Dick Cheney may be in a wheel-chair -- but did he get away with pulling a fast one as he left office?
Yesterday we noted that a court had declined to compel Cheney's office to hand over all of its records to the National Archives -- instead taking the word of a low-ranking vice-presidential aide that she would do so.
As we said, the plaintiffs -- a group of historical and non-profit organizations -- are still concerned that key documents are missing. And after speaking to them, it's easy to see why.
"There's all kinds of wiggle room" within the pledge by Cheney's aide, Claire O'Donnell, that might have allowed the veep to withhold key material, Stanley Kutler, a historian and a professor at the University of Wisconsin, and one of the plaintiffs in the case, told TPMmuckraker.
He added: "Why is [Cheney] fighting so much if he didn't have the intention of absconding with the stuff?"
Kutler called O'Donnell's deposition in the case "a triumph of obfuscation." But the bigger issue may be that O'Donnell, as an aide in charge of record-keeping, was almost certainly out of the loop for many of the key decisions Cheney made. So even if she were to make good on her pledge to turn over all the records in her possession, it's doubtful, say the plaintiffs, that that would cover everything of interest to historians and the public.
According to Anne Weismann, a lawyer for CREW, another plaintiff, O'Donnell admitted in her deposition that she had no firsthand knowledge of what the veep did. "She absolutely didn't have access to all the records," said Weismann.
Kutler said he expects that when the National Archives are opened, likely in 12 years as the law states, we'll find that we've got only "perfunctory stuff" from Cheney's office.
The plaintiffs explained that the judge had limited their ability to conduct discovery to just two witnesses -- O'Donnell and a staffer at the National Archives. They were denied the ability to depose David Addington, the lawyer in Cheney's office who formulated many of the opinions which the vice president used as justification for his efforts to expand the power of his office. Without Addington's testimony, the plaintiffs were unable to offer positive evidence of the existence of further records, beyond what O'Donnell handles, that might be withheld. But it still appears more than likely that such material exists.
The good news is this approach to transparency looks like it's on the way out. At a ceremony for the new White House staff today, President Obama declared: "There's been too much secrecy in this city."
Referring to the Freedom of Information Act, he added:
The mere fact that you have the legal power to keep something secret does not mean you should always use it. I expect members of this administration not simply to live up to the letter, but also the spirit, of this law.
Unfortunately, that change of attitude may come too late to help us get a look at the full range of Cheney's records.
Late Update: In fact, the new administration is already acting to avoid a future repeat of Cheney's effort to claim expansive power. Among several executive orders issued by President Obama today dealing with transparency and secrecy issues, was the following:
Finally the Executive Order on Presidential Records brings those principles [of openness and transparency] to presidential records by giving the American people greater access to these historic documents. This order ends the practice of having others besides the President assert executive privilege for records after an administration ends. Now, only the President will have that power, limiting its potential for abuse. And the order also requires the Attorney General and the White House Counsel to review claims of executive privilege about covered records to make sure those claims are fully warranted by the Constitution.
So in other words, the vice president can no longer claim executive privilege to keep records from the public. It really is a new day.