Case 1:08-cv-01548-CKK Document 14 Filed 09/19/2008 Page 1 of 7

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND :

ETHICS IN WASHINGTON, et al., :
:
Plaintiffs, :
:
v. : Civil Action No. 08-1548 (CKK)
:
THE HON. RICHARD B. CHENEY, et al., :
:
Defendants. :
____________________________________:

PLAINTIFFS’ MOTION TO SET ASIDE BRIEFING SCHEDULE AND

MEMORANDUM OR POINTS AND AUTHORITIES IN SUPPORT

On September 10, 2008, this Court set a briefing schedule on the merits of plaintiffs’

claims by which plaintiffs were to file a motion for summary judgment no later than September

22, 2008. Order of September 10, 2008, p. 2 (Dkt. 4). The Court’s order anticipated an

agreement between the parties that obviated the need to litigation plaintiffs’ motion for a

preliminary injunction. When that agreement failed to materialize, the Court ordered briefing on

plaintiffs’ motion, but kept intact the schedule for briefing on the merits.

As part of their opposition to plaintiffs’ requested injunctive relief, defendants submitted

two declarations of Claire M. O’Donnall, Assistant to the Vice President and Deputy Chief of

Staff,1 as well as the declaration of Nancy Kegan Smith, Director of the Presidential Materials

Staff at the National Archives and Records Administration (“NARA”). According to defendants,

1
The second declaration was submitted pursuant to the Court’s order that defendants
respond to the question of whether defendants’ use of the phrase “the constitutional, statutory, or
other official or ceremonial duties and responsibilities” exclusively encompasses “‘the functions
of the Vice President as President of the Senate’ and ‘the functions of the Vice President
specially assigned to the Vice President by the President in the discharge of executive duties and
responsibilities.” Order of September 17, 2008 (Dkt. 12).
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these declarations demonstrate that there is no dispute because defendants are preserving all

records at issue in this litigation. See, e.g., Defendants’ Response to the Court’s Order of

September 17, 2008, at p. 2 (Dkt. 13) (“Ds” Resp. on PI”). From this defendants argue that not

only must plaintiffs’ motion for a preliminary injunction be denied, but plaintiffs’ claims should

be “dismissed in their entirety.” Id. at 3.

In fact, however, these declarations raise questions that are very material to the resolution

of plaintiffs’ claims and for which plaintiffs need answers before they can move for summary

judgment. Although defendants now claim they are preserving everything at issue, they have

still failed to account for all documents created or received by the vice president and the Office

of the Vice President (“OVP”) in fulfillment of his constitutional, statutory, or other official or

ceremonial duties. Perhaps most critically, they have failed to even mention, much less explain

the disparity between the vice president’s position throughout this presidency that he is not part

of the executive branch and the latest claim of the OVP that it is preserving all records at issue.

As a result, there are very clearly material facts at issue.

First and foremost, defendants have failed to come to terms with the blatant inconsistency

between the position the vice president has taken -- that he is not part of the executive branch --

and their latest position here that records of his “executive functions” coupled with records of his

function as president of the Senate account for all records at issue. See, e.g., Supp. O’Donnell

Decl. at ¶ 6. Notably, both declarations speak only to the vice president’s “discharge of

executive duties and responsibilities.” But this vice president claims he is not part of the

executive branch, a claim that borders on the ridiculous but a claim he makes nevertheless.

Thus, defendants’ statement that “[a] Vice President has no executive functions unless they are

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specially assigned to the Vice President by the President,” sidesteps the issue of all those

functions the vice president performs in his self-proclaimed non-executive branch capacity.

Second, the defendants’ declarations represent a commitment to preserve and transfer to

NARA only those documents “within the possession, custody, or control” of the OVP.

Declaration of Claire M. O’Donnell, September 16, 2008 (“First O’Donnell Decl.”), ¶ 7. But

the OVP is merely an office of individuals that serves as the small personal staff of the Vice

President. It is not the vice presidency itself.

By contrast, the documents within the possession and control of the vice president, who

is a separately sued defendant in this litigation, are still completely unaccounted for. Defendants

have made no preservation commitments as to those records. Indeed, defendants’ proposed

stipulation in lieu of litigating plaintiffs’ motion for a preliminary injunction involved only the

OVP, omitting entirely the other two White House defendants -- the vice president and the

Executive Office of the President. Also unaccounted for are any records that the vice president

maintains in his Senate office.2

These omissions raises critical questions that must be answered before plaintiffs can

move for summary judgement based on a lack of dispute over material facts. Specifically, how

is the vice president treating all of his records that are not in the custody and control of the OVP,

including records at his Senate office?

2
Of note James Steen, who served for many years as Vice President Cheney’s personal
archivist, currently serves as a special assistant to the vice president employed by the Senate
Office of the Vice President. See
http://www.legistorm.com/office/Senate_Office_of_the_Vice_President/15.html (last visited
Sept. 19, 2008). See also BARTON GELLMAN, ANGLER THE CHENEY VICE
PRESIDENCY 23 (2008) (describing James Steen’s role as “personal archivist” for Mr.
Cheney).

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Third, while purporting to account for all of the records at issue, the declarations use

imprecise and undefined language. Ms. O’Donnell’s second declaration attests that all of the

“governmental functions” of the vice president are accounted for. Supplemental Declaration of

Claire M. O’Donnell (“Supp. O’Donnell Decl.”), ¶ 6 (Dkt. 13-2). But what does this term mean?

It certainly is not rooted in an constitutional, statutory or case law text to plaintiffs’ knowledge.

Similarly, Ms. O’Donnell insists that the only executive functions the vice president performs

are those “specially assigned to the Vice President by the President in the discharge of executive

duties and responsibilities” and that this is all-encompassing. Supp. O’Donnell Decl., ¶¶ 5, 6.

But this term, borrowed from appropriations legislation (3 U.S.C. § 106), does not match up with

reality.

For example, still unaccounted for are records of the statutory obligations that the vice

president performs, such as his membership on the National Security Council, see 50 U.S.C. §

402(a), and the Board of Regents of the Smithsonian Institution. See 20 U.S.C. § 42. Neither of

these functions is “specially assigned” by the president, and neither is accounted for in

defendants’ declarations.

More broadly, the vice president serves as an advisor to the president, a role that goes

well beyond any “specially assigned” functions. And there are instances where the vice

president has acted entirely without the president’s knowledge, actions that cannot reasonably be

characterized as “specially assigned” by the president. See, e.g., Barton Gellman, Conflict Over

Spying Led White House to Brink, The Washington Post (September 14, 2008) (describing the

efforts of Vice President Cheney and his office to undermine the Department of Justice’s refusal

to certify the legality of the administration’s warrantless domestic surveillance program, with no

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knowledge of the president).

The use of such imprecise and under-inclusive language raises questions going to the

heart of this controversy which must be answered before plaintiffs are in a position to move for

summary judgment. For example, how are defendants treating those records the vice president

creates and receives in fulfillment of his statutory responsibilities? How are defendants treating

those records that the vice president creates and receives when he is performing functions not

“specially assigned by the president,” including functions of which the president has no specific

knowledge? And how are defendants treating records that the vice president receives and

creates as advisor to the president?

Simply too many questions remain about whether defendants have, in fact, accounted for

all of the vice presidential records covered by the Presidential Records Act (“PRA”).3 The high

stakes at issue here call for caution and surety. Defendants’ declarations have raised as many

questions as they purport to answer, questions that go to the core of this dispute. Absent

answers, there remain material facts in dispute and plaintiffs are therefore not in a position to

move for summary judgment at this time.

This problem is compounded by the fact that to date, defendants’s carefully worded

submissions have relied on terms that have no commonly understood meaning, such as

“specially assigned functions” and “governmental functions.” Thus, attempting to obtain

answers to these fundamental questions through paper discovery is not likely to resolve anything.

Accordingly, plaintiffs will seek leave to depose Claire O’Donnell -- the individual defendants

3
In this regard it bears noting that the PRA includes everything but purely personal
records, making no distinction between executive and legislative functions.

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have proffered to address the defendants’ record keeping practices -- to answer questions that

her declarations raise. In the interim, further briefing on the merits should be postponed.

CONCLUSION

For the foregoing reasons, plaintiffs respectfully request that the Court set aside the

briefing schedule to permit plaintiffs to obtain limited discovery on key issues. This approach

will facilitate a prompt resolution of this litigation, given the questions raised by defendants’

latest filings.

Pursuant to LCvR 7.m, counsel for plaintiffs contacted counsel for defendants on

September 19, 2008, to discuss this motion. In the course of two conversations plaintiffs’

counsel explained the basis for this motion and also inquired whether defendants would be

willing to sit down with plaintiffs to discuss the questions that defendants’ declarations raise.

Defendants through their counsel represented that they oppose this motion and that they view it

as an attempt to respond to the supplemental declaration without leave to do so. Plaintiffs

absolutely dispute this characterization of their motion which, as they pointed out to defendants’

counsel, is necessitated by the briefing schedule currently in effect, by which plaintiffs are to file

a summary judgement motion by Monday, September 22, 2008. Defendants indicated no

willingness to meet with plaintiffs to address the questions raised by defendants’ declarations.

Respectfully submitted,

/s/
Anne L. Weismann
(D.C. Bar No. 298190)
Melanie Sloan
(D.C. Bar No. 434584)
Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W., Suite 450

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Washington, D.C. 20005

Phone: (202) 408-5565
Fax: (202) 588-5020

Dated: September 19, 2008 Attorneys for Plaintiffs