[House Report 107-790]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-790
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PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2002
_______
November 22, 2002.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Burton, from the Committee on Government Reform, submitted the
following
R E P O R T
[To accompany H.R. 4187]
[Including cost estimate of the Congressional Budget Office]
The Committee on Government Reform, to whom was referred
the bill (H.R. 4187) to amend chapter 22 of title 44, United
States Code, popularly known as the Presidential Records Act,
to establish procedures for the consideration of claims of
constitutionally based privilege against disclosure of
Presidential records, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
I. Purpose..........................................................3
II. Legislative History..............................................3
III. Background and Need for the Legislation..........................4
IV. Section-by-Section Analysis of the Bill..........................9
V. Committee Oversight Findings....................................10
VI. Budget Analysis and Projections.................................11
VII. Cost Estimate of the Congressional Budget Office................11
VIII.Performance Goals and Objectives................................12
IX. Statement of Constitutional Authority...........................12
X. Committee Recommendation........................................12
XI. Congressional Accountability Act................................12
XII. Unfunded Mandates Reform Act....................................12
XIII.Federal Advisory Committee Act..................................12
XIV. Changes in Existing Law.........................................12
Appendix I. Letter to Chairman Burton from Daniel J. Bryant,
Assistant Attorney General, dated October 8, 2002.............. 15
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Presidential Records Act Amendments of
2002''.
SEC. 2. PROCEDURES FOR CONSIDERATION OF CLAIMS OF CONSTITUTIONALLY
BASED PRIVILEGE AGAINST DISCLOSURE.
(a) In General.--Chapter 22 of title 44, United States Code, is
amended by adding at the end the following:
``Sec. 2208. Claims of constitutionally based privilege against
disclosure
``(a)(1) When the Archivist determines under this chapter to make
available to the public any Presidential record that has not previously
been made available to the public, the Archivist shall--
``(A) promptly provide notice of such determination to--
``(i) the former President during whose term of
office the record was created; and
``(ii) the incumbent President; and
``(B) make the notice available to the public.
``(2) The notice under paragraph (1)--
``(A) shall be in writing; and
``(B) shall include such information as may be prescribed in
regulations issued by the Archivist.
``(3)(A) Upon the expiration of the 20-day period (excepting
Saturdays, Sundays, and legal public holidays) beginning on the date
the Archivist provides notice under paragraph (1)(A), the Archivist
shall make available to the public the record covered by the notice,
except any record (or reasonably segregable part of a record) with
respect to which the Archivist receives from a former President or the
incumbent President notification of a claim of constitutionally based
privilege against disclosure under subsection (b).
``(B) A former President or the incumbent President may extend the
period under subparagraph (A) once for not more than 20 additional days
(excepting Saturdays, Sundays, and legal public holidays) by filing
with the Archivist a statement that such an extension is necessary to
allow an adequate review of the record.
``(C) Notwithstanding subparagraphs (A) and (B), if the period under
subparagraph (A), or any extension of that period under subparagraph
(B), would otherwise expire between January 19 and July 20 of the year
in which the incumbent President first takes office, then such period
or extension, respectively, shall expire on July 20 of that year.
``(b)(1) For purposes of this section, a claim of constitutionally
based privilege against disclosure shall be asserted personally by a
former President or the incumbent President, as applicable.
``(2) A former President or the incumbent President shall notify the
Archivist, the Committee on Government Reform of the House of
Representatives, and the Committee on Governmental Affairs of the
Senate of a privilege claim under paragraph (1) on the same day that
the claim is asserted under paragraph (1).
``(c)(1) The Archivist shall not make publicly available a
Presidential record that is subject to a privilege claim asserted by a
former President until the expiration of the 20-day period (excluding
Saturdays, Sundays, and legal public holidays) beginning on the date
the Archivist is notified of the claim.
``(2) Upon the expiration of such period the Archivist shall make the
record publicly available unless otherwise directed by a court order in
an action initiated by the former President under section 2204(e).
``(d)(1) The Archivist shall not make publicly available a
Presidential record that is subject to a privilege claim asserted by
the incumbent President unless--
``(A) the incumbent President withdraws the privilege claim;
or
``(B) the Archivist is otherwise directed by a final court
order that is not subject to appeal.
``(2) This subsection shall not apply with respect to any
Presidential record required to be made available under section
2205(2)(A) or (C).
``(e) The Archivist shall adjust any otherwise applicable time period
under this section as necessary to comply with the return date of any
congressional subpena, judicial subpena, or judicial process.''.
(b) Conforming Amendments.--(1) Section 2204(d) of title 44, United
States Code, is amended by inserting ``, except section 2208,'' after
``chapter''.
(2) Section 2207 of title 44, United States Code, is amended in the
second sentence by inserting ``, except section 2208,'' after
``chapter''.
(c) Clerical Amendment.--The table of sections at the beginning of
chapter 22 of title 44, United States Code, is amended by adding at the
end the following:
``2208. Claims of constitutionally based privilege against
disclosure.''.
SEC. 3. EXECUTIVE ORDER OF NOVEMBER 1, 2001.
Executive Order number 13233, dated November 1, 2001 (66 Fed. Reg.
56025), shall have no force or effect.
I. Purpose
H.R. 4187, the ``Presidential Records Act Amendments of
2002,'' would amend the Presidential Records Act of 1978 to
establish a process whereby incumbent and former Presidents
could, within specified time limits, review records prior to
their public release under the Act and determine whether to
assert constitutional privilege claims against release of the
records. The bill would supersede Executive Order 13233, which
establishes a non-statutory process for review of presidential
records and assertion of privilege claims.
II. Legislative History
On April 11, 2002, Representative Stephen Horn, Chairman of
the Committee on Government Reform's Subcommittee on Government
Efficiency, Financial Management and Intergovernmental
Relations, introduced H.R. 4187 for himself and 22 other
Members. The original co-sponsors included Government Reform
Committee Chairman Dan Burton, Ranking Member Henry Waxman, and
Representative Janice Schakowsky, Ranking Member of the
Subcommittee on Government Efficiency, Financial Management and
Intergovernmental Relations. Twenty-one additional Members
later joined as co-sponsors of the bill.
H.R. 4187 was referred to the Committee on Government
Reform and was subsequently referred to its Subcommittee on
Government Efficiency, Financial Management and
Intergovernmental Relations. The committee and the Subcommittee
on Government Efficiency held three hearings relevant to H.R.
4187.
On November 6, 2001, the subcommittee held an oversight
hearing on implementation of the Presidential Records Act,
which included consideration of the potential impact of
Executive Order 13233 on the Act. On April 11, 2002, the full
committee held a similar hearing on the effect of Executive
Order 13233 on the public availability of presidential records.
On April 24, 2002, the subcommittee held a legislative hearing
that focused specifically on H.R. 4187.
Witnesses at these three hearings included historians,
lawyers and other experts. These witnesses testified that
Executive Order 13233 violates the Presidential Records Act and
greatly inhibits the release of presidential records as
envisioned by the Act. At the November 2001 hearing, a Justice
Department witness defended the legality and appropriateness of
Executive Order 13233.
With one exception, the witnesses who specifically
commented on H.R. 4187 strongly supported the bill and
testified that the bill did not raise serious constitutional
issues. One witness took the position that H.R. 4187 was
unconstitutional, and indeed, that virtually any legislation to
supersede or alter the Executive Order would be
unconstitutional. The Administration declined an invitation to
testify at the April 24 hearing on H.R. 4187. However, the
Department of Justice later submitted a letter opposing the
bill (see Appendix I).
The committee met on October 9, 2002, and favorably
reported the bill, as amended, by voice vote to the House of
Representatives. The amendments adopted by the committee:
Allow an incoming President at least 6
months at the outset of his first term to review
records proposed for release under the Presidential
Records Act;
Allow the former or incumbent President to
automatically extend for an additional 20 working days
the 20-working-day deadline for review of records;
Require that any executive privilege claims
be submitted to the Senate Governmental Affairs
Committee and the House Government Reform Committee,
with notice to the Archivist; and
Delete provisions in the original bill that
specified the content of privilege claims and how they
would be communicated. (The amendments retain the
requirement that any privilege claim be asserted
personally by the former or incumbent President.)
III. Background and Need for Legislation
A. THE PRESIDENTIAL RECORDS ACT
Before enactment of the Presidential Records Act of 1978,
\1\ a President's papers relating to his official duties were
considered as his personal property to dispose of as he saw
fit. Most modern-era Presidents preserved their records and
eventually made them public. However, there was no guarantee
that either the records would be preserved or that they would
be made public. The Presidential Records Act was a landmark law
that supplied that guarantee. It declared, for the first time,
that the records of a President relating to his official duties
belonged to the American people. The Act gave the Archivist of
the United States custody of the records of a former President
and imposed on the Archivist ``an affirmative duty to make such
records available to the public as rapidly and completely as
possible consistent with the provisions of this Act.'' \2\
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\1\ Public Law 95-591, codified at 44 U.S.C. 2201-2207.
\2\ 44 U.S.C. 2203(f)(1).
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At the same time, the Act recognized the need for some
limits on public access to presidential records. It permitted a
former President to restrict public access to sensitive records
for up to 12 years after leaving office. Thereafter, the Act
required the Archivist to make the records available to the
public in accordance with the provisions of the Freedom of
Information Act (FOIA). \3\ All but one of the exemptions from
disclosure under FOIA apply to presidential records. For
example, records dealing with national defense and state
secrets as well as sensitive law enforcement matters are
protected from disclosure. The one exception is that FOIA's
``(b)(5) deliberative process'' exemption \4\ does not apply.
Therefore, records could not be withheld simply because they
involved confidential internal advice and deliberations.
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\3\ 5 U.S.C. 552.
\4\ See 5 U.S.C. 552(b)(5), which exempts from mandatory disclosure
inter-agency or intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation with the
agency.
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Apart from the FOIA exemptions, the Presidential Records
Act did not impose any limits on the public's right of access
to the records of a former President once the restriction
period expired. However, it did provide that ``Nothing in this
Act shall be construed to confirm, limit, or expand any
constitutionally-based privilege which may be available to an
incumbent or former President.'' \5\
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\5\ 44 U.S.C. 2204(C)(2).
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With respect to the above-quoted language, the authors of
the Presidential Records Act were mindful of two Supreme Court
decisions that affirmed the existence of executive privilege
covering presidential records: United States v. Nixon, 418 U.S.
683 (1974), and Nixon v. Administrator of General Services, 433
U.S. 425 (1977). In the latter decision, the Court specifically
recognized the right of a former President to claim executive
privilege. However, there is sparse judicial precedent
concerning the parameters of executive privilege. For example,
in United States v. Nixon, 418 at 706, the Court observed that
a ``broad, undifferentiated claim of public interest in the
confidentiality of'' Presidential communications is less
weighty than ``a claim of need to protect military, diplomatic,
or sensitive national security secrets.''
The scope of the privilege is particularly uncertain in the
case of a former President and in the case of records that are
12 or more years old. In Nixon v. Administrator of General
Services, 433 U.S. at 450-51, the Supreme Court observed:
[T]here has never been an expectation that the
confidences of the Executive Office are absolute and
unyielding. All former Presidents from President Hoover
to President Johnson have deposited their papers in
presidential libraries * * * for governmental
preservation and eventual disclosure * * * The
expectation of the confidentiality of executive
communications thus has always been limited and subject
to erosion over time after an administration leaves
office.
Senator Percy sponsored a floor amendment that made the
FOIA (b)(5) deliberative process exemption inapplicable to
requests for records under the Act. His amendment also included
the language providing that the Act did not expand or limit
claims of constitutional privilege. Senator Percy stated in
this regard:
[N]o document should be withheld [after the 12-year
restriction period] simply because it contains
confidential materials; such a result would undermine
the basic purpose of the legislation. Consequently, the
(b)(5) exemption has no place in this statutory scheme.
* * * [W]hile we can prohibit the Archivist from
withholding documents, after the restricted period, on
the basis of the (b)(5) exemption, we cannot prevent a
former or incumbent President from arguing, even after
the 12-year period that a particular confidential
communication between the President and an advisor
should not be released. To what extent the concept of
``executive privilege'' protects the confidentiality of
a former or incumbent President's communications with
his advisers is an open question. If some future
President believes that the 12-year closure period does
not suffice, that President could object to the release
of some document in the 13th or 14th or 20th year. This
legislation does not resolve the outcome of such legal
action; the issue would be resolved by the courts.\6\
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\6\ 124 Cong. Rec. 36844 (1978).
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B. EXECUTIVE ORDER 12667
The Act first applied to the records of former President
Ronald Reagan. On January 18, 1989, President Reagan issued
Executive Order 12667.\7\ This Executive Order established a
process to deal with potential executive privilege claims over
records covered by the Presidential Records Act. The Reagan
Executive Order required the Archivist to give the incumbent
and former Presidents 30 days advance notice before releasing
presidential records. In this notice, the Archivist would
identify any records that raised ``a substantial question of
executive privilege'' under guidelines provided by the
incumbent and former President.\8\
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\7\ Fed. Reg. 3403 (1989), 44 U.S.C. 2204 note.
\8\ The Reagan Executive Order provided that ``a substantial
question of executive prilige'' existed if disclosure of a record
``might impair the national security (including the conduct of foreign
relations), law enforcement, or the deliberative processes of the
executive branch.''
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Executive Order 12667 authorized the Archivist to release
the records after 30 days unless the incumbent or former
President claimed executive privilege, or unless the incumbent
President instructed the Archivist to extend the period. It
further provided for review of potential executive privilege
claims by Federal legal officers, and ultimately by the
incumbent President, in order to determine whether the claims
were justified. If the incumbent President decided to invoke
executive privilege, the Archivist would withhold the records
unless directed to release them by a final court order. If the
incumbent President decided not to support a former President's
claim of privilege, the Archivist would decide whether or not
to honor the claim. The Archivist would give the former
President 30 days advance notice of rejection of a privilege
claim. Before he left office, President Reagan exercised his
right under the Presidential Records Act to restrict access to
some of his records for 12 years. This 12-year restriction
period expired in January 2001. In February 2001, the Archivist
provided the 30-day notice required by Executive Order 12667 of
his intent to release about 68,000 pages of former President
Reagan's records. In March, June, and August of 2001, the
Counsel to the President instructed the Archivist to extend the
time for claiming executive privilege.
C. EXECUTIVE ORDER 13233
On November 1, 2001, President George W. Bush revoked the
Reagan Executive Order and issued a new Executive Order--
Executive Order 13233--to govern implementation of the
Presidential Records Act.\9\ The key provisions of Executive
Order 13233 are as follows:
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\9\ 66 Fed. Reg. 56025 (2001), 44 U.S.C. 2204 note.
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The Archivist will notify the incumbent and former
Presidents of all requests for records of a former President
after the restriction period expires.
The Archivist is prohibited from releasing any
such records unless and until both the incumbent and former
President agree to their release, or until the Archivist is
directed to release the records by a final court order.
``Absent compelling circumstances,'' the incumbent
President will concur in a former President's determination of
whether or not to claim executive privilege. The Order does not
define ``compelling circumstances.''
If the incumbent President concurs in a former
President's claim of privilege, the incumbent President will
support the claim in any litigation. Even if the incumbent
President disagrees with a former President's claim, the
Archivist still must honor that claim and withhold the records.
A former President may designate a representative
or group of representatives to act on his behalf for purposes
of the Presidential Records Act and the Executive Order.
The Order establishes a 90-day target date for
review of access requests by members of the public. However,
the review period can be extended indefinitely. The Executive
Order establishes a shorter target date for review of access
requests by Congress or the courts, specifically 21 days for a
former President's decision and another 21 days for the
incumbent President's decision. These target dates likewise can
be extended indefinitely.
D. PROBLEMS WITH EXECUTIVE ORDER 13233
Executive Order 13233 establishes a process whereby
incumbent and former Presidents can review records prior to
their release under the Presidential Records Act and, if they
deem it necessary, invoke executive privilege to prevent
release of the records. These objectives are consistent with
the constitutional rights of incumbent and former Presidents as
recognized in Supreme Court opinions. However, the Executive
Order implements these legitimate objectives in a way that
violates both the letter and the spirit of the Presidential
Records Act of 1978.
The Executive Order 13233 converts the Act's presumption of
disclosure into a presumption of non-disclosure. It forces the
Archivist of the United States to automatically accept any
claim of executive privilege by a former President, regardless
of merit, which is in clear violation of the Archivist's duties
under the Act. It allows friends, relatives and descendents of
a former President to claim executive privilege--an approach
lacking in any legal or historical precedent. Perhaps most
serious problem of all with the Executive Order is that it
allows an incumbent or former President to prevent indefinitely
the public disclosure of records under the Act simply by
inaction--without ever having to assert a claim of executive
privilege.
It is regrettable that the committee needs to move forward
with H.R. 4187. Both before and after introduction of H.R.
4187, Representative Horn and other Members of the committee
attempted over a period of many months to persuade the
Administration to modify the Executive Order. The
Administration maintained that the Executive Order could be
revised to protect the constitutional prerogatives of incumbent
and former Presidents without violating the Act. Indeed, the
Reagan Executive Order provided a model for this. However, the
Administration was unwilling to make any changes to the Order.
E. THE APPROACH OF H.R. 4187
H.R. 4187 accomplishes what Executive Order 13233 fails to
accomplish. It protects the constitutional prerogatives of
former and incumbent Presidents while preserving the Act's
intent that presidential records be publicly disclosed as
promptly and completely as possible.
Similar to Executive Order 13233, the bill establishes a
process for the consideration of executive privilege claims.
And similar to the Executive Order, the bill requires advanced
notice be given to the former and incumbent Presidents before
the presidential records are released. This gives them time to
review the records and decide whether to claim privilege. Also,
similar to the Executive Order, the bill requires the Archivist
to withhold records (or parts of records) for which the
incumbent President claims privilege. In this event, a
requester would have the burden of challenging a claim of
executive privilege in court.
However, H.R. 4187 differs from Executive Order 13233 in
several ways. The bill does not attempt to define the scope of
executive privilege. It leaves that to the courts. The bill
limits the time the former and incumbent President may take to
review the records and claim privilege. The basic review period
is 20 working days, which is the same limit imposed on agencies
under FOIA. This period may be extended for up to another 20
working days if the incumbent or former President determines
that an extension is necessary to permit adequate review of
records. If there is no claim of privilege within the
applicable review period, the Archivist must release the
records.
The other major difference between H.R. 4187 and Executive
Order 13233 concerns what happens if a former President claims
privilege. As noted previously, the Executive Order forces the
Archivist to withhold records any time a former President
claims privilege. The requester then has the burden of
challenging the privilege claim in court. That feature of the
Executive Order is at odds with the Presidential Records Act.
The bill reverses the legal burden. If a former President
claims privilege, the Archivist will withhold the records for
an additional 20 days in order to give the former President
time to file suit to enforce his privilege claim. However, the
Archivist will then release the records absent a court order to
the contrary.
The committee believes this is a reasonable approach, and
one that is consistent with the intent of the Presidential
Records Act. The Act already provides for lawsuits by a former
President to vindicate his rights and privileges. Furthermore,
the Act already protects from disclosure those categories of
information that would ordinarily be subject to executive
privilege claims. Thus, any privilege claim a former President
might assert probably would be based on unusual and untested
legal grounds that should be initially considered by the court.
The bill also includes several provisions that are not in
the Executive Order. Most of those provisions are intended to
ensure greater transparency and public accountability regarding
possible claims of executive privilege. For example, a claim of
privilege must be made by an incumbent or former President.
This is consistent with the settled principle that the right to
claim executive privilege is personal to the incumbent or
former President and cannot be delegated to their assistants,
relatives or descendants.
F. JUSTICE DEPARTMENT OBJECTIONS
On October 8, 2002, the day of the committee markup, the
Department of Justice submitted a letter setting forth its
objections to H.R. 4187. The Justice Department's letter is
included as Appendix I.
The Justice Department's letter does not require a detailed
response. Most legal experts who testified before the committee
persuasively refuted the Justice Department's constitutional
and other legal arguments against the bill. These witnesses
testified that the bill is within the constitutional authority
of Congress and represents an appropriate response to an
Executive Order that is itself in violation of the Presidential
Records Act and is likely unconstitutional.
Nevertheless, the committee wishes to respond briefly to
two points in the Justice Department's letter. First, the
department maintains that the Executive Order is intended to
facilitate the release of records under the Presidential
Records Act and that it has worked well. The Executive Order
has not worked well. It has served to delay the public
disclosure of records far beyond the release dates envisioned
by the Act. Second, the department maintains that opposition to
the Executive Order is premised on the view that a former
President should not have the right to claim executive
privilege. This is simply not true. The bill recognizes that,
under Supreme Court precedent, a former President can invoke
executive privilege. The purpose of the bill is to ensure that
this right is exercised in a manner that does not undermine the
Presidential Records Act.
IV. Section-by-Section Analysis of the Bill
Section 1--Short title
Section 1 provides that the Act may be cited as the
``Presidential Records Act Amendments of 2002.''
Section 2(a)--Procedures for consideration of claims of
constitutionally based privilege against disclosure
Section 2(a) adds a new section 2208 to chapter 22 of title
44, United States Code, popularly known as the Presidential
Records Act of 1978. The new section 2208 establishes
procedures to govern the review of records by a former or
incumbent President prior to their public release under the
Presidential Records Act and their assertion of constitutional
privilege claims to prevent release of those records.
Subsection (a)(1) of the new section 2208 provides that,
when the Archivist of the United States determines to make
records publicly available in accordance with the Presidential
Records Act, the Archivist shall promptly give advance notice
to the applicable former President and the incumbent President.
The Archivist is to make the notice available to the public.
Under subsection (a)(2), the notice shall be in writing and
shall contain such information as may be prescribed in
regulations issued by the Archivist.
Subsection (a)(3)(A) generally requires the Archivist to
make the records available upon the expiration of 20 working
days following a notice under subsection (a)(1) unless the
Archivist has received a claim of constitutional privilege by a
former or incumbent President under subsection (b). There are
two exceptions to the 20-day deadline. Under subparagraph
(a)(3)(B), a former or incumbent President may extend the
deadline for up to 20 additional working days by filing a
statement with the Archivist that the additional time is needed
for adequate review of the records. Under subparagraph
(a)(3)(C), a deadline for review cannot expire before July 20th
of the year that an incumbent President first takes office.
Subsection (b) requires the former or incumbent President
to assert any claim of privilege personally. Also, the former
or incumbent President must notify the Archivist, the House
Committee on Government Reform and the Senate Committee on
Governmental Affairs of the privilege claim on the same day
that it is asserted.
Subsection (c) provides that if the former President
asserts a privilege claim, the Archivist must withhold release
of the records covered by that claim for another 20 working
days. Upon the expiration of this 20-day period, the Archivist
must release the records unless otherwise directed by a court
order in an action initiated by the former President under 44
U.S.C. 2204(e).
Subsection (d) provides that if the incumbent President
asserts a privilege claim, the Archivist must continue to
withhold the records unless and until the incumbent President
withdraws the claim or the Archivist is otherwise directed by a
final and non-appealable court order. Subsection (d) does not
apply to records required to be made available in connection
with judicial or congressional proceedings under 44 U.S.C.
2205(2)(A) or (C).
Section 2(b)--Conforming Amendments
Subsection 2(b) of the bill makes several clarifying and
conforming changes to existing provisions of the Presidential
Records Act. Paragraph (1) of subsection (b) clarifies that
authority to claim executive privilege is personal to a former
or incumbent President and cannot be delegated to their
representatives. Paragraph (2) clarifies that a former or
incumbent Vice President cannot claim presidential privileges.
Both of these provisions are consistent with current theory and
practice concerning executive privilege.
Section 3--Executive Order of November 1, 2001
Section 3 provides that Executive Order 13233, dated
November 1, 2001, shall have no force or effect.
V. Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
VI. Budget Analysis and Projections
Clause 3(c)(2) of rule XIII, of the Rules of the House of
Representatives, is inapplicable because the bill does not
provide new budget authority, new spending authority, new
credit authority, or an increase or decrease in revenues or tax
expenditures.
VII. Cost Estimate of the Congressional Budget Office
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 16, 2002.
Hon. Dan Burton,
Chairman, Committee on Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4187, the
Presidential Records Act Amendments of 2002.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
H.R. 4187--Presidential Records Act Amendments of 2002
H.R. 4187 would amend the Presidential Records Act and
nullify Executive Order 13233 to establish a statutory process
for reviewing presidential records. The bill would require the
Archivist of the United States to provide 20 days' notice
before making presidential information public. During that
waiting period, a former of incumbent President could claim a
constitutionally based privilege against disclosure. If the
claim is made by a former President, the Archivist could
release the material at the end of the 20-day period unless
otherwise directed by a court order. If the claim is made by an
incumbent President, the Archivist could not release the
material unless the claim is withdrawn or the Archivist is
otherwise directed by a final court order that is not subject
to appeal. H.R. 4187 also would allow a newly elected President
additional time--until July 20 of the first year of office--to
review presidential records that would otherwise be made public
during that time.
Based on information from the National Archives and Records
Administration, CBO estimates that implementing H.R. 4187 would
have no significant effect on federal spending. In addition,
the legislation would not affect direct spending or revenues.
The bill contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local or tribal
governments.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by Robert A. Sunshine,
Assistant Director for Budget Analysis.
VIII. Performance Goals and Objectives
H.R. 4187 does not authorize funding. Therefore, clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives is inapplicable.
IX. Statement of Constitutional Authority
Pursuant to rule XIII, clause 3(d)(1), the Committee finds
that clauses 1 and 18 of Article I, Section 8 of the U.S.
Constitution grant Congress the power to enact this law.
X. Committee Recommendation
On October 9, 2002, a quorum being present, the Committee
on Government Reform ordered the bill, as amended, favorably
reported by voice vote to the House of Representatives for
consideration.
XI. Congressional Accountability Act
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(B)(3) of the Congressional Accountability Act (Public Law
104-1).
XII. Unfunded Mandates Reform Act
The Committee finds that the legislation does not impose
any Federal mandates within the meaning of section 423 of the
Unfunded Mandates Reform Act (Public Law 104-4).
XIII. Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize establishment of an advisory committee within the
definition of 5 U.S.C. App., section 5(b).
XIV. Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
CHAPTER 22 OF TITLE 44, UNITED STATES CODE
CHAPTER 22--PRESIDENTIAL RECORDS
Sec.
2201. Definitions.
* * * * * * *
2208. Claims of constitutionally based privilege against disclosure.
* * * * * * *
Sec. 2204. Restrictions on access to Presidential records
(a) * * *
* * * * * * *
(d) Upon the death or disability of a President or former
President, any discretion or authority the President or former
President may have had under this chapter, except section 2208,
shall be exercised by the Archivist unless otherwise previously
provided by the President or former President in a written
notice to the Archivist.
* * * * * * *
Sec. 2207. Vice-Presidential records
Vice-Presidential records shall be subject to the provisions
of this chapter in the same manner as Presidential records. The
duties and responsibilities of the Vice President, with respect
to Vice-Presidential records, shall be the same as the duties
and responsibilities of the President under this chapter,
except section 2208, with respect to Presidential records. The
authority of the Archivist with respect to Vice-Presidential
records shall be the same as the authority of the Archivist
under this chapter with respect to Presidential records, except
that the Archivist may, when the Archivist determines that it
is in the public interest, enter into an agreement for the
deposit of Vice-Presidential records in a non-Federal archival
depository. Nothing in this chapter shall be construed to
authorize the establishment of separate archival depositories
for such Vice-Presidential records.
Sec. 2208. Claims of constitutionally based privilege against
disclosure
(a)(1) When the Archivist determines under this chapter to
make available to the public any Presidential record that has
not previously been made available to the public, the Archivist
shall--
(A) promptly provide notice of such determination
to--
(i) the former President during whose term of
office the record was created; and
(ii) the incumbent President; and
(B) make the notice available to the public.
(2) The notice under paragraph (1)--
(A) shall be in writing; and
(B) shall include such information as may be
prescribed in regulations issued by the Archivist.
(3)(A) Upon the expiration of the 20-day period (excepting
Saturdays, Sundays, and legal public holidays) beginning on the
date the Archivist provides notice under paragraph (1)(A), the
Archivist shall make available to the public the record covered
by the notice, except any record (or reasonably segregable part
of a record) with respect to which the Archivist receives from
a former President or the incumbent President notification of a
claim of constitutionally based privilege against disclosure
under subsection (b).
(B) A former President or the incumbent President may extend
the period under subparagraph (A) once for not more than 20
additional days (excepting Saturdays, Sundays, and legal public
holidays) by filing with the Archivist a statement that such an
extension is necessary to allow an adequate review of the
record.
(C) Notwithstanding subparagraphs (A) and (B), if the period
under subparagraph (A), or any extension of that period under
subparagraph (B), would otherwise expire between January 19 and
July 20 of the year in which the incumbent President first
takes office, then such period or extension, respectively,
shall expire on July 20 of that year.
(b)(1) For purposes of this section, a claim of
constitutionally based privilege against disclosure shall be
asserted personally by a former President or the incumbent
President, as applicable.
(2) A former President or the incumbent President shall
notify the Archivist, the Committee on Government Reform of the
House of Representatives, and the Committee on Governmental
Affairs of the Senate of a privilege claim under paragraph (1)
on the same day that the claim is asserted under paragraph (1).
(c)(1) The Archivist shall not make publicly available a
Presidential record that is subject to a privilege claim
asserted by a former President until the expiration of the 20-
day period (excluding Saturdays, Sundays, and legal public
holidays) beginning on the date the Archivist is notified of
the claim.
(2) Upon the expiration of such period the Archivist shall
make the record publicly available unless otherwise directed by
a court order in an action initiated by the former President
under section 2204(e).
(d)(1) The Archivist shall not make publicly available a
Presidential record that is subject to a privilege claim
asserted by the incumbent President unless--
(A) the incumbent President withdraws the privilege
claim; or
(B) the Archivist is otherwise directed by a final
court order that is not subject to appeal.
(2) This subsection shall not apply with respect to any
Presidential record required to be made available under section
2205(2)(A) or (C).
(e) The Archivist shall adjust any otherwise applicable time
period under this section as necessary to comply with the
return date of any congressional subpena, judicial subpena, or
judicial process.
A P P E N D I X I
----------
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, October 8, 2002.
Hon. Dan Burton,
Chairman, Committee on Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: This letter sets forth the
Administration's views concerning the manager's amendment
version of H.R. 4187, the ``Presidential Records Act Amendments
of 2002.'' The Administration has been working and meeting with
Committee members and staff to address the Committee's
questions and concerns, but we understand that the Committee
will be considering this bill on October 9th. We respectfully
believe that enactment of this bill is unnecessary and
inappropriate and, more importantly, the bill is
unconstitutional.
I.
The motivation underlying introduction of H.R. 4187 appears
to be some concern in Congress with respect to Executive Order
13233, 66 Fed. Reg. 56025 (Nov. 5, 2001). President Bush issued
the Order last November in order to establish polices and
procedures governing consideration of the assertion of
constitutionally based privileges in connection with the
release of presidential records of prior administrations by the
National Archives and Records Administration (``NARA'') under
the Presidential Records Act (``PRA''), 44 U.S.C.
Sec. Sec. 2201-2207. H.R. 4187 would purport to supersede
President Bush's Order and put in its place congressionally
prescribed procedures.
We respectfully suggests that much of the congressional
concern underlying H.R. 4187 is based on a misunderstanding of
the purpose and effect of the Executive Order. The Order does
not operate to preclude the release of any presidential
records. In fact, its most significant policy innovation is a
provision establishing that the incumbent President ordinarily
will not object to the release of records authorized for
release by the former President. The Order merely establishes
reasonable and appropriate procedures for review of documents
and for privilege determinations to be made. The Order
expressly refrains from indicating whether and under what
circumstances privileges should be asserted.
Indeed, the Executive Order has operated to facilitate the
releases of records. Pursuant to the terms of the Order,
representatives of former President Ronald Reagan--the only
President whose presidential records are ready for release by
NARA after expiration of the PRAs' 12-year restricted access
period--reviewed the 68,000 pages of records for which notice
was provided in 2001, and on November 29, 2001, former
President Reagan, through his representative, stated that he
was not asserting constitutional privilege over any of the
68,000 pages. Since that time, representatives of President
Bush have reviewed the records, and all of those 68,000 pages
have been released. The procedures of the Order are working
well, and presidential records are being released to the public
consistent with the review that the Constitution requires be
available to the former and incumbent Presidents in order that
they can determine whether to exercise their constitutional
authority.
Much criticism directed at the Order has apparently been
premised on the view that a former President should have no
right to assert privileges over his presidential records. That
criticism is unfounded because the Supreme Court has
definitively held, in an opinion by Justice William Brennan,
that both incumbent and former Presidents retain the right to
assert constitutionally based privileges with respect to the
presidential records of the former President. See Nixon v.
Administrator of General Services, 433 U.S. 425 (1977). And the
PRA expressly preserved the authority of former Presidents in
this regard. See 44 U.S.C. Sec. 2204(c)(2). We are disappointed
that much of the commentary on the Order never confronts the
Supreme Court's ruling or this provision of the PRA.
It bears emphasis that, as under the Freedom of Information
Act (``FOIA''), a denied requester can bring suit to challenge
a privilege assertion any time that a former or incumbent
President asserts a privilege. In other words, the courts will
have the final word on the validity of any assertion of
privilege. Neither the former nor the incumbent President will
possess unreviewable authority to withhold records.
Other criticism of the Executive Order has suggested that
the Order threatens Congress's exercise of its authority to
seek presidential records in order to discharge its legislative
responsibilities. This is incorrect. The only provision in the
Order that is pertinent to congressional requests and subpoenas
is section 6. That section is not intended to change the law in
any way with respect to the legal effectiveness of
congressional subpoena return dates, the practice of the
Executive and Legislative branches of engaging in an
accommodation process regarding congressional requests for
privileged Executive branch information, or the period of time
that the Constitution requires a former or incumbent President
be afforded in order to consider whether to assert a
constitutionally based privilege. Section 6 merely sets forth
the time periods that will generally apply to the reviews
undertaken by former and incumbent Presidents in response to
congressional bequests for presidential records.
There also have been some questions raised about the fact
that under the Executive Order a denied requester must initiate
litigation against a former President who asserts a privilege,
rather than requiring the former President who asserts a
privilege to sue the incumbent President's administration to
block release. The Supreme Court has held that former
Presidents have the constitutional right to assert privileges
over their records. If such a privilege is asserted, we believe
it most appropriate for the requester who disagrees with the
privilege assertion to proceed to court--just as the requester
would do in ordinary FOIA litigation--rather than requiring the
former President to take the extraordinary step of suing the
incumbent President's Administration. As a practical matter, it
is no more difficult for a requester to file suit when a former
President asserts a privilege than for an unsuccessful
requester to file an ordinary FOIA suit. Because this procedure
is so common in the FOIA context, we think it is an entirely
appropriate model for these purposes.
In short, Executive Order 13233 is faithful to the PRA and
to the Supreme Court's case law; it sets out appropriate
procedures that satisfy both the congressional purposes
underlying the PRA and the constitutional prerogatives and
interests of former and incumbent Presidents; and
implementation of the Order is going well. There is no need for
legislation concerning the Order.
II.
In any event, H.R. 4187 is unconstitutional. The PRA, which
H.R. 4187 would amend, provides for the release of presidential
records of prior administrations, but it expressly recognizes
that any such release is subject to assertion of
constitutionally based privileges: ``Nothing in this Act shall
be construed to confirm, limit, or expand any constitutionally-
based privilege which may be available to an incumbent or
former President.'' 44 U.S.C. Sec. 2204(c)(2). And the PRA
makes no effort to establish policies or procedures for
asserting constitutionally based privileges under the PRA, but
instead leaves that to the Executive branch. See 124 Cong. Rec.
34,895 (1978) (statement of Rep. Preyer) (legislation not
``designed to prejudge'' issues ``involving the manner of
assertion of the constitutional privilege''); 44 U.S.C.
Sec. 2206 (``The Archivist shall promulgate * * * regulations
necessary to carry out the provisions of this [Act]. Such
regulations shall include * * * provisions for notice by the
Archivist to the former President when the disclosure of
particular documents may adversely affect any rights and
privileges which the former President may have.'').
Consistent with the Constitution and Congress's recognition
of the constitutional requirements applicable to privilege
claims, the Executive branch has been responsible for the
establishment of procedures for assertion of constitutionally
based privileges under the PRA. The preamble to H.R. 4187,
however, states that its purpose is to end that by
``establish[ing] procedures for the consideration of claims of
constitutionally based privilege against disclosure of
Presidential records.'' That purpose, however, is beyond
Congress's legislative authority. The presidential privileges
are constitutionally based. Thus, Congress lacks the authority
to regulate by legislation the procedures for exercising this
constitutional power, which belongs exclusively to the
President. This has long been recognized, as reflected in
testimony in 1975 by then-Assistant Attorney General for the
Office of Legal Counsel Antonin Scalia. See Statement of
Antonin Scalia, Assistant Attorney General, Office of Legal
Counsel, on S. 2170, the Congressional Right to Information
Act, before the Subcommittee on Intergovernmental Relations,
Committee on Government Operations, United States Senate, Oct.
23, 1975.
Objecting to legislation setting out requirements governing
the manner in which the President's constitutionally based
privileges may be asserted, Assistant Attorney General Scalia
testified that ``[t]he Constitutional basis of Executive
privilege means that the President may exercise it without
Congressional leave and in spite of Congressional disapproval.
In other words, the privilege does not fall within that group
of powers which the President may exercise in the silence of
Congress but not in derogation of legislation.'' Id. at 14. To
support this position, the Assistant Attorney General quoted
several passages from the Supreme Court decision in United
States v. Nixon, 418 U.S. 683 (1974). Id., quoting from 418
U.S. at 705 (executive privilege is derived from ``the
supremacy of each branch within its own assigned area of
constitutional duties''), 708 (``The privilege is fundamental
to the operation of government and inextricably rooted in the
separation of powers under the Constitution.''), and 711
(``Nowhere in the Constitution * * * is there any explicit
reference to a privilege of confidentiality, yet to the extent
this interest relates to the effective discharge of a
President's powers, it is constitutionally based.'').
Assistant Attorney General Scalia went on in his testimony
to object to a provision ``requir[ing] that Executive privilege
be claimed only by the President himself in writing, setting
forth the grounds on which it is based.'' Statement at 14. That
provision was substantially the same as section 2208(a)(4) of
H.R. 4187 as introduced, a portion of which remains in the
substitute bill under section 2208(b)(1). The Assistant
Attorney General stated ``that Congress lacks the power to
preclude the President from adopting * * * reasonable
alternative methods of claiming privilege, which he feels to be
justified in the circumstances.'' Id. at 15.
The constitutional principle that is applicable here is
that, given ``the supremacy of each branch within its own
assigned area of constitutional duties,'' Nixon, 418 U.S. at
705, it is for the President, not the Congress, to set forth
the procedural requirements for exercising the constitutionally
based privileges available to former and incumbent Presidents.
Although Assistant Attorney General Scalia's testimony focused
on a particular provision that is comparable to a particular
provision in H.R. 4187, the same analysis applies to the
remaining provisions in H.R. 4187 because they also seek to
regulate the exercise of the constitutionally based
presidential privileges, a process that must remain within the
discretion of the President.
Other provisions of H.R. 4187 raise specific constitutional
concerns beyond the overarching problem of lack of legislative
authority (which renders the bill unconstitutional in its
entirety). Section 2208(a)(3) would purport to limit the
incumbent and former Presidents to a 20-day period, with the
possibility of a 20-day extension, to review records and
determine whether to assert privilege. Given the volume of
records that are involved in the PRA process, that brief period
almost always will be unreasonable and therefore constitute an
impermissible burden on the Presidents' exercise of their
constitutional authority. A similar constitutional concern is
raised by section 2208(c), which directs the Archivist to
release records subject to a privilege claim by a former
President after expiration of a 20-day period unless otherwise
directed by a court in an action brought by the former
President. Providing that a former President's claim of
privilege is effective for only 20 days, and thereafter only
with the approval of an officer of another branch of
government, would significantly undercut the effect of the
claim of privilege and may well also constitute an
unconstitutional burden on the former President's exercise of
his constitutional authority, as recognized by the Supreme
Court in Nixon v. Administrator of General Services.
Section 2208(d)(2) would raise a constitutional concern if
it were somehow read to direct the Archivist not to follow an
incumbent President's directive to him to withhold records on
the basis of privilege if the records have been requested by a
congressional committee or the courts. If read in this way, the
provision would turn the Executive branch hierarchy on its
head, making the Archivist superior to the President--in
contravention of the settled principle that the President has
the constitutional authority to supervise and direct Executive
branch officials in the discharge of their responsibilities.
See Myers v. United States, 272 U.S. 52 (1926).
Finally, to return to the overarching constitutional
problem identified earlier in this letter, the attempt in
section 3 of the bill to declare that Executive Order 13233
``shall have no force or effect'' would itself have no force or
effect because Congress lacks the authority to override the
President's exercise of his constitutional authority in this
area.
In sum, H.R. 4187 constitutes an unconstitutional
encroachment on presidential constitutional authority.
III.
Thank you for considering our views. If we can be of
further assistance in this matter, please feel free to contact
this office. The Office of Management and Budget has advised
that there is no objection to the submission of this letter
from the standpoint of the Administration's program.
Sincerely,
Daniel J. Bryant,
Assistant Attorney General.