Executive Order Action Alert
YOUR HELP IS NEEDED!
Please request that your Representative become an original co-sponsor
of "The Presidential Records Act Amendments of 2002" being introduced
by Representative Stephen Horn (R-CA) on April 11. Request that your Representative
write you a letter in response to your request. The goal of this advocacy
effort is to see the legislation introduced with well over 100 House members
as co-sponsors—the higher the number, the stronger the message will
be to the Bush Administration. A hearing on the legislation is tentatively
scheduled for April 11, 2002.
PLEASE TAKE ACTION TODAY!
The historical and archival communities are urged to contact members
of Congress and encourage them to be "original cosponsors" of
this legislation. A simple phone call to the member of the House of Representatives
that represents you will do: the Capitol switchboard telephone number
is 202/224-3121.
On March 7, 2002, Representative Stephen Horn (R- CA), Chairman of the
Subcommittee on Government Efficiency, issued a "Dear Colleague"
letter to members of the House of Representatives, requesting co-sponsors
for a bill designed to "fix a serious, but readily solvable, problem
in the implementation of the Presidential Records Act of 1978."
The letter that was distributed to all members of the 107th Congress
states: "The Presidential Records Act of 1978 was a landmark law.
It declared for the first time that the official records of a former President
belong to the American people and imposed 'an affirmative duty' on Federal
officials 'to make such records available to the public as rapidly and
completely as possible consistent with the provisions of this Act.' Unfortunately,
implementation of the Act has been bogged down by excessive delays as
the Administration decides whether to assert 'executive privilege' claims
over the records of former President Reagan."
According to the Horn letter, "Last November, the Administration
issued an Executive Order that prevents the disclosure of records 'unless
and until' the former and incumbent President affirmatively approves their
release. The Order also requires Federal officials to honor executive
privilege claims by a former President regardless of the merits of the
claim. Members of Congress of both parties, as well as many legal experts,
historians, and archivists have pointed out that these and other features
of the Executive Order violate both the letter and the spirit of the Presidential
Records Act. My bill preserves the constitutional rights of former and
incumbent Presidents to assert executive privilege. However, unlike the
Executive Order, it does so in a manner that is fully consistent with
the Act."
Horn's letter also attaches a copy of the draft bill entitled, "The
Presidential Records Act Amendments of 2002." In the bill summary
the Representative writes:
"The Presidential Records Act Amendments of 2002 establishes statutory
procedures to govern the assertion of executive privilege claims by
a former or incumbent President over records covered by the Presidential
Records Act. It preserves the constitutional right of a former or incumbent
President to assert privilege claims, but does so in a way that complies
with the framework and intent of the Presidential Records Act. It supersedes
the procedures established in Executive Order 13233."
"The bill requires the Archivist to provide advance notice of
20 working days to the former and incumbent Presidents before releasing
presidential records in accordance with the provisions of the Act. The
Archivist would release the records upon the expiration of this 20-day
period, except any records (or parts of records) for which the former
or incumbent President asserts a claim of privilege. The Archivist could
extend the 20-day period for an additional 20 days if the former or
incumbent President demonstrated a need for additional time to review
the records. Additional time should rarely be needed. The former and
incumbent Presidents have access to the records and could conduct their
reviews well before the time the records are ready for public release.
The Archivist also would have thoroughly categorized and screened the
records before a notice is issued, which should greatly facilitate reviews
by the former and incumbent Presidents."
"The bill also requires that any claim of privilege be in writing
and signed by the former or incumbent President, specify the records
to which it applies, and state the nature and grounds of the privilege
claim. Notices of the proposed release of records, as well as any privilege
claims, would be made public. If the former President submitted a privilege
claim, the Archivist would withhold the records covered by that claim
for another 20 working days. This would permit the former President
to seek judicial enforcement of his privilege claim, as already provided
for in the Presidential Records Act. After expiration of this 20-day
period, the Archivist would release the records unless a court ordered
their continued withholding. This approach places the burden of establishing
a privilege claim on the former President. Privilege claims should be
extremely rare, given the protections already built into the Act and
the age of the records."
"If the incumbent President submitted a privilege claim, the Archivist
would withhold the records unless and until the incumbent President
withdrew the claim or there was a final, non-appealable court order
directing the Archivist to release the records. This approach recognizes
the legal and practical reality that the Archivist must honor a privilege
claim by an incumbent President."
"The bill would apply similar procedures to requests for access
to records by Congress and the courts. The time periods, however, would
be modified to ensure compliance with deadlines imposed by subpoenas
or other legal process. Also, the bill does not specify an outcome if
the incumbent President claimed privilege in response to a congressional
or judicial access request. Disputes between the incumbent president
and either the Congress or the courts would be left for resolution on
a case-by-case-basis."
"The bill makes several conforming changes to existing provisions
of the Presidential Records Act. It recognizes that authority to claim
executive privilege is personal to a former or incumbent President and
cannot be delegated to their representatives. This is consistent with
current legal theory and practice concerning executive privilege. It
also recognizes that a former or incumbent Vice President cannot claim
presidential privileges. Finally, the bill provides that Executive Order
13233 shall have no force or effect."
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