In a world where political symbols matter, President Barack Obama chose a worthy subject for the first executive order of his new administration.
His first executive order, entitled "Presidential Records," revokes Executive Order 13,233, President George W. Bush's constitutionally lunatic procedure for enabling former Presidents and Vice Presidents to limit public access to their records. The obscurity of the subject does not diminish the importance of what the new President is signaling.
A statute called the Presidential Records Act (PRA) gives an executive branch official, the National Archivist, custody of a former President's records upon the conclusion of the President's term of office. The PRA requires the Archivist, within specific procedural guidelines, to make presidential records "available to the public as rapidly and completely as possible."
The key procedural guidelines are two-fold. First, a President is entitled to restrict access for up to 12 years to any of his records that fall within certain specified categories. Second, whenever a presidential record becomes available for disclosure - either because no President has restricted access or because the time for restricted access has expired - the Archivist is to handle requests to view such records as largely as if they were requests under the Freedom of Information Act, thus creating a legal presumption in favor of its disclosure.
This structure, while thoughtful in its conception, leaves certain important questions unanswered. Specifically, the Act contemplates the possibility that either a former or incumbent President might want to interpose an executive privilege objection to the release of a particular record, but it specifies no process for presidents to follow in deciding whether to lodge any such claim beyond a requirement for consultation between the archivist and a former President before the release of any presidential record that the former President had designated for restricted access. Thus, there is no statutory process for handling disagreements between the Archivist and either a former or sitting President with regard to a document's release.
Further, Congress provided no process to permit incumbent Presidents to consider whether privilege ought to be asserted to prevent the mandatory withholding of a predecessor's records. At any point in time, it is the incumbent President - not a former President - who is constitutionally obligated to defend the Constitution and who thus enjoys the right to assert executive privilege in order to protect the functioning of the executive branch.
President Reagan, while in office, realized that his records would be the first to be managed pursuant to the Act. He issued an executive order at the very end of his second term to specify how he hoped future Administrations would handle those records. The Reagan order required that the National Archivist follow guidelines provided by incumbent or former Presidents regarding the identification of records that might raise a substantial question of executive privilege. In the event that a former President claimed executive privilege, President Reagan's order would have required the Archivist to heed the incumbent President's determination whether or not to respect the former President's claim of privilege.
On November 1, 2001, however, George W. Bush issued a new executive order to govern his own implementation of the PRA with regard to President Reagan's records. The Bush Order included four startling rules for the implementation of the Presidential Records Act.
One would allow a former President to "designate a representative (or series or group of alternative representatives, as the former President in his discretion may determine) to act on his behalf" with regard to the handling of his records. With an eye obviously cast on President Reagan, then incapacitated with Alzheimer's Disease, Bush determined that, "[u]pon the death or disability of a former President, the former President's designated representative shall act on his behalf . . ., including with respect to the assertion of constitutionally based privileges." In other words, a former President could designate someone - a friend, a family member, a lawyer, anyone - who, upon the President's incapacity, could purport to claim the privileges of the President of the United States with regard to the disclosure of records to which the public would otherwise be legally entitled.
It may take a moment to for the full implications of this provision to sink in. "Executive privilege" is extended to Presidents of the United States in order to enable them, as the duly elected leaders of the executive branch, to keep information secret if its disclosure would disable the executive branch from fulfilling its constitutionally assigned functions. They enjoy the authority to exercise this privilege precisely because they are elected to the Presidency. A sitting President, for example, could not specify that, in the event of his incapacity while in office, executive privilege could be asserted by the family lawyer. If the President is incapacitated, the Constitution provides who shall be President in his stead. On the ascent of the Vice President to be Acting President under the Twenty-Fifth Amendment, the exercise of executive privilege would become the prerogative of the Acting President because of his constitutionally assigned role. The prerogative goes with the office, and the office can be conferred only by constitutional process. The idea that any President could abdicate this role to a person who is not himself in a presidential role is a completely new invention.
But the Bush Order goes further. It provides that, if a former President becomes incapacitated without having designated anyone to implement executive privilege on his behalf, "the family of the former President" may do so. Imagine now that it is 2021. Imagine that George W. Bush has sadly become an incapacitated widower, and has chosen no one to determine if his records ought to be protected by executive privilege. If the Bush order is still in effect, the Bush twins could designate a person of their choosing to insulate their father's records from what would otherwise be legally mandated disclosure. To paraphrase a schoolyard taunt, "Who died and made them President?"
This might seem harmless enough if the order contemplated that, as President Reagan himself provided, the key judgment would truly be the judgment of the incumbent President. Reagan implicitly recognized that, even if the courts recognize some capacity of a former President to assert privilege, it ultimately falls to each elected incumbent to protect the integrity of the executive branch during his or her tenure. But the Bush Order actually abdicates this responsibility. It provided that the National Archivist would be bound by the decision of the former President, even if the incumbent President disagrees. Going back to our 2021 scenario, this would mean that the National Archivist would be legally bound by the decision of the Bush twins' designee, even if the sitting President of the United States regarded the invocation of privilege as unnecessary or improper.
The fourth exertion of presidentialist imagination in the Bush order came in Section 11. In brief, that section seeks to preserve whatever authority a former Vice President might have to claim executive privilege, should a court agree that a Vice President has constitutional authority apart from the President to claim privilege over vice-presidential records. Prior to the Bush order, however, there is not a sentence in any statute or judicial opinion suggesting that there is any independent vice-presidential privilege to protect vice-presidential records. Lest we forget, the first Vice President to be empowered by the Bush executive order was the President's father, who served as President Reagan's Vice President.
Now, thanks to President Obama, all this constitutional nonsense is revoked. Gone is the idea that former Presidents or their families may choose favored friends to exercise the constitutional privileges of the President. Gone is the notion that an incumbent President is bound by the executive privilege determinations of prior presidents. Gone is any mention of vice-presidential privilege. President Obama has essentially returned to the straightforward, legally conventional Reagan approach.
Amid the economic breakdown, two wars abroad, legal chaos in Guantanamo, and the world's desperate hopes for Mideast peace, the bureaucratic management of presidential records may seem like small potatoes (except to journalists, historians, and law professors).
But President Obama also said yesterday, "Transparency and rule of law will be the touchstones of this presidency." His first executive order is a decisive step forward toward both, and a breath of fresh air after eight years of presidential arrogance.
(Portions of this analysis are excerpted from Peter M. Shane, Madison's Nightmare: How Executive Power Threatens American Democracy, forthcoming in May, 2009 from the University of Chicago Press.)