Executive Order Action Alert


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.


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."