JURIST Guest Columnists Victor Hansen and Lawrence Friedman of New England School of Law say that if Vice President Dick Cheney is permitted to avoid the requirements of the Presidential Records Act, the door is left open for a future administration to create a shadow government within the executive branch, one that operates without the benefit of the deliberative decisionmaking process envisioned by the Constitution….

What lessons can we learn from history in the absence of a record? The discussions in the executive branch that led the United States to enter into a war in Iraq, to detain enemy combatants, and to engage in questionable interrogation of terrorist suspects, ought to be scrutinized by future leaders, to determine what, exactly, the thinking was behind these and other policies connected with the war on terror. Vice President Dick Cheney was at or near the center of each of these policies; as many commentators have reported, Mr. Cheney elevated the role of his office to a point previously unseen in American history. And now he is proposing to deny those future leaders—and historians, and everyone else—access to some of the materials he and his staff generated while he occupied the office of Vice President.

The dispute concerns the Presidential Records Act, which dictates that the Vice President preserve "documentary materials, or any reasonably segregable portion thereof, created or received by the [Vice] President," including those materials created or received by his "immediate staff, or a unit or individual of [his office] whose function is to advise the [Vice] President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the [Vice] President." 44 U.S.C. §§ 2201(2), 2207. The statute offers no additional guidance, and the office of the Vice President has taken the position—according to an affidavit submitted by Claire M. O'Donnell, Assistant to the Vice President and Deputy Chief of Staff—that the law requires only that materials relating to “the functions of the Vice President specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities and the functions of the Vice President as President of the Senate” be provided.

That affidavit was submitted in a suit brought by Citizens for Responsibility and Ethics in Washington against the Vice President, his office, the Executive Office of the President, and the National Archives and the Archivist of the United States. The most recent development in the case was the grant of the plaintiff's request for a preliminary injunction. See Citizens for Responsibility and Ethics in Washington v. Cheney, No. 08-1548 (U.S.D.D.C. Sept. 20, 2008) (Order and Memorandum Opinion). United States District Court Judge Colleen Kollar-Kotelly found that the office of the Vice President was only preserving material pursuant to its narrow construction of the Presidential Records Act, and the court issued an order that all defendants preserve all documentary material relating to the Vice President's constitutional, statutory, or other official or ceremonial duties, without limitation, during the pendency of the litigation.

Whence the Vice President's narrow construction of his obligations under the Presidential Records Act? The basis for his position would seem to lie in the belief—expressed by Mr. Cheney’s chief of staff, David S. Addington, in statements he made last summer to Congress—that the office of the Vice President is not exclusively a part of the executive branch of the federal government. Rather, the Vice President, on this line of reasoning, is also attached to the Congress, because the Constitution provides, in Article I, that the Vice President preside over the Senate as its “President.” This in turn means some of the Vice President’s records are immune from the preservation requirements of the Presidential Records Act.

As a matter of constitutional law, this argument is dubious. While it is true that Article I, Section 3 states that the Vice President is the “President” of the Senate, that provision denies him any responsibility other than a vote when the Senate is deadlocked; Article I gives the Vice President no other legislative responsibilities. Further, a structural analysis suggests that the Office of the Vice President is a part of the executive branch; Article II, Section 1 plainly states that, in the event the President is removed from office, dies, resigns, or is unable to discharge the powers and duties of the Presidency, then the Vice President shall assume the position of President. This is strong textual evidence that the Vice President is an executive actor, first and foremost, and a legislative actor in only one particular and exceptional circumstance.

Given that the Vice President is inextricably linked to the President whom he serves as a political and practical matter, it would be odd indeed if some of the records of his time in office were immune from preservation under the Presidential Records Act. The Constitution itself reflects the importance of the communication of information from the executive branch to the people via the legislature: Article II, Section 3 provides that the President must “from time to time give to the Congress Information of the State of the Union.” Just as responsible lawmaking by Congress depends upon accurate information from the executive about that branch’s activities and administration of the law, so too does future policymaking in both branches demand accurate information about what has been tried, the policy options that were explored, and the policy options that were abandoned.

This makes sense as a normative matter: both the public and future leaders need to know what happened so we do not repeat the mistakes of the past. The public needs to know because the basis for the exercise of the franchise may depend upon it; the ballot box can be a vital check on government only to the extent information about what the government has done is made available. And the next administration, and administrations thereafter, need to know the basis for the policy decisions whose consequences they will be addressing.

The availability of this information is equally critical to the maintenance of the system of checks and balances created by our constitutional structure. The Vice President’s position undermines checks and balances: if the executive operates in such a way as to deny the legislative and judicial branches any ability to scrutinize the executive’s conduct, it becomes impossible for these branches to serve as a viable check on the executive’s power. This necessary includes information about prior conduct, which may be critical to reviewing current executive actions.

Ultimately, the Vice President’s position serves to make full accountability less likely. During the administration of George W. Bush, Mr. Cheney and his closest advisors have essentially used the Office of the Vice President to quietly and firmly direct government policy regarding national security. A government operating in the shadows is antitheti
cal to our constitutional structure and our most fundamental democratic principles, but we can only deter future such endeavors by shining a light on the past.

This is why Congress enacted the Presidential Records Act. Congress and the courts must now be vigilant in ensuring that that law is fairly and correctly applied. If not, future legislatures and policy makers will be at a significant disadvantage when trying to craft legislation and develop policies to curb executive excess, particularly in the area of national security, where the executive already enjoys significant deference from the other branches of government. Worse yet, if the Vice President is permitted to avoid the requirements of this statute, the door is left open for a future administration to take up where Vice President Cheney left off and create a shadow government within the executive branch, one that operates without the benefit of the deliberative decisionmaking process envisioned by the Constitution. As the last eight years have shown, the country can ill afford more of this approach to governance.

Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches courses in criminal law at New England School of Law, where Lawrence Friedman teaches courses in constitutional law.
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