Past Perfect?

Obama’s Records Act order heartens historians

When President Nixon slunk out of the White House, he wasn’t exactly in a sharing mood. In his fight to keep his records under lock and key, he had history on his side: up to that point, presidential records, from George Washington’s administration onwards, had been presumed to be the personal, private property of the ex-presidents, free to be donated, bequeathed, sold, or destroyed as they saw fit.

Nixon’s records were captured by a one-time act of Congress, but in 1978, a more permanent fix, the Presidential Records Act, was passed, establishing that the public would, via the National Archives, own and control the records of past presidents. While just a handful of presidents have been subject to the PRA, the law makes some records available just five years after a president leaves office, and nearly all must be opened after twelve years.

In his first year in office, President George W. Bush issued an executive order allowing presidents—and vice presidents—to claim privilege over their papers as long as they were still alive. It also gave past presidents’ families, or a series of designated representatives, the power to withhold documents. The order seemed to make it possible for a president to deny access in perpetuity, effectively reducing the National Archives to a taxpayer-funded private gatekeeper.

While no other attack on the Act drew as much ire from archivists, historians, and open government advocates as President Bush’s 2001 order, the PRA—which, by its very nature, seeks to limit presidential power—has never been an executive branch favorite. From Ronald Reagan, the first president subject to its reach, onwards, every administration has acted to curtail the PRA.

That streak was broken one week ago, when, on his first full day in office, President Barack Obama signed a new executive order that wholly repealed Bush’s executive order, essentially reverting to the standard established as Reagan left office.

“It’s the first time a president has come out in support of the Presidential Records Act,” says Bruce Montgomery, an archivist at the University of Colorado who has written on the history of the act. “I think it is remarkable.”

The timing of the move is dramatic, but perhaps not so surprising. Obama’s campaign had promised to reverse Bush’s order. And on September 18, 2008, former Clinton Chief of Staff John Podesta, who had been rumored throughout the summer to be in line to run a potential Obama transition, testified before the Senate Judiciary Committee. Podesta, long counted as a major governmental ally by transparency advocates, said that Bush’s order had “seriously undermined the intent of the PRA” and that the next president should act to revoke it.

Obama’s order undoes the Bush changes that most irked proponents of the act, like the familial right to privilege, and—to the sure chagrin of Dick Cheney—pointedly notes that the act applies to vice presidential records as well. Under the Obama rules, as under the Reagan rules, any past president seeking to staunch the release of a requested record ripe for release must have the consent of the current president, who, in turn, must consult the deputy attorney general in charge of the Office of Legal Counsel, as well as the president’s counsel. While events of the Bush administration have called the independence of these presidentially-appointed legal officials into question, the order nonetheless puts a few more people in the decision chain, and restores the presumption that only the sitting president can staunch the public’s access rights.

Experts point to one potential flaw in the order. Under the Act, before the Archives can release a requested record, thirty days notice must be given to both the current president and the ex-president who created the record. Obama’s order suggests that the incumbent president has just that month to invoke executive privilege over the record, or to agree with the ex-president’s privilege claim. But there’s language that seems to allow the incumbent president to take more time—“a time certain and with reason”—without making a decision, merely by notifying the National Archivist that that’s his intention.

“It’s a little vague and mushily written,” says Meredith Fuchs, the general counsel of the National Security Archive, a private research organization based at George Washington University.

“Who decides what ‘time certain’ is? What if the president says ‘I need another year’?” asks Lee White, who leads the National Coalition for History, an advocacy group of over sixty-five historical and archival groups that has been trying to undo the Bush order for over seven years.

“There’s no redress for the person seeking the records, and the Archivist of the United States in an executive appointee, and can’t compel the president to do anything,” White says. “I could see the possibility of abuse there.”

Still, the openness community is extremely heartened. “This is a huge improvement,” says Fuchs. But as grateful as she and other advocate may be, a revocable executive order, like Obama’s, is not guaranteed to outlast the president who issued it.

“We lucked out because now we have someone who is totally supportive, but we’ve just been through eight years of hell,” says White. “We’d like to see legislation, simply because, as you just saw, a new president can come in and write a new order,”

The first bill passed by the 111th House, two weeks before Obama took office and issued his order, was a set of amendments to the PRA that would enshrine similar changes in statute, making it much harder for any future president to issue an executive order thwarting the Act.

But before the bill can arrive on President Obama’s desk, it must also clear the Senate. In 2007, a similar bill, S.B. 886, was reported out of the Senate’s Homeland Security Committee on a voice vote with bipartisan support. (Afterwards, holds were placed on the bill by Republican senators close to the White House, and it never came up for a full floor vote.)

It’s possible that, after Obama’s executive order, the Hill will not be in as much of a hurry to reform the Presidential Records Act. Senator Jeff Bingaman, the New Mexico Democrat who introduced last session’s bill, has not yet reintroduced the legislation, and his press office was unable to say before publication whether or not he would. A Homeland Security Committee communications staffer was also unable to say if Connecticut’s Joseph Lieberman, who chairs the relevant committee and who championed the bill last session as a co-sponsor, would still support the legislation.

While the Bush administration suggested that Bush would veto the 2007 reforms to the Presidential Records Act had they passed, there’s no indication that Obama would do the same. As a senator from Illinois, he, too, was a co-sponsor.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.