Federal judge: Cheney has broad discretion over records

By The Associated Press
01.20.09

WASHINGTON — A federal judge ruled yesterday that Vice President Dick Cheney has broad discretion in determining what records created during his eight-year tenure must be preserved.

Absent any evidence that Cheney's office is failing to safeguard records, it is up to the vice president to determine how he deals with material, U.S. District Judge Colleen Kollar-Kotelly ruled.

"Congress drastically limited the scope of outside inquiries related to the vice president's handling of his own records during his term in office," the judge said in a 63-page opinion in CREW v. Cheney.

The Presidential Records Act "provides only narrow areas of oversight," Kollar-Kotelly added.

At the same time, the judge rejected the Bush administration's expansive view that Cheney alone has the right to decide what the Presidential Records Act means for his office. The administration had argued that outside groups could not go to court to challenge Cheney on the issue.

At issue is whether Cheney had impermissibly limited the scope of the post-Watergate law aimed at protecting White House records.

The judge found that outside groups suing over the issue failed to prove that Cheney had unlawfully narrowed the definition as to which of his records are presidential records that must be preserved.

The judge said Congress must change the law before substantial outside oversight can take place.

The Presidential Records Act incorporates an assumption made by Congress that presidents and vice presidents would comply with the act in good faith, said the judge.

Cheney has taken the legal position that his office is not part of the executive branch of government, triggering a lawsuit by several groups including three organizations of historians and archivists concerned that the record of Cheney's time in office might not be adequately safeguarded.

Last summer, David Addington, Cheney’s chief of staff, told Congress the vice president belonged to neither the executive nor legislative branch of government, but rather was attached by the Constitution to Congress. The vice president presides over the Senate.

The lawsuit alleges that the Bush administration's actions over the past eight years call into question whether the White House will turn over to the National Archives a complete record of the activities of Cheney and his staff.

The ruling means that there is little room for the courts or the U.S. archivist to ensure that records are being protected.

"This is a huge loophole in the Presidential Records Act and Congress needs to address it immediately," said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, a watchdog group that was one of the plaintiffs in the case.

CREW tried but failed to get permission from the judge to question Addington about Cheney's record-keeping practices.