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Lawsuit to Ask That Cheney's Papers Be Made Public

Vice President Cheney has maintained that he is not part of the executive branch, a view that scholars say could lead  him to argue that he does not have to make his papers public after  leaving office.
Vice President Cheney has maintained that he is not part of the executive branch, a view that scholars say could lead him to argue that he does not have to make his papers public after leaving office. (By Alberto Pellaschiar -- Associated Press)

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By Christopher Lee
Washington Post Staff Writer
Monday, September 8, 2008

Months before the Bush administration ends, historians and open-government advocates are concerned that Vice President Cheney, who has long bristled at requirements to disclose his records, will destroy or withhold key documents that illustrate his role in forming U.S. policy for the past 7 1/2 years.

In a preemptive move, several of them have agreed to join the advocacy group Citizens for Responsibility and Ethics in Washington in asking a federal judge to declare that Cheney's records are covered by the Presidential Records Act of 1978 and cannot be destroyed, taken or withheld without proper review.

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.

"I'm concerned that they may not be preserved. Whether they've been zapped already, we don't know," said Stanley I. Kutler, an emeritus professor and constitutional scholar at the University of Wisconsin Law School.

Former vice president Walter F. Mondale, whose papers are being declassified and shipped to the Minnesota Historical Society, said the fate of Cheney's records bears watching.

"I think you'd have to be very worried about it," said Mondale, who is not a party to the lawsuit. "Under Bush and Cheney, they've used every opportunity to assert executive privilege."

Cheney has not disclosed his plans for his papers, nor has he argued publicly that any are exempt from the 1978 law. Congress passed the law after the Watergate scandal to ensure that the country's highest elected officials preserve their papers for public review.

"The Office of the Vice President currently follows the Presidential Records Act and will continue to follow the requirements of the law, which includes turning over vice presidential records to the National Archives at the end of the term," Cheney spokesman Jamie Hennigan said in an e-mail.

Kutler and others, including the American Historical Association and the Society of American Archivists, are not reassured. Their lawsuit contends that President Bush sought to improperly narrow the scope of the records law in a 2001 executive order that declares, in part, that the statute "applies to the executive records of the Vice President."

Scholars say "executive records" is a term that is not found in the original act, and that seemingly opens the door to withholding some documents on the grounds that they are "non-executive" records -- legislative records, for instance. It raised red flags because Cheney has frequently argued that his office is not part of the executive branch but rather is "attached" to the legislative branch by virtue of the vice president's role as president of the Senate.

"I think this has been in the works since then, but nobody really focused on it," said Anne Weismann, chief counsel for the ethics group.


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