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.
The group wants the Archives to abandon its interpretation that legislative records of vice presidents are personal property and not covered by the presidential records law.
Gary M. Stern, general counsel for the Archives, said he has shared the group's concerns with the White House.
"We have no reason to think that anything will happen differently with this vice president than has happened with any other," Stern said, "which is, the records that they create in their White House office and with their White House staff will come to us as vice presidential records under PRA."
Former vice president Al Gore's papers, for instance, are maintained at an Archives facility in Washington, he said.
Martin J. Sherwin, a history professor at George Mason University and a plaintiff in the case, said it will be impossible to measure Cheney's influence without access to the records.
"It horrifies me as a citizen to think our government can operate in total secrecy during the administration and then, after the administration, remain in secrecy," he said.
For years, Cheney has resisted revealing any aspect of the inner workings of his office; he has shielded information such as the names of industry executives who advised his energy task force, his travel costs and details, and Secret Service logs of visitors to his office and residence. Since 2003, his office has refused to comply with an executive order requiring entities in the executive branch to file annual reports on their possession of classified data, at one point blocking an inspection by officials from the Archives.
The Presidential Records Act, inspired by Nixon's attempt to withhold from Congress and perhaps destroy some of his records and tapes after Watergate, first applied to the Reagan administration. For the first time, it provided for the preservation of vice presidential records.
The law established a process for providing public access to presidential and vice presidential records through the Freedom of Information Act, beginning five years after an administration ends. Presidents and vice presidents can restrict access to certain records, notably those involving national security, for up to 12 years.
Archives officials say they have met with White House staff members to discuss the records transfer. The agency has leased a 60,000-square-foot building near Dallas to archive records temporarily until Bush's presidential library is completed at Southern Methodist University.
"There have been no red flags that have gone up for us about records-management procedures and getting ready to turn records over to us," said Susan Cooper, an Archives spokeswoman.
Joel K. Goldstein, a constitutional scholar and expert on the vice presidency at the St. Louis University School of Law, said Cheney faces a tough sell if he argues that many of his documents are not "executive records."
"When a vice president is sitting there in the West Wing and participating at the highest levels in the work of the executive branch, and when the main reason somebody like Vice President Cheney wants to be vice president is to help drive the car, it's a little bit anomalous to say you're not part of the executive branch," said Goldstein, who is not part of the lawsuit.
Staff writer Lyndsey Layton contributed to this report.