Presidential Records

This executive order establishes procedures for how incumbent and former Presidents can assert executive privilege to block the National Archives from releasing presidential records under the Presidential Records Act of 1978. It creates a 30-day review period, specifies consultation requirements between the Archivist, Attorney General, and White House Counsel, and sets up a process where both sitting and former presidents can make privilege claims.

54 FR 3403

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Impact dates

Date TBD
Archivist may disclose records after 30-day notice period unless privilege claim received or extension ordered
Feb 17, 1989
Archivist must notify incumbent and former Presidents of determination at least 30 days prior to disclosure

Key directives

Archivist must provide notice to incumbent and former Presidents before disclosing records
30-day waiting period after notice before disclosure, unless extended by presidential instruction or shortened under 36 C.F.R. § 1270.44
Attorney General and White House Counsel must review records and consult on privilege claims
Archivist must notify presidents of determination at least 30 days prior to disclosure
Former President's privilege claim reviewed separately from incumbent President's determination
Archivist bound by incumbent President's instructions unless overridden by final court order

Who is ordered

Timeline

Immediate

Procedures for notice of intent to disclose records take effect
30-day hold period before disclosure becomes effective

Near term (90d)

Archivist to implement notification protocols to incumbent and former Presidents

Long term

Ongoing framework for executive privilege assertions affecting historical record access
Potential litigation establishing precedent on former presidential privilege claims

Risks & tensions

Creates tension between presidential confidentiality and public access to historical records
Former President's independent privilege claim may conflict with incumbent President's preference for disclosure
Vague standard 'substantial question of Executive privilege' leaves significant discretion to Archivist and courts
No judicial enforcement right per Section 5, yet 'final court order' referenced as override—potential ambiguity
30-day periods may be shortened under unspecified 'circumstances' in 36 C.F.R. § 1270.44, creating procedural uncertainty