Leahy Law

Judge Rules Presidential Records Executive Order Goes Too Far

By Cochran Douglas on October 24, 2007

Though delivered in a narrow decision based on procedural grounds, a federal judge in Washington, D.C., nonetheless dealt a blow to the ability of the White House and former presidents to control the release of presidential records.

The opinion issued Monday by U.S. District Judge Colleen Kollar-Kotelly invalidates a section of President George W. Bush’s Nov. 1, 2001, Executive Order 13233, which sought to override the Presidential Records Act and strip the national archivist of the discretionary ability to release presidential records after a 30-day notice to a former president. Just nine months prior to the order’s issuance, the National Archives had notified President Bush and former President Ronald Reagan that it intended to release nearly 68,000 records generated during Reagan’s terms in office.

“The Bush Order effectively eliminates the Archivist’s discretion to release a former president’s documents while such documents are pending a former president’s review, which can be extended — presumably indefinitely — upon the former president’s request,” Kollar-Kotelly wrote.

Plaintiffs in the case, including the National Security Archive, an independent non-governmental research institute and publisher located at George Washington University, challenged the executive order on broader grounds, including whether it is permissible for presidents to extend authority over disclosure of presidential records to family members and former vice presidents.

“The court is enforcing procedural standards, but has avoided the harder questions about the role former presidents, former vice presidents, and their heirs can play when it comes to disclosure of presidential records,” said National Security Archive attorney Meredith Fuchs. “Unless the Executive Order is reversed or withdrawn, decisions about the release of records from this administration may ultimately be made by the Bush daughters.”

A bill that seeks to overturn the executive order easily passed the House in March, but has stalled in the Senate. The administration has characterized the bill as “misguided” and “counterproductive” and announced that it will recommend the president veto the bill should it eventually make it to his desk.


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