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CREW v. Cheney Et Al: Regarding VP Records: 9/23/08 - Joint Status Report (Document 18)

CREW v. Cheney Et Al: Regarding VP Records: 9/23/08 - Joint Status Report (Document 18)

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Published by CREW
On September 8, 2008, CREW along with two eminent historians and three organizations of historians and archivists filed a complaint against Vice President Cheney, the Office of the Vice President, the archivist and the National Archives and Records Administration (NARA), challenging their exclusion of a vast majority of Vice President Cheney's papers from the Presidential Records Act (PRA) and the obligation to preserve for the American public. In an executive order issued in 2001, President Bush declared that the PRA applied only to the "executive records" of the vice president. Since that time, the vice president has taken the view that he is not part of the executive and is attached, if at all, to the congressional branch. Moreover, the archivist takes the view that the congressional records of a vice president are his personal, not presidential, records that he is free to dispose of at will. As a result of these unlawful policies, without judicial intervention on January 20, 2009, the vast majority of Vice President Cheney's records will not be transferred to NARA for eventual release to the public, but instead will remain under the vice president's custody and control. CREW is also seeking an order mandating preservation of all of the vice president's records pending the lawsuit.
On September 8, 2008, CREW along with two eminent historians and three organizations of historians and archivists filed a complaint against Vice President Cheney, the Office of the Vice President, the archivist and the National Archives and Records Administration (NARA), challenging their exclusion of a vast majority of Vice President Cheney's papers from the Presidential Records Act (PRA) and the obligation to preserve for the American public. In an executive order issued in 2001, President Bush declared that the PRA applied only to the "executive records" of the vice president. Since that time, the vice president has taken the view that he is not part of the executive and is attached, if at all, to the congressional branch. Moreover, the archivist takes the view that the congressional records of a vice president are his personal, not presidential, records that he is free to dispose of at will. As a result of these unlawful policies, without judicial intervention on January 20, 2009, the vast majority of Vice President Cheney's records will not be transferred to NARA for eventual release to the public, but instead will remain under the vice president's custody and control. CREW is also seeking an order mandating preservation of all of the vice president's records pending the lawsuit.

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Published by: CREW on Jan 28, 2011
Copyright:Public Domain

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04/06/2012

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY AND :ETHICS IN WASHINGTON, et al., ::Plaintiffs, ::v. : Civil Action No. 08-1548 (CKK):THE HON. RICHARD B. CHENEY, et al., ::Defendants. :____________________________________:
JOINT STATUS REPORT
By Order dated September 22, 2008, the Court directed the parties to confer “to discusswhether or not it is appropriate for one or both parties to take narrow and expedited discovery”and, “to the extent it is appropriate, the amount and nature (e.g., depositions, interrogatories) of such discovery.”  Thereafter the parties were directed to file a Joint Status Report including, asappropriate, “an expedited discovery and briefing schedule” with an outside date of November17, 2008.  Pursuant to that Order the parties hereby submit this Report.
Plaintiffs’ Position
Discovery Requested 
The record currently before the Court raises critical questions to which plaintiffs needanswers before they can move for summary judgment based on a lack of dispute over materialfacts.  Most fundamentally, as the Court’s Memorandum Opinion of September 20, 2008 (“Mem.Op.”) (Document 16) recognizes, the White House defendants are preserving “
only
documentarymaterial reflecting the ‘functions of the Vice President specially assigned to the Vice Presidentby the President in the discharge of executive duties and responsibilities’ and the ‘functions of the Vice President as President of the Senate.’”  Mem. Op. at 12 (emphasis in original).
Case 1:08-cv-01548-CKK     Document 18      Filed 09/23/2008     Page 1 of 10
 
1
For example, the vice president’s membership on the National Security Council isconferred by statute, 50 U.S.C. § 402(a), as is his membership on the Board of Regents of theSmithsonian Institution.  See 20 U.S.C. § 42.2Unaccounted for are records related to all other activities in which Vice President Cheneyengages, such as any functions he performs in his self-proclaimed non-executive branchcapacity, those functions he performs that are not “specially assigned” to him by the president --including his more general and wide-sweeping advisory role -- and those functions he performspursuant to statute.
1
 In addition, through the declarations of Claire M. O’Donnell, Assistant to the VicePresident and Deputy Chief of Staff, defendants have established only what the Office of theVice President (“OVP”) is preserving and intends to transfer to the National Archives andRecords Administration (“NARA”) at the end of this administration.  See, e.g., Declaration of Claire M. O’Donnell, ¶ 7 (attesting to OVP’s intent to transfer to NARA “the vice presidentialrecords of the vice presidency of Richard B. Cheney
within its possession, custody, or control
. ..”) (emphasis added).  Still unaccounted for, however, are those records within the possession,custody or control of the vice president, including records in his Senate office.As a result, plaintiffs need discovery on the universe of functions the vice presidentperforms that are still not addressed and the documents he creates in fulfilling those functions.To be clear, plaintiffs are not seeking discovery on the content of any particular document.Rather, plaintiffs seek discovery on defendants’ policies as to how these other categories of documents are treated for purposes of the Presidential Records Act (“PRA”).Plaintiffs therefore propose to take the deposition of David Addington, former counsel tothe vice president and currently his chief of staff.  Mr. Addington has been a leading proponent
Case 1:08-cv-01548-CKK     Document 18      Filed 09/23/2008     Page 2 of 10
 
2
See Barton Gellman,
Angler The Cheney Vice Presidency
(2008), pp. 282-284.3of the position that the vice president is not part of the executive branch, has clearly beeninvolved in all aspects of Richard Cheney’s vice presidency and is therefore in the best position(with the exception of Vice President Cheney) to address what is still unaccounted for in Ms.O’Donnell’s declarations.  Mr. Addington also serves as a record keeper for the vice president.For example, it was Mr. Addington alone who maintained the vice president’s documents relatedto the administration’s warrantless domestic surveillance program.
2
 Not only is Mr. Addington the most appropriate deponent, but a deposition is the bestway to seek this clearly relevant discovery.  As the course of this litigation to date has revealed,relying solely on written documents, carefully crafted by lawyers, does not bring the clarityneeded to advance the litigation.  Answers to written depositions will pose the same problems asthe declarations have already posed, requiring follow-up to explore ambiguous responses andeven then not assuring that all the relevant facts will be provided.Depositions will best meet the stated need for expedition.  Any discovery of White Houseofficials, no matter how conducted, is likely to be contentious and involve assertions of privilege.  But privilege assertions made in response to written discovery will lead to the biggestdelay; defendants will not even raise claims of privilege until the deadline for responding todiscovery, and to the extent plaintiffs dispute those claims they will need to file a motion tocompel, which will generate a round of briefing before the issues are ready for resolution.  Bycontrast, a deposition conducted under the auspices of the court if necessary, or with the courtreadily available to resolve issues that arise, presents the quickest way to address and resolve
Case 1:08-cv-01548-CKK     Document 18      Filed 09/23/2008     Page 3 of 10

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