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Showdown Brewing Over Presidential Papers

Despite a White House veto threat, the House on Wednesday overwhelmingly approved legislation to overturn a Bush administration order limiting public access to the papers of past presidents, and Senate Democrats quickly moved to introduce the same measure.

The House bill — the Presidential Records Act Amendments — and the companion measure introduced Wednesday evening by Democratic Sens. Jeff Bingaman (N.M.) and Patrick Leahy (Vt.) would overturn President Bush’s November 2001 executive order that changed the rules for release of the records of former presidents and vice presidents.

Presidential records are subject to the Freedom of Information Act five years after the president leaves office, except for “confidential records,” which are protected from FOIA for 12 years. After that time, all of the records are subject to FOIA unless either the current or former president asserts that the records are privileged.

According to Sharon Fawcett, assistant archivist for presidential libraries at the National Archives, presidential records at that point have fewer disclosure protections than documents from other federal agencies — notably, documents that are part of the “deliberative” process in a federal agency can be exempt from FOIA, but not deliberative presidential documents.

Bush’s 2001 executive order changed the burden of proof for privilege claims — instead of the former president having to prove a constitutional right to prevent release of the records, the former or current president only would have to assert privilege to prevent the release of a document, and a person requesting the records would have to prove in court that they are not covered by a constitutional privilege. Constitutional privileges include matters such as national security secrets or legal advice provided to the president. The order also extended the power to declare privilege to the families, heirs or other designees of the president, and also extended the right to the vice president.

House Democrats wrapped their bill into a package of “good-government” measures that passed on Wednesday, including legislation to make it easier for citizens to obtain information from agencies under the FOIA and a bill to require greater disclosure of donors to presidential library funds.

In a floor statement Tuesday evening, Bingaman said that failure to pass the presidential records bill would limit the ability of Congress “to investigate previous administrations, not to mention limit the ability of historians and other interested parties to research the past.” In 2003, Bingaman offered a one-sentence bill that simply would have repealed the Bush executive order.

But the presidential records bill is not simply a Democratic agenda item. The then-House Government Reform Committee passed a nearly identical bill in 2002 under the leadership of then-Chairman Dan Burton (R-Ind.).

In a report accompanying that bill, the committee wrote that Bush’s executive order “violates both the letter and the spirit of the Presidential Records Act of 1978,” which first established public ownership of presidential records. Bush’s order, Burton’s committee wrote, “converts the Act’s presumption of disclosure into a presumption of non-disclosure … [and] 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.”

The Republican-led House never took up the legislation, but current Oversight and Government Reform Chairman Henry Waxman (D-Calif.) made it a key issue and ran the bill through his committee last week, making many of the same arguments his old nemesis Burton had made.

The White House issued a veto threat Tuesday night, arguing that the bill “would improperly impinge on the president’s constitutional authority, in violation of settled separation of powers principles.”

Congress “may not interfere with the President’s exercise of his authority to establish procedures regarding the assertion of constitutionally based privileges,” the White House statement said. “Executive privilege is not subject to Congressional regulation, but rather arises directly from the Constitution itself.”

Supporters of the legislation pointed out that the 333-93 vote in the House in favor of the bill Wednesday would be enough to override a presidential veto.

While the bill would have no direct effect on the ability of Congress to demand documents from the White House as part of ongoing oversight activities, one Democratic committee aide said, “We see the executive order as part of a broader effort within the Bush administration to maintain secrecy and not release information.”

The activist group Public Citizen also has a pending legal challenge to the executive order.

Fawcett said the Bush executive order had so far affected very few records. Since Bush signed the executive order, the National Archives has released 2.5 million pages of presidential records and have closed only 64 pages because of a claim of privilege, she said. The closed records are all from former President Ronald Reagan’s administration, including a memo to Reagan from his counsel regarding the pardons of Oliver North and John Poindexter for their involvement in the Iran-Contra scandal.