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[Senate Report 111-21]
[From the U.S. Government Publishing Office]

111th Congress 
 1st Session                     SENATE                          Report
                                                                 111-21
_______________________________________________________________________

                                                        Calendar No. 64
 
              PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2009

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                H.R. 35

TO AMEND CHAPTER 22 OF TITLE 44, UNITED STATES CODE, POPULARLY KNOWN AS 
     THE PRESIDENTIAL RECORDS ACT, TO ESTABLISH PROCEDURES FOR THE 
  CONSIDERATION OF CLAIMS OF CONSTITUTIONALLY BASED PRIVILEGE AGAINST 
                   DISCLOSURE OF PRESIDENTIAL RECORDS

                  May 19, 2009.--Ordered to be printed
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas              GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana          JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri           LINDSEY GRAHAM, South Carolina
JON TESTER, Montana
ROLAND W. BURRIS, Illinois
MICHAEL BENNET, Colorado

                  Michael L. Alexander, Staff Director
                     Kevin J. Landy, Chief Counsel
                      Jonathan M. Kraden, Counsel
              Adam R. Sedgewick, Professional Staff Member
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
                    John K. Grant, Minority Counsel
                  Trina Driessnack Tyrer, Chief Clerk
                                                        Calendar No. 64
111th Congress
                                 SENATE
                                                                 Report
 1st Session                                                     111-21

======================================================================

              PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2009

                                _______
                                

                  May 19, 2009.--Ordered to be printed

                                _______
                                

Mr. Lieberman, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany H.R. 35]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (H.R. 35) to amend 
chapter 22 of title 44, United States Code, popularly known as 
the Presidential Records Act, to establish procedures for the 
consideration of claims of constitutionally based privilege 
against disclosure of Presidential records, having considered 
the same, reports favorably thereon with an amendment and 
recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................6
 VI. Congressional Budget Office Cost Estimate........................6
VII. Changes in Existing Law..........................................7

                         I. Purpose and Summary

    H.R. 35, the ``Presidential Records Act Amendments of 
2009,'' was introduced on January 6, 2009. The legislation 
amends the Presidential Records Act of 1978 to establish a 
process by which incumbent and former Presidents can review 
Presidential records whose release is regulated by the 
Presidential Records Act in order to determine whether to 
assert that executive privilege limits the release of those 
records.\1\
---------------------------------------------------------------------------
    \1\Section 2201(2) of the Presidential Records Act of 1978 defines 
Presidential records as ``documentary materials . . . created or 
received by the President, his immediate staff, or a unit or individual 
of the Executive Office of the President whose function is to advise 
and assist the President, in the course of conducting activities which 
relate to or have an effect upon the carrying out of the 
constitutional, statutory, or other official or ceremonial duties of 
the President. Such term (A) includes any documentary materials 
relating to the political activities of the President or members of his 
staff, but only if such activities relate to or have a direct effect 
upon the carrying out of constitutional, statutory, or other official 
or ceremonial duties of the President; but (B) does not include any 
documentary materials that are (i) official records of an agency . . . 
(ii) personal records; (iii) stocks of publications and stationery; or 
(iv) extra copies of documents produced only for convenience of 
reference, when such copies are clearly so identified.'' 44 U.S.C. 
2201(2).
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              II. Background and Need for the Legislation

    Congress passed the Presidential Records Act of 1978 
(``PRA'' or ``the Act'') in the wake of the Watergate scandal 
and the resignation of President Richard M. Nixon. Concerned 
about the possible destruction and loss of President Nixon's 
records, Congress gave the Archivist of the United States 
custody of former Presidents' records.\2\ The Act establishes a 
presumption that most Presidential records should ultimately be 
released to the public by imposing on the Archivist ``an 
affirmative duty to make such records available to the public 
as rapidly and completely as possible consistent with the 
provisions of this Act.''\3\
---------------------------------------------------------------------------
    \2\Although signed into law by President Carter, the PRA only 
applied to the records of Presidents who took office starting on 
January 20, 1981 or later.
    \3\44 U.S.C. 2203(f)(1).
---------------------------------------------------------------------------
    Under the Act, however, a President has discretion to 
restrict access to his records for up to twelve years after 
leaving office. Following that period, records are to be 
released in accordance with the standards contained in the 
Freedom of Information Act (``FOIA''), with two key exceptions. 
First, FOIA's ``deliberative process'' exemption, pertaining to 
inter-agency or intra-agency memorandums or letters (5 U.S.C. 
552(b)(5)), does not apply. Second, the Act implicitly allows a 
President to argue that executive privilege shields certain 
records from public release, noting that ``[n]othing in this 
Act shall be construed to confirm, limit, or expand any 
constitutionally-based privilege which may be available to an 
incumbent or former President.''\4\
---------------------------------------------------------------------------
    \4\44 U.S.C. 2204(C)(2).
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    Although the PRA provided guidelines for the management, 
custody, and access to Presidential records, it did not 
establish any procedures for the consideration of Presidential 
privilege claims. As a result, sitting Presidents have taken 
the matter into their own hands and issued Executive Orders 
purporting to govern the issue.
    President Ronald Reagan, the first President covered by the 
Act's mandates, issued the first such order in the final days 
of his administration. Executive Order 12667 required the 
Archivist to give the incumbent President and the former 
President whose White House created the record in question 
thirty calendar days advance notice before releasing 
Presidential records.\5\ The order authorized the Archivist to 
release the records at the end of that period unless the 
incumbent or former President claimed executive privilege, or 
unless the incumbent President instructed the Archivist to 
extend the period indefinitely. If the incumbent President 
decided to invoke executive privilege, the Archivist would 
withhold the records unless directed to release them by a final 
court order. If the incumbent President decided not to support 
a former President's claim of privilege, the Archivist would 
decide whether or not to honor the claim.
---------------------------------------------------------------------------
    \5\Exec. Order No. 12,667, 54 Fed. Reg. 3,403 (Jan. 18, 1989).
---------------------------------------------------------------------------
    Around the same time that President Reagan issued Executive 
Order 12667, he also exercised his right under the PRA to 
restrict access to some of his records for 12 years. This 
restriction period expired in January 2001.
    In February 2001, the Archivist provided the 30-day notice 
required by President Reagan's Executive Order of the 
Archivist's intent to release nearly 70,000 pages of President 
Reagan's records. In March, June, and August of 2001, Counsel 
to then President George W. Bush requested that the Archivist 
extend the time for claiming executive privilege. The third 
extension request in August didn't provide a specific deadline 
for compliance.
    In November 2001, President George W. Bush issued Executive 
Order 13233, entitled ``Further Implementation of the 
Presidential Records Act.''\6\ The order superceded President 
Reagan's Executive Order on the PRA and gave current and former 
Presidents (as well as Vice-Presidents) broad authority to 
withhold Presidential records or delay their release 
indefinitely.
---------------------------------------------------------------------------
    \6\3 C.F.R. 2001 Comp., pp. 815-819.
---------------------------------------------------------------------------
    For example, the Bush Executive Order allowed a former 
President to extend the document review period indefinitely 
(something the Reagan order authorized only sitting Presidents 
to do) and also provided an unlimited review period for the 
current President. In addition, the order greatly expanded the 
number of people who could assert executive privilege by 
allowing former Presidents to designate individuals to raise 
such claims after the former President's death, and by 
providing a former Vice-President the authority to assert 
executive privilege claims over their records.
    The procedure established under the Bush Executive Order 
also could have been used to undermine the PRA's presumption 
that most Presidential records should ultimately be released. 
Unlike the Reagan order, which authorized that the release of 
records on a schedule unless a President affirmatively extended 
the schedule or claimed privilege, the Bush order purported to 
prohibit the release of any records until after both the former 
and current President had affirmatively notified the Archvist. 
Therefore, if either the current or former President simply did 
not respond to the Archivist, the records would not be 
released. Furthermore, the Bush order required the Archivist to 
honor a former President's claim of executive privilege and 
withhold records, even if the incumbent President disagreed 
with the former President's claim.
    On January 21, 2009, the day after his inauguration, 
President Barack Obama issued Executive Order 13489. The Obama 
order revoked the Bush order and established a process for 
handling executive privilege claims similar to the one 
articulated in President Reagan's 1989 Executive Order.
    It has become clear to Congress that the PRA is not 
sufficiently clear with respect to its disclosure mandates. 
Without further Congressional action each successive President 
likely will issue his own executive order interpreting the 
original PRA, thus making the public's access to Presidential 
records contingent upon the will of the executive--the 
avoidence of which was the very goal of the original PRA.
    H.R. 35 would end the uncertainty associated with the 
handling of executive privilege claims over Presidential 
records by legislatively establishing procedures to ensure the 
timely release of such records.
    First, H.R. 35 requires the Archivist to give the former 
and incumbent Presidents notice that he intends to release a 
former President's records. The bill entitles the Presidents to 
a period of 60 days extendable for an additional 30 days upon 
request to object to the records' release. This gives the 
former and incumbent Presidents time to review the records and 
decide whether to claim privilege. If neither President 
objects, the Archivist shall release the records to the public.
    Second, H.R. 35 establishes different procedures for 
addressing privilege claims depending on whether the claimant 
is the current or a former President. This two-track approach 
reflects the Supreme Court's assessment that although former 
Presidents may retain some level of privilege over their 
documents after vactating the White House, such a claim 
``carries much less weight than a claim asserted by the 
incumbent himself.''\7\ Accordingly, under the bill, if an 
incumbent President claims privilege over a former President's 
records, the Archivist must withhold such records, and the 
requester of the records then bears the burden of challenging 
the incumbent President's claim of executive privilege in 
court. In comparison, if the incumbent President declines to 
support a former President's privilege claim, the Archivist 
will delay releasing the records for a short period of time in 
order to give the former President time to obtain a court order 
to enforce his privilege claim. Absent a court order to the 
contrary, the Archivist will release the records. This is the 
same approach followed in President Reagan's Executive Order on 
the PRA.
---------------------------------------------------------------------------
    \7\Nixon v. Administrator of General Services, et al., 433 U.S. 
425, 448 (1977).
---------------------------------------------------------------------------
    Third, H.R. 35 clarifies that the decision to assert a 
claim of a constitutionally based privilege against the 
disclosure of a Presidential record must be made personally by 
a former President or the incumbent President.

                        III. Legislative History

    H.R. 35 was introduced on January 6, 2009, by 
Representatives Edolphus Towns, Dan Burton, William Lacy Clay, 
Darrell Issa, Brad Sherman, and Henry Waxman. On January 7, 
2009, H.R. 35 was agreed to in the House of Representatives by 
a vote of 359 to 58. The bill was received in the Senate on 
January 8, 2009 and referred to the Homeland Security and 
Governmental Affairs Committee. On April 1, 2009, with Senators 
Lieberman, Akaka, Carper, Pryor, Tester, Burris, Bennet, 
Collins, Coburn, and Voinovich present, by a voice vote, the 
bill was ordered reported favorably out of the Committee with 
an amendment in the nature of a substitute.

              IV. Section-by-Section Analysis, as Reported

Section 1. Short title

    This section provides that the short title of H.R. 35 is 
the ``Presidential Records Act Amendments of 2009.''

Section 2. Procedures for consideration of claims of constitutionally 
        based privilege against disclosure

    Section 2(a) adds a new section 2208 to chapter 22 of title 
44, United States Code, popularly known as the Presidential 
Records Act of 1978, establishing how records will be reviewed 
by a former or current President prior to the public release of 
those records under the Presidential Records Act.
    Subsection 2208(a)(1) provides that, when the Archivist of 
the United States decides to make Presidential records publicly 
available, he will promptly give advance notice to the former 
President during whose term the record was created and to the 
incumbent President. The Archivist will also make the notice 
available to the public.
    Subsection 2208(a)(2) provides that the notice will be in 
writing and contain pertinent information as determined by the 
Archivist.
    Subsection 2208(a)(3)(A) provides that 60 business days 
after providing notice under subsection (a)(1), the Archivist 
shall make the noticed records available to the public unless 
the Archivist receives a claim of constitutional privilege from 
a former or incumbent President. The subsection allows for two 
exceptions to the 60-day deadline. First, subparagraph 
(a)(3)(B) authorizes a former or incumbent President to extend 
the deadline up to 30 additional working days by filing a 
statement with the Archivist that the additional time is needed 
for adequate review of the records. Second under subparagraph 
(a)(3)(C), a deadline for review cannot expire before July 20th 
of the year that an incumbent President first takes office.
    Subsection 2208(b) requires the former or incumbent 
President to personally assert a privilege claim. Also, the 
former or incumbent President must notify the Archivist, the 
House Committee on Oversight and Government Reform and the 
Senate Committee on Homeland and Governmental Affairs of the 
privilege claim on the day it is asserted.
    Subsection 2208(c) establishes the process through which a 
former President's records are released to the public and the 
manner in which the Archivist handles claims of privilege by a 
former President.
     Subparagraph (c)(1) provides that if the former 
President asserts a privilege claim, the Archivist shall 
consult with the incumbent President to determine whether the 
incumbent President upholds the privilege claim of the former 
President.
     Under subparagraph (c)(2)(A), the Archivist must 
inform the former President and the public of the incumbent 
President's decision on the former President's claim of 
privilege within 30 days after having first received the claim 
of privilege.
     If the incumbent President upholds the former 
President's privilege claim, subparagraph(c)(2)(B) prohibits 
the Archivist from releasing the records unless the incumbent 
President withdraws his decision to uphold the former 
President's claim or the Archivist is otherwise directed by a 
final and non-appealable court order.
     If the incumbent President decides not to uphold 
the former President's claim of privilege (or fails to make a 
decision within the applicable time period), 
subparagraph(c)(2)(C) requires the Archivist to release the 
applicable records 90 days after having first received 
notification of the former President's claim. The gap in time 
between the incumbent President's decision on whether to uphold 
the former President's privilege claim and the release of the 
records is designed to provide a former President the 
opportunity to argue his privilege claim in court. However, 
under H.R. 35, the Archivist will ultimately release records 
unless otherwise directed by a court order in an action 
initiated by the former President.
    Subsection 2208(d)(1) provides that if the incumbent 
President asserts his or her own privilege claim over a former 
President's records, the Archivist shall not release the 
records unless the incumbent President withdraws his or her 
privilege claim or the Archivist is otherwise directed by a 
final and non-appealable court order. Subsection (d)(2) 
provides that subsection(d) does not apply to records required 
to be made available in connection with judicial or 
congressional proceedings.
    Subsection 2208(e) requires the Archivist to adjust 
applicable time periods to comply with the return date of any 
congressional subpoena, judicial subpoena, or judicial process.
    Section 2(b) amends Section 2204 of the PRA to prevent the 
Archivist from making any original Presidential records 
available to individuals claiming access to the records as a 
designated representative of a President if that individual has 
been convicted of a crime related to the review, retention, 
removal, or destruction of records of the Archives.
    Section 2(c) makes clerical amendments to the Presidential 
Records Act.

Section 3. Executive order of November 1, 2001

    Section 3 provides that Executive Order 13233, dated 
November 1, 2001, and Executive Order 12667, dated January 1, 
1989, shall have no force or effect.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirement of paragraph 11(b)(1) of rule 
XXVI of the Standing Rules of the Senate the Committee has 
considered the regulatory impact of this bill. The Committee 
believes that the bill ends the uncertainty currently 
associated with the handling of executive privilege claims over 
Presidential records by establishing how the release of a 
former President's records will be managed. The legislation 
will not result in additional regulation, increased economic 
impact, adverse impact on personal privacy, or additional 
paperwork on any individuals or businesses.

             VI. Congressional Budget Office Cost Estimate

                                                    April 21, 2009.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 35, the 
Presidential Records Act Amendments of 2009.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 35--Presidential Records Act Amendments of 2009

    H.R. 35 would amend the Presidential Records Act to 
establish a process for reviewing Presidential records. That 
act details which records and materials are to be assumed by 
the National Archives and Records Administration (NARA) at the 
end of a President's administration.
    H.R. 35 would require the Archivist of the United States to 
provide notice to the incumbent and former President and the 
public up to 90 days before making Presidential records public. 
If a claim of executive privilege is made by a former President 
against such disclosure and the incumbent President determines 
not to uphold the claim, the Archivist would release the 
materials within 90 days of that determination unless the 
Archivist is otherwise directed by a final court order that is 
not subject to appeal. If a claim of executive privilege is 
made by an incumbent President against such disclosure, the 
Archivist could not release material unless the claim is 
withdrawn or the Archivist is otherwise directed by a court 
order. H.R. 35 also would allow a newly elected President until 
July 20 of the first year in office to review Presidential 
records that would otherwise be made public during that time. 
Finally, the legislation would rescind Executive Orders 13233 
and 12667. (Those orders concern the procedures for releasing 
Presidential records by NARA.)
    Based on information from NARA, CBO estimates that 
implementing H.R. 35 would have no significant impact on 
federal spending. Enacting the legislation would not affect 
direct spending or revenues.
    The bill contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                     VII. Changes in Existing Laws

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the following changes in existing 
law made by the bill, as reported, are shown as follows: 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *

TITLE 44--PUBLIC PRINTING AND DOCUMENTS

           *       *       *       *       *       *       *

CHAPTER 22--PRESIDENTIAL RECORDS

           *       *       *       *       *       *       *

Sec.
2201 Definitions.
            * * * * * * *
2208. Claims of constitutionally based privilege against disclosure.

           *       *       *       *       *       *       *

Sec. 2204. Restrictions on access to Presidential records

    (a) * * *

           *       *       *       *       *       *       *

    (d) Upon the death or disability of a President or former 
President, any discretion or authority the President or former 
President may have had under this chapter, except section 2208, 
shall be exercised by the Archivist unless otherwise previously 
provided by the President or former President in a written 
notice to the Archivist.

           *       *       *       *       *       *       *

    (f) The Archivist shall not make available any original 
Presidential records to any individual claiming access to any 
Presidential record as a designated representative under 
section 2205(3) if that individual has been convicted of a 
crime relating to the review, retention, removal, or 
destruction of records of the Archives.

           *       *       *       *       *       *       *

Sec. 2207. Vice-Presidential records

    Vice-Presidential records shall be subject to the 
provisions of this chapter in the same manner as Presidential 
records. The duties and responsibilities of the Vice President, 
with respect to Vice-Presidential records, shall be the same as 
the duties and responsibilities of the President under this 
chapter, except section 2208, with respect to Presidential 
records. The authority of the Archivist with respect to Vice-
Presidential records shall be the same as the authority of the 
Archivist under this chapter with respect to Presidential 
records, except that the Archivist may, when the Archivist 
determines that it is in the public interest, enter into an 
agreement for the deposit of Vice-Presidential records in anon-
Federal archival depository. Nothing in this chapter shall be construed 
to authorize the establishment of separate archival depositories for 
such Vice-Presidential records.

           *       *       *       *       *       *       *

2208. Claims of constitutionally based privilege against disclosure

    (a)(1) When the Archivist determines under this chapter to 
make available to the public any Presidential record that has 
not previously been made available to the public, the Archivist 
shall--
          (A) promptly provide notice of such determination 
        to--
                  (i) the former President during whose term of 
                office the record was created; and
                  (ii) the incumbent President; and
          (B) make the notice available to the public.
    (2) The notice under paragraph (1)--
          (A) shall be in writing; and
          (B) shall include such information as may be 
        prescribed in regulations issued by the Archivist.
    (3)(A) Upon the expiration of the 60-day period (excepting 
Saturdays, Sundays, and legal public holidays) beginning on the 
date the Archivist provides notice under paragraph (1)(A), the 
Archivist shall make available to the public the Presidential 
record covered by the notice, except any record (or reasonably 
segregable part of a record) with respect to which the 
Archivist receives from a former President or the incumbent 
President notification of a claim of constitutionally based 
privilege against disclosure under subsection (b).
    (B) A former President or the incumbent President may 
extend the period under subparagraph (A) once for not more than 
30 additional days (excepting Saturdays, Sundays, and legal 
public holidays) by filing with the Archivist a statement that 
such an extension is necessary to allow an adequate review of 
the record.
    (C) Notwithstanding subparagraphs (A) and (B), if the 
period under subparagraph (A), or any extension of that period 
under subparagraph (B), would otherwise expire after January 19 
and before July 20 of the year in which the incumbent President 
first takes office, then such period or extension, 
respectively, shall expire on July 20 of that year.
    (b)(1) For purposes of this section, any claim of 
constitutionally based privilege against disclosure of a 
Presidential record (or reasonably segregable part of a record) 
must be asserted personally by a former President or the 
incumbent President, as applicable.
    (2) A former President or the incumbent President shall 
notify the Archivist, the Committee on Oversight and Government 
Reform of the House of Representatives, and the Committee on 
Homeland Security and Governmental Affairs of the Senate of a 
privilege claim under paragraph (1) on the same day that the 
claim is asserted under such paragraph.
    (c)(1) If a claim of constitutionally based privilege 
against disclosure of a Presidential record (or reasonably 
segregable part of a record) is asserted under subsection (b) 
by a former President, the Archivist shall consult with the 
incumbent President, as soon as practicable during the period 
specified in paragraph (2)(A), to determine whether the 
incumbent President will uphold the claim asserted by the 
former President.
    (2)(A) Not later than the end of the 30-day period 
beginning on the date of which the Archivist receives 
notification from a former President of the assertion of a 
claim of constitutionally based privilege against disclosure, 
the Archivist shall provide notice to the former President and 
the public of the decision of the incumbent President under 
paragraph (1) regarding the claim.
    (B) If the incumbent President upholds the claim of 
privilege asserted by the former President, the Archivist shall 
not make the Presidential record (or reasonably segregable part 
of a record) subject to the claim publicly available unless--
          (i) the incumbent President withdraws the decision 
        upholding the claim of privilege asserted by the former 
        President; or
          (ii) the Archivist is otherwise directed by a final 
        court order that is not subject to appeal.
    (C) If the incumbent President determines not to uphold the 
claim of privilege asserted by the former President, or fails 
to make the determination under paragraph (1) before the end of 
the period specified in subparagraph (A), the Archivist shall 
release the Presidential record subject to the claim at the end 
of the 90-day period beginning on the date of which the 
Archivist received notification of the claim, unless otherwise 
directed by a court order in an action initiated by the former 
President under section 2204(e) of this title.
    (d)(1) The Archivist shall not make publicly available a 
Presidential record (or reasonably segregable part of a record) 
that is subject to a privilege claim asserted by the incumbent 
President unless--
          (A) the incumbent President withdraws the privilege 
        claim; or
          (B) the Archivist is otherwise directed by a final 
        court order that is not subject to appeal.
    (2) This subsection shall not apply with respect to any 
Presidential record required to be made available under section 
2205(2)(A) or (C) of this title.
    (e) The Archivist shall adjust any otherwise applicable 
time period under this section as necessary to comply with the 
return date of any congressional subpoena, judicial subpoena, 
or judicial process.

                                  
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