President Obama signs Executive Order opening up previous presidents' records to the public

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From: TPMMuckraker

Experts: Obama Order Could Let Us See US Attorneys Docs

By Zachary Roth - January 22, 2009, 12:04PM

The experts' verdicts on the potential impact of President Obama's executive order on presidential records are starting to come in. And they're bolstering our initial take that Obama's move could significantly boost efforts to release crucial records that the Bush administration has fought to keep secret.

Doug Kmiec, a constitutional law professor at Pepperdine law school and expert on executive privilege, told TPMmuckraker that the order makes it harder for former presidents to block the release of their documents.

And, crucially, he said it could impact current high-profile struggles over Bush's records, "whether it be the dismissal of US Attorneys, whether it be other assertions of executive privilege dealing with White House emails and the like."

Congress and the Bush White House have been struggling over a key memo that details the level of White House involvement in the US Attorney firings of 2006. And open-government groups have sued the Bush administration to gain access to White House emails on a range of subjects, including the Valerie Plame leak probe and the decision to invade Iraq.

Kmiec, a noted conservative legal scholar who nonetheless supported Obama's campaign, said he had done some work with the Obama transition team, and had offered his assistance to the new administration.

Kmiec said the order appears to shift power from former presidents to the current administration, and to the National Archivist. Under an order issued by President Bush, former presidents and vice presidents could compel the Archivist to keep documents secret. Under the new order, former presidents can still ask the Archives to do so. But the burden of proof is squarely on the former president to prove that secrecy is in the nation's interest, and the Obama administration can decline the request if it's not convinced. That approach reorients things toward the original intention of the Presidential Records Act, passed in the wake of Watergate.

"If the Archivist were to make a determination that those materials would be made public," explained Kimiec, "then holding it back would take something extraordinary," in terms of an argument from the former president.

Kmiec's view is supported by open-government advocates. Scott Nelson of Public Citizen believes, in the words of the Associated Press, that "researchers should find it easier to gain access to records under the new order."

And yesterday, Anne Weissman of CREW, which unsuccessfully brought a lawsuit against Dick Cheney's office to compel him to hand over records to the Archives, told TPMmuckraker that the order "does have the potential to impact ongoing litigation," including over the US Attorney documents.

So when might we see those documents? If the Archivist and the Obama administration agree to it (in practice, the Archivist would likely defer to the administration), they could be made public as soon as the Archivist has prepared them for public display. Of course, President Bush could sue to stop the move -- but it looks like he'd face an uphill climb in convincing a court that there's a pressing need to keep them secret.

It really is a new day.


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• A Call to Action - Crew Asks Obama Admin to Release Bush Admin Records Withheld From Public

CREW sues VP Cheney over Vice Presidential records

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From: Citizens for Ethics and Responsibility in Washington (CREW)

CREW sues VP Cheney over Vice Presidential records

8 Sep 2008 // Today CREW, along with two eminent historians and three organizations of historians and archivists filed a complaint against Vice President Cheney, the Office of the Vice President, the archivist and the National Archives and Records Administration (NARA), challenging their exclusion of a vast majority of Vice President Cheney's papers from the Presidential Records Act (PRA) and the obligation to preserve for the American public. In an executive order issued in 2001, President Bush declared that the PRA applied only to the "executive records" of the vice president. Since that time, the vice president has taken the view that he is not part of the executive and is attached, if at all, to the congressional branch. Moreover, the archivist takes the view that the congressional records of a vice president are his personal, not presidential, records that he is free to dispose of at will. As a result of these unlawful policies, without judicial intervention on January 20, 2009, the vast majority of Vice President Cheney's records will not be transferred to NARA for eventual release to the public, but instead will remain under the vice president's custody and control. CREW is also seeking an order mandating preservation of all of the vice president's records pending the lawsuit.

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Tell your U.S. Senators to unblock vote of Presidential Records Act Amendments of 2007

Public Campaign asks us to contact our U.S. Senators concerning S.886-- Presidential Records Act Amendments of 2007. Senator Jeff Sessions (R-Ala.) is blocking a bill that would return the presidential records, including possibly all previous presidents, their family members and vice presidents, to the American people. Take action now to help bring the bill to the floor for a vote. Thank you.

In 2001, President Bush issued an Executive Order that gives current and previous presidents the power to withhold their documents and records INDEFINITELY. What's more, the order extends this extraordinary authority to presidential family members, and even vice presidents.

Bush's order was a direct attack on the Presidential Records Act of 1978, a law passed in the wake of Watergate that makes presidential records the property of the American people. The president should not be allowed to permitted to flout open-government laws and lock away his records with a stroke of a pen.

But this is not just about Bush. It's about the records of ALL presidents.

Right now the Presidential Records Act Amendments of 2007, a bipartisan bill to undo the Bush order, is close to becoming a law, but it is being blocked by Senator Jeff Sessions.

Take Action NOW: Contact your senators and ask how they can allow a colleague to block this important bill.

Presidential Records Act Amendments of 2007 bill held in the US Senate

The present Bush administration has been more secretive than previous presidents. Our Congress is continuously fighting our Executive branch for the release of information that is in the public's interest to review and act upon. One bill that both the US House and US Senate has introduced (the House "companion bill" was passed already) addresses Bush's Executive Order limiting any access to records of past presidents. OpenTheGovernment.org recently sent a letter with other good government groups to the leader of the Senate to move the Senate bill forward:

On November 19, forty groups, including OpenTheGovernment.org, sent a letter to Senate Majority Leader Harry Reid [D-NV] urging him to bring the Presidential Records Act Amendments of 2007 bill [S. 886] to the floor. As reported in the October 16 edition of the Updates, Sen. Jim Bunning [R-KY] has a hold on the bill, but has refused to state his reasons for the hold.
The legislation would nullify the Bush executive order [E.O. 13233], which gave current and former presidents and vice presidents broad authority to withhold presidential records or delay their release indefinitely. The bill would also establish procedures for the timely release of records. On March 14, 2007, by a vote of 333-93, the U.S. House of Representatives approved the companion bill, H.R. 1255. Read background in the October 16 edition of the Updates and learn more from the National Coalition for History.