The Fight over Presidential Records: Back on the Front Burner
Lee White, November 2007
Long-time readers of this column are aware of the long drawn-out, six-year battle that the historical and archival communities have been waging to overturn the Bush administration's Executive Order (EO) 13233. Under the Presidential Records Act, presidential records are legally required 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 EO 13233, giving current and former presidents, their heirs or designees, and former vice presidents broad authority to withhold presidential records or delay their release indefinitely.
Less than a month after EO 13233 was issued, a lawsuit questioning the order's legality was brought against the federal government by Public Citizen on behalf of itself, the American Historical Association (AHA), National Security Archive (NSA), the Organization of American Historians (OAH), the Reporters Committee for Freedom of the Press, the American Political Science Association (APSA), and historian Stanley Kutler.
After years of filings and counter filings, on October 1, 2007, a federal district court judge gave historians and researchers a partial, but significant victory in the suit. Judge Colleen Kollar-Kotelly struck down the section of the EO that allows a former president to indefinitely delay the release of records. However, the judge did not rule on the constitutionality of the executive order itself, narrowly crafting her decision to address only specific provisions in the order.
Unfortunately, Judge Kollar-Kotelly did not rule on the legality of the sections of the executive order allowing heirs and designees of former presidents, and former vice presidents, the authority to control the release of documents, calling them "unripe" since no records have yet been withheld pursuant to those provisions. However, the judge left open the right for the plaintiffs to challenge these provisions in the future.
According to press reports, the Bush administration is reviewing its options concerning an appeal of the decision.
When legislation to overturn Executive Order 13233 was being considered in the House, the Bush administration had threatened to veto the bill; but the threat was negated by a veto-proof vote of 333-93 in favor of the legislation in April.
Similar legislation cleared the Senate Homeland Security and Government Affairs Committee by voice vote this summer. However, when the Democratic leadership sought to bring the bill to the floor on September 29, Senator Jim Bunning (R-Ky.) held up consideration of the bill.
On October 2, Joeseph Lieberman (I-Conn.), the committee's chair, called for an end to the hold that has been blocking Senate consideration of "The Presidential Records Act Amendment of 2007" (H.R. 1255).
"While I am pleased that the court struck down a troubling section of this Executive Order, the ruling underscores the need to replace the entire order with a process that provides greater public access to presidential records," Lieberman said. "This bill was offered in the spirit of the First Amendment and the principle of freedom of information upon which our nation was founded. I call on my colleagues to refrain from procedural roadblocks and allow the public access to the important historical records of their elected leaders."
Then former President Bill Clinton jumped into this intensifying political maelstrom. A story in the October 4, 2007, New York Sun reported that President Clinton had recently asserted that the Bush administration was at fault for delaying the release of his records.
"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," the former president was quoted as saying in the Sun article. "And I do think that I will have extra responsibilities for transparency should the American people elect Hillary president," he went on to say. The White House had no reaction to President Clinton's statement.
Meanwhile, Judicial Watch, a conservative watchdog group, has filed suit against the National Archives seeking release of Senator Hillary Clinton's (D-N.Y.) records from when she was First Lady. The group alleges that the National Archives has not responded to its request for the Clinton documents in a timely manner. The National Archives has countered that there were 156 Freedom of Information Act requests pending before Judicial Watch filed its request and that Judicial Watch has shown "no irreparable harm" that would result if the records were not released on an expedited basis.
In a court filing in response to the lawsuit, Emily Robison, the acting director of the William J. Clinton Presidential Library said that there were 287 pending FOIA requests, which involve the processing of approximately 10,500,000 pages of presidential records. She estimated that it would take through January 2008 to complete processing of the 10,000 pages of records representing the first portion of the First Lady's records requested by Judicial Watch. The Clinton Presidential Library, has only six archivists on staff for processing all of its pending FOIA requests for textual and electronic records, the director stated.
—Lee White is the executive director of the National Coalition for History.