Executive Order 13233 limited access to the records of former

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...

President President most commonly refers to: *President (corporate title) *President (education), a leader of a college or university *President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ful ...

s to a higher degree than the previous Order 12667, which it superseded. It was drafted by then

White House Counsel The White House counsel is a senior staff appointee of the president of the United States whose role is to advise the president on all legal issues concerning the president and their administration. The White House counsel also oversees the Of ...

Alberto Gonzales Alberto R. Gonzales (born August 4, 1955) is an American lawyer who served as the 80th United States Attorney General, appointed in February 2005 by President George W. Bush, becoming the highest-ranking Hispanic American in executive governme ...

and issued by

George W. Bush George Walker Bush (born July 6, 1946) is an American politician who served as the 43rd president of the United States from 2001 to 2009. A member of the Republican Party, Bush family, and son of the 41st president George H. W. Bush, he ...

on November 1, 2001. Section 13 of Order 13233 revoked which was issued by

Ronald Reagan Ronald Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...

on January 18, 1989. was partially struck down in October 2007. The order was revoked on January 21, 2009 by

Barack Obama Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the U ...

's , which essentially restored most of the wording of Order 12667 with some modifications.

Background

In 1974,

Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...

passed the

Presidential Recordings and Materials Preservation Act The Presidential Recordings and Materials Preservation Act (PRMPA) of 1974 (, codified at note is an act of Congress enacted in the wake of the August 1974 resignation of President Richard M. Nixon.Richard Nixon Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 to 1974. A member of the Republican Party, he previously served as a representative and senator from California and was ...

in federal custody to prevent their destruction. The legislative action was intended to reduce secrecy, while allowing

historian A historian is a person who studies and writes about the past and is regarded as an authority on it. Historians are concerned with the continuous, methodical narrative and research of past events as relating to the human race; as well as the stu ...

s to perform their responsibilities. In 1972, decades worth of official and unofficial

Federal Bureau of Investigation The Federal Bureau of Investigation (FBI) is the domestic intelligence and security service of the United States and its principal federal law enforcement agency. Operating under the jurisdiction of the United States Department of Justice, ...

records had been destroyed, upon the death of

J. Edgar Hoover John Edgar Hoover (January 1, 1895 – May 2, 1972) was an American law enforcement administrator who served as the first Director of the Federal Bureau of Investigation (FBI). He was appointed director of the Bureau of Investigation � ...

, by his longtime secretary,

Helen Gandy Helen Wilburforce Gandy (April 8, 1897 – July 7, 1988) was the longtime secretary to Federal Bureau of Investigation director J. Edgar Hoover, who called her "indispensable". Serving in that role for 54 years she exercised great behind-the-sce ...

. The

Presidential Records Act The Presidential Records Act (PRA) of 1978, , is an Act of the United States Congress governing the official records of Presidents and Vice Presidents created or received after January 20, 1981, and mandating the preservation of all presidential ...

of 1978 expanded such protection of historical records, by mandating that the records of former presidents would automatically become the property of the federal government upon their departures from the

Oval Office The Oval Office is the formal working space of the President of the United States. Part of the Executive Office of the President of the United States, it is located in the West Wing of the White House, in Washington, D.C. The oval-shaped room ...

, and then transferred to the

Archivist of the United States The Archivist of the United States is the head and chief administrator of the National Archives and Records Administration (NARA) of the United States. The Archivist is responsible for the supervision and direction of the National Archives. The ...

, thereafter to be made available to the public after no more than 12 years. Thus, the presidential papers of

were due to be made public when

took office in January 2001. However, in a

White House The White House is the official residence and workplace of the president of the United States. It is located at 1600 Pennsylvania Avenue NW in Washington, D.C., and has been the residence of every U.S. president since John Adams in 1800. ...

memo dated March 23, 2001, the Counsel to the President conveyed the following to U.S Archivist

John W. Carlin John William Carlin (born August 3, 1940) is an American educator and politician who served as the 40th governor of Kansas from 1979 to 1987, and the archivist of the United States from May 30, 1995, to February 15, 2005. He teaches at Kansas ...

Section 2(b) of Executive Order 12667, issued by former President
Ronald Reagan Ronald Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...
on January 16, 1989, requires the Archivist of the United States to delay release of Presidential records at the instruction of the current President. On behalf of the President, I instruct you to extend for 90 days (until June 21, 2001) the time in which President Bush may claim a constitutionally based privilege over the Presidential records that former President Reagan, acting under Section 2204(a) of Title 4, has protected from disclosure for the 12 years since the end of his Presidency. This directive applies as well to the Vice Presidential records of former Vice President
George H. W. Bush George Herbert Walker BushSince around 2000, he has been usually called George H. W. Bush, Bush Senior, Bush 41 or Bush the Elder to distinguish him from his eldest son, George W. Bush, who served as the 43rd president from 2001 to 2009; pr ...
.

This instruction was repeated on June 6, 2001, before the 90 days had elapsed, giving a new deadline of August 31, 2001. On the day of this deadline, Alberto Gonzales instructed the Archivist to wait a few additional weeks. On November 1, 2001, Bush issued Executive Order 13233, limiting the access to the records of former

U.S. Presidents The president of the United States is the head of state and head of government of the United States, indirectly elected to a four-year term Term may refer to: * Terminology, or term, a noun or compound word used in a specific context, in pa ...

...reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President's advisers, and to do so in a manner consistent with the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
's decisions in ''Nixon v. Administrator of General Services'', 433 U.S. 425 (1977), and other cases...

Criticism

The

Society of American Archivists The Society of American Archivists is the oldest and largest archivist association in North America, serving the educational and informational needs of more than 5,000 individual archivist and institutional members. Established in 1936, the organi ...

and the

American Library Association The American Library Association (ALA) is a nonprofit organization based in the United States that promotes libraries and library education internationally. It is the oldest and largest library association in the world, with 49,727 members a ...

were critical of the president's exercise of executive power by issuing EO 13233. They claimed that the action "violates both the spirit and letter of existing U.S. law on access to presidential papers as clearly laid down in ," noting that the order "potentially threatens to undermine one of the very foundations of our nation." John Wertman, a member of former President

Bill Clinton William Jefferson Clinton ( né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and agai ...

's White House staff, wrote an

op-ed An op-ed, short for "opposite the editorial page", is a written prose piece, typically published by a North-American newspaper or magazine, which expresses the opinion of an author usually not affiliated with the publication's editorial board. O ...

piece critical of the executive order that appeared in ''

The Washington Post ''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large nati ...

'' on February 26, 2006. Wertman asserted that Order 13233 "represents a wholesale change in the way the federal government preserves and promotes our national public memory." He also included a quote from former President

Gerald Ford Gerald Rudolph Ford Jr. ( ; born Leslie Lynch King Jr.; July 14, 1913December 26, 2006) was an American politician who served as the 38th president of the United States from 1974 to 1977. He was the only president never to have been elected ...

on the topic: "I firmly believe that after X period of time, presidential papers, except for the most highly sensitive documents involving our national security, should be made available to the public, and the sooner the better."

Response

Before January 21, 2009, there were three separate attempts to repeal Order 13233. In 2002, shortly after Order 13233 went into effect, a

bipartisan Bipartisanship, sometimes referred to as nonpartisanship, is a political situation, usually in the context of a two-party system (especially those of the United States and some other western countries), in which opposing political parties find co ...

group of

U.S. House of Representatives The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the lower chamber of the United States Congress, with the Senate being the upper chamber. Together they ...

members, led by Stephen Horn ( R- CA),

Dan Burton Danny Lee Burton (born June 21, 1938) is an American politician. Burton is the former U.S. Representative for , and previously the , serving from 1983 until 2013. He is a member of the Republican Party and was part of the Tea Party Caucus. Ear ...

(R- IN),

Jan Schakowsky Janice Schakowsky ( ; née Danoff; born May 26, 1944) is an American politician who has served as the United States House of Representatives, U.S. representative from since 1999. She is a member of the Democratic Party (United States), Democrat ...

( D- IL), and

Henry Waxman Henry Arnold Waxman (born September 12, 1939) is an American politician who served as a U.S. representative from California from 1975 to 2015. He is a member of the Democratic Party. His district included much of the western part of the city of L ...

(D-CA) wrote and debated a bill aimed at repealing Order 13233, thereby restoring Order 12667 to full force and effect. The bill passed the

House Committee on Oversight and Government Reform The Committee on Oversight and Reform is the main investigative committee of the United States House of Representatives. The committee's broad jurisdiction and legislative authority make it one of the most influential and powerful panels in the ...

, which was chaired by Burton at the time, but never saw floor action. On March 1, 2007, a subcommittee of the Committee on Government Reform held a hearing on bill , the Presidential Records Act Amendments of 2007. This bill was also introduced by Waxman, and its goal was again to void Order 13233. At the hearing, several historians argued that Order 13233 has severely curtailed public access to presidential records and added to delays in obtaining materials from presidential libraries. The bill was reported favorably by the full committee, and on March 14, 2007, the House passed the bill in an overwhelmingly bipartisan vote of 333-93. The bill also passed on June 13, 2007 in a

Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...

committee, but was never brought to the floor for a vote, reportedly due to a hold placed on the measure by Senator

Jim Bunning James Paul David Bunning (October 23, 1931 – May 26, 2017) was an American professional baseball pitcher and politician who represented Kentucky in both chambers of the United States Congress. He was the sole Major League Baseball athlete to ha ...

(R- KY). As a result, the bill died when the

110th Congress The 110th United States Congress was a meeting of the legislative branch of the United States federal government, between January 3, 2007, and January 3, 2009, during the last two years of the Presidency of George W. Bush. It was composed of ...

ended. On January 7, 2009, the House of the

111th Congress The 111th United States Congress was a meeting of the legislative branch of the United States federal government from January 3, 2009, until January 3, 2011. It began during the last weeks of the George W. Bush administration, with th ...

passed , introduced by

Edolphus Towns Edolphus "Ed" Towns Jr. (born July 21, 1934) is an American politician who served in the United States House of Representatives from 1983 to 2013. A Democrat from New York, Towns was Chairman of the House Oversight and Government Reform Committee ...

(D- NY), section 3 of which would, if enacted, negate Order 13233. The bill was co-sponsored by

(R-IN),

Darrell Issa Darrell Edward Issa ( ; born November 1, 1953) is an American businessman and politician who has served as the U.S. representative for California's 50th congressional district since 2021. A member of the Republican Party, he previously served i ...

(R-CA),

(D-CA), William Clay (D-MO), and

Brad Sherman Bradley James Sherman (born October 24, 1954) is an American accountant and politician serving as the U.S. representative for California's 30th congressional district since 2013. A member of the Democratic Party, he first entered Congress in 19 ...

(D-CA). The bill died in the Senate

Committee on Homeland Security and Governmental Affairs The United States Senate Committee on Homeland Security and Governmental Affairs is the chief oversight committee of the United States Senate. It has jurisdiction over matters related to the Department of Homeland Security and other homeland s ...

.H.R. 35
, Library of Congress

Lawsuit

In November 2001, the

National Security Archive The National Security Archive is a 501(c)(3) non-governmental, non-profit research and archival institution located on the campus of the George Washington University in Washington, D.C. Founded in 1985 to check rising government secrecy. The Nat ...

, the

American Historical Association The American Historical Association (AHA) is the oldest professional association of historians in the United States and the largest such organization in the world. Founded in 1884, the AHA works to protect academic freedom, develop professional s ...

and other plaintiffs filed a lawsuit in the D.C. District Court against the

National Archives and Records Administration The National Archives and Records Administration (NARA) is an " independent federal agency of the United States government within the executive branch", charged with the preservation and documentation of government and historical records. It i ...

and the Archivist, claiming

constitutional A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princip ...

problems with the order, and pointing out that "access to materials may be delayed for an unlimited period of time after the expiration of the 12-year restriction period while a former president and the incumbent president ‘review’ materials proposed for release", because of § 3(b) of the order, which states

After receiving the records he requests, the former President shall review those records as expeditiously as possible, and for no longer than 90 days for requests that are not unduly burdensome. The Archivist shall not permit access to the records by a requester during this period of review or when requested by the former President to extend the time for review.

While most of the lawsuit was found to be

nonjusticiable Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party ...

at this time due to lack of

ripeness In United States law, ripeness refers to the readiness of a case for litigation; "a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." For example, if a ...

, in October 2007 the Court held that "the Archivist’s reliance on § 3(b) of Executive Order 13,233 is arbitrary, capricious, an abuse of discretion, and not in accordance with law in violation of the Administrative Procedure Act" and enjoined "the Archivist from further relying on § 3(b) of Executive Order 13,233". The rest of the lawsuit was dismissed

without prejudice Prejudice is a legal term with different meanings, which depend on whether it is used in criminal, civil, or common law. In legal context, "prejudice" differs from the more common use of the word and so the term has specific technical meanings. ...

Revocation

On January 21, 2009, Executive Order 13233 was revoked by executive order of President Barack Obama. Obama essentially restored the wording of Executive Order 12667, by repeating most of the text of that order with minor changes. One notable change is that vice presidential records are explicitly covered by his new order.

References

Archives.gov
- 'Statement by

to the Subcommittee on Government Efficiency, Financial Management, and Intergovernmental Relations of the Committee on Government Reform House of Representatives Congress of the United States: On the Implementation and Effectiveness of the Presidential Records Act of 1978' (November 6, 2001)
Archives.gov
-

Hugh Davis Graham Hugh Davis Graham (September 2, 1936 – March 26, 2002) was an American historian and sociologist. He was the author of several books about the civil rights movement. Early life Graham was born on September 2, 1936 in Little Rock, Arkansas, one ...

, Stanley I. Kutler,

Organization of American Historians The Organization of American Historians (OAH), formerly known as the Mississippi Valley Historical Association, is the largest professional society dedicated to the teaching and study of American history. OAH's members in the U.S. and abroad inc ...

, Public Citizen, Inc., and

The Reporters Committee for Freedom of the Press The Reporters Committee for Freedom of the Press (RCFP) is a nonprofit organization based in Washington, D.C., that provides pro bono legal services and resources to and on behalf of journalists. The organization pursues litigation, offers direct ...

, Plaintiffs, v. The National Archives and Records Administration, and

, Archivist of the United States, Defendants. Complaint for Declaratory, Injunctive and Mandamus Relief (November 28, 2001)
FAS.org
- 'Executive Order 13233 Further Implementation of the Presidential Records Act' (text of EO 13233),

, (November 1, 2001)

External links

Executive Order 13233 - Further Implementation of the Presidential Records Act
(November 5, 2001): Full text of Executive Order 13233
ALA.org
- 'Executive Order 13233',

Archivists.org
- '

responds to Executive Order 13233 on Presidential Papers' (November 6, 2001)
Archivists.org
- 'Call to Action on Executive Order 13233: A Message from President Steve Hensen', Society of American Archivists (November 15, 2001)

{{Webarchive, url=https://web.archive.org/web/20070927010302/http://www.arl.org/info/frn/gov/hornletter.html , date=September 27, 2007 - 'Serious concerns with Executive Order 13233 on Further Implementation of the Presidential Records Act' (Letter to Representative Stephen Horn),

American Association of Law Libraries The American Association of Law Libraries "is a nonprofit educational organization with over 5,000 members nationwide. AALL's mission is to promote and enhance the value of law libraries to the legal and public communities, to foster the professi ...

Association of Research Libraries The Association of Research Libraries (ARL) is a nonprofit organization of 127 research libraries at comprehensive, research institutions in Canada and the United States. ARL member libraries make up a large portion of the academic and research l ...

National Humanities Alliance National may refer to: Common uses * Nation or country ** Nationality – a ''national'' is a person who is subject to a nation, regardless of whether the person has full rights as a citizen Places in the United States * National, Maryland, c ...

FindArticles.com
- 'American Political Science Association response to Executive Order 13233' (Letter to Representative Stephen Horn), Robert D. Putnam, ''

Presidential Studies Quarterly ''Presidential Studies Quarterly'' is a quarterly peer-reviewed political science journal dedicated to the scholarly study of the presidency of the United States. It was established in 1971 as ''Center House Bulletin'', obtaining its current name i ...

'' (March 2002)
MUOhio.edu
- Draft Presidential Records Act Executive Order: A "Disaster" for History', Bruce Craig, National Coordinating Committee for the Promotion of History (November 1, 2001)

- 'The Imperial Presidency Strikes Back: Executive Order 13,233, the National Archives, and the Capture of Presidential History,' Stephen H. Yuhan, ''

New York University Law Review The ''New York University Law Review'' is a bimonthly general law review covering legal scholarship in all areas, including legal theory and policy, environmental law, legal history, and international law. The journal was established in 1924 as a ...

(October 2004) 2001 in American politics 2001 in American law Censorship in the United States 13233

Executive Order 13233 Executive Order 13233 limited access to the records of former United States Presidents to a higher degree than the previous Order 12667, which it superseded. It was drafted by then White House Counsel Alberto Gonzales and issued by George W. Bu ...