A promising start:
A U.S. federal judge on Saturday ordered Vice-President Dick Cheney to preserve a wide range of records from his time in office.
The decision by U.S. District Judge Colleen Kollar-Kotelly is a setback for the Bush administration, which has been pushing for a narrow definition of materials that must be safeguarded under the Presidential Records Act.
Don't celebrate yet, but CREW (who are the plaintiffs) have won the first round in the battle to get the Judicial branch to agree that the Vice-President, is, in fact a member of the executive branch, which is actually what Cheney's defence hinges on here. However, the injunction is an extraordinary measure while the Court considers the matter. Kollar-Kotelly might end up ruling in Cheney's favour, but at least for the time being, Cheney can't fax his records to Shredderville quite so easily.
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| The 22 page ruling itself is largely focused on the legal grounds for when a court should consider a preliminary injunction on pending litigation. Basically, the plaintiffs, CREW were able to establish that they had a reasonable chance at success, and that irreparable harm could be caused to their action without the injunction (since Cheney might nuke a bunch of records preemptively if his lawyers felt they were going to lose).
Apparently the Judge was alarmed that Cheney's people would not even agree to preserve records while the Court was considering the case, even though the Court expects to have ruled on this prior to Cheney leaving office.
Cheney's position is a creative interpretation of the post-Watergate Presidential Records Act (PRA) in which
[...]Defendants admit that they interpret the PRA to cover only documentary material reflecting the "functions of the Vice President specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities" and the "functions of the Vice President as President of the Senate." (p16)
So basically, Cheney's position is that he is only subject to the PRA when doing stuff the President tells him to do in writing, or when he is acting as President of the Senate. Otherwise, apparently he is just some guy with a neat office with a giant safe and the act couldn't be talking about little ol' him.
What gives me hope that Kollar-Kotelly is dubious about Cheney's position is that she quotes the Supreme Court decision which upheld the predecessor to the PRA, Nixon v Administrator of General Services:
The legislative history of the [PRMPA] clearly reveals that, among other purposes, Congress acted to establish regular procedures to deal with the perceived need to preserve [Presidential] materials for legitimate historical and governmental purposes. An incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations. Nor should the American people's ability to reconstruct and come to terms with their history be truncated by an analysis of Presidential privilege that focuses only on the needs of the present. Congress can legitimately act to rectify the hit-or-miss approach that has characterized past attempts to protect these substantial interests by entrusting the materials to expert handling by trusted and disinterested professionals. (p14)
And she goes on to note sceptically about Cheney's position:
In flatly asserting that the PRA's statutory language is limited in the manner that they apparently perceive it to be, Defendants do not explain how a narrowing construction accords with these myriad concerns or accomplishes Congress's goals. (p15)
Which is really throwing the gauntlet down on Cheney that she will not be deferential, and will take into account the clear legislative intent of the PRA, and not allow him to whittle it into uselessness by parsing semantics to arrive at absurd results. She's clearly sympathetic to the idea of the PRA too:
Finally, the Court concludes that the public interest is undoubtedly served by ensuring that all documentary material potentially encompassed by the PRA's statutory language is actually preserved as Congress saw fit in enacting the PRA. (pp19-20)
I suspect Cheney will need to look up that obscure term "public interest" as he probably has not heard it spoken aloud in decades, living in his safe bubble of Fox News and speeches to militant veterans groups.
I had written a little about Kollar-Kotelly when I was researching the FISC to demonstrate it was a right wing star chamber, but she was one of the blank slates in my research. I'm liking what I see here, though admittedly the bar is fairly low: All she has to do here is say "duh, of course the Vice-President is part of the executive branch" in legalese, but she has cleared it with room to spare.
The ruling itself shows Kollar-Kotelly is aware of Cheney's love for absurd legal interpretations and leaves him no room:
the Court shall order all Defendants to preserve throughout the pendency of this litigation all documentary material, or any reasonably segregable portion thereof created or received by the Vice President, his staff, or a unit or individual of the Office of the Vice President whose function is to advise and assist the Vice President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the Vice President, without regard to any limiting definitions that Defendants may believe are appropriate.
Ha. "without regard to your bullshit interpretation of the law, keep everything"
So this bears watching. |
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