Opening the Presidential Records Act

We’ve just published a piece discussing how the Presidential Records Act contours access to documents that Supreme Court Elena Kagan produced while serving in the Clinton White House.

And while it didn’t fit into that piece, I thought it was worth taking a minute to describe where things stand with an effort to amend the law to fortify it against future presidential weakening.

First, some context: the Presidential Records Act was passed into law in 1978, after President Nixon went all the way to the Supreme Court to try to maintain control over records from his disgraced administration.

The act, which firmly established that presidential records were public property and mandates their eventual near total release, is by it’s very nature a restriction on presidential power. According to Bruce Montgomery, an archivist at the University of Colorado and an expert on the law, every president elected after the law’s enactment has taken steps to trim its effects—except Obama.

Obama, on his first full day in office, signed an executive order rolling back a Bush era executive order that was much reviled among archivists and historians. Bush had set up a structure allowing Presidents, Vice Presidents, and their designees and heirs to review and object to the release of presidential documents on constitutional privilege grounds, no matter how long ago the administration that produced the records ended.

Under the Bush administration, members of Congress worked to pass legislation that would supercede Bush’s order, and largely restore the act to where it was before he took office. The bill never moved out of the Senate, and it’s likely it would have faced a veto if it had.

The current House of Representatives, even before Obama took office, passed a new version of the legislation. The Senate Homeland Security and Governmental Affairs committee, led by Joe Lieberman, took up the house’s bill and reported it out to the full senate, on May 19, 2009.

In the intervening year, not much has happened. According to Lee White, coordinator of the National Coalition for History, that’s because Senator Jeff Sessions, who was fingered with helping to bottle up the bill under Bush—and White reasons, presumably at the then president’s request—has apparently put a hold on the bill’s consideration, meaning the bill can go no further without a time consuming cloture vote. (Sessions’s office did not respond to a request for comment on whether he was behind the hold, and if so, what his objections to the bill were.)

White says that Obama’s order may have slackened the Senate’s enthusiasm for a legislative fix. And while the Coalition for History was heartened by Obama’s executive order, they would much prefer to see the rollback enshrined by legislative action.

“You saw it with Obama,” says Lee of the ease of a future president’s ability to weaken the act via executive orders. “It’ll just be at their whim.”

“Who knows what’s going to happen in two to three years. You get Sarah Palin in there and she could go back to Bush’s standard. Then you could have Bristol deciding,” Lee cracks. “I don’t even want to think of that.”

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