Ruling on Records Delivers a Win to Cheney

By R. Jeffrey Smith
Washington Post Staff Writer
Tuesday, January 20, 2009

A federal judge yesterday rejected the claim by a coalition of historians and nonprofit groups that Vice President Cheney intended to illegally discard some of his official records, and instead accepted the pledge of a senior White House aide that key Cheney documents and other materials will be transferred as required to the National Archives.

The decision, announced on the eve of the Bush administration's handover of power, capped a long legal battle over how much discretion Cheney had to decide which documents he must preserve for history. On virtually every important legal issue in the case, including whether courts even have jurisdiction to review the matter, the Justice Department -- representing Cheney -- lost.

But the groups, including the American Historical Association, the Organization of American Historians and the Society of American Archivists, were unable to convince the court that Cheney intended to destroy or keep much of his records under what they called a strained interpretation of the governing law.

The Justice Department provided what U.S. District Judge Colleen Kollar-Kotelly called "constantly shifting arguments" in the case, but, she said, "That confusion is not evidence" that would undermine the sworn deposition of Claire M. O'Donnell, a Cheney aide who handles record-keeping and other administrative tasks.

"The Court expects," she said, that White House officials "will, in good faith, comply with the representations that their officials have made, by way of testimony, in this case." As a result, she granted summary judgment on the White House's behalf and lifted a five-month-old injunction mandating the preservation of Cheney's records.

One of the plaintiffs, Stanley I. Kutler, an emeritus professor of history and law at the University of Wisconsin Law School, said he remains worried that "when the Archives goes to open Cheney's papers, they are going to find empty boxes."

Cheney "spent most of his time making sure he left no footprints," said Kutler, who has written two books on Watergate and President Richard M. Nixon's White House tapes. "Why did he fight this order so much if he did not have the intent to leave with these papers? I'm guessing that a lot of it will not be there."

The Justice Department had argued that Kutler and other plaintiffs had no standing to sue, but Kollar-Kotelly said they had legally protected interests in the disposition of Cheney's records.

The department had also argued that no court could review the Bush administration's compliance with the underlying law, the Presidential Records Act, which grew out of the Watergate episode. But the judge said otherwise, sharply criticizing the administration for "blinding" itself to a previous court ruling upholding such review.

The department further argued that, under the act, Cheney had complete discretion to decide how to comply with it. But the judge said the law's explicit language requires preservation of any records Cheney and his office created or received while carrying out "constitutional, statutory, or other official or ceremonial duties."

The lawsuit was based on a series of statements by the Bush administration that the plaintiffs described as an overly narrow interpretation of that phrasing. That, they said, would have the effect of allowing Cheney to take most of his office's records from the past eight years with him when he leaves the White House for the last time.

President Bush, for example, said in a 2001 executive order that the law applied only to "executive records." Yet Cheney and others in the administration have repeatedly asserted that the vice president is not part of the executive branch but, instead, an appendage of Congress.

The Justice Department also said at one point in the litigation that the law applied only to work that Cheney had been specifically assigned by Bush, and the National Archives separately suggested that the records of his dealings with Congress may be exempt.

Kollar-Kotelly said the administration had wrongly based its narrow interpretation of the records law on the language in a bill related to the White House budget.

But she also said she would rely on a sworn promise by O'Donnell that everything the vice president does is assigned by the president and, thus, covered by the law.

"At the end of the day, we couldn't come up with evidence" of any planned records destruction or withholding, said Anne Weismann, counsel for another of the plaintiffs, Citizens for Responsibility and Ethics in Washington.

Spokesmen for the White House and the National Archives did not respond to requests for comment.

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