INTRODUCTION Recent revelations about the actions of Vice President Cheney have highlighted what the American public
has long suspected -- this administration has put itself on a collision course with the Constitution. Intent on exposing and curbing the constitutional abuses of the Bush administration, CREW has been involved in a series of actions against the administration that have brought to light examples of constitutional overreaching and abuse of executive power and prerogative. This report details those actions in the hope of adding to the public debate on and understanding of these issues. Two general themes emerge from CREW’s actions. First, the vice president is quietly attempting to establish a body of case law that equates the power of the vice presidency with the power of the presidency. Second, the administration is intent on expanding the limits of executive privilege well beyond anything the framers could ever have imagined. The arguments made by the government in the cases CREW has brought demonstrate that the Bush administration is aggressively seeking to use the law to establish new boundaries expanding the power of the executive branch. THE NEW VICE PRESIDENCY UNDER MR. CHENEY Proper Handling of Classified Information -- Not for Vice President Cheney Recently it was revealed that the vice president has unilaterally exempted himself and his office from the executive order that governs the safeguarding of classified national security information. Mr. Cheney’s justification for his extraordinary action is that the Office of the Vice President (“OVP”) is not an entity within the executive branch because under the Constitution the vice president serves as president of the Senate and, therefore, has both legislative and executive duties. Interestingly, Mr. Cheney stopped complying with the executive order around the same time that Scooter Libby, his then chief of staff, began leaking classified information about Valerie Plame Wilson’s status as a covert CIA operative. Starting in 2003, the OVP refused to provide the National Archives with data about its classification and declassification activities, as the executive order mandates, and in 2004 it refused to allow the National Archives to conduct an on-site inspection of the OVP. Despite the fact that the president issued the executive, the vice president apparently believes he has the inherent authority to change that order. Not only did a member of Mr. Cheney’s staff leak classified material, it appears that he personally may have violated federal law governing the proper handling of classified information by publicly confirming the publication of a classified document. In an interview with the Rocky Mountain News on January 9, 2004, in response to a question about the connection between Saddam Hussein and Al Queda, Mr. Cheney responded that the best source of information was a Weekly Standard article that provided details, based on a Department of Defense assessment. Transcript of Interview with Vice President Dick Cheney, Rocky Mountain News and Scripps News Service, January 9, 2004. Immediately after the article to which Mr. Cheney referred was published, however, the Department of Defense called the leak of the Defense assessment “deplorable and maybe illegal” and members of the intelligence community, including the CIA and the Senate Intelligence Committee, asked the Department of Justice to investigate the leak.
Walter Pincus, Memo Exacerbates Defense CIA Strains; Clue on Al Qaeda-Hussein Ties at Issue, The Washington Post, November 20, 2003, A Section. On January 28, 2004, CREW called on President Bush to direct the White House Counsel to initiate an investigation into Mr. Cheney’s actions. President Bush has never responded to CREW’s request. Simply stated, Mr. Cheney has demonstrated on at least two occasions that he and his staff cannot be trusted with classified information. Clearly based on this record, exempting the vice president from procedures intended to safeguard classified information is not warranted and may actually lead to further breaches of national security. These examples are part of a growing list of naked power grabs by Vice President Cheney, often articulated under the guise of a litigation defense. Wilson Litigation and the Quest for Absolute Immunity Valerie and Joseph Wilson sued Vice President Cheney, among other top administration officials,1 for his role in leaking Valerie Wilson’s identity as a covert CIA operative in retaliation for Joseph Wilson publicly revealing a fundamental flaw in the administration’s rationale for going to war with Iraq. In response, Mr. Cheney argued that as vice president he was entitled to absolute immunity from suit. According to Mr. Cheney, permitting the Wilsons’ lawsuit to go forward against him would involve the courts in the review of “core Executive functions . . .”2 Apparently it suited Mr. Cheney to be part of the executive branch for purposes of mounting a defense to the Wilsons’ lawsuit. The fundamental problem with Mr. Cheney’s assertion of a right to absolute immunity -- which to date has never been extended to the vice president -- is that Mr. Cheney does not occupy the “unique position in the constitutional scheme” that the Supreme Court has held warrants according the president absolute immunity. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). Unlike the president, the Constitution does not vest in the vice president “unique” and singular” duties that would make him the function equivalent of the president. Instead, the Constitution gives the vice president two limited roles: (1) presiding over the Senate and breaking a tie in Senate votes (Art. I, § 3); and (2) succeeding the President (Art. II, § 1), or taking over as acting president under certain conditions (Amend. XXV, § 3, Amend. XXV, § 4).3
Those other officials include Scooter Libby, Karl Rove and Richard Armitage.
Wilson v. Libby, Civil No. 06-1258, Memorandum of Points and Authorities in Support of Defendant Vice President of the United States Richard B. Cheney’s Motion to Dismiss (Document No. 21), p. 23. The first draft of the Constitution presented to the Constitutional Convention in 1787 did not even include an office of the vice president. In fact, the framers created the vice presidency as a means to resolve issues regarding the functioning of the electoral college and selection of the president. Michael Nelson, A Heartbeat Away; Report of the Twentieth Century 2
It is no wonder that John Adams, the first vice president of the United States, lamented: “[M]y country has in its wisdom contrived for me the most insignificant office that ever the invention of man contrived or his imagination conceived.”4 Noted historian Richard Neustadt has observed that little has changed over the course of American history: “[The vice presidency] has been dolled up with real estate, assistance, name recognition (and the hazards now common to celebrity). But the essentials remain the same: the other person has all the authority.”5 That President Bush, as a matter of personal choice, has elected to vest Vice President Cheney with responsibility over a wide range of issues (in stark contrast to other 20th century vice presidents such as Dan Quayle) does not change the simple reality that it is President Bush who has “all the authority.” Secret Service Litigation and Secret White House Deals CREW’s litigation over the status of Secret Service visitor logs as agency records subject to the Freedom of Information Act (“FOIA”) has prompted the administration to reclassify the agency’s documents as presidential documents under the exclusive control of the White House. In so doing, the vice president has argued that the constitutional protections afforded the presidency apply with equal force to his office. CREW and at least three other parties6 have filed FOIA requests seeking from the Secret Service records of visits to the White House complex as well as the residence of the vice president. The Secret Service creates these records as part of its legal mandate to protect the president, vice president and their residences and offices. Fearing that such records would reveal with whom top White House officials met, the White House and Secret Service entered into a secret memorandum of understanding in the midst of litigation over the status of the visitor records that declared them to be presidential rather than federal, meaning that they were not subject to the FOIA. Months later, the vice president’s counsel sent a letter to the Secret Service demanding that the Secret Service return any records relating to visits to the vice president’s residence. In the debate over the legal status of these Secret Service visitor records, the vice president is arguing for the same constitutional protections afforded the president. Records of visits to the vice president, his office argues, cannot be revealed publicly because such disclosure would “significantly and impermissibly encroach on the confidential communications of the President, Fund Task Force on the Vice Presidency (Priority Press Publications 1988). Quoted in Joel K. Goldstein, The New Constitutional Vice Presidency, 30 Wake Forest L. Rev. 505, 519 (1995). At the President’s Side: The Vice Presidency in the Twentieth Century 192 (Timothy Walch ed., Univ. of Missouri Press 1997).
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They include Judicial Watch, the Democratic National Committee and The Washington 3
the Vice President, and their staffs.” CREW v. U.S. Dep’t of Homeland Security, Civil No. 061912, Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment (Document 29), p. 18. The Supreme Court has recognized that communications among the president and his advisors are protected under the presidential communications privilege by virtue of the unique position that the Constitution confers on the president. See, e.g., United States v. Nixon, 418 U.S. 683, 708 (1974). The presidential communications privilege is narrow, however, and applies to documents solicited and received by the president or his immediate advisors in the Office of the President in furtherance of the president’s decision-making and deliberations, and only to communications the president believes should remain confidential. In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997). Moreover, as the D.C. Circuit has warned, the presidential communications “should never serve as a means of shielding information regarding government operations that do not call ultimately for direct decisionmaking by the President.” Id. The presidential communications privilege is a qualified privilege, meaning that it may be overcome by a showing of need. Under this clear authority, the vice president’s suggestion that disclosing Secret Service records of visits to his office or residence would impermissibly encroach on his confidential communications is legally unsound. The Constitution protects certain of a president’s communications only because of the president’s unique constitutional duties, not shared by the vice president. Mr. Cheney’s effort to expand the power of his office to be co-extensive with that of the president has no support in the Constitution. THE ELASTIC CONCEPT OF THE POWER OF THE EXECUTIVE In tandem with the vice president’s efforts to make his office the constitutional equivalent of the president, the administration is seeking to expand more generally the power of the executive. Of particular danger is the fact that this expansion is limitless, as it is based on the notion that the executive enjoys powers that neither Congress nor the courts have the authority to rein in. Co-Opting Agency Records as Secret Presidential Records The Secret Service litigation revealed not only the vice president’s belief that he enjoys the same constitutional protection for his communications as the president, but also that the executive as a whole believes it has the power to co-opt agency records as its own. In that case, the White House is claiming that because some of the information in the visitor records could potentially reveal things about the president and the vice president that they do not want made public, it has the exclusive right of ownership and control over the records. Rather than relying on the statutory scheme that Congress put in place when it enacted the FOIA and that provides agencies with an opportunity to exempt materials that fall within nine specified categories, the president and vice president are attempting to remove the records from the reach of the FOIA altogether. If they prevail in their unilateral effort to transform agency records into presidential records, the president and vice president will have placed these documents beyond the reach of 4
the courts, Congress, and -- for the foreseeable future -- the public. Moreover, the theory behind the executive’s efforts to transform agency records into presidential records has no limits. There is nothing to stop the president or vice president from claiming as their own the records of any other agency. All they need do is assert that the agency records have information of interest to them that, if revealed, would compromise their ability to do their jobs as they see fit. Just as problematic, the Secret Service’s visitor records do not reflect confidential advice to the president for which constitutional protection has typically been afforded. If the president and vice president are claiming that they may keep secret records that merely reveal who visited the White House on any given day (but not necessarily who they visited), what other kind of quotidian records that an agency maintains could be subject to the same claim?
Hiding Behind the Presidential Communications Privilege for Hurricane Katrina Documents In other litigation, involving CREW’s FOIA request of the Federal Emergency Management Agency (“FEMA”) for Hurricane Katrina-related documents, the government’s invocation of the presidential communications privilege suggests an attempt to cover-up what President Bush actually knew before, during and after the hurricane devastated the Gulf Coast. See CREW v. U.S. Dep’t of Homeland Security, Civil No. 06-0173, Defendant’s Motion for Summary Judgment and Memorandum of Points and Authorities in Support of Defendant’s Motion for Summary Judgment (Document 12). Not only is the government’s position without merit, it too represents gross overreaching by the executive. The government seeks to invoke the president’s privilege without identifying any presidential decision of which the communications were a part and without claiming that the president, or anyone delegated to act on his behalf, is authorized to invoke a privilege that the president alone enjoys. The government’s reliance on the presidential communications privilege under these circumstances is a far cry from the narrow, carefully circumscribed privilege that the courts have recognized to date. The Office of Administration and Playing Games With the FOIA When CREW learned from confidential sources that the White House was missing over five million emails from its own, internal server7 and that the Office of Administration (“OA”), a component of EOP, had a cache of documents relating to the loss, CREW filed a FOIA request with the OA for those documents. When the OA failed to produce a single document or identify
See Without a Trace: The Story Behind the Missing White House E-Mails and the Violations of the Presidential Records Act, available at http://www.citizensforethics.org/files/04207WithoutATraceFullReport.pdf. 5
a date by which it could respond, CREW filed suit. After court-supervised discussions, the parties agreed to a time-table for processing CREW’s request. The OA’s first response, made on June 21, 2007, was startling in a number of respects. Key among them was the OA’s remarkable assertion that it was responding to CREW’s FOIA request “as a matter of administrative discretion,” because it was not an “agency.” This is so, the OA asserted, because “on occasion” it provides direct administrative support to the president. Once again the administration is playing games with the FOIA and trying to unilaterally exempt itself from that statute’s mandatory provisions just on its say-so. And once again its position is legally and factually unfounded. As the courts have recognized, executive branch entities like the OA, whose responsibilities exceed merely advising and assisting the president, are subject to the FOIA. Pacific Legal Found. v. Council on Environmental Quality, 636 F.2d 1259, 1263 (D.C. Cir. 1980); Energy Research Foundation v. Defense Nuclear Facilities Safety Bd., 917 F.2d 581, 584-85 (D.C. Cir. 1990). By contrast, where an entity within the EOP serves as the functional equivalent of a presidential assistant, it is not subject to the FOIA. Meyer v. Bush, 981 F.2d 1288, 1294 (D.C. Cir. 1993). The OA was established by executive order, and charged with “[t]he primary responsibility for performing all administrative support and service functions of units within the Executive Office of the President . . .” E.O. 12028, Sec. 5. The OA’s responsibilities, however, do not include “those functions [that] are performed by the White House Office primarily in direct support of the President.” Id. (emphasis added). Accordingly, by definition the OA does not provide exclusively the kind of “direct assistance” to the President that would place it outside the reach of the FOIA. Moreover, the OA has long considered itself subject to the FOIA, has promulgated FOIA regulations (5 C.F.R. Part 2502) and has an office that processes FOIA requests. See http://www.whitehouse.gov/oa/foia. CREW’s FOIA request of the OA seeks documents that are potentially very damaging for the Bush administration. These documents may well reveal that the White House has known for almost two years about the missing emails and the fundamental problems with its electronic record-keeping systems, yet has failed to take any corrective actions. Knowledgeable sources have suggested to CREW that revelation of the dates for which the emails are missing -information that is included in the documents CREW has requested -- may suggest that the “loss” was not accidental, but purposeful. Of course, without the documents this cannot be confirmed. The FOIA establishes a statutory right of access to this information; by the OA’s suggestion that it is not bound by the FOIA it seeks to override this right and prevent CREW and the public from learning the truth about the missing emails. CONCLUSION These examples are by no means exclusive, but represent just a small sampling of the situations in which the president and vice president have sought to stretch the Constitution to expand the power of their offices. The vice president’s efforts to equate his office with that of the president are especially troubling, given the degree to which he has abused and usurped executive power 6
in a variety of contexts, from the creation of illegal policies on torture to the refusal to comply with executive branch procedures for the handling and safeguarding of classified information.
Perhaps the public attention finally focused on the efforts of the president and vice president to expand their powers will act as a deterrent against any future rogue abuses and highlight the need for congressional and judicial intervention to restore the proper balance of power between the three (not four, as Mr. Cheney would have it) branches of government. Sadly, given the record, this seems overly optimistic.