By Zachary Roth - January 22, 2009, 12:04PM
The experts' verdicts on the potential impact of President Obama's executive order on presidential records are starting to come in. And they're bolstering our
initial take that Obama's move could significantly boost efforts to release crucial records that the Bush administration has fought to keep secret.
Doug Kmiec, a constitutional law professor at Pepperdine law school and expert on executive privilege, told TPMmuckraker that the order makes it harder for former presidents to block the release of their documents.
And, crucially, he said it could impact current high-profile struggles over Bush's records, "whether it be the dismissal of US Attorneys, whether it be other assertions of executive privilege dealing with White House emails and the like."
Congress and the Bush White House have been struggling over a key memo that details the level of White House involvement in the US Attorney firings of 2006. And open-government groups have sued the Bush administration to gain access to White House emails on a range of subjects, including the Valerie Plame leak probe and the decision to invade Iraq.
Kmiec, a noted conservative legal scholar who nonetheless supported Obama's campaign, said he had done some work with the Obama transition team, and had offered his assistance to the new administration.
Kmiec said the order appears to shift power from former presidents to the current administration, and to the National Archivist. Under an order issued by President Bush, former presidents and vice presidents could compel the Archivist to keep documents secret. Under the new order, former presidents can still ask the Archives to do so. But the burden of proof is squarely on the former president to prove that secrecy is in the nation's interest, and the Obama administration can decline the request if it's not convinced. That approach reorients things toward the original intention of the Presidential Records Act, passed in the wake of Watergate.
moreBy the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish policies and procedures governing the assertion of executive privilege by incumbent and former Presidents in connection with the release of Presidential records by the National Archives and Records Administration (NARA) pursuant to the Presidential Records Act of 1978, it is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a) "Archivist" refers to the Archivist of the United States or his designee.
(b) "NARA" refers to the National Archives and Records Administration.
(c) "Presidential Records Act" refers to the Presidential Records Act, 44 U.S.C. 2201-2207.
(d) "NARA regulations" refers to the NARA regulations implementing the Presidential Records Act, 36 C.F.R. Part 1270.
(e) "Presidential records" refers to those documentary materials maintained by NARA pursuant to the Presidential Records Act, including Vice Presidential records.
(f) "Former President" refers to the former President during whose term or terms of office particular Presidential records were created.
(g) A "substantial question of executive privilege" exists if NARA's disclosure of Presidential records might impair national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch.
(h) A "final court order" is a court order from which no appeal may be taken.
Sec. 2. Notice of Intent to Disclose Presidential Records.
(a) When the Archivist provides notice to the incumbent and former Presidents of his intent to disclose Presidential records pursuant to section 1270.46 of the NARA regulations, the Archivist, using any guidelines provided by the incumbent and former Presidents, shall identify any specific materials, the disclosure of which he believes may raise a substantial question of executive privilege. However, nothing in this order is intended to affect the right of the incumbent or former Presidents to invoke executive privilege with respect to materials not identified by the Archivist. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.
(b) Upon the passage of 30 days after receipt by the incumbent and former Presidents of a notice of intent to disclose Presidential records, the Archivist may disclose the records covered by the notice, unless during that time period the Archivist has received a claim of executive privilege by the incumbent or former President or the Archivist has been instructed by the incumbent President or his designee to extend the time period for a time certain and with reason for the extension of time provided in the notice. If a shorter period of time is required under the circumstances set forth in section 1270.44 of the NARA regulations, the Archivist shall so indicate in the notice.
Sec. 3. Claim of Executive Privilege by Incumbent President.
(a) Upon receipt of a notice of intent to disclose Presidential records, the Attorney General (directly or through the Assistant Attorney General for the Office of Legal Counsel) and the Counsel to the President shall review as they deem appropriate the records covered by the notice and consult with each other, the Archivist, and such other executive agencies as they deem appropriate concerning whether invocation of executive privilege is justified.
(b) The Attorney General and the Counsel to the President, in the exercise of their discretion and after appropriate review and consultation under subsection (a) of this section, may jointly determine that invocation of executive privilege is not justified. The Archivist shall be notified promptly of any such determination.
(c) If either the Attorney General or the Counsel to the President believes that the circumstances justify invocation of executive privilege, the issue shall be presented to the President by the Counsel to the President and the Attorney General.
(d) If the President decides to invoke executive privilege, the Counsel to the President shall notify the former President, the Archivist, and the Attorney General in writing of the claim of privilege and the specific Presidential records to which it relates. After receiving such notice, the Archivist shall not disclose the privileged records unless directed to do so by an incumbent President or by a final court order.
Sec. 4. Claim of Executive Privilege by Former President.
(a) Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist's determination as to whether to honor the former President's claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege. Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist's determination with respect to the former President's claim of privilege.
(b) In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order. The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.
Sec. 5. General Provisions.
(a) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Sec. 6. Revocation. Executive Order 13233 of November 1, 2001, is revoked.
BARACK OBAMA
THE WHITE HOUSE,
January 21, 2009
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