The White House papers of our Presidents are among the most important historical records of the American people. Until President Nixon’s time, we essentially treated Presidential records as private property and trusted our Presidents to make those papers available voluntarily after they left office. When President Nixon resigned, he entered into an agreement with the Administrator of General Services that would have given him possession and control over his papers and tape recordings. Congress responded by passing legislation seizing those materials and creating a commission to study how best to handle the papers of future Presidents.
The commission’s work eventually led to the passage of new legislation, the Presidential Records Act of 1978. That law provides that, beginning with the President who took office in January 1981—that is, Ronald Reagan—Presidential (and Vice Presidential) records are public property. The law requires all Presidential and Vice Presidential records to be turned over to the National Archives when an administration leaves office, so that the Archives may prepare them to be made available to the public. The law permits an outgoing President to impose a twelve-year restriction on access to records that contain confidential communications with and among his aides, but requires that such materials be made available to the public on request after twelve years have expired (except for materials that are national security classified or are within a small number of other exempt categories).
The twelve-year restriction period for the papers of former President Reagan and his Vice President, George H.W. Bush, expired on the same day George W. Bush took office. But instead of permitting the Archives to release approximately 68,000 pages of previously restricted Reagan records that would otherwise have been opened to the public in February 2001, the White House ordered the Archives three times to postpone the release of the materials. Then, on November 1, 2001, President Bush issued an executive order that purports to make fundamental changes in the Presidential Records Act.
Under the executive order, if a former President or Vice President—or even a member of his family—objects to the release of any document on the ground of "executive privilege," the Archives is forbidden to release the document to the public. The same is true if the incumbent President asserts "executive privilege." The effect is to replace the Presidential Records Act’s limited 12-year restriction period with a potentially indefinite limitation on access.
On behalf of a coalition of historians, journalists, and public interest groups, Public Citizen has filed suit in federal court in Washington, D.C., to block implementation of the order. Congressmen from President Bush’s own party have introduced legislation to overturn the order. Neither the lawsuit nor the legislative process has yet resulted in a decision. Meanwhile, the administration quietly backed down and let the disputed 68,000 pages of Reagan materials, as well as several thousand pages of Bush Vice Presidential materials, be opened to the public. The Justice Department attempted to argue that because of the release of the materials, the dispute was moot as to the 68,000 pages, and not "ripe" as to the validity of the executive order because no one had yet invoked its terms to claim executive privilege.
However, the lawsuit also revealed that additional Reagan documents were being withheld as a result of the order, and on April 24, 2003, the White House announced that former President Reagan had asserted executive privilege as to 74 pages of documents as well as a number of videotapes. Under the executive order, the Archivist is now forbidden to release those materials unless President Bush overrules former President Reagan's claim of privilege—which is not likely, to say the least. If there were any doubt as to the "ripeness" of the issue of the executive order's legality before, there is none now. The case is fully ready for decision by the court.
To see the key documents, click on the links below.(The documents are in pdf format and require Acrobat Reader for viewing.)