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John W. Dean

What Will Become of Dick Cheney's Vice Presidential Records?


Friday, September 3, 2010

As the Bush/Cheney Administration headed toward its final days, with President George W. Bush busy planning his future presidential library, the story surfaced that Vice President Dick Cheney was not planning to send his Vice Presidential papers and records to the future Bush II archive. To the contrary, based on an Executive Order that Bush (or was it really Cheney?) had issued in November 2001, the Vice President was taking the position that his papers were largely his, not Bush's, so that he did not plan to send most of his office files to the National Archives and Records Administration (NARA) which administers presidential libraries, where historians were sure to nose about in Cheney's material.

Because historians find Cheney a fascinating and important historical figure, particularly given his outsized influence on the first five years of the Bush II presidency, and because archivists are serious about collecting and preserving the uncooked records of history, there was understandable alarm that these materials might disappear and never be available. Thus, Cheney's proposed action, which was in clear violation of a federal statute, prompted a federal lawsuit in the final years of the Bush/Cheney presidency in an effort to force the Vice President to comply with the law. Unfortunately, the plaintiffs lost the lawsuit, and no one knows what Cheney will or will not do with his records.

This story has received only sporadic media attention, at best. Congress, at present, is considering amending the presidential records law. Inexplicably, however, Congress is ignoring the very shortcomings in the existing law that are highlighted by Cheney's actions. In this column, I'll explain the situation.

The Presidential (and Vice Presidential) Records Law

In the aftermath of Watergate, rather than allow Richard Nixon to destroy his records and his secretly-recorded White House conversations, Congress passed legislation declaring that all of these records, which had been prepared at the expense of American taxpayers, should belong to the American people. This law ended the tradition of presidential records' belonging to former presidents. Following the Nixon law, Congress enacted the Presidential Records Act (PRA) of 1978, applying it to all Presidents and Vice Presidents arriving in office after 1981. (Presidents Ford and Carter, like all Nixon's predecessors, owned their papers, as did all previous Vice Presidents.)

Under the PRA, all records relating to a presidency (both presidential and vice presidential materials) are turned over to the Archivist of the United States, who, after five years, makes the material available to the public -- although a former president is given the option to withhold the material for another seven years. Most presidents have not withheld their material, but rather have started making that material available as fast as it can be processed by NARA. Purely personal records are returned to the former President and Vice President. Material that is classified for reasons of national security, plus material falling into a few other narrow categories, is withheld from the public. The PRA had a number of gaps, such as the gap arising from the power of former presidents to invoke executive privilege. As a result, beginning with President Reagan, presidents have issued Executive Orders as to how the law will be interpreted.

George W. Bush, who had a terrible record for transparency as Governor of Texas (or was it Dick Cheney, who was even more secretive, as many believe?) issued Executive Order 13233 in November 2001, which was so sweeping that it all but nullified the PRA. I addressed these far-reaching efforts to nullify the PRA with Executive Order 13233 in this prior column. It was Executive Order 13233 that Cheney claimed largely exempted his vice presidential papers from the PRA, and these actions caused several eminent historians, archivists, and historical organizations to challenge him and his distorted reading of the law. They went to federal court for relief.

CREW v. Cheney -- Failing To Make Cheney Historically Accountable

On September 8, 2008, Citizens for Responsibility and Ethics in Washington (CREW) filed the action in U.S. District Court for the District of Columbia for the concerned historians and archivists seeking to prevent Cheney from destroying or controlling his records contrary to the rather clear provisions of the statute. Section 207 of the PRA states: "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, with respect to Presidential records…."

CREW requested a preliminary injunction, and after hearing the quibbling response from Cheney's office, U.S. District Judge Colleen Kollar-Kotelly granted the injunction, in a strong order. Anne Weisman, the attorney for the plaintiffs, explained that Cheney's claim that only those records related to tasks specifically assigned him by Bush needed to be preserved under PRA was "a loophole large enough to drive a truckload of documents through." For example, Cheney's reading of the law would exclude most of the advice he had given Bush, not to mention his entire staffing operation on countless issues, particularly national security matters, which were often stronger than the president's staffing of those issues. Judge Kollar-Kotelly saw the problem and issued the preliminary injunction with no loopholes. From September 20, 2008 until January 16, 2009, this injunction kept Cheney's papers from being destroyed at a time when they most likely could have been shredded by the regular shredding service Cheney used while in office.

Meanwhile, the case proceeded. Cheney's defense was rather basic: He played the clock out. As Judge Kollar-Kotelly later noted, the resolution of the case was actively impeded by Cheney's constantly-shifting arguments: He kept changing the facts, and looking for law that would help him, and along the way, he filed a spurious emergency petition to the Court of Appeals, which was rejected. But all this took time. In the end, Cheney's lawyers found a winning argument, claiming that Congress had provided no remedy under PRA for enforcing presidential and Vice Presidential compliance. It was a clear oversight in the law.

In her detailed (and necessarily technical) opinion, Judge Kollar-Kotelly explained that Congress had enacted the PRA on "an assumption made by Congress (in 1978) that subsequent Presidents and Vice Presidents would comply with the Act in good faith" and accordingly had "provided little oversight authority." In short, she was saying that Congress figured no one would ever again play the games that Nixon had; they never figured a fellow like Cheney would do just that.

Because of this oversight in the law, Judge Kollar-Kotelly had to rule that the historians and archivists could not "obtain relief under the Act as Congress enacted it." (Emphasis in the Court's opinion.) The Judge added, "To the extent that this case highlights any deficiencies in -- or unintended consequences of -- the PRA, that is an issue for Congress to consider. This Court is bound to apply the law only as it is written, not how the Court or any party believes it ought to be." The Judge was all but telling Congress if you want this law to work, you better add a provision for judicial review, otherwise the law is up to Presidents and Vice Presidents to do as they wish.

Given the problem with the law, Cheney won. On January 20, 2009, he loaded his papers and records into a truck that took some of the material to his new office over the garage of the house that he had just built in suburban Washington. We can all be sure the important historical material is at his home office. Other materials were sent to the National Archives for safe-keeping, including the classified documents that only the Obama Administration can now declassify, since the Bush Administration failed to do so.

Dick Cheney has not said exactly what he is going to do with his papers and, remarkably, Congress has failed to fix the law. Thus, Cheney currently cannot be forced to comply with the clear terms of the law.

Congress Is Ignoring The Problem of Enforcing the Presidential-Records Law

The Obama White House, upon the President's entering office, quickly issued an Executive Order repealing Bush's Executive Order 13233. But Congress, wisely, has addressed the problem of every new president's predictably issuing a new interpretation of the PRA, with its own executive orders. Accordingly, legislation is now making its way through Congress. It has passed the House but like everything in the Senate, it is backed up because Republicans can only say "No."

While this new law would provide a procedure for former presidents to invoke executive privilege when appropriate, and would repeal Bush's Executive Order 13233 (along with Reagan's earlier order), the amendments are very limited and focused. The Senate Report on the pending legislation summarizes its impact, noting: "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 avoidance of which was the very goal of the original PRA."

The proposed changes to the law also makes clear that the new amendments do not apply to Vice Presidential papers, and thus do not give Vice Presidents any new powers whatsoever regarding their papers. In fact, they expressly exclude the new procedures for Vice Presidents. Remarkably, however, the proposed amendments do not address the problem raised by the Court in CREW v. Cheney. Congress is simply ignoring the reality that there is no way for federal courts to enforce this law, if future Vice Presidents, or Presidents, take the position that Cheney has taken and place their own reading on the law. I have been unable to find an explanation as to why Congress is failing or refusing to act.

So What Will Become of Dick Cheney's Records?

A Vice President who openly encouraged and engaged in war crimes when in office, and who believes he is strengthening the presidency by defying the law, will do whatever he wants with his official records. As the law now stands, no one can force him to comply with the records-preservation law.

Cheney is not totally defiant, for he has acknowledged that some of his records relating to assignments given him by Bush are within the PRA provisions. But, based on his position during the CREW v. Cheney litigation, he obviously believes that other papers are not within the PRA's ambit -- notwithstanding the clear language of the law.

As Cheney's office stated during the litigation, "a Vice President has no functions unless they are specifically assigned to the Vice President by the President in the discharge of executive duties and responsibilities." Such records would thus fall with the PRA. But as Judge Kollar-Kotelly noted, David Addington, the Vice President Cheney's former counsel and chief of staff, testified to Congress that the Vice President's office "belongs to neither" the executive or legislative branch; rather, Addington claimed that the Vice President's office is "attached by the Constitution" to Congress. If Cheney really believes this, then he will claim that the PRA deals with presidential (not congressional) records, notwithstanding the express language of the law. Or he will come up with some other half-baked excuse.

Most importantly, because Congress is at present continuing to ignore the inability of the federal judiciary to enforce the PRA, Cheney can -- and no doubt will -- do whatever he wishes. While the Obama Administration is giving Cheney a pass on his war crimes, other nations are not, so it is very likely that Cheney's papers relating to his involvement in war crimes will simply disappear. Not only will no foreign tribunal ever get ahold of that information, but American history will never record it. Why Congress is not adding a few provisions to make the PRA actually enforceable utterly mystifies this observer.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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