Last week, CREW provided an analysis of what was happening in the Bush/Cheney administration on days that White House e-mails are missing.  Today's Washington Post examines the failings of the administration's failure to follow the laws on preserving e-mails:

For years, the Bush administration has relied on an inadequate archiving system for storing the millions of e-mails sent through White House servers, despite court orders and statutes requiring the preservation of such records, according to documents and technical experts.

President Bush's White House early on scrapped a custom archiving system that the Clinton administration had adopted under a federal court order. From 2001 to 2003, the Bush White House also recorded over computer backup tapes that provided a last line of defense for preserving e-mails, even though a similar practice landed the Clinton administration in legal trouble.

The Post also examined what was happening on days for which the e-mails are missing:

Controversy surrounding the Bush administration's policies intensified on Thursday, when the House Oversight and Government Reform Committee released details of a briefing by White House special counsel Emmet T. Flood, in which he disclosed that a 2005 White House study had identified 473 separate days in which no electronic messages were stored for one or more component offices.

In the presidential offices, for example, not a single e-mail was archived on Dec. 17, 20 or 21 in 2003 -- the week after the capture of Saddam Hussein. According to the study summary that the committee released, e-mails were not archived for Vice President Cheney's office on four days in early October 2003, coinciding with the start of a Justice Department probe into the leak of a CIA officer's identity, which later led to criminal charges against Cheney's chief of staff.

Yesterday, the Bush administration failed to meet the deadline for subpoenas from the Senate. That's really not a surprise. However, Dick Cheney sent separate responses and apparently still contends he's not part of the executive branch:

Vice President Dick Cheney’s office on Monday responded separately from the White House to a Senate subpoena for documents on warrantless wiretapping and resurrected the controversial contention that Cheney is not part of the executive branch.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) set Monday’s subpoena deadline after granting an extension request by the White House. Presidential counsel Fred Fielding, as expected, told Leahy in a letter that a second delay, until after Labor Day, would help Congress and the administration “expeditiously seek a means of accommodation that will negate the need for an assertion of executive privilege.”

So is Cheney refusing to answer a subpoena from his Senate colleagues? He really thinks he is a fourth branch of government.

An editorial in today's New York Times echoes CREW's view:

Mr. Bush’s assertion that he respected the verdict but considered the sentence excessive only underscored the way this president is tough on crime when it’s committed by common folk. As governor of Texas, he was infamous for joking about the impending execution of Karla Faye Tucker, a killer who became a born-again Christian on death row. As president, he has repeatedly put himself and those on his team, especially Mr. Cheney, above the law.

Today, CREW released a new report entitled Crossing the Line: The Bush Administration's Efforts to Expand Its Powerful Reach. The title pretty much sums it up. Based on several specific specific developments, several where CREW has direct involvement, we detailed the Bush administration’s repeated constitutional overreaching and abuse of executive power and prerogative. The full report can be found here.

Crossing the Line makes two major findings:

1) Vice President Dick Cheney, who recently asserted that he's not subject to Executive Orders because of his unique "fourth branch" status, is quietly, but diligently, working to establish case law that equates the power of the vice presidency with the power of the presidency; and

2) the Bush administration is intent on expanding the power of executive privilege well beyond constitutional bounds.

CREW's Melanie Sloan said that Vice President Cheney and Bush administration officials "are working hard to reconfigure the executive branch to conform with their preference for absolute power rather than with clearly established constitutional boundaries. CREW’s report depicts an administration out of control.”

We drew upon several of our own cases to document these findings and back up the assertion that the Bush administration is "out of control":

Recently it was revealed that the vice president has unilaterally exempted himself and his office from the executive order that governs the safeguarding of classified national security information.

In response to a suit filed by Valerie and Joseph Wilson against Vice President Cheney and other top administration officials, Mr. Cheney argued that as vice president he is entitled to absolute immunity from suit.

In response to a CREW suit over visitor logs, the administration is attempting to reclassify Secret Service documents as presidential documents under the exclusive control of the White House. The vice president has argued that the constitutional protections afforded the presidency apply with equal force to his office.

In a suit filed by CREW over a FOIA request of the Federal Emergency Management Agency for Hurricane Katrina-related documents, the government invoked the presidential communications privilege, suggesting an attempt to cover-up what President Bush actually knew before, during and after the hurricane devastated the Gulf Coast.

During the course of CREW’s FOIA lawsuit against the White House Office of Administration (OA) for documents relating to five million missing White House emails, the OA claimed that it was responding “as a matter of administrative discretion,” not because the OA is an “agency” bound by the FOIA.

Crossing the Line does indeed document an administration that is "out of control" and trying to usurp the constitution.

Dick Cheney's position that he's not part of the Executive branch may cost him. As Melanie Sloan noted on Hardball last night:

He saying that he's a fourth branch of government all by himself. There's the judiciary, the legislative, the executive and then there's the Cheney branch."

The problem for Cheney is that despite what he thinks, there is no Cheney branch.  Actually, the budget to pay for his office and its operations comes from the Executive branch budget -- to the tune of $4.4 million according to The Hill. And, leading Democrats on both sides of the aisle are threatening to pull that money -- all of it:

Durbin’s warning came as Sen. Charles Schumer (N.Y.), No. 3 in Democratic leadership, said that he would “seriously consider” joining House counterparts in seeking to yank funding for Cheney’s office after the vice president contended that his office is a hybrid entity that is neither legislative nor executive.

“The decision to exempt your office from this system for protecting classified information is deeply troubling because it could place national security secrets at risk,” Durbin wrote to Cheney yesterday. Durbin did not specify how appropriators would hit Cheney’s funding.

Durbin’s subcommittee is slated to mark up its spending bill just after July 4th recess. The House will take up its version of the bill this week, and Democratic Caucus Chairman Rahm Emanuel (Ill.) is vowing a floor push to strike all $4.4 million of the vice president’s budget.

Durbin called on Cheney to avert the funds cut by immediately adhering to the 1995 executive order at issue. That directive refers to executive “agencies,” a designation that both Cheney and President Bush believe does not apply to the vice president.

Melanie Sloan was on MSNBC's Hardball tonight. Her first lines about Cheney are classic, "He saying that he's a fourth branch of government all by himself. There's the judiciary, the legislative, the executive and then there's the Cheney branch." Definitely worth a watch:

In today's "White House Briefing" column,  Dan Froomkin asks "The Fourth Branch?" -- and provides a sampling of the reaction, the response and the commentary to what should be deemed an outrageous concept:

Peter Baker writes in Saturday's Washington Post: "The White House defended Vice President Cheney yesterday in a dispute over his office's refusal to comply with an executive order regulating the handling of classified information as Democrats and other critics assailed him for disregarding rules that others follow.

"White House spokeswoman Dana Perino said Cheney is not obligated to submit to oversight by an office that safeguards classified information, as other members and parts of the executive branch are. Cheney's office has contended that it does not have to comply because the vice president serves as president of the Senate, which means that his office is not an 'entity within the executive branch.'

"'This is a little bit of a nonissue,' Perino said at a briefing dominated by the issue. Cheney is not subject to the executive order, she said, 'because the president gets to decide whether or not he should be treated separately, and he's decided that he should.'

"Democratic critics said Cheney is distorting the plain meaning of the executive order. 'Vice President Cheney is expanding the administration's policy on torture to include tortured logic,' said Senate Majority Whip Richard J. Durbin (D-Ill.). 'In the end, neither Mr. Cheney or his staff is above the law or the Constitution.'"

Josh Meyer writes in the Los Angeles Times: "Although it doesn't specifically say so, Bush's order was not meant to apply to the vice president's office or the president's office, a White House spokesman said."

White House spokesman Tony Fratto "conceded that the lengthy directive, technically an amendment to an existing executive order, did not specifically exempt the president's or vice president's offices. Instead, it refers to 'agencies' as being subject to the requirements, which Fratto said did not include the two executive offices. 'It does take a little bit of inference,' Fratto said.

Fratto apparently couldn't explain why Cheney's office followed the rules until 2003 -- or why the National Security Council, among other White House offices, complies to this day.

David Jackson writes in USA Today: "If Vice President Cheney believes his office is not an 'entity within the executive branch,' then a House Democratic leader says taxpayers shouldn't have to finance his executive expenses."

According to the "Mouth of the Potomac," the political blog of the NY Daily News, the question posed by "watchdog groups and congressional oversight committeemen" about Dick Cheney is "What is he trying to hide?"

CREW surely fits into the category of a watchdog group asking that question:

Cheney refused to allow the archives to look at information during the probe into the cover-up of who outed CIA spy Valerie Plame. In the end, Cheney’s top aide, Lewis “Scooter” Libby, was the only person charged and convicted. Libby is set to report to federal prison in a few short weeks. Cheney, de facto leader of FOLLY – Friends of Lewis Libby – is now begging President Bush to give Scooter a pardon.

"The Vice President is pretending he isn’t part of the executive branch, and the White House is pretending that the rules for protecting classified information are being followed," said Rep. Henry Waxman (D-Calif.), chairman of House Committee on Oversight and Government Reform.

"The only oversight of Dick Cheney is Dick Cheney," said Naomi Seligman, deputy director of the lefty legal watchdog group Citizens for Responsibility and Ethics in Washington.

 

Newsweek's Michael Isikoff reports that, despite a request from the official in charge of Information Security Oversight at the National Archives, the Attorney General has never addressed Dick Cheney's failure to comply with the executive order on classified information.    A Freedom of Information Act (FOIA) request for info. on this issue was denied on the ground there were "no documents" on this matter.  There is something gravely wrong with this whole situation.  Dick Cheney is not a fourth branch of government, but he's sure acting like one:

Cheney's hard-line chief of staff, David Addington, has made the novel argument that the veep doesn't have to comply on the ground that, because the vice president also serves as president of the Senate, his office is not really part of the executive branch.

Cheney's position so frustrated J. William Leonard, the chief of the Archives' Information Security Oversight Office, which enforces the order, that he complained in January to Gonzales. In a letter, Leonard wrote that Cheney's position was inconsistent with the "plain text reading" of the executive order and asked the attorney general for an official ruling. But Gonzales never responded, thereby permitting Cheney to continue blocking Leonard from conducting even a routine inspection of how the veep's office was handling classified documents, according to correspondence released by House Government Reform Committee chair Rep. Henry Waxman. 

Why didn't Gonzales act on Leonard's request? His aides assured reporters that Leonard's letter has been "under review" for the past five months—by Justice's Office of Legal Counsel (OLC). But on June 4, an OLC lawyer denied a Freedom of Information Act request about the Cheney dispute asserting that OLC had "no documents" on the matter, according to a copy of the letter obtained by NEWSWEEK. Steve Aftergood, the Federation of American Scientists researcher who filed the request, said he found the denial letter "puzzling and inexplicable"—especially since Leonard had copied OLC chief Steve Bradbury on his original letter to Gonzales. The FOIA response has piqued the interest of congressional investigators, who note Bradbury is the same official in charge of vetting all document requests from Congress about the U.S. attorneys flap. Asked about the apparent discrepancy, Justice spokesman Brian Roehrkasse said the OLC response "was and remains accurate" because Leonard's letter had generated no "substantive work product."

Earlier today, CREW posed some serious questions for the Bush-Cheney administration after the Vice President claimed he was not really part of the Executive Branch.  Today, at the White House press briefing, spokesperson Dana Perino actually got some some very tough questions including whether Cheney was part of the Executive Branch.  Ms. Perino didn't really answer that very simple, but important question.  Seriously.  She thought it was “interesting constitutional question that people can debate.”  But, she didn't say yes.   Think Progress has the account -- and video: 

During a heated press briefing today, White House spokesperson Dana Perino tried desperately to downplay yesterday’s report showing that Vice President Cheney has exempted his office from a presidential executive order designed to safeguard classified national security information. At one point, Perino called it “a little bit of a non-story.”

She repeatedly said that Cheney exempt from a mere “small portion” or “small section” of the executive order, and that President Bush never intended for the executive order to apply to Cheney any differently than it applies to the president’s own office.

Perino later contradicted herself: first, she stated definitively that Cheney’s office is “complying with all the rules and regulations regarding the handling of classified material.” But when questioned how she could be sure, Perino said it was a “good question” and admitted she isn’t “positive” that his office is in compliance.

Perhaps most importantly, Perino failed to answer two key questions raised by the scandal:

– Perino offered no explanation for the fact that Cheney’s office followed the requirements of the executive order in 2001 and 2002, then abruptly stopped. “That I don’t know,” she said. Later, she responded sarcastically when asked whether Cheney’s office would offer more than the one-line statement it released yesterday. “I’ll ask the vice president if he’ll come to the press briefing room and answer your questions,” she said.

– Perino refused to say definitely whether Vice President Cheney is part of the executive branch. She would only say it is an “interesting constitutional question that people can debate.”