CREW v. Cheney Et Al: Regarding VP Records: 1/5/09 - CREW's Reply in Support of Cross Motion for...
Transcript of CREW v. Cheney Et Al: Regarding VP Records: 1/5/09 - CREW's Reply in Support of Cross Motion for...
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UNITED STATES DISTRICT COURT
FOR 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 REPLY IN SUPPORT OF CROSS-MOTION
FOR SUMMARY JUDGMENT
In 1974 a disgraced president left office together with his presidential papers. Congress
in response enacted a law mandating public ownership of a presidents papers to prevent any
future heist of our nations historical legacy. Through this legislation and its successor versions,
including the Presidential Records Act (PRA) at issue here, Congress recognized a democracy
cannot survive without access to the historical record of its governments behavior.
Now, over 34 years later, Vice President Cheney has launched a direct assault on that
principle and the historical checks and balances Congress put in place, attempting to deprive the
public of at least some of his vice presidential papers. Because of what he perceives as in
impermissible intrusion on executive power and prerogatives, Mr. Cheney claims the absolute
discretion to decide what the PRA means and to implement his interpretation, subject to no
challenge or judicial review whatsoever. At bottom this dispute is not just over the meaning and
intent of an act of Congress. Rather, it raises a fundamental question as to whether the vice
president will be allowed to subvert congressional checks and balances to further enhance the
power of the executive. For a host of reasons the answer must be no.
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No precedent supports the unchecked discretion and power the vice president demands
here. Neither the Supreme Court in Kissinger v. Reporters Comm. for Freedom of Press, 445
U.S. 136 (1980), nor the D.C. Circuit in Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991)
(Armstrong I,) held that no aspect of the PRA is subject to judicial review. Defendants
attempt to shoe-horn this case into the category of PRA challenges for which there is no review
ignores that plaintiffs are not challenging the vice presidents day-to-day compliance with that
Act. Rather, plaintiffs seek to prevent the vice president from re-writing the PRA to narrow a
provision that is of primary importance to the act. Am. Historical Assn v. Peterson, 876
F.Supp. 1300, 1314 (D.D.C. 1995).
Alternatively, mandamus relief is available as the PRA leaves the vice president with no
discretion to redefine the scope of his records subject to the Acts provisions and to deprive the
public of its unambiguous right of ownership and access to the records of the Bush
administration. Defendants arguments to the contrary rest on their unsupportable interpretation
of the PRA as giving the vice president absolute discretion to define those classes of his records
that are subject to the Act.
Defendants also challenge plaintiffs standing, ignoring the undisputed facts that
establish the standing of each plaintiff. To counter this evidence defendants offer a merits-based
argument, which fails on its own terms and is, in any event, a thinly disguised attempt to shift to
plaintiffs a burden defendants properly bear.
Finally on the merits, defendants fail to come to terms with the clear limitations on the
so-called evidence they have proffered, evidence flowing from an unqualified source that does
not address any of the actions of the vice president himself, a separately sued defendant. It is
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1 Defendants Reply in Support of Their Motion to Dismiss (Ds Reply), pp. 4-5.
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defendants, not plaintiffs, who refuse to acknowledge the record and their own facially under-
inclusive definition of vice presidential records, and who rely at bottom on the repeated but
unproven incantation that they are complying with the law.
If the vice presidents interpretation of the PRA is left unchecked we face the risk of
losing large swathes of records on a range of historically important issues, from the drafting of
the governments policy on detainee treatment and torture to the vice presidents involvement in
the leak of Valerie Plame Wilsons covert CIA identity. Facially these areas do not fall under
the specially assigned category of records defendants are preserving and there is otherwise no
evidence documenting their preservation. This is a risk our nation simply cannot afford.
ARGUMENT
I. Plaintiffs Have Judicially Remedial Rights Afforded By The PRA
For Which Declaratory And Mandamus Relief Is Available.
A. In disputing plaintiffs ability to seek review of rights afforded them by the PRA,
defendants misrepresent governing case law and misconstrue the proper private right of action
analysis. Defendants start from the erroneous premise that the D.C. Circuit in a series of cases
recognized a clear proscription on PRA-based claims,1 and argue that as a result, there can be
no private right of action for plaintiffs to challenge defendants attempt to redefine vice
presidential records under the Act. To the contrary, the D.C. Circuit in Armstrong v. Executive
Office of the President, 1 F.3d 1274, 1293 (D.C. Cir. 1993) (Armstrong II), clarified that its
decision in Armstrong I does not stand for the unequivocal proposition that all decisions made
pursuant to the PRA are immune from judicial review.
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Defendants private right of action analysis is equally flawed. In deciding whether a
statute creates a private right of action the question is whether -- based on the text and structure
of the statute -- it creates new rights or simply effectuates rights already created. Alexander v.
Sandoval, 532 U.S. 275, 287-88 (2001). Prior to the PRA plaintiffs, along with the rest of the
American public, had neither possession nor control of presidential records, nor did they have a
right to have those records administered pursuant to a statutory scheme that guaranteed them a
right of access. The PRA changed all that, creating through clear and unambiguous language an
explicit right of ownership and access to records as defined in the PRA, 44 U.S.C. 2201,
establishing a process as to how the records shall be administered, including public access, id. at
2202, 2203(f)(1), and framing that right in terms of the persons benefitted, by defining who
has complete ownership, possession, and control of Presidential records, 44 U.S.C. 2202.
See Cannon v. Univ. of Chicago, 441 U.S. 677, 692 (1979). Far from a general prohibition or a
command to a federal agency, Universities Research Assn. Inc. v. Coutu, 450 U.S. 754, 772
(1981) (cited in Ds Reply at 5), the PRA was enacted for the explicit purpose of granting
consistent and long-term public access to a presidents records. See H.R. No. 95-1487, 95th
Cong., 2d Sess. 2 (1978), reprinted in 1978 U.S.C.C.A.N. 5732, 5733.
The cases on which defendants rely stand in stark contrast. For example, in Gonzaga
Univ. v. Doe, 536 U.S. 273 (2002) (cited in Ds Reply at 5), the statute at issue, the Family
Educational Rights and Privacy Act (FERPA), created no affirmative enforceable rights but
instead prohibited federal funding of schools that permit the release of educational records
without a parents written consent. As the Court observed, spending legislation like the FERPA
has long been considered to not create a private right of action. Id. at 279. The PRA, by
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2 That the PRA also affords the president virtually complete control over his records
during his term in office, Armstrong I, 924 F.2d at 290 (cited in Ds Reply at 6), does not
change this conclusion as plaintiffs do not seek control over how the vice president manages his
records while in office. Instead, plaintiffs seek to prevent the vice president from eliminating
whole classes of records from the definition of vice presidential records or, stated differently,rewriting that definition to exclude certain classes of his records.
3 44 U.S.C. 2202.
4 For these same reasons, as discussed infra, section 2201 of the Act in conjunction with
section 2202 creates mandatory duties that may be enforced through mandamus relief.
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contrast, creates a right of ownership and access to records as expressly defined by the Act and
plaintiffs here seek to enforce that right under the Declaratory Judgment Act (DJA).2
In the face of the clear rights-creating language that the PRA uses -- [t]he United States
shall reserve and retain complete ownership, possess, and control of Presidential records3
defendants arguments simply have no force. That other provisions of the PRA on which
defendants rely, 44 U.S.C. 2203, 2204, 2205, impose obligations on defendants does not alter
the unmistakable rights-creating effect of section 2202, read in context with the definitions in
2201 and 2207.
In challenging plaintiffs reliance on the PRAs definition provisions, Ds Reply at 6,
defendants miss the point that the rights-creating language of section 2202 must be read in the
context of section 2201, which defines those records to which the public has a right of ownership
and access. Indeed, as the legislative history makes clear, defining the types of documentary
materials falling within the ambit of either presidential or personal records is of primary
importance to the act. Am. Historical Assn, 876 F.Supp. at 1313-14 (quoting H.R. No. 95-
1487, 9th Cong, 2d Sess. 11 (1978), reprinted in 1978 U.S.C.C.A.N. 5732, 5742) (emphasis
added).4
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Defendants flawed analysis also flows from their misconstruction of the Supreme
Courts holding in Kissinger. The limited issue before the Court was whether Congress, through
the two statutes at issue -- the Records Acts (encompassing the Federal Records Act and the
Federal Records Disposal Act) and the Freedom of Information Act (FOIA) -- had granted the
courts jurisdiction to order the return of wrongfully transferred records. 445 U.S. at 147. The
Court answered this question in the negative after examining the structure and provisions of both
statutes. Focusing on the FRA, which expressly establishes a remedy for the improper removal
of an agency record, the Court noted, where a statute expressly provides a particular remedy or
remedies, a court must be chary of reading others into it. 445 U.S. at 149 (citation omitted).
That Kissinger involved the FRA and not the PRA is also critical, notwithstanding
defendants claims to the contrary. In determining whether or not to imply a private right of
action the Supreme Court in Kissinger noted the importance of legislative history. 445 U.S. at
149. With respect to the Records Acts [t]he legislative history . . . reveals that their purpose
was not to benefit private parties, but solely to benefit the agencies themselves and the Federal
Government as a whole. Id. (emphasis added). The PRA, by contrast, was enacted so that
preservation of the historical record of the future Presidencies would be assured and public
access to the materials would be consistent under standards fixed in law. Am. Historical Assn,
876 F.Supp. at 1306 (citation omitted). These fundamentally different purposes lead to different
conclusions in evaluating whether to imply a private right of action in the PRA. See also Am.
Friends Serv. Comm. v. Webster, 720 F.2d 29, 40-41 (D.C. Cir. 1983) (rejecting similar
interpretation advanced by government that Kissinger foreclosed review of alleged abuse of
discretion in agencys implementation of document destruction program) .
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B. Having failed to defeat the clear, rights-creating language in the PRA that supports
plaintiffs claims here, defendants argue Armstrong I nevertheless precludes review even in the
wake of the clearly defined limits the D.C. Circuit subsequently placed on its Armstrong I
holding. Adhering only to Armstrong I is critical, defendants assert, to maintain the equipoise
between important competing political and constitutional concerns. Ds Reply at 9 (quoting
Armstrong I, 924 F.2d at 290). But what defendants fail to explain -- because they cannot -- is
how judicial review to prevent the vice president from eviscerating a provision of primary
importance to the PRA will intrude in any way on any legitimate political or constitutional
concern of the vice president. To the contrary, absent judicial review the vice president will be
permitted to undermine the checks and balances Congress imported into the Act to ensure that
access to our historical legacy is never again at the mercy of an individual president.
Moreover, the language defendants pluck from Armstrong I refers to the balance
Congress struck between establishing public ownership of presidential records and ensur[ing]
the preservation of presidential records for public access on the one hand and minimiz[ing]
outside interference with the day-to-day operations of the President and his closest advisors
and ensur[ing] executive branch control over presidential records during the Presidents term in
office on the other hand. 924 F.2d at 290 (emphasis added). It is the regulation of the conduct
of the Presidents daily operations that implicates separation of powers concerns, id. (emphasis
added), an area the Court subsequently defined in Armstrong II as involving only the creation,
management, and disposal decisions described in the provisions of 44 U.S.C. 2203. 1 F.3d at
1294 (emphasis added).
Here plaintiffs do not seek judicial review of the vice presidents daily operations -- the
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5 As the Supreme Court noted in Nixon, [i]t has been accepted at least since Mr. Justice
Story's opinion in Folsom v. Marsh, 9 F. Cas. 342, 347 (No. 4,901) (CC Mass. 1841), that
regardless of where legal title lies, from the nature of the public service, or the character of the
documents, embracing historical, military, or diplomatic information, it may be the right, and
even the duty, of the government, to give them publicity, even against the will of the writer.
Id.6 Nor did the D.C. Circuit subsequently retreat from this position in Armstrong v.
Executive Office of the President, 90 F.3d 553 (D.C. Cir. 1996) (Armstrong III), as defendants
suggest (Ds Reply at 10). Rather, the Court merely made the unremarkable observation that in
Armstrong II it held record keeping requirements of the PRA are not subject to judicial review,
90 F.3d at 556, but never suggested any further limitations on the scope of that judicial review.
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creation, management, and disposal decisions he makes. Rather, plaintiffs ask the Court to
resolve an issue concerning the initial classification of existing materials, 1 F.3d at 1294, an
area that raises no constitutional concerns. See Nixon v. Administrator, 433 U.S. 425, 446
(1977) (separation of powers principles not violated by statute that takes custody of and screens
a presidents papers).5 Accordingly, plaintiffs claims are among those recognized explicitly in
Armstrong II as subject to judicial review. See Armstrong II, 1 F.3d at 1294.
Nevertheless defendants argue Armstrong II is of no moment here because it is limited to
FOIA-based claims. But this ignores the more general prescriptions set forth in Armstrong II,
untied to the FOIA, including that the Armstrong Icourt was not addressing the initial
classification of existing materials (1 F.3d at 1294); [t]he Armstrong Icourt discusses only the
creation, management, and disposal decisions . . . [n]one of these decisions encompasses the
initial classification of materials as presidential records(id.); and guidelines describing which
existing materials will be treated as presidential records in the first place are subject to judicial
review. (id.) (emphasis omitted).6
After the D.C. Circuit issued its Armstrong II opinion U.S. District Court Judge Charles
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7 Defendants argue this case has no application because it involved review of guidelines
that applied to a presidents records after he left office and was followed by Armstrong III where
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R. Richey -- who was the presiding district court judge in the Armstrong cases -- was confronted
with an argument, similar to that made here, that Armstrong II precluded judicial review of
former President George H.W. Bushs decision to designate certain categories of his records as
personal and therefore subject to his exclusive control when he left office. In rejecting this
argument Judge Richey explained without qualification, [u]nder Armstrong II. . . guidelines
describing which existing records will be treated as presidential records in the first place are
subject to judicial review. Am. Historical Assn, 876 F.Supp. at 1313. The legislative history
also compels this conclusion by mak[ing] clear that defining the types of either presidential
or personal records is of primary importance to the act. Id. at 1313-1314 (citation omitted).
While Judge Richey acknowledged Armstrong II sought to ensure that materials that are not
subject to the PRA are not treated as Presidential records, (id. at 1314 (citation omitted)
(emphasis added)), he went on to observe[] the following:
Armstrong IIdoes not necessarily foreclose judicial review of a
decision to denominate certain materials personal records of a
former President. Such judicial review may be available to ensure
that Presidential records are not disposed of as personal recordsat the end of an Administration and that, instead, all Presidential
records fall subject to the Archivists affirmative duty to make
such records available to the public. 44 U.S.C. 2203(f)(1).
Thus, the Court observes that Armstrong Iand Armstrong IIdo
not mark the beginning and end of the complicated inquiry
regarding judicial review under the PRA . . .
876 F.Supp. at 1314 (emphasis in original). Judge Richeys keen observations are particularly
apt here, as Vice President Cheney seeks to dispose of vice presidential records as personal
records when he leaves office shortly.7 Contrary to defendants insistence, Armstrong II does
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the D.C. Circuit again held the PRAs record keeping requirements are not subject to judicial
review. Ds Reply at 13, 14. As explainedsupra, Armstrong III injected nothing new into the
judicial review inquiry and the factual differences in Am. Historical Assn do not detract from
the courts more general and entirely accurate observations about the effects of the Armstrong
decision, particularly given the PRAs meaning and intent.
8 Further buttressing Judge Richeys observations about the complicated nature of the
judicial review inquiry and the qualified limits that Armstrong I and Armstrong II represent are
the actions of the D.C. Circuit in this case. Although the vice president in his mandamus petition
urged the appellate court to overturn the district courts discovery order on the ground there was
no cause of action, citing Armstrong I, and although the appellate court ordered plaintiffs
specifically to address whether their claims are subject to judicial review under Armstrong I and
Armstrong II, the Court ultimately refrained from deciding the issue. If, as defendants argue
here, judicial review were so clearly precluded by prior precedent, the D.C. Circuit would have
had no reason not to order outright dismissal. Instead, the Court merely noted defendants were
free to raise their Armstrong arguments at the appropriate time, after discovery was concluded.
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not mark the absolute end of the judicial review inquiry under the PRA, but is a marker along the
way subject to further expansion as a particular case may warrant.8
At bottom, defendants urge this Court to evaluate all prior precedent divorced from the
structure and purpose of the PRA. While separation of powers concerns compelled the Court in
Armstrong I to refrain from judicially reviewing provisions of the PRA that go to how a
president manages his records on a day-by-day basis, no such concerns were present in
Armstrong II , where instead the presidents position threatened the basic integrity of both the
FOIA and the PRA. These cases, far from being a beginning and an end, are a continuum in
which the case now before this Court represents yet a third scenario, closely related to that
presented in Armstrong II. Specifically, the issue here is whether this Court may review a
challenge to the vice presidents attempt to rewrite the definition of vice presidential records
under the PRA by excluding whole classes of records, where such review would not intrude on
any constitutionally protected sphere of the executive and the vice presidents actions threaten to
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9 Defendants also argue that Armstrong I directly precludes review here because in
Armstrong I the plaintiffs were raising the same PRA claims as plaintiffs raise here. Ds Reply
at 11. Once again defendants blur the fundamental differences between claims challenging a
presidents determination to treat a particular record as presidential or federal -- part of the
presidents day-to-day management of his records (Armstrong I) -- and claims that go to
whether a vice president can rewrite the definition of vice presidential records so as to exclude
categories of records Congress clearly intended to include, the case here. Far from directlycontrolling this case, Armstrong I represents a completely different point on the judicial review
continuum.
10 Defendants challenge to section 1331 jurisdiction is undermined by their failure to
deny jurisdiction in answering the complaint. Defendants still offer no explanation for their
unexcused failure to file a timely answer.
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undermine a primary provision of the Act. For the reasons set forth herein and in our opening
brief, the answer is an unequivocal yes.9
C. Because, as explained above, the PRA provides plaintiffs with judicially remediable
rights, plaintiffs have a cause of action under the DJA. Defendants arguments to the contrary
rest almost entirely on their erroneous construction of the PRA as precluding judicial review.
Defendants further challenge to jurisdiction under 28 U.S.C. 1331 also falls wide of the mark,
as it attempts to add a gloss the express language of the DJA does not support. As explained in
plaintiffs opening brief, the DJA requires a plaintiff to meet only three requirements: that there
be a case or controversy, within the courts jurisdiction and an appropriate pleading has been
filed. 28 U.S.C. 2201(a). Contrary to defendants argument, plaintiffs need not demonstrate
they have a right of action outside of the DJA; it is enough that plaintiffs have a judicially
remediable right under the PRA enforceable through the DJA. Comm. on the Judiciary v. Miers,
558 F.Supp.2d 583-84 (D.D.C. 2008). Defendants are left with only the argument plaintiffs lack
standing, an argument that fails on the merits, as discussed infra.10
D. For similar reasons, defendants objections to mandamus relief also fail as they derive
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11 Indeed, this provision tracks the holding of Armstrong I that the presidents creation,
management and disposal decisions are not subject to judicial review, as opposed to the decision
to exclude from the PRA entire classes of documents, which is subject to judicial review under
Armstrong II.
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from defendants argument that the PRA precludes judicial review. In addition, defendants
argue mandamus relief is not available because it is entirely within the vice presidents
discretion whether or not he complies with the definition of vice presidential records under the
Act. This is just flat wrong.
Whatever discretion the vice president enjoys over the creation, management and
disposal of his records does not extend to the exclusion of entire classes of records from the
PRA. Thus, that the PRA directs the president to take all such steps as may be necessary to
create and maintain his presidential records, 44 U.S.C. 2203,11 does not alter his non-
discretionary duty to apply the definition of presidential records contained in section 2201 of the
Act. Stated differently, the vice president may have discretion in applying the definition with
respect to particular documents -- i.e., deciding whether or not a document is a presidential
record -- but he has no discretion to alter the definition of presidential records at the outset and
nothing in section 2203 of the Act suggests otherwise. To otherwise interpret the PRA as
granting the vice president the discretion to redefine vice presidential records would lead to the
same kind of absurdity the Court sought to avoid in Am. Historical Assn: precluding judicial
review of a vice presidents decision regarding conduct that the PRA was enacted specifically to
prevent, namely the disposition of presidential records at will. 876 F.Supp. at 1315.
Finally, defendants suggest requiring either the vice president or the Office of the Vice
President (OVP) to rely on guidelines containing any specific definitions would upset the
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12 Defendants continue to maintain that Fed. R. Civ. P. 12(b)(1) is the proper procedural
vehicle under which to resolve their motion, Ds Reply at 18 n.8, but the cases they cite
demonstrate the opposite. In Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 89 (1998),
the Court reaffirmed the fundamental principle that the absence of a valid cause of action does
not implicate subject-matter jurisdiction. Bell v. Hood is not to the contrary, as it merely
recognized the very limited exception to jurisdiction only when the claim is so insubstantial,
implausible, foreclosed by prior decision of this Court, or otherwise completely devoid of merit.
327 U.S. 678, 683 (1946) (quotations omitted). Plaintiffs case does not come close to this
exception and defendants do not really argue to the contrary.
13
carefully crafted balance recognized in Armstrong I. Ds Reply at 20. But the Acts definition
of presidential records is not a mere guideline the president and vice president are free to
ignore at will. The definition of presidential records is the cornerstone of the Act that effectuates
its primary purpose. It is simply inconceivable Congress would enact a law to preserve
presidential records for public ownership and access, but leave it to the total discretion of the
president and vice president to define what constitutes a presidential record in the first place.
Moreover, while not stated, the logical import of defendants arguments is that NARAs
regulation defining vice presidential records, 36 C.F.R. 1270.14(d), is null and void --
something the NARA defendants undoubtedly would dispute.12
II. PLAINTIFFS HAVE CAUSES OF ACTION AGAINST THE NARA
DEFENDANTS.
Defendants arguments against any relief directed to the NARA defendants fare no better
as they rest on the false premise that the vice president is subject to no direction and control in
following the PRA. While the PRA may accord the vice president control over the creation,
management and disposal of his records while in office, it does not deprive the archivist of the
authority to issue implementing regulations that go to threshold issues such as what constitutes a
vice presidential record in the first place, particularly given the PRAs failure to expressly define
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13 The Archivist is authorized to dispose of those presidential records he determines
have insufficient administrative, historical, informational, or evidentiary value to warrant their
continued preservation. 44 U.S.C. 2203(f)(3). But this provision merely goes to whether
materials properly designated as presidential nevertheless need not be preserved because they
have no long-term value.
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vice presidential records.
In arguing to the contrary defendants misstate the Armstrong I holding, claiming it stands
for the proposition the PRA leaves implementation of [PRA] in the [Vice] Presidents hands.
Ds Reply a t 21. The actual holding is more limited, as the court was referring to the
implementation of the PRAs requirement that the President . . . maintain records documenting
the policies, activities, and decisions of his administration . . . Armstrong I, 924 F.2d at 290.
The court went on to explain the PRA also does not give the archivist the authority to
promulgate guidelines and regulations to assist the president in developing a records
management system, to inspect the presidents records, or to survey his records management
practices. Id. But unaddressed by the Armstrong I court is the archivists ability to issue
implementing regulations defining what is and is not a vice presidential record.
And, indeed, the archivist has issued just such a regulation, found at 36 C.F.R.
1270.14(d) (defining vice presidential records), and promulgated pursuant to authority the PRA
grants to the archivist. See 53 Fed. Reg. 50404 (Dec. 15, 1988). While defendants attempt to
minimize the import of this regulation, arguing it merely governs provisions of the PRA dealing
with a presidents records once he leaves office, this narrow interpretation makes no sense.
Once a president leaves office, all of the materials he has sent to the archivist under the PRA are
considered to be presidential records and the archivist has no authority to reclassify those records
as non-presidential.13 Thus, the archivists regulation defining vice presidential records was
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14 Nancy Kegan Smith confirmed this policy in her deposition testimony. See Smith
Depo. Tr. (Nov. 10, 2008) at 39:8-17; 47:18-48:2.
15 As set forth in plaintiffs opening brief and infra, Ms. ODonnell has no knowledge
about the vice presidents interpretation or implementation of the PRA.
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intended to assist the vice president in implementing the PRA while in office.
Defendants also argue plaintiffs can maintain no claims against the NARA defendants
because they have failed to establish any harm caused by NARAs policy or guidance. But
having established NARA has a policy of leaving it to the discretion of each vice president
whether to treat his legislative records as encompassed by the PRA,14 plaintiffs clearly are
harmed by that policy, which is contrary to law, as it deprives plaintiffs of the absolute right
guaranteed them by the PRA to the full legislative records of Vice President Cheney.
Defendants alleged intentto transfer all legislative records to NARA at the end of this
administration is no substitute for the guarantee the PRA affords plaintiffs, because under the
NARAs defendants policy the vice president is free to withhold these records if he so chooses.
In any event, defendants have failed to substantiate that intent with admissible evidence.
Deposition testimony as to what non-deponents may have stated is inadmissible hearsay, and
Ms. ODonnells testimony lacks a proper foundation and does not, in any event, go to the
entirety of the vice presidents legislative records.15
Moreover, defendants have yet to address the overly expansive view the vice president
takes of his legislative role, declaring in the Plum Book for example that the vice presidency is
part of the legislative, not executive branch of government. And while Ms. ODonnell eschewed
any reliance on an overly expansive view of the vice presidents legislative role for purposes of
the PRA, we have yet to hear from the vice president himself or someone qualified and
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16 Defendants argument that unrebutted factual assertions in the complaint are not
sufficient to establish plaintiffs standing is directly contradicted by governing case law. See,
e.g., Data Processing Serv. v. Camp, 397 U.S. 150, 152 (1969) (plaintiff had standing based on
allegation in complaint of injury directly traceable to complained of action); Barlow v. Collins,
397 U.S. 159, 162-63 (1970) (same).
16
knowledgeable to speak on his behalf, even though the vice president and his counsel are the
apparent architects of this radical view of the vice presidency. Given the vice presidents
expansive view of his legislative capacity and the as yet unexplained nature of his legislative
records, defendants insistence that plaintiffs identify specific legislative records they seek to
establish their harm and standing must fail. As both the complaint and plaintiffs declarations
make clear, plaintiffs interest in the history of this administration does not exclude any category
of legislative records and their harm flows from the vice presidents efforts to exclude from the
PRA classes of records that include legislative records. Article III requires nothing more.
III. EACH PLAINTIFF HAS STANDING TO MAINTAIN THIS ACTION.
Defendants challenge to plaintiffs standing ignores the unrebutted factual evidence in
the record and the process by which plaintiffs are afforded access to presidential records.
Standing is lacking here, defendants argue, because plaintiffs allegations of harm are too
oblique[], ambiguous, and speculative. Ds Reply at 25. The evidence is to the contrary.
First, the amended complaint sets out the facts that establish plaintiffs standing,
including their past and future interest in accessing vice presidential records. See Amended
Complaint, 6 (as to CREW); 7 (as to Stanley I. Kutler); 8 (as to Martin J. Sherwin); 9 (as to
AHA); 10 (as to OAH); 11 (as to SAA);12 (as to SHAFR). These are not mere allegation[s],
(Ds Reply at 25),16 but statements of fact that defendants have not rebutted except to dispute
their materiality. See Document 43-4. Moreover, backing up these unrebutted factual assertions
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17 CREW v. U.S. Dept of Homeland Sec., Civil Action No. 06-883 (RCL) (D.D.C.);
CREW v. U.S. Dept of Homeland Sec., Civil Action No. 06-1912 (RCL) (D.D.C.); CREW v.
U.S. Dept of Homeland Sec., Civil Action No. 08-1535 (RCL) (D.D.C.).
18 In any event, it would be sufficient if even some of the plaintiffs had established
injuries in fact. See Am. Friends Serv. Comm., 720 F.2d at 46 an n.23.
17
are the declarations of Stanley Kutler and Anna Nelson, who reinforce both their individual
interests and plaintiff associations interests in the historical records of Vice President Cheney.
And plaintiff CREWs standing is evidenced not only by the factual allegations in the complaint,
but also by its vigorous and ongoing pursuit of records of visits to the White House and the vice
presidents residence in three separate lawsuits,17 records the White House maintains are
presidential and therefore not subject to access under the FOIA. That each plaintiff seeks access
to the records of Vice President Cheney cannot legitimately be denied, nor can defendants
legitimately dispute the concrete and personal damage plaintiffs will suffer if they are denied
access to records they need for their professional research. Am. Friends Serv. Comm., 720 F.2d
at 46.18
Defendants continued insistence that plaintiffs can establish their standing only by
delineating specific FOIA requests they intend to make for specific vice presidential records also
misapprehends the process by which plaintiffs are afforded access to presidential records. First,
none of Vice President Cheneys presidential records is currently subject to the FOIA. Second,
once his records are transferred to NARA, the archivist has an affirmative duty to make them
available to the public as rapidly and completely as possible, 44 U.S.C. 2203(f)(1). And
while the Archivist may rely on many of the FOIAs exemptions to withhold material in those
records, id. at 2204(c)(1), the unredacted records will be placed in a presidential library subject
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19 Given that the responsibility to make these records available for public access falls to
the NARA defendants, defendants continued misstatement of the process by which plaintiffs areafforded access to presidential records is inexplicable.
20 Despite this Courts finding that the Fielding memorandum was not subject to any
privilege claim, defendants refused to provide plaintiffs with a copy. Without the memorandum
in evidence defendants cannot properly rely on Ms. Smiths hearsay recollection of its contents
as a substitute.
18
to public access without the need to file a FOIA request. Thus, plaintiffs future access to the
records they seek is not dependent on their filing FOIA requests.19
Notwithstanding plaintiffs showing of injury in fact directly traceable to defendants
actions, defendants argue standing is lacking because they are complying fully with the law.
That this is a merits-based argument trumped up as a challenge to standing cannot really be
denied but, more significantly, it fails of its own accord. First, the deposition testimony of Ms.
Smith on which defendants rely (Ds Reply at 26) is of no assistance as Ms. Smith was testifying
about the generic definition of presidential records she recalled seeing in a memorandum
prepared by White House Counsel Fred Fielding. Not only is her testimony inadmissible
hearsay,20 but it does not address the policy of the White House defendants here as to the vice
presidential records of Mr. Cheney.
Defendants reliance on the declarations of Ms. ODonnell is equally unavailing given
the critical limitations this Court has already found with this evidence and the factual questions it
raises. See Memorandum Opinion (Sept. 20, 2008) (Document 16) at 11 (citing Supp.
ODonnell Decl. as mak[ing] unmistakably clear that Defendants apply a narrowing
interpretation to the PRA); 12 (explaining how Ms. ODonnells declarations and defendants
pleadings are bereft of any legal conclusions demonstrating that defendants interpretation is
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19
correct as a matter of law and characterizing those declarations and pleadings as offer[ing]
only their [defendants] ipse dixitthat defendants narrowing definition is the correct one.).
Ms. ODonnells deposition testimony, offered by defendants to supplement her patently
deficient declarations, offers no basis for the Court to alter its initial conclusions. The Court
authorized her deposition to ascertain the meaning of the specially assigned language used by
defendants to describe the vice presidents duties encompassed by the PRA. Yet Ms. ODonnell
could not shed light on that issue; she testified she has no firsthand knowledge of
communication between the President and the Vice President as to any specially assigned
functions, ODonnell Dep. Tr. at 85:12-18, and no knowledge about how and whether the
president specially assigns functions to the vice president. Id. 85:4-14. While defendants
definition of vice presidential records covered by the PRA comes directly from Ms. ODonnells
declaration, she could explain neither its origin nor its meaning as it was drafted by counsel and
presented to her. Id. at 65:6-17. She testified that ultimately specially assigned is something
between the President and the Vice President, ODonnell Dep. Tr. at 159:21-160:3, about which
she has no personal knowledge, and she otherwise has no responsibility to determine whether
something is specially assigned. Id. at 74:8-13. And she admitted when I say specially
assigned, I dont mean, you know, everything he [the vice president] does. Id. at 86-13-17.
Ms. ODonnell is a former tennis teacher who was given positions in various Republican
administrations as a reward for her political support. Id. at 7:3-5. She has no particular expertise
in the PRA as interpreted by the Bush administration. At best she has only the vaguest
recollection of two written memoranda that constitute the only written guidance on the PRA she
ever received, id. at 23:5-6; 24:9-14; 25:4-7, 8-11; 123:3, 9-11, and she has never seen the most
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21 Defendants dispute the significance of this testimony, claiming that in any event it is
proscribed by Armstrong II. Ds Reply at 33. But Ms. ODonnells complete unfamiliarity
with the record keeping practices of everyone but herself together with her lack of familiarity
with the PRA, the most recent implementing guidance, and the specific meaning of specially
assigned as used in her declaration reveal the degree to which she is not a competent witness.
20
recent White House Counsel memorandum, ODonnell Dep. Tr. at 35:7-10, even though it
addresses vice presidential records and was issued after she filed her declarations in this action.
Indeed, no one has even discussed the Fielding memorandum with her. Id. at 36:6-9. Ms.
ODonnells only familiarity with the PRA comes from an orientation she received when she
initially came on board, id. at 37:6-10, and she has read only portions of the Act, id. at 37:13-14.
She admitted, I dont have specific knowledge. I have general knowledge of how records are to
be managed. ODonnell Dep. Tr. at 53:2-4. As for personal records, Ms. ODonnell is
unfamiliar with how they are defined under the PRA, id. at 60:22-61:9, 103:3-5 (I dont know
the specific guidance thats in the Act), 61:10-12.
Moreover, Ms. ODonnell has no personal knowledge of OVPs actual record keeping
practices, relying instead on guidance we are all given and the orientation that we are given as
new employees. Id. at 95:19-96:4. The most she could say was in general documents are
kept. Id. at 131:17-19 (emphasis added).21 With no responsibility for any records other than the
narrow subset of records she personally maintains, ODonnell Dep. Tr. 38:2-6, 43:8, Ms.
ODonnell can only assume that the head of each office is complying with the PRA. Id. at
43:14-17. But this leaves the most significant body of vice presidential records unaddressed by
her deposition testimony, as the additional OVP offices include Legal Affairs, the Staff
Secretary, Counsel, Domestic Policy, Homeland Security, Scheduling, Advance, Speech
Writing, the Chief of Staff, and National Security. Id. at 59:3-8.
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22
While defendants use clever formatting to present this evidence in a way that suggestsit is extensive in scope, a close reading of the entire deposition transcript belies this suggestion.
23 Nor is there any merit in defendants claim that the Court has already rejected
plaintiffs challenge to Ms. ODonnells competence to testify, Ds Reply at 32. The
conclusions the Court reached in striking plaintiffs motion for leave to depose David Addington
-- made without benefit of plaintiffs supporting memorandum of law -- were not intended to be
21
Given Ms. ODonnells lack of expertise, limited knowledge of the PRA, and limited
responsibility for only her own records it is hardly surprising she has no knowledge of what the
vice president does with his records, id. at 81:22-82:7, and has never spoken personally to the
vice president about his records. ODonnell Dep. Tr. at 79:20-21. Nor is Ms. ODonnell
familiar with the practices and policies of the White House Office of Records Management, id. at
31:21-32:5, even though that office is responsible for managing the records of the EOP.
Given this background and context, defendants chart of so-called contrary evidence,
Ds Reply at 28-29,22 fails to negate the fundamental fact that the defendants, by their own
admission, consider only those specially assigned functions from the president to the vice
president in the performance of executive functions to be covered by the PRA. Indeed, the bulk
of defendants purported evidence demonstrates Ms. ODonnell consistently confused the
responsibilities of the OVP vis-a-vis the vice president with the vice presidents responsibilities
vis-a-vis the president. See, e.g., ODonnell Dep. Tr. at 73:5-10 (When we first came into
office thats what we were told. We were there as Vice Presidential staff to assist the Vice
President in carrying out his function in working for the President.) (cited in Ds Reply at 28).
Defendants protestations to the contrary, Ms. ODonnell lacks a proper foundation for her
declaration testimony and is otherwise not qualified to testify to the defendants interpretation of
their legal obligations under the PRA.23
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controlling conclusions on the underlying merits. See Order Setting Schedule For Further
Proceedings, Nov. 20, 2008 (Document 38) at 7 (Court expressly declined to express[] any
views as to the merits of plaintiffs claims or Ms. ODonnells deposition testimony.). Equally
unsound is defendants suggestion that plaintiffs must be satisfied by Ms. ODonnells
testimony because otherwise it would require the testimony of all OVP employees and the vice
president. Ds Reply at 33-34. That Ms. ODonnell is not a competent witness with relevant
testimony to offer does not mean no other OVP employee would have personal knowledge about
the derivation and significance of the specially assigned definition defendants have advanced
in this litigation. For example, as Chief of Staff and Counsel to the Vice President, David
Addington undoubtedly would have been a competent witness who could have answered the
Courts questions.
22
Finally, defendants redressability argument simply makes no sense. According to
defendants, because relief against the White House defendants for their unlawful policies would
not be traceable to any injury caused by the NARA defendants, redressability is lacking. Ds
Reply at 34-35. But defendants fail to account for the fact that plaintiffs have brought separate
claims against the NARA defendants for which they seek relief separate and apart from the relief
they seek against the White House defendants.
IV. UNLIKE PLAINTIFFS, DEFENDANTS HAVE NOT DEMONSTRATED
THEIR ENTITLEMENT TO SUMMARY JUDGMENT.
As outlined supra and in plaintiffs opening brief, defendants have failed to demonstrate
by competent unrebutted evidence that their narrow, facially under-inclusive definition of vice
presidential records under the PRA complies with the law. As to defendant Richard Cheney, the
record is devoid of any evidence that, notwithstanding defendants unlawfully under-inclusive
definition, the vice president is nevertheless not excluding from the scope of the PRA records he
creates and receives in the course of conducting activities relating to or having an effect on the
carrying out of his constitutional, statutory, or other official or ceremonial duties. And as to the
OVP and EOP defendants, the only evidence of record is the testimony of a single OVP
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23
employee, Claire ODonnell, who could speak only to her own practices and limited
understanding of the PRA, based on the most generic and limited guidance she has received in
her tenure at the White House. And while Ms. ODonnell signed the declarations defendants
proffered to support their claim they are complying fully with the PRA, her lack of personal
knowledge of the fundamentals of her declarations totally undermines that claim. Thus, this
evidence too falls short of demonstrating the OVPs and EOPs full compliance with the PRA.
This Court started this process with serious questions going to the heart of defendants
claims they are complying fully with the PRA. Those questions, generated by defendants own
evidence and insistence on a narrow, facially under-inclusive definition of vice presidential
records, remain and compel one of two conclusions: the Court should either grant plaintiffs
motion for summary judgment based on the facially unlawful definition of vice presidential
records defendants apply or, should the Court find that questions still remain, grant defendants
additional discovery. But what the record does not support is the entry of summary judgment for
defendants.
In an effort to avoid their evidentiary burden defendants rely on their statement of
purportedly material facts purportedly not in dispute. Ds Reply at 37-38. But, as plaintiffs
explained in their response to this statement, merely stringing together random snippets of
testimony, taken out of context, made by a thoroughly incompetent witness lacking any
foundation for her testimony, and that do not prove the point for which they are offered is no
substitute for setting forth material facts genuinely not in dispute. The evidentiary record is what
it is, not what defendants would have it be, and it is this record from which the Court must
decide the pending motions for summary judgment. Having failed to carry their evidentiary
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24 Other examples include, inter alia, the vice presidents participation in Principles
Meetings at his own initiative; his participation in weekly Economic Team meetings, again at his
own initiative; his participation on the National Economic Council; his attendance at weekly
Senate Republican Caucus Meetings; the work of his office on preparing an order relating to
how foreign terrorists were going to be tried by military commissions; the vice presidents
practice of receiving blind copies of all memos intended for others within the EOP but outside of
the OVP; the work of the vice president and his staff regarding the 2002 allocation of water from
the Klamath River; OVP communications with the FISA Court on records pertaining to the FISA
Court; the OVPs use of a classification system called Treated as Secret/SCI; efforts by the
vice president and David Addington to remove William Leonard from his position as Director of
NARAs Information Security Oversight Office; and the involvement of the vice president and
his staff in the leak of Valerie Plame Wilsons covert CIA identity. Ms. ODonnell could shed
no light on whether records relating to these topics are being transferred to NARA as within the
specially assigned definition defendants apply. ODonnell Dep. Tr. at 29:2-157:20.
24
burden, defendants summary judgment motion must be denied.
Plaintiffs motion, on the contrary, rests on the undisputed fact that defendants consider
the phrase constitutional, statutory, or other official or ceremonial duties of the vice president
to include only the functions of the vice president as president of the Senate and the functions of
the vice president specially assigned to the vice president by the president in the discharge of
executive duties and responsibilities. Thus, still unaccounted for are the wealth of
responsibilities assigned to the vice president by Congress and the functions that are at the core
of how this vice president has operated: his power over policy making, which includes the advice
he gives the president on his own initiative, the influence he has over the presidents decisions,
and the myriad responsibilities he has taken on without the presidents knowledge such as
working with the Department of Justice to draft a policy on the treatment and torture of
detainees.24 None can legitimately be understood as specially assigned to the vice president
from the president, yet each is integral to how Mr. Cheney has functioned as vice president.
Accordingly, for the reasons set forth above and in plaintiffs opening brief, plaintiffs are
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entitled to summary judgment.
CONCLUSION
For the foregoing reasons and those set forth in plaintiffs opening brief, defendants
motion to dismiss or, in the alternative, for summary judgment should be denied and plaintiffs
cross-motion should be granted.
Respectfully submitted,
/s/
Anne L. Weismann
(D.C. Bar No. 298190)
Melanie Sloan
(D.C. Bar No. 434584)Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
Phone: (202) 408-5565
Fax: (202) 588-5020
David L. Sobel
(D.C. Bar No. 360418)
1875 Connecticut Avenue, N.W.
Suite 650
Washington, D.C. 20009Phone: (202) 797-9009
Dated: January 5, 2009 Attorneys for Plaintiffs
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