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 and was 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 The Reagan executive order was revoked when President Bush issued EO 13233 in November 2001.

Executive Order 13489 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.”

President Obama’s executive order 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.

Legislation (H.R. 35)

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.

In light of the issuance of President Obama’s Executive Order 13489 it is unclear whether the Senate will take action on H.R. 35. The Obama executive order clearly removes many of the concerns historians, archivists, political scientists, journalists and the general public had with the Bush EO. However, it is still preferable to have the changes made by statute.

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