Federal Court Orders VP Cheney to Preserve Records

On September 20, 2008, U.S. District Judge Colleen Kollar-Kotelly ordered the office of vice president Dick Cheney to preserve all records related to his office and the performance of his duties. The order came as a result of a lawsuit filed by Citizens for Responsibility and Ethics in Washington, together with the American Historical Associtaion, the Organization of American Historians, the Society of American Archivists, the Society for Historians of American Foreign Relations and historians Stanley Kutler and Martin Sherwin.

On September 8, CREW 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). The petitioners argued that without judicial intervention on January 20, 2009, a vast majority of Vice President Cheney’s records will not be transferred to NARA, as required by Presidential Records Act (PRA), for eventual release to the public, but instead will remain under the vice president’s custody and control. The plaintiffs sought an order mandating preservation of all of the vice president’s records pending the outcome of the lawsuit.

In granting the preliminary injunction, Judge Kollar-Kottelly’s opinion validates the plaintiffs’ concerns that “Those unprotected documents could be transferred to other entities, destroyed or not preserved, and if any of these events occur, the damage is inherently irreperable; once documentary material is gone, it cannot be retrieved.”

Judge Kollar-Kottelly also felt the order was necessary because it appeared the defendants in the case—the Office of the Vice President and the National Archives—were trying to narrowly define the scope of the records that should be covered by the Presidential Records Act (PRA) and to avoid specifying how the records would be transferred to the Archives. She stated, “As such, if Defendants’ interpretation is not correct as a matter of law, there is no question that documents that may be entitled to PRA protection will no receive the statute’s protection.”

The vice president’s office stated it would not comment on the opinion since the matter was still in litigation. If is not clear as yet if the government will appeal the judge’s ruling.

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, VP 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.

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