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President Barack Obama issues an executive order limiting the ability of former presidents to block the release of records from their time in the White House. Obama’s order overturns an executive order from former President Bush (see November 1, 2001) that is currently the subject of a federal lawsuit, and was found in part illegal by a federal judge in 2007. Obama’s order invalidates Bush’s order entirely. Obama’s order allows former presidents to ask the National Archives to keep certain documents private, but strips their power to compel the Archives to do so. The order also covers former vice presidents and the families of deceased presidents. “It’s a great signal to send on the president’s first day in office,” says Scott Nelson, a lawyer with the civil liberties group Public Citizen, which led the challenge to Bush’s order. Nelson says the order will make it easier for researchers to gain access to White House records.
Strips Power from Former Executives - Under the Presidential Records Act, former presidents can restrict access to some of their records, including confidential communications with advisers, for up to 12 years. Bush’s order extended that restriction indefinitely, and gave former vice presidents and even the families and heirs of deceased presidents the same power to restrict documents. Obama’s order limits claims of executive privilege to records concerning national security, law enforcement or internal communications; it also specifies that only living former presidents may request that papers not be made public, and gives them 30 days to say so once they get word of the archivist’s intention to release records. The order gives the Obama administration and the National Archives, not the former executives, the final decision-making power. Under Obama’s order, former Vice President Dick Cheney can no longer block access to records from his records during his eight years in the White House. Cheney is engaged in a lawsuit to block access to his vice-presidential records. (Sherman 1/21/2009)
Wide-Ranging Impact - Experts agree that the executive order could have wide-ranging impacts on a number of issues relating to the Bush administration. Douglas Kmiec, a conservative law professor and an expert on executive privilege, says the order could strongly impact current battles 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.” It could also affect investigations into the outing of CIA agent Valerie Plame, and the Bush administration’s efforts to precipitate a war with Iraq. (Roth 1/22/2009) Neil Eggleston, who served as White House counsel in the Clinton administration, says he believes the Obama order is specifically designed to pry loose information from the Bush administration about such issues. “This is absolutely about all those issues,” he says. In a sense, Eggleston continues, it is an order to the National Archivist: “It says, ‘Archivist—if Bush calls up and says don’t release certain papers, don’t listen to what he says, listen to what I say.’” (Roth 1/23/2009)
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