Federal Judge Invalidates Order Allowing Former Presidents to Withhold Records

This article is cross-posted on the National Coalition for History’s web site.

On October 1, a federal district court judge gave historians and researchers a partial, but significant victory in a lawsuit questioning the legality of President George W. Bush’s Executive Order (EO) 13233, which broadened the rights of presidents and former-presidents to withhold federal records from the public. The judge struck down the section of the EO that allows a former president to indefinitely delay the release of records.

However, Judge Colleen Kollar-Kotelly did not rule on the constitutionality of the Executive Order itself, narrowly crafting her decision to address only specific provisions in the order.

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 Executive Order 13233 that overturned an executive order issued by President Reagan and gave current and former presidents, their heirs or designees and former vice presidents broad authority to withhold presidential records or delay their release indefinitely.

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.

The lawsuit was brought by Public Citizen in 2001 on behalf of itself, the American Historical Association (AHA), the 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.

“We’re delighted by the court’s recognition that the executive order unlawfully impedes access to presidential records,” said Public Citizen attorney Scott Nelson, who brought the case behalf of AHA, OAH and the NSA. “Although its failure to strike down the order in its entirety is disappointing, the court’s rejection of the government’s unfounded constitutional theories of executive privilege sends a warning shot suggesting that the other provisions of the order are unlawful as well.”

Legislation (H.R. 1255) to overturn Executive Order 13233 overwhelmingly passed the House by a vote of 333-93 in April. At the time the legislation was considered in the House, the Bush administration issued a threat to veto the bill, but it passed the House by a veto-proof margin. 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) objected to consideration of the bill.

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