Eric Rasmusen’s Weblog

People have been skeptical about my claim in an earlier post that the media has been misrepresenting VP Cheney’s position on why his office is exempt from certain OSOO reporting requirements. It is truly amazing how Representative Waxman’s office has smeared him on this. Of course, it helps that VP Cheney doesn’t try seriously to defend himself. So I’ll do that for him.

What everybody wrongly thinks is that Cheney said that the VP’s office is not part of the executive branch.

But what is the source of the claim that he said that? Have you ever seen a direct quote? I couldn’t find one– it certainly is not in the very detailed Waxman attack materials.

After considerable digging, here is the closest I could find:

(1) A paraphrase from a newspaper reporter of a supposed report from Cheney’s office to the newspaper (since when does the VP report to newspapers rather than the other way around?) [with a followup one-sentence quote extracted from a verbal response by a Cheney spokesman.]

(2) A paraphrase by the OSOO itself of what it takes to be the VP’s position.

Moreover, neither paraphrase actually says Cheney said the VP wasn’t in the executive branch– that is an additional step. See below.

The first report by anybody actually working for Cheney that I can find is a June 22, 2007 press conference where Cheney’s spokesman is careful *not* to make the legislative-branch argument, and instead makes other arguments.

You can’t believe the press has misreported this so badly, using completely biased sources for its evidence of what Cheney said? Well, remember the obviously forged letter on Bush’s military service that the mainstream media took unequestioningly from Democratic sources in 2004. We shouldn’t be surprised any more. Take a look at my evidence on this case and tell me if you can find any Cheney office statements I didn’t find. If you can, I’ll post them on my weblog.

Here is Waxman’s letter with its claims about what the VP’s office said (see the IOS’s William Leonard’s January 9 letter to the Attorney-General):

In June 2006, the Director of the lnformation Security Oversight Office, J. William Leonard, wrote to your Chief of Staff, David Addington, to contest your claim that the Office of the Vice President is not subject to the President’s executive order. According to Mr. Leonard’s letter, your position was that your office “does not believe it is included in the definition of ‘agency’ as set forth in the Order” and “does not consider itself an ‘entity within the executive branch that comes into the possession of classified information.”‘

Your office did not respond to Mr. Leonard.

The second source is the Chicago Tribune (the link is to an anti-Cheney group’s webpage– see the bottom of the page for the newspaper reprint):

Cheney’s office told the Tribune in an April report on the administration’s propensity for secrecy that it is under no obligation to report this information. The vice president says his office is not an agency, and that the vice president is unique in having both an executive role and legislative role–he is president of the Senate.

[A spokeswoman for Cheney, asked for a response, reiterated the vice president’s stance on the issue. “This has been thoroughly reviewed and it’s been determined that the reporting requirement does not apply to [the office of the vice president], which has both legislative and executive functions,” spokeswoman Lea Anne McBride said Friday.]

Here is what Cheney’s Office actually said about his position, in a June 22, 2007 press briefing:

MS. PERINO: … I think one thing is clear: first of all, it’s the President of the United States who is the author of the EO, and is the sole enforcer of the EO, the executive order on classified materials. And it’s clear from the reading of it, the Vice President is not treated separately from the President in the EO. Agencies are treated separately, for just the small section on this ISOO provision. Everything else does apply, except for that one section, for the Vice President….

MS. PERINO: If you look at the EO, the President, in the performance of executive duties, and the Vice President are treated separately from agencies. The President did not intend — I went back and looked into this — the President did not intend for the Vice President to be treated separately from how he would treat himself. Agencies are to report to ISOO, and they do. I don’t think there’s any suggestion that no one else is complying. The Vice President was not intended to be separate from the President in this regard.

Q But part of the rationale the Vice President’s office gave is that as President of the Senate, he’s part of the legislative branch, almost distancing himself from the executive branch.

MS. PERINO: I saw those reports yesterday, as well, and I think that while that’s an interesting constitutional discussion about the separation of powers and different branches, between executive branch and legislative branch, and different functions, under the role — as his unique role as the Vice President of the United States. The point of Chairman Waxman’s letter yesterday regarded this small portion of an executive order of which the President is the sole enforcer, and of which he did not intend for the President [sic] to be treated separately from himself.

Q I’m a little confused here. Is the President’s office and the Vice President’s office, are they handling this the same way? In other words, Waxman was asserting that the Vice President’s office was saying, we don’t want to be inspected to make sure that we are following the procedures laid out in this EO. Is the President — does he feel the same way?

MS. PERINO: The President and the Vice President are complying with all the rules and regulations regarding the handling of classified material and making sure that it is safeguarded and protected.

What is different is, regarding that small section of this ISOO office, that they are not subject to those — they are subordinate to the sole enforcer of the EO, which is the President of the United States, and they are not subject to such investigation — as I understand it, as I read the EO and as I had preliminary discussions in between the gaggle and today.

Q Well, then why did the Vice President not have any issue with this in 2001, 2002?

MS. PERINO: That I don’t know. All I know is what I have here, which is the executive order that was released in 2002, I think, did not intend to treat the Vice President any differently than he would treat the President….

MS. PERINO: … In the EO, as well, the ISOO does have the capability to go to the Department of Justice and ask for an opinion, of which they have done.

Q They did that in January and still haven’t heard anything.

MS. PERINO: You’ll have to put that question to the Department of Justice.

Q So that they have to apply to the President for any documents that the Vice President has charge of.

MS. PERINO: All of the — all of the President — all of the President’s documents and all the Vice President’s documents are safeguarded, they are held, they are held in the Archives as part of the Presidential Records Act. And all of those rules and regulations are followed.

This small section regarding just the reporting requirements to the group that — the ISOO that’s out of the National Archives is different….

Q Dana, what do you make of what Congressman Waxman referred to as “absurd,” which was the Vice President’s contention that his office is not part of the executive branch?

MS. PERINO: As I said, I think that that is an interesting constitutional question that people can debate. What I think is absurd is –

Q But do you agree with his contention?

MS. PERINO: — it’s — I think what was heard is Chairman Waxman –

Q Hang on a second, do you agree with the –

MS. PERINO: — asserting — I think what’s absurd is Chairman Waxman asserting –

Q Hang on a second. Do you think with –

MS. PERINO: I think what is absurd is Chairman Waxman asserting some sort of authority over the President regarding an executive order, of which he is the sole enforcer.

Q Do you agree with the contention that the Office of the Vice President is not part of the executive branch?

MS. PERINO: What I know — and I am not a lawyer; and this is an interesting constitutional question that legal scholars can debate and I’m sure you’ll find plenty of them inside the beltway — is that the Vice President has a unique role in our United States government. He is not only the Vice President of the United States, but in that role he is also the President of the Senate. I will let him go ahead and –

Q So there’s a fourth branch of government.

MS. PERINO: — I will let that debate be held. But what I’m answering questions on in regard to this morning was Chairman Waxman’s accusations about this small provision, going back and reading the EO and realizing that the President did not intend to have the Vice President treated any differently than himself; and remembering that the executive order is enforced solely by the President of the United States. I think this is a little bit of a non-issue. …

Q Dana, can I just clarify — since he’s the sole enforcer of this executive order, was the White House’s Counsels Office knowledgeable about the letter trail, the dispute trail, when you consulted them today to ask about –

MS. PERINO: Well, as you know, I think that this letter trail goes back many years, and we have a new Counsel and many new people in the Counsel’s Office. So I’m not exactly clear on that.

Q But you have members of the Counsel’s Office who preceded Mr. Fielding, so I’m curious, when you consulted, can we write or say that the White House Counsel’s Office, on behalf of the President, was fully knowledgeable of the dispute before –

MS. PERINO: I can’t tell you that right now, because I don’t know, but I can check. There are a lot of new people, and I can’t tell you that the people that I talked to were here before.

Q But, I mean, there could have been a paper trail –

MS. PERINO: I’ll go back and check. The people I talked to weren’t necessarily here before….

Q I mean, it is a little curious that all of this — this breaks, and all we get is like a line response from the Office of the Vice President, we’re confident that everything is kosher. I mean, I –

MS. PERINO: I’m here today to try to flesh it out a little bit more for you, and I’m doing the best I can with all that I’ve got.

The Perino press briefing is evasive on the question of whether the President’s offices also do not report to the ISOO and believe that the VP’s office should not. That’s probably because Perino did not want to speak for the President. But the Presidential spokesman’s July 26 press briefing shows that the President’s office in fact does agree with the VP’s position:

Q But as David said the other day, that he’s complied with all of these regulations, you believe?

MR. SNOW: Well, keep in mind, what you’re talking about here is an executive order that involves compliance within the executive branch, but it also says that basically for the purposes of the executive order, the President and the Vice President’s offices are not considered “agencies” and, therefore, are not subject to the regulations. …

MR. SNOW: … David Addington, as Chief of Staff, said today that — because I believe you have — this we did get to see: The Executive Order on Classified National Security Information, Executive Order 12958, as amended in 2003, makes clear that the Vice President is treated like the President and distinguishes the two of them from “agencies.” The executive order gives the ISOO, under the supervision of the Archivists of the United States, responsibility to oversee certain activities of agencies, but not of the Vice President or the President.

Q So he’s coming around to your argument, it sounds like it. This is Addington today?

MR SNOW: This is what David Addington said today.

Q But, originally, what they sent out was that he wasn’t a part of the executive branch. Are they amending that now?

MR SNOW: Again, I’ll refer that to the Vice President’s office. What you’re really talking about is trying to parse constitutionally –

Q I’m not; he is.

MR SNOW: Well, if you go back and, for instance, look at Article 2, there are no specified executive activities for the Vice President. The Vice President is the president of the Senate. It is a wonderful academic question and I’m just not going to go any further than we’ve gone to date. What I am trying to clarify –

Q Are you referring to there has been reported breaches being within the office of the Vice President or the White House?

MR SNOW: No, no, no. Again, the office of the Vice President is not covered by the executive order.

Q No, no, no, I’m sorry. You said there have been reported breaches –

MR SNOW: Within the government. But on the other hand, again, the Vice President and the President are not covered by the ISOO.

Addington’s letter (to Senator Kerry) is here.

Please note that this post is not about the substance of the issue– which is whether the executive order indeed covers the VP’s office. Nor is it about who gets to interpret the President’s Executive Orders— himself, the Attorney-General, the Courts, or the White House Counsel. Nor is it about whether it is improper for the President to not chase after every violation of an Executive Order. This post is about whether Cheney claimed he was not in the executive branch and, implicitly, about whether people who said he claimed that are wrong.

This entry was posted on Tuesday, July 17th, 2007 at 1:37 pm and is filed under Law. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.