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Cheney lawyer claims Congress lacks power to conduct oversight over vice president

John Byrne



‘I trust you will not turn your back’ on respecting Congress, Democrat says

In what appears yet another effort to strengthen his position in the executive branch, the attorney for Vice President Dick Cheney said in a letter released by Congress Thursday that the Congress “lacks the constitutional power” to conduct oversight over his job.

The letter came in response to requests that Cheney’s chief of staff David Addington testify about the his role in approving harsh interrogation tactics — which some see as torture — at Guantanamo Bay.

Cheney has long battled Congress over oversight. In particular, Congress has sought, and failed, to acquire information from his office regarding his meetings with oil company executives to discuss energy policy in 2001. Cheney was also the subject of a Washington Post series which detailed his attempts to strengthen the position of the vice presidency as a bulwark against inquiry.

“As the U.S. Supreme Court made clear in Barenblatt V. United States, 460 U.S. 109 (1959), the power of Congress under the Constitution to inquire (which Members of Congress and congressional employees often refer to by the term “oversight”) is coextensive with its power to legislate,” Cheney lawyer Kathryn Wheelbarger wrote. “The power of Congress to legislate is not limitless and therefore is neither the power to inquire.

“Congress lacks the constitutional power to regulate by a law what a Vice President communicates in the performance of the Vice President’s official duties, or what a Vice President recommends that a President communicate in the President’s performance of official duties, and therefore those matters are not within the Committee’s power of inquiry,” Wheelbarger added.

Wheelbarger cites Barenblatt V. United States, 460 U.S. 109 (1959), as her justification.

House Judiciary Chairman John Conyers fired back in a letter Thursday questioning Wheelbarger’s rationale. He quotes a Supreme Court justice’s opinion in the case:

“The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate,” wrote Supreme Court Justice John Harlan in his opinion. “…The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”

Conyers notes later in his reply that numerous White House officials have testified to committees of Congress, including White House counsels and chiefs of staff and the Chief of Staff to the Vice President.

“On October 17, 1974, I was present when President Ford himself testified before a House Judiciary subcommittee on issues relating to the Nixon pardon,” the Detroit Democrat writes. “The invitation to appear is thus based on a long tradition of comity between the branches… These principles have served our nation well, and I trust you will not turn your back on them now.”

Wheelbarger, however, has more legal weapons in her arsenal.

She says that Cheney’s chief of staff isn’t the most appropriate to ask questions of if Congress is looking to get answers regarding the President’s opinions. She suggests that Congress seek to ask questions of the Attorney General instead.

“With respect to Presidential power in wartime and related issues under U.S. and international law, the Attorney General or his designee would be the appropriate witness,” she writes.

Further, she indicates that even if Cheney’s chief of staff were to testify, little of his testimony would be of any use because he would be limited by executive and attorney client privilege. Prior to being appointed Cheney’s chief of staff, Addington was Cheney’s personal attorney.

Wheelbarger’s letter is transcribed below. It is available in PDF format here.

The letter of April 11, 2008 from the Chairman of the Committee on the Judiciary of the House of Representatives (“Committee request”) informed the Office of the Vice President that the Committee plans to hold a hearing on May 6 to explore: (1) “issues regarding the nature and scope of Presidential power in a time of war,” (2) “the Administration’s approach to these questions under US and international law;” and (3) “United States policies regarding interrogation of persons in the custody of the nation’s intelligence services and armed forces.” The letter invited the Chief of Staff to the Vice President to appear at the hearing.

The Committee request seeks authoritative representation on the three subjects identified in the Committee request. The Chief of Staff to the Vice President is an employee of the Vice President, and not the President, and therefore is not in a position to speak on behalf of the President. With respect to Presidential power in wartime and related issues under U.S. and international law, the Attorney General or his designee would be the appropriate witness. Regarding interrogation of persons by US intelligence agencies or the armed forces, the Director of National Intelligence or his designee and Secretary of Defense or his designee, respectively, would be the appropriate witness. You may wish to invite the appropriate subordinates of the President in lieu of your invitation to the Chief of Staff to the Vice President.

As the U.S. Supreme Court made clear in Barenblatt V. United States, 460 U.S. 109 (1959), the power of Congress under the Constitution to inquire (which Members of Congress and congressional employees often refer to by the term “oversight”) is coextensive with its power to legislate. The power of Congress to legislate is not limitless and therefore is neither the power to inquire. For example, Congress lacks the constitutional power to regulate by a law what a Vice President communicates in the performance of the Vice President’s official duties, or what a Vice President recommends that a President communicate in the President’s performance of official duties, and therefore those matters are not within the Committee’s power of inquiry. In addition to a constitutional basis for a House inquiry, a particularly committee of the House also needs jurisdiction assigned by the House for the inquiry. It would be helpful to know from the Committee the scope of the Committee’s inquiry and the legal basis for it.

Finally, even if, separate from any question of immunity from testimony, a case were to arise in which a voluntary appearance might be appropriate under the law, questions of privilege may arise with respect to information sought by questions, such as respect to privileges protecting state secrets, attorney-client communications, deliberations, and communications among Presidents, Vice Presidents, and their advisers. For example, the amount of useful information a Committee of Congress would be likely to receive from a person who served as Counsel to the Vice President and then Chief of Staff to the Vice President concerning official duties is quite limited, given that a principal function of such a person is engaging in privileged communications, such as the giving of privileged advice. Also, inquiry by a House Committee concerning the Senate function of the Vice President would not, in any event, be appropriate.

The Committee may wish to hold the Committee request in abeyance while it exhausts other sources for the kinds of information the Committee seeks, or the Committee may wish to forgo the Committee request altogether. If, however, the Committee wishes to pursue the Committee request, please advise of the time for which you have invited the Chief of Staff to the Vice President, and of the legal basis for the request under the Constitution and the House Rules. We look forward to receiving such information from the Committee to enable us to further evaluate the request and communicate with you…

This letter is provided as a matter of comity, with respect for the constitutional role of the House of Representatives, and reserving all legal authorities and privileges that may apply.

Sincerely,

Kathryn L. Wheelbarger Counsel to the Vice President



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