Policy and News Updates for October 16, 2007

In This Issue: [click on the link to go to the corresponding section]

I. Presidential Records Act Amendments stalled
II. Group requests stop to White House email destruction

I. Presidential Records Act Amendments stalled

The Presidential Records Act, enacted in 1978 following the Watergate scandal and the resignation of President Nixon, established that presidential records belong to the American people, not to the president. The Act gave custody of the records to the Archivist of the United States, established that records should be released to the public 12 years after the end of a presidential administration, and recognized presidential authority to assert executive privilege.
On January 18, 1989, President Reagan, the first president to whom the Presidential Records Act applied, issued Executive Order 12667.
The order established a process to deal with potential executive privilege claims.

In November 2001, President Bush issued Executive Order 13233, overturning the Reagan E.O. and giving current and former presidents and vice presidents broad authority to withhold presidential records or delay their release indefinitely. E.O. 13233 requires the incumbent president to sustain the executive privilege claim of a former president unless a court order is issued to reject the claim. The E.O. also gives “designees” of the former president the right to assert privilege, allowing relatives and others to delay the release of the president’s records. Also under the Bush E.O., the Archivist must wait for both the current and former president to review the records to be released, which could lead to indefinite stalling. As recently reported by the New York Sun, President Clinton is accusing the current Bush administration of delaying the release of the former president’s records. In late September Mr. Clinton said, “I want to open my presidential records more rapidly than the law requires, and the current administration has slowed down the opening of my own records.”

Legislation currently being held up in the Senate would nullify the Bush executive order and establish procedures for the timely release of records. The “Presidential Records Act Amendments of 2007” (H.R. 1255; House Report 110-44) would reverse the Bush E.O. by establishing a deadline for the review of records, limiting the authority of former presidents to withhold records, requiring the president to make privilege claims personally, and eliminating the ability for Vice Presidents to assert executive privilege claims over vice presidential records. On March 14, 2007, by a vote of 333-93, the U.S. House of Representatives approved H.R. 1255.
The legislation is currently being held up in the Senate by Sen. Jim Bunning [R-KY]. On September 24, Sen. Bunning objected to floor consideration of the bill, but did not state the reasons for his opposition.

On October 1, U.S. District Judge Colleen Kollar-Kotelly rejected part of President Bush’s 2001 executive order in a civil lawsuit filed by the American Historic Association. The judge struck down the section of the E.O. that allows a former president to indefinitely delay the release of records.

In comments on the Senate floor on October 15, Sen. Jeff Bingaman [D-NM], the sponsor of the Senate version of the bill (S. 866), spoke of the need to pass H.R. 1255. He said, “The people of this Nation hired the President. His work is undertaken on behalf of the people. Can anyone doubt that the Nation is made stronger and our Government and the electorate are better served by the study of the actions of past Presidents?”

TAKE ACTION: Call Sens. Bunning and McConnell to ask them to allow the presidential records reform bill (H.R. 1255) to come to the Senate floor for a vote.

II. Group requests stop to White House email destruction

Illustrating the importance of legislation to restore the Presidential Records Act, Citizens for Responsibility and Ethics in Washington (CREW) filed a request for a Temporary Restraining Order (TRO) last week that would require the White House to preserve backup tapes that might contain copies of millions of e-mail messages that should have been preserved under the Presidential Records Act. CREW filed a lawsuit last month against the Executive Office of the President, the White House’s Office of Administration, and the National Archives and Records Administration, stating that the Bush administration failed to meet its legal obligations under the Presidential Records Act by not preserving millions of e-mail messages since October 2003. The National Security Archive, an OpenTheGovernment.org coalition partner, also filed a lawsuit last month in the U.S. District Court for the District of Columbia against the White House seeking the recovery and preservation of the emails.

As reported in the Sept. 6 edition of the Policy and News Updates, at least 5 million emails went missing from March 2003 to October 2005, according to a report by CREW. The missing emails were discovered by the White House in 2005, according to a briefing given to House Oversight and Government Reform Committee staff by Keith Roberts, the Deputy General Counsel of the White House Office.

News from Coalition Partners and Others

National Freedom of Speech Week celebrated

Several of our coalition partners are participating in National Freedom of Speech Week, October 15-21. Visit www.freespeechweek.org to learn more and read ideas for celebrating.

Visit the Policy and News Updates Archive here