crossing the line: the bush administration's efforts to expand its powerful reach

8/14/2019 Crossing the Line: The Bush Administration's Efforts to Expand Its Powerful Reach

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INTRODUCTION

Recent revelations about the actions of Vice President Cheney have highlighted what the

American public has long suspected -- this administration has put itself on a collision course

with the Constitution. Intent on exposing and curbing the constitutional abuses of the Bush

administration, CREW has been involved in a series of actions against the administration thathave brought to light examples of constitutional overreaching and abuse of executive power and

prerogative. This report details those actions in the hope of adding to the public debate on and

understanding of these issues.

Two general themes emerge from CREWs actions. First, the vice president is quietly

attempting to establish a body of case law that equates the power of the vice presidency with the

power of the presidency. Second, the administration is intent on expanding the limits of

executive privilege well beyond anything the framers could ever have imagined. The arguments

made by the government in the cases CREW has brought demonstrate that the Bush

administration is aggressively seeking to use the law to establish new boundaries expanding the

power of the executive branch.

THE NEW VICE PRESIDENCY UNDER MR. CHENEY

Proper Handling of Classified Information -- Not for Vice President Cheney

Recently it was revealed that the vice president has unilaterally exempted himself and his office

from the executive order that governs the safeguarding of classified national security

information. Mr. Cheneys justification for his extraordinary action is that the Office of the Vice

President (OVP) is not an entity within the executive branch because under the Constitution

the vice president serves as president of the Senate and, therefore, has both legislative and

executive duties. Interestingly, Mr. Cheney stopped complying with the executive order around

the same time that Scooter Libby, his then chief of staff, began leaking classified informationabout Valerie Plame Wilsons status as a covert CIA operative. Starting in 2003, the OVP

refused to provide the National Archives with data about its classification and declassification

activities, as the executive order mandates, and in 2004 it refused to allow the National Archives

to conduct an on-site inspection of the OVP. Despite the fact that the president issued the

executive, the vice president apparently believes he has the inherent authority to change that

order.

Not only did a member of Mr. Cheneys staff leak classified material, it appears that he

personally may have violated federal law governing the proper handling of classified information

by publicly confirming the publication of a classified document. In an interview with theRocky

Mountain News on January 9, 2004, in response to a question about the connection betweenSaddam Hussein and Al Queda, Mr. Cheney responded that the best source of information was a

Weekly Standardarticle that provided details, based on a Department of Defense assessment.

Transcript of Interview with Vice President Dick Cheney,Rocky Mountain News and Scripps

News Service, January 9, 2004. Immediately after the article to which Mr. Cheney referred was

published, however, the Department of Defense called the leak of the Defense assessment

deplorable and maybe illegal and members of the intelligence community, including the CIA

and the Senate Intelligence Committee, asked the Department of Justice to investigate the leak.


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1 Those other officials include Scooter Libby, Karl Rove and Richard Armitage.

2 Wilson v. Libby, Civil No. 06-1258, Memorandum of Points and Authorities in Support

of Defendant Vice President of the United States Richard B. Cheneys Motion to Dismiss(Document No. 21), p. 23.

3 The first draft of the Constitution presented to the Constitutional Convention in 1787

did not even include an office of the vice president. In fact, the framers created the vice

presidency as a means to resolve issues regarding the functioning of the electoral college and

selection of the president. Michael Nelson, A Heartbeat Away; Report of the Twentieth Century

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Walter Pincus, Memo Exacerbates Defense CIA Strains; Clue on Al Qaeda-Hussein Ties at

Issue, The Washington Post, November 20, 2003, A Section. On January 28, 2004, CREW

called on President Bush to direct the White House Counsel to initiate an investigation into Mr.

Cheneys actions. President Bush has never responded to CREWs request.

Simply stated, Mr. Cheney has demonstrated on at least two occasions that he and his staffcannot be trusted with classified information. Clearly based on this record, exempting the vice

president from procedures intended to safeguard classified information is not warranted and may

actually lead to further breaches of national security.

These examples are part of a growing list of naked power grabs by Vice President Cheney, often

articulated under the guise of a litigation defense.

Wilson Litigation and the Quest for Absolute Immunity

Valerie and Joseph Wilson sued Vice President Cheney, among other top administration

officials,1

for his role in leaking Valerie Wilsons identity as a covert CIA operative in retaliationfor Joseph Wilson publicly revealing a fundamental flaw in the administrations rationale for

going to war with Iraq. In response, Mr. Cheney argued that as vice president he was entitled to

absolute immunity from suit. According to Mr. Cheney, permitting the Wilsons lawsuit to go

forward against him would involve the courts in the review of core Executive functions . . .2

Apparently it suited Mr. Cheney to be part of the executive branch for purposes of mounting a

defense to the Wilsons lawsuit.

The fundamental problem with Mr. Cheneys assertion of a right to absolute immunity -- which

to date has never been extended to the vice president -- is that Mr. Cheney does not occupy the

unique position in the constitutional scheme that the Supreme Court has held warrants

according the president absolute immunity. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982).Unlike the president, the Constitution does not vest in the vice president unique and singular

duties that would make him the function equivalent of the president. Instead, the Constitution

gives the vice president two limited roles: (1) presiding over the Senate and breaking a tie in

Senate votes (Art. I, 3); and (2) succeeding the President (Art. II, 1), or taking over as acting

president under certain conditions (Amend. XXV, 3, Amend. XXV, 4).3


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Fund Task Force on the Vice Presidency (Priority Press Publications 1988).

4 Quoted in Joel K. Goldstein, The New Constitutional Vice Presidency, 30 Wake Forest

L. Rev. 505, 519 (1995).5 At the Presidents Side: The Vice Presidency in the Twentieth Century 192 (Timothy

Walch ed., Univ. of Missouri Press 1997).

6 They include Judicial Watch, the Democratic National Committee and The Washington

Post.

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It is no wonder that John Adams, the first vice president of the United States, lamented: [M]y

country has in its wisdom contrived for me the most insignificant office that ever the invention

of man contrived or his imagination conceived.4 Noted historian Richard Neustadt has

observed that little has changed over the course of American history: [The vice presidency] has

been dolled up with real estate, assistance, name recognition (and the hazards now common to

celebrity). But the essentials remain the same: the other person has all the authority.5

ThatPresident Bush, as a matter of personal choice, has elected to vest Vice President Cheney with

responsibility over a wide range of issues (in stark contrast to other 20th century vice presidents

such as Dan Quayle) does not change the simple reality that it is President Bush who has all the

authority.

Secret Service Litigation and Secret White House Deals

CREWs litigation over the status of Secret Service visitor logs as agency records subject to the

Freedom of Information Act (FOIA) has prompted the administration to reclassify the

agencys documents as presidential documents under the exclusive control of the White House.

In so doing, the vice president has argued that the constitutional protections afforded thepresidency apply with equal force to his office.

CREW and at least three other parties6 have filed FOIA requests seeking from the Secret Service

records of visits to the White House complex as well as the residence of the vice president. The

Secret Service creates these records as part of its legal mandate to protect the president, vice

president and their residences and offices. Fearing that such records would reveal with whom

top White House officials met, the White House and Secret Service entered into a secret

memorandum of understanding in the midst of litigation over the status of the visitor records that

declared them to be presidential rather than federal, meaning that they were not subject to the

FOIA. Months later, the vice presidents counsel sent a letter to the Secret Service demanding

that the Secret Service return any records relating to visits to the vice presidents residence.

In the debate over the legal status of these Secret Service visitor records, the vice president is

arguing for the same constitutional protections afforded the president. Records of visits to the

vice president, his office argues, cannot be revealed publicly because such disclosure would

significantly and impermissibly encroach on the confidential communications of the President,


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the Vice President, and their staffs. CREW v. U.S. Dept of Homeland Security, Civil No. 06-

1912, Memorandum of Points and Authorities in Support of Defendants Motion for Summary

Judgment (Document 29), p. 18.

The Supreme Court has recognized that communications among the president and his advisors

are protected under the presidential communications privilege by virtue of the unique positionthat the Constitution confers on the president. See, e.g., United States v. Nixon, 418 U.S. 683,

708 (1974). The presidential communications privilege is narrow, however, and applies to

documents solicited and received by the president or his immediate advisors in the Office of the

President in furtherance of the presidents decision-making and deliberations, and only to

communications the president believes should remain confidential. In re Sealed Case, 121 F.3d

729, 744 (D.C. Cir. 1997). Moreover, as the D.C. Circuit has warned, the presidential

communications should never serve as a means of shielding information regarding government

operations that do not call ultimately for direct decisionmaking by the President. Id. The

presidential communications privilege is a qualified privilege, meaning that it may be overcome

by a showing of need.

Under this clear authority, the vice presidents suggestion that disclosing Secret Service records

of visits to his office or residence would impermissibly encroach on his confidential

communications is legally unsound. The Constitution protects certain of a presidents

communications only because of the presidents unique constitutional duties, not shared by the

vice president. Mr. Cheneys effort to expand the power of his office to be co-extensive with

that of the president has no support in the Constitution.

THE ELASTIC CONCEPT OF THE POWER OF THE EXECUTIVE

In tandem with the vice presidents efforts to make his office the constitutional equivalent of the

president, the administration is seeking to expand more generally the power of the executive. Ofparticular danger is the fact that this expansion is limitless, as it is based on the notion that the

executive enjoys powers that neither Congress nor the courts have the authority to rein in.

Co-Opting Agency Records as Secret Presidential Records

The Secret Service litigation revealed not only the vice presidents belief that he enjoys the same

constitutional protection for his communications as the president, but also that the executive as a

whole believes it has the power to co-opt agency records as its own. In that case, the White

House is claiming that because some of the information in the visitor records could potentially

reveal things about the president and the vice president that they do not want made public, it has

the exclusive right of ownership and control over the records. Rather than relying on thestatutory scheme that Congress put in place when it enacted the FOIA and that provides

agencies with an opportunity to exempt materials that fall within nine specified categories, the

president and vice president are attempting to remove the records from the reach of the FOIA

altogether. If they prevail in their unilateral effort to transform agency records into presidential

records, the president and vice president will have placed these documents beyond the reach of


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7 See Without a Trace: The Story Behind the Missing White House E-Mails and the

Violations of the Presidential Records Act, available at

http://www.citizensforethics.org/files/04207WithoutATraceFullReport.pdf.

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the courts, Congress, and -- for the foreseeable future -- the public.

Moreover, the theory behind the executives efforts to transform agency records into presidential

records has no limits. There is nothing to stop the president or vice president from claiming as

their own the records of any other agency. All they need do is assert that the agency records

have information of interest to them that, if revealed, would compromise their ability to do theirjobs as they see fit. Just as problematic, the Secret Services visitor records do not reflect

confidential advice to the president for which constitutional protection has typically been

afforded. If the president and vice president are claiming that they may keep secret records that

merely reveal who visited the White House on any given day (but not necessarily who they

visited), what other kind of quotidian records that an agency maintains could be subject to the

same claim?

Hiding Behind the Presidential Communications Privilege for Hurricane Katrina

Documents

In other litigation, involving CREWs FOIA request of the Federal Emergency Management

Agency (FEMA) for Hurricane Katrina-related documents, the governments invocation of the

presidential communications privilege suggests an attempt to cover-up what President Bush

actually knew before, during and after the hurricane devastated the Gulf Coast. See CREW v.

U.S. Dept of Homeland Security, Civil No. 06-0173, Defendants Motion for Summary

Judgment and Memorandum of Points and Authorities in Support of Defendants Motion for

Summary Judgment (Document 12).

Not only is the governments position without merit, it too represents gross overreaching by the

executive. The government seeks to invoke the presidents privilege without identifying any

presidential decision of which the communications were a part and without claiming that thepresident, or anyone delegated to act on his behalf, is authorized to invoke a privilege that the

president alone enjoys. The governments reliance on the presidential communications privilege

under these circumstances is a far cry from the narrow, carefully circumscribed privilege that the

courts have recognized to date.

The Office of Administration and Playing Games With the FOIA

When CREW learned from confidential sources that the White House was missing over five

million emails from its own, internal server7 and that the Office of Administration (OA), a

component of EOP, had a cache of documents relating to the loss, CREW filed a FOIA request

with the OA for those documents. When the OA failed to produce a single document or identify


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a date by which it could respond, CREW filed suit. After court-supervised discussions, the

parties agreed to a time-table for processing CREWs request. The OAs first response, made on

June 21, 2007, was startling in a number of respects. Key among them was the OAs remarkable

assertion that it was responding to CREWs FOIA request as a matter of administrative

discretion, because it was not an agency. This is so, the OA asserted, because on occasion

it provides direct administrative support to the president.

Once again the administration is playing games with the FOIA and trying to unilaterally exempt

itself from that statutes mandatory provisions just on its say-so. And once again its position is

legally and factually unfounded. As the courts have recognized, executive branch entities like

the OA, whose responsibilities exceed merely advising and assisting the president, are subject to

the FOIA. Pacific Legal Found. v. Council on Environmental Quality, 636 F.2d 1259, 1263

(D.C. Cir. 1980); Energy Research Foundation v. Defense Nuclear Facilities Safety Bd., 917

F.2d 581, 584-85 (D.C. Cir. 1990). By contrast, where an entity within the EOP serves as the

functional equivalent of a presidential assistant, it is not subject to the FOIA. Meyer v. Bush,

981 F.2d 1288, 1294 (D.C. Cir. 1993).

The OA was established by executive order, and charged with [t]he primary

responsibility for performing all administrative support and service functions of units within the

Executive Office of the President . . . E.O. 12028, Sec. 5. The OAs responsibilities, however,

do not include those functions [that] are performed by the White House Office primarily in

direct support of the President. Id. (emphasis added). Accordingly, by definition the OA does

not provide exclusively the kind of direct assistance to the President that would place it outside

the reach of the FOIA. Moreover, the OA has long considered itself subject to the FOIA, has

promulgated FOIA regulations (5 C.F.R. Part 2502) and has an office that processes FOIA

requests. See http://www.whitehouse.gov/oa/foia.

CREWs FOIA request of the OA seeks documents that are potentially very damaging for theBush administration. These documents may well reveal that the White House has known for

almost two years about the missing emails and the fundamental problems with its electronic

record-keeping systems, yet has failed to take any corrective actions. Knowledgeable sources

have suggested to CREW that revelation of the dates for which the emails are missing --

information that is included in the documents CREW has requested -- may suggest that the

loss was not accidental, but purposeful. Of course, without the documents this cannot be

confirmed. The FOIA establishes a statutory right of access to this information; by the OAs

suggestion that it is not bound by the FOIA it seeks to override this right and prevent CREW and

the public from learning the truth about the missing emails.

CONCLUSION

These examples are by no means exclusive, but represent just a small sampling of the situations

in which the president and vice president have sought to stretch the Constitution to expand the

power of their offices. The vice presidents efforts to equate his office with that of the president

are especially troubling, given the degree to which he has abused and usurped executive power


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in a variety of contexts, from the creation of illegal policies on torture to the refusal to comply

with executive branch procedures for the handling and safeguarding of classified information.

Perhaps the public attention finally focused on the efforts of the president and vice president to

expand their powers will act as a deterrent against any future rogue abuses and highlight the needfor congressional and judicial intervention to restore the proper balance of power between the

three (not four, as Mr. Cheney would have it) branches of government. Sadly, given the record,

this seems overly optimistic.