Watchdog Group Wins Legal Battle to Depose Cheney Aide

A government watchdog group can depose a top aide to Vice President Dick Cheney about preserving vice presidential documents, a U.S. District Court judge ruled Friday.

U.S. District Court Judge Colleen Kollar-Kotelly, a Clinton appointee, ordered Claire O’Donnell, Cheney’s deputy chief of staff, to meet with lawyers for Citizens for Responsibility and Ethics in Washington and arrange for a deposition over the preservation of vice presidential documents CREW fears Cheney may destroy or withhold.

“Today’s decision, allowing CREW discovery in our case against the Office of the Vice President, moves us one step closer to ensuring that important historical documents will not be lost to future generations,” said Anne Weismann, CREW’s chief counsel. “CREW looks forward to deposing Cheney’s Deputy Chief of Staff Claire O’Donnell to get to the bottom of what exactly the administration has been doing with documents that belong not to the vice president, but to the American people.”

CREW sued Cheney in September challenging Cheney’s narrow interpretation of his obligations under the Presidential Records Act, based in large part on his claim that he is not part of the executive branch.

Kollar-Kotelly granted CREW’s request for a preliminary injunction and rejected the arguments of the White House that they were preserving all vice presidential records, which they defined narrowly to include only functions “specially assigned” to the vice president by the president and his duties as president of the Senate.

“Those unprotected documents could be transferred to other entities, destroyed, or not preserved, and if any of these events occur, the damage is inherently irreparable; once documentary material is gone, it cannot be retrieved,” U.S. District Judge Colleen Kollar-Kotelly wrote in her 22-page order issued in late September.

In response to CREW’s lawsuit about the preservation of Cheney’s documents, O’Donnell wrote that the Presidential Records Act of 1978 applied to records relating to the “constitutional, statutory or other official or ceremonial duties” of the vice president that fall within “the category of functions of the Vice President specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities” or “the category of the functions of the Vice President as President of the Senate.”

But O’Donnell’s definition was narrower than what the Presidential Records Act says and left open the possibility that Cheney’s documents could be withheld or destroyed.

CREW had hoped it would be able to depose David Addington, Cheney’s chief of staff, who in addition to playing a major role in drafting Iraq war and detainee interrogation policies, is believed to be responsible for the interpretation that the vice president is not an entity within the executive branch.

Judge Kollar-Kotelly had ruled in favor of CREW and said the group could depose Addington. But Cheney petitioned the court to block Addington’s deposition

The U.S. Court of Appeals for the District of Columbia ruled in favor of the vice president and reversed Kollar-Kotelly’s decision requiring Addington to testify. The appeals court said putting Addington under oath “would constitute an ‘unwarranted impairment’ of the functioning of” the Office of the Vice President.

But appellate judges Douglas H. Ginsburg, David S. Tatel and Thomas B. Griffith said another officials in Cheney’s office could be deposed in place of Addington. 

According to CREW, “the vice president filed the mandamus petition after the district court ruled that CREW could depose vice presidential chief of staff David Addington and [The National Archives and Records Administration] official and asked the Court of Appeals to bar all discovery and permit the administration instead to file a motion to dismiss the lawsuit in its entirety.”

CREW said “the D.C. Circuit deferred to the district court’s judgment that discovery is necessary to resolve factual issues, ruling that the authorized discovery is “appropriately narrow” except to the extent it authorized CREW to take the deposition of David Addington.

“Finding that Mr. Addington “has no apparent involvement” in the lawsuit, the D.C. Circuit ruled that CREW should instead depose…Claire O’Donnell, who has submitted multiple declarations in the litigation,” CREW said in a press release.

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