CREW v. Cheney Et Al: Regarding VP Records: 11/18/08 - CREWs Motion to Depose David Addington

8/7/2019 CREW v. Cheney Et Al: Regarding VP Records: 11/18/08 - CREWs Motion to Depose David Addington

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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. :____________________________________:

PLAINTIFFS MOTION FOR LEAVE TO DEPOSE DAVID ADDINGTON

AND RE-DEPOSE NANCY KEGAN SMITHAND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

INTRODUCTION

This Court authorized discovery to resolve the significant factual, legal and hybrid

factual/legal questions raised by defendants declarations and pleadings in opposition to

plaintiffs motion for a preliminary injunction. These questions were generated in large part by

defendants insistence on a facially narrow and under-inclusive definition of those functions and

duties the vice president performs that result in the creation of vice presidential records under the

Presidential Records Act (PRA). Defendants refused to reformulate their unduly narrow

definition in the face of the Courts continuing questions and concerns, even though the lack of

any factual or legal predicate made it impossible for the Court to determine whether defendants

are improperly excluding records from the reach of the PRA.

Specific questions raised by defendants submissions include whether Vice President

Cheney only engages in activities that fall within the two narrow categories that Defendants

assert comprise all of his constitutional, statutory, or other official or ceremonial duties, and

whether various examples of Vice Presidential activities that were proffered by Plaintiffs . . .

Case 1:08-cv-01548-CKK Document 35 Filed 11/18/2008 Page 1 of 14


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1 The Court initially authorized the deposition of Vice President Chief of Staff DavidAddington but the D.C. Circuit, ruling on defendants mandamus petition, found that Plaintiffshave so far shown no need for the deposition of such a high-ranking member of the Office of theVice President. In re Richard B. Cheney, Opinion, October 31, 2008, at p. 5 (MandamusOp.) (emphasis added).

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were considered by Defendants to fall within these narrow definitions. Discovery Order,

September 24, 2008 (Dkt. 20), p. 12 (citations omitted) (emphasis added). To answer these

questions the Court authorized plaintiffs to take the depositions of National Archives and

Records Administration (NARA) official Nancy Kegan Smith and Claire M. ODonnell,

deputy chief of staff and assistant to the vice president. 1

The deposition of Claire ODonnell did not answer the Courts questions, did not shed

light on the derivation, meaning or intent of defendants narrow definition of those functions the

vice president performs that create vice presidential records and, most significantly, reveals that

Ms. ODonnell is not a competent witness to speak to these issues. Despite her impressive title,

Ms. ODonnell has no more expertise in or experience with vice presidential records than any

other employee of the Office of the Vice President (OVP). Nor does Ms. ODonnell have any

personal knowledge about the vast majority of records and categories of records the vice

president and the OVP create and receive, beyond the very limited categories of administrative

records she personally manages. Far from an expert on the OVPs implementation of the PRA,

Ms. ODonnell has not even read the Act in its entirety and has received no specific training or

guidance beyond that given to all OVP employees. Her declarations, as she readily admitted,

were drafted by counsel and reflect counsels choice of language, not hers.

Quite simply the stakes in this litigation are too high -- literally part of our nations

written history hangs in the balance -- to leave the Courts questions, which go to the heart of



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this matter, unanswered. The Court could, of course, entertain a round of briefing during which

defendants try once again to convince the Court that black is white and up is down. But the need

to resolve this litigation quickly, before the administration comes to a close, compels the

conclusion that the most expeditious course is to allow plaintiffs to depose David Addington.

Unlike the record before the D.C. Circuit when it resolved defendants mandamus petition, the

current record makes it manifestly clear that Mr. Addington is a pivotal person in the

management of the vice presidents records under the PRA and, unlike Claire ODonnell, is the

most knowledgeable deponent to answer the Courts questions. Accordingly, plaintiffs seek

leave to depose Mr. Addington as quickly as possible.

In addition, plaintiffs seek leave to re-depose Nancy Kegan Smith on the subject of a

memorandum issued recently by White House Counsel Fred Fielding or, alternatively request

that the Court order defendants to produce this memorandum to plaintiffs. Because of

defendants privilege assertion over the entire subject-matter of this memorandum, plaintiffs

were unable to receive information about its contents. The Court having now ruled that the

memorandum is both within the scope of discovery and not privileged, plaintiffs should be

afforded appropriate follow-up with Ms. Smith.

ARGUMENT

I. CLAIRE ODONNELL IS NOT A COMPETENT WITNESS TOANSWER THE COURTS QUESTIONS.

As set forth in the Courts Discovery Order and ratified by the D.C. Circuit, the purpose

of the Court-authorized discovery was to allow follow-up questioning on facts OVP has



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2 Mandamus Op. at 5.

3 For the Courts convenience plaintiffs include as Exhibit 1 to this Motion the entiretranscript of Ms. ODonnells deposition.

4 Id.

5 Id. at pp. 14, 16 (I only manage my own files),18.

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itself put in evidence, 2 such as whether Vice President Cheney only engages in activities that

fall within the two narrow categories that Defendants assert comprise all of his constitutional,

statutory, or other official or ceremonial duties, and whether various examples of Vice

Presidential activities that were proffered by Plaintiffs . . . were considered by Defendants to fall

within these narrow definitions. Discovery Order, September 24, 2008 (Dkt. 20), p. 12

(citations omitted) (emphasis added). Notwithstanding her title as deputy chief of staff and

assistant to the vice president, Ms. ODonnell lacks both knowledge and expertise to answer

these questions. Moreover, her deposition testimony reveals that she was not a competent

witness to testify to the matters contained in the three declarations she has already submitted in

this lawsuit.

First, Ms. ODonnell essentially serves as an office manager in an administrative office

of the OVP, with responsibility

to hire staff, get them on board, get them office space, get themtheir passes, parking, just help with the personnel and themanagement of the office.

Deposition of Claire M. ODonnell at p. 7 (ODonnell Depo.). 3 Although she has some

responsibility for records management within the OVP, 4 it is limited to managing her own files 5

and referring OVP employees with records management questions to the counsel to the vice

president. Id. at 11.



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6 ODonnell Depo. at p. 14.

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Id. at 15.8 Id.

9 Id. at 16. Ms. ODonnell also maintains other miscellaneous files of just differentdocuments her office receive[s] or create[s] and that she described as kind of aconglomeration of things. ODonnell Depo. at 18.

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Ms. ODonnell has personal knowledge of only five subsets or categories of records: the

four that she personally maintains and the records generated by the energy task force that Vice

President Cheney headed up. The four categories of records that Ms. ODonnell maintains and

that fall within the scope of the PRA are personnel records, which include resumes and clearance

information; 6 budget files relating to the vice presidents authorized budget (e.g., how we

spend it . . . any kinds of bills); 7 the vice presidents trip files with records concerning who

traveled with him, what rental cars we paid for, per diem, things like that; 8 and a file of bills

paid, which includes payroll bills . . . supplies . . . transportation of things within the office,

travel bills.9

Ms. ODonnell also has personal knowledge of records relating to the energy task

force because those records were housed in her office space, ODonnell Depo. at 49-50, and at

that early stage of the administration she had more hands on . . . to make sure that things were

being done and was assigned personal responsibility for these records Id. at 50.

In implementing these limited records management responsibilities Ms. ODonnell has

received equally limited guidance and instruction. She recalled having received only two written

memoranda, each from the then-White House counsel and each directed to all staff. The first

memorandum, issued in January 2001, didnt apply just to the vice president. It applied to

everybody. ODonnell Depo. at 9. Ms. ODonnell could not recall what, if any specific



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10 See also id. at 43 (I always defer to counsel.).

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guidance the memorandum offered as to vice presidential records, id., beyond the general

guidance that [e]verything had to be kept and filed to be sent to the archives. Id. The second

memorandum was issued by White House Counsel Harriet Miers shortly after she replaced

Alberto Gonzales. Id. at 44-45. Ms. ODonnell described this second memorandum as

basically the same thing as the first, but could not remember the details of it. ODonnell

Depo. at 9.

Of note, Ms. ODonnell did not receive and has no familiarity with the memorandum

issued by Fred Fielding on October 8, 2008. ODonnell Depo. at 13. This Court, based on its in

camera review, described the Fielding memorandum as contain[ing] references to Vice

Presidential Records and includ[ing] at least one definition of what constitutes a Vice

Presidential Record. Minute Order of November 12, 2008. Yet the Fielding memorandum --

prepared after plaintiffs filed this lawsuit -- was not shared with Ms. ODonnell, the very person

the White House has proffered as a knowledgeable declarant about the vice presidents and

OVPs compliance with the PRA. This omission alone speaks volumes about the lack of

competence of this witness to testify to the matters contained in her three declarations.

Beyond this limited and very generic written guidance, Ms. ODonnell testified that she

also has received verbal reminders and annual ethics briefings, each of which she described as

imparting generic advice. ODonnell Depo. at 8, 10. Ms. ODonnell in turn has offered her staff

only reminders about the process of how to archive records, and refers her staff to counsel if

they have more specific questions than that. Id. at 10-11. 10

As for the PRA itself, Ms. ODonnell testified that while she has read portions of it she



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11 See also id. at 30 (in response to questions about what the vice president does withrecords that he keeps in his immediate office and how they are handled for purposes of the PRAMs. ODonnell testified I have no personal knowledge.).

12 Id. at 20 (I dont have specific knowledge; I dont have personal knowledge.); 53.

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cant guarantee that Ive read the whole thing. Id. at 14. Indeed, Ms. ODonnell has no

working knowledge of what constitute personal records under the PRA. ODonnell Depo. at

22 (Im not sure of the definition of personal.). And when asked about what is included in the

legislative records category, Ms. ODonnell responded I really dont distinguish myself . . .

Id. at 23.

Ms. ODonnell has absolutely no personal knowledge about the vast majority of records

that either the OVP or the vice president himself creates or maintains. She admitted that she is

not familiar with how the Vice Presidents immediate office handles his papers or how he [the

vice president] does . . . Id. at 30.11

Similarly, she has no firsthand knowledge of anything that

he [the vice president] has created that is not covered for us under the PRA. ODonnell Depo.

at 38. When asked about a series of records on topics ranging from documents potentially

responsive to congressional subpoenas to records of communications between the OVP and the

FISA Court, Ms. ODonnell admitted having no personal knowledge about how the records are

being treated under the PRA 12 and could only assume, based on the very general guidance she

has received, that the records are being preserved. See id. at pp. 47-58.

Most significantly, Ms. ODonnell could shed little light on the factual and legal

foundation for her facially narrow definition of the vice presidents functions as encompassing

only those specially assigned to the Vice President by the President in the discharge of

executive duties and responsibilities. This language -- like all of the language in her



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13 ODonnell Depo. at 24, 32.

14 Id. at 59. Ms. ODonnell also testified that she has not spoken directly to the vicepresident about records issues. Id. at 29.

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declarations -- was drafted by counsel. 13 When pressed on how this specially assigned

language encompasses the various responsibilities that statutes assign to the vice president Ms.

ODonnell stated I dont get into the legalese of all of the Vice Presidents duties. Id. at 29, 34

(I wouldnt want to get into the legalese of it. I just know he does perform executive duties

assigned to him by the President.). Yet the precise question this Court is attempting to ascertain

is the legal significance of this narrow definition of the vice presidents duties and

responsibilities.

Nor does it fall to Ms. ODonnell to decide whether a particular activity constitutes vice

presidential support of presidential functions. See ODonnell Depo. at 27 (I wouldnt make that

determination). Moreover, Ms. ODonnell admitted that [t]he Vice Presidents staff isnt

specially assigned. The Vice Presidents staff is there to support the Vice President. Whether he

gets specially assigned is something between the President and the Vice President. 14 And Ms.

ODonnell testified further, in explaining language drafted by counsel for her use in another

lawsuit concerning the purposes for which the vice president and his staff conduct meetings with

outside individuals, the vice president is a man of authority, he is going to get a lot of

information. So it wouldnt be just to advise the President. Id. at 63.

As this testimony reveals, Ms. ODonnell was presented with declarations drafted by

counsel that she readily signed, with no particular understanding of their legal implications or the

reason why specific language, such as the specially assigned description, was used. She was



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15 ODonnell Depo. at 32.

16 ODonnell Depo. at 34.

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unaware of any other guidance or documentation containing this language. 15 She could not

explain why she used both the term specially and executive 16 to describe the vice presidents

functions and testified that she included this language upon the advice of counsel. Id. at 34.

Nor could she confirm that all documents reflecting the vice presidents specially assigned

functions and duties are being treated as covered by the PRA; the most she could offer was her

assumption, based on the orientation and general guidance she received as an OVP employee,

that other OVP employees and the vice president himself were treating records as within the

scope of the PRA. See, e.g., id. at 35 (People are aware of the guidance and the practices they

should be adhering to.).

In sum, the deposition of Ms. ODonnell has not provided answers to the Courts

questions or advanced this litigation in any significant way. Ms. ODonnell simply has a very

limited amount of personal knowledge and is unable to answer questions such as whether Vice

President Cheney only engages in activities that fall within the two narrow categories that

Defendants assert comprise all of his constitutional, statutory, or other official or ceremonial

duties, and whether various examples of Vice Presidential activities that were proffered by

Plaintiffs . . . were considered by Defendants to fall within these narrow definitions. Discovery

Order, p. 12 (citations omitted) (emphasis added). Accordingly, additional discovery is

warranted.

II. THE RECORD NOW BEFORE THE COURT JUSTIFIES THEADDITIONAL DEPOSITION OF DAVID ADDINGTON.



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17 For the Courts convenience a rough transcript of Ms. Smiths testimony is attached asExhibit 2 (Smith Depo.).

18 Smith Depo. at 84.

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The D.C. Circuit directed this Court to substitute an appropriate witness for David

Addington based on the Courts conclusion that Mr. Addington has no apparent involvement in

this litigation and plaintiffs have so far shown no need for the deposition of such a high-

ranking member of the Office, especially when ODonnell would seem more logically suited to

clearing up lingering questions regarding her own affidavits. Mandamus Op. at 5-6 (emphasis

added). The record now before the Court, however, compels a decidedly different conclusion.

Not only has Ms. ODonnell proven to be particularly ill-suited to clear up the Courts questions

raised by her declarations, but her testimony and that of NARA official Nancy Kegan Smith

point to David Addington as the most appropriate and knowledgeable deponent.

First, Nancy Kegan Smith testified 17 that NARA met with David Addington at the

beginning of the administration as part of NARAs traditional discussion . . . to discuss

responsibilities under the Presidential and Vice Presidential Records Act . . . 18 Ms. Smith has

had further discussions with Mr. Addington about what would happen to the vice presidents

materials after the end of the administration. Id. at 112-113.

Ms. ODonnell also confirmed Mr. Addingtons central role in the treatment of vice

presidential records under the PRA. First, Ms. ODonnell reports directly to Mr. Addington and

has daily contact with Mr. Addington, who is the ultimate person held responsible for the

office. ODonnell Dep. at 8, 42. Second, Mr. Addington has been one of the key sources for

oral guidance Ms. ODonnell has received on managing vice presidential records under the PRA,



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19 See, e.g., Barton Gellman, Angler The Cheney Vice Presidency, 2008; Jack Goldsmith,The Terror Presidency, 2007; Jane Mayer, The Dark Side, 2008.

20 Mandamus Op. at 6.

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both in his capacity as chief of staff, id. at 9-10, 46, and as counsel to the vice president. Id. at

11. Third, Mr. Addington is one of the sources for Ms. ODonnells understanding of the vice

presidents functions and his support of record keeping guidance. Id. at 25, 29. And finally, Mr.

Addingtons central policy-making role within the OVP has been widely reported, including his

connection to specific documents that would unquestionably qualify as vice presidential

records. 19 In short, all roads appear to lead to David Addington.

Mindful of the D.C. Circuits admonition that [t]he duties of high-ranking executive

officers should not be interrupted by judicial demands for information that could be obtained

elsewhere,20

plaintiffs requested that defendants identify an additional deponent competent to

answer the Courts questions. See Letter from Anne Weismann to Helen Hong, November 14,

2008 (attached as Exhibit 3). Defendants refused to identify another individual in lieu of David

Addington, disputing the need for any additional discovery. See Letter from Helen Hong to

Anne Weismann, November 17, 2008 (attached as Exhibit 4). Of note, defendants argument

that further discovery is unwarranted relies not on the Courts Discovery Order explaining the

Courts questions that form the basis for the authorized discovery, but on stray sentences culled

from pleadings plaintiffs filed both in this Court and before the D.C. Circuit. The grounds

plaintiffs asserted for denying the mandamus petition or in support of their initial request for

discovery (id. at pp. 1-2) do not address the critical problem that the Courts questions have yet

to be answered. Moreover, defendants further suggestion that plaintiffs are not entitled to seek



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21 Alternatively, the Court could proceed with a hearing at which Mr. Addington wouldtestify to the areas identified in the Courts discovery order. Such a hearing would lead to nounwarranted impairment of the functioning of OVP. Mandamus Op. at 6 (quoting Cheney v.U.S. Dist. Court, 542 U.S. 367, 390 (2004)).

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discovery because they failed to move before the close of discovery on November 14, 2008, id.

at 2, fails to take into account that Ms. ODonnells deposition was not concluded until

November 13 and defendants did not respond to plaintiffs request for the designation of an

additional witness until nearly the close of business on November 17, 2008.

In sum, the deposition testimony to date confirms that Claire ODonnell is not a

competent witness to clear up the fundamental questions raised by her declarations, while David

Addington is knowledgeable about the subject of this litigation and competent to address the

Courts questions. Accordingly, because defendants have identified no other witness as a viable

alternative and plaintiffs have now shown a specific need for Mr. Addingtons deposition, the

Court should authorize plaintiffs to depose Mr. Addington as soon as possible. 21

III. PLAINTIFFS SHOULD BE PERMITTED TO RE-DEPOSE NANCYKEGAN SMITH ON THE SUBJECT OF A WHITE HOUSE COUNSELMEMORANDUM THAT THIS COURT HAS CONCLUDED IS WITHINTHE SCOPE OF DISCOVERY AND NOT SUBJECT TO ANY PRIVILEGE.

During her deposition Nancy Kegan Smith identified a memorandum prepared by White

House Counsel Fred Fielding that she had received and that set forth guidance on implementing

the PRA. In response to plaintiffs questions about the contents of the memorandum, defendants

objected both on privilege and scope grounds. The Court has now conducted an in camera

review and concluded that this memorandum is both within the scope of the Courts Discovery

Order and not privileged. Accordingly, the Court has authorized plaintiffs to question

defendants witnesses about its contents. Minute Order of November 12, 2008.



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As discussed above, Claire ODonnell has neither received this memorandum nor been

made aware of its contents. Thus, her deposition failed to obviate the need to re-depose Ms.

Smith, as plaintiffs had hoped would be the case. Accordingly, plaintiffs seek leave to re-depose

Ms. Smith about the memorandum, as authorized by the Courts minute order. As an alternative

and preferable course, in light of the need to complete discovery as expeditiously as possible and

to avoid the burden and expense of re-deposing Ms. Smith, plaintiffs request that the Court order

defendants to produce the memorandum to plaintiffs. As a single, unprivileged document,

defendants can have no valid objection to its production.

CONCLUSION

For the foregoing reasons plaintiffs respectfully request that this motion be granted, that

they be given leave to depose David Addington as quickly as possible, and that defendants be

directed to either produce Nancy Kegan Smith for a re-deposition on the contents of the Fielding

Memorandum or produce a copy of the memorandum to plaintiffs.

Pursuant to LCvR 7(m), counsel for plaintiffs contacted defendants counsel by telephone

on November 17, 2008, and again on November 18 to determine whether there is any opposition

to the relief plaintiffs are seeking and to attempt to narrow the areas of disagreement.

Defendants counsel did not return either call but instead sent plaintiffs counsel an email on

November 18, stating that defendants oppose plaintiffs' motion to depose David Addington.

Respectfully submitted,

/s/ Anne L. Weismann(D.C. Bar No. 298190)Melanie Sloan(D.C. Bar No. 434584)Citizens for Responsibility and Ethics



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14

in Washington1400 Eye Street, N.W., Suite 450Washington, D.C. 20005Phone: (202) 408-5565Fax: (202) 588-5020

David L. Sobel(D.C. Bar No. 360418)1875 Connecticut Avenue, N.W.Suite 650Washington, D.C. 20009Phone: (202) 797-9009

Dated: November 18, 2008 Attorneys for Plaintiffs



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EXHIBIT 1

Case 1:08-cv-01548-CKK Document 35-2 Filed 11/18/2008 Page 1 of 68


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Claire M O'Donnell Depo. 11 13 080001

1 UNITED STATES DISTRICT COURT2 FOR THE DISTRICT OF COLUMBIA3 --------------------------------:4 CITIZENS FOR RESPONSIBILITY AND :5 ETHICS IN WASHINGTON, et al., :6 Plaintiffs, :7 vs. : Civil Action8 RICHARD B. CHENEY, et al., : No. 08-1548 (CCK)9 Defendants. :

10 --------------------------------:11 Washington, D.C.12 Thursday, November 13, 200813 Deposition of:14 CLAIRE M. O'DONNELL,15 called for oral examination by counsel for16 Plaintiffs, pursuant to notice, at the Federal Court17 House, 333 Constitution Avenue, N.W., Washington,18 D.C., 20001, before Robert Michael Jakupciak, RPR,19 of Capital Reporting Company, a Notary Public in and20 for the District of Columbia, beginning at 10:0021 a.m., when were present on behalf of the respective22 parties:0002

1 A P P E A R A N C E S2 On behalf of the Plaintiffs:3 ANNE L. WEISMANN, ESQUIRE4 Citizens for Responsibility5 and Ethics in Washington6 1400 Eye Street, N.W., Suite 4507 Washington, D.C. 200058 (202) 408-55659

10 DAVID L. SOBEL, ESQUIRE11 Electronic Privacy Information Center12 1718 Connecticut Avenue, N.W., Suite 20013 Washington, D.C. 20009

14 (202) 483-11401516 On behalf of National Archives & Records Admin.:17 GARY M. STERN, ESQUIRE18 National Archives General Counsel19 8601 Adelphi Road20 College Park, Maryland 2074021 (301) 837-0482220003

1 On behalf of the Defendants:2 HELEN H. HONG, ESQUIRE3 JOHN R. TYLER, ESQUIRE4 U.S. Department of Justice5 20 Massachusetts Avenue, N.W.6 Washington, D.C. 205307 (202) 514-583889 KATHRYN WHEELBARGER, ESQUIRE

10 Counsel to the Vice President11 Office of the Vice President12 Washington, D.C. 2050113 (202) 456-90891415 Also Present16 Martin Sherwin

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Claire M O'Donnell Depo. 11 13 081718192021220004

1 C O N T E N T S2 THE WITNESS: CLAIRE M. O'DONNELL3 EXAMINATION PAGE4 By Ms. Weismann 55 E X H I B I T S6 O'DONNELL EXHIBIT NUMBER PAGE7 1 Fax cover page and letter dated 508 8-20-079 2 O'Donnell Declaration dated 71

10 10-13-0611 3 Appendix No. 5, Office of the Vice 8912 President13 4 Supplemental Declaration of Claire 16114 M. O'Donnell15 5 Declaration of Claire M. O'Donnell 16816 and Letter dated 9-13-0617 6 Letter dated 6-26-07 1751819202122 (*Exhibits attached to transcript.)0005

1 P R O C E E D I N G S2 WHEREUPON,3 CLAIRE M. O'DONNELL,4 called as a witness, and having been first duly5 sworn, was examined and testified as follows:6 EXAMINATION BY COUNSEL FOR PLAINTIFFS7 BY MS. WEISMANN:

8 Q Would you please state your name for the9 record?10 A Claire O'Donnell.11 Q Ms. O'Donnell, I'm Anne Weismann, I'm12 counsel for the plaintiffs in this case. Have you13 ever had your deposition taken before?14 A I have.15 Q How many times?16 A Once.17 Q And what was the context?18 A It was a case a long time ago at the19 Department of Energy.20 Q Well, just a few reminders. The court21 reporter can only record audible responses, not nods22 of the head. So please try to make sure that you0006

1 give an oral or audible response.2 Second, if you don't understand a question3 or haven't heard a question, you can please tell me4 and I'll try to rephrase the question or repeat the5 question for you.6 If you don't tell me that you either7 haven't understood or haven't heard the question,8 I'm going to assume that you have both understood9 and heard the question.

10 What is your educational background?Page 2



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Claire M O'Donnell Depo. 11 13 0811 A I have a college degree.12 Q And is that a BA or --13 A It is a BA.14 Q And where did you get it?15 A Trinity College.16 Q Did you have a specific major or focus?17 A History.18 Q Okay. And when did you graduate from19 college?20 A 1980.21 Q And what did you do after you graduated22 from college?0007

1 A I worked in the private sector.2 Q In what capacity?3 A For a while I taught tennis and then I4 volunteered and got into politics.5 Q Okay. And when did you first get into6 politics?7 A In early 1980.8 Q Okay. And were you working on --9 A You know what? I'm sorry. I'm sorry. I

10 graduated in -- yeah, 1980. Sorry.11 Q Okay. And in what capacity did you first12 get involved in politics?13 A In -- as a volunteer on the Reagan14 campaign.15 Q What did you do after that?16 A I went to the Reagan White House.17 Q In what capacity?18 A Worked as an assistant in the Presidential19 Personnel Office.20 Q What were your responsibilities as an21 assistant in the Presidential Personnel Office?22 A To keep personnel files and coordinate0008

1 with different offices; the Legislative Affairs

2 Office, and the Counsel's Office at the White House.3 Q When you say coordinate, what did that4 involve?5 A When a candidate came in for an6 appointment, we had to take the papers and make7 sure -- you know, we didn't have computers in those8 days. Make sure that the Legislative Affairs Office9 had signed off and that the Counsel's Office had

10 signed off. So it was really just a record-keeping11 file position.12 Q For what period of time were you in this13 position, if you remember the years?14 A From -- for four years. For the first15 four years of the Administration.16 Q What did you do after that?17 A Then I went to the Administrative Office18 in the White House.19 Q The Office of Administration?20 A Right.21 Q And what was your responsibility there?22 A Again I was an assistant to the, assistant0009

1 to the President for Administration.2 Q And what were your duties and3 responsibilities in that capacity?4 A To kind of run the operations of the White

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Claire M O'Donnell Depo. 11 13 085 House, you know, who has a White House pass, the6 comings and goings around the White House, mess7 privileges.8 Q Did you have any record-keeping9 responsibilities in that position?

10 A I had my own records and the office11 records but not, nothing outside of just our own12 office.13 Q And were you responsible for managing the14 records of the Office of Administration?15 A Yes.16 Q And how long were you in that position?17 A For four years.18 Q And what did you do after that?19 A Then I went to the Department of Energy.20 Q And what year was that?21 A 1988.22 Q Okay. And what was your position at the0010

1 Department of Energy?2 A I was Deputy Assistant Secretary for3 Administration.4 Q Was this a political appointment, a5 Schedule C?6 A It was both, Schedule C and political.7 Q And your title again was Deputy Assistant8 to?9 A Deputy Assistant Secretary for

10 Administration.11 Q Who did you report to in that position?12 A The Assistant Secretary.13 Q Who was that?14 A Donna Fitzpatrick.15 Q What were your responsibilities in that16 position?17 A Again just to kind of run the office,18 oversee the budget and just an administrative

19 position.20 Q So when you say run the office, did you21 have any substantive policy-making responsibilities?22 A No.0011

1 Q And how long were you in that position?2 A Probably just under two years.3 Q And what did you do then?4 A Then I went to the Economic Summit, the5 1990 Economic Summit, which was in Houston, and I6 was the staff secretary there.7 Q What were your duties and responsibilities8 as staff secretary?9 A To manage the paper flow and kind of the

10 time line of projects. It's a short-term project.11 And you have a lot of different projects going on12 within that project to host different Heads of13 countries.14 Q And I'm not familiar with the Economic15 Summit. Is that under the, directly under the16 auspices of the President?17 A It is.18 Q Is it a component then of -- how would you19 describe it as an entity, as an organization? Where20 does it fit in organizationally?21 A In the Department of State.

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Claire M O'Donnell Depo. 11 13 0822 Q Okay. Who did you report to in that?0012

1 A Fred Melek was Head of the Summit.2 Q How long were you in that position?3 A Nine months.4 Q What happens after that? What did you do5 after that?6 A Then I went back to Energy for a short7 period of time.8 Q In your same position?9 A Right. So I was kind of on loan from the

10 Department of Energy.11 Q During the time that you worked for the12 Economic Summit were you technically still an13 employee of the Department of Energy?14 A I was.15 Q It was like a detail?16 A Right. An assignment. Right.17 MS. HONG: I'm just going to ask you to18 let Ms. Weismann finish asking her question before19 you answer so you are not talking over each other.20 Q And what did you do next?21 A Then I went on the President Bush Reelect22 Campaign.0013

1 Q Was that a paid position?2 A It was.3 Q What were your duties and responsibilities4 in that position?5 A Staff secretary.6 Q And what does a staff secretary have7 responsibility for?8 A For paper flow to and from the White House9 to the campaign and back to the White House, and

10 within the office of the campaign.11 Q And where was your office located?12 A 17th and Connecticut.

13 Q So you were not within the White House14 complex?15 A No.16 Q How long did you do that job for?17 A A year.18 Q What did you do next?19 A When we lost, I took some time off and20 then went to work for the National Association of21 Chain Drugstores.22 Q And where is the -- where were you located0014

1 in that?2 A In Oldtown, Virginia.3 Q What was your title in that position?4 A Probably in charge of administration.5 Q Briefly describe what your duties and6 responsibilities were.7 A Again just managing the office personnel.8 We had a small budget and we were relocating, so I9 managed the relocation of the office or expanding

10 the office, not relocating.11 Q What did -- for how long were you in that12 position?13 A Two years.14 Q What did you do next?15 A I went to the American Forest and Paper

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Claire M O'Donnell Depo. 11 13 0816 Association.17 Q What was your position with that18 organization?19 A I was in charge of membership and20 assistant to the CEO.21 Q And in your position -- in -- with your22 responsibilities as assistant to the CEO, what did0015

1 that entail?2 A Again helping manage the office personnel,3 recruitment of members.4 Q How long were you in that position?5 A Four years I would think.6 Q What did you do next?7 A Then I joined the Bush/Cheney Campaign,8 Transition Office.9 Q You joined the Transition Office?

10 A Right.11 Q And how were you able to -- how did you12 secure that job?13 A I was -- I went to volunteer from -- I14 took a leave from the American Forest and Paper15 Association and volunteered, and then after16 volunteering for a while I was offered a job.17 Q What was the specific position that you18 were offered?19 A In charge of administration for the Vice20 President.21 Q Okay. And this was as part of a22 transition team now?0016

1 A No. This was as he was coming on2 January 20th.3 Q So I misunderstood. I thought you had4 first taken a position with the transition team.5 Was that not correct?6 A Just as a volunteer. I was not a paid

7 employee.8 Q So you were a volunteer with the9 transition team and what was the nature of your

10 duties again as a volunteer?11 A To manage GSA and office space, just kind12 of people, just as a volunteer. I didn't really13 have specific --14 Q When you say managed GSA, was this all in15 terms of implementing and preparing for the16 transition?17 A Yes. Office space and things like that.18 Q Okay. And then you were offered a19 position and what was the specific position you were20 offered?21 A In charge of administration for the Vice22 President.0017

1 Q And functionally where is that position2 within the EOP structure?3 MS. HONG: Objection; vague.4 Q Do you understand the question? Okay.5 Within the EOP where is that office located?6 A It's in the direct Office of the Vice7 President.8 Q Now, you said it's in the direct Office of9 the Vice President. Is that what is commonly

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Claire M O'Donnell Depo. 11 13 0810 referred to as the OVP?11 A Yes.12 Q I just want to make sure we are on the13 same page with terms. So you then -- now you have a14 position and I apologize. What again was your15 title?16 A It was Deputy Assistant to the Vice17 President for Administration.18 Q Okay. And is that the position that you19 currently hold?20 A Yes. I have a bigger -- I have been21 promoted, but it's the same position.22 Q But the title remains the same? Okay.0018

1 And starting from when you first came to the OVP,2 what were your initial duties and responsibilities?3 A To hire staff, get them on board, get them4 office space, get them their passes, parking; just5 help with the personnel and the management of the6 office.7 Q Okay. And how have those duties and8 responsibilities changed over time?9 A They have just been refined. You know,10 there was a process where when people were

11 interviewed, they would talk to a few other people12 in the office and now they just talk to me or me and13 the Chief of Staff.14 Q Who is the Chief of Staff?15 A David Addington.16 Q And have you gotten additional17 responsibilities that you did not initially have?18 A No.19 Q So your responsibilities have stayed the20 same?21 A Pretty much.22 Q But in your words it's just been refined?0019

1 Would that be accurate?2 A That's correct.3 MS. HONG: Anne, can we go off the record4 for just a moment. We have someone knew who just5 walked in. I want to explain to the deponent who6 the individual is. Off the record.7 - - -8 (Discussion off the Record.)9 - - -

10 BY MS. WEISMANN:11 Q Back on the record. In your capacity as12 Deputy Assistant; is that right?13 A I have been promoted to an assistant now.14 Q So you have received, there has been a15 change in your title? You are now Assistant to the16 Vice President?17 A Right.18 Q Do you have responsibility for records19 management within the Office of the Vice President?20 A Yes.21 Q And when I use the word -- what do you22 understand records management to encompass?0020

1 A Keeping all your documents and keeping2 them in files so that we can box them up and send3 them forward.

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Claire M O'Donnell Depo. 11 13 084 Q Does records management as you think of5 the term include the responsibility for managing the6 records as they are currently in use?7 MS. HONG: Objection; vague.8 BY MS. WEISMANN:9 Q You can answer the question.

10 A Well, you always have to manage your11 records. So whether they are in use or in your12 files, you are responsible to manage them.13 Q And does it include preparing those14 records for an eventual transition to the Archives?15 A Yes.16 Q The National Association of Records --17 National Administration of -- well, we are going to18 call it the Archives, but you know what I mean. It19 goes by the acronym NARA.20 And what is the size of the staff that you21 have?22 A Right now it's 84.0021

1 Q How many of those people report to you?2 MS. HONG: Objection; vague.3 BY MS. WEISMANN:4 Q You can answer the question.5 A Two directly report to me.6 Q Who do you report to?7 A I report to the Chief of Staff.8 Q David Addington?9 A Yes.

10 Q Has that been your immediate reporting11 supervisor since you started within the OVP?12 A That's correct.13 Q Have you received any training14 specifically on records management since coming to15 the OVP?16 A Yes.17 Q And describe for me what that training has

18 been.19 A It was a memo that we received when we20 came on board and we have been reminded on a regular21 basis verbally and in ethics briefings.22 Q Okay. Let's start with the memo that you0022

1 identified as having received. Who was the memo2 from?3 A I believe at the time it was Judge4 Gonzales.5 Q Who was the memo addressed to?6 A All staff.7 Q And do you recall the date of the memo?8 A Well, it would have been when I came on.9 I know that we went through an orientation, so it

10 would have been in January '01.11 Q What was the general subject matter of the12 memo?13 A Our responsibilities with files and paper.14 Q And did it include as well the15 responsibilities of the OVP?16 A Yes, it did.17 Q And do you recall, what did the memo say18 about those -- what those responsibilities were?19 A It went into detail on all paper created20 and received.

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Claire M O'Donnell Depo. 11 13 0821 Q More specifically, what did it advise you22 needed to be done with paper received or created?0023

1 A Everything had to be kept and filed to be2 sent to the Archives.3 Q And did it explain the reason why4 everything had to be kept?5 A Just that it was a Presidential record. I6 don't remember all the details of it.7 Q And did the memo tie that responsibility8 to any, to the specific functions that your Office9 of the Vice President was performing when the papers

10 in question were generated?11 MS. HONG: Objection; vague.12 BY MS. WEISMANN:13 Q You can answer.14 MS. HONG: If you understand, you can15 answer.16 A Could you just repeat the question? I'm17 sorry.18 MS. WEISMANN: Can you read back the19 question?20 - - -21 (Whereupon the following portion of the22 testimony was repeated by the Court Reporter:0024

1 QUESTION: And did the memo tie that2 responsibility to any, to the specific functions3 that your Office of the Vice President was4 performing when the papers in question were5 generated?)6 - - -7 A It didn't apply just to the Vice8 President. It applied to everybody.9 Q Right. But, okay. Specific as to the

10 Vice President, did the memo offer -- let me ask11 that question differently. Did the memo offer any

12 specific guidance as to the Vice President or Vice13 Presidential records?14 A I don't recall.15 Q Do you recall receiving any other written16 memoranda or guidance with respect to the management17 of or including the management of Vice Presidential18 records?19 A I believe there was a reminder put out or20 another memo when the Counsel to the President21 changed.22 Q And do you recall what that memo said?0025

1 A It was basically the same thing; that all2 documents need to be kept, everything created and3 received is considered a Presidential record.4 Q Do you recall if either of these memos5 went into any more detail in explaining which6 specific records needed to be kept?7 A I don't remember the details of it.8 Q Okay. Do you recall if the memo addressed9 the requirements or obligations with respect to

10 personal papers?11 A It didn't.12 Q Okay. Other than the two written13 memoranda that you have now described, are there14 any -- is there any other written guidance, whether

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Claire M O'Donnell Depo. 11 13 0815 it was a formal memo or written in some other way,16 that you received since coming to the OVP regarding17 the management of Vice Presidential records?18 A Not that I can recall.19 Q You also mentioned earlier that you had20 received some verbal guidance. Can you explain to21 me what the nature of that guidance has been?22 A It's pretty frequently spoken about either0026

1 in staff meetings or in smaller meetings just as a2 reminder.3 Q And who typically is giving the reminder?4 A Whoever is conducting the meeting. Either5 lawyers or -- for me, our Chief of Staff in our6 staff meetings.7 Q When you talk about staff meetings, are8 you referring to meetings solely of OVP staff?9 A Yes.

10 Q You also mentioned I believe that you had11 received some guidance through ethics briefings; is12 that correct?13 A That's correct.14 Q Can you explain to me what the nature of15 that guidance was?16 A We are required to attend an ethics17 briefly annually, and they raise it in those also as18 a reminder, and they kind of go through that all19 papers need to be kept and are considered20 Presidential records.21 Q Who conducts those ethics briefings?22 A The White House Counsel's Office.0027

1 Q Has the nature of the instructions you2 have been given on managing the records of the Vice3 President changed at all over the years since you4 have been there in those ethics briefings?5 A No.

6 Q And has it been more specific than simply7 reminding staff that they need to keep papers?8 A No. It's been very firm in that all9 papers are considered Presidential documents.

10 Q But it hasn't offered any more specific11 definitions, guidance, explanations beyond that that12 you can recall?13 A If people had questions, they could get14 further guidance.15 Q Have you in the course of your working at16 the White House -- and I'm using White House; I17 should be more precise and say OVP. Have you during18 the course of working at the OVP had any -- raised19 any specific questions with respect to the20 management of the Vice President's records?21 A No.22 Q Okay. And has anyone on your staff raised0028

1 any questions that you can recall on, about the2 management of the Vice President's records, the3 records of the OVP?4 A They have asked for, you know, to be5 reminded of the process. You know, my files are6 full, I know we have to archive them, what do I do7 now. And I'll go through the process. But if they8 have more specific questions than that, I refer them

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Claire M O'Donnell Depo. 11 13 089 to counsel.

10 Q And by counsel do you mean counsel to the11 Vice President or White House counsel?12 A Counsel to the Vice President.13 Q Okay. And who is the current counsel to14 the Vice President?15 A Katie Wheelbarger.16 Q And before Katie?17 A Shannen Coffin.18 Q And before Shannen?19 A Courtney Elwood.20 Q And before Courtney?21 A David Addington. But David and Courtney22 were together.0029

1 Q Is it correct then that David Addington is2 no longer Counsel to the Vice President?3 A That's correct.4 Q Okay. So his current title is Chief of5 Staff?6 A I believe he kept and Counsel to the Vice7 President. I'm not sure of that actually.8 Q Okay. Does the White House Office of9 Records Management have any responsibility with

10 respect to the management of the Vice President's11 records?12 A Just repeat that. I'm sorry.13 Q Does the White House Office of Records14 Management have any responsibility for managing the15 records of the Vice President and the OVP?16 A Yes.17 Q And what is the nature of that18 responsibility?19 A We send our files, the Vice President's20 Office sends our files down to Records Management,21 which is one office for everybody, the White House22 and the Vice President's office.

00301 Q Now are these files that you are still2 using? Is it a storage? Or are they sent once they3 are no longer in use?4 A I send them once they are no longer in5 use.6 Q Okay.7 A Different people have different practices.8 Q All right. So would it be fair to9 characterize the files that you send as retired

10 files?11 A That's correct.12 Q All right. And you said different people.13 I assume you were talking about different people14 within the OVP?15 A That's correct.16 Q What are the different practices that they17 have?18 A I believe others send their files on a19 more regular basis, when they know that they may20 need them again, but you can call down to Records21 Management and get them back.22 Q Okay. Does the White House Office of0031

1 Records Management have, have they given you any2 guidance on managing the records of the Vice

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Claire M O'Donnell Depo. 11 13 083 President?4 MS. HONG: Objection; vague.5 A Not -- they have given us guidance on how6 they would like to receive files.7 Q And that's been the extent of the guidance8 they have offered?9 A That's correct.

10 Q Okay. Does the White House Office of11 Records Management have its own practices and12 policies on how it manages the records it receives?13 MS. HONG: Objection; vague, and personal14 knowledge.15 A Repeat the question. I'm sorry.16 MS. WEISMANN: Can you read the question17 back?18 - - -19 (Whereupon the following portion of the20 testimony was repeated by the Court Reporter:21 QUESTION: Okay. Does the White House22 Office of Records Management have its own practices0032

1 and policies on how it manages the records it2 receives?)3 - - -4 MS. HONG: Same objection.5 A Not that I'm familiar with.6 Q Okay. All right. I'm going to show7 you -- I'm going to show you a declaration that you8 submitted in a case called the Washington Post v.9 U.S. Department of Homeland Security, and you are

10 welcome to read the whole document, but I would like11 you to specifically focus on paragraph 12.12 Okay?13 A Uh-huh.14 Q Do you see the reference in the paragraph15 to an understanding with, between the OVP and the16 White House Office of Records Management?

17 A Uh-huh.18 Q Okay. Is this understanding reflected in19 any written document?20 MS. HONG: Anne, I will allow a little bit21 of latitude here, but again, just as in the last22 deposition, I don't want you getting into the0033

1 content of other litigations. If it has to do with2 classification issues, I will allow the questions.3 MS. WEISMANN: Are you making an4 objection?5 MS. HONG: I'm putting on the record my6 objection to the extent you are fishing for7 information related to other litigation, yes.8 MS. WEISMANN: There is no fishing going9 on.

10 BY MS. WEISMANN:11 Q Is that understanding reflected in any12 written document?13 MS. HONG: Same objection.14 A Any -- not that I can recall immediately15 that it's reflected in any other written document.16 Q Okay. So to your knowledge, there is no17 written -- the understanding has not been18 memorialized in a written document; is that correct?19 MS. HONG: Same objection. You can answer

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Claire M O'Donnell Depo. 11 13 0820 the question.21 A The understanding?22 Q Between the Office of the Vice President0034

1 and the White House Records Management, White House2 Office of Records Management that you reference in3 this declaration?4 MS. HONG: Same objection and asked and5 answered.6 A Again, the Vice President's records belong7 to the Office. Is that the question?8 Q It's the -- your declaration references,9 and I'm quoting, a mutual understanding that White

10 House Office of Records Management will hold and11 manage OVP records with legal possession, custody12 and control of the records remaining with the OVP.13 And my question is whether that understanding has14 been reduced or memorialized in writing?15 MS. HONG: Same objections as before. And16 asked and answered.17 A I don't recall.18 Q Okay.19 A I'm not sure.20 Q Thank you. You can give me that back.21 Other than the two memoranda you22 identified, the verbal reminders that you have, you0035

1 and your staff have periodically received, such as2 in staff meetings, and the ethics briefings that you3 have received annually, is there any other written4 or oral guidance you have been given about the5 management of the Vice President's records?6 A No.7 Q Are you familiar with a memorandum that8 White House Counsel Fred Fielding issued dated9 October 8th, 2008?

10 A No.

11 Q Okay. Do you recall receiving any12 memoranda from White House Counsel Fred Fielding13 relating to the Presidential Records Act?14 A I don't recall.15 Q What did you review in order to prepare16 for your deposition today?17 A I reviewed my declarations.18 Q When you say my declarations, which19 specific ones are you referring to?20 A The one dated September 16th I believe and21 September 22nd.22 Q You are talking about the ones that you0036

1 filed in this litigation?2 A That's correct.3 Q And did you review any other written4 document?5 A I didn't.6 Q Okay. Has anyone discussed with you the7 content of a memorandum that White House Counsel8 Fred Fielding issued on October 8th, 2008?9 A No.

10 Q Where does the obligation for Vice11 Presidents to preserve their records come from?12 MS. HONG: Objection. Are you asking for13 a legal conclusion?

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Claire M O'Donnell Depo. 11 13 0814 MS. WEISMANN: No.15 Q You can answer the question.16 A Where does the obligation?17 Q Yes. What is your understanding about18 where the obligation for Vice Presidents to preserve19 their records comes from?20 A It's part of the Presidential Records21 Management Act.22 Q I'm sorry. It's part of the --0037

1 A Presidential Records Act.2 Q Presidential Records Act. Okay. Are you3 familiar with the contents of the Presidential4 Records Act?5 A Yes.6 Q How did you become familiar with that law?7 A Like I said, it was part of the8 orientation when we came on and it's just been a9 practice that I have been told to make sure the Vice

10 President's Office practices.11 Q Have you yourself ever read the statute,12 the Presidential Records Act, if you recall?13 A I have read portions of it. I can't14 guarantee that I've read the whole thing.15 Q And what is your understanding of the16 documents that the Vice President is required to17 transfer to NARA at the end of his administration?18 A All of his executive and legislative19 files.20 Q Okay. Do you have any more specific21 understanding than that?22 A Any documents that he has either created0038

1 or received in his official functions.2 Q What records does your office manage that3 fall within the scope of the Presidential Records4 Act?

5 A Personnel files, budgets, trip files, any6 bills that have been paid.7 Q Okay. So what is included within the8 category of personal files?9 MS. HONG: Objection. I'm sorry. I think

10 it misstates her testimony. She said personnel11 files.12 A Personnel files.13 Q Okay. I misheard you.14 A Sorry.15 Q What is in the category of personnel16 files?17 A People's resume's, their clearance18 information.19 Q When you say people, is this all20 applicants?21 A No. Just the staff that we hire.22 Q Okay. And those files you manage fall0039

1 within the Presidential Records Act; is that2 correct?3 A That's correct.4 MS. HONG: And again, if you could ask for5 Ms. O'Donnell's understanding as opposed to what the6 law --7 MS. WEISMANN: Helen, if you have an

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Claire M O'Donnell Depo. 11 13 088 objection, you are free to make it, but you are not9 free to change the question or ask your own

10 questions, thank you.11 MS. HONG: And I will object to the extent12 that the question does not ask for Ms. O'Donnell's13 understanding of the law.14 BY MS. WEISMANN:15 Q Okay. Budget files. What is encompassed16 within that category of records?17 A The Vice President's authorized budget,18 how we spend it, and records, records of our19 interaction with it, you know, any kind of bills or20 anything like that.21 Q Okay. And I think the third category you22 mentioned was trip files; is that correct?0040

1 A Uh-huh.2 Q What is encompassed within that category3 of records?4 A When he goes on a trip, we have a file on5 who traveled with him, what rental cars we paid for,6 per diem, things like that.7 Q Would that include each and every trip8 that the Vice President has taken since becoming9 Vice President?

10 A Yes.11 Q And would it include each trip no matter12 what the purpose of the trip was?13 A Yes.14 Q So, for example, if the Vice President15 were to take a flight to visit a relative on a16 purely personal basis, that would also be included17 in this file?18 A That's correct.19 Q And is it your understanding that that20 file would also be covered by the Presidential21 Records Act?

22 A That's correct.00411 Q Of these three categories we discussed,2 the personnel files, the budget files and the trip3 files, are there any documents within those files4 that the Office considers not covered by the5 Presidential Records Act?6 A No.7 Q Okay. And on the trip files, does any8 other office, entity or person also maintain files9 relating to the Vice President's trips?

10 A Yes.11 Q And which offices are those?12 A The Office of Advance.13 Q What part of the White House is that14 within? Is it within the EOP?15 A It's in the Vice President's Office.16 Q It's part of the Vice President's Office?17 A Right.18 Q Do they have records in their files that19 are not in yours relating to trips?20 A Yes. Their files are more detailed than21 mine.22 Q Okay. So when you are talking about0042

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Claire M O'Donnell Depo. 11 13 082 President, you are talking only about the files that3 are within your office; is that correct?4 MS. HONG: Objection; vague, and I think5 misstates her testimony.6 BY MS. WEISMANN:7 Q You can answer.8 A You have to repeat the question.9 MS. WEISMANN: Okay. Can you read it

10 back?11 - - -12 (Whereupon the following portion of the13 testimony was repeated by the Court Reporter:14 QUESTION: Okay. So when you are15 talking about managing the trip files for the Office16 of the Vice President, you are talking only about17 the files that are within your office; is that18 correct?)19 - - -20 MS. HONG: Same objection; vague.21 BY MS. WEISMANN:22 Q You can answer.0043

1 A That I manage, yes.2 Q Yes. So they would not include, for3 example, the Advance Office trip files; is that4 correct?5 MS. HONG: Objection; vague.6 A I don't manage the Advance Office files.7 I make sure they follow a process, but I don't8 manage. I only manage my own files.9 Q Okay. And looking then at that specific

10 files that I'm talking about, the files that the11 Advance Office creates, who was responsible for12 ensuring their preservation under the Presidential13 Records Act?14 A Every employee is responsible for ensuring15 all of their files are kept for the Presidential

16 Records Act. Ultimately, the head of the office, I17 assume, is who I rely on.18 Q Okay. The fourth category that you19 mentioned I believe was bills paid; is that correct?20 A That's correct.21 Q Describe for me what documents, what kinds22 of documents, I'm not asking about the contents of0044

1 any specific document, but what kinds of documents2 are included in that category?3 A Rental car bills, hotel bills, flights,4 you know, airline tickets, things like that.5 Q Okay. Now, are these bills that relate6 only to trips?7 A Yes. I thought that's what you were8 speaking about.9 Q No. I thought -- I want the record to be

10 clear on this. I thought initially to my question11 you had identified four categories of records?12 A Uh-huh.13 Q I have down the fourth category as bills14 paid.15 A Okay.16 Q I'm trying to find out does it include,17 does it encompass bills other than trip-related18 bills?

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Claire M O'Donnell Depo. 11 13 0819 A Yes. It's payroll bills, it's supplies,20 it's transportation of things within the office,21 travel bills.22 Q Okay. And is there any other office,0045

1 entity or person within the Executive Office of the2 President that also maintains bills related to the3 Vice President or the Office of the Vice President?4 A Yes.5 Q And which entities or offices are those?6 A The Office of Administration has a budget7 office that I work with on a regular basis.8 Q And does the Office of Administration also9 maintain records relating to bills paid or on behalf

10 of the OVP?11 A Yes.12 Q And are those considered to be Vice13 Presidential records, if you know?14 A I believe they are OA records.15 Q Okay. Other than the four categories of16 records we've just discussed; personnel files,17 budgets, trip files, bills paid, can you identify18 any other categories of records that your office19 manages that fall within the Presidential Records20 Act?21 MS. HONG: Objection. I think earlier the22 question was records that she manages. Are you0046

1 asking her to --2 MS. WEISMANN: I think we need to have a3 discussion. It can be an on-the-record discussion,4 but I would like the witness not to be here.5 MS. HONG: Then do you want to go off the6 record?7 MS. WEISMANN: While she leaves, yes. I'm8 sorry. Sometimes we have to have discussions9 between lawyers, and --

10 THE WITNESS: Okay.11 (Witness no longer present.)12 MS. WEISMANN: If you have an objection or13 believe that a question misstates the record,14 obviously you are free to raise that objection. I15 do not believe that you are free to characterize or16 coach her on what her prior testimony has been. And17 I would like to ask you to refrain from doing that.18 So I'm happy to have the court reporter go19 back and check and see whether or not that was my20 question, but I don't think it's appropriate for you21 to offer your interpretation of recollection of the22 question. I think it's perfectly appropriate for0047

1 you to say I think that misstates the question. I2 just wanted to get that now in the record, because I3 would hope we don't have to have a continuing4 problem with that. So we can bring her back and we5 can have my question read. I'm happy to do that.6 MS. HONG: If you would have -- if you7 want to look at the transcript to see, it's my8 understanding that the witness stated --9 MS. WEISMANN: I understand that. And I'm

10 saying it's perfectly appropriate to say that11 misstates the testimony of either the question or12 the response and then we can chose to go back and

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Claire M O'Donnell Depo. 11 13 0813 have the court reporter read it. I'm just saying I14 don't think it's appropriate to say what you think15 her testimony or the question was.16 MS. HONG: I just want to make sure that17 the record is clear that to the extent there is a18 misstatement of her testimony and there's a question19 that embeds purportedly what she previously said,20 that it's an accurate reflection of what she said.21 MS. WEISMANN: I think that's fair and I'm22 happy to go back and have the court reporter reread0048

1 the question that I initially asked.2 MS. HONG: Okay.3 (Witness now present.)4 MS. WEISMANN: I'm going to have the court5 reporter go back and reread -- read for you my6 initial question on this topic.7 - - -8 (Whereupon the following portion of the9 testimony was repeated by the Court Reporter:

10 QUESTION: What records does your office11 manage that fall within the scope of the12 Presidential Records Act?13 ANSWER: Personnel files, budgets, trip14 files, any bills that have been paid.)15 - - -16 BY MS. WEISMANN:17 Q So my initial question to you was what18 records does your office manage that fall within the19 scope of the Presidential Records Act. Are there20 any other categories of records -- again I want to21 be clear, I'm not asking about the specific contents22 of any specific records -- that you can identify in0049

1 response to my question?2 A Everything that we do in our office is3 considered an official document and is kept under

4 the Presidential Records Act.5 Q Okay. So when you identified these four6 categories of records, why did you single out those7 categories?8 A That is the bulk of the records that I9 keep in my office, so I was just trying to put them

10 in categories.11 Q Okay.12 A But we keep everything.13 Q Okay. When you identified those four14 categories of records, would that accurately reflect15 the totality of the records that your office manages16 within the Presidential Records Act?17 MS. HONG: Objection; vague.18 A There are other things that I manage, but19 that's the bulk. I mean I'm just kind of looking20 around my office. We have a file cabinet with trip21 files, one with bills, one with personnel, but I22 also have miscellaneous files of just different0050

1 documents we receive or create.2 Q Okay. And can you divide those3 miscellaneous files into subject areas?4 A It's just kind of a conglomeration of5 things.6 MS. WEISMANN: Okay. I want to take a

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Claire M O'Donnell Depo. 11 13 087 two-minute break.8 - - -9 (Recessed at 10:50 a.m.)

10 (Reconvened at 10:57 a.m.)11 - - -12 MS. WEISMANN: Back on the record. I13 would like this marked as Exhibit 1, please.14 (O'Donnell Exhibit Number 115 was marked for identification.)16 BY MS. WEISMANN:17 Q Ms. O'Donnell, I have handed you an18 exhibit marked Exhibit 1, which has a fax cover19 sheet from the Office of the Vice President. And20 attached to that is a two-page letter to the21 Honorable Patrick J. Leahy, from Shannen W. Coffin,22 Counsel to the Vice President, and it's dated0051

1 August 20th, 2007.2 Take whatever time you need to look it3 over.4 A Can I just read it again once? I'm sorry.5 Q Yeah. Take as much time as you need.6 A Okay.7 Q Have you ever seen this letter before?8 A Not that I recall.9 Q Okay. I'm going to direct your attention

10 to page 2 of the letter, and the third paragraph11 down that begins, The Office of the Vice President.12 Do you see that paragraph?13 A Uh-huh.14 MS. HONG: Excuse me. Just to remind you,15 no uh-huh. It has to be yes or no.16 Q Unless you get a kind reporter who is17 happy to fill it in.18 The first sentence of that paragraph19 reads: The Office of the Vice President possesses20 copies of documents that may be responsive to the

21 subpoena, including White House Office documents and22 Department of Justice documents.0052

1 Are all of the documents identified in the2 category as potentially responsive to the subpoena3 classified as Vice Presidential records, if you4 know?5 MS. HONG: Objection. Vice Presidential6 records meaning under the PRA? Objection; vague.7 A I would assume yes.8 Q And what is the basis for that assumption?9 A That everything that the Vice President

10 deals with is an official record, is an official11 document that goes to, that's kept under the12 Presidential Records Act.13 Q Do you have any specific personal14 knowledge about how the documents that are15 responsive to the subpoena are being treated by the16 Office of the Vice President? And what I mean by17 being treated is specific knowledge as to whether or18 not they are being classified as covered by the PRA?19 And when I use PRA, it's shorthand for Presidential20 Records Act.21 A Uh-huh.22 MS. HONG: And just one more reminder; yes0053

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Claire M O'Donnell Depo. 11 13 081 or no.2 A Yes. I don't have specific knowledge. I3 have general knowledge of how records are to be4 managed.5 Q Okay. And this category of records, that6 is, the records that are potentially responsive to7 the subpoena discussed in this letter, are they a8 category of records that you in the ordinary course9 of your job would come in contact with?

10 A Are you referring to the Codeword11 documents?12 Q No. I'm talking about the general13 category, documents that are potentially responsive14 to the subpoena.15 MS. HONG: Objection. That's vague.16 A State the question again. I'm sorry.17 Q Okay. Let me rephrase it. Do you have18 any personal knowledge about this specific category19 of records, and by specific category I mean records20 that may be responsive to the subpoena discussed in21 this letter?22 MS. HONG: Objection; vague.00541 A I don't have personal knowledge. Again, I

2 have general knowledge of the practices that we have3 all been told to adhere to.4 Q Okay. And what is the nature of your5 general knowledge?6 A Again, every document that we receive or7 create in our capacities, meaning the staff of the8 Vice President, to assist him in his duties are to9 be kept for the Presidential Records Act.

10 Q So when you say -- you are talking11 about -- are you talking about general knowledge12 based on the guidance that you have been given, the13 guidance that you have described for us?14 A Yes. I don't have specific knowledge on

15 each individual in the Office. I just go ahead and16 make sure everybody understands the rules.17 Q Okay. Now, earlier in your testimony --18 MS. WEISMANN: We are going to go off the19 record for about two minutes.20 - - -21 (Discussion off the Record.)22 - - -0055

1 MS. WEISMANN: Can you read back her last2 response?3 - - -4 (Whereupon the following portion of the5 testimony was repeated by the Court Reporter:6 ANSWER: Yes. I don't have specific7 knowledge on each individual in the Office. I just8 go ahead and make sure everybody understands the9 rules.)

10 - - -11 MS. WEISMANN: And can you read back, I'm12 sorry, her response to the question before that?13 - - -14 (Whereupon the following portion of the15 testimony was repeated by the Court Reporter:16 ANSWER: Again, every document that we17 receive or create in our capacities, meaning the

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Claire M O'Donnell Depo. 11 13 0818 staff of the Vice President, to assist him in his19 duties are to be kept for the Presidential Records20 Act.)21 - - -22 BY MS. WEISMANN:0056

1 Q Okay. Turning back again to the category2 of records encompassed in this third paragraph on3 page 2 of this letter, that is, documents that may4 be responsive to the subpoena, do you have any5 personal knowledge about how those documents are6 being treated under the Presidential Records Act?7 MS. HONG: Objection; vague as to8 documents responsive to the subpoena.9 BY MS. WEISMANN:

10 Q You may answer the question.11 A I don't have personal knowledge.12 Q Okay. Is there any other office that you13 have not, beyond the OVP, that you have not already14 identified that also has possession of records that15 would be considered Vice Presidential records under16 the PRA?17 MS. HONG: Objection; misstates her18 testimony.19 MS. WEISMANN: It's not -- let's -- we20 need to have a discussion, I'm sorry. So let's go21 off the record. And I would ask you to leave.22 THE WITNESS: Okay.0057

1 (Witness no longer present.)2 - - -3 (Discussion off the Record.)4 - - -5 (Witness now present.)6 BY MS. WEISMANN:7 Q Back on the record. Can you read back the8 last question?

9 - - -10 (Whereupon the following portion of the11 testimony was repeated by the Court Reporter:12 QUESTION: Okay. Is there any other13 office that you have not, beyond the OVP, that you14 have not already identified that also has possession15 of records that would be considered Vice16 Presidential records under the PRA?)17 - - -18 MS. HONG: Same objection; misleading.19 BY MS. WEISMANN:20 Q Go ahead.21 A Outside the Office of the Vice President?22 Q Yes. I'm asking you to look outside of0058

1 the Office of the Vice President.2 A That have Vice Presidential records?3 Q Correct.4 A I believe the Security Service has Vice5 Presidential records, I believe that with our6 dealings with the White House we have mixed records7 and some of them would be considered Vice8 Presidential records. It's kind of like your pass;9 I mean everything -- we all have the same pass and

10 it gets mixed in together.11 Q Putting Secret Service records aside, are

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Claire M O'Donnell Depo. 11 13 0812 there any other offices, either within or outside of13 the EOP, that currently have records that would be14 considered Vice Presidential records under the PRA?15 MS. HONG: Objection; vague.16 A Not -- I -- outside of the Vice17 President's Office, meaning all of his offices under18 his control; is that what you are speaking about?19 Q Yes.20 A Not to my knowledge.21 Q Okay. Let's focus now on the offices that22 are under the control of the Vice President.0059

1 A Uh-huh.2 Q Give me a list of what those offices are.3 A We have Mrs. Cheney's office, we have4 Legislative Affairs, the Staff Secretary's Office,5 the Counsel's Office, Domestic Policy, Homeland6 Security, Scheduling, Advance, Speech Writing,7 Operations, the Chief of Staff, and National8 Security. I think I hit them all.9 Q And those are all discrete offices within

10 the Office of the Vice President?11 A They all have office heads that report to12 the Chief of Staff, yes.13 Q Okay. And organizati

CREW v. Cheney Et Al: Regarding VP Records: 11/18/08 - CREWs Motion to Depose David Addington

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