Is Obama Clearing the Way to Criminal Charges?


On January 21, 2009, President Obama signed an Executive Order that revoked George W. Bush’s  Executive Order 13233.  Bush had sought to severely limit  access to the records of former United States Presidents.    His previous and  more exclusive version was drafted by then White House Counsel Alberto Gonzales and issued by President George W. Bush on November 1, 2001.

In signing the Executive Order,  President Obama  returned to the law as it was signed  by Ronald Reagan in 1989.

Obama’s  revocation affected two substantive changes  in what happens when a former president is asked to release  his presidential records.

Obama’s new order  reduces from 90 to 30  days the length of time a former president has to review records being requested.  This is important to the issue of delay as practiced for eight years by the Bush Executive.

More substantively,  the old version  (Bush’s Ex. Order 13233)  would have given Bush de facto veto power over Obama  if  Obama believed  Bush’s claim of  Executive Privilege was bogus:

“… the Archivist shall not permit access to the records by a   requester  [b]ecause the former President independently retains the right to assert constitutionally based privileges… the Archivist shall not permit access to the records by a requester unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.

According to Bush’s rule,  both the former and incumbent Presidents would have to agree to the document disclosure.

Obama’s new rule allows the current President   to overrule the  former President’s claim of Executive Privilege:

[Upon receipt of a claim of executive privilege by a living former President], the Archivist (b)  In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order.

Even under Obama’s Order,  the former President has theoretical recourse to  the Courts.

Is  Obama clearing debris  from the path  to criminal charges?  In part, that will depend on what happens to Cheney’s records and how President Obama treats  “Executive Privilege.”

Bush’s Executive Order 13233 mentions the Vice President’s records specifically.  Obama’s order does not — as if Obama believes  the Veep’s documents are  integral to the  Executive Branch.  That would be a new view. As you know,  Cheney believed his office existed in a misty venue somewhere between the Executive and Legislative branches.

1.   Wikipedia intro to Bush’s Executive Order 13233

2.   Obama revokes Bush’s  Presidential Records protections

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