget (OMB) issued a Statement of Administration Policy (SAP) threatening a presidential veto should the legislation pass the Congress. The SAP alleges that H.R. 1255 would cause a proliferation of lawsuits from those seeking access to presidential records. OMB also asserted that Congress was encroaching on the constitutionally-based prerogative of executive privilege.
The floor debate, and text of the bill, can be found in the Congressional Record.
See how your Member of the House voted on the bill.
View a PDF copy of the OMB’s Statement of Administration Policy in opposition to H.R. 1255.
The same day the legislation passed the House, Senator Jeff Bingaman (D-NM) and Senate Judiciary Committee Chairman Patrick Leahy (D-VT) introduced a companion bill (S. 886) in the Senate. The bill was referred to the Senate Committee on Homeland Security and Governmental Affairs.
As passed by the House, H.R. 1255 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 2007” 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 amendment 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.