Judge strikes down Bush's exclusive control of presidential electronic records

WASHINGTON, D.C. — An agreement that former President Bush would have, in private life, exclusive control over all the electronic records created by the Executive Office of the President during his term was arbitrary, capricious, an abuse of discretion and contrary to law, a federal district judge in Washington, D.C. ruled in late February.

Judge Charles Richey ordered Acting Archivist Trudy Peterson not to enforce the agreement signed the day Bush left office by the former president and the then-Archivist of the United States Don Wilson. Wilson left Washington shortly after Bush in order to head up the Bush Presidential Library at Texas A & M University in College Station, Tex.

Richey said the agreement violates the Presidential Records Act, enacted after President Richard Nixon left office, which requires the Archivist to assume responsibility for Presidential records, to preserve them and to make them public as rapidly and completely as possible under the terms of the Act. Although an out-going President may designate some restrictions on particular categories of records, it is the Archivist who makes the final decisions about what will be restricted, Richey ruled.

The court also held that the agreement was unconstitutional. The Constitution gives an incumbent President authority to direct current executive branch officials. The Bush- Wilson agreement would have given the power to direct the Archivist’s actions to the former President, the court said. (American Historical Association v. Peterson and Bush; Counsel: Michael Tankersley, Washington, D.C.)