Suing Over Cheney's Records:

Citizens for Responsibility and Ethics in Washington is leading a lawsuit to prevent the sealing or destruction of Vice President Cheney's records, the Washington Post reports.

The group expects to file the lawsuit today in the U.S. District Court for the District of Columbia. It will name Cheney, the executive offices of the president and vice president, and the National Archives and chief archivist Allen Weinstein as defendants.

The goal, proponents say, is to protect a treasure trove of information about national security, the wars in Iraq and Afghanistan, domestic wiretapping, energy policy, and other major issues that could be hidden from the public if Cheney adheres to his view that he is not part of the executive branch. Extending the argument, scholars say, Cheney could assert that he is not required to make his papers public after leaving office. Access to the documents is crucial because he is widely considered to be the most influential vice president in U.S. history, they note.

[NOTE: Link fixed at approx. 1pm. Sorry about that.]

You know, people say the darnedest things.
9.8.2008 9:49am
Meanwhile, one hears a buzzing sound coming from the VP's office. Some sort of office machine at work. I wonder what it could be.
9.8.2008 10:56am
Adam J:
Interesting, of course a nice little blanket pardon by Bush would protect any destruction of documents by Cheney and probably make the whole issue moot.
9.8.2008 11:12am
Well, Grossman pretty much screws the pooch on this one. It's a shame because having those records would put a lot of loony-left theories to rest just as much as it would undermine a lot of talking points on the rabid-right.
9.8.2008 12:04pm
p. rich (mail) (www):
This collection of progressive dipwads is really looking for proof that Cheney consorted with the Devil and is personally responsible for every evil happening on planet earth since 2800 BC or thereabouts. Good luck with that.
9.8.2008 12:50pm
DiverDan (mail):
I seem to remember from a LONG, LONG time ago (maybe in Evidence class in Law School), discussing the "deliberative privilege", which was intended to protect the communications between member of a governing body (executive branch, legislative body, administrative agency, etc.) which were intended to remain secret and were internal debates intended to further the deliberations of a policy decision. The basis for the privilege was to insure open, honest and frank exchanges between the people responsible for policy. Does anybody really think that discussions between the President and his Vice President, or between the President and his cabinet members will be "open, honest and frank" if the participants know that they can be required to disclose all of those communications? Frankly, I think there is a very good reason to keep certain deliberations secret -- should a Defense attorney have open access to the deliberations of a jury panel considering whether to convict his client? Have I completely forgotten the gist of this privilege? Does it have any application to some or all of the records sought?
9.8.2008 1:01pm
p. rich -- don't worry about their motives. worry about their legal arguments and the fact that there are legitimate reasons for desiring the preservation of these documents.
9.8.2008 1:24pm
Per Son: - you should recall that it was a conservative organization that brought the Supreme Court case against Cheney (and lost). The point is not that they won or lost, but that it is not simply a progressive thing.

Moreover, there are laws that govern the release of presidential files and records - and if they are destroyed, we would never have access to them. Note that it was common to release records after a certain period of time until Bush II stopped the release of his dad's files.

Moreover, I believe future president's can release records as well, but I am not sure on that one.
9.8.2008 1:36pm

Does anybody really think that discussions between the President and his Vice President, or between the President and his cabinet members will be "open, honest and frank" if the participants know that they can be required to disclose all of those communications?

Depends on whether the adviser would be publicly, politically or legally threatened by his "open, honest and frank" advice. Given the abysmal results of some of the administration's policies, I'm not surprised no one wants to take credit though . .
9.8.2008 2:00pm
one of many:
The Washington Post link is to a different story which make me believe JA was trying to see who was commenting without checking for more information.

Deliberative privilege and executive privileged are (in theory) protected by the Presidential Records Act (PRA) and I suppose it should be assumed that the all the advice the president receives is as full frank and open as people are willing to subject to the protection (or lack thereof) to the PRA. There is a balance that has to be struck between effective government and responsible (to the people) government, as far as the presidency goes this is defined by the PRA. Arguments can be made that the balance should be elsewhere, but the PRA does dictate where that balance is, although it should be noted that since the PRA became law there has been almost continual litigation over what the PRA exactly means.

I would be pretty dismissive of the suit myself, an injunction against future presumptively legal activity on the basis that some potential future suit will be filed and a court will then decide that it is illegal? A clarification of what exactly is covered by the PRA viz the vice-president's office is called for, but the courts have already made such a hash of that issue that I cannot expect a court provide such a clarification.
9.8.2008 2:00pm
Seamus (mail):
If Cheney asserts that he's not part of the executive branch, then it would seem that the United States Senate, whose president he is, could take control of those documents and unseal them or prevent their destruction.
9.8.2008 2:26pm
Bart (mail):
Most of this material would be classified regardless of Mr. Cheney's legislative, executive or hybrid status as VP under the Constitution.
9.8.2008 2:28pm

Most of this material would be classified regardless of Mr. Cheney's legislative, executive or hybrid status as VP under the Constitution.

Absolutely. I don't mind waiting 20 years to read it all, I just don't want it destroyed. The mounds of declassified documents from the early cold war are invaluable part of the historical record.
9.8.2008 2:54pm
Richard Aubrey (mail):
Did Hillary's health care reform task force records ever get out?
Don't recall the outcome, although it was contentious.

Hard to imagine that there will be anything in Hillary's stuff, or Cheney's, that will either be the first inkling of something illegal, or solid proof of something heretorfore only suspected.

Vileness, according to taste, will probably abound.
9.8.2008 2:55pm
Dave N (mail):

I agree. I have no problem with records being sealed for a period of time just as long as they are not destroyed.
9.8.2008 3:05pm
Bart (mail):
What makes anyone think that Bush or Cheney want the records destroyed? They are proud of what they have during the war and think that their lessons learned will be a guidebook for future administrations.

In any case, between Feith and Woodward, I am not getting the impression that many of the big picture decisions remain undisclosed.
9.8.2008 3:31pm
Hard to imagine that there will be anything in Hillary's stuff, or Cheney's, that will either be the first inkling of something illegal, or solid proof of something heretorfore only suspected.

You have limited imagination. Cheney seems to have spent most of his time pressuring people, often for partisan political purposes, sometimes with classified information. Given the confusing web of interacting legislation restricting the executive branch, it's a virtual certainty that he crossed the line somewhere that we haven't heard of. God help us, he might have solicited a contribution to the RNC from the wrong phone, or pressured for a Hellfile missile strike on some terrorist in some place where it was illegal for the US to act.
9.8.2008 3:45pm
one of many:
Did Hillary's health care reform task force records ever get out?
Don't recall the outcome, although it was contentious.

Yes, at least partially, most have been released this winter/spring and a variety are scheduled for release in the next few years as the National Archives gets around to processing them. Judicial Watch was the biggie for those records so you can check them for the results. Didn't pay much attention but I figure there was no smoking gun, it surely would have come up in the primary.
9.8.2008 3:48pm
loki13 (mail):

I was almost very impressed. Until the Feith/Woodward bit of your post, you might have been in the running for Sarcastro's spot.
9.8.2008 3:49pm
Richard Aubrey (mail):
Thanks. I guess the smoking gun wasn't covered up. The problem was that so many objected to it. To, apparently, the surprise of the task force.
9.8.2008 4:15pm
Per Son:
Note that it was common to release records after a certain period of time until Bush II stopped the release of his dad's files.
Apparently some folks have never heard of the first U.S. co-presidents, prior to 'Bush II,' known as Mr. & Mrs. Clinton. But who's counting, eh?
9.8.2008 4:22pm

And the fact that the Clintons were "co-presidents" is germane because...
9.8.2008 8:34pm
And the fact that the Clintons were "co-presidents" is germane because...

::When the mote hits your eye, like a big piece of ply, it's tu quoque::

(apologies to Dean Martin)
9.8.2008 8:55pm
Lots of guesses here although one poster knows something about the applicable statute and correctly points out that executive privilege and deliberative privilege are two different things. However, the intent of the PRA is that deliberative records be opened, not right away, but over time. The current period is quite short and consequently has a potential chilling effect.

After an administration ends, the so-called P(5) presidential restriction for confidential advice may be applied for 12 years After that, archivists at the National Archives may consider unclassified information that is deliberative in nature for release to researchers. Of course, other exemptions do not fall away at that point. For example, federal archivists continue to apply E.O. 12958 (as amended) to classified information in historical White House records for as long as needed. If they receive FOIA requests for such material, they work with equity holders to see if it can be declassified.

For materials he once saw, a former POTUS can claim communications privilege over information that government archivists and (if applicable) departmental equity holders have marked as statutorily disclosable. After a president's death, E.O. 13233 of 2001 extends the right to claim communications privilege to presidents' family members in perpetuity. No court tests on this yet.

Will we see DOJ argue in court 40 years from now that a by-then-aged Chelsea Clinton or Jenna Bush, who never held government office, under E.O. 13233 still could claim communications privilege to block historians from seeing information their fathers once saw? As of now, it looks as if we might. The 2001 executive order asserts that descendants have rights in perpetuity to name representatives to screen records marked releasable by current government employees for possible claims by the descendents of a deceased POTUS of communications privilege.

Few provisions of the PRA have been tested in court. In a case involving a different statute (Nixon v. Administrator of General Services), the Court found that the privilege attaching to presidential historical records is subject to "erosion over time" (433 U.S. 451) because "there has never been an expectation that the confidences of the Executive Office are absolute and unyielding" (i.d. at 450). The court appeared to suggest also that the confidences of close presidential advisers also can be opened to the public at some point, not immediately, after a President has been out of office for a while (id. at 450-51).

As to the life cycle of presidential records while an administration is in office, well, it's anything goes. Unlike for most federal employees, for Presidents and their immediate associates, records management relies solely on an honor system.

There are two different laws that control government records, one stronger, one weaker. The federal records act controls records in Cabinet departments and in a couple of units within EOP. The presidential records act passed in 1978 controls most records created in the White House/EOP. (Don't be fooled by the WaPo's reference to Mondale's records residing at an historical society. The provisions of the 1978 presidential records statute did not kick in until 1981.)

The federal records act includes a consultative and oversight role for the National Archives. The presidential records statute does not.

The AUS can audit Cabinet dept. record keeping but not that of the White House. The AUS approves retention (or disposition) schedules for federal records. POTUS and his subordinates in the EOP themselves decide what records are archival and what records are not. There are statutory sanctions for the destruction of federal records. There are no statutory sanctions for destruction of presidential records.

The PRA is one of the weakest laws on the books as far as historical information is concerned. It might have a slight chance of working better if the 12 year period for application of presidential restrictions were lengthened. As it is, its provisions are akin to requiring taxpayers by law to mail in a check with taxes owed each year but providing the IRS no means to look at how they came up with the numbers.

How do you think that would work? A small number of scrupulous taxpayers would calculate what they actually owe and mail in/transfer the full amount. Many others would fudge some numbers but at least turn over something to the IRS, in terms of a check or electronic transfer. And others, who do not accept the underlying concept, largely would ignore the process of requiring taxes to be paid.

Bottom line: Unlike in departments/agencies, the AUS cannot advise or oversee records management in the White House. When they leave office, the POTUS and VPOTUS turn over to the National Archives whatever records they decide fit the applicable criteria. And that's it.
9.8.2008 9:00pm
Archivist, shame on you.

Factual information like this may have a chilling effect on the Procrustean arguments, wild speculations and partisan sophistry that are so loved by those who comment here regularly.
9.8.2008 11:07pm
one of many:
Few provisions of the PRA have been tested in court.

I have to object here, although it's a linguistic quibble. Just about all the provisions of the PRA have been tested in courts and the courts have been mostly successful in punting. If you read the caselaw it's a constant stream of "Congress retained the power ..."s, "the Archivist shall determine..."s and "the Executive at it's discretion can..."s. A cynical person might conclude that the courts don't want to intervene in a political struggle between the executive and legislative branches.
9.9.2008 1:07am
By number and in substance, on archival issues, there have been few meaningful decisions on any provisions of the PRA in court. For a law with such import, there only have been a number of PRA lawsuits filed by researchers against the National Archives.

And look at what happens to the hapless National Archives, whose employees the pie-in-the-sky laws require in their archival work to balance the public's right to know against the interests of the creators of the records. If named as a defendant, in the person of the AUS or as an institution, representation resides where, ummm, DOJ. Oh yeah, that would be the department which fiercely protects presidential prerogatives. The spectacle that ensues does not fit the criteria for legal abandonment in the technical sense, but neither does not result in a robust defense of the "client" of record. Some of what happens is downright pitiful.

And its not just that the lawyers are hamstrung. To be blunt, outside the National Archives, archivists -- the federal employees tasked with releasing historical records to the public -- mostly are surrounded by wimps. People either ignore what is happening to historical records or make excuses about it, depending on how they vote.

As for bloggers, fuhgeddaboutit. Rarely do you see anything that rises above Bush did this, oh yeah, well, Clinton did this. Mostly kneejerk, partisan blathering, nothing that sheds light on core issues and the pertinent weaknesses or characteristics of the law, the governmental setting, or the individuals involved. Meh.
9.9.2008 6:57am
Archivist -- thanks a lot for your insight!
9.9.2008 7:25pm
TokyoTom (mail):
Jon, what relief is being sought here and, if granted, what chance would it bear of having any efficacy?
9.10.2008 5:13am
For TokyoTom:

I'm guessing the author won't respond but I will.

The controlling statute (the PRA) places records management responsibility in the hands of the POTUS and his subordinates. In that sense, the PRA differs from the FRA, where the Archivist of the U.S. not only may audit the handling of official records in cabinet departments, he can go to DOJ if he learns of improper destruction/deletion of government records which the law requires to be preserved. There are sanctions for destruction under the FRA as this involves destroying government property.

The AUS cannot do this with PRA-controlled records. Neither he nor any neutral third party has a role in approving retention decisions or checking to see if guidance is being applied properly. Those decisions lie solely with POTUS and EOP officials, all of whom have vested interests in the content of the records.

The PRA requires the preservation and eventual transfer to the National Archives of historical records that document the constitutional, statutory, ceremonial and official actions of the POTUS. The same requirement applies to VPOTUS.

Documents and communications covering personal activities are excluded from official records status under the PRA. This includes a big out. Records documenting purely political activities are excluded from retention. They are considered personal, just as are records relating to communications with one's doctor and so forth. SCOTUS upheld in Nixon v. Administrator a President's right to private political association. The PRA recognizes that the President has a dual role as chief executive and leader of his political party.

Only a handful of WH officials have political as well as governmental duties. The segregation requirement for records lies at the heart of the controversy over the use of RNC issued blackberries. They are supposed to be used only for purely political communications, such as with political operatives, not for discussing governmental matters, issuance of policy guidance, giving out directives affecting government entities, etc. The PRA requires governmental communications to be preserved for historical purposes.

Other areas require such segregation as well. When POTUS travels, expenses are supposed to be charged to the taxpayer or to the political party, depending on the purpose of the trip, speech, etc. If a trip has multiple events or hybrid purposes, expenses are split accordingly. WH counsel issues guidance on how to record expenses and handle charges and reimbursements.

As I understand the news stories and complaint, the plaintiffs appear to be concerned that in addition to all the existing outs available under law, an additional one may have been developed for VPOTUS. This goes back to the OVP's refusal a year or two ago to let archives officials examine the handling of classified material, a review which previously was permitted but now no longer is. OVP then offered a novel argument that VPOTUS is not part of the executive branch.

In addition to his duties in the WH, VPOTUS serves as the President of the Senate. The plaintiffs have asked to what extent might VPOTUS claim that large portions of his official, governmental (non-political, non-personal) records be declared by the WH to lie outside the scope of the PRA because they reflect a legislative rather than executive function?

The plaintiff has been asking about PRA issues for years. It previously has sought to see what guidance the WH has issued to its officials on records management. Unlike in the cabinet departments, the RM process largely is insular and closed from examination. (By contrast, some cabinet departments place their records management guidance to employees on their external websites for the public to examine.) According to the complaint, the archives has confirmed to the plaintiff that if there are records that relate solely to the VPOTUS' legislative functions, it believes them to be personal and outside the scope of the PRA..

The complaint (which is available on line at the plaintiffs' website) asks the court to declare that guidelines which place records that deal with the vice president's constitutional, statutory, ceremonial and official functions outside the scope of the PRA are not valid. The complaint also asks that the court direct all the defendants from implementing guidelines that exclude from the PRA such records. It appears to be an effort to ensure that vice presidential records that deal with WH activities not be deleted or destroyed because WH officials declare portions of them to be legislative rather than executive and hence outside the scope of the PRA's retention requirements. I do not know whether WH counsel have opined on whether the VPOTUS is part of the executive branch. The public did hear some discussion of the barnicle theory at hearings earlier this year.

The PRA relies totally on a self-certifying segregation requirement. It's as if you worked in a newspaper office that faced a regulatory requirement to separate files dealing with the publishing and reporting side of the business. Let's just say as a hypothetical (there is no legal basis for this) that publishing and business files are subject to audit but reporters' notes and files are off limits to scrutiny. As an employee of such an outfit, would you put all information in the right category in your electronic or paper filing system? Some people would, others wouldn't. It's the same as any area allowing broad discretion in compliance to those with vested interests in operations.

The WH probably will argue that the POTUS is responsible for records management and no one has any business questioning what goes on within the WH. As far as preserved historical records go, the PRA says that you're supposed to take what is given to you by those who created them and that's it.

I don't expect useful, honest discussion of this by political bloggers or any group for which advocacy and taking sides is essential to their function. Archivists and scholars would benefit from nonpartisan dialogue on the challenges of implementing the PRA but I don't think any bloggers will come through for them.
9.10.2008 8:48am
In case anyone is wondering about legislative branch record keeping requirements, there is a split in status depending on the creating unit. The individual office files of Members are considered personal and disposition is discretionary. Many retiring Members choose to donate portions of their Senate or House office files to home state historical societies, universities or other repositories of their choosing. Some Committee records fall under statutory control and must be transferred to the national archives, which has a center for legislative archives.
9.10.2008 9:28am
TokyoTom, I didn't directly respond on the efficacy of relief should it be granted although I did point to it implicitly.

The PRA is weak and largely useless. Since its provisions rely on self-compliance without oversight, they are unenforceable. I see no broad public will to change that. Think back on which groups argued about missing Clinton administration e-mails and which ones argued about missing Bush administration e-mails. No cross over.

I don't expect anyone on this site to argue that that should change. No disprespect intended, but from my experiences, law and politics both depend on defending, explaining away or making excuses for those for whom you feel compelled to advocate. And impeaching the credibility of or, in worst case scenarios, destroying professionally those that stand in the way.

Archivists are not like that. They don't pick sides. The public often views trials and criminal proceedings as a way of finding out the truth or ascertaining what happened. Not so. The only profession that centers on revealing what happened actually is that of archivists, as they opens the disclosable portions of preserved records so that the public can examine them. I see no broad support for the archival function anywhere, except perhaps among a handful of scholars. I believe that what the laws, however weakly written, intend archivists to do is way, way too scary for most people to contemplate.

Enough from me, I've got to go head out.
9.10.2008 10:17am