CREW v. Cheney Et Al: Regarding VP Records: 1/5/09 - CREW's Reply in Support of Cross Motion for Summary Judgment (Document 45)

8/7/2019 CREW v. Cheney Et Al: Regarding VP Records: 1/5/09 - CREW's Reply in Support of Cross Motion for Summary Jud

1/25

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.

Case 1:08-cv-01548-CKK Document 45 Filed 01/05/2009 Pag


2/25

2

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



3/25

1 Defendants Reply in Support of Their Motion to Dismiss (Ds Reply), pp. 4-5.

3

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.



4/25

4

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



5/25

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.

5

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



6/25

6

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) .



7/25

7

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



8/25

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.

8

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



9/25

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

9

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



10/25

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.

10

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

Case 1:08-cv-01548-CKK Document 45 Filed 01/05/2009 Page


11/25

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.

11

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



12/25

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.

12

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



13/25

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



14/25

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.

14

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



15/25

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.

15

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



16/25

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



17/25

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



18/25

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



19/25

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



20/25

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.



21/25

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



22/25

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



23/25

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



24/25

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



25/25

25

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


Documents

CREW v. Cheney Et Al: Regarding VP Records: 1/5/09 - CREW's Reply in Support of Cross Motion for Summary Judgment (Document 45)