Cheney gets last laugh

Vice President Dick Cheney has won his battle to withhold records from the public despite efforts by Congress and other critics who say they should be open to scrutiny.

The Democrats are conceding defeat. The party’s top investigator in the House of Representatives acknowledges that there is nothing more he can do to force the vice president’s hand.

{mosads}“He has managed to stonewall everyone,” said Rep. Henry Waxman (D-Calif.), chairman of the House Oversight and Government Reform Committee. “I’m not sure there’s anything we can do.”

Waxman said that despite Cheney’s turning this administration into “one of the most secretive in history,” there’s not much he or anyone else can do because the administration has only a few more months left in office.

Cheney argues that, as the tie-breaking vote in the Senate, he is not exclusively part of the executive branch and therefore not subject to the public-records standards that have been applied to past administrations.

Congressional probes, sometimes ignored by the Justice Department, have led nowhere, and prominent lawmakers are throwing their hands in the air.

A leading watchdog group agrees that Cheney will probably leave the White House without turning over the precise number of records he has determined to be classified or a detailed list naming whom he employs.

The Information Security Oversight Office (ISOO), a branch of the National Archives, confirmed that it does not possess any reports about what data Cheney’s office has classified or declassified. The Office of the Vice President (OVP) has previously done so in accordance with an executive order created by President Clinton in 1995, which aimed to create a uniform system of protecting classified information.

Similarly, Cheney’s staff information is not included in the Plum Book, which identifies all presidential-appointed positions. In the last Plum Book, the OVP was listed as Appendix 5, which stated that the vice president is part of neither the executive nor the legislative branch of government.

The Office of Personnel Management confirmed that at this time they do not possess any staff information from OVP for the Plum Book.

In addition, a Cheney aide wrote to the Office of Government Ethics (OGE) on June 2 that its disclosure requirements for privately paid travel records apply only to those who head an “agency in the executive branch.” In past letters to OGE, Cheney’s staff said he does not head an agency and would not have to disclose.

The aide did disclose, however, as “a matter of comity,” that no staff members accepted trips paid for by outside sponsors.

To find precedents for their position, Cheney staffers have sometimes reached back to arguments made by prior administrations. For example, one such staff letter to OGE cites an opinion given by President John F. Kennedy’s Justice Department in 1961 that states: “the Vice President belongs neither to the Executive nor to the Legislative Branch but is attached by the Constitution to the latter.”

Joel Goldstein, a constitutional law professor at St. Louis University, said that opinion would provide technical support that Cheney’s office was a “hybrid office,” but history since then indicates otherwise.

“This seems to be arguing form over substance. And it’s not even clear that the form is that strong,” said Goldstein, who has studied the vice presidency extensively. “The vice president has migrated closer and closer to the executive branch.”

{mospagebreak}Cheney has served as one of the most powerful vice presidents in history, acting as a close adviser to President Bush and offering input on some of the biggest decisions made by the administration

“Constitutionally speaking, he presides over the Senate — of course he is a member of the legislative branch,” said David Rivkin, a partner at Baker Hostetler. “The only executive power the vice president has is derivative of whatever the president decides. He has to wear two hats.”

Rivkin was an aide to two vice presidents, George H.W. Bush and Dan Quayle.

{mosads}To explain his position, a Cheney spokeswoman referenced an interview the vice president gave to CNN’s Larry King in July 2007. There, Cheney argued he was part of both the executive and legislative branches — being a presidential adviser as well as a National Security Council member, but also receiving his paycheck from the Senate.

“The vice president is sort of a weird duck in the sense that you do have some duties that are executive and some [that] are legislative,” said Cheney. “In terms of accountability, I’m accountable to [President George W. Bush].”

The refusal by Cheney’s staff to cooperate with ISOO sparked Waxman to write a letter to Cheney last summer questioning whether that was wise, given his office’s history of security breaches.

The matter was also referred by Congress to the Justice Department. But the department passed on following up, citing Bush’s belief that the vice president and his staff were not part of the executive branch and did not have to follow the president’s own executive order.

Cheney’s contention led to theater on Capitol Hill last summer. Rep. Rahm Emanuel (D-Ill.) introduced an amendment to the Financial Services spending bill that proposed stripping the OVP of its executive-branch funding. The measure failed by eight votes.

Rep. Walter Jones (N.C.), one of two Republicans who voted for the amendment, still stands by his vote.

“If you say you’re not a member of the executive branch, you shouldn’t be funded by the executive branch,” Jones said. “As long as you’re in office, you have a responsibility to show how you utilize your position.”

But despite Congress’s tough talk, Cheney has managed to keep his funding and hold onto his records. The question now is whether his unique position will survive into the next administration.

Steven Aftergood of the Federation of American Scientists, who has battled with OVP to release more information, thinks not.

“Vice President Cheney won the battles over non-disclosure, but I believe he has lost the war,” said Aftergood. “His position has become an object of public ridicule.”

Rivkin disagrees. Cheney’s stance was necessary for the executive branch, he said.

“There has always been a grander debate on whether accommodation between the two political branches is the path to choose or it is better to stand on one’s prerogatives,” said Rivkin. “You need to preserve the ability of future vice presidents and presidents to assert their prerogatives.”