[House Report 107-790]
[From the U.S. Government Publishing Office]



107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-790
======================================================================
 
              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\
---------------------------------------------------------------------------
    \1\ Public Law 95-591, codified at 44 U.S.C. 2201-2207.
    \2\ 44 U.S.C. 2203(f)(1).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \5\ 44 U.S.C. 2204(C)(2).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \6\ 124 Cong. Rec. 36844 (1978).
---------------------------------------------------------------------------

                        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\
---------------------------------------------------------------------------
    \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.''
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \9\ 66 Fed. Reg. 56025 (2001), 44 U.S.C. 2204 note.
---------------------------------------------------------------------------
     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.

                                
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