More than a dozen House Democrats last week proposed legislation that would establish a formal process former presidents could use to shield their presidential records from public scrutiny.

Rep. Edolphus Towns (D-N.Y.) and 16 other Democrats proposed H.R. 3071, which would amend the Presidential Records Act to allow former presidents to assert a "constitutionally based privilege" against disclosing presidential records. Under the bill, this would start a process requiring the current president to judge that assertion.


A 2001 Bush administration executive order includes many of the same concepts in the Towns legislation. Passage of the bill would cement those concepts into law and make it less likely that the process changes going forward.

While support for the bill among Democrats seems to imply an effort to ensure that President Obama can benefit from the change, Towns said the bill is about making sure that tight deadlines are observed in cases where the release of information is challenged.

"This bill will ensure that the public has access to presidential records in a timely manner and it will allow historians to tell a complete story about presidential administrations," Towns said. "The bill sets strict deadlines for the President and former President to review records before they are released to the public."

Specifically, the bill would require the Archivist of the United States to give notice to the former president and incumbent president that he intends to make records public. After 60 days, the archivist could release all records except those that either the former or current president claims should be kept private.

If the former president makes a claim of constitutionally based privilege, the archivist must consult with the current president. If the president upholds the claim, the archivist could not release the records unless the former president changes his mind, or if directed to release them by a court order.

If the current president does not uphold the claim, the records must be made public, unless the former president gets a court order that stops the release.

The term "constitutionally based privilege" is not defined in the bill. However, it reflects a concept that past administrations have relied on as a basis for withholding sensitive information from the public view, such as information relating to military or national security secrets, legal advice and the deliberative process between the president and his advisers.

In Nixon v. Administrator of General Services (1977), the Supreme Court held that former presidents can assert constitutionally based privileges with respect to their records.

— This story was updated at 11:10 a.m. and again on Tuesday morning to include Towns' comments.