There was an important development in our lawsuit against Vice President Dick Cheney over the weekend.   We had a victory in our effort to conduct a deposition of Cheney's Chief of Staff, David Addington, which the Bush administration is trying desperately to prevent.

Yesterday District Court Judge Colleen Kollar-Kotelly issued a 26-page opinion denying the request of the vice president and the Office of the Vice President for a stay of her discovery order while the U.S. Court of Appeals for the D.C. Circuit considers their mandamus petition. 

Judge Kollar-Kotelly authorized CREW to take the depositions of David Addington and NARA official Nancy Smith to try to answer the question of whether the vice president truly is preserving all categories of records covered by the Presidential Records Act.  On the eve of the first deposition, the White House filed an emergency petition for a writ of mandamus in the D.C. Circuit.  By this form of extraordinary relief, the White House is asking the appellate court to order the district court to vacate the discovery order, which the White House claims will intrude into constitutionally-protected areas of the vice president. 

The district court refused to stay the discovery while the mandamus petition is pending, reasoning that the White House defendants have no likelihood of success on the merits of their petition.   Judge Kollar-Kotelly especially took issue with the factual representations made by the White House defendants in the D.C. Circuit, , noting that they “contain content that bears no resemblance to what has actually transpired in this case.”  Although she denied the stay, Judge Kollar-Kotelly suspended the depositions to give the Court of Appeals time to address the stay motion now before that court.

Last week, the judge in CREW's lawsuit against Vice President Dick Cheney approved our request to take the depositions of David Addington, Vice President Cheney's chief of staff.

On the eve of that deposition, Vice President Cheney and the other defendants filed an emergency petition for a writ of mandamus with the U.S. Court of Appeals for the D.C. Circuit.

Mandamus is an extraordinary remedy and defendants seek it here to have the D.C. Circuit intrude directly into the district court litigation by demanding that the district court judge vacate her discovery orders. The petition is based on a claim that the discovery authorized by the district court raises serious separation of powers concerns merely because the deponent is David Addington.

Anne Weismann, CREW’s chief counsel, said:

The White House, having failed to convince the Court that it is saving all that the Presidential Records Act required, is now attempting to stop any further fact-finding in order to prevent the plaintiffs, the court and the American people from learning the truth.

Vice President Cheney has been saying some pretty disturbing stuff lately, even for this vice president.  It seems that contrary to what we all learned in school about our tripartite system of government and where the vice president fits in, he is an entity unto himself.  Or, as his surrogate VP Chief of Staff David Addington testified recently to Congress, "the Vice President belongs neither to the executive nor to the legislative branch . . ." 

This raises the question of just what will Mr. Cheney do with his vice presidential records once he leaves office.  According to the Presidential Records Act, they belong to the American public and must be preserved and transferred to the Archivist at the end of this administration along with the president's records.  But given his extraordinary views on where he does and does not fit into the executive branch it is likely Mr. Cheney has something else in mind.  Accordingly, CREW sent a letter today to Mr. Cheney asking for assurances that he will comply fully with the Presidential Records Act by preserving and transferring all of his records to the archivist on January 20, 2009. 

Stay tuned for his response, if any.

Just about a year, we learned for the first time that Dick Cheney considered himself some kind of fourth branch of government.  Seems his Chief of Staff testified to that today on Capitol Hill, via Think Progress:

During today’s House Judiciary Committee hearing, Cheney’s chief of staff David Addington reasserted that position, declaring the vice president’s office to be a separate entity that “attached” to the legislative branch:

REP. STEVE COHEN (D-TN): Mr. Addington, what branch are we in?

ADDINGTON: Sir, perhaps the best that can be said is that the vice president belongs neither to the executive nor to the legislative branch, but is attached by the constitution to the latter. […]

COHEN: So he’s a member of the legislative branch?

ADDINGTON: No I said he’s attached to the latter.