Presidential Records

This executive order revokes Bush-era EO 13233 and establishes procedures for asserting executive privilege over presidential records held by NARA. It creates a structured process where both incumbent and former presidents can claim privilege, with specific review roles for the Attorney General, White House Counsel, and Archivist, and sets 30-day notice periods before disclosure.

Federal Register Open PDF 74 FR 4669

Impact dates

Feb 20, 2009
Archivist may disclose records after 30-day notice period unless privilege claimed or extension granted
Feb 20, 2009
Archivist must notify incumbent and former presidents of determination at least 30 days prior to disclosure (former president privilege claims)

Key directives

Revoke Executive Order 13233 of November 1, 2001
Archivist must provide 30-day notice to incumbent and former presidents before disclosing records
Archivist must identify materials raising 'substantial question of executive privilege'
Attorney General and White House Counsel must review records and consult on privilege claims
If privilege invoked, written notice to former president, Archivist, and Attorney General required
Archivist must notify presidents at least 30 days prior to disclosure when former president claims privilege
Archivist must abide by incumbent president's instructions unless directed by final court order

Who is ordered

Timeline

Immediate

revocation of EO 13233
new notice procedures take effect for pending and future records requests

Near term (90d)

Archivist and White House staff must adapt to new consultation requirements
potential backlog as 30-day notice periods apply

Long term

established precedent for inter-branch negotiations over presidential records
potential litigation testing former president privilege claims
cumulative effect on historical record accessibility

Risks & tensions

Former president privilege claim creates tension: Archivist must independently determine whether to honor it, but also must follow incumbent president's instructions—potential for conflicting directives
30-day periods may be shortened under NARA regulations section 1270.44, but circumstances for shortening are not defined in this text
No enforcement mechanism specified if Archivist disregards instructions; relies on political and legal pressure
Definition of 'substantial question of executive privilege' is broad and discretionary, potentially covering wide swath of records
Quiet consequential: structures access to historical records with significant implications for accountability and scholarship, but low public salience