Out of Sight, But Not Out of Mind: How Executive Order 13,233 Expands Executive Privilege While Simultaneously Preventing Access to Presidential Records

Abstract

This paper explores the impact of Executive Order 13,233 on public access to presidential materials and the context in which President Bush issued the Order on November 1, 2001. It begins by defining executive privilege, tracing its creation, and examining how the different branches of government have interpreted it. The paper continues by describing how the Order changes and interacts with the previous law surrounding executive privilege, examines the process for gaining access to presidential records, and explains how the Order violates constitutional separation of powers principles. Finally, the paper considers the possibility of both a legislative and judicial solution to the problem and analyzes why the non-Executive branches are better suited to resolve the dispute.