Dick Cheney's lawyers agree: He's part of the executive branch. Dems force Cheney to flip-flop on secret docs

Dick Cheney's office is abandoning a justification for keeping the vice president's secret papers out of the hands of the National Archives, while asserting a new argument for withholding them.

Officials working for Cheney had tried to claim he is separate from the executive branch, but they will no longer pursue that defense, senior administration officials tell The Politico.


The decision follows a threat by Rep. Rahm Emanuel (Ill.), the No. 3 House Democrat, to try to cut off the office's $4.8 million in executive-branch funding, and a letter from Sen. John F. Kerry (D-Mass.) asking for the reasoning behind the argument.

The dispute arose after House Oversight Committee Chairman Henry A. Waxman (D-Calif.) posted an eight-page letter he had written to Cheney taking issue with what he said was an assertion by the vice president's office last year that he is "not an 'entity within the executive branch' and hence is not subject to presidential executive orders." The vice president also serves as president of the Senate, a function that is part of the legislative branch.

At issue was an executive order giving the National Archives oversight over the government's handling of classified information.

David S. Addington, Cheney's chief of staff and counsel, wrote in a three-paragraph response to Kerry on Tuesday that the executive order on classified national security information does not give the archivists authority over the president or vice president.

Addington said that therefore it "is not necessary in these circumstances to address the subject of any alternative reasoning."

That amounted to throwing in the towel on the claim that the vice president is distinct from the executive branch, according to administration officials speaking on condition of anonymity, and the White House has no plans to reassert the argument.

Kerry posted Addington's response on his Senate website, calling the letter "legalistic" and a continued attempt to "duck and dodge on agency scrutiny, classified documents."

Two senior Republican officials, speaking on condition of anonymity, said that the rationale had been the view of the vice president's lawyers, not Cheney himself.

White House spokespeople have been struggling to answer questions about the argument without repeating, amplifying or embracing it.

Blogs, comics and pundits feasted on the neither-fish-nor-fowl argument, with Jon Stewart joking on "The Daily Show" Tuesday night that the vice president may be "half she-wolf."

Now, a senior administration official tells The Politico: "It's a moot point to get into executive functions and legislative functions because of the executive order's intent. That trumps all, because it is what the president intended."

Emanuel, who has scheduled a vote on Cheney's funding for Thursday, said the change makes it clear that the White House "told Cheney that he would have to come up with another excuse -- that this was not sustainable in the public arena."

Emanuel said the vote is still planned and the new argument means the vice president needs to comply with National Archives requirements.

White House press secretary Tony Snow read from the Addington letter at his briefing on Tuesday but said he was going to leave the constitutional parsing to others. "The vice president is the president of the Senate," Snow said. "It is a wonderful academic question and I'm just not going to go any further than we've gone to date."

Kerry's office says it has sent Addington a letter with more questions. A senior Senate aide said Kerry had considered the Cheney contention to be "Orwellian."

UPDATE: Kerry called the Addington letter "legalistic" and a continued attempt to "duck and dodge on agency scrutiny, classified documents." He has posted it on his Senate Web site.

In his original letter, dated Monday, Kerry said: "In the interest of transparency I request the reasoning behind any claims that the Office of the Vice President does not fall under the executive branch. Additionally, given that the Office of the Vice President has not been issuing reports or allowing inspectors to verify any safeguards, I would like to know what steps the Office is taking to protect classified information."