DRAFT By virtue of the authority vested in me as President by the Constitution and laws of the United States of America, and in order to establish policies and procedures implementing section 2204 of title 44 of the United States Code with respect to "constitutionally based privileges," including those that apply to Presidential records reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President's advisors, and to do so in a manner consistent with the Supreme Court's decisions in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), and other cases, it is hereby ordered as follows:
(Monday, October 29, 2001)
EXECUTIVE ORDER
FURTHER IMPLEMENTATION OF THE PRESIDENTIAL RECORDS ACT
Section 1. Definitions. For purposes of this Order:
(a) "Archivist" refers to the Archivist of the United States or his designee.
Section 2. Privileged Presidential Records.(b) "Presidential records" refers to those documentary materials maintained by the National Archives and Records Administration pursuant to the Presidential Records Act, 44 U.S.C. 2201-2207.
(c) "Former President" refers to the former President during whose term or terms of office particular Presidential records were created.
(a) For a period not to exceed 12 years after conclusion of a Presidency, the Archivist shall administer records in accord with the limitations on access imposed by section 2204(a) and 2204(b) of title 44 and section 6 of this Order. After expiration of that period, section 2204(c) of title 44 directs that the Archivist administer Presidential records in accordance with section 552 of title 5, the Freedom of Information Act. The Archivist must withhold records subject to exemptions (b)(1), (b)(2), (b)(3), (b)(4), (b)(6), (b)(7), (b)(8), and (b)(9) of section 552. Section 2204(c)(1) of title 44 provides that exemption (b)(5) of section 552 is not available to the Archivist as a basis for withholding records, but section 2204(c)(2) recognizes that the former President or incumbent President may assert the constitutionally based privileges ordinarily encompassed within exemption (b)(5) of section 552. The President's constitutionally based privileges subsume privileges for records that reflect military, diplomatic, or national security secrets (the state secrets privilege); communications of the President or his advisors (the presidential communications privilege); legal advice or legal work (the attorney-client or attorney work product privileges); and the deliberative processes of the President or his advisors (the deliberative process privilege).
Section 3. Absent compelling circumstances, the incumbent President will concur in the privilege decision of the former President in response to a request for access under section 2204(c)(1). When the incumbent President concurs in the decision of the former President to request withholding of records within the scope of a constitutionally based privilege, the incumbent President will support that privilege claim in any forum in which the privilege claim is challenged.(b) In Nixon v. Administrator of General Services, the Supreme Court explained the need for the President's constitutional privileges for confidential communications: "Unless [the President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends." 433 U.S. at 448-49. The Court cited the precedent of the Constitutional Convention, the records of which were "sealed for more than 30 years after the Convention." Id. at 447 n.11. Based on those precedents and principles, the Court ruled that constitutionally based privileges available to a President "survive[] the individual President's tenure." Id. at 449. The Court also held that a former President, although no longer a government official, may assert constitutionally based privileges with respect to his Administration's Presidential records, and expressly rejected the argument that "only an incumbent President can assert the privilege of the Presidency." Id. at 448.
(c) As a threshold matter, a party seeking to overcome the constitutionally based privileges that apply to Presidential records must establish at least a "demonstrated, specific need" for particular records, a standard that turns on the nature of the proceeding and the importance of the information to that proceeding. See United States v. Nixon, 418 U.S. at 713. Notwithstanding the constitutionally based privileges that apply to Presidential records, many former Presidents have authorized access, after what they considered an appropriate period of repose, to those records or categories of records (including otherwise privileged records) to which the former Presidents or their representatives in their discretion decided to authorize access. See Nixon v. Administrator of General Services, 433 U.S. at 450-51.
(d) Consistent with the requirements of the Constitution and the Presidential Records Act, the Archivist shall administer Presidential records under section 2204(c) of title 44 in the following manner:
1. At an appropriate time after the Archivist receives a request for access to Presidential records under section 2204(c)(1), the Archivist shall provide notice to the former President and the incumbent President and, as soon as practicable, shall provide the former President and the incumbent President copies of any records that the former President and the incumbent President request to review.
2. 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 disclose the records during this period of review or when requested by the former President to extend the time for review.
3. After review of the records in question, or of any other potentially privileged records reviewed by the former President, the former President shall indicate to the Archivist whether the former President requests withholding of or authorizes access to any privileged records.
4. Concurrent with or after the former President's review of the records, the incumbent President or his designee may also review the records in question, or may utilize whatever other procedures the incumbent President deems appropriate to decide whether to concur in the former President's decision to request withholding of or authorize access to the records.
(i) When the former President has requested withholding of the records:
(1) If under the standard set forth in Section 3 below, the incumbent President concurs in the former President's decision to request withholding of records as privileged, the incumbent President shall so inform the former President. The Archivist shall not permit access to those records by a requester unless and until an incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final court order.
(ii) When the former President has authorized access to the records:(2) If under the standard set forth in Section 3 below, the incumbent President does not concur in the former President's decision to request withholding of the records as privileged, the incumbent President shall so inform the former President. Because the former President independently retains the right to assert constitutionally based privileges, the Archivist shall not permit access to the records by a requester unless and until an incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final court order.
(1) If under the standard set forth in Section 3 below, the incumbent President concurs in the former President's decision to authorize access to the records, the Archivist shall permit access to the records by the requester.
(2) If under the standard set forth in Section 3 below, the incumbent President does not concur in the former President's decision to authorize access to the records, the incumbent President may independently order the Archivist to withhold privileged records. In that instance, the Archivist shall not permit access to the records by a requester unless and until an incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final court order.
Section 4. This Order does not expand or limit an incumbent President's right to obtain access to the records of a former President pursuant to section 2205(2)(B).
Section 5. This Order does not expand or limit the rights of a court, House of Congress, or authorized committee or subcommittee of Congress to obtain access to the records of a former President pursuant to section 2205(2)(A) or section 2205(2)(C). With respect to such requests, the former President shall review the records in question and, within 21 days of receiving notice from the Archivist, indicate his decision with respect to any privilege. The incumbent President shall indicate his decision with respect to any privilege within 21 days after the former President has indicated his decision. Those periods may be extended by the former President or incumbent President for requests that are burdensome. The Archivist shall not permit access to the records unless and until an incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final court order.
Section 6. This Order does not limit the former President's or an incumbent President's right to withhold records on any ground supplied by the Constitution, statute, or regulation. In particular, during the period not to exceed 12 years after the conclusion of a Presidency to which sections 2204(a)-(b) of title 44 apply, a former or incumbent President may request withholding of any privileged records not already protected by sections 2204(a) of title 44. If the former President or incumbent President so requests, the Archivist shall not permit access to any such privileged records unless and until an incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final court order.
Section 7. This Order is not intended to indicate whether and under what circumstances a former President should assert or waive any privilege. The Order is intended only to establish procedures for former and incumbent Presidents to make privilege determinations.
Section 8. The former President may designate a representative (or series or group of alternative representatives, as the former President in his discretion may determine) to act on his behalf for purposes of the Act and this Order. Upon the death of a former President, the former President's designated representative shall act on his behalf for purposes of the Act and this Order, including with respect to the assertion of confidentially based privileges. In the absence of any designated representative after the former President's death, the family of the former President may designate a representative (or series or group of alternative representatives, as they in their discretion may determine) to act on the President's behalf for purposes of the Act and this Order, including with respect to the assertion of constitutionally based privileges.
Section 9. This Order is intended only to improve the internal management of the Executive branch and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.
Section 10. Executive Order 12667, issued January 18, 1989, is revoked.