crew.local ilesshareDocuments RedirectionaweismannMy … · 20 or does Nancy have an understanding? 21 BY MS. WEISMANN: 22 Q. All right, well I'll ask, do you have Case 1:08-cv-01548-CKK

EXHIBIT 2

Case 1:08-cv-01548-CKK Document 35-3 Filed 11/18/2008 Page 1 of 239

1 1 ROUGH DRAFT DEPOSITION 2 NANCY KEGAN SMITH 3 BY MS. WEISMANN: 4 Q. Would you please state your name for the 5 record? 6 A. Nancy Kegan Smith. 7 Q. Ms. Smith, have you ever had your 8 deposition taken before? 9 A. Yes. 10 Q. Okay. Well just to go over a few ground 11 rules, one the court reporter can only take down 12 audible responses and so please try to make sure 13 that you give audible responses. 14 Second, if you don't understand the 15 question, please tell me and I'll try to rephrase it 16 so that you do understand it. If you go ahead and 17 answer the question and don't indicate to me that 18 you don't understand it, I'm going to assume that 19 you've understood the question. 20 What is your educational background 21 after high school? 22 A. I have a B.A. from the University of


2 1 Texas in Austin. 2 Q. And was that in a specific area? 3 A. History and Government. 4 Q. And after you got your B.A., what did 5 you do next? 6 A. I was hired at the Johnson Library in a 7 special program. 8 Q. The, by Johnson Library you mean the 9 President Johnson's Presidential library? 10 A. Uh-huh, yes. 11 Q. And when did you begin working there? 12 A. August. 13 MS. HONG: If you can just let 14 Ms. Weismann finish asking the question before you 15 respond. 16 THE WITNESS: Okay. 17 BY MS. WEISMANN: 18 Q. When did you begin working at the 19 Presidential, Johnson Presidential library? 20 A. August of 1973. 21 Q. And in what capacity did you work there? 22 A. As an archivist.


3 1 Q. And what were your responsibilities as 2 an archivist? 3 A. Reviewing President Johnson's papers and 4 records. 5 Q. For what purpose? 6 A. Under his donor deed of gift to make 7 those materials available. Additionally I did 8 reference and assisted in doing the research room at 9 the Johnson Library, working with researchers. 10 Q. And for how long did you, were you in 11 that position? 12 A. Well I was at the Johnson Library for 16 13 years. 14 Q. Did your position change? 15 A. It, the duties and responsibilities 16 somewhat changed. 17 Q. Why don't you walk us through that 18 change. 19 A. Oh, I, I started as a beginning 20 archivist, when I left, I had developed review 21 expertise in certain sensitive and classified files 22 and political files and was more senior archivist.


4 1 Q. Was that expertise specific to the 2 Johnson Library? 3 MS. HONG: Objection, vague. You can 4 answer the question if you understand. 5 THE WITNESS: Oh,. It wasn't specific 6 to the Johnson Library in that I, before I left the 7 Johnson Library I was doing consulting on Nixon 8 issues. 9 BY MS. WEISMANN: 10 Q. And who were you consulting? 11 A. I was consulting for the archivist of 12 the United States and the assistant archivist for 13 Presidential Libraries. 14 Q. Okay, and once you left the Johnson 15 Library, where did you go next? 16 A. To Washington, D.C. 17 Q. And what was your next job? 18 A. I was a review archivist for the head of 19 Presidential Libraries. 20 Q. At part of NARA, of the archives? 21 A. Uh-huh. Yes. 22 Q. And tell me what your responsibilities


5 1 were in that position? 2 A. In that position originally I was 3 working on Nixon contested documents and helping the 4 Board of review under Nixon decide what was keep 5 able and what was return able that the former 6 President had contested from an opening. 7 Q. And how long were you in that position? 8 A. I was in, I was in the office of 9 Presidential Libraries until 1997. 10 Q. And then in '97, where did you go? 11 A. I went to the Office of General Counsel. 12 Q. Okay and what did you do in the Office 13 of General Counsel? 14 A. I headed it up, access for Presidential 15 papers and records. 16 Q. And what were your responsibilities in 17 that capacity? 18 A. My responsibilities were to give 19 guidance and training and to handle with the head of 20 that office access requests to Presidential records. 21 Q. And by the head of that office I assume 22 that would be the General Counsel?


6 1 A. Well the head of the access office was 2 Miriam Nisbet, the General Counsel was Elizabeth 3 Pugh. 4 Q. But the office, it was all part of the 5 General Counsel's Office, correct? 6 A. Yes. 7 Q. And when you say access requests, did 8 that include Freedom of Information Act requests? 9 A. Yes, when they apply. 10 Q. Okay. 11 A. As they come in under the Presidential 12 Records Act. 13 Q. And that covered all of the collections 14 that the NARA had at that time of Presidential 15 records? 16 A. Yes. 17 Q. Okay. And what did you do, how long 18 were you in that position? 19 A. About a year and a half. 20 Q. And then where did you go? 21 A. I took this job as director of the 22 Presidential materials staff.


7 1 Q. And what would have been in what year? 2 A. September of 1998. 3 Q. Okay, and that is the position you 4 currently occupy? 5 A. That is correct. 6 Q. And have your duties and 7 responsibilities changed from September of 1998 to 8 the present? 9 A. Yes. 10 Q. How so? 11 Well why don't you tell me, again if you 12 could walk us through what your responsibilities 13 were initially and how they've changed? 14 A. Well, the responsibilities initially 15 were to head up the courtesy storage for incumbent 16 Presidential and Vice Presidential records and 17 artifacts, to head up the White House part of the 18 Presidential moves. 19 Q. Okay -- 20 A. And. 21 Q. I'm sorry. 22 A. To assist on access and over time I have


8 1 picked up heading up the declassification program 2 for the Presidential Libraries, essentially heading 3 up access for the Presidential Libraries, archival 4 access, training archivists at the newer Libraries 5 and handling special access requests and dealing 6 with the representatives of the current and former 7 President -- for Presidential records. 8 Q. I want to go back to the courtesy 9 storage, could you explain what that is? 10 A. Courtesy storage is a function that NARA 11 has offered to presidents and Vice Presidents which 12 is to store those records that they don't have room 13 for or don't need for every day use and we store 14 them, we have no access to them and we return them 15 within an hour turn around time, 24 hours a day. 16 Q. And while those records are physically 17 at NARA, do you, does NARA have any understanding of 18 their contents? 19 MS. HONG: Objection, vague. Does NARA 20 or does Nancy have an understanding? 21 BY MS. WEISMANN: 22 Q. All right, well I'll ask, do you have


9 1 any understanding? 2 A. We have very limited knowledge on the 3 records. We have excellent knowledge on the 4 artifacts, but very limited knowledge on the 5 records. It would be the most basic knowledge in 6 terms of what's on the outside of the box. 7 Q. So what information would that include? 8 A. It varies from office to office, but it 9 can include the staff member or the office that 10 created the records and the box number. 11 Q. What are your responsibilities 12 specifically with respect to Vice Presidential 13 records? 14 A. They are the same as my responsibilities 15 for Presidential records. 16 Q. And for former Vice Presidents, do they 17 have their own representatives? 18 A. Yes. 19 Q. And is it your responsibility to deal 20 with their personal representatives as well? 21 A. I don't consider them personal 22 representatives.


10 1 Q. All right. Well they're 2 representatives? 3 A. Right, under the PRA. 4 Q. Right, okay. Fair enough. 5 So how many Presidential transitions 6 have you participated in under the PRA. 7 A. Everyone since Reagan. 8 Q. And let's start with the first one, what 9 are your specific responsibilities with respect to a 10 Presidential transition? 11 MS. HONG: Objection. I think we're 12 starting to get outside of the scope of the 13 discovery that the Court has permitted. 14 MS. WEISMANN: Are you directing her not 15 to answer? 16 MS. HONG: I will allow some latitude, 17 but to the extent that I think that we start to get 18 into areas that are not within the scope of the 19 discovery, I will instruct the witness not to 20 answer. 21 MS. WEISMANN: Okay. 22 THE WITNESS: Are you, I'm a little


11 1 unclear, are you now asking me what my 2 responsibilities were during the Reagan transition? 3 BY MS. WEISMANN: 4 Q. Well let's, let's start more recently in 5 time. Let's start with the Clinton transition. 6 You had responsibility for that, 7 correct? 8 A. Yes. 9 Q. And in terms, in advance of the actual 10 end of the Administration, what were your 11 responsibilities? 12 A. Well -- 13 MS. HONG: Objection, vague. You can 14 answer if you understand the question. 15 THE WITNESS: Okay. For the Clinton 16 transition, we began talking to the Clinton White 17 House staff and the OVP staff in preparation for the 18 move and even before that from the very beginning we 19 talked to the transition team and throughout the 20 Clinton Administration would respond to requests on 21 records issues. 22 BY MS. WEISMANN:


12 1 Q. And what is your responsibility, what 2 was your responsibility on January 20th when the 3 Administration, the Clinton Administration ended? 4 A. I was -- 5 Q. With respect to their papers? 6 A. I was sitting in counsel's, associate 7 counsel's office and I am one of the people who 8 represents the archives that from about 6:00 in the 9 morning until 11:59 on records issues. 10 Q. And what happens on January 20th to the 11 records? 12 MS. HONG: Objection. I do think that 13 this is outside of the scope of the discovery that 14 the Court has permitted. 15 Are you asking this for background? 16 MS. WEISMANN: I'm happy to talk about 17 the question, I'd prefer not to do it in the 18 presence of the witness. 19 MS. HONG: Okay. I would like to. 20 MS. WEISMANN: No, I'm happy to talk 21 about it, I just think that we should ask Nancy to 22 step outside.


13 1 (Witness excused.) 2 MS. HONG: Okay, if we could just go off 3 the record for a moment. 4 MS. WEISMANN: Off the record. 5 (Discussion off the record) 6 MS. WEISMANN: Can you read back the 7 last question. 8 (Whereupon, the reporter read the 9 record as requested.) 10 MS. HONG: Again, I will object as to 11 the extent that specifics about transition issues 12 are outside of the scope of the Order, I will 13 instruct the witness not to answer. 14 MS. WEISMANN: Okay. For the record, I 15 would note that it, we believe that both categories 16 number 5 and 6 of the Court's September 24th, 2008, 17 order allow us. 18 Can we have a way to mark those 19 questions so we can take it up with the Magistrate 20 Judge. 21 BY MS. WEISMANN: 22 Q. What are your responsibilities with


14 1 respect to President George Bush's transition? 2 MS. HONG: Objection, vague. 3 THE WITNESS: George -- 4 MS. HONG: Which, current President? 5 BY MS. WEISMANN: 6 Q. The current President? 7 A. The responsibilities in terms of this 8 transition are I head up the White House part of the 9 move. 10 Q. What does that mean when you say you 11 head up the White House part of the move? 12 A. I mean that I coordinate with the White 13 House in terms of moving the records and artifacts, 14 getting approval to move the physical custody of 15 them from the Washington, D.C., area, to the 16 temporary library site in Dallas and get information 17 from them as to what records and artifacts can be 18 moved. 19 I coordinate with them in terms of 20 getting people in and out of the compound, to assist 21 with the move and I provide any staff the White 22 House needs to assist them in getting materials


15 1 ready for the move. 2 Q. Do your responsibilities differ at all 3 with respect to the records of Vice President 4 Cheney? 5 A. No. Except that Vice President Cheney's 6 records are not being moved from the Washington, 7 D.C., area. 8 Q. Where will Vice President Cheney's 9 records be after January 20th, 2009? 10 A. They will remain in Washington, D.C. 11 Q. And these are records that are, when you 12 refer to this collection of records, are those the 13 records that are subject to the Presidential Records 14 Act? 15 A. Yes. 16 Q. And where in Washington, D.C., will they 17 remain? 18 A. They'll remain under, they'll remain at 19 Archives I with the Presidential materials staff 20 with my staff. 21 Q. Okay. And do you have a counterpart at 22 the White House that you coordinate with,


16 1 specifically with respect to Vice Presidential 2 records? 3 MS. HONG: Objection, vague. 4 If you understand the question, you can 5 answer. 6 THE WITNESS: If I understand the 7 question? 8 MS. HONG: Yeah. 9 THE WITNESS: Well the person I deal 10 with on records issues would be Katie Wheelbarger, 11 who is OVP counsel, and on artifact issues, CeeCee 12 Boyer. 13 BY MS. WEISMANN: 14 Q. And CeeCee Boyer is part of whose staff 15 at the White House? 16 A. I think -- 17 MS. HONG: Objection. Objection, vague 18 and ambiguous. 19 When you say White House, do you mean 20 the office of Vice President? 21 MS. WEISMANN: I don't know if this 22 person is even in the Office of the Vice President.


17 1 Let me ask the question differently. 2 BY MS. WEISMANN: 3 Q. Which office is CeeCee Boyer attached to 4 at the White House? 5 A. The Office of the Vice President. 6 MS. HONG: And I just want to interpose 7 another objection, there was an embedded presumption 8 there that it was someone within the White House and 9 I just want to make clear that the question was 10 determining where this individual resides. 11 MS. WEISMANN: At a certain point your 12 objections are going to become intrusive and I'm 13 going to have to object myself. 14 BY MS. WEISMANN: 15 Q. You said in your declaration that you 16 submitted in this case, Crew, et al, V Cheney at 17 all, and I'm quoting, that you have, quote, "Over 30 18 years of experience in handling Presidential access 19 issues and FOIA requests, appeals and litigation on 20 behalf of NARA." 21 What is the specific litigation 22 experience that you were referring to?


18 1 A. Can I take -- 2 Q. I have a copy of your declaration if you 3 would like. 4 A. Yeah. I just like to have it in front 5 of me. 6 The litigation experience that I have, 7 could you repeat that question, please. 8 Q. What was the litigation experience that 9 you have that you've referred to in your 10 declaration? 11 A. I've been involved from the archives 12 standpoint in Bush Armstrong 1 and 2, in, with 13 Presidential records, and in several cases with 14 dealing with Clinton records and in the several 15 special access requests that involved litigation 16 dealing with Presidential records. 17 Q. And generally speaking, what was your 18 role in this litigation? 19 A. To work with the Office of General 20 Counsel in terms of advising how to meet the request 21 or what the issues were in the litigation in terms 22 of the archival world.


19 1 MS. HONG: I'm sorry can you read back 2 the question. 3 (Whereupon, the reporter read the 4 record as requested.) 5 MS. HONG: Was the question about this 6 specific litigation as opposed to litigation 7 generally? 8 MS. WEISMANN: We hadn't been discussing 9 this litigation, so. 10 MS. HONG: Oh, no, that's where my 11 confusion was, okay. 12 MS. WEISMANN: So she answered. 13 THE WITNESS: If I could just add one 14 more point, and often I helped find or help review 15 the records for responsiveness in terms of the 16 litigation. 17 BY MS. WEISMANN: 18 Q. Are you familiar with the categories of 19 records that the bush library uses for the records 20 of George H-W bush? 21 MS. HONG: Objection, vague. 22 Do you understand, if you understand --


20 1 BY MS. WEISMANN: 2 Q. You can answer the question. 3 A. Well I really don't understand the 4 question. 5 Q. Okay. Does the Bush library divide 6 President Bush, the first President Bush's records 7 by category? 8 MS. HONG: Objection, vague. 9 If you understand the question, you can 10 answer, if you don't, you can -- 11 MS. WEISMANN:I need her response. 12 MS. HONG: -- request clarification. 13 MS. WEISMANN: It's not appropriate to 14 continually coach the witness. 15 MS. HONG: Objection, vague. 16 If you understand the question, you can 17 answer the question. 18 THE WITNESS: As I understand it, you're 19 asking how does the Bush library divide the records 20 and archivists don't normally reorganize records. 21 There, I can tell you how they are archivally 22 structured, but my confusion is the, that you're


21 1 asking how the Bush library divides the records. 2 BY MS. WEISMANN: 3 Q. Okay. Are you familiar with the 4 Presidential Records Act? 5 A. Yes. 6 Q. What is your understanding of the 7 documents that the President is required to transfer 8 to NARA at the end of his Administration? 9 MS. HONG: Objection. This is outside 10 the scope of this discovery. 11 BY MS. WEISMANN: 12 Q. You can answer the question. 13 MS. HONG: I would object. 14 Are you asking about the President or 15 the Vice President? 16 MS. WEISMANN: I asked of the President. 17 MS. HONG: I think that's outside of the 18 scope of this litigation and I will. 19 MS. WEISMANN: Are you directing her not 20 to answer? 21 MS. HONG: I will instruct the witness 22 not to answer the question.


22 1 MS. WEISMANN: Okay, mark that. 2 BY MS. WEISMANN: 3 Q. What is your understanding of the 4 documents that the Vice President is required to 5 transfer to NARA at the end of the Administration? 6 A. Those documents that meet the 7 definitions in section 2201 of record which are 8 documentary materials created or received in the 9 course of carrying out Constitutional, statutory, 10 official or ceremonial duties and those political 11 items that directly relate to or have a direct 12 effect upon carrying out those duties. 13 Q. What is not included in that obligation, 14 what records are not included? 15 A. Personal materials. 16 Q. And -- 17 MS. HONG: I'm sorry, if I could just 18 make clear when you use the term records, you're not 19 using the term records within the meaning of the 20 PRA, right, you're talking about documentary 21 material; is that correct? 22 MS. WEISMANN: If you have an objection


23 1 you're free to make it. 2 MS. HONG: Can you read back the 3 question. 4 (Whereupon, the reporter read the 5 record as requested.) 6 BY MS. WEISMANN: 7 Q. And what is included within the category 8 of personal materials? 9 A. Personal materials include diaries, 10 political material, private political material and 11 materials that are created for someone's own use and 12 not used in the course of conducting any of the 13 responsibilities that I have defined and purely 14 family materials. 15 Q. And what is, what does purely family 16 material mean? 17 A. It means, for example, a letter to the 18 girls or to a private friend or, I think it's fairly 19 clear category. 20 Q. And with the exception of personal 21 papers; is that the word you used or records? 22 A. To me, they're papers.


24 1 Q. Okay. Is there any other category of 2 records that the Vice President creates during his 3 tenure in the White House that he's not required to 4 preserve under the Presidential Records Act? 5 A. Not that I know of. 6 Q. Okay. Are records that reflect private 7 business of the Vice President that he conducts 8 while in office required to be preserved under the 9 Presidential Records Act? 10 MS. HONG: Objection, vague. I don't 11 know what you mean by private business. 12 BY MS. WEISMANN: 13 Q. Do you understand the question? 14 A. No. 15 Q. Okay. Are records that reflect private 16 social activities that the Vice President conducts, 17 do they fall within the scope of the Presidential 18 Records Act? 19 MS. HONG: Objection, vague. 20 BY MS. WEISMANN: 21 Q. Do you understand the question? 22 MS. HONG: If you --


25 1 BY MS. WEISMANN: 2 Q. Ms. Smith. 3 A. I think I understand the question. Are 4 you -- 5 MS. HONG: I'm not instructing. You can 6 answer if you understand the question. 7 THE WITNESS: Okay. Okay. Well all I 8 can give you is my opinion. 9 In my opinion, those are, those can be 10 determined under 2203 to be personal. 11 BY MS. WEISMANN: 12 Q. And, therefore, are not required to be 13 preserved under the Presidential Records Act? 14 A. Yes. 15 Q. Okay. 16 A. Those records, what you asked me were, 17 as I understand it, materials that deal with his 18 private social interactions. 19 Q. Records that reflect the Vice 20 President's visits with foreign heads of State or 21 foreign Government leaders, would those be included 22 within the Presidential Records Act?


26 1 MS. HONG: Objection, vague and, again, 2 are you just asking for her understanding or an 3 interpretation of the PRA? 4 MS. WEISMANN: Well she's the witness. 5 THE WITNESS: My understanding is those 6 would be included as Vice Presidential records. 7 BY MS. WEISMANN: 8 Q. Okay. Are there any other categories of 9 private records that you can identify that would be 10 excluded from the scope of the Presidential Records 11 Act, that you have not already identified? 12 MS. HONG: Objection. Vague, objection, 13 vague and assumes that this witness has identified 14 all of the categories of private -- 15 MS. WEISMANN: It doesn't assume 16 anything and, you know, if you're going to object to 17 every question, we're going to go to the Magistrate 18 because this is extremely disruptive and you're not 19 even waiting for the witness to indicate that she 20 has any problems with the sentence, with the 21 question. 22 MS. HONG: And you asked if she had any


27 1 other as if she had listed out all of the sort of 2 prior -- 3 BY MS. WEISMANN: 4 Q. I am not meaning to imply that you've 5 given us a comprehensive list yet. You have, 6 Ms. Smith, identified several categories of records 7 that you've said that would be purely private and 8 not covered by the Presidential Records Act. 9 My question to you is: Are there other 10 records or categories of records that are purely 11 private that would not be included within the 12 Presidential Records Act based on your extensive 13 experience with the Presidential Records Act? 14 MS. HONG: Same objection. 15 You can answer. 16 THE WITNESS: Not that I'm aware of. 17 I've given you the categories that are in the 18 Presidential Records Act and those are the 19 categories I'm aware of as personal. 20 BY MS. WEISMANN: 21 Q. Based on your experience with other 22 Presidential Libraries, do you have any


28 1 understanding of records that President Clinton did 2 not include as -- I'm sorry, that Vice President 3 Gore did not include as purely private that you 4 haven't addressed? 5 MS. HONG: Objection, vague. 6 If you understand, you can answer. 7 THE WITNESS: Okay, now I'm confused as 8 to what the, I know it dealt with Gore. What is the 9 question? 10 BY MS. WEISMANN: 11 Q. The question is, you were responsible 12 for assisting with the transition with respect to 13 Vice President Gore's records, were you not? 14 A. That is correct, yes. 15 Q. And were there categories of records 16 that Vice President Gore did not include as private 17 records, personal records? 18 MS. HONG: Objection, vague. 19 THE WITNESS: Vice President Gore gave 20 us Vice Presidential records and a small amount of 21 personal records, so I think the answer to the 22 question as I understand it were there other


29 1 categories of records, no. 2 BY MS. WEISMANN: 3 Q. Okay. Has NARA memorialized in any 4 written documents a definition of what Vice 5 President's are required to preserve under the 6 Presidential Records Act? 7 A. Not specifically to Vice Presidents. I 8 think the Presidential Records Act does that. 9 Q. And you're not aware of any written 10 documents or guidance that NARA has issued defining 11 or further defining or explaining the scope of the 12 PRA with respect to Vice Presidential records? 13 A. Not specifically to Vice Presidential 14 records, no. 15 Q. Okay. What was the definition that the 16 Clinton Administration used with respect to, in 17 defining those Vice Presidential records that are 18 encompassed within the scope of the Presidential 19 Records Act? 20 MS. HONG: Objection. Basis for 21 personal knowledge. 22 You can, if she's asking for your


30 1 understanding of what the Clinton, definitions that 2 the Clinton library used, you can answer that 3 question. 4 THE WITNESS: Well again, it's not the 5 Clinton library. 6 BY MS. WEISMANN: 7 Q. I didn't ask about the Clinton library, 8 I asked about the Clinton Administration. 9 A. Okay, it wouldn't be the Clinton 10 Administration, it would be Gore; and it would be up 11 to the Vice President Gore under 2203 to define what 12 is Vice Presidential record in accordance with the 13 definition in 2201. 14 Q. What is your understanding of what the 15 category legislative records encompasses with 16 respect to a Vice President? 17 A. I have no understanding -- 18 Q. Okay. 19 A. -- of that category. 20 Q. All right. So are legislative records a 21 relevant category for purposes of the Presidential 22 Records Act?


31 1 MS. HONG: Objection, vague. 2 You can answer if you understand the 3 question. 4 THE WITNESS: I have a hard time 5 understanding what would be a purely legislative 6 record that a Vice President would create, so it's 7 hard for me to respond to your question. 8 BY MS. WEISMANN: 9 Q. Did Vice President Gore provide NARA 10 with records that were denominated as legislative 11 records? 12 A. They were not denominated that way. 13 They were -- he did provide us with records from his 14 Senate office as Vice Presidential record from what 15 location. 16 Q. Okay. And are the records that the Vice 17 President creates is part, in performance of his 18 Constitutional obligations with respect to the 19 Senate encompassed by the Presidential Records Act 20 can? 21 A. In my mind if he is doing those duties 22 as the Vice President, they would be part of his


32 1 Constitutional, statutory, official or ceremonial 2 duties and would be encompassed in the definition of 3 2201 of the Act. 4 Q. I'm going to show you, I guess we'll 5 have this marked as Exhibit 1. 6 (Smith Deposition Exhibit No. 1 7 was marked for identification) 8 BY MS. WEISMANN: 9 Q. I've just handed you a letter dated 10 July 21st, 2008, from me to Gary Stern. 11 Had you seen this letter before? 12 A. Yes. 13 Q. All right, well if you need to, you can 14 take as much time as you want to re-read the letter. 15 A. (Witness examining document) 16 Q. I draw your attention to the second 17 paragraph, second sentence that states, and I quote, 18 "You," meaning Gary Stern, "advised me that NARA 19 historically has treated these records as personal 20 records of a Vice President which have been included 21 in the Presidential Libraries at the Vice 22 President's discretion," end of quote, and that the


33 1 reference to that's records is described in the 2 preceding sentence as Vice President's legislative 3 records that he creates as a result of the 4 Congressional duties to which the Constitution 5 assigns him. 6 MS. HONG: If we can go off the record 7 for a moment. 8 (Discussion off the record) 9 BY MS. WEISMANN: 10 Q. Is it correct that NARA historically has 11 treated the Vice President's legislative records as 12 defined in this letter as personal records that are 13 included as a matter of discretion? 14 A. Not if we're talking about Vice 15 Presidential records, records defined under the 16 Presidential Records Act. 17 Before the Act, yes. Once the Act was 18 passed, starting with the Reagan Administration, no. 19 Q. So, that would not be a correct 20 representation that the records that reflect the 21 legislative duties of the Vice President are not 22 included within the Presidential Records Act?


34 1 A. It would be partly incorrect, I believe. 2 Q. What part of it would be incorrect? 3 A. I believe that that is not the case in 4 Gore or in George Herbert Walker Bush. I believe 5 those records are Vice Presidential. 6 Q. Have you participated in any discussions 7 at NARA about the status of these categories of 8 records and by status I mean whether or not they 9 fall within the Presidential Records Act? 10 A. Yes. 11 Q. And how recently were those discussions 12 held? 13 MS. HONG: Objection, vague. 14 If you understand -- when was the most 15 recent? 16 BY MS. WEISMANN: 17 Q. First of all, has there been more than 18 one discussion? 19 A. Yes. 20 Q. And can you give me points in time when 21 these discussions took place. 22 A. I remember a discussion or a couple of


35 1 discussions I had with Gary regarding your question 2 and. 3 Q. When you say your question, what do you 4 mean? 5 A. What is posed here in the letter as to 6 how Vice Presidents treat their legislative records. 7 Q. Does NARA, to your knowledge, have a 8 position now on whether or not these records are 9 required to be preserved under the Presidential 10 Records Act? 11 MS. HONG: Objection, vague. 12 I just want to clarify, by these records 13 you mean legislative records? 14 BY MS. WEISMANN: 15 Q. Yeah, I'm trying to use shorthand so we 16 don't get so bogged down, if you don't understand my 17 shorthand, but to be clear, these records is the 18 category of records that we've been talking about 19 that are addressed in this letter. 20 A. Okay. 21 Again, I feel like in my declaration I 22 gave you our position because records management is


36 1 left up to the incumbent Vice President and, but 2 absent a clear indication from a Vice President, we 3 would treat those records as Vice Presidential 4 records, and have. 5 Q. Are you saying that an individual Vice 6 President has the discretion under the Presidential 7 Records Act not to include his legislative records? 8 MS. HONG: Objection, vague. 9 You can answer if you understand the 10 question. 11 THE WITNESS: I am saying I think there 12 probably is discretion given to a Vice President 13 under the Presidential Records Act to make that 14 determination if those records exist. 15 BY MS. WEISMANN: 16 Q. In other words, the category of 17 Congressional records that we've been talking about 18 is not by statute encompassed within the 19 Presidential Records Act? 20 MS. HONG: Objection. 21 THE WITNESS: No, that's not what I 22 said.


37 1 MS. WEISMANN: Helen, if she doesn't 2 understand the question, I'm sure she'll let me 3 know. 4 MS. HONG: I was going to object that it 5 was a misstatement of the witness' testimony. 6 MS. WEISMANN: Well then she's free to 7 correct me. 8 THE WITNESS: What I said earlier is 9 that I have a hard time as an archivist figuring out 10 what this category of records is that is separate 11 from either Vice Presidential or personal. 12 BY MS. WEISMANN: 13 Q. Okay. My questions go, if you can 14 answer them, to whether or not apart from you 15 individually NARA has taken a final position on the 16 status of records that a Vice President creates when 17 he fulfills his Constitutionally assigned 18 responsibilities as President of the Senate. 19 A. I am not aware that we have taken a 20 final position on that issue. 21 Q. Okay. Has NARA issued any written 22 guidance on that issue?


38 1 A. No. 2 Q. Has NARA had any, to your knowledge, any 3 discussions with anyone in the Office of the Vice 4 President with respect to that issue? 5 A. Yes. 6 Q. Who from NARA participated in those 7 discussions? 8 A. Well Gary and I participated in those 9 discussions. 10 Q. By Gary, you mean Gary Stern? 11 A. Yes. 12 Q. Okay. And who did you speak with at the 13 White House? 14 MS. HONG: Objection. It was a question 15 about whether you, they spoke with anyone at the 16 White House? 17 BY MS. WEISMANN: 18 Q. Well OVP, all right, I'm a little, who 19 did you speak with at OVP on that issue? 20 A. We spoke with Katie Wheelbarger, the OVP 21 counsel. 22 Q. And how many times did you have


39 1 discussions with her? 2 A. I can't give you an exact number, maybe 3 a couple -- 4 Q. And when did these -- 5 A. -- not, not -- 6 Q. When did these discussions take place? 7 A. In the last few months. 8 Q. And what was discussed? 9 MS. HONG: Objection. Privileged. I 10 will instruct the witness not to answer, although 11 actually can I just take a moment to confer with the 12 witness to ensure? 13 MS. WEISMANN: Uh-huh. 14 (Discussion off the record) 15 MS. HONG: If you could read back that 16 question. 17 (Whereupon, the reporter read the 18 record as requested.) 19 MS. HONG: I just want to caution the 20 witness that there are deliberative process 21 privileges that we do not want to tread on. 22 To the extent that you have an


40 1 understanding about the office of Vice President's 2 position on the classification of documentary 3 material that's created or received in the Senate 4 offices, you can, you may, you may convey that 5 information, but I will instruct you not to reveal 6 privileged communications. 7 BY MS. WEISMANN: 8 Q. Okay, my question went to what was 9 discussed, so that's my question. 10 MS. HONG: And -- 11 BY MS. WEISMANN: 12 Q. And what I'm asking about is what was 13 discussed between you, Gary and Katie Wheelbarger? 14 A. Wheelbarger. 15 Q. Wheelbarger, sorry. 16 MS. HONG: And the same, same objection. 17 MS. WEISMANN: What is the nature of the 18 objection? 19 MS. HONG: A deliberative process 20 privileged grounds is being lodged right now. 21 I will maintain that same objection, but 22 you may reveal, to the extent that you have an


41 1 understanding on a final position that the office of 2 Vice President has conveyed to you, you may reveal 3 that, but I will caution you not to reveal the 4 deliberative process privileged information. 5 THE WITNESS: My final understanding is 6 that legislative records are being treated under the 7 Presidential Records Act as OVP records. 8 BY MS. WEISMANN: 9 Q. And who made that decision that they 10 would, that the records would be treated in that 11 way? 12 MS. HONG: Objection to the extent 13 you -- personal knowledge, but you can. 14 BY MS. WEISMANN: 15 Q. Who made that decision? 16 A. That is the, what Katie told us. 17 Q. So that was a decision that Katie 18 Wheelbarger conveyed? 19 MS. HONG: Objection, misstates the 20 testimony. 21 BY MS. WEISMANN: 22 Q. I'm asking -- was that?


42 1 A. I'm sorry. 2 Q. How did you learn that this was the 3 final decision? 4 A. From Katie Wheelbarger. 5 Q. And who made that decision? 6 A. I don't know. 7 Q. Was it made by someone within the Office 8 of the Vice President? 9 A. Yes. 10 Q. And what is Katie Wheelbarger's position 11 there? 12 A. She's the OVP counsel. 13 Q. She's the legal counsel to the 14 President? 15 A. Uh-huh. To the O -- yes. 16 Q. Is there anyone else within either the 17 Office of the Vice President or any other part of 18 the Executive Office of the President that 19 participated in those deliberations? 20 A. I would not know. 21 Q. But your contacts was exclusively with 22 Katie Wheelbarger; is that true?


43 1 A. On that issue. 2 Q. On that issue, okay. 3 And when did Ms. Wheelbarger convey to 4 you their decision that these would be treated 5 within the PRA? 6 A. In one of the discussions we had with 7 her. 8 Q. What point in time? 9 A. It was in the last couple of months when 10 the issue was raised. 11 Q. Can you be more specific? 12 A. That's about as specific as I can be, I 13 mean it's, it was in the last couple of months. 14 Q. Was it after Crew had filed this 15 lawsuit? 16 MS. HONG: And for the record, I'll just 17 note, that was in September 8th of 2008, if you 18 recall. 19 THE WITNESS: I don't know whether it 20 was after you filed the lawsuit. It was at some 21 point when you raised the question. 22 BY MS. WEISMANN:


44 1 Q. So were these discussions initiated as a 2 result of the letter of July 21st which has now been 3 marked as Exhibit 1? 4 A. I don't know specifically whether they 5 were initiated by the letter or the lawsuit because 6 I can't remember exactly when we had the discussion. 7 Q. Okay. All right. And I just want to be 8 clear on this, do you have any understanding of who 9 within the Executive Office of the President made 10 the final decision on how these legislative records 11 would be created? 12 MS. HONG: Objection, vague. 13 THE WITNESS: No. 14 BY MS. WEISMANN: 15 Q. Okay. Does the Vice President under the 16 Presidential Records Act have discretion to 17 determine which categories of records are 18 encompassed within the Presidential Records Act? 19 MS. HONG: Objection, vague. 20 THE WITNESS: Yes, I believe he does 21 under 2203. 22 BY MS. WEISMANN:


45 1 Q. Okay. Then let's can you tell me, I'm 2 going to hand you a copy of the Presidential Records 3 Act. 4 We're not going to enter this as an 5 exhibit, but just identify for me what language in 6 2203 gives him that discretion. 7 MS. HONG: And objection, vague as to 8 the term discretion. 9 MS. WEISMANN: I mean this is really 10 getting, we're using a term that the witness herself 11 has used. I think you're going to have to confine 12 your objections or we're going to have to take it to 13 the magistrate judge. 14 THE WITNESS: Under 2203A, through the 15 implementation of records management controls and 16 other necessary actions, the President, or this 17 would apply to the Vice President, shall take all 18 such steps as may be necessary to assure that the 19 activities, deliberations, decisions and policies 20 that reflect the performance of his Constitutional, 21 statutory or other official or ceremonial duties are 22 adequately documented and that such records are


46 1 maintained as Presidential or Vice Presidential 2 records, I'm adding Vice Presidential records. 3 BY MS. WEISMANN: 4 Q. Right. 5 A. In, because 2207 applies 2203 to the 6 Vice President. 7 Q. Right. 8 A. Pursuant to the requirements of the Act. 9 Q. Okay. But my question went not to 10 specific documents, but to categories of documents. 11 Let me be even more specific, the 12 category of legislative records, what within 2203A 13 would give the Vice President the discretion to 14 decide whether or not legislative records as a 15 category are encompassed within the Presidential 16 Records Act? 17 MS. HONG: Objection, calls for a legal 18 conclusion. 19 You can ask about this witness' 20 understanding. 21 THE WITNESS: I think you'd have to take 22 2203 in combination with 2201 and if in the


47 1 Senatorial office they are creating purely records 2 of a purely political or partisan nature, those 3 clearly meet the definition of personal under 2201. 4 If they are creating records that 5 document official responsibilities of the OVP in 6 terms of his Constitutional, statutory, office or 7 ceremonial duties then in my mind those would 8 constitute Vice Presidential records. 9 BY MS. WEISMANN: 10 Q. Do the Vice President's responsibilities 11 under the Presidential Records Act differ from those 12 of the President? 13 A. Do the responsibilities differ? 14 Q. Yes. 15 A. No. 16 Q. Other than what you have identified so 17 far, are there any other functions or 18 responsibilities that the Vice President has that do 19 not have to be documented under the Presidential 20 Records Act? 21 MS. HONG: Objection, I'm not sure that 22 you've had the witness identify any functions or


48 1 activities of the Vice President yet. 2 But if you, if you understand the 3 question, you can answer it. 4 THE WITNESS: I was going to say the 5 same thing, I don't know that I've identified a 6 function. 7 BY MS. WEISMANN: 8 Q. Okay, are there any functions or 9 responsibilities that the Vice President has that do 10 not have to be documented under the Presidential 11 Records Act? 12 A. It depends on what you mean by functions 13 and responsibilities. If you're talking about his 14 function as a father, no, that does not require 15 documentation under the Presidential Records Act. 16 If you're talking about how he deals 17 with the Republican National Committee, no, that 18 does not require documentation under the 19 Presidential Records Act. 20 Q. There's no situation, no interaction 21 with the Republican National Committee that has to 22 be documented?


49 1 A. I did not say that. I said -- 2 Q. I'm asking -- 3 A. -- that -- no, the access to those 4 political materials that directly relate to or have 5 a direct affect upon carrying out Constitutional, 6 statutory, official or ceremonial duties, so it is 7 very complicated to draw clear classes, but he has a 8 right as does the President to conduct private 9 political activities. 10 It is only when they cross over into the 11 Constitutional, statutory, official or ceremonial 12 world that it would convert the records status from 13 personal to record. 14 Q. Would you agree that records that 15 reflect the comings and goings of staff, visitors 16 and workers to either the -- to the Office of the 17 Vice President or the Vice President's residence 18 would have to be preserved under the Presidential 19 Records Act? 20 MS. HONG: Objection. 21 MR. TYLER: Objection. 22 MS. HONG: This is the subject of


50 1 another lawsuit. It's outside of the scope of this. 2 MS. WEISMANN: Are you directing her not 3 to answer? 4 MS. HONG: I will instruct the witness 5 not to answer. 6 MS. WEISMANN: I think that we're going 7 to have to get soon to the point because this is a 8 category of records. The Order clearly allows us to 9 probe into categories of records. 10 MS. HONG: Anne, these visitors logs are 11 the subject of another lawsuit. 12 MS. WEISMANN: It's a category of 13 records that is encompassed within the Order. 14 MR. TYLER: Which paragraph of the Order 15 are you referring to that would bring in records 16 into this litigation? 17 MS. WEISMANN: You might want to take 18 out the Order since you seem to be at a loss. 19 MS. HONG: I have the Order right here. 20 MR. TYLER: No, your interpretation of 21 the Order is what we're lost about. 22 MS. WEISMANN: Oh, here it is, okay.


51 1 The existing, in any defendant's custody 2 and control over individual records, categories of 3 records, I mean I think it's clearly encompassed, 4 but if you're directing her not to answer, it's 5 definitely one that we will mark. 6 BY MS. WEISMANN: 7 Q. Would you agree that records that relate 8 to individuals visiting the Vice President's 9 residence for purposes of fixing broken office 10 equipment are records that would have to be 11 preserved under the Presidential Records Act? 12 MS. HONG: Same objection. Same 13 instruction. 14 MR. TYLER: This is bad faith. 15 BY MS. WEISMANN: 16 Q. Would you agree that records that relate 17 to visits to the Vice Presidential residence by 18 repair personnel would have to be preserved under 19 the Presidential Records Act? 20 MS. HONG: Same objection and same 21 instruction not to answer. 22 Anne, this lawsuit is about the


52 1 classification and I mean I hadn't seen a single 2 thing in your complaint about the visitor's logs 3 and, you know, that this is the subject of another 4 lawsuit. You can't try to gain. 5 MS. WEISMANN: I'd like the witness to 6 leave right now and let's have this discussion, but 7 I will not have this discussion. 8 Also, I must insist that only one of you 9 make objections. If you are handling the 10 deposition, then the other lawyers at the table are 11 not, it's not appropriate for them to lodge 12 objections, so we have to follow that protocol. 13 MS. HONG: Nancy, if you could just step 14 out for one moment. Thank you. 15 (Witness excused) 16 MS. WEISMANN: No, off the record. 17 MS. HONG: No, I would like this on the 18 record. 19 MS. WEISMANN: I don't care. 20 The scope of the Order clearly allows us 21 to probe into categories of records and this is 22 clearly a category of records.


53 1 It's already been identified relevant to 2 the Presidential Records Act and I think this is, 3 this has nothing to do with our other lawsuit -- you 4 know, okay, I must insist that we have, I have a 5 discussion with whoever is counsel. 6 MR. TYLER: I'm attorney of record in 7 this litigation, there's no protocol that prohibits 8 my participation in this discussion. 9 MS. WEISMANN: All right. 10 MR. TYLER: As to what is and within the 11 scope of this Order and what is without. 12 MS. WEISMANN: We are hampered by the 13 extreme lack of knowledge, public knowledge about 14 what categories of records even exist. I think this 15 is yet another category of record and I am 16 representing to you as an Officer of this Court and 17 a lawyer that I am not conducting discovery here for 18 any other purpose other than this lawsuit. 19 If you have any evidence to the 20 contrary, you're free to take that up with the 21 judge, but I am really outraged at the even 22 suggestion that I'm engaging in bad faith. There's


54 1 absolutely nothing that is bad faith about what we 2 are trying to do. If anything, I think your efforts 3 to restrict severely the scope of this deposition 4 well, well beyond what the court has authorized I 5 think have not been appropriate. 6 I think the Order clearly allows us to 7 probe what categories of records and what would be 8 the parameters of categories of records that would 9 or would not fall under the Presidential Records Act 10 and that's all we are trying to do by this line of 11 questioning. 12 So, you know, I would encourage you to 13 revisit or rethink your objections. If not, we are 14 happy to take it up to the Court. 15 MS. HONG: I think that it's clear that 16 this is the subject of ongoing litigation in another 17 lawsuit of which you are counsel for the plaintiffs 18 and -- 19 MS. WEISMANN: And what evidence do you 20 have that I am using this for that? That is a very 21 serious charge. 22 MR. TYLER: How is that relevant to this


55 1 lawsuit, how are -- 2 MS. WEISMANN: I've articulated the 3 basis for its relevance, it's a category of records 4 and we are entitled to probe on categories of 5 records. 6 MS. HONG: As far as I understand, the 7 basis for this lawsuit that you have filed in this 8 case is about classification of records that you 9 believe are not being treated under the PRA because 10 either they're created in the Senate offices or 11 because the Vice President has determined that he is 12 or your allegation that the Vice President has 13 determined that he is not part of the executive 14 branch and therefore these documentary materials are 15 not covered by the PRA. 16 MS. WEISMANN: But we have an Order from 17 the Court that doesn't describe the scope that way, 18 so while you might want the scope to be that, the 19 scope, in fact, is the six categories of inquiry 20 that the Court has laid out in the Order of 21 September 24th, 2008. And category number two 22 expressly includes the existence, the existence in


56 1 any defendants custody and control of individual 2 records or categories of records that are or are not 3 covered by the PRA. 4 MS. HONG: And I will read from the 5 Court's -- 6 MS. WEISMANN: So I think there's no 7 question that our inquiry falls within the scope of 8 category two and you haven't identified a single 9 reason or a single way in which it doesn't beyond 10 your completely baseless allegations that we're 11 trying to get discovery in another case. 12 MS. HONG: And here's, I'm going read 13 from the October 5th, 2008 memorandum, opinion from 14 the Court, page 17. 15 "The Court's expectation in crafting 16 these areas of inquiry was that plaintiff's 17 deposition questions would remain appropriately 18 cabined to areas addressing classification decisions 19 and would not stray into any impermissible creation, 20 management and disposal decisions to ensure the same 21 the Court has or had the parties to conduct the 22 depositions in the courthouse with a judicial


57 1 officer available to address any objections that may 2 arise." 3 MS. WEISMANN: How is this a creation 4 management or disposal question? 5 MS. HONG: "Quite simply," I'm 6 continuing to read from the Court's Order, "this 7 case is about defendant's classification decisions. 8 The discovery is directed to the same. The Court 9 did not use in its discovery Order the phrase 10 records management practices but rather used the 11 phrase record keeping practices as it relates to 12 defendant's interpretation and application of the 13 PRA in which may be reflected in a policies 14 practices or guidelines." 15 As the Court made clear in its Order as 16 well as the briefing that plaintiff submitted, this 17 is about any factual questions that remain and 18 linger from the declarations and I continue to 19 object to any questions that go to other pending 20 litigation. 21 MS. WEISMANN: So the nature of your -- 22 you have not identified how this, these questions


58 1 concern the creation, management or disposal of 2 records. Your objection is based solely on the fact 3 that it's the subject of a pending lawsuit? 4 MS. HONG: It's the subject of another 5 pending lawsuit. 6 MS. WEISMANN: Okay. 7 MS. HONG: And it is not the subject of 8 this lawsuit at all. 9 MS. WEISMANN: But you haven't 10 identified why it is that it's not within category 11 two of the Court's September 24th, 2008, Order. 12 MS. HONG: Because as appropriately 13 understood, the context of these discovery Orders 14 came in light of the questions that you raised and 15 claimed lingered in the declarations. 16 There are not questions or lingering 17 questions from the declarations about the status of 18 wavs records that are the subject of another 19 lawsuit. 20 MS. WEISMANN: Let's go off the record a 21 minute. 22 (Discussion off the record)


59 1 BY MS. WEISMANN: 2 MS. HONG:, If I could just put on the 3 record, there were some objections and instructions 4 not an answer regarding questions about visitor's 5 logs to the Vice President's residence. 6 The objections that we placed on the 7 record were in light of the Court's Order and we 8 believe what the appropriate interpretation of the 9 six subjects are as well as a pendency of litigation 10 in another matter. 11 That said, we will allow some latitude 12 and permit this witness to answer question, a 13 question about the classification -- classification 14 of visitor's logs to the Vice President's residence, 15 so if you still would like to pursue that question, 16 you may ask this witness. 17 MS. WEISMANN: Let's go back to the very 18 first question I asked about visitor records. Can 19 you find that. 20 (Whereupon the following portion was 21 read back: Would you agree that records that 22 reflect the comings and goings of staff, visitors


60 1 and workers to either the -- to the Office of the 2 Vice President or the Vice President's residence 3 would have to be preserved under the Presidential 4 Records Act?) 5 MS. HONG: That's compound, there are 6 two parts to that question, can we separate that 7 out, is that -- 8 (Whereupon, the reporter read the 9 record as requested.) 10 MS. HONG: The question is fine and the 11 witness can answer it as to her understanding. 12 THE WITNESS: It is my understanding 13 that the OVP residence logs that record goings and 14 comings, the generic category of those, is managed 15 under the Presidential Records Act as Vice 16 Presidential record. 17 BY MS. WEISMANN: 18 Q. And do you believe that such material, 19 by such material I mean the material encompassed in 20 this last question that was just read back to you 21 has historic or other informational value? 22 A. It depends. I'm going to put a caveat,


61 1 I believe that those that show the Constitutional, 2 statutory, official, ceremonial goings and comings 3 are managed under the Vice Presidential Records Act. 4 I don't know about those that document personal or 5 gardening or stuff like that and -- what was your 6 question? 7 MS. WEISMANN: Can you read back the 8 question. 9 (Whereupon, the reporter read the 10 record as requested.) 11 MS. HONG: I'm going to object for the 12 same reasons that I objected to the questions 13 before, but I'll allow you some latitude about this 14 witness' understanding. 15 THE WITNESS: It, it depends on what it 16 is documenting. If it's documenting bringing dirt 17 in to the OVP residence and fertilizing stuff, no, I 18 don't think it has permanent historic, evidentiary 19 or informational value. 20 BY MS. WEISMANN: 21 Q. Does the Vice President have discretion 22 to decide whether or not a particular record has


62 1 historical or other informational value? 2 A. I believe that the Presidential Records 3 Act, again in 2203, gives Vice Presidents the 4 discretion to determine what meets the threshold of 5 record. 6 Q. And does that discretion include the 7 discretion to decide which categories of records are 8 encompassed by the Presidential Records Act? 9 MS. HONG: Objection, vague. 10 THE WITNESS: It includes the discretion 11 to decide if the materials are in the personal world 12 as defined under the Presidential Records Act or if 13 they meet the definition of documentary material as 14 record as defined by the Presidential Records Act. 15 BY MS. WEISMANN: 16 Q. And when this Vice President's office 17 determined that Vice President Cheney's legislative 18 records would be sent to NARA at the end of this 19 Administration, were they exercising discretion? 20 MS. HONG: Objection, vague, ambiguous. 21 THE WITNESS: I don't believe -- clearly 22 they were exercising discretion, but I don't believe


63 1 that if -- it depends, again, on what those records 2 demonstrate. 3 It all depends on what the record is in 4 terms of whether it meets the definition. 5 BY MS. WEISMANN: 6 Q. But regardless of whether a specific 7 record -- well let me take a step back. Do you 8 understand what I mean by a category of records? 9 A. I'm not really sure I do. 10 Q. Okay. Let us call legislative records; 11 that is, those records that Vice President Cheney 12 creates in fulfillment of his duties as President of 13 the Senate legislative records, okay. 14 A. Okay. 15 Q. And let us now call that a category of 16 records, the category being legislative records. 17 A. Okay. 18 Q. Putting aside whether any particular 19 legislative record, in other words, any individual 20 record or records that was created on an individual 21 day or related to an individual event may or may not 22 be worthy of preservation, does the Vice President


64 1 have the discretion to say as a category legislative 2 records are not encompassed by the Presidential 3 Records Act? 4 A. I believe there is some ambiguity, as I 5 said in my declaration, we will treat those category 6 of records as Vice Presidential, absent a clear 7 indication from the Vice President that they should 8 be treated some other way. 9 Q. But I don't think you've answered my 10 question, which was, regardless -- in the first 11 instance, does the Vice President have the 12 discretion to say, it's a yes or no question, as a 13 category of records Vice Presidential records are 14 not included in -- are not encompassed within the 15 Presidential Records Act? 16 MS. HONG: Objection, vague. 17 BY MS. WEISMANN: 18 Q. I'm sorry, legislative records are not 19 encompassed within the Presidential Records Act? 20 A. All legislative records. 21 Q. As a category as I've now defined for 22 you what I mean by category.


65 1 A. No. 2 Q. Your answer is no, he does not have the 3 discretion? 4 A. In my mind. 5 Q. Right. So, is it your understanding 6 then going back to the terms we just defined that he 7 has the discretion to determine whether any 8 particular record within that category must be 9 preserved under the Presidential Records Act? 10 MS. HONG: Objection, vague. 11 THE WITNESS: Yes. Yes. 12 BY MS. WEISMANN: 13 Q. But as to the category of records 14 itself, he does not have that discretion? 15 A. Not if it documents Constitutional, 16 statutory, official or ceremonial duties of the OVP, 17 some of which would be incorporated in the class of 18 records you're describing. 19 Q. The legislative class? 20 A. Uh-huh. 21 Q. Okay. When the Vice President exercises 22 his discretion as to any particular record, is NARA


66 1 required to defer to that discretion? 2 MS. HONG: Objection, vague. 3 THE WITNESS: I think NARA during the 4 incumbent presidency has, the Act is very clear, he 5 gives records management up to the incumbent 6 President and Vice President. 7 BY MS. WEISMANN: 8 Q. And so what is your answer, does NARA 9 have to defer to the, to the Vice President's 10 determination are, exercise of discretion as to any 11 particular record? 12 A. I think NARA has to follow the 13 Presidential Records Act which gives NARA no 14 authority to make records management decisions for 15 incumbent Presidential and Vice Presidential 16 records. 17 Q. So what is your answer to my question? 18 MS. HONG: It's a -- 19 THE WITNESS: I think I just gave you an 20 answer. 21 BY MS. WEISMANN: 22 Q. It's a yes or no, well I asked a yes or


67 1 no question. 2 MS. HONG: I don't think it called, I 3 think there's confusion about -- 4 MS. WEISMANN: The witness has not 5 expressed any confusion. I'm going to ask the 6 question again. 7 BY MS. WEISMANN: 8 Q. Does NARA have to defer to the Vice 9 President's discretion on whether or not he 10 preserves any particular record? 11 MS. HONG: Objection, same objection. 12 THE WITNESS: I just don't see it as a 13 black and white question, so it's, I can't give you 14 a black or white answer. 15 BY MS. WEISMANN: 16 Q. Well you've been talking about 17 discretion and I think we're trying, I'm trying to 18 understand if there are limits. 19 Are there instances in which NARA does 20 not have to defer to a Vice President's exercise of 21 discretion on any particular record? 22 MS. HONG: Objection.


68 1 THE WITNESS: And what would that -- 2 MS. HONG: Objection, vague. 3 THE WITNESS: What would be not 4 deferring be? I'm, I guess I just don't understand 5 your question. 6 You keep asking me -- 7 BY MS. WEISMANN: 8 Q. Well you're the one that I think first 9 brought up discretion, so I'm trying to understand 10 what this concept of discretion encompasses. 11 A. I didn't bring it up, the Act gives a 12 Vice President and a President the records 13 management authority and I responded to some 14 question that they make the records management 15 decisions. So I'm confused as to, really not sure I 16 totally understand what you're asking. 17 Q. Okay, I'm trying to understand the term 18 that you've used. 19 Going back to the discussions that you 20 identified having with Katie Wheelbarger with 21 respect to the status of legislative records as 22 we've defined them.


69 1 A. Uh-huh. 2 Q. I want to make sure we have the same 3 understanding of that term, was the Office of the 4 Vice President exercising discretion when it 5 determined that it would preserve those records 6 under the Presidential Records Act? 7 MS. HONG: Objection, vague. 8 THE WITNESS: It was making a decision. 9 BY MS. WEISMANN: 10 Q. And is that a decision to which NARA was 11 required to defer? 12 MS. HONG: Objection, asked and 13 answered, vague. 14 THE WITNESS: NARA could certainly give 15 our input, but I think it is a cloudy area. 16 BY MS. WEISMANN: 17 Q. As you've explained the authority that 18 the Vice President has under the Presidential 19 Records Act, could the Vice President decide that 20 all documents relating to foreign policy do not have 21 to go to NARA at the end of the Administration? 22 A. No.


70 1 Q. And if the Vice President's office made 2 that decision, what, if anything, could NARA do? 3 A. If NARA knew that it was making that 4 decision, we could raise a concern to the OVP or we 5 could go to our oversight committee on the Hill. 6 Q. So going back to the beginning of this 7 Administration, almost eight years ago, have you, 8 has NARA raised any concerns with the Executive 9 Office of the President about the potential failure 10 to preserve records? 11 MS. HONG: Objection, outside of the 12 scope. Executive Office of the President or are you 13 talking about the Vice President? 14 MS. WEISMANN: Well my question first 15 goes to the Executive Office of the President. 16 MS. HONG: That's outside the scope. 17 MS. WEISMANN: Are you directing her not 18 to answer? 19 MS. HONG: To the extent, this is, this 20 seems outside of the scope. To the extent that you 21 can cabin your question to being about OVP records, 22 but, I think the witness may answer.


71 1 BY MS. WEISMANN: 2 Q. Well let's start with OVP records, have 3 there been any -- has NARA raised any concerns with 4 either the Vice President or the Office of the Vice 5 President during this Administration about its 6 failure to preserve any records? 7 MS. HONG: Excuse me, I just, about 8 failure to preserve or the classification decisions 9 that you were talking about before. 10 MS. WEISMANN: All right, we can use it, 11 let me, let's go back to my question that was 12 objected to, I just want to see how I phrased it. 13 (Whereupon, the reporter read the 14 record as requested.) 15 MS. HONG: And again, that's outside the 16 scope of this litigation. If you're talking about 17 classification -- 18 MS. WEISMANN: I haven't asked a 19 question, Helen, I just asked her to read back a 20 question. 21 MS. HONG: I'm sorry, I apologize, I 22 apologize.


72 1 MS. WEISMANN: And your speaking 2 objections are getting excessive. 3 BY MS. WEISMANN: 4 Q. Going back to the beginning of this 5 Administration in 2000, has NARA raised any 6 objection -- has NARA raised any -- has NARA had any 7 discussions with the White House about -- with the 8 Office of the Vice President or the Vice President 9 about its failure to preserve any categories of 10 records? 11 A. Its failure to preserve? 12 Q. Yes, its failure to, yes, its failure to 13 preserve any categories of records? 14 A. Okay I just want to be sure I understand 15 your question. Has NARA raised any concern with the 16 OVP about its failure -- 17 Q. Or the Vice President, yes? 18 A. Huh? 19 Q. Or the Vice President? 20 A. Or the Vice President about its failure 21 to preserve records? 22 Q. Correct.


73 1 A. No. 2 Q. No, to preserve categories of records? 3 A. To preserve -- no -- wait. I'm sorry. 4 I'm just not sure I understand your question. 5 About its failure to preserve categories 6 of records. 7 Q. Any specific category of records. 8 I mean you've identified discussions 9 that you had with the Vice President's office 10 relating to legislative records. 11 A. Right. 12 Q. Have you had any comparable discussions 13 relating to any other categories of records, by 14 comparable, I mean, by discussions I mean either 15 with the Office of the Vice President or the Vice 16 President? 17 A. Well, to go back on the legislative 18 records that I identified, it was whether they were 19 preserving them as Vice Presidential records. 20 Q. Correct. 21 A. So now is the question have we had any 22 discussions with the Vice President or the OVP staff


74 1 about other categories of documents. 2 Q. Yes. 3 A. Being preserved as Vice Presidential 4 records. 5 Q. Correct. That's the question. 6 A. Yes. 7 Q. And what were -- let's talk about the 8 first such discussion, when was that? 9 A. Let me ask you one more thing because 10 I'm trying to understand your question. 11 Are you asking categories, because I'm 12 thinking specific, so are -- 13 Q. Well what do you mean by specific? 14 A. Well, are you asking me if we've ever 15 talked about specific documents or categories, 16 general categories. 17 Q. Well the question goes to categories of 18 documents. 19 A. No. 20 Q. Okay. 21 A. So I'm changing my answer. 22 No, I do not believe we have, as I


75 1 understand the question and I will put the caveat 2 that I am truly not sure I understand your question. 3 Q. All right. I'm going to think about how 4 I can -- 5 Does NARA have a role to play in 6 specific decision or determination that the OVP or 7 the VP makes about whether or not to preserve a 8 specific document? 9 A. About whether or not -- 10 Q. Whether or not to preserve a specific 11 document. 12 MS. HONG: Objection, vague. 13 THE WITNESS: Well NARA has a 14 determination under the Act if it thought that an 15 OVP was disposing without asking the archivist views 16 of Vice Presidential record because he's supposed to 17 come in and ask for written view. 18 BY MS. WEISMANN: 19 Q. And if the Vice President failed to do 20 that, what would, is that what, the process you were 21 describing earlier -- 22 A. Yeah.


76 1 Q. -- that you would go -- 2 A. That's the process that's described in 3 the Act. 4 Q. Okay. 5 A. It is going to be -- let's see. It's in 6 2203 C. 7 Q. Okay. Other than the category, the 8 legislative categories of records that we've already 9 discussed, are you aware of any other individual 10 records that either the OVP or the Vice President 11 considers not to be covered by the Presidential 12 Records Act? 13 MS. HONG: Objection, vague, and you're 14 talking. 15 MS. WEISMANN: It's directly from the 16 Order. 17 MS. HONG: You're talking about a 18 specific document? 19 MS. WEISMANN: Yes. 20 MS. HONG: Objection, this is about 21 classification of categories of records. 22 MS. WEISMANN: I would draw your


77 1 attention to number 2 which specifically states that 2 we're allowed to inquire into the existence and any 3 defendant's custody or coal control of individual 4 records or categories of records that are or are not 5 covered by the PRA. 6 My question is expressly encompassed by 7 the Order. 8 MS. HONG: And you're asking whether she 9 has an understanding -- 10 MS. WEISMANN: The question stands. 11 MS. HONG: Can you read back the 12 question, please. 13 (Whereupon, the reporter read the 14 record as requested.) 15 MS. HONG: Objection, vague. 16 MS. WEISMANN: It's expressly from the 17 Order and I really have to object on my end to your 18 continuing objections to questions that I think are 19 crystal clear. 20 BY MS. WEISMANN: 21 Q. Anyway, having had the question read 22 back, what is your answer?


78 1 A. Personal is defined in the Presidential 2 Records Act. 3 Q. Okay. Are you aware of any individual 4 records, individual records that this Vice President 5 or office of Vice President believe are not covered 6 by the Presidential Records Act? 7 MS. HONG: Same objection. 8 THE WITNESS: I thought I just answered 9 that. 10 BY MS. WEISMANN: 11 Q. No, you answered as to categories. 12 I'm asking you if you know whether or 13 not there are any individual records, specific 14 individual records that either the OVP or the Vice 15 President deem not covered by the PRA? 16 MS. HONG: And, Anne, maybe, there may 17 be confusion, she answered about personal, I mean 18 are you talking, she answered that there are 19 personal records? 20 MS. WEISMANN: There's no confusion, I'm 21 asking a question, I'd like her to -- 22 THE WITNESS: Personal.


79 1 MS. WEISMANN: Before you interrupt, she 2 does get to answer my question. 3 If you have an objection, you can make 4 an objection, but you cannot continue to interrupt 5 my questions. 6 THE WITNESS: Personal. 7 BY MS. WEISMANN: 8 Q. Okay, but are you aware of any 9 individual record, any individual personal record? 10 MS. HONG: Same objection. 11 THE WITNESS: The specific, do I know 12 specifically have I seen the substance, no, because 13 NARA doesn't see incumbent -- 14 BY MS. WEISMANN: 15 Q. Have you been made aware of the 16 existence of any individual records that either the 17 Office of the Vice President or the Vice President 18 consider not to be covered by the Presidential 19 Records Act? 20 MS. HONG: Same objection. 21 THE WITNESS: I think I've answered the 22 question.


80 1 BY MS. WEISMANN: 2 Q. Well I don't have a -- I need you to 3 answer my question. 4 MS. HONG: She -- 5 THE WITNESS: Personal as defined under 6 the Presidential Records Act. 7 BY MS. WEISMANN: 8 Q. Right and my question was are you aware 9 of any individual specific personal records that 10 the, either the Vice President -- or the Office of 11 the Vice President or the Vice President consider 12 not to be covered by the PRA? 13 MS. HONG: Asked and answered. 14 THE WITNESS: Given that I do not, NARA 15 does not see the substance of incumbent records, 16 I've given you the best answer I can give you. 17 MS. WEISMANN: There was a question I 18 asked some questions ago in which she answered that 19 it was as to whether or not they had had any other 20 discussions with the White House. 21 Can you get that question. It was the 22 one where she changed her answer and said no, first


81 1 said yes and then said no. 2 MS. HONG: Based on a misunderstanding 3 of the question. 4 MS. WEISMANN: Right. 5 (Whereupon, the reporter read the 6 record as requested.) 7 BY MS. WEISMANN: 8 Q. What other comparable discussions did 9 you have when you initially answered that question 10 yes, what discussions were you referring to? 11 A. We have had a discussion on some, on a 12 classified document. 13 Q. And was it a specific document? 14 A. It was a specific document. 15 Q. And with whom did you discuss that? 16 A. We discussed that with Katie 17 Wheelbarger. 18 Q. And were you part of those discussions? 19 A. That's what I'm, I'm trying to remember 20 whether I was part of the discussion or heard about 21 the discussion. 22 Q. And how --


82 1 A. I cannot remember that. 2 Q. Okay, and how did the issue even 3 tomorrow to NARA's attention? 4 A. We read an item in the paper that 5 brought it to our attention. 6 Q. And then you contacted the Office of the 7 Vice President? 8 A. That is correct. 9 Q. Okay. Are there any instances in which 10 you've raised issues, these issues with the 11 oversight committee? 12 A. No. These issues, what issues? 13 Q. Well concerns, I'm sorry, comparable 14 concerns about specific -- 15 A. Categories of records. 16 Q. Yes, yes, or individual records? 17 A. No. 18 Q. So the only instances then were the 19 legislative records we discussed and then this 20 instance of a classified document? 21 MS. HONG: I'm sorry, objection, only 22 instances of what --


83 1 THE WITNESS: Yes. 2 BY MS. WEISMANN: 3 Q. In which you had discussions with the 4 Office of the Vice President concerning -- with 5 voicing concerns about records? 6 A. Voicing concerns about -- 7 Q. Well that's what we've been talking 8 about, you used? 9 A. Now the question is has NARA had any 10 discussions with the OVP's -- or the Vice President 11 about issues dealing with records; is that the 12 question. 13 Q. Well that's a good question. 14 It wasn't the specific question, but 15 other than the discussions you've identified, have 16 you had, what other conversations have you had with 17 the Office of the Vice President with respect to the 18 treatment of Vice President Cheney's records? 19 A. We have had several discussions with the 20 Vice President's staff about Vice Presidential 21 records. 22 Q. And when was the first of those


84 1 discussions? 2 A. Probably -- it wasn't simply with the 3 OVP, it was at the beginning of the Administration 4 with Presidential and there was a member of the OVP 5 staff in those discussions. 6 Q. And who was that? 7 A. Who was the member. 8 Q. The OVP, yes? 9 A. David Addington. 10 Q. And when did that discussion take place? 11 A. At the beginning of the Administration. 12 Q. And what was discussed? 13 A. What we discussed is that it's NARA's 14 traditional discussion to get together with the 15 incoming Administration to discuss responsibilities 16 under the Presidential and Vice Presidential Records 17 Act, sort of a briefing. 18 Q. It was NARA offering a briefing to the 19 Executive Office of the President? 20 A. It was our offering and their accepting. 21 Q. No I mean but you were doing -- NARA was 22 doing the talking, that's what I'm trying to


85 1 understand? 2 A. Well when NARA goes over to the White 3 House, there's always a two-way dialogue. 4 Q. Okay, so what was discussed? 5 A. It was general things, we will be 6 interacting with you in terms of the Presidential 7 Records Act and for the records of former presidents 8 in the following ways and this is, you know, the 9 more you can do to document your records from the 10 beginning, the easier the job is for all of us. It 11 would have been dealing with all sorts of generic 12 record keeping guidance. 13 Q. And did NARA provide them, the White 14 House, I use the White House shorthand which I 15 gather is objectionable, so I'm trying to think of a 16 term that's going to be comprehensive enough, how 17 would you describe this collection of individuals 18 that you met with as a category? 19 A. The White House. 20 Q. All right. So for this purpose, I'm 21 going to use that term as well so we both understand 22 what it means.


86 1 Did NARA provide the White House with 2 any written guidance? 3 A. Well, what we, I don't know if it was at 4 this meeting or for the transition team, but we 5 provided and have provided a little pamphlet we did 6 on guidance on Presidential Records Act for the 7 incoming Administration. 8 Q. And does it offer any specific guidance 9 as to Vice Presidential records? 10 A. I can't remember. It may say that it -- 11 it, it, I believe it does say that Vice Presidential 12 records are covered and 2207 applies to the Vice 13 President, so I, I think we do. 14 Q. And does there exist at NARA any written 15 record of this meeting taking place? 16 A. No, not that I know of. 17 Q. Okay. And when was the next time that 18 you had discussions with the White House? 19 A. On records issues? 20 Q. On this topic, yes. 21 MS. HONG: Wait, objection, White House 22 including the office of Vice President?


87 1 MS. WEISMANN: Yes, as we, we have 2 already defined it. 3 MS. HONG: For that specific meeting, 4 but other -- 5 MS. WEISMANN: No, I said it was going 6 to be -- 7 BY MS. WEISMANN: 8 Q. Well, White House as we just defined it 9 for the last question. 10 A. We -- 11 Q. I'm going to ask to a series of 12 questions I'm going to refer to the White House and 13 that's, I want to make sure we're on the same page. 14 I mean it's a term that you agreed would be 15 appropriate. 16 MS. HONG: For that meeting. 17 MS. WEISMANN: I get to ask the 18 questions, Helen, not you. 19 MS. HONG: Well I would object to the 20 use of that term for future -- 21 MS. WEISMANN: Well we have a common 22 understanding, so, I mean, your objection is noted.


88 1 MS. HONG: Okay. 2 THE WITNESS: We have an ongoing 3 relationship to give guidance on issues as asked on 4 a range of issues, including textural, electronic, 5 audio visual and artifact. 6 So, I mean it's, it's part of our job. 7 MS. WEISMANN: Okay, we're going to come 8 back to that. 9 BY MS. WEISMANN: 10 Q. During the course of this 11 Administration, has anyone at the White House as we 12 have been using that term generated any written 13 documents concerning what Vice Presidential records 14 must be preserved? 15 MS. HONG: Objection, personal 16 knowledge. 17 THE WITNESS: They generated more 18 generic guidance on what documents need to be 19 preserved under the Presidential Records Act. 20 BY MS. WEISMANN: 21 Q. Okay. And what, can you outline for me 22 what specific guidance you're aware of?


89 1 A. Guidance issued by Judge Gonzales, 2 reissued by Harriet Meyers and I think reissued 3 recently by Mr. Fielding. 4 Q. And was in each instance was this 5 guidance expressed in a memorandum? 6 A. Yes. 7 Q. And who was the memorandum directed to? 8 A. To White House staff. 9 Q. In each instance? 10 A. Yeah. Yes. It's a generic designation. 11 Q. And prior administrations have also 12 issued guidance along those lines, have they not? 13 A. Yes. 14 Q. And did this guidance differ in any way 15 from guidance of prior administrations? 16 MS. HONG: Objection to the extent that 17 this gets into the substance of those 18 communications, those would be covered by privilege, 19 so I don't. 20 MS. WEISMANN: What privilege are you 21 specifically identifying? 22 MS. HONG: From counsel to its staff,


90 1 guidance that counsel sent to staff. 2 BY MS. WEISMANN: 3 Q. Have you seen this guidance? 4 MS. HONG: It may have been a part of 5 the deliberative process -- 6 MS. WEISMANN: Well you can't just make 7 an objection, you have to identify the basis for 8 your objection. 9 MS. HONG: Privilege. 10 MS. WEISMANN: Which privilege? 11 MS. HONG: Attorney/client privilege, 12 deliberative process privilege, executive privilege. 13 MS. WEISMANN: Executive privilege? 14 MS. HONG: Presidential communications 15 privilege. 16 MS. WEISMANN: Really. 17 BY MS. WEISMANN: 18 Q. Have you seen this guidance? 19 A. Yes. 20 Q. Okay. Do you still want to continue 21 with your okay, your privileged objections? 22 MS. HONG: I'm, if I could, I'm not sure


91 1 if she, what she saw, whether it was part of the 2 deliberative process. 3 BY MS. WEISMANN: 4 Q. Well let's, you describe for me what, 5 are we talking about three separate memoranda? 6 A. I know we're talking about at least two 7 separate memoranda. 8 Q. Okay. And these are written memoranda 9 and they were issued by White House counsel and were 10 they issued to the entirety of the White House 11 staff? 12 A. I think so. 13 Q. And it offered guidance on how to 14 implement the Presidential Records Act; is that 15 correct? 16 MS. HONG: Objection. Privileged. If 17 you're getting into the substance of the 18 communications, I'm objecting on privileged grounds. 19 MS. WEISMANN: Are you directing her not 20 to answer? 21 MS. HONG: And I will instruct the 22 witness, well if you give me a moment, let me confer


92 1 with my witness to find out what -- 2 MS. WEISMANN: Okay. 3 (Discussion off the record) 4 MS. HONG: If you could read back the 5 question, I'll lodge my objection. 6 (Whereupon, the reporter read the 7 record as requested.) 8 MS. HONG: I will object it gets into 9 deliberative processed privileged information and 10 the question about this guidance or guideline is 11 outside of the scope of the discovery that's been 12 permitted which goes to Vice Presidential records as 13 opposed to the President's functions and the 14 President's records, themselves, and I will instruct 15 the witness not to answer on the grounds of 16 deliberative process privilege. 17 BY MS. WEISMANN: 18 Q. Okay, Ms. Smith, am I correct that you 19 stated easterly why earlier that this guidance 20 covered both the Office of the Vice President as 21 well as Presidential records? 22 A. No, I said it thought it did. I'm not


93 1 sure. 2 Q. Okay. But to the extent that it did, 3 there's no question it would be within the scope. 4 And this was guidance that was being 5 offered by White House counsel; is that correct? 6 A. Yes. 7 Q. And it reflected the legal opinion of 8 the White House counsel as to what the Presidential 9 Records Act required; is that correct? 10 MS. HONG: Objection. This gets into 11 the substance of the communication and what the 12 communication was. 13 MS. WEISMANN: It doesn't get at all 14 into the substance. I'm just trying to understand 15 if it reflected a final legal determination from the 16 White House counsel as to what the, what the 17 Presidential Records Act required. I'm not asking 18 about what specifically this memo said. 19 MS. HONG: I will, it does get into the 20 substance of the memorandum and I will instruct the 21 witness not to answer that question on the basis of 22 deliberative process privilege.


94 1 MS. WEISMANN: Okay, without that 2 question I see no foundation for your objection 3 because it is not at all clear whether or not this 4 is a final decision. 5 There's nothing deliberative when the 6 legal counsel is opining about the interpretation of 7 a Presidential Records Act. 8 BY MS. WEISMANN: 9 Q. So, I go back and ask the question, is 10 it your understanding that these memos reflected a 11 determination, I'm not asking you what that 12 determination was, I'm not asking you the substance, 13 did they reflect a determination by White House 14 counsel as to what the Presidential Records Act 15 required? 16 MS. HONG: Same objection. 17 MS. WEISMANN: Are you directing her not 18 to answer? 19 MS. HONG: Can I have that question read 20 back. 21 (Whereupon, the reporter read the 22 record as requested.)


95 1 MS. HONG: I'm going to instruct the 2 witness not to answer that question on the basis 3 that it's outside of the scope of the permitted 4 discovery. There has been no foundation laid that 5 this document reflects anything about office of Vice 6 President or Vice Presidential records. 7 MS. WEISMANN: She testified that it was 8 her recollection that it addressed Vice Presidential 9 records. 10 MS. HONG: That misstates her testimony. 11 MR. TYLER: No, misstates her testimony. 12 MS. WEISMANN: Wait, who's making the 13 objection here? 14 All right, can we read back, I think it 15 was a few questions ago where her answer was on 16 whether or not it dealt with Vice Presidential. 17 (Whereupon, the reporter read the 18 record as requested.) 19 BY MS. WEISMANN: 20 Q. Was the memorandum directed to all 21 offices at the White House, all offices within the 22 Executive Office of the President?


96 1 A. That is my memory. 2 Q. Okay. And that would include the Office 3 of the Vice President? 4 A. That I can't remember. I, I think it 5 did, but I'm not sure. 6 Q. Okay. And are you aware of any separate 7 guidance that was issued expressly to the Office of 8 the Vice President? 9 A. No. 10 Q. And do you recall whether or not this 11 memo went to individuals within the Office of the 12 Vice President? 13 MS. HONG: Asked and answered. 14 MS. WEISMANN: I'm entitled to probe to 15 get, help her recollect. 16 THE WITNESS: No, I don't, that, that's 17 not how I remember the memo being addressed. It was 18 addressed to various White House components. It 19 wasn't addressed to named people. 20 BY MS. WEISMANN: 21 Q. Right, okay. Fair enough. All right. 22 So, given your recollection that you


97 1 initially thought it did cover the Office of the 2 Vice President or you just don't remember for 3 certain? I'm trying to pin down what the nature of 4 your memory is. 5 A. I think it does, I think it did go to 6 the -- but I'm not sure. 7 MS. WEISMANN: Okay, I think it's within 8 the scope. Are you still directing her not to 9 answer a question about whether it reflected a final 10 decision? 11 MS. HONG: I am. 12 MS. WEISMANN: Okay. We'll 13 definitely -- 14 MS. HONG: And in part because also the 15 fact that it went to the Office of the Vice 16 President does not mean that it has anything to do 17 with Vice Presidential records. 18 MS. WEISMANN: I think you're getting 19 ridiculous. 20 MR. TYLER: And do you know where we 21 are -- 22 BY MS. WEISMANN:


98 1 Q. Are you aware of any other -- 2 MR. TYLER: Excuse me, it's now 12:25, 3 my stomach is grumbling, what's your schedule here 4 to how much longer do you have? 5 MS. WEISMANN: Well with the continuing 6 objections, we have not covered very much ground, 7 so -- 8 MR. TYLER: When do you contemplate 9 breaking is my question. 10 MS. WEISMANN: I really think it's up to 11 the court reporter since she's the one that works 12 the hardest. 13 I'm open, I mean we can go until 1 if 14 you prefer to stop sooner, that's fine, but I would 15 say that we have a fair amount of material still to 16 cover, so. 17 MR. TYLER: When would you like a break? 18 THE WITNESS: Why don't we go until 1. 19 MS. WEISMANN: Okay. 20 BY MS. WEISMANN: 21 Q. With the exception of this General 22 Counsel memoranda that there might have been two or,


99 1 there were two and probably three iterations of, are 2 you aware of any other written documentation that 3 has been generated at the White House as we've 4 defined White House that would include the 5 obligations of the Office of the Vice President 6 under the Presidential Records Act? 7 A. No. 8 Q. Are you familiar with Executive Order 9 13233? 10 A. Yes. 11 Q. And are you familiar with Section 11 of 12 that provision which refers to the executive records 13 of the Vice President? 14 A. I know there is a section that refers to 15 the Vice President, but I'm not, I don't remember. 16 It's been a long time since I looked at that 17 specific provision EO 13233. 18 Q. I will represent to you and this is in 19 our complaint as well that Executive Order 13233 20 uses the term expressly executive records of the 21 Vice President. 22 Does that sound familiar to you?


100 1 A. Yes. 2 Q. Okay. And what is your understanding of 3 records that are not encompassed by the term 4 executive records of the Vice President? 5 MS. HONG: Objection, vague. 6 THE WITNESS: I'm, I'm not sure I 7 understand what executive records of the Vice 8 President means. 9 BY MS. WEISMANN: 10 Q. Okay. You have no general understanding 11 of what the executive records of the Vice President 12 means? 13 A. To me it's another term for Vice 14 Presidential record. 15 Q. Have you ever seen any guidance that, 16 written or other written documentation that 17 discusses or refers to this provision of the 18 executive Order and by the executive Order I mean 19 the executive Order 13233? 20 MS. HONG: And I'll just caution the 21 witness not to get into any deliberative processed 22 privileged communication.


101 1 BY MS. WEISMANN: 2 Q. The question asks for whether or not you 3 have seen any documents or guidance? 4 MS. HONG: And that would reveal -- 5 THE WITNESS: I have not seen any 6 documents that defines that provision of the 7 executive Order. 8 BY MS. WEISMANN: 9 Q. Okay. My question didn't go just to 10 definition, though, that defines or refers or 11 discusses. 12 MS. HONG: Objection, vague. 13 A. THE WITNESS: I have seen documents 14 that -- can I see the Executive Order provision? 15 BY MS. WEISMANN: 16 Q. I actually -- 17 A. I think you've got it right there. 18 Q. Yes, I do have it. And I would refer 19 you to Section 11. 20 A. (Witness examining document) 21 Q. And I'm referring specifically to the 22 first sentence of Section 11 A.


102 1 A. Pursuant to Section 2207 Title 44 of the 2 United States Code the Presidential Records Act. 3 Q. The Presidential Records Act applies to 4 the executive records of the Vice President. 5 A. Okay. So could you repeat your 6 question. 7 MS. WEISMANN: Can you read it back? 8 (Whereupon, the reporter read the 9 record as requested.) 10 MS. HONG: Same objection and caution, 11 cautionary instruction. 12 THE WITNESS: I have not seen any 13 documents that I can remember that deal with the 14 first two sentences of Section 11A. 15 BY MS. WEISMANN: 16 Q. Have you had any discussions with anyone 17 at the White House as we defined that term earlier 18 with respect to the meaning of the term executive 19 records of the Vice President in Executive Order 20 13233? 21 A. I personally have not had any 22 discussions.


103 1 Q. Are you aware of whether or not anyone 2 else at NARA has had those discussions? 3 A. If you were specifically asking about 4 the first two sentences, no I'm not aware. 5 Q. I'm asking, just to be clear, I'm asking 6 about the meaning of the term executive records of 7 the Vice President as used in the executive Order. 8 A. I'm not sure that that was subject of a 9 discussion. I don't, I know we have had discussions 10 on other parts of Section 11, whether it was about 11 the term executive records or not is what I do not 12 know. 13 Q. And have you participated in any 14 discussions within NARA about the meaning of the 15 term executive records of the Vice President as used 16 in this executive order? 17 A. Not that I remember. 18 Q. Okay. To your knowledge, has NARA in 19 any way changed its treatment of Vice Presidential 20 records based on this inclusion of the term 21 executive records of the Vice President in the 22 executive Order?


104 1 A. Not that I'm aware of because that part 2 of the executive Order simply says they're covered 3 under the Presidential Records Act as Vice 4 Presidential records. 5 Q. For purposes of implementing the 6 Presidential Records Act, does NARA differentiate 7 between the Vice President and the Office of the 8 Vice President? 9 A. No. For purposes of implementation of 10 the Act, does NARA differentiate between the office 11 and the Vice President? 12 Q. Correct, that's my question. 13 A. No. 14 Q. To your knowledge, does anyone within 15 the White House as we've defined that term 16 differentiate between the Vice President and the 17 Office of the Vice President for purposes of 18 implementing the Presidential Records Act? 19 A. Not to my knowledge. 20 Q. What role does the White House Office of 21 Records Management play in managing the records of 22 the Vice President?


105 1 MS. HONG: If any. 2 THE WITNESS: Pardon? 3 MS. HONG: I'm sorry, objection, 4 presumes facts not in evidence. 5 THE WITNESS: The White House Office of 6 Records Management in this Administration has 7 managed the unclassified OVP records. 8 BY MS. WEISMANN: 9 Q. Is it your testimony that the White 10 House Office of Records Management manages all the 11 entirety of the unclassified records that the Vice 12 President and the Vice President's Office create? 13 MS. HONG: Objection, vague. 14 THE WITNESS: No. 15 BY MS. WEISMANN: 16 Q. What is -- 17 MS. WEISMANN: Okay, let's go back, can 18 you go back and read her prior answer. 19 (Whereupon, the reporter read the 20 record as requested.) 21 BY MS. WEISMANN: 22 Q. Okay, what is encompassed within your


106 1 term unclassified OVP records? 2 A. It is what is retired by the OVP to the 3 Office of Records Management. The Office of Records 4 Management manages those records that are retired 5 during an Administration either individually or by 6 staff members and offices. 7 So, if it's ongoing records that come at 8 the end of the Administration, they're not currently 9 managing those records. 10 Q. Okay. Would you define for me what you 11 mean by retired records? 12 A. When staff sends something down to the 13 White House Office of Records Management, they make 14 a decision that they no longer need that item to, on 15 a daily basis to conduct current business. 16 Q. And is it your understanding then that 17 with the exception of classified documents, all 18 other retired documents from either the Vice 19 President or the Office of the Vice President are 20 managed by the White House Office of Records 21 Management? 22 A. It is my understanding that the Office


107 1 of the Vice President has retired Vice Presidential 2 records through the office of White House -- Office 3 of Records Management, unclassified -- 4 Q. And do you know, hold it, do you know if 5 there are other records that they have retired, 6 other non-classified records that the Office of the 7 Vice President has retired that are not being 8 managed by the White House Office of Records 9 Management? 10 A. Yes. 11 Q. And who is managing those records? 12 A. Well, traditionally in the White House, 13 the White House photo office manages White House 14 photos, so from, we will get things directly from 15 the White House photo office, WHCA, White House 16 Communications Agency manages the audio and visual 17 recordings of the Vice President, so, there are 18 other offices that create records that we deal with 19 directly. 20 Q. Okay. But let's focus for the moment on 21 the Office of the Vice President. 22 Are you aware of any other


108 1 non-classified records that the Office of the Vice 2 President has retired that are not being managed by 3 the White House Office of Records Management. 4 A. I thought I just said yes. 5 Q. So the White House communications office 6 would be considered part of the Office of the Vice 7 President? 8 A. No, they. 9 Q. I guess I misunderstood your answer. 10 A. The way there -- you're asking me 11 records. WHCA manages audio visual, audio and 12 visual recordings for the President and the size 13 President. 14 Q. Okay, I -- okay. 15 A. The photo office has -- 16 Q. Right. 17 A. -- a component that manages Vice 18 Presidential and Presidential photos. 19 Q. Right, okay. 20 A. The gift office has the OVP has someone 21 who retires artifacts. 22 Q. Right. And with those exceptions, are


109 1 there any other records, unclassified records of the 2 Office of the Vice President that are not being 3 managed by the White House Office of Records 4 Management? 5 MS. HONG: Objection, vague. 6 Are we talking, I don't think you -- 7 retired records? Can you read back that question? 8 (Whereupon, the reporter read the 9 record as requested.) 10 BY MS. WEISMANN: 11 Q. Retired records, that's what we had been 12 talking about. 13 A. I'm just trying to think of the 14 different offices we -- that are component out. 15 I know that the White House Office of 16 Records Management manages unclassified, some 17 unclassified OVP records. I am not aware of what 18 all that world encompasses. 19 Q. Okay. Does the White House Office of 20 Records Management manage any retired records that 21 come from the Vice President? 22 A. Management.


110 1 Q. Any retired records that come from the 2 Vice President? 3 A. I don't know if they manage every 4 retired. 5 Q. No, I know, but we were talking about 6 the Office of the Vice President and now I'm 7 focusing on the Vice President himself. 8 Are you aware of any records that the 9 Vice President has retired that are being managed by 10 the White House Office of Records Management? 11 MS. HONG: Objection, vague, and 12 assumes, I mean I'm not sure -- 13 MS. WEISMANN: I'm asking a question. 14 THE WITNESS: I don't make a distinction 15 between the OVP and the Vice President. 16 BY MS. WEISMANN: 17 Q. Right, but I am making that distinction. 18 A. I know, then I would have to say I don't 19 know. 20 Q. So you're not aware of any? 21 A. Right. 22 Q. Okay. And who manages?


111 1 MS. HONG: Wait, I'm not sure that 2 that's the answer -- 3 THE WITNESS: Wait, wait, what is it, 4 how did you take my answer to that? 5 BY MS. WEISMANN: 6 Q. Well I just said you're not aware of 7 any. 8 A. I'm not aware of any Cheney documents 9 that are carved out and are not being managed by the 10 Office of the Vice President. 11 Is that what you thought I was saying? 12 Q. That wasn't my question, but? 13 A. Well that's what I'm saying. 14 Q. Okay, that's fine. 15 A. Okay. 16 Q. Who manages the classified documents 17 that have been retired by either the Office of the 18 Vice President or the Vice President? 19 A. The Vice President has a National 20 Security Advisor and we will pick up those records 21 from that office. 22 Q. To your knowledge, is the White House


112 1 Office of Records Management managing any records of 2 the Office of the Vice President or the Vice 3 President that have not yet been retired? 4 A. No. 5 MS. WEISMANN: Let's take a five-minute 6 break. 7 (Lunch Recess 12:42 p.m.) 8 11/10/08. ) Back on record 141 p.m. ) 9 BY MS. WEISMANN: 10 Q. Other than the meeting you described 11 earlier with personnel from the Office of the Vice 12 President and in which David Addington was present, 13 have you had any other communications with 14 Mr. Addington with respect to record keeping issues? 15 A. Yes. 16 Q. And what were those communications? 17 A. We talked with him about how, where the 18 materials would be based in Washington, DC, after 19 the end of the Administration. 20 Q. When you say materials, what are you 21 referring to? 22 A. The Vice Presidential records and


113 1 artifacts. 2 Q. And when did that conversation happen, 3 was this a conversation or a written exchange? 4 A. Well it was a meeting, I mean he came 5 over to the archives. 6 Q. Okay and when did that happen? 7 A. I guess that happened about sometime in 8 the Summer. I'm not. 9 Q. Of what year? 10 A. This year. 11 Q. 2008? 12 A. Uh-huh. 13 Q. And who else was present at that 14 meeting? 15 A. Gary Stern and, were you there, Jason? 16 Q. He can't answer. 17 A. Gary, myself, a senior member of my 18 staff, John Lassiter, Sharon Foster, head of 19 Presidential Libraries and I think that -- and I 20 think that's pretty much it. 21 Q. And did anyone come with David Addington 22 from the White House?


114 1 A. Liz Cheney came with David Addington. 2 Q. And in what capacity did she come? 3 A. She came in a private capacity. 4 Q. Okay. Would you explain what that is, 5 private capacity? 6 A. Well, she, she came because she's 7 designated his representative under the Presidential 8 Records Act at the end of the Administration. 9 Q. Okay. Earlier in the deposition I think 10 I used the term private representative to refer to 11 someone who was representing former Vice President 12 and you objected to that term and yet isn't that the 13 capacity that you're now describing Ms. Cheney? 14 MS. HONG: Objection, argumentative. 15 THE WITNESS: I don't view the 16 representatives that are designated under the 17 provisions of the Presidential Records Act, NARA has 18 always called them the legal representatives. 19 Q. Okay. 20 A. Of the former Presidents or Vice 21 Presidents. 22 Q. Okay. And was that the capacity in


115 1 which Liz Cheney came over to this meeting as a 2 legal representative? 3 A. She came over to the meeting because she 4 is going to be designated that. 5 Q. But she does not yet have that 6 responsibility? 7 A. She's not, to my knowledge, she's not 8 doing anything on that issue. She's preparing to do 9 something on that issue. 10 Q. Okay. And other than discussing where 11 the physical location for Vice President Cheney's 12 records would be, was there anything else discussed 13 at that meeting? 14 A. Just how we would respond to requests, 15 how Liz could have access, just general how will 16 this work. 17 Q. Uh-huh. Did you learn anything as a 18 result of that meeting about the substance of the 19 Vice President's records? 20 A. . 21 MS. HONG: Objection, vague. 22 THE WITNESS: I just learned that they


116 1 were working on arranging them so that they would be 2 easy to retrieve. 3 BY MS. WEISMANN: 4 Q. And do you have any additional 5 understanding beyond that description of how the 6 Vice President's records will be arranged? 7 A. Well because they're being sent, the 8 first Vice Presidential records to go through the 9 White House Office of Records Management, we, the 10 Office of Records Management will enter folder title 11 lists into a descriptive finding aid that we use so 12 they'll be more, they'll be easier to find. 13 Q. Okay, but at this point in time, do you 14 have any greater understanding of specifically what 15 the substance of the Vice President's records are 16 that will be coming over? 17 A. From that particular meeting?? 18 Q. Right. 19 A. No. 20 Q. Okay. Do you have any other 21 communications with David Addington other than those 22 two meetings?


117 1 A. Yes. 2 Q. And would you describe what those are? 3 A. Well, it, it was through Katie 4 Wheelbarger and it was for passing to courtesy 5 storage some classified records. 6 Q. And what was David Addington's 7 involvement in that process? 8 A. He is the one who holds those records. 9 Q. Okay, these were records that were 10 currently in David Addington's possession? 11 A. In the, I don't know if they were -- I 12 don't know if they were currently in his possession 13 or if he was retiring them. 14 Q. Okay. And when, what was the purpose of 15 this meeting? 16 A. Well it wasn't a meeting. 17 Q. Okay. 18 A. It was a discussion. 19 Q. And did it happen by phone or E-mail? 20 A. It happened by phone through Katie 21 Wheelbarger. 22 Q. Okay.


118 1 A. Okay. 2 Q. And what was the purpose again? 3 A. To make sure that we held the requisite 4 national security clearances to receive the 5 materials. 6 Q. Okay. And were these records, in fact, 7 sent over to NARA for courtesy storage? 8 A. Yes. 9 Q. And where are they now? 10 A. They're in a skiff. 11 Q. At NARA? 12 A. Uh-huh. 13 MS. HONG: You'll have to do a yes or no 14 answer, I'm sorry, you said uh-huh. 15 THE WITNESS: Yes, I'm sorry, yes. 16 BY MS. WEISMANN: 17 Q. And are there any other communications 18 that you have had with David Addington? 19 A. I don't remember any other specific 20 communications, but in eight years we're liable to 21 have had some communications. 22 Q. But those are the ones you can most


119 1 specifically recollect? 2 A. Uh-huh. Yes. I'm sorry. 3 Q. I want to look more specifically at the 4 process between NARA and the Office of the Vice 5 President for managing its records. You talked 6 about the meeting that was held at the beginning of 7 the Administration. 8 When was the next time you or your 9 office had contact with the Office of the Vice 10 President about the management of Vice President 11 Cheney's records? 12 A. We have continuing the nature of 13 courtesy storage as we deal with the offices as they 14 have needs, so -- 15 Q. Okay for purposes of my question, I'm 16 sorry to interrupt, but let's put courtesy storage 17 aside, okay, we'll talk about that separately. 18 So, putting courtesy storage aside, have 19 you had any other communications or contacts with 20 the Vice President or the Office of the Vice 21 President concerning the management of his records 22 under the Presidential Records Act?


120 1 A. We have had contacts with CC Boyer in 2 terms of artifacts. 3 Q. Okay. And what have been the nature of 4 those contacts? 5 A. Just to, how we're going to treat the 6 artifacts and how we're going to get the artifacts 7 from them, just the general procedural nature of 8 transferring the artifacts. 9 Q. And would you define for me what an 10 artifact is? 11 A. It's basically the gifts that are 12 received by the Vice President. 13 Q. Okay. And are those transferred 14 throughout the Administration? 15 A. Yes. 16 Q. All right. Other than artifacts and 17 courtesy storage, just putting aside those two 18 categories, have there been any other communications 19 with the Office of the Vice President or the Vice 20 President about the management of his records? 21 A. Yes, there's been this communication 22 about where his records would be maintained.


121 1 Q. Okay. But I'm talking, and when I 2 say -- all right. So, and you're talking about the 3 meeting that you described with David Addington 4 where Liz Cheney was there as well? 5 A. Uh-huh. Yes. Yes. Yes. 6 Q. Let's put that meeting aside, let's put 7 courtesy storage aside and let's put the artifacts 8 aside, have there been any other communications with 9 the Office of the Vice President or the Vice 10 President about the management of his records under 11 the Presidential Records Act? 12 A. As I previously mentioned, there has 13 been a communication about some national security 14 materials. 15 Q. Okay. For brevity sake, let's look at 16 beyond what you have already listed for me, okay, 17 which would be the national security one, it would 18 be the legislative records discussion, it would be 19 this discussion with David Addington and Liz Cheney, 20 the courtesy storage, the artifacts and anything 21 else you've already mentioned, is there any other 22 communication that you have not yet identified with


122 1 the Office of the Vice President or the Vice 2 President related to the treatment of the Vice 3 President's records or management of the Vice 4 President's records under the Presidential Records 5 Act? 6 MS. HONG: Objection, vague. 7 THE WITNESS: That NARA has said? 8 BY MS. WEISMANN: 9 Q. Yes. 10 A. The Information Security Oversight 11 Office which is part of the national archives has 12 had some communication with the OVP staff on really 13 national security handling of materials. 14 Q. And is it your understanding that any of 15 that, those discussions involved the treatment of 16 the Vice President's records under the Presidential 17 Records Act? 18 A. It's my understanding that those 19 discussions really deal more with the requirements 20 of EO 12958. 21 Q. Okay, other than that and which you've 22 already identified, are there any other


123 1 communications that NARA's had with the Office of 2 the Vice President or the Vice President about the 3 management of his records under the Presidential 4 Records Act? 5 A. Yes, we had some discussions about 6 designating a legal representative and placing 7 restrictions, whether they were going to place or 8 not place restrictions on OVP records. 9 Q. Okay. When did those discussions take 10 place? 11 A. Those discussions took place fairly 12 early in the Administration there. 13 Q. Within the first year of the 14 Administration? 15 A. Yes. 16 Q. And who were those discussions with? 17 A. Primarily with counsel, Gary Stern to I 18 believe David Addington. 19 Q. Are there any other communications that 20 you have not yet identified? 21 A. I think there is because when you, when 22 I was mentioning that I was remembering something


124 1 else. 2 I have had some discussions with Katie 3 Wheelbarger on electronic records issues. 4 Q. And when was the first, has it been more 5 than one discussion? 6 A. It's been a series of informal, brief 7 discussions on separation of OVP electronic records 8 from Presidential electronic records. 9 Q. Okay. Were these face to face 10 communications? 11 A. No, most of them were by the phone. 12 Q. All right. And why were you discussing 13 separating out OVP records from Presidential 14 records? 15 A. We were discussing on computer systems 16 how you, you know, how the OVP created records are 17 treated if they are incorporated as part of a larger 18 group of records. 19 Q. Okay. I'm not sure I understand. Can 20 you give me an example. 21 A. Well I can give you an example with Vice 22 President Gore's records.


125 1 Q. Okay. 2 A. Vice President Gore used the Automated 3 Records Management. 4 Q. Right. 5 A. The ARM system and so what we have done 6 is control access to that, who reviews it and for 7 notification by simply saying that the Washington, 8 DC, staff, my staff, will review and do the 9 notification since Vice President Gore also did not 10 have his records go to the Clinton library. 11 Q. All right. So now taking it back to the 12 records of this Vice President who no longer uses 13 the ARM system, why is there a need to differentiate 14 OVP records from Presidential records? 15 MS. HONG: Objection, vague. 16 THE WITNESS: Because the OVP is 17 notified, when he becomes, when they become former 18 OVP records, the OVP would be notified along with 19 the former President. If they're Presidential 20 records, NARA would just notify the former 21 President. 22 BY MS. WEISMANN:


126 1 Q. So this, you were talking about 2 identifying them for purposes of the notification 3 that would occur once he leaves office? 4 A. For that and for clear records 5 management. 6 Q. Okay. So is it your understanding that 7 the Vice President's and office of Vice President's 8 electronic records are maintained separately from 9 those of the President? 10 MS. HONG: Objection, vague. 11 THE WITNESS: It would -- 12 MS. HONG: You can answer if you know. 13 THE WITNESS: It would depend on what 14 system we're talking about. 15 BY MS. WEISMANN: 16 Q. Okay, how are the OVP and Vice 17 Presidential electronic records maintained at the 18 White House? 19 MS. HONG: Objection, personal 20 knowledge. 21 THE WITNESS: As I understand it, the, 22 the E-mails are maintained analogous to the


127 1 situation I described in, with the Clinton 2 Administration and so those would be controlled by a 3 series of access permissions. 4 The photo electronic records have been 5 kept in a generic software that incorporates both 6 Presidential and Vice Presidential, but they're 7 searchable by Vice Presidential and the audio 8 visual, the audio and visual records have been 9 separated out as OVP records and that's pretty much 10 what I know. 11 Q. And has that been the practice? 12 MS. HONG: I'm sorry the witness was 13 continuing her answer, if you'll let the witness 14 finish. 15 THE WITNESS: That's pretty much the 16 world I can think of off of the top of my head. 17 BY MS. WEISMANN: 18 Q. And has that been the practice since the 19 beginning of this Administration? 20 MS. HONG: Objection, vague. 21 THE WITNESS: I, I don't know. NARA 22 normally finds out more specifics as the


128 1 Administration goes on, but it is consistent with 2 the handling of electronic records in every 3 Presidential record creating Administration. 4 BY MS. WEISMANN: 5 Q. What is your understanding about how the 6 electronic records of Vice President Cheney are 7 maintained? 8 MS. HONG: Objection. I'm going to 9 allow a little bit more latitude but this is outside 10 of the scope of the classification determinations 11 that are under issue in this litigation. 12 BY MS. WEISMANN: 13 Q. Go ahead. 14 A. Can you repeat the question. 15 Q. What is your understanding of how the 16 electronic records of Vice President Cheney and the 17 OVP are maintained? 18 MS. HONG: Same objection. 19 THE WITNESS: What electronic records 20 are we talking about, because I pieced out for you 21 several groups. 22 BY MS. WEISMANN:


129 1 Q. Okay, those E-mails, let's take E-mails 2 as a category? 3 A. The same as all E-mails are handle had 4 in the White House. 5 Q. In other words they're maintained with 6 the entirety of White House E-mails? 7 A. They're maintained. 8 MS. HONG: If you'll let me, objection, 9 number one, vague, two, personal knowledge and I'm 10 not sure that this witness has personal knowledge. 11 MS. WEISMANN: Personal knowledge isn't 12 really an objection. 13 MS. HONG: It is. 14 MS. WEISMANN: Well, okay, I'd like to 15 know where in the Federal rules it is. Are you 16 allowing the witness to answer? 17 MS. HONG: I will permit the witness and 18 again, I'm, this is going far afield of the 19 discovery topics that have been permitted by the. 20 MS. WEISMANN: Well we don't agree with 21 that, but. 22 MS. HONG: The management of records by


130 1 the Vice President is clearly outside of the 2 Armstrong 2 distinctions that even you drew, so. 3 MS. WEISMANN: We're relying as you know 4 on the Order of the Court and not legal briefs and 5 legal arguments that have been made. 6 MS. HONG: And the Court has ordered 7 itself that it wants to. 8 MS. WEISMANN: Well are you allowing the 9 witness to answer. 10 MS. HONG: I will permanent the answer. 11 MS. WEISMANN: Okay then let's get the 12 answer. 13 MS. HONG: To the extent that she has 14 any personal knowledge about this topic. 15 THE WITNESS: Could you ask your 16 question again, please. 17 MS. WEISMANN: Can you read back the 18 question. 19 (Whereupon, the reporter read the 20 record as requested.) 21 BY MS. WEISMANN: 22 Q. And then I said E-mails, so we're


131 1 talking about what is your understanding of the 2 E-mails of the Office of the Vice President and the 3 Vice President himself are maintained? 4 A. They are maintained. 5 MS. HONG: Same objection, you can ask 6 the question. 7 THE WITNESS: They are maintained in the 8 same way, my understanding is as all E-mails are 9 maintained in the White House, linked to the OVP as 10 other E-mails are linked by the office that created 11 them. They are maintained by the office of 12 Administration. 13 BY MS. WEISMANN: 14 Q. Okay. Are there any other 15 communications with the Office of the Vice President 16 or the Vice President regarding the management of 17 Vice Presidential records that you have not yet 18 identified? 19 A. We handle disposing of bulk mail, we 20 discussed that, and electronic mail. 21 Q. When you say? 22 A. Electronic bulk mail.


132 1 Q. Okay. 2 A. . 3 Q. And how is electronic bulk mail disposed 4 of? 5 A. I cannot remember whether the OVP ever 6 came in for an electronic bulk mail disposal 7 request. I can remember that the President did, but 8 I know we discussed it, you asked me what 9 discussions have we had. Whether they came in with 10 a formal request or not, it may be in my declaration 11 in a footnote. 12 Q. Okay. That's -- 13 A. But I don't remember. 14 Q. Are there any other communications with 15 the OVP or the VP that we haven't covered? 16 MS. HONG: That you can recall sitting 17 here right now. 18 THE WITNESS: I think we had a brief 19 discussion about the OVP residence logs. 20 BY MS. WEISMANN: 21 Q. We, who was that discussion with? 22 A. That would have been with Gary and


133 1 probably Katie and myself. 2 Q. And when would that discussing, when did 3 that discussion take place? 4 A. Way, it, it wasn't within the last year, 5 it was longer ago than that. 6 Q. And what was the general nature of the 7 discussion? 8 A. The general nature of the discussion 9 were -- was are there logs and how are they created. 10 Q. By logs you mean White House visitor 11 logs? 12 A. Uh-huh, I mean, by logs I mean OVP 13 residence logs. 14 Q. Okay. Are there any other 15 communications that you can recall that you have not 16 yet identified? 17 A. Other than the daily interactions that 18 we may have when asked by staff, no, but we do have 19 an ongoing daily, weekly, yearly relationship with 20 these offices that retire records to courtesy 21 storage. 22 Q. And when you're talking about those


134 1 communications, are they specific to the retired 2 records? 3 A. They're specific to the records that are 4 on courtesy storage. 5 Q. Okay. Have you had communications with 6 anyone else outside of the OVP or the Vice 7 President, anyone else within the White House or EOP 8 relating to the management of Vice President 9 Cheney's records under the PRA? 10 A. Not that I can remember. 11 Q. Okay. 12 A. I have had discussions as I mentioned 13 that first meeting that included at the beginning of 14 the Administration other people. 15 Q. Right. 16 A. Right. But have I had discussions 17 specifically with other people about in the White 18 House about the OVP records? 19 Q. Uh-huh. 20 A. Not that I remember. 21 Q. What do you currently know about the 22 records of Vice President Cheney that are covered


135 1 under the Presidential Records Act? 2 MS. HONG: Objection, vague. 3 THE WITNESS: What I currently know is 4 that we have a volume of unclassified and classified 5 records and artifacts. 6 BY MS. WEISMANN: 7 Q. When you say we, are you talking about? 8 A. The National Archives, or -- 9 Q. No, I'm sorry, are you talking about 10 records that are currently with the archives? 11 A. Yes, on courtesy storage. 12 Q. On courtesy storage. Do you know 13 anything about the records of Vice President Cheney 14 that are still at the White House, still at the OVP, 15 Vice President's office or anywhere within the 16 E-O-P? 17 MS. HONG: Objection, vague. 18 BY MS. WEISMANN: 19 Q. It's a yes or no question? 20 MS. HONG: No, are you asking about 21 OVP's classification of records, or just anything 22 about the records at all.


136 1 MS. WEISMANN: I asked her if she knew 2 anything about the records of Vice President Cheney 3 that are still at the OVP. 4 MS. HONG: Vague and to the extent that 5 it calls for information outside of the scope of 6 this discovery order, that would be inappropriate. 7 BY MS. WEISMANN: 8 Q. All right, you can answer the question. 9 A. I know that there are still other 10 records of the OVP to be retired. 11 Q. Do you know anything about the substance 12 of those records? 13 A. I know that, I know as very general that 14 there are classified and unclassified records. 15 Q. Okay. With the exception of that 16 breakdown, do you know anything about the categories 17 of records that are encompassed by this body of 18 records and by this body of records for the purpose 19 of these questions I'm talking about record of the 20 Vice President and OVP that are still with them? 21 A. No. 22 Q. Do you know then how Vice President


137 1 Cheney maintains its records at the White House? 2 MS. HONG: Objection. 3 BY MS. WEISMANN: 4 Q. Within the Office of the Vice President 5 or in his own personal office? 6 MS. HONG: Objection, vague and it's 7 outside of the scope of this discovery. 8 BY MS. WEISMANN: 9 Q. You may answer. 10 A. No. 11 Q. You don't know? 12 A. No. 13 Q. Okay. Do you know what the overall 14 volume of records that the Vice President and the 15 OVP will be accessioning to the archives at the end 16 of this Administration? 17 A. I have a general idea based on what we 18 currently have. 19 Q. Okay, and what is that general idea? 20 A. The volume figure I am cloudy on, but it 21 is in the several thousand cubic feet range. 22 Q. And what is the volume of records that


138 1 NARA currently has? 2 A. I just gave you -- 3 Q. Oh, okay and I'm asking about what the 4 total -- 5 A. I mean, and let me qualify that, I 6 really can't remember if that is the projection at 7 the end or if that is what we currently hold. 8 Q. Okay. Do you know what percentage of 9 the entire collection of Vice Presidential records 10 of Vice President Cheney NARA currently holds? 11 A. No. 12 Q. I'm talking about a percentage here? 13 A. No. 14 Q. Do you know whether it is greater than 15 50 percent of the overall records? 16 MS. HONG: Objection, asked and 17 answered. 18 THE WITNESS: I, I wouldn't know. 19 BY MS. WEISMANN: 20 Q. Okay. And I just want to make sure that 21 I understand you correctly, you do not know the 22 categories of records that the Vice President and


139 1 office of Vice President have yet to transfer to 2 NARA? 3 MS. HONG: Objection, misstates her 4 testimony. 5 BY MS. WEISMANN: 6 Q. Well I'm asking that. 7 A. What I said is that I know that there is 8 still classified records. 9 Q. Okay, with the? 10 A. And unclassified records. 11 MS. HONG: Please let the witness answer 12 the question or finish her response before you ask 13 the next question. 14 THE WITNESS: To, to be retired to us. 15 BY MS. WEISMANN: 16 Q. Beyond the category of classified and 17 non-classified, do you have any other knowledge 18 about the categories of records that have yet to be 19 transferred to you from the OVP and the Vice 20 President? 21 MS. HONG: Objection, vague, asked and 22 answered.


140 1 THE WITNESS: I think that we are 2 getting some more photo records and some more audio 3 and visual records, so we expect just to get from 4 the offices as the Administration winds down more 5 records. 6 BY MS. WEISMANN: 7 Q. Okay. Has anyone from NARA been over to 8 the OVP to evaluate the Vice President's records? 9 MS. HONG: Objection, vague. 10 BY MS. WEISMANN: 11 Q. I have to say that these continuing 12 objections? 13 MS. HONG: What does a he evaluate the 14 records mean? 15 MS. WEISMANN: Appear to be designed to 16 coach the witness and if it continues, I am really, 17 it will be one of the issues that we raise. 18 MS. HONG: And I just want to put on the 19 record that objecting that a question is vague is 20 certainly not coaching the witness. 21 THE WITNESS: They know I'm uncoachable. 22 MS. HONG: Can you repeat the question?


141 1 THE WITNESS: Can you state the question 2 again? 3 BY MS. WEISMANN: 4 Q. Has anyone from NARA been over to the 5 Office of the Vice President or the Vice President's 6 office to evaluate the Vice President's records for 7 purposes of accessioning them to NARA at the end of 8 the Administration? 9 MS. HONG: Same objection and this is 10 outside of the scope of the discovery, but you can 11 answer if you understand what she's asking. 12 THE WITNESS: So I'm sorry, I missed the 13 end part. 14 MS. HONG: You can answer if you 15 understand. 16 BY MS. WEISMANN: 17 Q. You can answer. 18 A. One, a couple of things. We don't view 19 that NARA accessions Presidential or Vice 20 Presidential records. 21 Q. Okay. 22 A. We think they're transferred to us


142 1 automatically at January 20th at 12:00 noon. 2 Q. Okay. 3 A. Per the Presidential Records Act, so we 4 don't use that term. 5 Q. Okay. 6 A. Two, we have been over not to evaluate, 7 but to get some national security materials and in 8 doing that, got some substantive knowledge on those 9 particular materials we were picking up. 10 But -- 11 Q. Were these records that you were picking 12 up for purposes of courtesy storage? 13 A. Yes. 14 Q. Okay and so you got substantive 15 knowledge about that particular subset of records 16 that you were picking up? 17 A. Yes, some. 18 MS. HONG: If you could let her finish 19 the question before you answer. 20 THE WITNESS: Okay, okay. 21 BY MS. WEISMANN: 22 Q. But beyond that, do you have any


143 1 knowledge about records that are still at the White 2 House -- I'm sorry, my question went has there been 3 any effort I'm going to rephrase. 4 Has anyone, other than in that instance, 5 has anyone from NARA been over to the Office of the 6 Vice President or any other office within the E-O-P 7 that houses VP records for purposes of evaluating 8 the records prior to transferring, having them 9 transferred to NARA. 10 MS. HONG: Same objection. 11 THE WITNESS: And what do you mean by 12 evaluate?? 13 BY MS. WEISMANN: 14 Q. To ascertain anything about those 15 records? 16 MS. HONG: Same objection. 17 THE WITNESS: Well. 18 BY MS. WEISMANN: 19 Q. All right, well let's, you know, let's 20 take a step back. With the previous Administration, 21 did NARA have an opportunity before the end of the 22 Administration to gather information about the


144 1 nature of the Vice President's records that were 2 going to be transferred to NARA at the end of the 3 Administration? 4 A. In the same way that we hold courtesy 5 storage for the George W Bush records, we held 6 courtesy storage for the Gore records and toward the 7 end of the Administration we met with Gore's counsel 8 and discussed the different groups of records that 9 would be coming and where they would be coming from. 10 Q. Okay, and have you had those kinds of 11 meetings with this Administration? 12 A. The meetings that we have had I have 13 described to you deal with what type of records 14 there will be and where they will be housed. 15 Q. When you say what type of records, what 16 do you mean? 17 A. Whether they're classified, what sort 18 of. 19 Q. Okay? 20 A. How they'll need to be stored. 21 Q. Going back to the meeting with the 22 previous Administration, did you learn more specific


145 1 information beyond whether, beyond documents that 2 were classified versus non-classified? 3 A. It was pretty general information, but 4 we, in that, with Gore's records, we learned about 5 three or four months before the end of the 6 Administration that we would be doing some pick-up 7 from the Senate office and began talking with his 8 Senate staff. 9 Q. And within those discussions with his 10 Senate staff, did you learn anything about the 11 substance of the records? 12 A. Not really. 13 Q. Did you learn about any categories of 14 records? 15 A. We were geared toward handling volume, 16 the volume that would be coming in and that they 17 would be designated as Vice Presidential or 18 personal. 19 Q. Has -- 20 A. I mean we learned about a microfilm 21 project that he did. 22 Q. Has any request of NARA during this


146 1 Administration for information from the White House 2 related to Presidential and Vice Presidential 3 records been rejected? 4 MS. HONG: Objection, vague and to the 5 extent you're talking about Presidential records, 6 this is totally inappropriate and it's outside of 7 the scope of the discovery that's been requested. 8 THE WITNESS: Can you go into more 9 detail on your question? 10 BY MS. WEISMANN: 11 Q. What don't you understand about my 12 question? 13 A. Well, for one thing, I've forgotten it 14 in between. 15 Q. Okay, has there been, has NARA requested 16 an opportunity to meet with, to meet with people 17 from the White House concerning, let me -- have any 18 requests of NARA for information from the White 19 House concerning the Vice President's records been 20 rejected, turned down? 21 A. Have any requests from NARA. 22 Q. Right.


147 1 A. Concerning Vice President's records been 2 turned down. 3 Q. Yeah, any, any requests for informing 4 about Vice Presidential records been turned down? 5 MS. HONG: Objection, vague. 6 THE WITNESS: No, none. 7 MS. HONG: If you just let me interpose 8 the objection, objection, vague. 9 MS. WEISMANN: Well you can't, if she 10 can answer the question, I don't think it's 11 appropriate. 12 MS. HONG: I need to be able to preserve 13 my objections. 14 MS. WEISMANN: That's not a valid 15 objection, but. 16 BY MS. WEISMANN: 17 Q. So, answer the question, please? 18 A. No, not that I remember. 19 Q. And have any requests of NARA for 20 information more generally about Presidential 21 records been rejected by the White House? 22 MS. HONG: Objection, that's outside of


148 1 the scope of this discovery. I will instruct the 2 witness not to answer. 3 MS. WEISMANN: Okay, you can mark that. 4 MS. HONG: Presidential records? I just 5 want to make sure I understand the question. 6 (Whereupon, the reporter read the 7 record as requested.) 8 BY MS. WEISMANN: 9 Q. So, to the extent that any of the 10 plaintiffs have been told that NARA's efforts to 11 learn more information about the White House, about 12 the contents of these White House records, Vice 13 President's records have been rejected, that would 14 not be true from your knowledge? 15 MS. HONG: Objection, vague. 16 THE WITNESS: I find it hard to answer 17 that because I've given you the discussions we've 18 had and we've always received information, so I 19 don't know what they're referring to. 20 BY MS. WEISMANN: 21 Q. Did you receive this information within 22 the time frame that the request was made?


149 1 MS. HONG: Objection, vague. 2 THE WITNESS: Well, when we deal with 3 the White House and the Vice President, we receive 4 the information as they give us the information, but 5 I'm not aware on I think the question is on the 6 Office of the Vice President that we have not 7 received a response on any -- the only situation I'm 8 aware of is the one I have previously described 9 which is the information security oversight office 10 issue. 11 BY MS. WEISMANN: 12 Q. Okay. Okay. What is the system that 13 the Vice President and the Office of the Vice 14 President use to retain E-mails? 15 MS. HONG: Objection. Personal 16 knowledge and this is outside. 17 MS. WEISMANN: It's a category of 18 record. 19 MS. HONG: It's not a category of 20 record. 21 MS. WEISMANN: E-mails are a category. 22 MS. HONG: You're talking about the


150 1 management of records and though these records are 2 maintained and manage. 3 MS. WEISMANN: All right are you 4 directing her not to answer. 5 MS. HONG: Can you ask the question 6 again and I'll let you know. 7 MS. WEISMANN: Would repeat the 8 question. 9 (Whereupon, the reporter read the 10 record as requested.) 11 MS. HONG: It's outside the scope, I 12 would object. I will, you know, again, she's 13 answered this question. 14 And because it's been asked and answered 15 and it's outside the scope I will instruct the 16 witness not to answer. 17 BY MS. WEISMANN: 18 Q. What software does the Office of the 19 Vice President use to maintain its E-mails? 20 A. It uses the -- 21 MS. HONG: Same objection. 22 MS. WEISMANN: It's not asked and


151 1 answered, so are you directing her not to answer. 2 MS. HONG: I didn't instruct her not to 3 answer, Anne, I'm allowing you a little latitude 4 here, but this is far -- 5 MS. WEISMANN: I don't need the 6 lectures, Helen. 7 MS. HONG: And I'm putting on the record 8 that I believe we are going far afield of the 9 discovery about classification of Vice Presidential 10 records that the Court has permitted. 11 MS. WEISMANN: Okay. We obviously 12 disagree, but you can go ahead and answer the 13 question. 14 THE WITNESS: It uses the same software 15 that the rest of the White House uses for storing 16 their E-mails. 17 BY MS. WEISMANN: 18 Q. Has NARA looked at the metadata for this 19 system? 20 MS. HONG: Objection. This is outside 21 of the scope of this discovery. 22 THE WITNESS: NARA has recently, and I


152 1 have not, but NARA recently has looked at some of 2 the technical information for that system. 3 Q. And does NARA have experience with 4 preserving electronic records that use that 5 software? 6 MS. HONG: Objection. This is, I will, 7 I think we're going way too far off the scope of 8 this discovery and I'll instruct the witness not to 9 answer. 10 BY MS. WEISMANN: 11 Q. How does NARA plan to my great the 12 electronic records systems from the OVP to NARA at 13 the close of the Administration? 14 MS. HONG: Objection. This is outside 15 of the scope of discovery. 16 THE WITNESS: We plan on migrating them 17 to a, to part of the electronic records archives 18 that has been created for the EOP. 19 BY MS. WEISMANN: 20 Q. Describe for me how the records are 21 physically transferred from the White House, from 22 the White House complex to NARA on January 20th?


153 1 MS. HONG: Objection, I will instruct 2 the witness not to answer. This is outside of the 3 scope of the limited discovery. 4 BY MS. WEISMANN: 5 Q. In the filing system that the Office of 6 the Vice President uses for its paper records, does 7 it differentiate between records that are to be 8 retained and those that are to be disposed of? 9 A. In the filing system that the Vice 10 President uses. 11 Q. Yes. 12 A. Do they differentiate between. 13 Q. Records that are to be retained and 14 those that are to be disposed of? 15 A. No, not that I'm aware of because under 16 the Presidential Records Act it is a preservation 17 act, not a disposal act. 18 Q. And same question for the electronic 19 records? 20 A. It is -- 21 Q. Are there, does their system for storing 22 electronic records differentiate between records


154 1 that are to be retained and these that are to be 2 disposed? 3 MS. HONG: This is outside of the scope 4 of the discovery. I mean if you have personal 5 knowledge, again, I will allow a little latitude, 6 but I will cut off questioning again if this 7 continues. This is why the deposition is going on 8 as long as it is. 9 MS. WEISMANN: That is completely -- the 10 record will speak for itself, but. 11 THE WITNESS: All of the E-mails that 12 are in the E-mail system will be retained. 13 BY MS. WEISMANN: 14 Q. Do you know how the office of Vice 15 President maintains personal and political papers? 16 A. No. 17 Q. Do you know what response -- do you know 18 what, if any, guidance this Vice President is using 19 to differentiate personal and political papers from 20 Vice Presidential records? 21 A. No. 22 Q. Do you know where the Vice President's


155 1 papers are currently housed, those that have not 2 been transferred to NARA or excluding those that 3 NARA is holding on courtesy storage? 4 A. Well I know where the classified records 5 are held. 6 Q. Uh-huh. 7 A. And I know where a lot of the 8 unclassified records are held. 9 Q. And where are they held? 10 A. They're held at a combination of the old 11 EOB and 18th and G. 12 Q. Do you know what, if any records the 13 Vice President retains in his residence? 14 A. No. 15 Q. Do you know what records he maintains in 16 his Senate office? 17 A. No. 18 Q. Do you know what, if any, records he 19 maintains in any other office he has in Congress? 20 A. Go back to the Senate office. 21 Q. Uh-huh. 22 A. Gary and I did have a discussion, part


156 1 of this discussion I told you with Katie and we were 2 told that the OVP did not use that Senate office 3 much and that there are very few. He doesn't use it 4 to maintain very many records. 5 Q. Are the records that his Senate staff 6 creates included in that category of legislative 7 records, do you know? 8 A. I don't know. I assume they are, but I 9 don't know -- you know, they're, they're, they're 10 included in whatever he creates. 11 Q. From your, from NARA's perspective 12 looking at the Presidential Records Act, would it 13 encompass the records that are created by the Vice 14 President's Senate staff in the context -- in the 15 course of the Vice President's Senate 16 responsibilities? 17 A. I don't know. 18 Q. And where is the uncertainty for you? 19 A. Well, we, at, in Gore, some of his staff 20 used the Senate E-mail system and we did not get 21 those E-mails. 22 Q. Okay.


157 1 A. Of the administrative staff. 2 Q. All right. 3 A. And I think that probably, I think there 4 are two Senate staff that work for Cheney and that 5 inter Senate may use the inter Senate E-mail system 6 and we will try and get those, but. 7 Q. Okay, with the exception of the Senate 8 E-mail, are there, is there any other record that 9 they created that you're not sure of? 10 MS. HONG: Objection, vague. 11 THE WITNESS: That he creates that I'm 12 not sure of. 13 BY MS. WEISMANN: 14 Q. No, that his staff -- I mean your 15 response to my question was I don't know and I'm 16 trying to understand. 17 A. Well could you repeat your question. 18 (Whereupon, the reporter read the 19 record as requested.) 20 THE WITNESS: It would depend really 21 would defend penned in my mind and this is my 22 personal view on what the Senate staff is doing. If


158 1 they're working on private political issues, then 2 no. If they're working on how he's going to break a 3 tie which is a Constitutional function of a Vice 4 President, then yes. 5 So, it depends on what they're creating, 6 I'm not that familiar. 7 BY MS. WEISMANN: 8 Q. Would it be, I'm sorry, would it be the 9 same cut off that applies to the Vice President that 10 is purely personal or purely political would not 11 fall within the scope of the PRA? 12 MS. HONG: Objection, vague. 13 THE WITNESS: In my mind it would be, 14 but I think there's an ambiguous area there. 15 BY MS. WEISMANN: 16 Q. Do you know what records the Vice 17 President maintains in any other Congressional 18 office beyond his Senate office? 19 A. No. 20 Q. Other than what you have identified, do 21 you have any additional understanding about what 22 legislative records the Vice President has?


159 1 A. No. 2 Q. I'm going to hand you what I'd like 3 marked as exhibit 2? 4 (Deposition Exhibit No.. 5 Was marked for identification) 6 (Discussion off the record) 7 BY MS. WEISMANN: 8 Q. I'd like to direct your attention to 9 page 3. This is a, the written testimony of Alan 10 Swendiman who is at the time was director of the 11 office of Administration at the House Committee and 12 Oversight and Government Reform Hearing that was 13 held on February 26th, 2008, and if you look at the 14 second full paragraph on that page and continuing on 15 the next paragraph that carries over on to page 4, 16 if you would read that, please. 17 A. Starting internally to? 18 Q. I'm not asking you to read it aloud, I 19 just want you to read it. 20 A. No, no, but is that where you want me to 21 start? 22 Q. It must be acknowledged.


160 1 A. Oh, okay. 2 (Witness examining document) 3 4 Q. Actually let's go back to the 5 internally, read that as well. 6 I apologize, let me just interrupt you 7 for a second. I'd really like you to and I 8 apologize for this, you should begin on page 2 with 9 the first full paragraph that says I will direct my 10 remarks. If you would read page 2 and page 3 and on 11 page 3 if you'd continue the paragraph, you know, 12 read through the paragraph that carries over into 13 page 4. You're welcome to read the entire document 14 but those are the portions I'm going to be focusing 15 on. 16 A. From page 2 to page 4? 17 Q. Yeah. 18 A. ) witness examining document ) 19 Until the last full paragraph at the end 20 of page 4. 21 Q. Yes? 22 A. So at the end of this Administration.


161 1 Q. Yes. 2 A. Okay. 3 Q. Are you done? 4 A. Yes. 5 Q. Okay. All right, let's start with page 6 2, in which, and I'm paraphrasing and if I 7 mischaracterize it, please feel free to correct me, 8 Mr. Swendiman refers to the fact that there have 9 been at least eight meetings with NARA and does 10 that, in reading this document, does it refresh your 11 memory as to any other meetings that you may have 12 had with White House, with O-A or with other White 13 House staff concerning Vice Presidential records? 14 MS. HONG: Okay, misleading. This is 15 about Presidential records. 16 THE WITNESS: That was going to be my 17 response. I have been replying to you on OVP 18 records. 19 BY MS. WEISMANN: 20 Q. Okay. 21 A. Which is what you've been asking me. I 22 have been involved in quite a few meetings on


162 1 electronic, transfer of electronic records and 2 Presidential records, but that is not what you were 3 asking me. 4 Q. Okay. On those meetings relating to 5 electronic records, are you saying that none of the 6 records at issue was a Vice Presidential record? 7 A. No, as I said earlier, there is a 8 component of the E-mails that are OVP E-mails that 9 are incorporated in the more generic E-mail system. 10 Q. Right and so are you saying that you've 11 had meetings on the more generic E-mail system? 12 A. Yes. 13 Q. Okay. And let's talk about those 14 meetings then. 15 What was the first such meeting you had. 16 MS. HONG: Anne, I'm not sure, again, 17 that this goes to the classification issues at issue 18 in this deposition and I'll instruct the witness not 19 to answer about the specifics of E-mails for the 20 President and then we can take this up with the 21 magistrate judge or Judge Kollar Khotelly at the 22 end, but right now it seems to me we're not


163 1 discussing classification of records. 2 MS. WEISMANN: We're discussing one of 3 the six areas. 4 Would you read back my question? 5 MS. HONG: Same objection and 6 instruction not to answer. 7 BY MS. WEISMANN: 8 Q. Okay, at those meetings did you discuss 9 the management of electronic records? 10 MS. HONG: Objection, this is exactly 11 what Armstrong 1 prohibits and I will instruct the 12 witness not to answer. 13 BY MS. WEISMANN: 14 Q. At those meetings were any of the 15 discussions relating to the management of electronic 16 records applicable to the component of those records 17 that are Vice Presidential E-mails? 18 MS. HONG: Okay, vague and same 19 objection. 20 THE WITNESS: Only in the way I have 21 previously described to you, how we would discretely 22 preserve the OVP records in OVP records status.


164 1 BY MS. WEISMANN: 2 Q. And is it your understanding that the 3 E-mails for the Office of the Vice President are 4 being preserved as a category and that category is 5 E-mails? 6 MS. HONG: Objection, vague. 7 THE WITNESS: It is my understanding 8 that the Office of the Vice President E-mails are 9 being preserved on exactly the same system and in 10 exactly the same way as any other E-mail created by 11 a White House component. 12 BY MS. WEISMANN: 13 Q. And are they segregated by subject 14 matter? 15 A. No. 16 MS. HONG: Objection. This is, again, 17 outside of the scope of discovery and I'm not sure 18 that I understand what you mean by subject matter. 19 Vague. 20 MS. WEISMANN: The Order expressly 21 allows us to inquire about the existence of 22 categories of records and individual records.


165 1 MS. HONG: That are or are not covered 2 by the PRA. If you're going to discuss 3 classification of records. 4 MS. WEISMANN: You have an extremely 5 narrow interpretation of this Order. We are going 6 on the face of the Order itself and I am trying to 7 ascertain whether E-mails are treated as a category 8 of records. 9 MR. TYLER: That was asked and answered. 10 MS. WEISMANN: I don't think so. 11 MS. HONG: And I'm not sure I understand 12 what you mean by a category of record. 13 MS. WEISMANN: Well then I think what 14 you really need to do is direct your question to the 15 Court because the Court's Order. 16 MS. HONG: No, I understand what the 17 Court means. 18 Q. Refers to categories of records? 19 MS. HONG: And I understand that. 20 MS. WEISMANN: Excuse me, that is not a 21 phrase I have myself created. The Court's Order 22 clearly goes to the existence and any defendant's


166 1 custody or control of individual records or 2 categories of records. 3 MS. HONG: That are or are not covered 4 by the PRA. 5 MS. WEISMANN: Right. 6 MS. HONG: This has to do with, the 7 lawsuit is whether the record are covered by the 8 PRA. Specifics about how the VP manages his 9 records, ones afoul of Armstrong 1 and that's -- 10 MS. WEISMANN: We are not inquiring -- 11 all right are you allowing her to answer the 12 question or not? 13 MS. HONG: No, I will instruct the 14 witness not to answer specifics about how the Vice 15 President would manage his E-mail record. 16 MS. WEISMANN: That is not my question 17 for the record. The question went to whether or not 18 there exists, the E-mails of the Vice President are 19 maintained as a category of records, E-mail 20 category. 21 MS. HONG: And I don't understand the 22 question. Vague. I mean if, if the question is


167 1 does the Vice President preserve E-mails, you can 2 answer that question. 3 MS. WEISMANN: That's not the question. 4 THE WITNESS: The E-mails of the Vice 5 President are managed in exactly the same system, by 6 the same office that all other E-mails are managed 7 by in the what we would generically refer to as the 8 White House compound. 9 BY MS. WEISMANN: 10 Q. Okay. So let's talk about how those 11 E-mails are maintained then. Are they maintained by 12 category, by subject matter category? 13 A. E-mails in the Clinton Administration 14 and E-mails in this Administration are maintained by 15 some connection with the creating office and the 16 receiving office. They're not -- they don't 17 maintain -- there may be a subject line, but they're 18 not maintained in subject categories. 19 Q. Okay, let's go back to Mr. Swendiman's 20 deposition testimony. In any of the meetings that 21 you have not described, were there discussions about 22 the maintenance of electronic records at the White


168 1 House? 2 MS. HONG: Objection, this is outside of 3 the scope of the discovery. Are you asking about 4 Vice Presidential records. 5 MS. WEISMANN: She has just testified 6 that the Vice President's records are maintain in 7 the same way as the others, they're all part of the 8 same system, so if they're part of the same system, 9 I have to understand more generally the system. My 10 question, given her answers, my question is 11 perfectly appropriate. 12 MS. HONG: Well it's not appropriate to 13 the extent that this lawsuit is about classification 14 of records. 15 MS. WEISMANN: I mean. 16 MS. HONG: You can ask her if those 17 records are covered by the PRA or not. 18 MS. WEISMANN: I don't need for you to 19 give me questions. Are you instructing her not to 20 answer the question. 21 MS. HONG: I'm not sure I understood the 22 question, can you repeat it again.


169 1 MS. WEISMANN: Can you read it back. 2 (Whereupon, the reporter read the 3 record as requested.) 4 MS. HONG: And I will maintain my 5 objection and instruction not to answer. 6 BY MS. WEISMANN: 7 Q. On page 3 of his and if I called it 8 deposition testimony, I misspoke, it's his 9 Congressional testimony, Mr. Swendiman references 10 transition-related reviews. 11 Do you have an understanding of what he 12 means by that term? 13 A. Could you -- 14 Q. I'm sorry, if you look at page 3? 15 A. I'm on page 3. 16 Q. I think it's line 4? 17 A. Line 4. 18 Q. And he has this sentence, he says NARA 19 and OA have permitted to meeting regularly to 20 complete the transition-related reviews that are 21 currently underway and to address any 22 transition-related issues as they arise.


170 1 Do you have an understanding what 2 Mr. Swendiman means when he refers to 3 transition-related reviews. 4 A. Yes. 5 Q. And what is that? 6 MS. HONG: And I'm going to object that 7 this is outside of the scope of the discovery. 8 MS. WEISMANN: We are entitled to get 9 communications between NARA and the White House. 10 MS. HONG: About documents that are or 11 are not covered by the PRA. 12 MS. WEISMANN: And I'm trying to 13 understand what this even means, I don't know yet. 14 BY MS. WEISMANN: 15 Q. What does Mr. Swendiman mean by 16 transition-related reviews? 17 MS. HONG: The document speak for itself 18 and she has no personal knowledge. 19 MS. WEISMANN: She told me that she does 20 understand what he means by that. 21 BY MS. WEISMANN: 22 Q. Would you explain for me what your


171 1 understanding of this term is? 2 A. Can I go? I think what he means are the 3 transition meetings we have been having to go over 4 various transition-related issues, including 5 migration and ingestion of electronic records. 6 Q. And in any of those meetings, have there 7 been discussions about whether a particular record 8 of the Vice President is or is not covered by the 9 PRA? 10 A. No. 11 Q. And in any of those meetings has there 12 been a discussion about whether a category of 13 records of the Vice President or that would include 14 the Vice President is or is not covered by the PRA? 15 A. No. 16 Q. Also on page 3, the first full paragraph 17 it states that internally to O-A our General Counsel 18 sell has provided oral briefings and written 19 guidelines on compliance with the PRA. Have you 20 seen any of the written guidelines that O-A has 21 prepared with respect to compliance with the PRA? 22 MS. HONG: And I'm going to object that


172 1 misstates the testimony in Mr. Swendiman's, you cut 2 off. 3 MS. WEISMANN: All right, I'll quote he 4 says our General Counsel sell has provided oral 5 briefings and written guidelines to the entire OA 6 staff on compliance with the PRA. 7 Have you seen any of that written 8 guidelines? 9 A. I believe I have seen those written 10 guidelines. 11 Q. And would they pertain in any way to 12 records of the Vice President? 13 A. They are more generic than that. 14 Q. But would they include the records of 15 the Vice President? 16 A. I believe what I saw was specifically 17 guidance to O-A staff, so, no. 18 Q. Right, but was it guidance on the 19 records that, a subset of records that would include 20 the Vice President's records? 21 A. No, I believe. 22 MS. HONG: Asked and answered,


173 1 objection, you can answer. 2 MS. WEISMANN: She's. 3 THE WITNESS: No, I believe the guidance 4 I saw, I believe the guidance I saw dealt with how 5 O-A should handle its records as Presidential 6 records. 7 BY MS. WEISMANN: 8 Q. Okay. And then the second sentence 9 says, in addition, guidance and assistance has been 10 and is being provided by the White House Office of 11 Records Management. 12 Do you, have you seen any of the 13 guidance that has come out of the White House Office 14 of Records Management? 15 A. No. 16 Q. On page 4, the first full paragraph, Mr. 17 Swendiman states, as part of the transition 18 planning, NARA is seeking an estimate of the size of 19 the electronic records to be transferred and we are 20 working to provide that estimate. 21 Has NARA been provided that estimate 22 yet?


174 1 A. Yes. 2 Q. And does that estimate include records 3 of the Vice President? 4 A. Yes. 5 Q. And do you know what percentage of those 6 records are Vice Presidential records? 7 A. No. 8 MS. HONG: Please let her finish asking 9 the question before you respond. 10 THE WITNESS: Oh, I'm sorry. 11 MS. HONG: It's okay. 12 BY MS. WEISMANN: 13 Q. And what is the size of those electronic 14 records to be transferred? 15 A. Well it's a ball park size, 16 150 terabytes, plus or minus. 17 Q. Plus or minus a terabyte here or there. 18 He goes on to say in addition we are 19 work to go estimate the volume, oh, before I do 20 that, when -- 21 A. And can I say I think that figure is 22 high, so I think I'm giving you a high figure, not a


175 1 low figure. 2 Q. Okay and when was NARA provided that 3 estimate? 4 A. Well, sometime after February of '08, 5 but it's, it's been, we've had the figure for a 6 while. 7 Q. Okay. He goes on to state in addition 8 we are working to estimate the volume of hard copy 9 records to be transferred to NARA. 10 Has NARA received that estimate. 11 MS. HONG: And objection, are you asking 12 about, I mean I don't know that the foundation has 13 been laid that this includes Vice Presidential 14 records. If it does not then I will object that 15 it's outside the scope of the discovery that the 16 Court has permitted. 17 BY MS. WEISMANN: 18 Q. Has NARA received the estimate of volume 19 of hard copy records? 20 MS. HONG: Same objection. 21 THE WITNESS: I think what Allen 22 Swendiman is talking about here is the volume of O-A


176 1 hard copy records. I do not think that he was 2 referring into -- in his testimony to a cumulative 3 figure for the whole world of Presidential and Vice 4 Presidential records. 5 BY MS. WEISMANN: 6 Q. Even though he starts out his sentence, 7 that paragraph as saying a significant portion of 8 Presidential records is stored electronically? 9 MS. HONG: Argumentative, objection. 10 BY MS. WEISMANN: 11 Q. Does that change your understanding of 12 what he's talking about? 13 A. I think -- I think my gue is that he's 14 talking about different worlds because I think OA 15 was working on giving us an estimate for the volume 16 of OA records. It wouldn't go through the office of 17 Administration, the volume, the cumulative volume of 18 Presidential records or Vice Presidential records. 19 So, maybe he is, but it would be 20 confusing if that's what he's talking about. 21 Q. Okay. When NARA refers to Presidential 22 records, does it include Vice Presidential records?


177 1 MS. HONG: Objection. Context, vague. 2 THE WITNESS: Not in my mind. 3 BY MS. WEISMANN: 4 Q. Okay. So -- 5 A. Unless there inextricably mixed up, I 6 mean inextricably inseparable. 7 Q. So from NARA's side of it when you're 8 discussing the handling of records, when they're 9 going to come to NARA, you differentiate, you treat 10 Vice Presidential records as a category separate 11 from Presidential records? 12 A. When they have been so separated. 13 Q. But in your discussions with the White 14 House, do you ever use the phrase Presidential 15 records to include Vice Presidential records? 16 MS. HONG: Objection, vague. Ever, I 17 mean. 18 BY MS. WEISMANN: 19 Q. In your discussions with the White 20 House? 21 MS. HONG: Same objection. And asked 22 and answered.


178 1 MS. WEISMANN: Well, no, that hasn't 2 been answered. 3 THE WITNESS: Not normally. I normally 4 would always bring up Vice Presidential records 5 separately. 6 BY MS. WEISMANN: 7 Q. Okay. And in the discussions you've had 8 with officials at the White House, are they equally 9 careful to differentiate between Presidential and 10 Vice Presidential records? 11 MS. HONG: Objection, personal 12 knowledge. 13 THE WITNESS: Normally, the normal 14 discussions are dealing with the larger world and 15 the much larger world is Presidential, so most of 16 the discussions I have had deal with the much larger 17 world. 18 BY MS. WEISMANN: 19 Q. And that much larger world does not 20 include Vice Presidential records? 21 A. It does when those records are part of a 22 system like electronic records that incorporates


179 1 them, but certainly not in the textural world, in 2 the textural world you talk to the Office of the 3 Vice President for Vice Presidential records. 4 Q. Right, but so when you're talking about 5 electronic records as a body of records, then it 6 would, discussions about that system would 7 necessarily include Vice Presidential records, would 8 they not? 9 MS. HONG: Objection, vague. 10 THE WITNESS: Yes, they would, but 11 normally there is no intrinsic difference if you're 12 talking about a system that would, where you focus 13 attention on this one subset of records. 14 Q. And for the system of records that 15 constitutes electronic records, they will be coming 16 to NARA as an entire system; is that correct? 17 MS. HONG: Objection, this is outside of 18 the scope of discovery. And we've gone over this 19 and I've objected on a number of occasion. 20 MS. WEISMANN: You haven't, we haven't 21 gone over it precisely because of so many of your 22 objections.


180 1 MS. HONG: You've asked -- 2 MS. WEISMANN: I now have the foundation 3 to establish that it is an entire collection. 4 MS. HONG: No, it's not about the 5 classify indicating, I mean if you just ask this 6 witness are E-mails from the Office of the Vice 7 President covered by the PRA, that would answer your 8 question. 9 MS. WEISMANN: That's not my question. 10 You're free to ask her questions when I'm finished, 11 but that's not my question. 12 MS. HONG: And I will object to the 13 question about transition related specifics and 14 management of documents. 15 MS. WEISMANN: Okay. 16 MS. HONG: It's outside the scope of 17 discovery. 18 BY MS. WEISMANN: 19 Q. My question doesn't go to management of 20 documents, I'm trying to determine, Ms. Smith, and 21 you can help me, now I need you -- 22 A. I'm just trying to figure out whether.


181 1 Q. Well I know, well unless your lawyer 2 tells you not to answer a question, you have to 3 answer a question. 4 But, we are under the Court's Order we 5 are allowed to find out the eye tenth at this of 6 categories of records and individual records and I 7 want to make sure I understand from your description 8 that the category of records of electronic records 9 would include both Presidential and Vice 10 Presidential; is that correct. 11 MS. HONG: That's, that question is -- I 12 don't understand the question and it's out -- it 13 mischaracterizes the Court's Order and it's, I'm 14 going to instruct the witness to, well I guess I 15 just don't understand the question. Can you read 16 that question back. 17 (Whereupon, the reporter read the 18 record as requested.) 19 MS. HONG: That's nonsensical, 20 objection, vague. 21 THE WITNESS: If you are asking me do 22 the electronic records systems that we have been


182 1 talking about include both Presidential and Vice 2 Presidential records, the answer is yes. 3 BY MS. WEISMANN: 4 Q. And for purposes of transferring those 5 records to NARA, will they be transferred as a 6 single set of electronic records? 7 MS. HONG: Objection, vague, outside of 8 the scope of discovery. This is not about 9 classification of those records and whether they're 10 covered by the PRA or not. 11 THE WITNESS: It's not a technologically 12 correct term to say -- it's hard for me to respond 13 to what you're asking because it's not the way we 14 transfer electronic records. There are many 15 different systems and they will be transferred into 16 a generic system, the unclassified ones that are not 17 in a proprietary format that is called the 18 electronic record archives for the Executive Office 19 of the President George W Bush. 20 But it's not like there is one system. 21 BY MS. WEISMANN: 22 Q. So will each system be transferred as an


183 1 individual system as it's maintained at the White 2 House? 3 MS. HONG: Objection, I'm going to 4 instruct the witness not to answer, this is outside 5 of the scope of discovery. I mean maybe I can short 6 circuit some of this by, I mean are the records, are 7 the E-mails. 8 MS. WEISMANN: Excuse me. 9 MS. HONG: Electronic records covered by 10 the PRA, are they being transferred as Vice 11 Presidential records. 12 THE WITNESS: Yes. Yes. 13 MS. WEISMANN: That's not my question 14 and you don't have the right to question the witness 15 at this point. 16 MS. HONG: It's, wait that we're going 17 here, spending time on issues that are unrelated to 18 this litigation that you know what this is all 19 related to. 20 MS. WEISMANN: You've made this. 21 MS. HONG: It's inappropriate. 22 MS. WEISMANN: You are the one that has


184 1 severely cut off the scope of discovery and ignored 2 the six express categories that the Court has 3 identified and we'll, obviously we'll be taking it 4 up with the Court. 5 BY MS. WEISMANN: 6 Q. When did you first hear the term 7 specially assigned as a description of the Vice 8 President's functions? 9 MS. HONG: Objection, lack of 10 foundation. 11 THE WITNESS: When you, when -- I think 12 in your letter or in your complaint. 13 BY MS. WEISMANN: 14 Q. Okay. Our complaint does not use the 15 term specially assigned. Do you recall, have you 16 heard the term specially assigned used to describe 17 the Vice President's executive functions? 18 A. Not by anyone other than I thought in 19 association in some way with CREW. 20 Q. Okay. When you say in association with 21 CREW, are you talking about in association with this 22 lawsuit?


185 1 A. I thought it was in something that CREW 2 wrote. 3 Q. No, actually it was an expression that 4 the defendants used. 5 Has NARA ever defined the functions of 6 the Vice President as those specially assigned by 7 the President, to your knowledge? 8 MS. HONG: Lack of foundation, there's 9 no basis for any understanding that NARA has defined 10 the functions of the Vice President at all. 11 BY MS. WEISMANN: 12 Q. Go ahead. 13 A. The question, please. 14 Q. Has NARA ever defined the functions of 15 the Vice President as those specially assigned by 16 the President? 17 MS. HONG: Same objection. 18 THE WITNESS: No, not that I know of. 19 BY MS. WEISMANN: 20 Q. For purposes of implementing the 21 Presidential Records Act, does NARA have a working 22 definition of which functions the Vice President


186 1 performs must be preserved -- records from which 2 functions that the Vice President performs must be 3 preserved under the Presidential Records Act? 4 A. I think it's clear in 2201. 5 Q. Okay. So you would rely then on the 6 language of the statute -- of the Presidential 7 Records Act itself? 8 A. Yes. 9 Q. Okay. And would you rely on that to the 10 exclusion of any other language? 11 A. I think the statute is very good to rely 12 on. It's Constitutional, statutory, offing, 13 ceremonial. 14 Q. Right? 15 A. Duties that are done in conducting his 16 official Vice Presidential duties. 17 Q. And does the Vice President have the 18 discretion to define his functions differently than 19 the PRA defines them for purposes of the 20 Presidential Records Act? 21 A. No, I mean it's defined in the Act. 22 Q. Based on your extensive experience


187 1 working with Presidential Libraries and Presidential 2 records, does the term specially assigned have any 3 significance to you for purposes of determining 4 whether a Vice President has complied with the 5 Presidential Records Act? 6 A. No. 7 Q. Other than what you've identified, have 8 you seen any guidance from the White House on 9 written or oral on how to implement the Section 2201 10 of the Presidential Records Act with respect to the 11 Vice President? 12 A. No. 13 MS. HONG: Objection, vague. That's 14 fine. 15 THE WITNESS: No. 16 BY MS. WEISMANN: 17 Q. Okay. 18 MS. WEISMANN: Let's take a five-minute 19 break. 20 ) Short recess taken ) 21 One again, started up the deposition 22 again.


188 1 ) Just visited the judge's chambers. 2 Not on my record, on judge's record. 3 4 BY MS. WEISMANN: 5 Q. Is it the case that with respect to the 6 textural records of the Office of the Vice President 7 and the Vice President, with the exception of those 8 records that NARA has or has received in the past 9 for courtesy storage and with the exception of the 10 category of classified versus unclassified you have 11 no knowledge about the categories of records that 12 they encompass? 13 A. No, I have previously told you that 14 there are photographs. 15 Q. I said textural? 16 A. Audio, have are visual. 17 Q. Oh, I'm sorry? 18 A. There are a whole variety of what 19 archival lifts think of categories as records. 20 Q. That's fair enough, I was using your -- 21 A. Okay. 22 Q. Focusing only on paper records that


189 1 would be exclusive of photographs and focusing only 2 on paper records, with the exception of those 3 records of the Vice President -- Office of the Vice 4 President or the Vice President that NARA has now in 5 courtesy storage or had in courtesy storage, is it 6 true that you know nothing about the categories of 7 records that they encompass? 8 A. That is correct. 9 Q. Other than some are classified and some 10 are unclassified? 11 A. And the information as to, it will be on 12 the box sometimes as to what staff member or office 13 they will be from in the OVP's office. 14 Q. And that's with respect to those records 15 that you have in courtesy storage? 16 A. Yes. 17 Q. But for those paper records that are 18 still at the Office of the Vice President, the Vice 19 President or wherever else the Vice President keeps 20 records, you have no information about the 21 categories, their categories? 22 MS. HONG: Okay, vague.


190 1 THE WITNESS: Well I'm just not sure 2 that a lawyer talking to an archivist that 3 categories is a term that transfers. 4 BY MS. WEISMANN: Okay. 5 A. Because an archivist keeps records on 6 Provanots. We keep the original organization and 7 the category seems to be a legal distinction that I 8 don't think is reflective of a records organization. 9 Q. Do you know how the Vice President's 10 records are organized with the exception of those 11 that are currently in courtesy storage at the 12 archives? 13 A. I know that the records in courtesy 14 storage will be reflective of the organizational 15 structure of those records held by the incumbent 16 OVP. 17 Q. And how -- 18 A. So they will be organized by staff 19 member or office that retires the record or by 20 domestic or certain classified areas. 21 Q. Okay. So but that's an assumption 22 you're making. Is that an assumption you're making


191 1 based on the records you have seen to date of the 2 Vice President? 3 A. That is an assumption I'm making based 4 on 37 years in Presidential, in working with 5 Presidential papers and Vice Presidential papers, 6 that there is a certain generic, domestic, 7 classified, audio, visual organization. 8 Q. Okay. Beyond that assumption, and I 9 don't mean any, that in any pejorative way, 10 excluding the records that you currently have in 11 custodial storage, do you have any specific 12 knowledge about the records of this Vice President? 13 A. We specifically know we are getting more 14 classified records and we know we're getting more 15 unclassified records. 16 Q. And that, is that the sum total of your 17 specific knowledge? 18 MS. HONG: Okay, vague. 19 THE WITNESS: The -- 20 BY MS. WEISMANN: 21 Q. Beyond your assumption that they will be 22 organized in a certain way based on your archival


192 1 experience? 2 A. That is the knowledge of the OVP's 3 incumbent records, yes, that remain in his custody. 4 Q. Okay. Is there any way for NARA to know 5 if a category of records is missing once the records 6 are transferred to NARA? 7 A. Once we review them. 8 Q. And then how would you confirm whether 9 or not a category of records was missing? 10 A. Well if, if, at the point that they, we 11 either systematically review them or are reviewing 12 them for a special access request, a, if, if someone 13 asks for a specific record or type of record and it 14 is in some way controlled by one of the systems that 15 control records, then we would either go back to the 16 institutional office and see if they could further 17 confirm that that record should be created and we 18 would look in many different places. 19 The thing about the organization of 20 Presidential and Vice Presidential records is it's 21 very hard to say a record doesn't exist because it 22 depends a lot on the filing structure.


193 1 Q. Do you anticipate that when you get the 2 Vice Presidential records of Vice President Cheney 3 you will also get an inventory or some other kind of 4 written categorization of what is contained in those 5 records? 6 A. Yes. 7 Q. And are you anticipating that based on 8 your prior experience with prior Vice Presidents? 9 A. No. 10 Q. And why do you anticipate that? 11 A. Because when the unclassified records 12 are being retired to the White House Office of 13 Records Management, there being retired with folder 14 title lists that are being entered into a records 15 management finding aid. 16 Q. And what, generically what kind of 17 information is in that finding aid? 18 A. Well since no other OVP has used the 19 Office of Records Management, I really wouldn't 20 know. It would be whatever the folder titles are of 21 those documents. 22 Q. And will --


194 1 A. However they're filed. 2 Q. Will all of the Vice President's Vice 3 Presidential records be managed in this way by the 4 White House Office of Records Management before they 5 are transferred to NARA? 6 A. There is never an all, never an all when 7 you're talking about Presidential or Vice 8 Presidential records. There, you can't ever say all 9 of anything. You can say to the best of your 10 ability or this is the way it's normal. 11 Q. Okay, but is it your understanding that 12 any categories or any records are intended not to go 13 through the White House Office of Records Management 14 and be categorized that way before they're 15 transferred to NARA and I'm talking now only about 16 Vice Presidential records? 17 A. It is my understanding that the OVP will 18 be giving us inventories for the records that we 19 will be getting. 20 Q. Right, but is it your understanding that 21 that is intended, whether it actually is, intended 22 to be a comprehensive inventory of all the records


195 1 you're getting? 2 A. I think it will be a, a generic 3 inventory for the unclassified records. 4 Q. Okay? 5 A. Generic at a high level. 6 Q. And what do you mean by that? 7 A. I mean that when you get millions of 8 pages, NARA doesn't get a document by document 9 description. 10 Q. Can you give me an example of what you 11 anticipate it will look like it will contain? 12 A. Well, it's difficult for me to do 13 because I haven't seen it. 14 Q. Okay. You haven't seen any of these? 15 A. No. 16 Q. So even the records that have been 17 retired and transferred to you from the White House 18 Office of Records Management don't reflect the 19 system? 20 A. We don't go into those records. NARA's 21 agreement on courtesy storage is we are a blind 22 storer of records.


196 1 Q. Okay, and how did you learn that the 2 Vice President's office and the Vice President 3 intended to use this process for retiring their 4 records and transferring them to NARA? 5 A. I believe I learned it from the head of 6 the White House Office of Records Management and 7 then it was later confirmed lie the OVP's office in 8 discussion. 9 Q. And was this, were these meetings in 10 which you learned it? 11 A. I think it, the nature of my staff is I 12 deal on a continual basis with the head of the White 13 House Office of Records Management. 14 Q. And who is that head now? 15 A. Phil Droege. So in some discussion we 16 found this out. It may have been at the point that 17 we started doing bulk mail OVP sampling. 18 Q. And how long ago was that? 19 A. That was at the beginning of the 20 Administration, or at some point in the beginning of 21 the Administration Phil may have mentioned to me 22 that he was managing this Vice President's records.


197 1 Q. And by managing, though, earlier you 2 talked about, I understood you to say and I'm par 3 practice phrase something if I'm not accurately I 4 know you'll correct me that the White House Office 5 of Records Management didn't come into the picture 6 of Vice Presidential records until they were 7 retired; is that true? 8 A. The White House Office of Records 9 Management will give guidance and assistance to any 10 White House office on an ongoing basis, along with 11 counsel, and so what the OVP's relationship is with 12 Phil Droege on a daily basis, I don't know. I did 13 say that the records that go in to the inventory or 14 the folder title lists that go into the inventory 15 are records that are sent down to the White House 16 Office of Records Management. 17 Q. And have you ever seen any written 18 guidance or instructions sent between the White 19 House Office of Records Management and the Office of 20 the Vice President relating to Vice Presidential 21 records? 22 A. No.


198 1 Q. Have you ever heard any reference to any 2 such guidance? 3 A. No. 4 Q. Written guidance I mean? 5 A. No. 6 Q. Have you ever heard any communications 7 between the White House Office of Records Management 8 and the Office of the Vice President about how to 9 treat Vice Presidential records for purposes of the 10 Presidential Records Act? 11 A. No. 12 Q. I want to, because the I think the 13 record I'm going to go back to two areas before in 14 which privileged objections were made because I want 15 to make sure we have a very clean record for 16 everybody. So I'm going to return now to the 17 discussions that you identified that were between 18 you, Gary Stern and Ms. Wheelbarger relating to the 19 treatment of the Vice President's legislative 20 records. 21 A. Okay. 22 Q. And it was your testimony, I believe,


199 1 that the Vice President's office made the final 2 decision that they would be treated as legs -- that 3 the legislative records of Cheney, Vice President 4 Cheney would be treated as covered under the 5 Presidential Records Act; is that correct? 6 A. They confirmed to NARA that in response 7 to a question we asked that they were treating 8 records that Cheney created in the Senate office as 9 Vice Presidential record. 10 Q. And what was the specific question that 11 NARA posed to them? 12 A. Since I am not the one who, who posed 13 that question, I'm not sure I remember the exact 14 question. I can give you -- 15 Q. What's your understanding generally of 16 the question that was asked? 17 A. That, that, my general understanding of 18 the question was asked is how were they treating 19 Cheney's legislative records. 20 Q. And what was the response that came 21 back? 22 A. The response was they were treating them


200 1 as Vice Presidential record. 2 Q. Okay. And was there any discussion 3 about what specifically legislative records 4 consisted of? 5 A. There was a discussion that Cheney 6 didn't use the OVP office very much and I believe 7 they said he had two staff in the office and that 8 there weren't a lot of records that were created out 9 of that office. 10 MS. HONG: If you can, I just want to 11 clarify if you can read back that answer I think the 12 witness my have said the OVP office -- was it OVP, 13 did you mean Senate office. 14 THE WITNESS: Yes. 15 MS. WEISMANN: Can we go back to the 16 initial questioning on this subject matter where an 17 objection was lodged. 18 MR. SOBEL: The privileged claim. 19 MS. HONG: And just for your purpose, I 20 don't know if this will help at all, we just 21 cautioned the witness not to reveal the substance of 22 any deliberative process privileged information.


201 1 MS. WEISMANN: I just want to. 2 MS. HONG: Oh, I know I'm saying we just 3 caution the witness so she revealed I mean the up 4 shot, she revealed the Vice President's treatment of 5 those legislative records so I don't know that 6 there's an issue on this question, but you can look 7 back. 8 (Discussion off the record) 9 BY MS. WEISMANN: 10 Q. Earlier you described what sounded like 11 more than one discussion between NARA officials and 12 Katie Wheelbarger concerning the legislative 13 records, what specifically did you discuss with 14 Ms. Wheelbarger concerning this issue? 15 MS. HONG: Objection, misstates her 16 testimony. 17 MS. WEISMANN: It's a question. I'm not 18 stating any, she didn't testify to this. There was 19 an objection lodged and a deliberative process 20 lodged so I'm going back. 21 MS. HONG: No I'm sorry the reason I 22 objected -- I'm sorry, what was the question.


202 1 (Whereupon, the reporter read the 2 record as requested.) 3 MS. HONG: Same okay. 4 THE WITNESS: And I think I've given you 5 what we discussed. 6 BY MS. WEISMANN: 7 Q. No, you told me what the outcome of 8 those discussions were and what I want to know is 9 specifically what was discussed? 10 A. NARA specifically asked Gary Stern asked 11 how were they treating legislative or records 12 created in the Senate office and they responded over 13 I think it was several conversations, not all of 14 which I were involved in, that they were treating 15 them as Vice Presidential record. 16 Q. And why were there several, why was 17 there a need to have several conversations, do you 18 know? 19 A. Can I make a joke, probably because it 20 was lawyers, but I have no idea. 21 Q. When the question was first posed did 22 you get a response immediately from the White House


203 1 from this, from the Office of the Vice President? 2 A. I am unclear as to whether I -- which 3 conversation I was involved in, so whatever 4 conversation I was involved in we got a clear 5 response. Whether that was the first conversation 6 or the only conversation I really don't know. 7 Q. In the course of those discussions, did 8 the Office of the Vice President ever raise or ever 9 suggest that legislative records might not be 10 covered by the Presidential Records Act? 11 A. Not in any discussion I was involved in, 12 no. 13 Q. As part of this discussion -- as part of 14 this discussion did you also raise with them the 15 issue of Section 11 of executive order 13233? 16 MS. HONG: Objection. The witness has 17 already testified about not having any conversations 18 about that section. I mean you can answer the 19 question, but. 20 THE WITNESS: No. 21 BY MS. WEISMANN: 22 Q. And did you have any discussions within


204 1 NARA about the meaning of executive records of the 2 Vice President as used in executive Order 13233? 3 MS. HONG: Objection, asked and 4 answered. 5 THE WITNESS: Not that I remember 6 because executive records of the Vice President 7 equal Vice Presidential record. That was not the 8 part of the section we were concerned with. 9 BY MS. WEISMANN: 10 Q. Okay. Now turning your attention to the 11 White House counsel memoranda that you saw that were 12 issued by at least White House Counsel Gonzalez and 13 White House counsel Meyers and possibly Fred 14 Fielding? 15 A. Fielding. 16 Q. Can you tell me? 17 A. Did I say possibly Fred fielding. I 18 thought I said. 19 Q. My memory is that you were uncertain 20 that there was a third. Are you now clear that 21 there was, in fact, a third? 22 A. I think that there have been three


205 1 issuances, Gonzalez, I thought I said this, 2 Gonzalez, Meyers and Fielding. 3 Q. So there were three at least? 4 A. I believe, yes. 5 Q. Okay. And how did you get access to 6 these memos? 7 A. Two of them I believe came to me from 8 Gary. 9 Q. And do you know how Gary got access to 10 them? 11 A. I think he got them from counsel, from 12 White House counsel. 13 Q. And when they were given to you, were 14 you ever told not to share these with anyone? 15 A. No. 16 Q. Okay. Can you -- 17 A. Well let me put a caveat on that, I was 18 given them -- I don't share stuff like that, Gary 19 knows the way I treat that sort of record and I was 20 given it to give input in a unified NARA response, 21 so he wouldn't tell me something that he knows I 22 wouldn't do.


206 1 Q. And what was NARA's response to this 2 memo? 3 MS. HONG: Objection, it's, to the 4 extent that this is outside of the scope because it 5 relates to Presidential records as opposed to Vice 6 Presidential records. 7 BY MS. WEISMANN: 8 Q. Well I believe the testimony is that the 9 memo covered both? 10 MS. HONG: No, that wasn't the 11 testimony. 12 MR. TYLER: No, that wasn't the 13 testimony. 14 BY MS. WEISMANN: 15 Q. It was your testimony that you believed 16 it had been addressed to the Office of the Vice 17 President as well as other White House components? 18 A. I thought what I said was it could have 19 been addressed, I mean I am unclear as to whether it 20 was -- I remember that it was addressed to different 21 components, the first memo. I, it could have -- I 22 believe it could have been.


207 1 Q. Do you have this memo, do you still have 2 this memo in your possession? 3 A. I don't have it with me. 4 Q. No, that's not my question. Do you have 5 it, I'm sorry? 6 A. I believe I do. 7 Q. Do you have all three memos? 8 A. I don't know for sure that I have the 9 Meyers memo, but. 10 Q. Okay. 11 A. I believe I have all three. 12 MS. HONG: Anne, do you want to ask a 13 foundational question of whether this memo has any 14 information in it or whether this witness recollects 15 whether the memo has any information about Vice 16 Presidential records in it? 17 MS. WEISMANN: I think her testimony is 18 that it could have been directed to the Office of 19 the Vice President. 20 MS. HONG: No. 21 MS. WEISMANN: I -- that's, can you read 22 back how she just characterized.


208 1 MS. HONG: I wasn't characterizing it. 2 MS. WEISMANN: No, I'm not talking about 3 you, I'm talking about Ms. Smith. 4 (Whereupon, the reporter read the 5 record as requested.) 6 MS. WEISMANN: Off the record. 7 (Discussion off the record) 8 BY MS. WEISMANN: 9 Q. From NARA's perspective, is there a 10 difference between how the White House handles 11 Presidential records and Vice Presidential records? 12 MS. HONG: Objection, vague. 13 MR. TYLER: Asked and answered. 14 THE WITNESS: I guess I'm not sure what 15 you mean. 16 BY MS. WEISMANN: 17 Q. Well is there a difference -- 18 A. There's a difference in the Act in 2207. 19 Q. And what is that difference I mean what 20 is your understanding, I can read the Act but if you 21 would tell me what your understanding is of the 22 difference between how Vice Presidential records are


209 1 handled and how Presidential records are handled by, 2 I should be clear, by, not by NARA, but by the White 3 House? 4 A. I thought you said by NARA. 5 Q. I'm sorry, I didn't say, but I'm 6 realizing now that that was your confusion. 7 From NARA's perspective, is there a 8 difference between how the White House handles 9 Presidential records and Vice Presidential records 10 for purposes of the Presidential Records Act? 11 MS. HONG: Objection, vague. 12 THE WITNESS: There, there, from NARA's 13 perspective, the creating entity is a different 14 person. 15 BY MS. WEISMANN: 16 Q. Okay, but given that, once the records 17 are created, to your understanding, is there any 18 difference between how they're handled at the White 19 House, difference between Presidential and Vice 20 Presidential records? 21 MS. HONG: Objection, vague. 22 THE WITNESS: There has, there has been


210 1 a difference in the past. 2 BY MS. WEISMANN: 3 Q. Right. 4 A. In the past handling of OVP records from 5 Presidential records. 6 Q. And now I'm focusing on this 7 Administration. 8 A. In this Administration, I think that the 9 unclassified records are handled similarly in 10 structure to the unclassified Presidential records 11 that are retired to the White House Office of 12 Records Management. 13 Q. Okay. And both of them, both, by both I 14 mean both Presidential and the Vice Presidential 15 records are managed by the White House Office of 16 Records Management, correct? 17 A. Unclassified. 18 Q. Unclassified. 19 A. Those that are retired to that office. 20 Q. Right. And so going back now to this 21 guidance that you described that came from the White 22 House counsel, was it on its face related


211 1 specifically and exclusively to Presidential 2 records? 3 A. It seemed -- it is my impression and I 4 have not looked at it recently within the last week 5 or so, it was certainly generically crafted from the 6 Presidential perspective. 7 Q. And would it have covered, would the 8 guidance it gave also have covered Vice Presidential 9 records? 10 A. I think it depends on who it was 11 addressed to and clearly I am not clear as to who, 12 whether it was addressed to the OVP or not. 13 Q. And what specifically was that guidance? 14 MS. HONG: Objection. This is outside 15 of the scope. This is about Presidential records. 16 MS. WEISMANN: We're, she has allowed 17 the possibility that the memo also covers Vice 18 Presidential records. 19 MS. HONG: That is, misstates her 20 testimony just now. 21 MR. TYLER: Grossly misstates the 22 testimony.


212 1 MS. WEISMANN: It does? That's not how, 2 I mean let's read it back, she has not categorically 3 rejected. 4 MS. HONG: Do you want to ask her again 5 do you have an understanding of whether this memo 6 related to Vice Presidential records or not? 7 MS. WEISMANN: You know what, your 8 objection is made, I believe her testimony -- first 9 of all I do not want you to coach the witness, I do 10 not want you to ask her questions. 11 When I'm finished if you want to ask her 12 questions, you will have an opportunity, but it's 13 entirely inappropriate for you to coach the witness. 14 MS. HONG: But I can object if you have 15 grossly misstated her testimony. 16 MS. WEISMANN: You can, absolutely, but 17 you cannot have what's called a speaking objection.. 18 I think her testimony stands and I 19 believe there's a foundation for my question, so my 20 question is, would you go back. 21 (Whereupon, the reporter read the 22 record as requested.)


213 1 BY MS. WEISMANN: 2 Q. Yes. 3 MS. HONG: Objection. 4 MS. WEISMANN: And what is your 5 objection? 6 MS. HONG: Object it's outside of the 7 scope of this discovery because it's about 8 Presidential records. 9 MS. WEISMANN: You can answer the 10 question because according to the Court's 11 guidance -- 12 MS. HONG: No, she said she will be 13 available to speak with us. I will instruct you not 14 to answer that question. 15 Are you almost done with your 16 questioning so we can bring up this issue with the 17 Court sort of at the end? 18 MS. WEISMANN: No, when we're finished 19 I'm saying we will take this issue up with the 20 Court, yes. 21 MS. HONG: Okay. 22 BY MS. WEISMANN:


214 1 Q. So I want to make sure that the only 2 objection you have is on scope? 3 MS. HONG: It's, it's -- no, I mean 4 that's the scope on which I am instructing this 5 witness not to answer. 6 MS. WEISMANN: And not privileged. 7 MS. HONG: I mean it is privileged 8 information as well. 9 MS. WEISMANN: Are you making a 10 privileged claim. 11 MS. HONG: I'm instructing her not to 12 answer the question based on scope, that alone is 13 dispositive and enough. 14 MS. WEISMANN: So you're not instructing 15 her not to answer on the basis of privilege? I 16 think it's -- 17 MS. HONG: It's my understanding based 18 on her description to date of this document that it 19 is covered by privilege. 20 MS. WEISMANN: Okay, but you need to 21 identify the privilege. 22 MS. HONG: It seems to me that it could


215 1 be covered by, to the extent that it was 2 deliberative because comments are being offered by 3 NARA to the White House about any guidance that's 4 provided on Presidential Records Act compliance that 5 that's covered by the deliberative process privilege 6 and until -- 7 MS. WEISMANN: So are you instructing 8 her not to answer on the basis of privilege. 9 MS. HONG: I'm instructing her not to 10 answer on the basis of scope which is sufficient. 11 MS. WEISMANN: Only scope. 12 MS. HONG: Which is sufficient. 13 MS. WEISMANN: No, that's fine. 14 MS. HONG: I preserve my objection on 15 privileged grounds but the instruction not to answer 16 is dispositive on the scope. 17 BY MS. WEISMANN: 18 Q. Is it your understanding that when the 19 memo you saw -- okay, let me take that back. Was 20 the memo you saw a final memo from White House 21 counsel's office offering guidance? 22 A. I saw various drafts and I saw a final


216 1 memo issued by Gonzalez that was, it, it's like a 2 living product that was I believed somewhat changed 3 by Meyers and -- 4 Q. Okay, but for purposes of that memo, it 5 was, was it being, the one that you just described 6 as a final one of Albert toe Gonzalez, was it being 7 shared with NARA for NARA's input subject to 8 changing it? 9 A. At one point it was being shared with 10 NARA to give input before it was finalized. 11 Q. Okay. But let's focus, but there came a 12 point in time at which there was a final memo; is 13 that correct? 14 A. Yes. 15 Q. Okay. And turning then to that memo, 16 what did it say with respect to the treatment of 17 Presidential records? 18 MS. HONG: Objection. Outside the 19 scope. The question alone shows it's outside of the 20 scope of this discovery. 21 MS. WEISMANN: And are you also lodging 22 a privileged claim.


217 1 MS. HONG: The scope alone is enough. 2 MS. WEISMANN: Okay, so there's no 3 privileged claim, just a scope. No, we're going to 4 take this up to the judge. 5 MR. TYLER: Counsel has not had an 6 opportunity to review this document, it originates 7 from the White House so that privilege possibly 8 applies. We cannot rule privilege out. 9 MS. HONG: But it's clear that the scope 10 objection applies and that's enough. 11 MS. WEISMANN: Okay, I would draw your 12 attention to. 13 MS. HONG: You asked about, guidance 14 about Presidential records. The Court made clear 15 that this discovery should be about Vice 16 Presidential records. 17 MS. WEISMANN: We've already, I think 18 her testimony definitely leaves open the possibility 19 if not likelihood that it also covered Vice 20 Presidential records. 21 22 MS. HONG: I mean I can voir dire her so


218 1 we can lay a better foundation because I don't think 2 that found days has been laid. 3 MS. WEISMANN: Well I mean I think the 4 record is what it is and we can dispute it for the 5 Court. 6 MS. HONG: If we're going to go to the 7 court on this I would like to voir dire the witness 8 and lay this foundation. 9 MS. WEISMANN: Well we're not done yet 10 when we're done if you feel there's an inadequate 11 record for your scope okay, feel free to question 12 her. Let's take a two-minute break. 13 MR. TYLER: How much longer do you have? 14 MS. WEISMANN: I hope not much. Do you 15 have somewhere to go. 16 MR. TYLER: Yes, we all do. 17 MS. WEISMANN: Well. 18 ) Offer off. 19 BY MS. WEISMANN: 20 Q. Would it be accurate to characterize 21 this guidance as generic guidance about the 22 Presidential Records Act?


219 1 MS. HONG: Objection, vague. 2 THE WITNESS: No, it would be accurate 3 to say that the guidance applied to the handling, as 4 I remember it, of Presidential records. 5 BY MS. WEISMANN: 6 Q. Okay, so your earlier description of it 7 as generic guidance, are you now changing your 8 testimony? 9 A. No. 10 Q. Okay. Okay. 11 A. I don't think what I just said was 12 inconsistent with what I said earlier. 13 Q. Okay, so it would, you described this as 14 generic guidance? 15 MS. HONG: Objection, asked and 16 answered. 17 MS. WEISMANN: Okay. 18 We're done and we do want to take this 19 issue today to the judge. 20 MS. HONG: Okay. And then there any 21 other issue that we're taking up? 22 MS. WEISMANN: Not at this time. When


220 1 we get the transcript. 2 MS. HONG: No not. 3 MS. WEISMANN: I'm not done. 4 I think it's difficult without getting 5 the transcript to know, there's no other privileged 6 claim. The only issue is the scope one and when we 7 see the transcript if we see that there are, remain 8 to be concerns about scope. 9 MS. HONG: No, no, I think we should, to 10 the extent that you have any questions right now 11 that you. 12 MS. WEISMANN: Oh, I have no more 13 questions right now. 14 MS. HONG: We're not table, if you have 15 additional questions that you want answers to that 16 you don't think you were allowed to get answers to 17 that you deserve to get answers to, you can ask them 18 now. 19 MS. WEISMANN: Okay, then we'll have to 20 take a good bit of time to go through with the court 21 reporter. 22 MS. HONG: Okay.


221 1 MS. WEISMANN: So feel free to do 2 whatever you need to do. 3 (Discussion off the record) 4 (4:57 to 5:09.) 5 BY MS. WEISMANN: 6 Q. Would you agree that records relating to 7 visitors who visit the Vice President's residence to 8 fix broken office equipment must be preserved under 9 the Presidential Records Act? 10 MS. HONG: Okay. I think this witness 11 already answered. 12 MS. WEISMANN: No, she didn't, we just 13 checked the transcript. I mean you're welcome to 14 check as well. 15 MS. HONG: I would like to check because 16 I thought the witness had answered that. 17 MS. WEISMANN: She answered it as to 18 coming and goings but she did not answer it as to 19 repair people. 20 MS. HONG: You're asking about a 21 specific person coming, whether that would be. 22 MS. WEISMANN: My, read back my


222 1 question, please. 2 (Whereupon, the reporter read the 3 record as requested.) 4 MS. HONG: Yeah, same, I think I'm going 5 to object. Let me, if I could just see, off the 6 record. 7 8 MR. TYLER: It's her personal 9 understanding. 10 (Whereupon, the reporter read the 11 record as requested.) 12 THE WITNESS: No. I do not think they 13 necessarily document Constitutional, statutory, 14 official or ceremonial duties. 15 BY MS. WEISMANN: 16 Q. Okay. And what system did the Vice 17 President office of Vice President use to retain 18 E-mails? 19 A. Can we, I would like to add a little bit 20 more to that answer, it all depends on what the 21 office equipment is, but generically that category 22 in response to your question, if it is a single


223 1 category, would I think that single record needs to 2 be preserved as a requirement under the Presidential 3 Records Act, no. 4 Q. Okay. 5 MS. WEISMANN: Do you want to read back 6 my question. 7 (Whereupon, the reporter read the 8 record as requested.) 9 MS. HONG: Could you show me where in 10 the record that can he was asked and what my 11 response was, I just want to get context. 12 (Discussion off the record) 13 MS. HONG: Okay, objection, asked and 14 answered, lack of personal knowledge of this 15 witness. 16 MS. WEISMANN: Are you instructing her 17 not to answer? 18 MS. HONG: No. 19 THE WITNESS: What's the question? 20 (Whereupon, the reporter read the 21 record as requested.) 22 MS. HONG: Same objection.


224 1 THE WITNESS: The same system that the 2 rest of the White House uses to retain E-mails. I 3 did think I previously answered this. 4 BY MS. WEISMANN: 5 Q. And does that system have a name? 6 A. It is. 7 MS. HONG: Objection, this is outside 8 the scope, but you can, if you know personal, if you 9 have personal knowledge, you can answer. 10 THE WITNESS: It depends on what year 11 you're talking about, but originally it was the 12 automatic mated records management system and now it 13 is a personal storage system. 14 BY MS. WEISMANN: 15 Q. Okay, and are those the only two systems 16 that are in use to retain E-mails for the Vice 17 President and office of Vice President that you know 18 of? 19 A. Are we talking about unclassified. 20 Q. Unclassified, yes. 21 A. For unclassified, yes. 22 Q. And classified uses a separate system?


225 1 A. Yes. 2 Q. And does the office of Vice President 3 and Vice President have a dedicated system that 4 they, those offices use for classified? 5 MS. WEISMANN: Excuse me, I don't, I 6 can't hear when you're talking. 7 MS. HONG: Objection, the. 8 MS. WEISMANN: I haven't even finished 9 my question. 10 BY MS. WEISMANN: 11 Q. Does the Office of the Vice President 12 and the Vice President, do the Office of the Vice 13 President and the Vice President have a dedicated 14 E-mail, by dedicated I mean one that only those two 15 offices use E-mail system for retaining classified 16 E-mails? 17 MS. HONG: Objection, vague, outside the 18 scope, asked and answered and to the extent that 19 there's national security. 20 MS. WEISMANN: Can you tell me the -- 21 MS. HONG: Hold on one moment, to the 22 extent that there's national security information


226 1 here because we're talking about classified E-mails, 2 I'd really like to tread carefully. 3 MS. WEISMANN: I have no interest in 4 classified information. 5 MS. HONG: You just asked about 6 classified E-mails. 7 MS. WEISMANN: But the witness has 8 already identified the fact that unclassified 9 documents are kept separately. I'm simply trying to 10 find out whether there's a system that the Vice 11 President and OVP uses to classify E-mails. 12 MS. HONG: My concern -- 13 MS. WEISMANN: The witness can tell you 14 if it's classified, obviously she's not going to 15 tell me anything classified. 16 MS. HONG: How classified records are 17 managed is not appropriate scope of this deposition. 18 MS. WEISMANN: That's not what my 19 question goes to, it goes to whether the actual 20 existence of a body of records that are maintained 21 in an E-mail system that are classified, I mean if 22 you want to talk to her and find out whether there's


227 1 any issue -- 2 MR. TYLER: No, she's directed not to 3 answer the question. This is far beyond the scope. 4 MS. WEISMANN: Wait a minute, John, you 5 are not the counsel. 6 MR. TYLER: Yes, I am, I am counsel of 7 record. 8 MS. WEISMANN: Are you going to be 9 handling the rest of the deposition then? 10 MR. TYLER: The deposition should be 11 over, I mean aren't we come to go a close? 12 MS. WEISMANN: I think this is entirely 13 inappropriate. 14 If you have -- I think you need to limit 15 your objections to one counsel, only one counsel 16 speaking for the witness. 17 MS. HONG: Counsel spoke. 18 MS. WEISMANN: Okay, well then he's 19 going to have to continue the deposition? 20 MS. HONG: You can ask -- 21 MS. WEISMANN: It's entirely 22 inappropriate to have --


228 1 MR. TYLER: Let's close this down, Anne, 2 it's been a long day. 3 MS. WEISMANN: It's about to get longer, 4 so. I'd like the question read back. 5 (Whereupon, the reporter read the 6 record as requested.) 7 MS. HONG: Objection, I do not want her 8 to get into the specifics of how classified 9 materials are handled. 10 MS. WEISMANN: Can you answers that 11 question without revealing classified information, I 12 mean if she can, then that's not a valid objection. 13 MS. HONG: To the -- 14 MS. WEISMANN: I'm happy to have you 15 talk -- 16 MS. HONG: How is it you're asking this 17 witness who is not a lawyer to tell you whether -- 18 MS. WEISMANN: But you are a lawyer, if 19 you want to talk to her and find out. 20 MS. HONG: You're asking how the United 21 States maintains classified information. 22 MS. WEISMANN: If you're instructing her


229 1 not to answer and you're not willing to find out 2 from her whether or not she can answer the question 3 without revealing classified information, you know 4 the record is what it is. 5 I mean she has testified that she deals 6 with classified information all the time. 7 MS. HONG: But not the structure and 8 logistics of how those classified records are 9 maintained. 10 THE WITNESS: I, I think we should -- 11 (Discussion off the record) 12 MS. HONG: Can you read back the 13 question or is there a question pending. 14 (Whereupon, the reporter read the 15 record as requested.) 16 MS. HONG: I will object and instruct 17 the witness not to answer about where or how 18 classified records are maintained or electronic 19 records are maintained. 20 You can ask her if electronic classified 21 E-mails are treated under the PRA. 22 MS. WEISMANN: Okay, but that question


230 1 aside, is there any aspect of my question that 2 you're allowing her to answer? 3 MS. HONG: I will allow this witness to 4 answer whether those as a classification matter 5 whether electronic E-mails that are classified from 6 the OVP are preserved pursuant to the PRA. 7 MS. WEISMANN: Right, I said putting 8 that aside, with your caveat, is there any aspect of 9 my question that she can answer. 10 MS. HONG: The physical location of 11 classified E-mails? 12 MS. WEISMANN: I didn't ask the physical 13 location. The question, can you read -- 14 MS. HONG: It gets to it. 15 MS. WEISMANN: I understand your 16 objection and I'm simply inquiring with that 17 objection in mind, is there any, the question as 18 posed, not where you think I'm going, because I have 19 no interest in classified information, the question 20 as posed, is there any aspect of it that she can 21 answer. 22 MS. HONG: Then whatever your interest


231 1 in this question is is not about the classification 2 of records into under the PRA and it's inappropriate 3 and outside the scope of discovery. 4 MS. WEISMANN: It's about the existence 5 of a set of records which is clearly within the 6 scope. 7 MS. HONG: You can ask her if a set of 8 records is covered by the PRA which is appropriate. 9 MS. WEISMANN: My question stands. 10 Are you, I don't know whether you're 11 permitted, with the objections and let me say for 12 the record that we have no interest in ascertaining 13 anything that's classified. 14 BY MS. WEISMANN: 15 Q. With the objections that your counsel 16 stated, is there any aspect of my question that you 17 can answer? 18 MS. HONG: And I will instruct you not 19 to answer about whether a dedicated server for 20 classified electronic mail from the office of Vice 21 President exists or not. 22 You may answer whether electronic


232 1 E-mails from the OVP that are classified are 2 preserved under the PRA. 3 THE WITNESS: Yes, electronic E-mails. 4 MS. WEISMANN: Well wait a minute, that 5 wasn't my question, so your counsel is free to ask 6 questions when she gets her turn, but right now, 7 this is my question. 8 MS. HONG: But the reason you're 9 asking -- 10 MS. WEISMANN: I, you, you have 11 misunderstood or misstated my reason. I don't see 12 how you could possibly know, but you are permitted 13 to ask her questions, Helen, when I'm done. 14 MS. HONG: And I'm maybe -- 15 MS. WEISMANN: But you're not permitted 16 to ask questions when I'm questioning her. 17 MS. HONG: I apologize for that I just 18 have to say, though, you suggested that the 19 propriety of the question goes to whether a category 20 of records exists or not. You can ask if classified 21 electronic E-mails exist. 22 MS. WEISMANN: I understand what I can


233 1 ask and I understand that you might ask my questions 2 differently, you're entitled to object to the 3 questions. 4 MS. HONG: Then the question as asked 5 has nothing to do with classification of records 6 under the PRA. 7 MS. WEISMANN: Fine. They're on the 8 record, it's noted. 9 Q. We want to take up with Judge Khollar 10 Kotelly the three memos. She is not available today 11 and has suggested that we contact her Wednesday 12 morning because tomorrow is a holiday. 13 MS. HONG: Uh-huh. 14 MS. WEISMANN: I would suggest that it 15 might be prudent since you apparently from, you've 16 raised objections and yet have not seen the memos, 17 you might want to confirm whether or not you have a 18 valid privileged objection, but I just offer that as 19 a suggestion because I think it would be the most 20 efficient use of the Court's time and if on 21 reflection and you look at the memos you decide that 22 you have no valid objection to that, then you can


234 1 let us know and so. 2 MS. HONG: And just to make clear, and 3 just to make clear the objection is not just 4 privileged it's also scope, but we can ascertain. 5 MS. WEISMANN: Right, what I'm saying, 6 actually you don't have a pending privileged claim 7 objection, the objection. 8 MS. HONG: No, we do, we didn't instruct 9 her not to answer on that ground because the scope 10 was enough bushings we do have both objections 11 pending. 12 MS. WEISMANN: Okay. If you are going, 13 if you are not going to continue in your objections 14 after you've reviewed the memos and I would direct 15 your attention to the first category in the Order 16 which expressly says the interpretation and 17 application of the PRA by any defendant and any 18 policies or record keeping practices related there 19 to or derived there from, so if upon reviewing the 20 scope of the discovery here and the three memoranda 21 you want to withdraw your objection, please let me 22 know.


235 1 If you objections do not stand, I mean 2 we may have to call her back for questioning or we 3 may approach this issue differently, so, I'm just 4 you know with that, I'm done with my questions, but 5 that is the one area that we had hoped to resolve 6 with the Court and unfortunately she's not here. 7 MS. HONG: Can did the Court explain 8 when we should contact or how? 9 MR. SOBEL: Wednesday morning. 10 MS. WEISMANN: So I think you and I 11 should talk Wednesday morning and then if it's still 12 necessary, we'll bring it to the Judge's attention. 13 MS. HONG: We have an appointment on 14 Wednesday morning? 15 MR. TYLER: Yes, we do. 16 MS. HONG: How early do you get in? 17 MS. WEISMANN: I don't know, why? It's 18 some, it's very important to us, it's also very 19 important for purposes of Thursday's deposition, so. 20 MS. HONG: No, that's -- 21 MS. WEISMANN: We need it resolve it. I 22 mean talk a call from somewhere other than your


236 1 office if that's -- 2 MS. HONG: No, why don't we plan on 3 talking at 9; is that, can we talk at 9 on 4 Wednesday? 5 MS. WEISMANN: Absolutely. 6 MS. HONG: If I'm not in a position to 7 provide you sort of a conclusive determination on 8 our part of what we will be bringing up with the 9 Court at that time, then I will let you know at that 10 time. 11 MS. WEISMANN: But I'll probably say we 12 need to call the Court any way. 13 MS. HONG: I'm hoping that we can call 14 the Court not at 9 but maybe at 11. I will speak 15 with you first, I just have another appointment. 16 MS. WEISMANN: But I'm saying I'm going 17 to want to call the Court, anyway, to get a time on 18 her schedule. 19 MS. HONG: Okay. 20 MS. WEISMANN: So I'm not going to be 21 willing to wait. 22 MS. HONG: That's fine.


237 1 MS. WEISMANN: We have nothing else. 2 MS. HONG: I have nothing. I just want 3 to reserve our rights to review the transcript. 4 (End 5:33 p.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

