By Christopher Lee
Washington Post Staff Writer
Sunday, September 21, 2008
A federal judge issued a preliminary injunction yesterday ordering Vice President Cheney and the National Archives to preserve all of his official records.
U.S. District Judge Colleen Kollar-Kotelly's order came in response to a lawsuit filed this month by the watchdog group Citizens for Responsibility and Ethics in Washington. The group, joined by several historians and open-government advocates, warned that Cheney might destroy or withhold important documents as the Bush administration winds down if he interprets the Presidential Records Act of 1978 as applying to only some of his official papers.
That, in turn, could deprive historians and the general public of valuable records that illustrate Cheney's role in forming U.S. policy over the past 7 1/2 years, they argued. He is widely considered to be the most influential vice president in history.
Kollar-Kotelly, who was appointed by President Clinton, issued her order despite assertions from Cheney's representatives that he was preserving all the records he is required to under the 1978 law.
"It's a pretty strong opinion," said Anne Weismann, chief counsel for the watchdog group. "They will be prevented from destroying anything. It basically means they have to preserve everything in the broadest possible interpretation of what the law requires -- not their narrow interpretation."
A spokesman for Cheney said the vice president's office will not comment on pending litigation.
Open-government advocates are nervous about the fate of Cheney's papers, because the vice president has long resisted revealing any aspect of the inner workings of his office. He has, for example, 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. Cheney also has argued that he is not part of the executive branch.
In court filings, Claire M. O'Donnell, Cheney's deputy chief of staff, offered a narrower definition of vice presidential records than the one in the law. She wrote that the statute applied to records relating to the "constitutional, statutory or other official or ceremonial duties" of the vice president that fall within "the category of functions of the Vice President specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities" or "the category of the functions of the Vice President as President of the Senate."
But that definition excludes many records, including those relating to Cheney's work on the National Security Council and those where he acted without instructions from the president, such as his efforts to win reauthorization of a top-secret warrantless wiretapping program, the plaintiffs argued.
Kollar-Kotelly agreed and ordered all records preserved until the court can sort out the legal arguments on both sides before the presidential transition in January.
"Those unprotected documents could be transferred to other entities, destroyed, or not preserved, and if any of these events occur, the damage is inherently irreparable; once documentary material is gone, it cannot be retrieved," the judge wrote in her 22-page order.