Court favors Cheney in suit over public records Stephen C. Webster

Published: Monday January 19, 2009





Print This Email This After ruling, Cheney becomes sole authority on determining which of his records will be released.

A federal district court judge has ruled that outgoing Vice President Dick Cheney, who leaves office on Tuesday with an approval rating of just 13 percent, will be the sole determining authority on the public release of his vice presidential records.



"Congress drastically limited the scope of outside inquiries related to the vice president's handling of his own records during his term in office," wrote U.S. District Judge Colleen Kollar-Kotelly in a 63-page opinion, according to a published report.



The ruling cuts out National Archive oversight in the release of Cheney's records. Judge Kollar-Kotelly, appointed in 1997 by President Clinton, seems to have a history of siding with the Bush administration in legal battles, though she rejected the extraordinary claim that detainees in Bush's terror war are not entitled to lawyers.



The suit, brought by Citizens for Responsibility and Ethics in Washington (CREW), contended that Cheney illegally curtailed provisions of the post-Watergate Presidential Records Act. The act, passed in 1978, mandates public ownership of the records, but allows presidents to discard volumes not of historical significance, if the Archivist of the United States agrees with the assessment.



The act also requires vice presidential records to be treated the same, but CREW alleged that Cheney is using his own methods of determining what should and shouldn't be released. The judge ruled that CREW failed to substantiate this allegation.



The assertion that Cheney alone may determine what is historically significant is based on his 2007 claim, over objections from the National Archives, that the vice president is not actually part of the executive branch.



"Your position was that your office 'does not believe it is included in the definition of 'agency' as set forth in the Order' and 'does not consider itself an 'entity within the executive branch' that comes into the possession of classified information,'" a National Archives official claims Cheney's chief of staff, David Addington, wrote to him.



"Instead of making disclosures like most of the White House, Cheney's office since March 2002 has periodically responded to [Office of Government Ethics] inquiries by stating that it is not obligated to file such disclosure forms for travel funded by non-federal sources," wrote Kate Sheppard and Bob Williams with the Center for Public Integrity.



"The letters were signed by then-Counsel to the Vice President David Addington ... In the letters to the Office of Government Ethics, Addington writes that the Office of the Vice President is not classified as an agency of the executive branch and is therefore not required to issue reports on travel, lodging and related expenses funded by non-federal sources."



"The vice president has a choice to make," said Rham Emanuel, then a Congressman from Illinois, in a June 23, 2007 statement released to RAW STORY. "If he believes his legal case, his office has no business being funded as part of the executive branch. However, if he demands executive branch funding he cannot ignore executive branch rules. At the very least, the Vice President should be consistent. This amendment will ensure that the Vice President's funding is consistent with his legal arguments."



The threat to pull the vice president's funding apparently worked. In less than a week, Cheney backed off.



"I think we're at a crossroad," said historian Martin Sherwin, one of the plaintiffs in the now-failed lawsuit that would have forced Cheney to preserve and hand over his records. "There's a possibility here for what I call a history heist, or a historical theft from the American people."



Among records already known missing from the Office of the Vice President are e-mails from Sept. 30, 2003, the same day the Justice Department and the Federal Bureau of Investigation announced they were investigating who outed former CIA officer Valerie Plame Wilson.



Cheney's office is also missing emails from the very day President Bush told reporters he'd "take care of" whatever staff member had actually leaked the CIA agent's name.



Special Prosecutor Patrick Fitzgerald, who investigated the outing of Plame's status with the CIA, was informed some records had been destroyed.



Upon his indictment of Cheney's Chief of Staff, I. Lewis "Scooter" Libby, he said during a press conference, "There is a cloud over the vice president . . . And that cloud remains because this defendant obstructed justice. There is a cloud over the White House. Don't you think the FBI and the grand jury and the American people are entitled to straight answers?"



"This is a huge loophole in the Presidential Records Act and Congress needs to address it immediately," Melanie Sloan, executive director of CREW, told AP.







