Case 1:08-cv-01548-CKK Document 11 Filed 09/17/2008 Page 1 of 12

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’ REPLY IN SUPPORT O F PLAINTIFFS’ MOTION

FOR A PRELIMINARY INJUNCTION

Pursuant to the Court’s Order of September 16, 2008, directing plaintiffs to file a reply

“addressing whether a basis exists for issuing a preliminary injunction at this time” or,

alternatively, “indicate to the Court that no such basis exists,” plaintiffs respond as follows.

1. Defendants Have Not Demonstrated Full Compliance With The PRA.

Defendants’ opposition to plaintiffs’ motion for a preliminary injunction (“Ds’ Oppos.”)

not only does not obviate the need for a preliminary injunction, but it highlights all the more why

the requested preservation order is critical to prevent irreparable harm. Far from supplying the

requisite assurances that defendants are complying fully with the Presidential Records Act

(“PRA”), the defendants’ declarations offer carefully parsed language establishing only that

defendants are preserving two subsets of vice presidential records. The declarations do not even

address, much less allay, the central concern behind plaintiffs’ lawsuit -- that the vice president

considers himself in a wide variety of contexts to function outside of the executive branch and,

accordingly, will not preserve under the PRA the records that document those functions. Given

the enormity of what is at stake -- quite literally our nation’s history -- the vice president’s past
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comments and actions regarding his right to control his records and the records of his office as

he sees fit, notwithstanding court orders or congressional subpoenas, highlight in graphic relief

the need for a preservation order. Absent the requested preliminary relief, the vice president will

be left with a loophole in the PRA large enough to drive truckloads of documents through.

As set forth in plaintiffs’ complaint and their motion for a preliminary injunction, this

lawsuit is based on the position of the vice president, expressed repeatedly in a variety of

contexts from his office’s handling of classified information to OVP travel funded by outside

sources, that he is not part of the executive branch. Indeed, the Plum Book describes the vice

presidency as “a unique office that is neither a part of the executive branch nor a part of the

legislative branch . . .”1

Accordingly, the issue here is not, as defendants argue, whether the vice president and

the Office of the Vice President (“OVP”) are properly preserving records regarding the

“executive-related and legislative-related duties” of the vice president. See Ds’ Oppos. at 1, 2, 3,

7, 8, 11, 15, 16. It is all well and good for defendants to offer the declaration of Claire M.

O’Donnell (“O’Donnell Decl.”) attesting to the OVP’s preservation of such records. See

O’Donnell Decl. at ¶ 5.2 But, as a careful reading of defendants’ brief and supporting declaration

1
A copy of this portion of the Plum Book is Exhibit 1 to Plaintiffs’ Memorandum of
Points and Authorities in Support of Plaintiffs’ Motion for a Preliminary Injunction (“Ps’
Mem.”).
2
Of note, Ms. O’Donnell is completely silent as to what, if anything, the vice president is
preserving, does not represent that she or the OVP have exclusive responsibility for all of the
vice president’s records, and is careful to limit her representations to those records that are
within the OVP’s “possession, custody or control . . .” O’Donnell Decl. at ¶¶ 1, 7. The vice
president, however, is a separately sued defendant in this lawsuit and, like the OVP, is also
subject to the PRA.

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reveals, those assurances cover only those executive-related functions “specially assigned to the

Vice President by the President in the discharge of his executive duties and responsibilities,”3

and the legislative-related functions consist only of “the Vice President’s functions as President

of the Senate.” Ds’ Oppos. at 8; O’Donnell Decl. at ¶¶ 3, 5. Any and all other responsibilities

and functions that the vice president performs are not included in the very specific assurances

offered by the OVP.

Yet it is those other responsibilities and functions that are at the core of this dispute.

Vice President Cheney’s tenure has been remarkable in large part because of the extraordinary

power and independence he has yielded. Just last week, for example, The Washington Post

reported on his efforts and the efforts of his office, with no apparent knowledge, involvement or

direction of the president, to undermine the Department of Justice’s refusal to certify the legality

of the administration’s warrantless domestic surveillance program. See Barton Gellman,

Conflict Over Spying Led White House to Brink, The Washington Post (September 14, 2008),

available at www.washingtonpost.com/wp-dyn/content/article/2008/09/13. Even more to the

3
This definition appears to flow from 3 U.S.C. § 106, which defendants imply offers a
definitive definition of the vice president’s functions. Ds’ Oppos. at 7. See also O’Donnell
Decl. at ¶ 3. Far from being a definitive cataloging of the vice president’s executive functions,
that statutory provision authorizes the vice president to procure staff as well as experts and
consultants and authorizes funds to be appropriated to the OVP to cover “official expenses,” the
“official entertainment expenses of the Vice President,” and travel expenses of government
personnel traveling on official business with the vice president. 3 U.S.C. §§ 106 (b)(1)-(3).
Indeed, when faced with the vice president’s extreme position that he is not part of the executive
branch, Congressman Rahm Emanuel (D-IL) offered an amendment to the General Government
Appropriations Act of 2008 that would have barred executive branch appropriations from being
used to fund the Office of the Vice President. See http://www.thomas.gov/cgi-
bin/bdquery/D?d110:27:./temp/~bdZhve:: In any event, defendants surely are not arguing that
through legislation Congress has the ability to define and dictate to the president the vice
president’s precise duties and parameters.

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point, this lawsuit is premised on the vice president’s view that in performing a variety of

functions he is not a part of the executive branch and accordingly is not discharging “executive

duties and responsibilities.” As a result, records of how he performs these duties and

responsibilities would fall outside the categories of records the OVP claims to be preserving.

Perhaps recognizing the limitations of their declarations, defendants fall back on the

argument that they are entitled to a presumption of regularity and good faith. Ds’ Oppos. at 12.

The White House’s fulfillment of its record keeping requirements, however, has been anything

but regular and in good faith. Having failed to put in place an effective and appropriate

electronic record keeping system, the White House is now faced with the disappearance of

millions of emails from White House servers that span a critical two and one-half year period.

Internal White House emails produced in response to congressional and other subpoenas have

revealed that top White House officials purposefully used outside email accounts to conduct

official White House business so that their emails would not be captured by and preserved on

White House servers. The lines of communication between the White House and the National

Archives and Records Administration (“ NARA”) as to its record keeping practices have been

anything but open. For example, NARA did not learn that the Office of Administration no

longer considers itself an agency until it read about the new position in the newspaper, even

though this changed status has profound implications for record keeping and NARA’s role. The

White House’s past history and the limitations of the declarations it offers here are at odds with

any presumption of regularity and good faith.

Defendants also fault the plaintiffs for wasting court resources and attempting to engage

the Court in a “superfluous task.” Ds’ Oppos. at 3. Ironically, it is the defendants with their

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careful wordsmithing and failure to even acknowledge, much less come to terms with, the body

of records actually at issue, that are guilty of such conduct. Defendants’ bold assertion that they

are complying with 44 U.S.C. § 2207 is not backed up by the evidence they have placed in the

record. Nor are defendants in a position to challenge the need for this lawsuit, given their refusal

to respond to plaintiff CREW’s pre-litigation requests for assurances that all of the vice

presidential records are being preserved and will continue to be preserved. See Letter from

Melanie Sloan to Vice President Cheney, July 8, 2008 (attached as Exhibit 5 to Ps’ Mem.) and

Letter from Anne Weismann to Gary M. Stern, July 21, 2008 (attached as Exhibit 6 to Ps’

Mem.).

The Court’s September 16 Order also notes defendants’ denial that they have issued

guidelines excluding any vice presidential records from the requirements of Section 2207,

backed up by sworn declarations. Order at p. 2. Again, however, those denials are tied to

defendants’ definition of vice presidential records as encompassing only those related to

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

duties and responsibilities,” O’Donnell Decl. at ¶ 5, and the vice president’s functions “as

President of the Senate, id. at ¶ 3.4 Thus, the sworn declaration of Claire O’Donnell is of limited

value in addressing the core of plaintiffs’ concerns underlying their request for a preliminary

injunction. And the declaration of NARA’s Nancy Kegan Smith (“Smith Decl.”) confirms -- not

disputes -- NARA’s policy of leaving it to the discretion of each individual vice president as to

whether their legislative papers will be treated as personal papers or as subject to the PRA. See

4
In fact, the O’Donnell declaration confirms that the OVP at least has a policy of treating
only those papers related to the executive-related and legislative-related functions of the vice
president, as she defines those terms, as subject to the PRA.

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Smith Decl. at ¶ 4.5

The Court’s Order also notes that many of plaintiffs’ allegations are made “upon

information and belief.” In fact, factual assertions in only three paragraphs of plaintiffs’ 72-

paragraph complaint are made on information and belief (¶¶ 35-57), and two of those paragraphs

deal with the maintenance of the vice president’s records at the White House (facts that

defendants do not dispute). Moreover, given the extraordinary and unprecedented secrecy with

which this White House has operated, plaintiffs and the public at large have had no access to any

specific facts regarding which records the vice president has preserved or the guidelines he and

his office use to determine whether records fall within the scope of the PRA. Defendants’

carefully worded declarations not only do not dispute plaintiffs’ factual assertions, but actually

confirm that, at a minimum, the OVP has a policy of treating as subject to the PRA only those

vice presidential records related to Vice President Cheney’s “specially assigned” functions from

the president and his functions as President of the Senate.6

5
Ms. Smith describes NARA’s policy as treating the legislative records of vice
presidents as “covered under the PRA, absent an express indication from the former Vice
President or his representative that such records are considered to be ‘personal’ in nature.” Id.
Gary Stern, NARA’s general counsel, offered a slightly different formulation -- that NARA
treats the legislative records of a vice president as their personal records to be included in a
presidential library at the discretion of each vice president. See Exhibit 6 to Ps’ Mem. No
matter the phrasing, each leaves it to the discretion of the vice president to treat his legislative
records as personal or to have them included in presidential libraries as if they were subject to
the PRA.
6
Defendants also eschew any reliance on Executive Order 13,233 “ to exclude any vice
presidential records of the vice presidency of Richard B. Cheney from the requirements of
section 2207 of title 44 . . .” O’Donnell Decl. at ¶ 7. But this denial, like the defendants’
assurances of preservation, rests on the same definitional tautology -- that “vice presidential
records” consist only of those that deal the vice president’s “specially assigned” functions from
the president as well as his functions as president of the Senate. Just as unavailing is defendants’
contorted effort to explain away the effect of the executive order as not limiting the scope of the

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2. Defendants Have Not Refuted The Irreparable Harm Plaintiffs Face

Absent The Requested Preliminary Injunction.

Defendants’ arguments on the absence of any irreparable and certain harm rest entirely

on their so-called assurances that they are complying fully with the PRA thereby obviating any

need for a preservation order. They therefore urge this Court to adopt the same approach as that

adopted by the court in CREW v. U.S. Dep’t of Homeland Security, No. 06-1912 (D.D.C. March

14, 2007). Ds’ Oppos. at 12. In that case, Judge Penn concluded that CREW’s request for a

temporary restraining order requiring preservation of all records at issue was moot after a

hearing and the submission by the defendants of declarations that offered “sufficient assurances

that the universe of records at issue is being properly preserved pending the outcome of this

litigation.” Order at p. 2 (Exhibit 3 to Ds’ Oppos.). But, as Judge Penn noted in his order,

CREW accepted those assurances and agreed the case was moot precisely because the

declarations went to the entire universe of records at issue.

Here, by contrast, defendants have not offered sufficient assurances that the entire

universe of records at issue is being properly preserved pending the outcome of this lawsuit. As

discussed supra, defendants have demonstrated at most that they are preserving two subsets of

vice presidential records. But they have not demonstrated -- indeed, they have not even

addressed -- that they are preserving the records that are at the core of this controversy.

Accordingly, in the absence of sufficient assurances here, Judge Penn’s order does not provide a

PRA. See Ds’ Oppos. at 7 n.2. By its plain language, section 11of E.O. 13,233 provides
unequivocally and without limitation that the PRA “applies to the executive records of the Vice
President.” That this is a limitation on which of the vice president’s records are subject to the
PRA could not be clearer and defendants’ post-hoc attempt to change its meaning is
transparently inadequate.

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template for this Court to follow.

Defendants also suggest that plaintiffs delayed filing suit and that such delay belies their

claims of immediate and irreparable harm. Ds’ Oppos. at 11 n.3. This is not accurate. When

President Bush issued E.O. 13,233 in November 2001, plaintiffs had no way of knowing the vice

president would take the extraordinary and unprecedented position that he is not part of the

executive branch. At the point that the vice president’s actions and their meaning became clear,

plaintiff CREW wrote letters to both NARA and the vice president seeking assurances of their

full compliance with the PRA. It was only after defendants failed to respond in any way to those

letters that plaintiffs filed suit.

Finally on this point, should there be any remaining doubt about the irreparable and

imminent harm plaintiffs face, plaintiffs offer the declarations of plaintiff Stanley Kutler and

Anna Nelson, a member of plaintiff Organization of American Historians, evidencing their

standing to sue and the harm they will suffer absent judicial relief.7 Professor Kutler has made

extensive use of the records of former presidents and vice presidents in his historical research; it

was his lawsuit that resulted in the disclosure of President Nixon’s tapes. Declaration of Stanley

I. Kutler (“Kutler Decl.”), ¶¶ 2, 3. Professor Kutler plans to research Vice President Cheney’s

advocacy of a “unitary theory” of government which will, of necessity, depend on his full access

to the vice president’s papers. Id. at ¶ 6. If Professor Kutler’s well-founded concern that Vice

President Cheney will leave office with many of his records is realized, Professor Kutler will be

7
Professor Kutler is traveling and sent a facsimile copy of his declaration to plaintiffs’
counsel for filing in this action. He inadvertently failed to sign his declaration, however, and
counsel has been unable to reach him to secure a signed copy for filing by the 5:30 p.m.
deadline, set by this Court last evening. Thus, plaintiffs file herewith as Exhibit 1 Professor
Kutler’s unsigned declaration, and will submit a signed copy as soon as their counsel secures it.

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deprived of records critical to his research. Id. at ¶ 7.

Professor Anna Nelson, a member of plaintiff Organization of American Historians, also

attests to the critical need to preserve all of the vice president’s records subject to the PRA.

Declaration of Anna Kasten Nelson (“Nelson Decl.”) at ¶¶ 1, 4-5. As Professor Nelson explains,

Vice President Cheney “has been at the center of policy making in the Bush White House.” Id.

at ¶ 4. As a result, “[w]ithout all of his memoranda, letters and notes history will tell only half

the story.” Id. Like Professor Kutler, Professor Nelson’s legitimate fear that Vice President

Cheney “will defy the PRA and either destroy his records or secrete them from the American

public,” leaving her facing imminent and concrete harm. Id. at ¶ 5.

3. The Requested Injunctive Relief Best Serves The Public Interest And Imposes
No Undue Burden On The Defendants.

The stakes in this litigation are enormous; riding on the balance is the public’s right to

access a full history of this administration. Given the harm plaintiffs and the public face, there is

no question that the public is best served by the issuance of the requested preservation order.

Defendants argue nevertheless that the public would be ill-served by the requested relief

because it would “greatly expand the possibility of Rule 65 abuse.” Ds’ Oppos. at 14. This is

nonsensical. Courts are fully equipped to prevent such abuse on a case-by-case basis. But

where, as here, defendants fail to respond to the central allegations of the complaint and offer

declarations that ignore, not refute, those allegations it is not the plaintiffs who can legitimately

be accused of abusing the court’s powers.

Defendants make the same kind of sweeping generic argument as to why the requested

relief would unduly burden them, namely that it would create a precedent that “would subject

countless government agencies or officials to prophylactic motions at the outset of cases . . .”

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Ds’ Oppos. at 14. But the relief plaintiffs request here is based on the actions of the defendants

and corresponds directly to the significance of the harm plaintiffs will suffer absent a

preservation order.

Defendants also argue that the requested relief is over-broad because it would impose

preservation obligations on the vice president for records related to his executive-related

functions, which are not at issue. Ds’ Oppos. at 15-16. Defendants misconstrue the nature of

plaintiffs’ claims and ignore defendants’ own severely truncated definition of “executive-related

functions” that provides proof positive as to why a broader preservation order is warranted here.

This dispute arose from defendants’ efforts to define too narrowly the scope of vice presidential

records subject to the PRA. The only appropriate relief that addresses this concern is a

preservation order requiring defendants to preserve all vice presidential records that are not

purely personal as defined in the PRA; anything less is under-inclusive and threatens the

permanent and irreparable loss of records belonging to the American public.

4. Plaintiffs Have A Likelihood Of Success On The Merits.

Defendants devote little attention to the merits of plaintiffs’ claims, suggesting there is no

case or controversy because the OVP has been carrying out its obligations under the PRA. Ds’

Oppos. at 17. As discussed supra, this remains very much in dispute. Moreover, defendants

have offered nothing to demonstrate that four of the five named defendants -- the vice president,

the Executive Office of the President, the archivist, and the National Archives and Records

Administration -- are fulfilling their obligations under the PRA.

Defendants also argue that plaintiffs have not demonstrated sufficient harm for standing

to sue. While plaintiffs will address this argument more fully in their motion for summary

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judgment, scheduled to be filed on September 22, 2008, it is worth noting now that this case

differs significantly from the cases on which defendants rely. See Ds’ Oppos. at 17. There is

nothing “conjectural” or “hypothetical” about the fact that if the vice president does not transfer

all of his vice presidential records to NARA at the end of this administration, nobody -- not these

plaintiffs and not any other potential plaintiff -- will be able to access those records, particularly

if they are destroyed in the interim.

Defendants’ additional merits arguments are actually nothing more than argument

headings, lacking in any analysis or explanation, and will be addressed fully in plaintiffs’

forthcoming merits brief. The Court’s power to review this case stems from the Administrative

Procedure Act (“APA”), which authorizes judicial review over NARA’s and the archivist’s

actions,8 the Declaratory Judgment Act, the mandamus statute, 28 U.S.C. § 1361, and the PRA

under the direct authority of Armstrong v. Nat’l Sec. Archive, 1 F.3d 1274 (D.C. Cir. 1993).

CONCLUSION

For the foregoing reasons as well as those set forth in plaintiffs’ opening brief, plaintiffs

respectfully submit that there remains a clear basis for the preliminary injunctive relief plaintiffs

seek. Defendants’ opposition and supporting declarations at most demonstrate that defendants

are preserving a subset of vice presidential records. Unaddressed, however, are the records at the

core of this lawsuit. Accordingly, the Court should enter the requested relief.

Respectfully submitted,

8
Defendants disingenuously argue there is no APA review here because the vice
president is not an agency. Ds’ Oppos. at 18. But plaintiffs have not relied on the APA as
authority for the court to review the actions of the vice president, as a careful reading of the
complaint makes clear.

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/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
Washington, D.C. 20005
Phone: (202) 408-5565
Fax: (202) 588-5020

Dated: September 17, 2008 Attorneys for Plaintiffs

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