Cheney Is Told to Keep Official Records

Judge's Order Responds to Suit Filed by
Open-Government Advocates, Historians

CHRISTOPHER LEE / Washington Post 21sep2008

A federal judge issued a preliminary injunction yesterday ordering Vice President Cheney and the National Archives to preserve all of his official records.

U.S. District Judge Colleen Kollar-Kotelly's order came in response to a lawsuit filed this month by the watchdog group Citizens for Responsibility and Ethics in Washington. The group, joined by several historians and open-government advocates, warned that Cheney might destroy or withhold important documents as the Bush administration winds down if he interprets the Presidential Records Act of 1978 as applying to only some of his official papers.

That, in turn, could deprive historians and the general public of valuable records that illustrate Cheney's role in forming U.S. policy over the past 7 1/2 years, they argued. He is widely considered to be the most influential vice president in history.

Kollar-Kotelly, who was appointed by President Clinton, issued her order despite assertions from Cheney's representatives that he was preserving all the records he is required to under the 1978 law.

"It's a pretty strong opinion," said Anne Weismann, chief counsel for the watchdog group. "They will be prevented from destroying anything. It basically means they have to preserve everything in the broadest possible interpretation of what the law requires -- not their narrow interpretation."

A spokesman for Cheney said the vice president's office will not comment on pending litigation.

Open-government advocates are nervous about the fate of Cheney's papers, because the vice president has long resisted revealing any aspect of the inner workings of his office. He has, for example, shielded information such as the names of industry executives who advised his energy task force, his travel costs and details, and Secret Service logs of visitors to his office and residence. Cheney also has argued that he is not part of the executive branch.

In court filings, Claire M. O'Donnell, Cheney's deputy chief of staff, offered a narrower definition of vice presidential records than the one in the law. She wrote that the statute applied to records relating to the "constitutional, statutory or other official or ceremonial duties" of the vice president that fall within "the category of functions of the Vice President specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities" or "the category of the functions of the Vice President as President of the Senate."

But that definition excludes many records, including those relating to Cheney's work on the National Security Council and those where he acted without instructions from the president, such as his efforts to win reauthorization of a top-secret warrantless wiretapping program, the plaintiffs argued.

Kollar-Kotelly agreed and ordered all records preserved until the court can sort out the legal arguments on both sides before the presidential transition in January.

"Those unprotected documents could be transferred to other entities, destroyed, or not preserved, and if any of these events occur, the damage is inherently irreparable; once documentary material is gone, it cannot be retrieved," the judge wrote in her 22-page order.

source: 20sep2008

Judge Orders Cheney to Preserve Records

PETE YOST / AP 20sep2008

A federal judge on Saturday ordered Dick Cheney to preserve a wide range of the records from his time as vice president.

The decision by U.S. District Judge Colleen Kollar-Kotelly is a setback for the Bush administration in its effort to promote a narrow definition of materials that must be safeguarded under by the Presidential Records Act.

The Bush administration's legal position "heightens the court's concern" that some records may not be preserved, said the judge.

A private group, Citizens for Responsibility and Ethics in Washington, is suing Cheney and the Executive Office of the President in an effort to ensure that no presidential records are destroyed or handled in a way that makes them unavailable to the public.

In a 22-page opinion, the judge revealed that in recent days, lawyers for the Bush administration balked at a proposed agreement between the two sides on how to proceed with the case.

Cheney and the other defendants in the case "were only willing to agree to a preservation order that tracked their narrowed interpretation" of the Presidential Records Act, wrote Kollar-Kotelly.

The administration, said the judge, wanted any court order on what records are at issue in the suit to cover only the office of the vice president, not Cheney or the other defendants in the lawsuit. The other defendants include the National Archives and the archivist of the United States.

In response to the ruling, Cheney spokesman James R. Hennigan said that "we will not have any comment on pending litigation."

The lawsuit stems from Cheney's position that his office is not part of the executive branch of government.

This summer, Cheney chief of staff David Addington told Congress the vice president belongs to neither the executive nor legislative branch of government, but rather is attached by the Constitution to Congress. The vice president presides over the Senate.

The lawsuit alleges that the Bush administration's actions over the past 7 1/2 years raise questions over whether the White House will turn over records created by Cheney and his staff to the National Archives in January.

In 2003, Cheney asserted that the office of the vice president is not an entity within the executive branch.

Two historians and three groups of historians and archivists joined CREW in filing the suit two weeks ago.

source: 20sep2008

Watchdog Group Sues Cheney Over Records

PETE YOST / AP 8sep2008

WASHINGTON - A watchdog group sued Vice President Dick Cheney on Monday, seeking a court order that he comply with the Presidential Records Act.

The group that sued is concerned that Cheney will argue that his records are not subject to the post-Watergate law aimed at safeguarding White House records for eventual release to the public.

The lawsuit by Citizens for Responsibility and Ethics in Washington stems from Cheney's position that his office is not part of the executive branch of government.

A spokesman for Cheney, Jamie Hennigan, said the office of the vice president follows the Presidential Records Act and will continue to follow the requirements of the law. He said that includes turning over vice presidential records to the National Archives at the end of the term.

"Given the unlawful policies and directives of the defendants, there is an imminent threat that even before the end of this administration, Vice President Cheney and the OVP will destroy, transfer, or otherwise dispose of many of the vice president's records under the theory they are personal records and therefore not covered" by the law, the lawsuit stated.

The lawsuit details Bush administration actions that raise questions over whether the White House will turn over records created by Cheney and his staff to the National Archives in January.

President Bush issued an order in 2001 saying that the Presidential Records Act applies to the "executive records" of the vice president.

In 2003, Cheney asserted that the office of the vice president is not an entity within the executive branch.

On four occasions, the vice president's office has refused to comply with an Ethics in Government Act requirement that all executive branch agencies file reports on any privately paid travel. Separately, the vice president's office has refused to submit its staff list to Congress.

Two months ago, Cheney chief of staff David Addington told Congress the vice president belongs to neither the executive nor legislative branch of government, but rather is attached by the Constitution to Congress. The vice president presides over the Senate.

CREW also is suing the National Archives, which said recently that legislative records of the vice president subject to the Presidential Records Act are the vice president's personal records.

Others joining CREW in the lawsuit are two noted historians and three organizations of historians and archivists.

The lawsuit is before U.S. District Judge Colleen Kollar-Kotelly, an appointee of President Clinton.

Separately, 32 historians wrote congressional leaders saying that the Presidential Records Act should be strengthened to include some kind of enforcement mechanism for violations. The historians cited the White House e-mail controversy involving millions of apparently missing emails.

The White House is missing as many as 225 days of e-mail dating back to 2003 and there is little if any likelihood a recovery effort will be completed by the time the Bush administration leaves office, according to an internal White House draft document obtained by The Associated Press.

source: 20sep2008