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.