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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

1
Those other officials include Scooter Libby, Karl Rove and Richard Armitage.
2
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.
3
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

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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).
4
Quoted in Joel K. Goldstein, The New Constitutional Vice Presidency, 30 Wake Forest
L. Rev. 505, 519 (1995).
5
At the President’s Side: The Vice Presidency in the Twentieth Century 192 (Timothy
Walch ed., Univ. of Missouri Press 1997).
6
They include Judicial Watch, the Democratic National Committee and The Washington
Post.

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the Vice President, and their staffs.” CREW v. U.S. Dep’t of Homeland Security, Civil No. 06-
1912, 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

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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

7
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.

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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

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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.