Historians Sue VP Cheney Seeking Court Order to Preserve Records

On September 8, the Citizen’s for Responsibility and Ethics in Washington (CREW) along with two historians and three historical and archival organizations filed a complaint against Vice President Cheney, the Office of the Vice President (OVP), the Archivist of the United States Allen Weinstein, and the National Archives and Records Administration (NARA), challenging their exclusion of a vast majority of Vice President Cheney’s papers from the Presidential Records Act (PRA) and the obligation to preserve them for the American public.

Joining CREW in the lawsuit are the American Historical Association, the Organization of American Historians, the Society of American Archivists and historians Stanley Kutler and Martin Sherwin. The petitioners argued that without judicial intervention on January 20, 2009, the vast majority of Vice President Cheney’s records will not be transferred to NARA for eventual release to the public, but instead will remain under the vice president’s custody and control. The plaintiffs are also seeking an order mandating preservation of all of the vice president’s records pending the lawsuit.

According to the Associated Press, Jamie Hennigan, a spokesperson for Mr. Cheney gave assurances that the OVP follows the Presidential Records Act and that the vice president intends to turn over his records to the National Archives when his term expires on January 20, 2009.

Following the filing of the suit, the defendants this week agreed to preserve all records at issue pending litigation, obviating need for preliminary injunction. Instead, the federal court has set a briefing schedule that must be complete by mid-November.

In Executive Order (EO) 13233 issued in 2001, President Bush declared that the PRA applied only to the “executive records” of the vice president. However, neither the Presidential Records Act (“PRA”) nor NARA’s implementing regulations ever reference “executive records”; rather they refer to records created or received by the president and vice president and their staff “in the course of conducting activities which relate to or have an effect upon the carrying out of the[ir] constitutional, statutory, or other official or ceremonial duties.”

Since issuing the EO, the vice president and OVP have maintained that they are not part of the executive branch, and it is such claims that precipitated the lawsuit.

For example, since at least January 2004, the OVP has refused to comply with provision of the Ethics Reform Act of 1989 requiring executive agencies to file semi-annual reports of payments accepted from non-federal sources, based on claim that OVP is not an agency in the executive branch. On June 26, 2008, the vice president’s Chief of Staff David Addington testified before House Judiciary Committee that the vice president belongs to neither branch but is attached by the Constitution to Congress.