CREW v. Cheney Et Al: Regarding VP Records: 12/8/08 - Cheney's Motion To Dismiss

Case 1:08-cv-01548-CKK Document 39 Filed 12/08/2008 Page 1 of 40
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No.: 08-1548 (CKK)
)
THE HONORABLE RICHARD B. CHENEY, )
VICE PRESIDENT OF THE UNITED STATES )
OF AMERICA, et al., )
)
Defendants. )
__________________________________________)
DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE,

FOR SUMMARY JUDGMENT, AND MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION
INTRODUCTION
In passing the Presidential Records Act of 1978, 44 U.S.C. §§ 2201-2207 (“PRA”),
Congress “declin[ed] to give outsiders the right to interfere with [the Vice President’s]
recordkeeping practices, . . . presumably rel[ying] on the fact that subsequent [Vice] Presidents
would honor their statutory obligations to keep a complete record of their administrations.”
Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 1991). Consistent with that finding, courts
have concluded that the PRA does not furnish private parties with either a right to seek the Vice
President’s compliance with the PRA or a remedy for any perceived violations, and have
concluded that the PRA is a statute that precludes judicial review under the Administrative
Procedure Act, 5 U.S.C. § 701.
Nonetheless, on precisely those grounds, plaintiffs urge this Court to review the “policies
and guidelines implementing the PRA with respect to the records of the Vice President.” Am.
Compl. ¶¶ 47-72. On at least three threshold grounds that deprive this Court of subject matter
jurisdiction, each of plaintiffs’ claims must be dismissed. First, the Presidential Records Act
does not provide plaintiffs any private rights or remedies for perceived PRA violations and
plaintiffs may not rely on the PRA for relief, or as a ground on which to seek declaratory or
mandamus relief. Armstrong v. Bush, 721 F. Supp. 343, 348-49 (D.D.C. 1989), rev’d in part on
other grounds, 924 F.2d 282 (D.C. Cir. 1991).
Second, because the APA applies only to “agencies,” and furthermore excepts from
review actions where “statutes preclude judicial review,” or where “agency action is committed
to agency discretion by law,” plaintiffs are entitled to no relief here. 5 U.S.C. §§ 701(a)(1),
701(a)(2). Neither the Office of the Vice President nor the Vice President is an “agency” within
the meaning of the APA and neither may be sued for relief under it. In addition, consistent with
separation of powers principles, the “PRA precludes judicial review of the [Vice] President’s
recordkeeping practices and decisions” under controlling D.C. Circuit law. Armstrong v. Bush,
924 F.2d 282, 291 (D.C. Cir. 1991) (“Armstrong I”). The D.C. Circuit did not alter that
conclusion in permitting judicial review of “guidelines describing which existing materials will
be treated as presidential records in the first place,” which is properly limited to the context of
adjudicating judicially-reviewable Federal Records Act and Freedom of Information Act claims.
Armstrong v. Bush, 1 F.3d 1274, 1294 (D.C. Cir. 1993) (Armstrong II). As the D.C. Circuit later
confirmed, “record-keeping requirements of the FRA are subject to judicial review and
enforcement; those of the PRA are not.” Armstrong v. Bush, 90 F.3d 553, 556 (D.C. Cir. 1996).
For the same reasons, the Vice President’s implementation of the PRA is committed to his
discretion by law and unreviewable under the APA.
2
Third, plaintiffs fall far short of bearing their burden of showing a “substantial
probability” that they present a case or controversy within the meaning of Article III of the
Constitution. Sierra Club v. Environ. Protection Ag., 292 F. 3d 895, 899 (D.C. Cir. 2002).
Indeed, they cannot because the record establishes that the OVP has applied the PRA to all
“documentary materials, or any reasonably segregable portion thereof, created or received by the
[Vice] President, his immediate staff, or a unit or individual of the [Office of the Vice President]
whose function is to advise and assist 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). Because the OVP
(comprised of employees and officers, including the Vice President) have complied fully with
their obligations under the PRA, plaintiffs can claim no injury upon which to stake their claims.
Nor do plaintiffs establish that their claimed injuries are imminent as opposed to conjectural.
See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 44 (1976). Indeed,
none has established that it previously submitted FOIA requests for vice presidential records
from past administrations or proves that it will seek the records at issue in this litigation in the
future. Just as courts in this circuit have dismissed like claims for absence of standing, this Court
must do the same.
Plaintiffs invite this Court to intrude on the day-to-day operations of the Vice President
and to delve into the “separation of powers concerns that were implicated by legislation
regulating the conduct of the [Vice] President’s daily operations” that Congress “sought
assiduously to minimize.” Armstrong I, 924 F.2d at 290. Because the PRA “accords the [Vice]
President virtually complete control over his records during his term in office,” and because no
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law provides this Court with subject matter jurisdiction to accept plaintiffs’ invitation, plaintiffs’
claims must be dismissed in their entirety. Id.
In the alternative—and only if the Court does not dismiss any of plaintiffs’ claims for
lack of jurisdiction or failure to state a claim upon which relief may be granted for the grounds
described above—defendants are entitled to summary judgment on each of the claims. The OVP
has complied fully with the PRA through recordkeeping guidance that requires preservation of
all vice presidential records as defined in the PRA. And no policy or guideline purportedly
issued by any other defendant changes the result. Summary judgment should be granted on
behalf of all defendants.
BACKGROUND
I. The Presidential Records Act of 1978
Sections 2201 through 2207 of title 44 of the United States Code, commonly called the
Presidential Records Act of 1978 or PRA, sets forth a scheme for the preservation and disclosure
of vice presidential records. Section 2207 provides that “Vice-Presidential records shall be
subject to the provisions” of the PRA “in the same manner as Presidential records,” and that “the
duties and responsibilities of the Vice President, with respect to Vice-Presidential records, shall
be the same as the duties and responsibilities of the President under [the PRA] with respect to
Presidential records.” Id.
Under the PRA, the Vice President is thereby directed to take “all such steps as may be
necessary to assure that the activities, deliberations, decisions, and policies that reflect the
performance of his constitutional, statutory or other official or ceremonial duties are adequately
documented and that such records are maintained . . . .” 44 U.S.C. §§ 2203(a), 2207. The PRA
defines “vice presidential records” to be “documentary materials, or any reasonably segregable
4
portion thereof, created or received by the [Vice] President, his immediate staff, or a unit or
individual of the [Office of the Vice President] whose function is to advise and assist 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.” Id. § 2201(2). The PRA expressly excludes from the scope of “vice presidential
records” any “official records of an agency (as defined in section 552(e) of Title 5, United States
Code); personal records; stocks of publications and stationery; or extra copies of documents
produced only for convenience of reference, when such copies are clearly so identified.” Id.
§ 2201(2)(B). The PRA further defines “personal records” as documentary materials of “a
purely private or nonpublic character which do not relate to or have an effect upon the carrying
out of the constitutional, statutory, or other official or ceremonial duties of the [Vice] President.”
Id. § 2201(3).
During the Vice President’s term, “the PRA accords [him] virtually complete control
over his records during his term of office.” Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir.
1991). Accordingly, the PRA does not authorize the Archivist to “promulgate guidelines or
regulations to assist [the Vice President] in the development of a records management system,”
and does not permit the Archivist to “inspect the [Vice] President’s records or survey the [Vice]
President’s records management practices.” Id. Nor does the Archivist have the “authority to
veto the [Vice] President’s disposal decisions.” Id. Only upon the conclusion of the Vice
President’s term of office does the Archivist assume responsibility for the custody, control, and
preservation of, and access to, the vice presidential records of that Vice President. 44 U.S.C.
§ 2203(f)(1).
5
II. The Office of the Vice President and Compliance with the Presidential Records Act
The vice presidency of Richard B. Cheney commenced at noon on January 20, 2001 and
will conclude at noon on January 20, 2009. 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, employees and officers, including the Vice President, of
the Office of the Vice President (“OVP”) have, since January 20, 2001, created or received
records and have maintained them as vice presidential records under the PRA. And the OVP has
been carrying out—and intends to continue to carry out—section 2207 with respect to vice
presidential records until the conclusion of the vice presidency of Richard B. Cheney, when the
Archivist assumes custody, control, and an obligation to preserve the records. Indeed, the OVP
has applied the PRA to all “documentary materials, or any reasonably segregable portion thereof,
created or received by the [Vice] President, his immediate staff, or a unit of individual of the
[Office of the Vice President] whose function is to advise and assist 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); see also Ex. 2, Deposition Transcript of Claire M. O’Donnell at 128:17-129:1
(“O’Donnell Dep. Tr.”).
In addition, the OVP has not relied upon Executive Order 13,233 or any guidelines issued
by the other defendants to exclude any vice presidential records from the requirements of
section 2207. Specifically, the OVP has not excluded from its obligations under section 2207
any vice presidential records that relate to the constitutional, statutory, or other official or
ceremonial duties of the Vice President as the President of the Senate, as plaintiffs specifically
allege. As a result, the OVP has carried out—and intends to continue to carry out—section 2207
6
with respect to vice presidential records, for all of the Vice President’s official functions as the
PRA requires. Indeed, the OVP intends to deposit with the Archivist the vice presidential
records of the vice presidency of Richard B. Cheney within its possession, custody or control by
the conclusion of the vice presidency of Richard B. Cheney.
III. Plaintiffs’ Amended Complaint
In their four-count Amended Complaint, plaintiffs seek judicial review of the “policies
and guidelines implementing the PRA with respect to the records of the vice president,” as well
as defendants’ “implementation of those policies and guidelines” under the PRA. Am. Compl.
¶¶ 49-50. Plaintiffs allege that the Office of the Vice President has not been maintaining all vice
presidential records within the meaning of the PRA, allegedly by relying on language from
Executive Order 13,233, purportedly limiting PRA requirements to “executive records of the
Vice President.” Id. ¶¶ 27-28. Relying on assertions that the Vice President is not a part of the
Executive Branch and inferring from those assertions that records created by the Vice President
are not “executive records,” plaintiffs allege “on information and belief” only that the OVP has
“adopted policies and guidelines that exclude from the reach of the PRA all but a narrow
category of vice presidential records created or received in the very limited circumstances in
which the vice president deems himself to be acting as part of the Executive Branch.” Id. ¶ 35;
see also id. ¶ 57. Similarly, plaintiffs allege that defendants “exclude from the reach of the PRA
records generated or received by vice presidents in their congressional capacities, i.e., when they
preside over the Senate and break a tie in the Senate votes.” Id. ¶ 37. Plaintiffs contend that
“Vice President Cheney will take with him as personal papers or otherwise dispose of a
significant percentage of those records, including records that pertain to the carrying out of his
legislative duties and functions.” Id. ¶ 41; see also id. ¶ 44.
7
In Claim One, plaintiffs seek relief from the Vice President, OVP and the Executive
Office of the President under the PRA and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-
2202, requesting a declaration that “guidelines . . . implementing the PRA in a manner that
excludes from its reach the records that the vice president and his office create and receive in the
course of conducting activities relating to or having an effect on the carrying out of the vice
president’s constitutional, statutory or other official or ceremonial duties and their
implementation of those guidelines are contrary to law.” Id. ¶ 52. On those same grounds,
plaintiffs seek mandamus relief against the Vice President and OVP in Claim Two, 28 U.S.C.
§ 1361, asserting an entitlement to enforcement of the Vice President’s “statutory duty to treat as
subject to the PRA all records of the vice president and his office that relate to the exercise of his
constitutional, statutory, and other official or ceremonial duties.” Id. ¶ 58. In Claim 3, plaintiffs
seek a declaration that alleged guidelines of the National Archives and Records Administration
(“NARA”) and the Archivist are unlawful to the extent they exclude “legislative records” from
the scope of the PRA. In addition, plaintiffs seek APA review of the Archivist’s guidelines
purportedly excluding legislative records from the PRA, 5 U.S.C. § 706, and APA review of the
“vice president’s and OVP’s guidelines implementing the PRA in a manner that excludes from
its reach all of the records that the vice president and his office create and receive.” Id. ¶¶ 63,
64. In Claim Four, plaintiffs seek mandamus relief against the Archivist and NARA.
ARGUMENT
Federal Rule of Civil Procedure 12(b)(1) permits a defendant to move to dismiss a claim
on the ground, among others, that the court lacks subject matter jurisdiction because the plaintiffs
lack standing, or because the United States has not waived its sovereign immunity. In contrast to
a motion to dismiss brought under Rule 12(b)(6), when a party moves to dismiss a complaint for
8
lack of subject matter jurisdiction under Rule 12(b)(1), a court may consider the motion based on
the complaint standing alone or, where necessary, on the complaint “supplemented by
undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.” Herbert v. Nat’l Acad. of Sci., 974 F.2d 192, 197 (D.C.
Cir. 1992). Upon motion, the plaintiff then bears the burden to prove by a preponderance of the
evidence that the court has jurisdiction to hear its claims. Indeed, it is “presume[d] that federal
courts lack jurisdiction unless the contrary appears affirmatively from the record.”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006). When reviewing a motion to
dismiss for lack of jurisdiction, “the court need not accept inferences drawn by plaintiffs if such
inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal
conclusions cast in the form of factual allegations.” Kowal v. MCI Commun. Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994). In the court’s analysis, plaintiffs’ “factual allegations in the
complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6)
motion.” Blancett v. United States Bureau of Land Mgmt., No. 04-2152, 2006 WL 696050
(D.D.C. March 20, 2006) (internal quotations and citations omitted).
To withstand a motion to dismiss for failure to state a claim under Rule 12(b)(6), a
complaint must contain “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual allegations must be enough to raise a right to
relief above the speculative level on the assumption that all the allegations in the complaint are
true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007)
(footnote omitted) (citations omitted). In evaluating the sufficiency of the complaint, the Court
considers only “the facts alleged in the complaint, any documents either attached to or
incorporated in the complaint and matters of which [the Court] may take judicial notice.” See
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EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). The rules of
pleading require factual allegations “plausibly suggesting,” and “not merely consistent with,” the
elements of a valid claim for relief, and plaintiffs must comply with the “threshold requirement
of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘show that the pleader is entitled
to relief.’” See Bell Atl. Corp., 127 S. Ct. at 1966.
If (and only if) any of plaintiffs’ claims are not dismissed for the reasons elaborated
below, summary judgment on behalf of the defendants is appropriate because the pleadings and
the evidence establish that “there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law” under Federal Rule of Civil Procedure 56(c). Id.
In a case involving a challenge to a “final agency action” under the Administrative Procedure
Act, 5 U.S.C. § 706 (“APA”), however, the standard set forth in Rule 56(c) “does not apply
because of the limited role of a court in reviewing the administrative record.” Sierra Club v.
Mainella, 459 F. Supp. 2d 76, 89 (D.D.C. 2006). “Under the APA, it is the role of the agency to
resolve factual issues to arrive at a decision that is supported by the administrative record,
whereas the function of the district court is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to make the decision it did.” Id. at
89-90. “Summary judgment thus serves as the mechanism for deciding, as a matter of law,
whether the agency action is supported by the administrative record and otherwise consistent
with the APA standard of review.” Id.
I. The PRA Does Not Provide A Judicially-Enforceable Right to Pursue Private Actions in
Federal Court
The court lacks subject matter jurisdiction over plaintiffs’ PRA, declaratory judgment and
mandamus claims because the PRA does not provide a private right enforceable through private
remedies. See Am. Compl. ¶¶ 52, 58, 65, 71-72. First, it is axiomatic that courts may not infer
10
causes of action absent clear language establishing both a federal right and remedy. In a
consistent line of cases beginning with Cannon v. Univ. of Chicago, 441 U.S. 677 (1979), the
Supreme Court has made clear that absent language that clearly creates judicially-enforceable
rights, courts must not imply a cause of action. Indeed, the Supreme Court recently emphasized
that implying rights of action “runs contrary to the established principle that the jurisdiction of
the federal courts is carefully guarded against expansion by judicial interpretation.” Stoneridge
Inv. Partners, L.L.C. v. Scientific-Atlanta, 128 S. Ct. 761, 772-73 (2008) (internal quotation
marks and citation omitted). Accordingly, absent an intent to create a judicially-enforceable
right, “a cause of action does not exist and courts may not create one, no matter how desirable
that might be as a policy matter[.]” Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001).
Consistent with this established law, the Supreme Court held in Kissinger v. Reporters
Comm. for Freedom of the Press, 445 U.S. 136 (1980), that the Federal Records Act does not
create any private enforceable rights. Instead, the Court explained that the Federal Records Act
was intended “not to benefit private parties, but solely to benefit the agencies themselves and the
Federal Government as a whole.” Id. at 149. Accordingly, the Supreme Court held that the FRA
had “not vested federal courts with jurisdiction to adjudicate” FRA compliance “upon suit by
private party.” Id. at 149-50. So too here with the PRA. “For purposes of the private right of
action inquiry, the PRA is largely indistinguishable from the FRA; accordingly, . . . no private
action may be maintained directly under either statute in federal court.” Armstrong v. Bush, 721
F. Supp. 343, 348-49 (D.D.C. 1989), rev’d in part on other grounds, 924 F.2d 282 (D.C. Cir.
1991).
11
The PRA does not provide a private right or a private remedy necessary to support
plaintiffs’ claims against any of the defendants.1 Although Congress generally “sought to
establish the public ownership of presidential records and ensure the preservation of presidential
records for public access after the termination of a President’s term in office” through the PRA,
Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 1991), no language in the PRA creates rights
that may be claimed by plaintiffs for vice presidential compliance with the PRA, nor provides for
private enforcement of its terms. See 44 U.S.C. §§ 2201-2207. Like the FRA, the PRA merely
“proscribes certain conduct,” and “does not create or alter any civil liabilities.”2 Kissinger, 445
U.S. at 148. As the D.C. Circuit concluded, “it is difficult to conclude that Congress intended to
allow courts, at the behest of private citizens, to rule on the adequacy of the [Vice] President’s
record management practices or overrule his records creation, management, and disposal
decisions.”3 Armstrong v. Bush, 924 F.2d at 290. Absent a private right enforceable in court
1
Neither Armstrong I nor Armstrong II address whether the PRA provides a private right of
action. Instead, both address only whether the PRA is a statute that precludes judicial review under the
APA. As controlling law establishes, no private right or remedy exists in the PRA. Thus, it is
indisputable that even the “classification” issues plaintiffs contend are appropriate for APA review remain
foreclosed for direct review under a direct cause of action brought under the PRA. Nonetheless, as shown
below, plaintiffs’ reliance on language from Armstrong II to seek judicial review of purported
“classification” issues under the APA is not permissible for PRA-, as opposed to FRA- or FOIA-, based
claims. Armstrong II stands for the limited holding that courts, in appropriate circumstances when
presented with appropriate FRA or FOIA-based claims, may review “guidelines defining presidential
records under the rubric of substantive FOIA law” to ensure that federal records were not shielded from
the reach of FOIA by being classified as presidential records. Thus even Armstrong II does not at all
disturb the conclusion that no private right of action exists under the PRA.
2
Indeed, the only private action contemplated by the PRA is for a former President to assert his
rights or privileges over records scheduled for disclosure by an Archivist. 44 U.S.C. § 2204(e).
3
The absence of a private right of action for plaintiffs to pursue their claims against the Archivist
and the National Archives and Records Administration is clear, too, by the absence of any authorization
for the Archivist to promulgate guidelines regarding “the scope of Vice President Cheney’s records
subject to the PRA.” Am. Compl. ¶ 72. As this Circuit recognized, “although the FRA authorizes the
Archivist to promulgate guidelines and regulations to assist the agencies in the development of a records
management system, the PRA lacks an analogous provision.” Armstrong, 924 F.2d at 290; see also 44
U.S.C. § 2206 (authorizing the Archivist to promulgate regulations for disposal pursuant to 44 U.S.C.
12
against the government, this Court lacks subject matter jurisdiction over plaintiffs’ PRA claims
and they must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1).4 See, e.g.,
Am. Compl. ¶ 2 (relying on 28 U.S.C. § 1331 for subject matter jurisdiction); Steel Co. v.
Citizens for a Better Environ., 523 U.S. 83, 89 (1998) (explaining that courts lack subject matter
jurisdiction over causes of action that are insubstantial or “foreclosed by prior decisions of this
Court”); Clements v. Gonzales, 496 F. Supp. 2d 70, 73 n.6 (D.D.C. 2007) (dismissing for lack of
subject matter jurisdiction because of the absence of a private right of action).
Because the PRA does not provide plaintiffs a private right to pursue here, they lack a
cause of action to pursue any declaratory judgment as well, and the court lacks subject matter
jurisdiction over the declaratory judgment requests in claims one and three. 28 U.S.C. §§ 2201-
2202; Am. Compl. ¶¶ 52, 65. It is well-settled that “the availability of [declaratory] relief
presupposes the existence of a judicially remediable right.” Schilling v. Rogers, 363 U.S. 666,
677 (1960). The PRA creates no judicially remediable rights to review the Vice President’s
record keeping or management decisions. As the Supreme Court has explained, the Declaratory
Judgment Act is “procedural only.” Skelly Oil Co., 339 U.S. at 671 (emphasis added). Through
the provisions of the Act, Congress did not enlarge the “kinds of issues which give right to
entrance to federal courts,” or “impliedly repeal[] or modif[y]” the “limited subject matters
which alone Congress had authorized the District Courts to adjudicate.” Id. at 672. Rather,
Congress simply “enlarged the range of remedies available in federal court” and only for existing
judicially remediable issues. Id. (emphasis added); see also C&E Serv., Inc. v. District of
Columbia Water & Sewer Auth., 310 F.3d 197, 201 (D.C. Cir. 2002); College Sports Council v.
§ 2203(f)(3) and for the logistics of processing and releasing records of former Presidents, there is no
analogous provision to promulgate regulations regarding an incumbent’s recordkeeping).
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Gov’t Accountability Office, 421 F. Supp. 2d 59, 70 (D.D.C. 2006) (“Because the plaintiff has
not stated any claims upon which relief can be granted, neither the Declaratory Judgment Act nor
the All Writs Act are of any value in evaluating the Court’s ability to entertain this action.”);
Superlease Rent-A-Car, Inc. v. Budget Rent-A-Car, Inc., Civ. No. 89-0300, 1989 WL 39393, *3
(D.D.C. Apr. 13, 1989) (explaining that the Act “provides no independent cause of action. The
plaintiff must assert an interest in itself, which the law recognizes. In other words, the plaintiff
must first have a cognizable cause of action under the contracts, which is precisely what
defendants claim does not exist.”).
Even if the absence of a private right in the PRA did not preclude plaintiffs’ mandamus
claims, they must be dismissed because the PRA does not provide a “clear and compelling duty”
owed to plaintiffs. In re Cheney, 406 F. 3d 723, 729 (D.C. Cir. 2005). Jurisdiction under 28
U.S.C. § 1361 “is strictly defined. . . . Mandamus is ‘drastic’; it is available only in
‘extraordinary situations’; it is hardly ever granted; those invoking the court’s mandamus
jurisdiction must have a ‘clear and indisputable right to relief; and even if the plaintiff overcomes
all these hurdles, whether mandamus relief should issue is discretionary.” Id. Mandamus relief
is appropriate only if a plaintiff has a clear right to relief, the defendants have a clear duty to act,
and there is no other adequate remedy available to the plaintiff. PDK Labs, Inc. v. Reno, 134 F.
Supp. 2d 24, 34 (D.D.C. 2001). The duty “to be performed by the agency must be ‘ministerial
and the obligation to act peremptory, and clearly defined. The law must not only authorize the
demanded action, but require it; the duty must be clear and indisputable.” Id. A ministerial duty
“is one that admits of no discretion, so that the official in question has no authority to determine
whether to perform the duty.” Swan v. Clinton, 100 F.3d 973, 977 (D.C. Cir. 1996).
4
For the same reasons, the claims should be dismissed for failure to state a claim under
Rule 12(b)(6).
14
The PRA provides only that the Vice President “shall take all such steps as may be
necessary to assure that the activities, deliberations, decisions, and policies that reflect the
performance of his constitutional, statutory, or other official or ceremonial duties are adequately
documented and that such records are maintained as [Vice] Presidential records pursuant to the
requirements of this section and other provisions of law.” 44 U.S.C. § 2203. The section fairly
exudes deference to the Vice President to “take all such steps as may be necessary,” without
defining any clear or ministerial duty appropriate for mandamus relief, or providing plaintiffs
any “clear right to relief.” Cf. Webster v. Doe, 486 U.S. 592, 600-01 (1988) (finding phrase
“shall deem such termination necessary or advisable in the interests of the United States” to
“fairly exude[] deference to the Director”).
Even if the Court were to find subject matter jurisdiction to entertain plaintiffs’ PRA,
declaratory judgment and mandamus claims, for the reasons set forth above, plaintiffs also fail to
state a claim upon which relief may be granted and they must be dismissed pursuant to
Rule 12(b)(6).
II. The Administrative Procedure Act Does Not Provide For Judicial Review of Plaintiffs’
Claims
Plaintiffs’ only surviving claim—alleged under the Administrative Procedure Act, see
Am. Compl. ¶¶ 63, 64—must be dismissed against all defendants as well.5 Because the APA
applies only to “agencies,” and excepts from review actions where “statutes preclude judicial
review,” or where “agency action is committed to agency discretion by law,” plaintiffs are
entitled to no relief here. 5 U.S.C. §§ 701(a)(1), 701(a)(2).
5
Plaintiffs’ APA claims are alleged in paragraphs 63 and 64 against only the Vice President, the
OVP, the Archivist and NARA. Am. Compl. ¶¶ 63-64. But an APA claim raised against “EOP” would
be dismissed for the same reasons set forth below.
15
A. The Office of the Vice President and Vice President Are Not “Agencies” Within the
Meaning of the APA
The Administrative Procedure Act provides for judicial review only of “agency action.”
5 U.S.C. § 702. Neither the Vice President nor the Office of the Vice President is an “agency”
for the purposes of the APA. Am. Compl. ¶ 64. Accordingly, this Court lacks subject matter
jurisdiction over plaintiffs’ APA claims against the Vice President and OVP. Cf. Benavides v.
United States Marshal Service, Civ. No. 07-1732, 2008 WL 1869014, *1 n.1 (D.D.C. Apr. 28,
2008) (noting court lacked subject matter jurisdiction over FOIA claims against non “agency”).
Under well-established law, the President is not an “agency” subject to suit under the
APA. Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992). Because of “respect for the
separation of powers and the unique constitutional position of the President,” the Supreme Court
found that “textual silence” in 5 U.S.C. § 551(1) defining “agency,” was “not enough to subject
the President to the provisions of the APA.” Id. at 800-01. Because of the absence of a clear
statement that Congress intended to encompass the President within the meaning of “agency,”
the Supreme Court declined to subject the President to the terms of the APA. Id. The logic of
Franklin requires the same result here for the Vice President and his office, and has been
confirmed by courts expressly holding that the Vice President and OVP are not “agencies”
within the meaning of the Freedom of Information Act.6 See, e.g., Banks v. Lappin, 539 F.
Supp. 2d 228 234 (D.D.C. 2008) (dismissing action for lack of subject matter jurisdiction
6
The definition of “agency” in the Freedom of Information Act, 5 U.S.C. § 552(f)(1), expands on
the definition of “agency” in the APA. Thus an entity that is not an “agency” within the meaning of
FOIA cannot be an agency within the meaning of the APA. See Meyer v. Bush, 981 F.2d 1288, 1292
(D.C. Cir. 1993) (noting that prior to 1974 amendments to FOIA, the term “agency” in FOIA had been
adopted from the definition of “agency” in the APA).
16
because Vice President and Office of the Vice President are not “agencies” within the meaning
of FOIA).7
Because plaintiffs cannot receive relief under the APA directly against the Office of the
Vice President or the Vice President, plaintiffs cannot establish any entitlement to relief under
the APA against either the Archivist or NARA. As elaborated below, plaintiffs’ claimed injuries
cannot be redressed by seeking APA relief from the Archivist and NARA because neither has the
authority “to veto the [Vice] President’s disposal decisions,” “inspect the [Vice] President’s
records or survey the [Vice] President’s records management practices.” Armstrong, 924 F.2d at
290; see also 44 U.S.C. § 2203 (providing no authority for the Archivist to overturn any records
management decisions by the Vice President or to amend or change the Vice President’s record
keeping guidelines). Neither NARA nor the Archivist may supervise the Vice President or his
office for PRA compliance, and no order from this Court may mandate it.8 Accordingly,
plaintiffs are unable to show redressability for their claims: “a ‘substantial likelihood’ that the
requested relief will remedy the alleged injury in fact.” Vermont Agency of Natural Res. v.
United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (internal citation omitted). Where “the
necessary elements of causation . . . hinge on the independent choices of a . . . third party . . . it
becomes the burden of the plaintiff to adduce facts showing that those choices have been or will
be made in such manner as to produce causation and permit redressability of injury.” Nat’l
Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 938 (D.C. Cir. 2004) (quoting Lujan,
7
For the same reasons, plaintiffs lack a cause of action and their APA claims must be dismissed
pursuant to Rule 12(b)(6).
8
In fact, Ms. Smith testified that she was unaware of any written documents or guidance that
NARA has issued further defining or explaining the scope of the PRA with respect to vice presidential
records. Ex. 3, Smith Rough Dep. Tr. at 29:9-14; id. at 185:15-186:20 (testifying that NARA relies on
the definition of vice presidential records in the PRA).
17
504 U.S. at 562) (internal quotation marks omitted). Plaintiffs cannot do so here and their APA
claims against all defendants must be dismissed.
B. The PRA Precludes Judicial Review
Even if the agency status of the Vice President did not bar relief on plaintiffs’ APA
claims, the PRA itself forecloses judicial review under the APA. Because the PRA is one of the
“statutes that preclude judicial review,” no APA review of the Vice President’s compliance with
the PRA is permissible. 5 U.S.C. § 701(a)(1). As this Circuit explained, “permitting judicial
review of the [Vice] President’s compliance with the PRA would upset the intricate statutory
scheme Congress carefully drafted to keep in equipoise important competing political and
constitutional concerns.” Armstrong I, 924 F.2d at 290.
Through the PRA, Congress “sought to establish public ownership of [vice] presidential
records and ensure the preservation of [vice] presidential records for public access after the
termination of a [Vice] President’s term in office,” though Congress was likewise “keenly aware
of the separation of powers concerns that were implicated by legislation regulating the conduct
of the [Vice] President’s daily operations.” Id. The PRA therefore requires the Vice President
“to maintain records documenting the policies, activities and decisions of his administration, but
leav[es] the implementation of such a requirement in the [Vice] President’s hands.” Id.
(emphasis added). Accordingly, the PRA “assiduously . . . minimize[s] outside interference with
the day-to-day operations of the [Vice] President and his closest advisors and” ensures the Vice
President’s “control over [vice] presidential records during the [Vice] President’s term in
office.” Id. (emphasis added). The PRA “accords the [Vice] President virtually complete control
over his records during his term of office.” Id. Based on these limitations in the PRA, as well as
the “cautious authority for the Archivist and Congress to question the [Vice] President’s disposal
18
decisions and the lack of any authority to interfere with his records management practices,” this
Court concluded that the PRA was not intended to “allow courts, at the behest of private citizens,
to rule on the adequacy of the [Vice] President’ records management practices or overrule his
records creation, management, and disposal decisions.” Id. In sum, this Circuit held that
In declining to give outsiders the right to interfere with White House

recordkeeping practices, Congress presumably relied on the fact that subsequent
Presidents would honor their statutory obligations to keep a complete record of
their administrations. We will not second-guess that decision or upset the
political compromises it entailed. Allowing judicial review of the President’s
general compliance with the PRA at the behest of private litigants would
substantially upset Congress’ carefully crafted balance of presidential control of
records creation, management, and disposal during the President’s term in office
and public ownership and access to the records after the expiration of the
President’s term. We therefore hold that the PRA precludes judicial review of the
President’s recordkeeping practices and decisions.”
Id. at 290-91.
The D.C. Circuit did not alter in Armstrong II its conclusion from Armstrong I that
claims grounded on the PRA may not be adjudicated under the APA. Armstrong II, 1 F.3d at
1292. Rather, the Court merely held in Armstrong II that courts could review “guidelines
defining presidential records under the rubric of substantive FOIA law” to ensure that federal
records were not shielded from the reach of FOIA by being classified as “presidential records.”
Id. (emphasis added). In other words, although Armstrong I foreclosed judicial review of PRA
claims, it did not foreclose courts from reviewing FRA- or FOIA-based claims, and examining
any relevant guidelines to determine the scope of the federal records at issue on those FRA- or
FOIA-based claims. Armstrong II thus stands for the limited holding that Armstrong I does
shield in all circumstances presidential guidelines from review when an appropriate FRA- or
FOIA-based claim, which is judicially reviewable, calls those guidelines into question.
Armstrong II did not, however, disturb the panel’s conclusion in Armstrong I that claims seeking
19
direct review of PRA compliance—distinct from FRA- or FOIA-based claims alleging
overbreadth of guidelines defining presidential records—remain immune from judicial review.
Examining the lower court decision on review in Armstrong II confirms the limitations of
Armstrong II and its inapplicability here. As made clear through the district court opinion on
review in Armstrong II, the plaintiffs in Armstrong II filed a second amended complaint to
conform with the limits of Armstrong I by presenting only FRA- or FOIA-based claims.
Armstrong v. Bush, 139 F.R.D. 547, 550 (D.D.C. 1991) (“In the second amended complaint, the
plaintiffs allege that: (1) substantial amounts of the information on the preserved PROFS tapes
constitute “agency records” subject to the FOIA, and that the defendants have improperly
withheld those agency records which are not exempt from disclosure under the FOIA; (2) the
guidelines issued by the Executive Office of the President (“EOP”) and the NSC are arbitrary
and capricious in violation of the FRA because they authorize destruction of agency records; (3)
certain general schedules, promulgated by the Archivist, which authorize the disposal of certain
electronic records after the lapse of specified periods of time, are arbitrary and capricious
because they authorize the disposal of agency records; and (4) the Archivist has violated his
statutory duty to initiate action to stop improper destruction of agency records on the PROFS
system. See Second Amended Complaint at 11-14.”). The plaintiffs there did not, however, seek
judicial review of a PRA-claim under the APA or raise any claims grounded on the PRA. As the
plaintiffs stated, their “Second Amended Complaint, in response to the court of appeals’
conclusion that judicial review of compliance with the Presidential Records Act is not available,
omits plaintiffs’ claims for relief under that Act.” See Ex. 4, Armstrong v. Bush, Civ. No. 89-
0142, Mot. for Leave to File Am. Compl. & 2d Am. Compl. at 1 (emphasis added).
20
In the course of discovery on those FRA- and FOIA-based claims, the Armstrong
plaintiffs requested access to presidential records guidelines from the National Security Council,
which at the time was thought to create both FRA and PRA records, on “types of records [that]
should be preserved as agency records pursuant to the FRA, but others [as] ‘Presidential records’
pursuant to the PRA, or ‘convenience records.’” 139 F.R.D. at 551. In that context, the
plaintiffs argued “that the classification scheme as it distinguishes among the various types of
records directly bears on the adequacy of the guidelines for preserving records under the FRA,
since Presidential records are not governed by FRA procedures and involve different rules of
preservation and public access.” Id. (emphasis added). The defendants, in turn, broadly argued
“that the question of how Presidential records are classified is one that was specifically held not
subject to judicial review by the Court of Appeals and is therefore beyond the scope of
discovery.” Id. The district court agreed with defendants and concluded “that PRA precludes
judicial review of the President’s recordkeeping practices and decisions.” Id.
It is that sweeping conclusion with which the D.C. Circuit disagreed in Armstrong II. As
the Armstrong II panel explained, the “Armstrong I opinion does not stand for the unequivocal
proposition that all decisions made pursuant to the PRA are immune from judicial review.”
Armstrong II, 1 F.3d 1293. In limited circumstances where the scope of presidential guidelines
may encompass federal records, those “guidelines describing which existing materials will be
treated as presidential records in the first place” may be subject to judicial review pursuant to
FRA or FOIA-based claims, and even then only “under the rubric of substantive FOIA law” to
ensure that federal records are not encompassed within the guidelines. Id. at 1293, 1294. As the
Armstrong III court confirmed after Armstrong II was issued, Armstrong I remains good law.
21
Armstrong v. Bush, 90 F.3d 553, 556 (D.C. Cir. 1996). “[R]ecord-keeping requirements of the
FRA are subject to judicial review and enforcement; those of the PRA are not.” Id. at 556.
This prohibition on review of PRA claims is consonant with the reach of the APA. As
Kissinger and its progeny make clear, no private right of action exists under the PRA. See
discussion infra part I. And under the APA, only “agencies” may be sued for relief. Because the
“coverage of the FRA is coextensive with the definition of ‘agency’ in the FOIA,” any PRA-
covered entity would not be an “agency” within the meaning of FOIA and could not be sued
under the APA for PRA relief. See Armstrong III, 90 F.3d at 556 (“The FRA describes a class of
materials that are federal records subject to its provisions, and the PRA describes another
mutually exclusive set of materials that are subject to a different and less rigorous regime.”).
This absence of available parties to sue under the APA9 simply underscores what Armstrong I
teaches and what Armstrong II leaves intact: no APA review may obtain for claims seeking
review of PRA compliance.10
Here, plaintiffs do not allege any FRA- or FOIA-based claims, or allege that the Vice
President’s recordkeeping guidelines sweep in FRA covered records within their scope,
unlawfully shielding federal records from judicial review. See generally Am. Compl. Plaintiffs
instead raise only PRA-based claims. As such, plaintiffs’ claims are squarely foreclosed by
Armstrong I. They present exactly the request “for judicial review of the [Vice] President’s
compliance with the PRA at the behest of private litigants” that Armstrong I forbids. Because
9
And as shown above and elaborated below, plaintiffs’ claimed injuries cannot be redressed by
seeking relief against “agencies” like the National Archives or the Archivist because neither has the
authority to manage the Vice President’s recordkeeping practices or supervise his guidelines.
10
At the time of Armstrong I and Armstrong II, the “agency” status of the National Security
Council had not been determined for the purposes of FOIA and the FRA. In Armstrong III, the D.C.
Circuit made clear that the NSC is not an agency within the meaning of FOIA. Accordingly, its records
22
plaintiffs’ claims “substantially upset Congress’ carefully crafted balance of presidential control
of records creation, management and disposal during the President’s term of office,” they remain
prohibited by Armstrong I, are not reviewable under the APA, and must be dismissed.11
As a result, plaintiffs’ APA claims regarding PRA compliance remain unreviewable, and
the inapplicability of the waiver of sovereign immunity provided in the APA poses an additional
jurisdictional defect. See, e.g., Council on American Islamic Relations v. Ballenger, 444 F.3d
659, 661 (D.C. Cir. 2006). Where, as here, a statute precludes review under the APA, the APA
does not waive the United States’s sovereign immunity. See 5 U.S.C. § 701(a)(1) (explaining
that the APA applies except to the extent that “statutes preclude judicial review”); Heckler v.
Chaney, 470 U.S. 821, 828 (1985) (noting that APA review is inappropriate unless a plaintiff
“clear[s] the hurdle of § 701(a)”); High Country Citizens Alliance v. Clarke, 454 F.3d 1177,
1181 (10th Cir. 2006) (“In other words, before the waiver of sovereign immunity under § 702
applies, ‘a party must first clear the hurdle of § 701(a).’ ”); Tozzi v. EPA, 148 F. Supp. 2d 35, 43
(D.D.C. 2001) (“The APA’s sovereign immunity waiver does not apply where a statute has
explicitly precluded judicial review.”). Without a waiver of sovereign immunity, the Court lacks
subject matter jurisdiction and the claims must be dismissed under Federal Rule of Civil
Procedure 12(b)(1).
C. Even if the Vice President and the OVP Were Construed as Agencies under the
APA, PRA Compliance would be Committed to their Discretion by Law
In addition to the above bars to suit, APA review would not be permissible because PRA
compliance for vice presidential records is committed to the Vice President’s discretion by law.
were subject to the PRA and not the FRA or FOIA. Consequently, the NSC is now not subject to suit
under the APA or for claims pursuant to the PRA.
11
Because the Court lacks subject matter jurisdiction over these APA claims seeking review under
the PRA, plaintiffs’ APA claims should be dismissed pursuant to Rule 12(b)(1). For the same reasons,
23
5 U.S.C. § 701(a)(2). “Agency” action is unreviewable, when, as here, “statutes are drawn in
such broad terms that in a given case there is no law to apply.” S. Rep. No. 752, 79th Cong., 1st
Sess., 26 (1945). “Even where Congress has not affirmatively precluded review, review is not to
be had if the statute is drawn so that a court would have no meaningful standard against which to
judge the agency’s exercise of discretion. In such a case, the statute (‘law’) can be taken to have
‘committed’ the decisionmaking to the agency’s judgment absolutely.” Heckler v. Chaney, 470
U.S. 821, 830 (1985). Even if statutes set forth criteria to be considered in agency action, action
is not reviewable if that criteria is not “judicially manageable.” Nat’l Federal of Fed. Employees
v. United States, 905 F.2d 400, 405 (D.C. Cir. 1990). Courts have thus concluded that actions
are not reviewable under the APA where the language of the statute, structure of the statutory
scheme, objectives of the statute, legislative history and the nature of the administrative action
permit broad agency discretion. See, e.g., Hammond v. Comptroller of the Currency, 878 F.
Supp. 1438, 1445 (D. Kan. 1995) (citing Block v. Community Nutrition Inst., 467 U.S. 340, 345
(1984)); see also Cappadora v. Celebrezze, 356 F.2d 1, 5-6 (2d Cir. 1966) (analyzing whether the
practical requirements of the task to be performed, absence of available standards or even the
fact that no useful purpose could be served by judicial review precluded APA review). Such
actions are not reviewable under the APA and must be dismissed. See Webster v. Doe, 486 U.S.
592, 600-01 (1988).
For all the reasons discussed above, as set forth in Armstrong I, the language of the PRA,
structure of the statutory scheme, objectives of the statute, legislative history and the nature of
the “administrative action” permit broad discretion on the part of the Vice President. The Vice
President alone may determine what constitutes vice presidential records or personal records,
plaintiffs fail to state a claim upon which relief may be granted and must be dismissed pursuant to
Rule 12(b)(6).
24
how his records will be created, maintained, managed and disposed, and are all actions that are
committed to his discretion by law. Armstrong I, 924 F.2d at 290 (PRA ensures the Vice
President’s “control over [vice] presidential records during the [Vice] President’s term in office);
(PRA leaves “implementation of [PRA] in the [Vice] President’s hands); (PRA does not provide
for the Archivist to promulgate guidelines and regulations to assist the Vice President in the
development of a records management system); (Archivist lacks authority to inspect the Vice
President’s records or survey the Vice President’s management practices); (Archivist has no
authority to veto any disposal decision); (“PRA accords the [Vice] President virtually complete
control over his records during his term of office.”); (PRA does not permit “outsiders the right to
interfere with White House recordkeeping practices).
III. Plaintiffs’ Lack of Standing Requires that their Claims be Dismissed
Even if plaintiffs had raised viable claims, they lack standing to assert them, and
plaintiffs’ claims must be dismissed under Rule 12(b)(1) for failure to establish constitutional
standing. “The judicial power of the United States . . . is not an unconditioned authority” but is
limited by Article III of the Constitution. Valley Forge Christian College v. Americans United
for Separation of Church & State, 454 U.S. 464, 471 (1982). That Article “confines the federal
courts to adjudicating actual ‘cases’ and ‘controversies.’” Allen v. Wright, 468 U.S. 737, 750
(1984). In the absence of an actual case or controversy, the Court is without jurisdiction to
decide the case. See Warth v. Seldin, 422 U.S. 490, 499 (1975); see also Poe v. Ullman, 367
U.S. 497, 502 (1961). Thus, a court must ensure that its authority is invoked where there is “a
lively conflict between antagonistic demands, actively pressed, which make resolution of the
controverted issue a practical necessity,” id. at 503 – a requirement “founded in concern about
the proper – and properly limited – role of the courts in a democratic society.” Warth, 422 U.S.
25
at 498. Otherwise, “the courts would be called upon to decide abstract questions of wide public
significance even though other governmental institutions may be more competent to address the
questions and even though judicial intervention may be unnecessary to protect individual rights.”
Id. at 500.
“[C]ourts have developed a series of principles termed ‘justiciability doctrines,’ among
which are standing, ripeness, mootness, and the political question doctrine.” Nat’l Treas.
Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). These doctrines
consist of both “prudential elements which Congress is free to override and core component[s]
which are essential and unchanging part[s] of the case-or-controversy requirement of Article III.”
Id. (internal quotations omitted). This action implicates a core component of that requirement –
standing – whose absence requires dismissal of plantiffs’ claims.
Article III standing requires that a plaintiff have suffered “an (1) injury in fact--an
invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical--(2) which is fairly traceable to the challenged act, and
(3) likely to be redressed by a favorable decision.” Nat’l Treasury Employees’ Union v. United
States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (internal quotation marks and citation omitted); see
also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The doctrine of standing is
“an essential and unchanging part of the case-or-controversy requirement of Article III,” Lujan,
504 U.S. at 560, and “the party invoking federal jurisdiction bears the burden of establishing its
existence.” Steel Co., 523 U.S. at 104. In fact, this court must presume the absence of
jurisdiction “unless the contrary appears affirmatively from the record.” DaimlerChrysler, 547
U.S. at 342 n.3. Plaintiffs here lack actual injury and cannot establish that any injury is “actual
26
or imminent, not conjectural or hypothetical” for their claims against all defendants; and fail to
establish traceability or redressability against the EOP, NARA and Archivist.
A. Plaintiffs Lack Imminent Injury
Plaintiffs cannot demonstrate standing because they have not shown that they would be
injured even if OVP was failing to comply with the terms of the PRA (which it is not). Plaintiffs
can only assert a speculative or hypothetical interest in seeking future access to vice presidential
records years from now. It is well established that speculative or hypothetical claims of injury
are insufficient to confer standing. See Simon v. Eastern Kentucky Welfare Rights Organization,
426 U.S. 26, 44 (1976) (“unadorned speculation will not suffice to invoke the federal judicial
power”). Rather, the alleged injury “must be certainly impending,” Whitmore v. Arkansas, 495
U.S. 149, 158 (1990) (internal quotation marks and citations omitted), and “real and immediate.”
City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). “Although the fact that harm or injury
may occur in the future is not necessarily fatal to a claim of standing[,] ... [such circumstances
can] lessen the concreteness of the controversy and thus mitigate against a recognition of
standing.” United Transp. Union v. I.C.C., 891 F.2d 908, 913 (D.C. Cir.1998) (internal
quotation marks omitted). Thus, when a party alleges future injury alone, the party “must
demonstrate a realistic danger of sustaining a direct injury[.]” Id. (quoting Babbitt v. United
Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
This court rejected in similar circumstances plaintiffs’ standing to challenge an executive
order governing records disposition based on the speculativeness of future harm arising from
future requests for records. Although the court recognized that there existed “a significant
likelihood that plaintiffs will again seek access to presidential records, and face indeterminate
delays in accessing them,” it did not find such allegations sufficient for standing. Am. Historical
27
Ass’n v. Nat’l Archives & Records Admin., 310 F. Supp. 2d 216, 228 (D.D.C. 2004), later
opinion Am. Historical Ass’n v. Nat’l Archives & Records Admin, Civ. No. 01-2447, 2007 WL
2822027 (D.D.C. Oct. 1, 2007). As the court explained,
[T]he Court cannot find that this future injury is sufficiently imminent, and not
conjectural and hypothetical. At this stage, Plaintiffs have no outstanding
requests for presidential records . . . . This Court, however, is not prescient, and
cannot know at this point in what way the facts will reveal themselves when
Plaintiffs themselves, or indeed other interested parties, seek the records . . . .
Id. 310 F. Supp. 2d at 228. Plaintiffs here, too, suffer from the same defect. Because claims of
speculative future harm from future, indeterminate record requests are inadequate to confer
standing, plaintiffs lack standing as to all of their claims.
In CREW v. Department of Homeland Security, this court also dismissed a case for
CREW’s lack of standing for prospective declaratory and injunctive relief. Civ. No. 06-0883,
Slip. Op. at 7-10 (D.D.C. Dec. 17, 2007) (RCL). Although the court acknowledged that CREW
had alleged past injuries arising from denial of access to records because of allegedly inadequate
recordkeeping practices, it stated that such “past injury-in-fact . . . does not in and of itself give
CREW standing to seek prospective relief.” Id. at 7. In concluding that CREW lacked standing,
the court dismissed CREW’s claims that it would be subject to continuing injury because it
would continue to use FOIA to gain access to agency records.
These alleged future injuries – while certainly plausible – are too speculative and
remote at this point to give CREW standing to seek prospective relief. . . . Most
notably, CREW does not allege anywhere in its complaint or opposition brief that
it has a FOIA request pending with the DHS or that it intends to file a specific
FOIA request with the DHS for WAVES records in the near future. Without this
information, the Court cannot say that the alleged future injury is either real or
imminent. That CREW may one day file another FOIA request with the DHS
does not represent a cognizable, palpable injury which presents a case or
controversy for the Court to consider.
28
Id. at 24. Thus, although informational injury could be adequate for some claims, the court
concluded that prospective relief required a further showing. “While there [was], admittedly, a
reasonable probability that CREW will seek these records in the future, this presumption is not
enough to establish an imminent, non-speculative injury-in-fact.” Id.
Plaintiffs’ only alleged injuries are that they will be denied access to “historical
presidential and vice presidential records in a timely fashion, including the records of the current
administration when they become available for public review.” Am. Compl. ¶¶ 6-12. None,
however, alleges that it has ever filed a FOIA request for vice presidential records from past
administrations, much less that it will be specifically seeking FOIA requests for this Vice
President’s (as opposed to the President’s) records in the future when they become available
pursuant to the PRA. But even if it had, such entirely hypothetical and speculative assertions
about future requests for records are insufficient to confer Article III standing.
B. Plaintiffs Lack Any Injury-in-Fact
No “case or controversy” exists here over which the Court may appropriately exercise
jurisdiction because plaintiffs have no injury on which to rely. Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 102 (1998). First, despite plaintiffs’ contention “upon information and
belief” that the Office of the Vice President and Vice President have not followed section 2207
with respect to vice presidential records, the Office of the Vice President and Vice President
have complied with the PRA. See Am. Compl. ¶¶ 35-37. Plaintiffs therefore lack any actual
injury to invoke this Court’s jurisdiction, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-
61 (1992), and have no “legally cognizable interest in the final determination of the underlying
questions of fact and law.” Davis, 440 U.S. at 632.
29
The OVP has been complying with—and intends to continue to comply with—section
2207 with respect to “documentary materials, or any reasonably segregable portion thereof,
created or received by the [Vice] President, his immediate staff, or a unit or individual of the
[Office of the Vice President] whose function is to advise and assist 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). As demonstrated by the Declaration and Supplemental Declaration, and
confirmed by the Second Supplemental Declaration and the deposition, of Assistant to the Vice
President and Deputy Chief of Staff Claire M. O’Donnell, the Office of the Vice President
correctly applies section 2207 of title 44 to vice presidential records. See Second Supp. Decl. of
Claire M. O’Donnell (“2d Supp. Decl.”). There are no vice presidential records that the Office
of the Vice President has excluded from the scope of the PRA through its guidance or policies
regarding vice presidential records. See 2d Supp. Decl. ¶¶ 4-5; see also Supp. Decl. ¶ 5. The
O’Donnell declarations and deposition testimony reflect that the Office of the Vice President
applies section 2207 to all documentary materials that constitute vice presidential records as
defined by the Presidential Records Act. See generally Ex. 1 (compiling declarations of Ms.
O’Donnell and Ms. Smith submitted to establish absence of irreparable harm for preliminary
injunction briefing). Specifically:
• Ms. O’Donnell testified that all official records received or created by the OVP are treated
as vice presidential records under the PRA. See Ex. 2, Dep. Tr. of Claire M. O’Donnell,
37:15-38:1 (“Q: And what is your understanding of the documents that the Vice President is
required to transfer to NARA at the end of his administration? A: All of his executive and
legislative files. Q: Okay. Do you have any more specific understanding than that? A: Any
documents that he has either created or received in his official functions.”); 55:16-20 (“Again,
every document that we receive or create in our capacities, meaning the staff of the Vice
President, to assist him in his duties are to be kept for the Presidential Records Act.”); 54:6-9
(same); 99:19-100:22 (explaining that OVP’s guidance is to transfer all vice presidential
records as defined under the PRA that have been created or generated during the vice
30
presidency of Richard B. Cheney); 102:7-103:14 (explaining that “for all practical purposes,
everything is considered official” and maintained under the PRA, except “something really
personal in your personal life outside of anything official,” like “a bank statement or a thank
you note for a wedding reception); 119:11-12 (“[I]t’s the general policy everything is a
presidential record.”); 128:17-129:1 (Q: “If a document is covered by the PRA, and by that I
mean if a document is vice presidential, if it meets the definition of vice presidential, of a vice
presidential record within the meaning of the PRA, is it your understanding that that
document has to be preserved? A: Yes.”); 136:12-16 (“I know that, again in general,
everything that is prepared by any staff member for the Vice President or by the Vice
President is considered a [vice] presidential record.”); 139:5-140:2 (explaining that “guidance
that the staff that we trust” has been given is to preserve records that have been created by the
Vice President’s staff); 140:8-12 (“I believe all documents, all documents in the Vice
President’s office, created or received by the Vice President or the Vice President’s staff are
being kept under the Presidential Records Act.”); 141:4-7 (“To the best of my knowledge, like
all other records, if records have been prepared for the Vice President, they are being kept
under the Presidential Records Act”); 141:17-19 (same); 142:6-14 (same); 142:18-143:6
(same); 144:22-145:8 (same); 147:11-13 (same); 147:20-149:2 (same); 151:5-8 (“If an
employee of the Office of the Vice President keeps records that have to do with the Vice
President’s executive or legislative duties, they are kept for the PRA); 156:18-21 (“I believe
that any documents that have been created or received by the Vice President and her staff or
his staff are considered [vice] presidential documents.”); 77:15-22 (“I could only answer that I
don’t get into the legalese of all the Vice President’s duties. We view it that everything he
does he is doing on behalf of the President and that’s our practice and that’s the guidance I
give to people that, everything you are doing here is in support of the Vice President and it’s
considered a [vice] Presidential document.”); 78:9-13 (“Again, if he is – I don’t get into the
legalese. If there are documents created, or received on behalf of his duties, and if he sits on
that board because he is Vice President, then we would consider it a [vice] Presidential
document.”); 78:14-79:2 (similar).
• She also explained, contrary to plaintiffs’ allegations, that the Vice President’s legislative
records are being managed under the PRA. Id. at 61:17-22 (explaining that legislative records
are treated “the same as the executive records are kept. Everything is considered a document
that has to be kept or filed.”); see also Ex. 3, Smith Rough Dep. Tr. at 199:6-9 (“They
confirmed to NARA that in response to a question we asked that they were treating records
that Cheney created in the Senate office as vice presidential record.”); 202:10-15 (“NARA
specifically asked Gary Stern [NARA’s general counsel], asked how were they treating
legislative or records created in the Senate office and they responded over I think it was
several conversations, not all of which I were involved in, that they were treating them as vice
presidential record.”); 203:7-12 (same).
• And she further explained that the guidance provided to the Vice President with regard to
PRA obligations did not differ from the guidance provided to other OVP staff. Ex. 2,
O’Donnell Dep. Tr. at 79:22-80:5 (stating that Vice President “supports the guidance that I
have been asked to give out and the processes, processes that we follow”); 87:21-88:6 (stating
that it is the intent of the Vice President to include “all of the papers, records, notes,
31
recordings, memo that the Vice President has created since January 20, 2001, . . . as vice
presidential materials turned over to NARA under the Presidential Records Act”).
Simply put, there are no “policies and guidelines that exclude from the reach of the PRA
all but a narrow category of vice presidential records created or received in the very limited
circumstances in which the vice president deems himself to be acting as part of the executive
branch,” Am. Compl. ¶ 35; it is not true that “Vice President Cheney and the OVP will destroy,
transfer, or otherwise dispose of many of the vice president’s records under the theory they are
personal records and therefore not covered by the PRA or subject to any other record keeping
law or obligation,” id ¶ 44; there is no validity to the claim that “legislative records” are treated
as personal by this Vice President; and it is not true that the OVP and Vice President have been
violating the terms of the PRA by relying on guidelines that do not classify vice presidential
records in accord with the definition set forth in the PRA. See generally Ex. 1, Ex. 2, Ex. 3. As
established in the following exchange, the Vice President and OVP have applied guidance that
complies fully with the PRA:
Question: If a document is covered by the PRA, and by that I mean if a document

is vice presidential, if it meets the definition of vice presidential, of a vice
presidential record within the meaning of the PRA, is it your understanding that
that document has to be preserved?
Answer: Yes.
Ex. 2, O’Donnell Dep. Tr. 128:17-129:1.12 In short, plaintiffs have no injury upon which to
stake their claims.
Plaintiffs nonetheless have alleged that the language used in the declarations deliberately
omit assurances about PRA compliance for documentary materials that may have been received
or generated by the Vice President in carrying out some alleged functions that are not either the
12
See also Ex. 3, Smith Rough Dep. Tr. at 111:8-10 (“I’m not aware of any Cheney documents that
are carved out and are not being managed by the Office of the Vice President”).
32
Vice President’s functions (1) “specially assigned to the Vice President by the President in the
discharge of executive duties and responsibilities” or (2) as President of the Senate. Seizing on
the language “specially assigned,” plaintiffs have claimed that the Vice President performs some
other functions that are not “specially assigned by the President,” and that the documentary
material relating to or having an effect on those functions are not being maintained under the
PRA.13
13
The description of the Vice President’s executive functions as those “specially assigned to the
Vice President by the President in the discharge of executive duties and responsibilities” is a well-
recognized term of art taken from 3 U.S.C. § 106. Indeed, memoranda from the Assistant Attorney
General for the Office of Legal Counsel, Walter Dellinger, use the exact same term of art. Assistant
Attorney Dellinger observed that “[t]he Vice President has no constitutional or statutory responsibilities
as an executive branch officer, and the common understanding that his executive role is limited to
advising and assisting the President (as determined by each President) is confirmed by the statute
authorizing appropriations or other assistance and services for the Vice President, . . . 3 U.S.C. § 106.” 18
U.S. Op. Off. Legal Counsel 10, *1 (1994). The Vice President undertakes executive-related activities --
all covered by section 2207 as “constitutional, statutory or other official or ceremonial duties of the Vice
President” – all of which are considered to be “specially assigned by the President in the discharge of
executive duties and responsibilities.” The “specially assigned” language is a term of art found in 3
U.S.C. § 106 that refers to all of the Vice President’s executive activity (because a Vice President has no
executive-related responsibilities whatsoever unless the President assigns them to the Vice President). In
using the “specially assigned” language, the Office of the Vice President did not narrow or limit what
falls within the scope of the Vice President’s executive-related functions, all of which are encompassed
by section 2207. As Ms. O’Donnell provides in her Second Supplemental Declaration and confirmed in
her deposition, the “Office of the Vice President construes these categories broadly, so that all of the Vice
President’s functions as Vice President fall within either of those two categories.” 2d Supp. Decl. ¶ 5.
Likewise, plaintiffs’ counsel herself submitted a brief to the court as an attorney for the
Department of Justice explaining that the Vice President performs either functions “specially assigned” to
him by the President or functions as President of the Senate. See Judicial Watch, Inc. v. Nat’l Energy
Policy Dev. Gp., Civ. No. 01-1540, Dkt. 34 (Defs.’ Mot. to Dismiss) at 13 (“The Vice President has
responsibilities to assist the President with the President’s executive duties. See 3 U.S.C. § 106
(recognizing Vice President’s function of assisting President with Executive responsibilities). . . .
Moreover, the Vice President’s important constitutional role in the legislative branch, see U.S. Const. art.
I, § 3, cl. 4, . . . further supports the view that the Vice President is not an agency under the APA.”); see
also id. at 16 (“The Constitution establishes the office of Vice President, see U.S. Const. art. II, § 1, cl. 1,
but gives the Vice President no specific executive duties. Indeed, Congress, in authorizing staff and other
assistance for the Vice President, indicated that such staff was provided ‘in order to enable the Vice
President to provide assistance to the President in connection with the performance of functions specially
assigned to the Vice President by the President in the discharge of executive duties and responsibilities.’
3 U.S.C. § 106(a) (emphasis added).”).
33
As the declarations reflect and as confirmed in the deposition, the Vice President has no
official functions other than those “specially assigned to the Vice President by the President in
the discharge of executive duties and responsibilities” and those as President of the Senate, and
no documentary materials that meet the definition of vice presidential records are being excluded
from the reach of the PRA. 2d Supp. Decl. ¶ 7; Supp. Decl. ¶ 6; Ex. 2, O’Donnell Dep. Tr. at
84:16-19 (Q: “Okay. And are there any other responsibilities that he has? A: Everything would
fall under those two categories, everything else he does.”). Moreover, notwithstanding plaintiffs’
attempt to limit the reach of the phrase “specially assigned by the Vice President by the President
in the discharge of executive duties and responsibilities,” the record makes clear that the phrase
was intended to cover all of the Vice President’s duties but for his duties as the President of the
Senate. See also id. at 83:18-84:1 (Q: Is it your understanding that everything that the Vice
President does in his executive capacity is specially assigned by the President? A: In general
terms and in specific terms, yes. It’s all – they are all assigned by the President); 172:10-22 (“Q:
“The Vice President relies in substantial part on OVP personnel for support in the performance
of his official functions. What, as used herein, what does the term official functions include? A:
All of his executive and legislative functions. Q: And does that term differ in any way from
those functions that are specially assigned by the President? A: It encompasses those functions,
specially assigned.”); 66:12-22 (“He is there to take on responsibilities that the President assigns
to him. He has no other responsibilities other than to assist and work for the President. . . .
When we first came into office, that’s what we were told. We were there as Vice Presidential
staff to assist the Vice President in carrying out his function in working for the President.”);
73:5-10 (“And how does this definition, by this definition I mean Vice Presidential support of
Presidential functions differ from the specially assigned definition that you offered in the current
34
litigation? A: For me, it doesn’t differ.”); see also id. at 78:14-79:2 (responding specifically to
questions about the Vice President’s duties on the National Security Council, “They are part of
his executive duties”); 78:1-13 (explaining that any documentary material created in connection
with the Vice President’s duties with regard to the Smithsonian Institution would be considered
vice presidential records). As Ms. O’Donnell explained, however, whether a specific function is
considered “executive” or “legislative” is immaterial in implementing the PRA: “all documents,
all documents in the Vice President’s office, created or received by the Vice President’s staff are
being kept under the Presidential Records Act.” Id. at 140:8-12; 74:8-13 (explaining that one
does not need to determine whether a particular activity constitutes vice presidential support of
presidential functions); 70:13-71:3 (explaining that recordkeeping guidance under the PRA does
not use “specially assigned” language). And documentary materials meeting the definition of
vice presidential record relating to both those executive and legislative functions are being
treated as vice presidential records under the PRA.14
The plaintiffs bear the burden of showing a “substantial probability” that they have been
injured. Sierra Club v. Environ. Protection Ag., 292 F. 3d 895, 899 (D.C. Cir. 2002). Plaintiffs
have not come close to showing a “substantial probability” of the existence of injury through
their speculative and baseless declarations, Declaration of Stanley I. Kutler ¶ 7 (“I believe the
14
At the deposition of Ms. O’Donnell, plaintiffs’ counsel focused in large part on the specific
implementation of the guidance that the Office of the Vice President provides to staff regarding the
Presidential Records Act, and whether Ms. O’Donnell personally knew whether specific documents were
being preserved under the PRA. Ex. 2, O’Donnell Dep. Tr. at 126:10-157:20. However, even claims
appropriately brought under the FRA do not permit such record-by-record judicial review. Armstrong I,
924 F.2d at 293-94 (“[E]ven if a court may review the adequacy of an agency’s guidelines [under the
FRA], agency personnel will implement the guidelines on a daily basis. Thus agency personnel, not the
court, will actually decide whether specific documents . . . constitute “records” under the guidelines.
[M]ost importantly, the only issue the court would be asked to consider, i.e., the adequacy of appellants’
recordkeeping guidelines and directives, is clearly appropriate for judicial review.”). Regardless, as
established above, the PRA proscribes any inquiry into the Vice President’s recordkeeping guidelines or
practices for claims grounded in the PRA.
35
vice president may well plan to abscond with his records when he leaves office.”); Declaration of
Anna Kasten Nelson ¶ 5 (“[T]here is legitimate fear that he will defy the PRA and either destroy
his records or secrete them[.]”), which is the only “evidence” plaintiffs have submitted in this
case. And although “the party invoking federal jurisdiction bears the burden of establishing its
existence,” Steel Co., 523 U.S. at 104, defendants have borne the burden of conclusively
establishing that plaintiffs lack injury. Indeed, in light of this conclusive record, nothing
plaintiffs show can rebut even this court’s presumption that jurisdiction is lacking as they cannot
show “the contrary . . . affirmatively from the record.” Daimler Chrysler, 547 U.S. at 342 n.3.
C. Plaintiffs’ Injuries are not Fairly Traceable to Any Alleged Actions by NARA, the
Archivist or “EOP” or Redressable By Seeking Relief Against Them
The absence of traceability from the alleged injury to relief sought from NARA, the
Archivist or EOP, is clear. Even assuming that plaintiffs asserted cognizable injuries, and even
assuming OVP was failing to comply with its obligations under the PRA (which it is not),
plaintiffs could not obtain relief from NARA, the Archivist, or EOP. Rather, the “links in the
chain of causation between the [alleged] conduct and the asserted injur[ies] are far too weak for
the chain as a whole to sustain the appellants’ standing.” Allen v. Wright, 468 U.S. 737, 759
(1984). “Where “the necessary elements of causation . . . hinge on the independent choices of
the regulated [or managed] third party,” e.g., the Vice President, “it becomes the burden of the
plaintiff to adduce facts showing that those choices have been or will be made in such manner as
to produce causation and permit redressability of injury.” Nat’l Wrestling Coaches Ass’n v.
Dep’t of Educ., 366 F.3d 930, 938 (D.C. Cir. 2004) (quoting Lujan, 504 U.S. at 562) (internal
quotation marks omitted). Plaintiffs fall far short of their burden.
It is indisputable that by statute and this Circuit’s instructions, the Vice President has the
authority to implement the terms of the PRA and alone maintains “control over [vice]
36
presidential records during the [Vice] President’s term in office,” and that the Archivist lacks the
authority to promulgate guidelines and regulations to assist the agencies in the development of
records management systems, or to veto any disposal decisions of the Vice President. Armstrong
I, 924 F.32d at 290. Thus any perceived injury, even if it existed, is not traceable to any alleged
actions of NARA, the Archivist or “EOP.” See also Ex. 3, Smith Rough Dep. Tr. at 29:9-14
(NARA does not provide written guidance on definition of vice presidential record); id. at
185:15-186:20 (testifying that NARA relies on the definition of vice presidential records in the
PRA); Decl of Nancy Kegan Smith, Director of the Presidential Materials Staff in the Office of
the Presidential Libraries ¶ 4; Ex. 1, O’Donnell Decl. ¶ 7 (OVP does not rely on Executive Order
13233 of November 1, 2001 or any guidelines issued by defendants to exclude any vice
presidential records of the vice presidency of Richard B. Cheney from the requirements of
section 2207 of title 44).
Nor can plaintiffs show redressability against these defendants – “a ‘substantial
likelihood’ that the requested relief will remedy the alleged injury in fact.” Vermont Agency of
Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (internal citation
omitted). For the same reasons set forth above, there is not a substantial likelihood, indeed no
likelihood, that their requested relief will remedy their alleged injuries. See Free Enterprise
Fund, 2007 WL 891675 at *5.
D. Plaintiffs Lack Prudential Standing to Pursue their APA Claims
Finally, prudential standing “denies a right of review if the plaintiff’s interests are so
marginally related to or inconsistent with the purposes implicit in the statute that it cannot
reasonably be assumed that Congress intended to permit the suit.” Clarke v. Sec. Indus. Ass’n,
479 U.S. 388, 399 (1987). These prudential concerns require that a “plaintiff’s grievance must
37
arguably fall within the zone of interests protected or regulated by the statutory provision . . .
invoked in the suit.” Bennett v. Spear, 520 U.S. 154, 162 (1997). Even if plaintiffs’ suit did not
fatally suffer from the deficiencies outlined above, plaintiffs cannot show that their claims are
among those that are envisioned by the PRA. “Here, it cannot reasonably be inferred that
Congress intended to permit this suit under [the PRA], because [plaintiffs] have no basis upon
which to rest a private right of action under [the PRA].” Am. Fed. of Gov’t Employees, 321
F.3d at 143. Thus, for the same reasons that an implied right of action cannot be inferred from
the language, structure or history of the Act, plaintiffs lack prudential standing to pursue claims
under the statute or the APA.15 Id. at 144 (rejecting APA claim for same reason that plaintiffs
lacked prudential standing to pursue a claim under the statute); see also Fed. for Am.
Immigration Reform, Inc. v. Reno, 93 F.3d 897, 902-03 (D.C. Cir. 1996). Accordingly,
plaintiffs’ APA claims must be dismissed under Rule 12(b)(6) as well.
IV. Summary Judgment Should Be Granted On Behalf of the Defendants On Any Claims
That Survive the Motion to Dismiss
To the extent any claims survive the threshold motion to dismiss defenses, summary
judgment on those claims should be granted in favor of all the defendants. Plaintiffs seek a
declaration that “the guidelines of all defendants that exclude from the scope of the PRA records
of the vice president and his office created and received in the course of conducting activities
relating to or having an effect on the carrying out of his constitutional, statutory or other official
or ceremonial duties violate federal law.” Am. Compl. at 23 (prayer for relief); id. ¶¶ 52 (Claim
One), 64-65 (Claim Three). Yet, as established by the declarations and deposition testimony in
this case, as described in detail supra at Part III. B, no such guidelines exclude this Vice
15
Nor does Armstrong I dictate that plaintiffs have prudential standing for the types of claims that
plaintiffs allege here—as opposed to FRA claims seeking review of presidential guidelines that are
alleged to sweep in federal records improperly. Armstrong I, 924 F.2d at 287-88.
38
President’s vice presidential records from the scope of the PRA. See 2d Supp. Decl. ¶¶ 4-5; see
also Supp. Decl. ¶ 5; Ex. 2, Dep. Tr. of Claire M. O’Donnell, 37:15-38:1 (“Q: And what is your
understanding of the documents that the Vice President is required to transfer to NARA at the
end of his administration? A: All of his executive and legislative files. Q: Okay. Do you have
any more specific understanding than that? A: Any documents that he has either created or
received in his official functions.”); Statement of Material Facts ¶¶ 2-5. In short, the record
establishes that the OVP has applied the PRA to all “documentary materials, or any reasonably
segregable portion thereof, created or received by the [Vice] President, his immediate staff, or a
unit or individual of the [Office of the Vice President] whose function is to advise and assist 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); see discussion supra at part III.B. Thus there is “no genuine
issue as to any material fact” that defendants’ guidelines comply with federal law and do not
exclude from the scope of the PRA records of the vice president and his office created and
received in the course of conducting activities relating to or having an effect on the carrying out
of his constitutional, statutory or other official or ceremonial duties.
For the same reasons, plaintiffs are not entitled to any injunctive or mandamus relief that
defendants should “refrain from implementing guidelines that exclude from the scope of the
PRA records of the vice president and his office created and received in the course of conducting
activities relating to or having an effect on the carrying out of his constitutional, statutory or
other official or ceremonial duties.” Am. Compl. at 23-24 (prayer for relief); id. ¶¶ 58 (Claim
Two), 63-64 (Claim Three), 71-72 (Claim Four). Accordingly, summary judgment should be
39
granted on behalf of defendants to the extent that the Court finds that any claims survive
defendants’ motion to dismiss. See Statement of Material Facts ¶¶ 2-5.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss, or, in the alternative, for
summary judgment, should be granted.
Respectfully submitted this 8th day of December, 2008.
GREGORY G. KATSAS
Assistant Attorney General
JOHN R. TYLER
Assistant Branch Director
/s/ Helen H. Hong

HELEN H. HONG (CA SBN 235635)
Trial Attorney
U.S. Department of Justice, Civil Division
P.O. Box 883, 20 Massachusetts Ave., NW
Washington, D.C. 20044
Telephone: (202) 514-5838
Fax: (202) 616-8460
[email protected]
Counsel for Defendants
40
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__________________________________________
)
ETHICS IN WASHINGTON, et al. )
)
Plaintiffs, )
)
)
)
Defendants )
__________________________________________)
DECLARATION OF NANCY KEGAN SMITH
I, Nancy Kegan Smith, hereby declare:
1. I am the Director of the Presidential Materials Staff in the Office of Presidential
Libraries at the National Archives and Records Administration (NARA). My duties as Director
of the Presidential Materials Staff include directing the staff that provides courtesy storage for
the records and gifts of the incumbent President and Vice President; training new archival staff
of the Presidential Record Act libraries; providing oversight and guidance on Presidential access
issues; directing the declassification program for Presidential Library holdings; handling special
access requests for Presidential and Vice Presidential records; and coordinating the White House
part of Presidential moves.
2. I have been with NARA since August of 1973. Previously, I served as an
archivist at the Johnson Library, 1973-1989; Special Assistant to the head of Presidential
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Libraries, 1989-1997; Access Officer for Presidential Holdings in NARA’s Office of General
Counsel, 1997-1998; and Director of the Presidential Materials Staff from September of 1998
until the present. I have over 30 years of experience in handling Presidential access issues and
FOIA requests, appeals and litigation on behalf of NARA. I am familiar with the allegations in
the present lawsuit, and make this declaration on the basis of my personal knowledge and of
information I have received in the performance of my official duties. If called upon to do so I
could testify competently as to the contents of this declaration.
3. Since 1981, NARA has offered and been providing “courtesy storage” for the Vice
Presidential records that the incumbent Vice President and his staff create or receive under the
Presidential Records Act (PRA), 44 U.S.C. § 2207, until the records transfer at the end of the
administration into the legal custody and control of the Archivist. Records on courtesy storage
with NARA are in the physical possession of NARA until legal custody transfers to the
Archivist, while the Vice President maintains legal custody over the records during his term(s).
While the records are on courtesy storage, the Presidential Materials Staff provides reference
service to the incumbent and returns the records back to the Vice President, if requested, on a
one hour turn-around time, 24 hours a day basis. The records, gifts, and historical materials on
courtesy storage are made available only to the incumbent Administration as requested for
reference. Boxes of textual records in courtesy storage remain sealed while in NARA’s physical
possession. No archival processing takes place and only those designated by the Office of the
Vice President are permitted to see the material. At the end of the Administration, all Vice
Presidential records are transferred into NARA’s legal custody under the PRA. NARA provides
courtesy storage throughout the course of the Administration, which assists with the presidential
2
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transition process, as it reduces the volume of records that need to be transferred from the Office
of the Vice President during the final months of an administration.
4. NARA currently has legal custody over the Vice Presidential records from the vice
presidencies of Vice President George H. W. Bush, Vice President Dan Quayle, and Vice
President Albert Gore. At least two of these collections (those relating to the George H.W. Bush
and Albert Gore Vice Presidencies), also include records that were created or received by those
former Vice Presidents at their Vice Presidential Senate Offices. NARA’s position is to treat
these legislative records as Vice Presidential to be covered under the PRA, absent an express
indication from the former Vice President or his representative that such records are considered
to be “personal” in nature. We have not received any indication from those former Vice
Presidents that their legislative records should be considered by NARA to be “personal” in
nature and NARA accordingly treats them as PRA records.
5. Since 2001, NARA has routinely received records for courtesy storage from the
Office of Vice President for Vice President Richard B. Cheney. These records have consisted of
both textual Vice Presidential records from the incumbent Vice President, along with records in
other non-textual media. NARA intends to work closely with the Office of Vice President to
ensure that the remainder of the incumbent’s Vice Presidential records are moved into NARA’s
physical custody by January 20, 2009, on which date NARA will also assume legal custody of
these records as governed by the PRA.
6. NARA has been retaining, and will continue to retain and not dispose of, all Vice
Presidential records -- whether “executive” or “legislative” as plaintiffs describe in their
Amended Complaint -- that the Vice President or the Office of Vice President has physically
transferred or will transfer to NARA. Accordingly, except for any recall request, as described in
3
08118/2008 16’02 FAX , m ~005t005
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paragraph 3 of this declaration, Rom the Vice President for access to his records before
January 20, 2009 (because he alone maintains legal custody and control over his records until
3"anuary 20, 2009), all records at i~sue in the Amended Complaint in NARA’s physical
possession will be retained and not disposed,
7, At the beginning of the Bush-Cheney Administration, NARA recornm~ded, as
we have since 198 l wirh each prior Administration governed by the PRA, that the President and
Vice P~esident seek disposal authority under section 22o3(c) of the Presidential Records Act for
the vast amount of public mail (including mail received by fax and email), wlfich we call "bulk
mail," that they and their spouses receive on a daily basis. These records are described as:
"Certain categories of public mail to the Vice President, the spouse of the Vice President, and
their staffs including anonymous correspondence, correspondence with an incomplete address,
mail from prolific writers, and public opinion mail," and "Publications, brochures, clippings and
other types of en¢loswes in public mail, when there is no immediate or historical importance to
the mateflais." NAP.& has determined that these records in their ~tirety do not have sufficient
"administrative, his!orical, informational, or evidentiary value" (44 U.S.C. § 2203(¢)) to warrant
pma,nanem preservation under the PRA, Before the bul~ mail records are disposed of, NARA
reviews them to select and retain a smal! ’sample Of le~ers for use in the Presidential Library. A
copy of the September 21, 2001, Archivist of the United States’ ~tten view~ on this disposal
request from the Office of the Vice President under the PRA is attached at Tab A.
I declare under penalty of perjury that the foregoing is mac and correct,
NANCY I~GAN ~MITH
Date: September 16, 2008

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SEP 2 0 200t
Mr, David S. ~d ,d~nEton
Counsel to the Vice President
The White Houae
Washin~on, DC 20500
Dear Mr, Addington:
In accordance with the authority ~r~nted to me by ~e Presidential Records Act, S~on 2203(c) (2),
I approve of dispos~ of th~ ~o categories oftex~al Vice Pr~sidenti~ bulk mail d~c~b~ ~ your
letter of August 16, 2001, Those catego~s ~e:
(1) Certmin categories of public mail to the Vice President, the spouse of the Vice Presidem, and
their sta~s including anonymous correspondence, correspondence with an incomplete address, m~l
from prolific writers, and public opinion mail, Samples, when appropriate, will be retained,
(2) Publications, brochures, ¢lippin6s and other types of enclosures in public mail, when there is no
immediate or historical importance to the matm’ials,
As with the di~osal of lh’esidential bulk mail, I r~ommend that representatives of the National
Archives and Records Administration (NARA), in coordination wi~ the White House Offioe of
Records Management0 review thes~ matc’rials before disposal and rake samples when appropriate.
Thes~ samples willbe refaced perm~ently. NARA will inform you ifwo id~mtify groups of
materials that ~hould not be destroyed during sampling,
I do not’intend to take any ~ongressional action with regm’d to this request as provided for by Section
2203(e) of the Presidential Records Act,
I support your effort to continue the disposal of bulk marl, This practice has been very successful
since it began in 1982.
" .~.J, OHN W.,CARLIN
JOHN W, CA.P.LIN
Archivist of the United States
Official: N
Reading: N, INL, NLMS, NOC, NWIVI, NCON
N:BFidler:jw 09/20101
Doc nam~rCheneyBu.do~ file ~od¢:
EXHIBIT 2
Capital Reporting Company
Page 1
UNITED STATES DISTRICT COURT
--------------------------------:
CITIZENS FOR RESPONSIBILITY AND :
ETHICS IN WASHINGTON, et al., :
Plaintiffs, :
vs. : Civil Action
RICHARD B. CHENEY, et al., : No. 08-1548 (CCK)
Defendants. :
--------------------------------:
Washington, D.C.
Thursday, November 13, 2008
Deposition of:
CLAIRE M. O'DONNELL,
called for oral examination by counsel for
Plaintiffs, pursuant to notice, at the Federal Court
House, 333 Constitution Avenue, N.W., Washington,
D.C., 20001, before Robert Michael Jakupciak, RPR,
of Capital Reporting Company, a Notary Public in and
for the District of Columbia, beginning at 10:00
a.m., when were present on behalf of the respective
parties:
(866) 448-DEPO
www.CapitalReportingCompany.com ©2008
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1 APPEARANCES 1 C O N T E N T S
2 On behalf of the Plaintiffs: 2 THE WITNESS: CLAIRE M. O'DONNELL
3 ANNE L. WEISMANN, ESQUIRE 3 EXAMINATION PAGE
4 Citizens for Responsibility 4 By Ms. Weismann 5
5 and Ethics in Washington 5 EXHIBITS
6 1400 Eye Street, N.W., Suite 450 6 O'DONNELL EXHIBIT NUMBER PAGE
7 Washington, D.C. 20005 7 1 Fax cover page and letter dated 50
8 (202) 408-5565 8 8-20-07
9 9 2 O'Donnell Declaration dated 71
10 DAVID L. SOBEL, ESQUIRE 10 10-13-06
11 Electronic Privacy Information Center 11 3 Appendix No. 5, Office of the Vice 89
12 1718 Connecticut Avenue, N.W., Suite 200 12 President
13 Washington, D.C. 20009 13 4 Supplemental Declaration of Claire 161
14 (202) 483-1140 14 M. O'Donnell
15 15 5 Declaration of Claire M. O'Donnell 168
16 On behalf of National Archives & Records Admin.: 16 and Letter dated 9-13-06
17 GARY M. STERN, ESQUIRE 17 6 Letter dated 6-26-07 175
18 National Archives General Counsel 18
19 8601 Adelphi Road 19
20 College Park, Maryland 20740 20
21 (301) 837-0482 21
22 22 (*Exhibits attached to transcript.)
Page 3 Page 5
1 On behalf of the Defendants: 1 PROCEEDINGS
2 HELEN H. HONG, ESQUIRE 2 WHEREUPON,
3 JOHN R. TYLER, ESQUIRE 3 CLAIRE M. O'DONNELL,
4 U.S. Department of Justice 4 called as a witness, and having been first duly
5 20 Massachusetts Avenue, N.W. 5 sworn, was examined and testified as follows:
6 Washington, D.C. 20530 6 EXAMINATION BY COUNSEL FOR PLAINTIFFS
7 (202) 514-5838 7 BY MS. WEISMANN:
8 8 Q Would you please state your name for the
9 KATHRYN WHEELBARGER, ESQUIRE 9 record?
10 Counsel to the Vice President 10 A Claire O'Donnell.
11 Office of the Vice President 11 Q Ms. O'Donnell, I'm Anne Weismann, I'm
12 Washington, D.C. 20501 12 counsel for the plaintiffs in this case. Have you
13 (202) 456-9089 13 ever had your deposition taken before?
14 14 A I have.
15 Also Present 15 Q How many times?
16 Martin Sherwin 16 A Once.
17 17 Q And what was the context?
18 18 A It was a case a long time ago at the
19 19 Department of Energy.
20 20 Q Well, just a few reminders. The court
21 21 reporter can only record audible responses, not nods
22 22 of the head. So please try to make sure that you
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1 give an oral or audible response. 1 with different offices; the Legislative Affairs
2 Second, if you don't understand a question 2 Office, and the Counsel's Office at the White House.
3 or haven't heard a question, you can please tell me 3 Q When you say coordinate, what did that
4 and I'll try to rephrase the question or repeat the 4 involve?
5 question for you. 5 A When a candidate came in for an
6 If you don't tell me that you either 6 appointment, we had to take the papers and make
7 haven't understood or haven't heard the question, 7 sure -- you know, we didn't have computers in those
8 I'm going to assume that you have both understood 8 days. Make sure that the Legislative Affairs Office
9 and heard the question. 9 had signed off and that the Counsel's Office had
10 What is your educational background? 10 signed off. So it was really just a record-keeping
11 A I have a college degree. 11 file position.
12 Q And is that a BA or -- 12 Q For what period of time were you in this
13 A It is a BA. 13 position, if you remember the years?
14 Q And where did you get it? 14 A From -- for four years. For the first
15 A Trinity College. 15 four years of the Administration.
16 Q Did you have a specific major or focus? 16 Q What did you do after that?
17 A History. 17 A Then I went to the Administrative Office
18 Q Okay. And when did you graduate from 18 in the White House.
19 college? 19 Q The Office of Administration?
20 A 1980. 20 A Right.
21 Q And what did you do after you graduated 21 Q And what was your responsibility there?
22 from college? 22 A Again I was an assistant to the, assistant
Page 7 Page 9
1 A I worked in the private sector. 1 to the President for Administration.
2 Q In what capacity? 2 Q And what were your duties and
3 A For a while I taught tennis and then I 3 responsibilities in that capacity?
4 volunteered and got into politics. 4 A To kind of run the operations of the White
5 Q Okay. And when did you first get into 5 House, you know, who has a White House pass, the
6 politics? 6 comings and goings around the White House, mess
7 A In early 1980. 7 privileges.
8 Q Okay. And were you working on -- 8 Q Did you have any record-keeping
9 A You know what? I'm sorry. I'm sorry. I 9 responsibilities in that position?
10 graduated in -- yeah, 1980. Sorry. 10 A I had my own records and the office
11 Q Okay. And in what capacity did you first 11 records but not, nothing outside of just our own
12 get involved in politics? 12 office.
13 A In -- as a volunteer on the Reagan 13 Q And were you responsible for managing the
14 campaign. 14 records of the Office of Administration?
15 Q What did you do after that? 15 A Yes.
16 A I went to the Reagan White House. 16 Q And how long were you in that position?
17 Q In what capacity? 17 A For four years.
18 A Worked as an assistant in the Presidential 18 Q And what did you do after that?
19 Personnel Office. 19 A Then I went to the Department of Energy.
20 Q What were your responsibilities as an 20 Q And what year was that?
21 assistant in the Presidential Personnel Office? 21 A 1988.
22 A To keep personnel files and coordinate 22 Q Okay. And what was your position at the
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1 Department of Energy? 1 A Fred Melek was Head of the Summit.
2 A I was Deputy Assistant Secretary for 2 Q How long were you in that position?
3 Administration. 3 A Nine months.
4 Q Was this a political appointment, a 4 Q What happens after that? What did you do
5 Schedule C? 5 after that?
6 A It was both, Schedule C and political. 6 A Then I went back to Energy for a short
7 Q And your title again was Deputy Assistant 7 period of time.
8 to? 8 Q In your same position?
9 A Deputy Assistant Secretary for 9 A Right. So I was kind of on loan from the
10 Administration. 10 Department of Energy.
11 Q Who did you report to in that position? 11 Q During the time that you worked for the
12 A The Assistant Secretary. 12 Economic Summit were you technically still an
13 Q Who was that? 13 employee of the Department of Energy?
14 A Donna Fitzpatrick. 14 A I was.
15 Q What were your responsibilities in that 15 Q It was like a detail?
16 position? 16 A Right. An assignment. Right.
17 A Again just to kind of run the office, 17 MS. HONG: I'm just going to ask you to
18 oversee the budget and just an administrative 18 let Ms. Weismann finish asking her question before
19 position. 19 you answer so you are not talking over each other.
20 Q So when you say run the office, did you 20 Q And what did you do next?
21 have any substantive policy-making responsibilities? 21 A Then I went on the President Bush Reelect
22 A No. 22 Campaign.
Page 11 Page 13
1 Q And how long were you in that position? 1 Q Was that a paid position?
2 A Probably just under two years. 2 A It was.
3 Q And what did you do then? 3 Q What were your duties and responsibilities
4 A Then I went to the Economic Summit, the 4 in that position?
5 1990 Economic Summit, which was in Houston, and I 5 A Staff secretary.
6 was the staff secretary there. 6 Q And what does a staff secretary have
7 Q What were your duties and responsibilities 7 responsibility for?
8 as staff secretary? 8 A For paper flow to and from the White House
9 A To manage the paper flow and kind of the 9 to the campaign and back to the White House, and
10 time line of projects. It's a short-term project. 10 within the office of the campaign.
11 And you have a lot of different projects going on 11 Q And where was your office located?
12 within that project to host different Heads of 12 A 17th and Connecticut.
13 countries. 13 Q So you were not within the White House
14 Q And I'm not familiar with the Economic 14 complex?
15 Summit. Is that under the, directly under the 15 A No.
16 auspices of the President? 16 Q How long did you do that job for?
17 A It is. 17 A A year.
18 Q Is it a component then of -- how would you 18 Q What did you do next?
19 describe it as an entity, as an organization? Where 19 A When we lost, I took some time off and
20 does it fit in organizationally? 20 then went to work for the National Association of
21 A In the Department of State. 21 Chain Drugstores.
22 Q Okay. Who did you report to in that? 22 Q And where is the -- where were you located
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1 in that? 1 A No. This was as he was coming on
2 A In Oldtown, Virginia. 2 January 20th.
3 Q What was your title in that position? 3 Q So I misunderstood. I thought you had
4 A Probably in charge of administration. 4 first taken a position with the transition team.
5 Q Briefly describe what your duties and 5 Was that not correct?
6 responsibilities were. 6 A Just as a volunteer. I was not a paid
7 A Again just managing the office personnel. 7 employee.
8 We had a small budget and we were relocating, so I 8 Q So you were a volunteer with the
9 managed the relocation of the office or expanding 9 transition team and what was the nature of your
10 the office, not relocating. 10 duties again as a volunteer?
11 Q What did -- for how long were you in that 11 A To manage GSA and office space, just kind
12 position? 12 of people, just as a volunteer. I didn't really
13 A Two years. 13 have specific --
14 Q What did you do next? 14 Q When you say managed GSA, was this all in
15 A I went to the American Forest and Paper 15 terms of implementing and preparing for the
16 Association. 16 transition?
17 Q What was your position with that 17 A Yes. Office space and things like that.
18 organization? 18 Q Okay. And then you were offered a
19 A I was in charge of membership and 19 position and what was the specific position you were
20 assistant to the CEO. 20 offered?
21 Q And in your position -- in -- with your 21 A In charge of administration for the Vice
22 responsibilities as assistant to the CEO, what did 22 President.
Page 15 Page 17
1 that entail? 1 Q And functionally where is that position
2 A Again helping manage the office personnel, 2 within the EOP structure?
3 recruitment of members. 3 MS. HONG: Objection; vague.
4 Q How long were you in that position? 4 Q Do you understand the question? Okay.
5 A Four years I would think. 5 Within the EOP where is that office located?
6 Q What did you do next? 6 A It's in the direct Office of the Vice
7 A Then I joined the Bush/Cheney Campaign, 7 President.
8 Transition Office. 8 Q Now, you said it's in the direct Office of
9 Q You joined the Transition Office? 9 the Vice President. Is that what is commonly
10 A Right. 10 referred to as the OVP?
11 Q And how were you able to -- how did you 11 A Yes.
12 secure that job? 12 Q I just want to make sure we are on the
13 A I was -- I went to volunteer from -- I 13 same page with terms. So you then -- now you have a
14 took a leave from the American Forest and Paper 14 position and I apologize. What again was your
15 Association and volunteered, and then after 15 title?
16 volunteering for a while I was offered a job. 16 A It was Deputy Assistant to the Vice
17 Q What was the specific position that you 17 President for Administration.
18 were offered? 18 Q Okay. And is that the position that you
19 A In charge of administration for the Vice 19 currently hold?
20 President. 20 A Yes. I have a bigger -- I have been
21 Q Okay. And this was as part of a 21 promoted, but it's the same position.
22 transition team now? 22 Q But the title remains the same? Okay.
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1 And starting from when you first came to the OVP, 1 A Keeping all your documents and keeping
2 what were your initial duties and responsibilities? 2 them in files so that we can box them up and send
3 A To hire staff, get them on board, get them 3 them forward.
4 office space, get them their passes, parking; just 4 Q Does records management as you think of
5 help with the personnel and the management of the 5 the term include the responsibility for managing the
6 office. 6 records as they are currently in use?
7 Q Okay. And how have those duties and 7 MS. HONG: Objection; vague.
8 responsibilities changed over time? 8 BY MS. WEISMANN:
9 A They have just been refined. You know, 9 Q You can answer the question.
10 there was a process where when people were 10 A Well, you always have to manage your
11 interviewed, they would talk to a few other people 11 records. So whether they are in use or in your
12 in the office and now they just talk to me or me and 12 files, you are responsible to manage them.
13 the Chief of Staff. 13 Q And does it include preparing those
14 Q Who is the Chief of Staff? 14 records for an eventual transition to the Archives?
15 A David Addington. 15 A Yes.
16 Q And have you gotten additional 16 Q The National Association of Records --
17 responsibilities that you did not initially have? 17 National Administration of -- well, we are going to
18 A No. 18 call it the Archives, but you know what I mean. It
19 Q So your responsibilities have stayed the 19 goes by the acronym NARA.
20 same? 20 And what is the size of the staff that you
21 A Pretty much. 21 have?
22 Q But in your words it's just been refined? 22 A Right now it's 84.
Page 19 Page 21
1 Would that be accurate? 1 Q How many of those people report to you?
2 A That's correct. 2 MS. HONG: Objection; vague.
3 MS. HONG: Anne, can we go off the record 3 BY MS. WEISMANN:
4 for just a moment. We have someone knew who just 4 Q You can answer the question.
5 walked in. I want to explain to the deponent who 5 A Two directly report to me.
6 the individual is. Off the record. 6 Q Who do you report to?
7 - - - 7 A I report to the Chief of Staff.
8 (Discussion off the Record.) 8 Q David Addington?
9 - - - 9 A Yes.
10 BY MS. WEISMANN: 10 Q Has that been your immediate reporting
11 Q Back on the record. In your capacity as 11 supervisor since you started within the OVP?
12 Deputy Assistant; is that right? 12 A That's correct.
13 A I have been promoted to an assistant now. 13 Q Have you received any training
14 Q So you have received, there has been a 14 specifically on records management since coming to
15 change in your title? You are now Assistant to the 15 the OVP?
16 Vice President? 16 A Yes.
17 A Right. 17 Q And describe for me what that training has
18 Q Do you have responsibility for records 18 been.
19 management within the Office of the Vice President? 19 A It was a memo that we received when we
20 A Yes. 20 came on board and we have been reminded on a regular
21 Q And when I use the word -- what do you 21 basis verbally and in ethics briefings.
22 understand records management to encompass? 22 Q Okay. Let's start with the memo that you
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1 identified as having received. Who was the memo 1 QUESTION: And did the memo tie that
2 from? 2 responsibility to any, to the specific functions
3 A I believe at the time it was Judge 3 that your Office of the Vice President was
4 Gonzales. 4 performing when the papers in question were
5 Q Who was the memo addressed to? 5 generated?)
6 A All staff. 6 - - -
7 Q And do you recall the date of the memo? 7 A It didn't apply just to the Vice
8 A Well, it would have been when I came on. 8 President. It applied to everybody.
9 I know that we went through an orientation, so it 9 Q Right. But, okay. Specific as to the
10 would have been in January '01. 10 Vice President, did the memo offer -- let me ask
11 Q What was the general subject matter of the 11 that question differently. Did the memo offer any
12 memo? 12 specific guidance as to the Vice President or Vice
13 A Our responsibilities with files and paper. 13 Presidential records?
14 Q And did it include as well the 14 A I don't recall.
15 responsibilities of the OVP? 15 Q Do you recall receiving any other written
16 A Yes, it did. 16 memoranda or guidance with respect to the management
17 Q And do you recall, what did the memo say 17 of or including the management of Vice Presidential
18 about those -- what those responsibilities were? 18 records?
19 A It went into detail on all paper created 19 A I believe there was a reminder put out or
20 and received. 20 another memo when the Counsel to the President
21 Q More specifically, what did it advise you 21 changed.
22 needed to be done with paper received or created? 22 Q And do you recall what that memo said?
Page 23 Page 25
1 A Everything had to be kept and filed to be 1 A It was basically the same thing; that all
2 sent to the Archives. 2 documents need to be kept, everything created and
3 Q And did it explain the reason why 3 received is considered a Presidential record.
4 everything had to be kept? 4 Q Do you recall if either of these memos
5 A Just that it was a Presidential record. I 5 went into any more detail in explaining which
6 don't remember all the details of it. 6 specific records needed to be kept?
7 Q And did the memo tie that responsibility 7 A I don't remember the details of it.
8 to any, to the specific functions that your Office 8 Q Okay. Do you recall if the memo addressed
9 of the Vice President was performing when the papers 9 the requirements or obligations with respect to
10 in question were generated? 10 personal papers?
11 MS. HONG: Objection; vague. 11 A It didn't.
12 BY MS. WEISMANN: 12 Q Okay. Other than the two written
13 Q You can answer. 13 memoranda that you have now described, are there
14 MS. HONG: If you understand, you can 14 any -- is there any other written guidance, whether
15 answer. 15 it was a formal memo or written in some other way,
16 A Could you just repeat the question? I'm 16 that you received since coming to the OVP regarding
17 sorry. 17 the management of Vice Presidential records?
18 MS. WEISMANN: Can you read back the 18 A Not that I can recall.
19 question? 19 Q You also mentioned earlier that you had
20 - - - 20 received some verbal guidance. Can you explain to
21 (Whereupon the following portion of the 21 me what the nature of that guidance has been?
22 testimony was repeated by the Court Reporter: 22 A It's pretty frequently spoken about either
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1 in staff meetings or in smaller meetings just as a 1 any questions that you can recall on, about the
2 reminder. 2 management of the Vice President's records, the
3 Q And who typically is giving the reminder? 3 records of the OVP?
4 A Whoever is conducting the meeting. Either 4 A They have asked for, you know, to be
5 lawyers or -- for me, our Chief of Staff in our 5 reminded of the process. You know, my files are
6 staff meetings. 6 full, I know we have to archive them, what do I do
7 Q When you talk about staff meetings, are 7 now. And I'll go through the process. But if they
8 you referring to meetings solely of OVP staff? 8 have more specific questions than that, I refer them
9 A Yes. 9 to counsel.
10 Q You also mentioned I believe that you had 10 Q And by counsel do you mean counsel to the
11 received some guidance through ethics briefings; is 11 Vice President or White House counsel?
12 that correct? 12 A Counsel to the Vice President.
13 A That's correct. 13 Q Okay. And who is the current counsel to
14 Q Can you explain to me what the nature of 14 the Vice President?
15 that guidance was? 15 A Katie Wheelbarger.
16 A We are required to attend an ethics 16 Q And before Katie?
17 briefly annually, and they raise it in those also as 17 A Shannen Coffin.
18 a reminder, and they kind of go through that all 18 Q And before Shannen?
19 papers need to be kept and are considered 19 A Courtney Elwood.
20 Presidential records. 20 Q And before Courtney?
21 Q Who conducts those ethics briefings? 21 A David Addington. But David and Courtney
22 A The White House Counsel's Office. 22 were together.
Page 27 Page 29
1 Q Has the nature of the instructions you 1 Q Is it correct then that David Addington is
2 have been given on managing the records of the Vice 2 no longer Counsel to the Vice President?
3 President changed at all over the years since you 3 A That's correct.
4 have been there in those ethics briefings? 4 Q Okay. So his current title is Chief of
5 A No. 5 Staff?
6 Q And has it been more specific than simply 6 A I believe he kept and Counsel to the Vice
7 reminding staff that they need to keep papers? 7 President. I'm not sure of that actually.
8 A No. It's been very firm in that all 8 Q Okay. Does the White House Office of
9 papers are considered Presidential documents. 9 Records Management have any responsibility with
10 Q But it hasn't offered any more specific 10 respect to the management of the Vice President's
11 definitions, guidance, explanations beyond that that 11 records?
12 you can recall? 12 A Just repeat that. I'm sorry.
13 A If people had questions, they could get 13 Q Does the White House Office of Records
14 further guidance. 14 Management have any responsibility for managing the
15 Q Have you in the course of your working at 15 records of the Vice President and the OVP?
16 the White House -- and I'm using White House; I 16 A Yes.
17 should be more precise and say OVP. Have you during 17 Q And what is the nature of that
18 the course of working at the OVP had any -- raised 18 responsibility?
19 any specific questions with respect to the 19 A We send our files, the Vice President's
20 management of the Vice President's records? 20 Office sends our files down to Records Management,
21 A No. 21 which is one office for everybody, the White House
22 Q Okay. And has anyone on your staff raised 22 and the Vice President's office.
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1 Q Now are these files that you are still 1 and policies on how it manages the records it
2 using? Is it a storage? Or are they sent once they 2 receives?)
3 are no longer in use? 3 - - -
4 A I send them once they are no longer in 4 MS. HONG: Same objection.
5 use. 5 A Not that I'm familiar with.
6 Q Okay. 6 Q Okay. All right. I'm going to show
7 A Different people have different practices. 7 you -- I'm going to show you a declaration that you
8 Q All right. So would it be fair to 8 submitted in a case called the Washington Post v.
9 characterize the files that you send as retired 9 U.S. Department of Homeland Security, and you are
10 files? 10 welcome to read the whole document, but I would like
11 A That's correct. 11 you to specifically focus on paragraph 12.
12 Q All right. And you said different people. 12 Okay?
13 I assume you were talking about different people 13 A Uh-huh.
14 within the OVP? 14 Q Do you see the reference in the paragraph
15 A That's correct. 15 to an understanding with, between the OVP and the
16 Q What are the different practices that they 16 White House Office of Records Management?
17 have? 17 A Uh-huh.
18 A I believe others send their files on a 18 Q Okay. Is this understanding reflected in
19 more regular basis, when they know that they may 19 any written document?
20 need them again, but you can call down to Records 20 MS. HONG: Anne, I will allow a little bit
21 Management and get them back. 21 of latitude here, but again, just as in the last
22 Q Okay. Does the White House Office of 22 deposition, I don't want you getting into the
Page 31 Page 33
1 Records Management have, have they given you any 1 content of other litigations. If it has to do with
2 guidance on managing the records of the Vice 2 classification issues, I will allow the questions.
3 President? 3 MS. WEISMANN: Are you making an
4 MS. HONG: Objection; vague. 4 objection?
5 A Not -- they have given us guidance on how 5 MS. HONG: I'm putting on the record my
6 they would like to receive files. 6 objection to the extent you are fishing for
7 Q And that's been the extent of the guidance 7 information related to other litigation, yes.
8 they have offered? 8 MS. WEISMANN: There is no fishing going
9 A That's correct. 9 on.
10 Q Okay. Does the White House Office of 10 BY MS. WEISMANN:
11 Records Management have its own practices and 11 Q Is that understanding reflected in any
12 policies on how it manages the records it receives? 12 written document?
13 MS. HONG: Objection; vague, and personal 13 MS. HONG: Same objection.
14 knowledge. 14 A Any -- not that I can recall immediately
15 A Repeat the question. I'm sorry. 15 that it's reflected in any other written document.
16 MS. WEISMANN: Can you read the question 16 Q Okay. So to your knowledge, there is no
17 back? 17 written -- the understanding has not been
18 - - - 18 memorialized in a written document; is that correct?
19 (Whereupon the following portion of the 19 MS. HONG: Same objection. You can answer
20 testimony was repeated by the Court Reporter: 20 the question.
21 QUESTION: Okay. Does the White House 21 A The understanding?
22 Office of Records Management have its own practices 22 Q Between the Office of the Vice President
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1 and the White House Records Management, White House 1 filed in this litigation?
2 Office of Records Management that you reference in 2 A That's correct.
3 this declaration? 3 Q And did you review any other written
4 MS. HONG: Same objection and asked and 4 document?
5 answered. 5 A I didn't.
6 A Again, the Vice President's records belong 6 Q Okay. Has anyone discussed with you the
7 to the Office. Is that the question? 7 content of a memorandum that White House Counsel
8 Q It's the -- your declaration references, 8 Fred Fielding issued on October 8th, 2008?
9 and I'm quoting, a mutual understanding that White 9 A No.
10 House Office of Records Management will hold and 10 Q Where does the obligation for Vice
11 manage OVP records with legal possession, custody 11 Presidents to preserve their records come from?
12 and control of the records remaining with the OVP. 12 MS. HONG: Objection. Are you asking for
13 And my question is whether that understanding has 13 a legal conclusion?
14 been reduced or memorialized in writing? 14 MS. WEISMANN: No.
15 MS. HONG: Same objections as before. And 15 Q You can answer the question.
16 asked and answered. 16 A Where does the obligation?
17 A I don't recall. 17 Q Yes. What is your understanding about
18 Q Okay. 18 where the obligation for Vice Presidents to preserve
19 A I'm not sure. 19 their records comes from?
20 Q Thank you. You can give me that back. 20 A It's part of the Presidential Records
21 Other than the two memoranda you 21 Management Act.
22 identified, the verbal reminders that you have, you 22 Q I'm sorry. It's part of the --
Page 35 Page 37
1 and your staff have periodically received, such as 1 A Presidential Records Act.
2 in staff meetings, and the ethics briefings that you 2 Q Presidential Records Act. Okay. Are you
3 have received annually, is there any other written 3 familiar with the contents of the Presidential
4 or oral guidance you have been given about the 4 Records Act?
5 management of the Vice President's records? 5 A Yes.
6 A No. 6 Q How did you become familiar with that law?
7 Q Are you familiar with a memorandum that 7 A Like I said, it was part of the
8 White House Counsel Fred Fielding issued dated 8 orientation when we came on and it's just been a
9 October 8th, 2008? 9 practice that I have been told to make sure the Vice
10 A No. 10 President's Office practices.
11 Q Okay. Do you recall receiving any 11 Q Have you yourself ever read the statute,
12 memoranda from White House Counsel Fred Fielding 12 the Presidential Records Act, if you recall?
13 relating to the Presidential Records Act? 13 A I have read portions of it. I can't
14 A I don't recall. 14 guarantee that I've read the whole thing.
15 Q What did you review in order to prepare 15 Q And what is your understanding of the
16 for your deposition today? 16 documents that the Vice President is required to
17 A I reviewed my declarations. 17 transfer to NARA at the end of his administration?
18 Q When you say my declarations, which 18 A All of his executive and legislative
19 specific ones are you referring to? 19 files.
20 A The one dated September 16th I believe and 20 Q Okay. Do you have any more specific
21 September 22nd. 21 understanding than that?
22 Q You are talking about the ones that you 22 A Any documents that he has either created
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1 or received in his official functions. 1 A Uh-huh.
2 Q What records does your office manage that 2 Q What is encompassed within that category
3 fall within the scope of the Presidential Records 3 of records?
4 Act? 4 A When he goes on a trip, we have a file on
5 A Personnel files, budgets, trip files, any 5 who traveled with him, what rental cars we paid for,
6 bills that have been paid. 6 per diem, things like that.
7 Q Okay. So what is included within the 7 Q Would that include each and every trip
8 category of personal files? 8 that the Vice President has taken since becoming
9 MS. HONG: Objection. I'm sorry. I think 9 Vice President?
10 it misstates her testimony. She said personnel 10 A Yes.
11 files. 11 Q And would it include each trip no matter
12 A Personnel files. 12 what the purpose of the trip was?
13 Q Okay. I misheard you. 13 A Yes.
14 A Sorry. 14 Q So, for example, if the Vice President
15 Q What is in the category of personnel 15 were to take a flight to visit a relative on a
16 files? 16 purely personal basis, that would also be included
17 A People's resume's, their clearance 17 in this file?
18 information. 18 A That's correct.
19 Q When you say people, is this all 19 Q And is it your understanding that that
20 applicants? 20 file would also be covered by the Presidential
21 A No. Just the staff that we hire. 21 Records Act?
22 Q Okay. And those files you manage fall 22 A That's correct.
Page 39 Page 41
1 within the Presidential Records Act; is that 1 Q Of these three categories we discussed,
2 correct? 2 the personnel files, the budget files and the trip
3 A That's correct. 3 files, are there any documents within those files
4 MS. HONG: And again, if you could ask for 4 that the Office considers not covered by the
5 Ms. O'Donnell's understanding as opposed to what the 5 Presidential Records Act?
6 law -- 6 A No.
7 MS. WEISMANN: Helen, if you have an 7 Q Okay. And on the trip files, does any
8 objection, you are free to make it, but you are not 8 other office, entity or person also maintain files
9 free to change the question or ask your own 9 relating to the Vice President's trips?
10 questions, thank you. 10 A Yes.
11 MS. HONG: And I will object to the extent 11 Q And which offices are those?
12 that the question does not ask for Ms. O'Donnell's 12 A The Office of Advance.
13 understanding of the law. 13 Q What part of the White House is that
14 BY MS. WEISMANN: 14 within? Is it within the EOP?
15 Q Okay. Budget files. What is encompassed 15 A It's in the Vice President's Office.
16 within that category of records? 16 Q It's part of the Vice President's Office?
17 A The Vice President's authorized budget, 17 A Right.
18 how we spend it, and records, records of our 18 Q Do they have records in their files that
19 interaction with it, you know, any kind of bills or 19 are not in yours relating to trips?
20 anything like that. 20 A Yes. Their files are more detailed than
21 Q Okay. And I think the third category you 21 mine.
22 mentioned was trip files; is that correct? 22 Q Okay. So when you are talking about
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1 managing the trip files for the Office of the Vice 1 any specific document, but what kinds of documents
2 President, you are talking only about the files that 2 are included in that category?
3 are within your office; is that correct? 3 A Rental car bills, hotel bills, flights,
4 MS. HONG: Objection; vague, and I think 4 you know, airline tickets, things like that.
5 misstates her testimony. 5 Q Okay. Now, are these bills that relate
6 BY MS. WEISMANN: 6 only to trips?
7 Q You can answer. 7 A Yes. I thought that's what you were
8 A You have to repeat the question. 8 speaking about.
9 MS. WEISMANN: Okay. Can you read it 9 Q No. I thought -- I want the record to be
10 back? 10 clear on this. I thought initially to my question
11 - - - 11 you had identified four categories of records?
12 (Whereupon the following portion of the 12 A Uh-huh.
13 testimony was repeated by the Court Reporter: 13 Q I have down the fourth category as bills
14 QUESTION: Okay. So when you are 14 paid.
15 talking about managing the trip files for the Office 15 A Okay.
16 of the Vice President, you are talking only about 16 Q I'm trying to find out does it include,
17 the files that are within your office; is that 17 does it encompass bills other than trip-related
18 correct?) 18 bills?
19 - - - 19 A Yes. It's payroll bills, it's supplies,
20 MS. HONG: Same objection; vague. 20 it's transportation of things within the office,
21 BY MS. WEISMANN: 21 travel bills.
22 Q You can answer. 22 Q Okay. And is there any other office,
Page 43 Page 45
1 A That I manage, yes. 1 entity or person within the Executive Office of the
2 Q Yes. So they would not include, for 2 President that also maintains bills related to the
3 example, the Advance Office trip files; is that 3 Vice President or the Office of the Vice President?
4 correct? 4 A Yes.
5 MS. HONG: Objection; vague. 5 Q And which entities or offices are those?
6 A I don't manage the Advance Office files. 6 A The Office of Administration has a budget
7 I make sure they follow a process, but I don't 7 office that I work with on a regular basis.
8 manage. I only manage my own files. 8 Q And does the Office of Administration also
9 Q Okay. And looking then at that specific 9 maintain records relating to bills paid or on behalf
10 files that I'm talking about, the files that the 10 of the OVP?
11 Advance Office creates, who was responsible for 11 A Yes.
12 ensuring their preservation under the Presidential 12 Q And are those considered to be Vice
13 Records Act? 13 Presidential records, if you know?
14 A Every employee is responsible for ensuring 14 A I believe they are OA records.
15 all of their files are kept for the Presidential 15 Q Okay. Other than the four categories of
16 Records Act. Ultimately, the head of the office, I 16 records we've just discussed; personnel files,
17 assume, is who I rely on. 17 budgets, trip files, bills paid, can you identify
18 Q Okay. The fourth category that you 18 any other categories of records that your office
19 mentioned I believe was bills paid; is that correct? 19 manages that fall within the Presidential Records
20 A That's correct. 20 Act?
21 Q Describe for me what documents, what kinds 21 MS. HONG: Objection. I think earlier the
22 of documents, I'm not asking about the contents of 22 question was records that she manages. Are you
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1 asking her to -- 1 the question that I initially asked.
2 MS. WEISMANN: I think we need to have a 2 MS. HONG: Okay.
3 discussion. It can be an on-the-record discussion, 3 (Witness now present.)
4 but I would like the witness not to be here. 4 MS. WEISMANN: I'm going to have the court
5 MS. HONG: Then do you want to go off the 5 reporter go back and reread -- read for you my
6 record? 6 initial question on this topic.
7 MS. WEISMANN: While she leaves, yes. I'm 7 - - -
8 sorry. Sometimes we have to have discussions 8 (Whereupon the following portion of the
9 between lawyers, and -- 9 testimony was repeated by the Court Reporter:
10 THE WITNESS: Okay. 10 QUESTION: What records does your office
11 (Witness no longer present.) 11 manage that fall within the scope of the
12 MS. WEISMANN: If you have an objection or 12 Presidential Records Act?
13 believe that a question misstates the record, 13 ANSWER: Personnel files, budgets, trip
14 obviously you are free to raise that objection. I 14 files, any bills that have been paid.)
15 do not believe that you are free to characterize or 15 - - -
16 coach her on what her prior testimony has been. And 16 BY MS. WEISMANN:
17 I would like to ask you to refrain from doing that. 17 Q So my initial question to you was what
18 So I'm happy to have the court reporter go 18 records does your office manage that fall within the
19 back and check and see whether or not that was my 19 scope of the Presidential Records Act. Are there
20 question, but I don't think it's appropriate for you 20 any other categories of records -- again I want to
21 to offer your interpretation of recollection of the 21 be clear, I'm not asking about the specific contents
22 question. I think it's perfectly appropriate for 22 of any specific records -- that you can identify in
Page 47 Page 49
1 you to say I think that misstates the question. I 1 response to my question?
2 just wanted to get that now in the record, because I 2 A Everything that we do in our office is
3 would hope we don't have to have a continuing 3 considered an official document and is kept under
4 problem with that. So we can bring her back and we 4 the Presidential Records Act.
5 can have my question read. I'm happy to do that. 5 Q Okay. So when you identified these four
6 MS. HONG: If you would have -- if you 6 categories of records, why did you single out those
7 want to look at the transcript to see, it's my 7 categories?
8 understanding that the witness stated -- 8 A That is the bulk of the records that I
9 MS. WEISMANN: I understand that. And I'm 9 keep in my office, so I was just trying to put them
10 saying it's perfectly appropriate to say that 10 in categories.
11 misstates the testimony of either the question or 11 Q Okay.
12 the response and then we can chose to go back and 12 A But we keep everything.
13 have the court reporter read it. I'm just saying I 13 Q Okay. When you identified those four
14 don't think it's appropriate to say what you think 14 categories of records, would that accurately reflect
15 her testimony or the question was. 15 the totality of the records that your office manages
16 MS. HONG: I just want to make sure that 16 within the Presidential Records Act?
17 the record is clear that to the extent there is a 17 MS. HONG: Objection; vague.
18 misstatement of her testimony and there's a question 18 A There are other things that I manage, but
19 that embeds purportedly what she previously said, 19 that's the bulk. I mean I'm just kind of looking
20 that it's an accurate reflection of what she said. 20 around my office. We have a file cabinet with trip
21 MS. WEISMANN: I think that's fair and I'm 21 files, one with bills, one with personnel, but I
22 happy to go back and have the court reporter reread 22 also have miscellaneous files of just different
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1 documents we receive or create. 1 Are all of the documents identified in the
2 Q Okay. And can you divide those 2 category as potentially responsive to the subpoena
3 miscellaneous files into subject areas? 3 classified as Vice Presidential records, if you
4 A It's just kind of a conglomeration of 4 know?
5 things. 5 MS. HONG: Objection. Vice Presidential
6 MS. WEISMANN: Okay. I want to take a 6 records meaning under the PRA? Objection; vague.
7 two-minute break. 7 A I would assume yes.
8 - - - 8 Q And what is the basis for that assumption?
9 (Recessed at 10:50 a.m.) 9 A That everything that the Vice President
10 (Reconvened at 10:57 a.m.) 10 deals with is an official record, is an official
11 - - - 11 document that goes to, that's kept under the
12 MS. WEISMANN: Back on the record. I 12 Presidential Records Act.
13 would like this marked as Exhibit 1, please. 13 Q Do you have any specific personal
14 (O'Donnell Exhibit Number 1 14 knowledge about how the documents that are
15 was marked for identification.) 15 responsive to the subpoena are being treated by the
16 BY MS. WEISMANN: 16 Office of the Vice President? And what I mean by
17 Q Ms. O'Donnell, I have handed you an 17 being treated is specific knowledge as to whether or
18 exhibit marked Exhibit 1, which has a fax cover 18 not they are being classified as covered by the PRA?
19 sheet from the Office of the Vice President. And 19 And when I use PRA, it's shorthand for Presidential
20 attached to that is a two-page letter to the 20 Records Act.
21 Honorable Patrick J. Leahy, from Shannen W. Coffin, 21 A Uh-huh.
22 Counsel to the Vice President, and it's dated 22 MS. HONG: And just one more reminder; yes
Page 51 Page 53
1 August 20th, 2007. 1 or no.
2 Take whatever time you need to look it 2 A Yes. I don't have specific knowledge. I
3 over. 3 have general knowledge of how records are to be
4 A Can I just read it again once? I'm sorry. 4 managed.
5 Q Yeah. Take as much time as you need. 5 Q Okay. And this category of records, that
6 A Okay. 6 is, the records that are potentially responsive to
7 Q Have you ever seen this letter before? 7 the subpoena discussed in this letter, are they a
8 A Not that I recall. 8 category of records that you in the ordinary course
9 Q Okay. I'm going to direct your attention 9 of your job would come in contact with?
10 to page 2 of the letter, and the third paragraph 10 A Are you referring to the Codeword
11 down that begins, The Office of the Vice President. 11 documents?
12 Do you see that paragraph? 12 Q No. I'm talking about the general
13 A Uh-huh. 13 category, documents that are potentially responsive
14 MS. HONG: Excuse me. Just to remind you, 14 to the subpoena.
15 no uh-huh. It has to be yes or no. 15 MS. HONG: Objection. That's vague.
16 Q Unless you get a kind reporter who is 16 A State the question again. I'm sorry.
17 happy to fill it in. 17 Q Okay. Let me rephrase it. Do you have
18 The first sentence of that paragraph 18 any personal knowledge about this specific category
19 reads: The Office of the Vice President possesses 19 of records, and by specific category I mean records
20 copies of documents that may be responsive to the 20 that may be responsive to the subpoena discussed in
21 subpoena, including White House Office documents and 21 this letter?
22 Department of Justice documents. 22 MS. HONG: Objection; vague.
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1 A I don't have personal knowledge. Again, I 1 Q Okay. Turning back again to the category
2 have general knowledge of the practices that we have 2 of records encompassed in this third paragraph on
3 all been told to adhere to. 3 page 2 of this letter, that is, documents that may
4 Q Okay. And what is the nature of your 4 be responsive to the subpoena, do you have any
5 general knowledge? 5 personal knowledge about how those documents are
6 A Again, every document that we receive or 6 being treated under the Presidential Records Act?
7 create in our capacities, meaning the staff of the 7 MS. HONG: Objection; vague as to
8 Vice President, to assist him in his duties are to 8 documents responsive to the subpoena.
9 be kept for the Presidential Records Act. 9 BY MS. WEISMANN:
10 Q So when you say -- you are talking 10 Q You may answer the question.
11 about -- are you talking about general knowledge 11 A I don't have personal knowledge.
12 based on the guidance that you have been given, the 12 Q Okay. Is there any other office that you
13 guidance that you have described for us? 13 have not, beyond the OVP, that you have not already
14 A Yes. I don't have specific knowledge on 14 identified that also has possession of records that
15 each individual in the Office. I just go ahead and 15 would be considered Vice Presidential records under
16 make sure everybody understands the rules. 16 the PRA?
17 Q Okay. Now, earlier in your testimony -- 17 MS. HONG: Objection; misstates her
18 MS. WEISMANN: We are going to go off the 18 testimony.
19 record for about two minutes. 19 MS. WEISMANN: It's not -- let's -- we
20 - - - 20 need to have a discussion, I'm sorry. So let's go
21 (Discussion off the Record.) 21 off the record. And I would ask you to leave.
22 - - - 22 THE WITNESS: Okay.
Page 55 Page 57
1 MS. WEISMANN: Can you read back her last 1 (Witness no longer present.)
2 response? 2 - - -
3 - - - 3 (Discussion off the Record.)
4 (Whereupon the following portion of the 4 - - -
5 testimony was repeated by the Court Reporter: 5 (Witness now present.)
6 ANSWER: Yes. I don't have specific 6 BY MS. WEISMANN:
7 knowledge on each individual in the Office. I just 7 Q Back on the record. Can you read back the
8 go ahead and make sure everybody understands the 8 last question?
9 rules.) 9 - - -
10 - - - 10 (Whereupon the following portion of the
11 MS. WEISMANN: And can you read back, I'm 11 testimony was repeated by the Court Reporter:
12 sorry, her response to the question before that? 12 QUESTION: Okay. Is there any other
13 - - - 13 office that you have not, beyond the OVP, that you
14 (Whereupon the following portion of the 14 have not already identified that also has possession
15 testimony was repeated by the Court Reporter: 15 of records that would be considered Vice
16 ANSWER: Again, every document that we 16 Presidential records under the PRA?)
17 receive or create in our capacities, meaning the 17 - - -
18 staff of the Vice President, to assist him in his 18 MS. HONG: Same objection; misleading.
19 duties are to be kept for the Presidential Records 19 BY MS. WEISMANN:
20 Act.) 20 Q Go ahead.
21 - - - 21 A Outside the Office of the Vice President?
22 BY MS. WEISMANN: 22 Q Yes. I'm asking you to look outside of
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1 the Office of the Vice President. 1 categories of records that you personally manage or
2 A That have Vice Presidential records? 2 that you manage -- that you manage, what office are
3 Q Correct. 3 those -- what part of this organizational chain are
4 A I believe the Security Service has Vice 4 those records considered to be?
5 Presidential records, I believe that with our 5 A Just in my office, the Operations Office.
6 dealings with the White House we have mixed records 6 Q So that would be the Operations Office?
7 and some of them would be considered Vice 7 A That's correct.
8 Presidential records. It's kind of like your pass; 8 Q Which is discrete and distinct from the
9 I mean everything -- we all have the same pass and 9 other offices that you listed?
10 it gets mixed in together. 10 A That's correct.
11 Q Putting Secret Service records aside, are 11 MS. HONG: Objection; vague.
12 there any other offices, either within or outside of 12 BY MS. WEISMANN:
13 the EOP, that currently have records that would be 13 Q And your answer is yes?
14 considered Vice Presidential records under the PRA? 14 A Yes.
15 MS. HONG: Objection; vague. 15 Q Okay. Are you familiar with the category
16 A Not -- I -- outside of the Vice 16 of records under the Presidential Records Act that
17 President's Office, meaning all of his offices under 17 are personal records?
18 his control; is that what you are speaking about? 18 A The category?
19 Q Yes. 19 Q Do you have an understanding of how
20 A Not to my knowledge. 20 personal records are treated under the Presidential
21 Q Okay. Let's focus now on the offices that 21 Records Act?
22 are under the control of the Vice President. 22 A I'm not sure of the definition of
Page 59 Page 61
1 A Uh-huh. 1 personal. We don't --
2 Q Give me a list of what those offices are. 2 Q So you have no working knowledge of
3 A We have Mrs. Cheney's office, we have 3 personal records?
4 Legislative Affairs, the Staff Secretary's Office, 4 A Personal records, no.
5 the Counsel's Office, Domestic Policy, Homeland 5 Q As they -- okay. Is there anyone that,
6 Security, Scheduling, Advance, Speech Writing, 6 within the OVP who has responsibility for the
7 Operations, the Chief of Staff, and National 7 personal records of the Vice President?
8 Security. I think I hit them all. 8 A I'm not sure I know your definition of
9 Q And those are all discrete offices within 9 personal.
10 the Office of the Vice President? 10 Q Are you familiar with the Presidential
11 A They all have office heads that report to 11 Records Act's reference to personal papers?
12 the Chief of Staff, yes. 12 A Not specifically.
13 Q Okay. And organizationally is each one of 13 Q Okay. Do you know if the Vice President's
14 those offices within the OVP? 14 responsibilities under the PRA differ from those of
15 A Yes. 15 the President?
16 Q Okay. And your office, where is your 16 A I don't believe they do.
17 office in that organizational chart? 17 Q How are the legislative records of the
18 A In one of the offices as Deputy Chief of 18 Vice President treated under the Presidential
19 Staff, you know, it's the Chief of Staff, the Deputy 19 Records Act?
20 Chief of Staff and the other office heads. So it's 20 A The same as the executive records are
21 just a box on the organizational chart. 21 kept. Everything is considered a document that has
22 Q When you were describing the four 22 to be kept and filed.
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1 Q And what is your understanding of what is 1 Q Does that responsibility extend to when
2 included in the category legislative records? 2 the records are still in the Senate office?
3 A I really don't distinguish myself, but I 3 A Yes.
4 believe it's his records that he, if he breaks a tie 4 Q Okay. Okay. You submitted a declaration
5 vote or maybe signs a bill, that might be considered 5 in this litigation that is entitled the Declaration
6 both legislative and executive. 6 of Claire M. O'Donnell, Assistant to the Vice
7 Q And does the OVP have any responsibility 7 President and Deputy Chief of Staff, and it is dated
8 for managing the legislative records of the Vice 8 September 16, 2008. Do you recall that declaration?
9 President? 9 A I do.
10 A We consider we do. 10 Q And if you want, I'm happy to give you a
11 Q And where are those records physically 11 copy just for ease of reference. Here. I'm handing
12 housed? 12 the witness --
13 A In the Legislative Affairs Office in the 13 A Thank you.
14 Old Executive Office Building. 14 Q -- the declaration that she submitted in
15 Q Does the Vice President have any records 15 this litigation dated September 16, 2008. I'm going
16 in his Senate office? 16 to turn your attention to paragraph five of that
17 A I believe they send them all to us and we 17 declaration. And I'm going to direct your attention
18 manage them in our, in the Old Executive Office 18 about halfway down. There is a sentence that reads,
19 building before they are sent down to Records 19 and I quote: The Constitutional, Statutory or other
20 Management. 20 official or ceremonial duties of the Vice President
21 Q Okay. When you talk about managing these 21 include both the functions of the Vice President as
22 records, are you talking about preparing them to be 22 President of the Senate, and the functions of the
Page 63 Page 65
1 retired? 1 Vice President specially assigned to the Vice
2 A Not me personally, but, yes, overseeing 2 President by the President in the discharge of
3 the process. 3 executive duties and responsibilities, end quote.
4 Q So while the Vice President's legislative 4 Do you see that sentence?
5 records are currently being used, would they remain 5 A I do.
6 in his Senate office? 6 Q What was the -- where did this language in
7 A I would imagine, yes. 7 your declaration, where did you get the language
8 Q Okay. And who has responsibility for 8 describing the functions of the Vice President as
9 determining what's a legislative record that needs 9 those specially assigned to the Vice President by
10 to be preserved under the PRA? 10 the President in discharge of executive duties and
11 A The head of the Legislative Affairs 11 responsibilities?
12 Office, Margaret Stewart. But she is given the same 12 A Where did I get the language?
13 guidance we are, not to distinguish anything. 13 Q Yes.
14 Q And at what point in the management 14 A It was drafted, it was drafted for me.
15 process does she see the records, the legislative 15 Q And do you know who did the drafting?
16 records? 16 A Our counsel's office, our counsel's office
17 MS. HONG: Objection; personal knowledge. 17 is the one that gave it to me.
18 A I don't -- I'm not familiar with exactly 18 Q Now, I'm going to ask you a series of
19 what point she sees the records. 19 questions, and to streamline things I'm going to
20 Q You identified her as someone who has 20 refer to this as the specially assigned language.
21 responsibility for managing those records; correct? 21 Can we agree that when I do that, it's talking about
22 A Right. 22 this phrase functions of the Vice President
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1 specially assigned, okay? Just otherwise it will 1 Right now I don't know.
2 get very wordy. 2 - - -
3 A Okay. 3 (Recessed at 11:27 a.m.)
4 Q Have you in any other situation used this 4 (Reconvened at 11:28 a.m.)
5 specially assigned language to describe the 5 - - -
6 functions of the Vice President? 6 MS. HONG: I'll caution the witness not to
7 A I have used it myself. 7 reveal any of the communications that you learned
8 Q And what is the context of your use? 8 from Mr. Addington in his capacity as Counsel to the
9 A In chatter of what does the Vice President 9 Vice President, but if you have heard him use the
10 really do. 10 specially assigned language in other capacities, you
11 Q And you have said -- 11 can discuss with Ms. Weismann in response to her
12 A He is there to take on responsibilities 12 question. If you could read back the question, too,
13 that the President assigns to him. He has no other 13 so we recall what's on the table?
14 responsibilities other than to assist and work for 14 - - -
15 the President. 15 (Whereupon the following portion of the
16 Q And where did your understanding of that 16 testimony was repeated by the Court Reporter:
17 function come from? 17 QUESTION: And what is it specifically
18 A When we first came into office, that's 18 that you can recall David Addington saying?)
19 what we were told; we were there as Vice 19 - - -
20 Presidential staff to assist the Vice President in 20 MS. HONG: Same caution, but you may
21 carrying out his functions in working for the 21 answer the question.
22 President. 22 A He always describes the Vice President's
Page 67 Page 69
1 Q And who told you that? 1 Office as the office that is there to assist the
2 A Our Chief of Staff just kind of mentioned 2 Vice President in carrying out his duties that he
3 it in staff meetings over and over again. 3 has been assigned to do by the President.
4 Q Would that have been David Addington? 4 Q Is there any part of, any aspect of
5 A No. That was Scooter Libby. 5 response to my question that you can not give
6 Q Is there anyone else besides Scooter Libby 6 because of the assertion of privilege?
7 that mentioned it? 7 A No. I have heard him -- I have heard
8 A David Addington has reiterated that 8 David say it on a regular basis.
9 several times. 9 Q Let's go back to your declaration then.
10 Q And what is it specifically that you can 10 You said that this language was drafted for you by
11 recall David Addington saying? 11 counsel's office?
12 MS. HONG: Can I take a moment here? If 12 A Yes.
13 this is in his capacity -- I'm just going to figure 13 Q Okay. And is this language language that
14 out time line. If this is in his capacity as 14 you initially proposed or that was proposed by
15 counsel, it would be protected by the 15 counsel's office?
16 attorney/client privilege, so I would like to confer 16 A It was --
17 with the witness to determine when she had heard 17 MS. HONG: I think the fact that the
18 this, if she can recall. 18 declaration was drafted by counsel, that's okay for
19 MS. WEISMANN: Okay. As long as the 19 you to get into. To the extent you are going to go
20 purpose of the conference is to determine whether a 20 about the back and forth about the declaration --
21 privilege needs to be asserted. 21 MS. WEISMANN: If I get to a question that
22 MS. HONG: That was the stated purpose. 22 you think is, a privilege assertion is appropriate,
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1 you are free to raise it. 1 declaration that was submitted in the Washington
2 MS. HONG: Can you read back that 2 Post v. Department of Homeland Security case, and
3 question? 3 it's dated October 14th, 2006. I'm sorry. It was
4 - - - 4 signed -- it was submitted to the Court on
5 (Whereupon the following portion of the 5 October 14th, but signed on October 13th, 2006.
6 testimony was repeated by the Court Reporter: 6 Do you recognize this document?
7 QUESTION: Okay. And is this language 7 A I do.
8 language that you initially proposed or that was 8 Q I would like you to look specifically on
9 proposed by counsel's office?) 9 page 3, paragraph seven, please.
10 - - - 10 A Uh-huh.
11 MS. HONG: You can answer that question. 11 Q And would you read the first sentence of
12 A It was proposed by counsel's office. 12 that paragraph for me out loud?
13 Q To your knowledge, is this specific 13 A It is the policy of the OVP that documents
14 definition, the specific specially assigned 14 and materials that relate to the Vice Presidential
15 language, reflected in any record-keeping guidance 15 support of Presidential functions are preserved as
16 that you have seen in your tenure at the White House 16 Vice Presidential executive records in accordance
17 at the Executive Office of the President? 17 with the Presidential Records Act.
18 MS. HONG: Objection; vague and 18 Q Thank you. This paragraph contains the
19 misleading. 19 phrase Vice Presidential support of Presidential
20 A Can I just repeat the question? 20 functions, does it not?
21 Q Uh-huh. 21 A It does.
22 A Is this language specific language that I 22 Q And was that language that you came up
Page 71 Page 73
1 have seen in record-keeping guidance? 1 with for this declaration?
2 Q Yes. 2 A No.
3 A No. It is not. 3 Q Who supplied you with that language?
4 Q Is it, the specially assigned language, 4 A Again, counsel's office drafted this.
5 have you seen that precise language in any other 5 Q And how does this definition, by this
6 written documentation while you have been at OVP? 6 definition I mean Vice Presidential support of
7 A I believe I've seen it in other 7 Presidential functions, differ from the specially
8 declarations I've made. It's a, it's a term that is 8 assigned definition that you offered in the current
9 used all the time in the Vice President's office. 9 litigation?
10 Q Putting aside the declarations that you 10 A For me it doesn't differ.
11 have submitted in this litigation, are there 11 Q Okay.
12 declarations you have submitted in other litigation 12 A Just different, different lawyers drafting
13 that use this term? 13 these.
14 A I don't believe so, but I can't be sure of 14 Q Who determines whether a particular
15 that. 15 activity constitutes Vice Presidential support of
16 MS. WEISMANN: I would like this marked as 16 Presidential functions?
17 Exhibit 2. 17 MS. HONG: Objection; vague. For what
18 (O'Donnell Exhibit Number 2 18 purpose? Who determines when?
19 was marked for identification.) 19 MS. WEISMANN: I have a question pending.
20 BY MS. WEISMANN: 20 A I'm sorry. Your question was who
21 Q Ms. O'Donnell, I'm handing you what's been 21 determines --
22 marked as Deposition Exhibit 2. It is your 22 Q Who determines whether a particular
19 (Pages 70 to 73)
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1 activity constitutes Vice Presidential support of 1 (Discussion off the Record.)
2 Presidential functions? 2 - - -
3 MS. HONG: Same objection. 3 MS. HONG: Okay. Back on the record.
4 A It's our job, I think our job determines 4 Objection; misleading.
5 that we are there to support the Vice President in 5 BY MS. WEISMANN:
6 his functions that he has been assigned to do as, 6 Q You may answer the question.
7 from the President. 7 A I believe he was assigned to do that by
8 Q In implementing the Presidential Records 8 statute by the President.
9 Act for Vice Presidential records, have you ever had 9 Q Okay. And so would records generated by
10 an opportunity to make a decision whether a 10 that function be covered by the Presidential Records
11 particular activity constitutes Vice Presidential 11 Act?
12 support of Presidential functions? 12 A Absolutely.
13 A No. I wouldn't make that determination. 13 Q How is the Vice President's receipt of
14 Q Okay. Now I want to go back to the 14 terrorism information specially assigned by the
15 specially assigned language that you used. And just 15 President when it's authorized by statute,
16 to be clear, you described it as the functions of 16 specifically 50 U.S.C. Section 4o-4o?
17 the Vice President specially assigned to the Vice 17 MS. HONG: Objection; argumentative.
18 President by the President in the discharge of 18 MS. WEISMANN: Okay. I think we need to
19 executive duties and responsibilities. Okay? 19 take a break and I would like the witness to leave.
20 How is the Vice President's membership on 20 We are going off the record ourselves for a minute.
21 the National Homeland Security Council specially 21 - - -
22 assigned by the President in the discharge of 22 (Recessed at 11:38 a.m.)
Page 75 Page 77
1 executive duties and responsibilities when it's 1 (Reconvened at 11:41 a.m.)
2 assigned by statute? 2 - - -
3 MS. HONG: Can I get that question reread? 3 MS. WEISMANN: We are back on the record.
4 - - - 4 I don't think she answered the last question, so can
5 (Whereupon the following portion of the 5 we have it read back?
6 testimony was repeated by the Court Reporter: 6 - - -
7 QUESTION: Okay. Now I want to go back 7 (Whereupon the following portion of the
8 to the specially assigned language that you used. 8 testimony was repeated by the Court Reporter:
9 And just to be clear, you described it as the 9 QUESTION: How is the Vice President's
10 functions of the Vice President specially assigned 10 receipt of terrorism information specially assigned
11 to the Vice President by the President in the 11 by the President when it's authorized by statute,
12 discharge of executive duties and responsibilities. 12 specifically 50 U.S.C. Section 4o-4o?)
13 Okay? 13 - - -
14 How is the Vice President's membership on 14 MS. HONG: Same objection.
15 the National Homeland Security Council specially 15 A I could only answer I don't get into the
16 assigned by the President in the discharge of 16 legalese of all of the Vice President's duties. We
17 executive duties and responsibilities when it's 17 view it that everything he does he is doing on
18 assigned by statute?) 18 behalf of the President and that's our practice and
19 - - - 19 that's the guidance I give to people, that
20 MS. HONG: Can we go off the record for a 20 everything you are doing here is in support of the
21 moment? 21 Vice President and it's considered a Presidential
22 - - - 22 document.
20 (Pages 74 to 77)
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1 Q Okay. By statute the Vice President is 1 I have been asked to give out and the processes,
2 included in the Smithsonian Institution, 2 processes, processes that we follow.
3 specifically 20 U.S.C. Section 41. Given that 3 Q And the basis of your knowledge for that?
4 that's a responsibility assigned to the Vice 4 A Is from the Chief of Staff and guidance
5 President by statute, how is it, how does it fit 5 that I've been told to make sure we follow.
6 within your language specially assigned by the 6 Q Okay. Does the Vice President, and again
7 President? 7 for purposes of our discussion when I refer to the
8 MS. HONG: Objection; argumentative. 8 Vice President I refer to the individual, not the
9 A Again, if he is -- I don't get into the 9 entity, the OVP, so we make sure we are operating on
10 legalese. If there are documents created or 10 the same page.
11 received on behalf of his duties, and if he sits on 11 A Okay.
12 that board because he is Vice President, then we 12 Q Does the Vice President have physical
13 would consider it a Presidential document. 13 custody of any of the records that he has received
14 Q The Vice President also is a member of the 14 or generated during his eight years as Vice
15 National Security Council under the National 15 President?
16 Security Act of 1947. If that is a responsibility 16 A I'm not familiar with how the Vice
17 that the Vice President has because it's been 17 President's immediate office handles his papers or
18 assigned to him by Congress, how can it at the same 18 how he does.
19 time be specially assigned by the President? 19 Q And where is -- is his immediate office
20 MS. HONG: Same objection. 20 located separately from the Office of the Vice
21 A They are part of his executive duties and 21 President?
22 I keep saying Presidential documents. They are Vice 22 A His office is the Office of the Vice --
Page 79 Page 81
1 Presidential documents that we keep for the 1 it's his own office and it's in the West Wing of the
2 Presidential Records Act. Sorry. 2 White House.
3 Q The Vice President -- does the Vice 3 Q And is your office also in the West Wing?
4 President, and I mean specifically the Vice 4 A It is not.
5 President and not the Office of the Vice President, 5 Q And are the other -- of the other -- I'm
6 make a determination as to which of the written 6 sure that's a -- I was going to make a little joke,
7 materials he has received or generated during the 7 and it wasn't going to be at your expense, believe
8 last eight years qualified as Vice Presidential 8 me.
9 records under the PRA? 9 A It's okay.
10 MS. HONG: Objection; personal 10 Q Earlier you had identified, and I don't
11 knowledge -- well, objection withdrawn. 11 recall the number, I apologize, a number of the
12 A Are you asking me something about the Vice 12 different what I will call components of the OVP, of
13 President personally? 13 which your office is one. Are any of those
14 Q I'm asking if you know whether or not the 14 components, as long as we both understand what that
15 Vice President makes a determination, not the OVP, 15 refers to, also located within the West Wing?
16 but the Vice President, as to which of the written 16 A Just his immediate office. The rest of
17 materials he has received or generated during the 17 the office heads are located in the Old Executive
18 last eight years qualify as Vice Presidential 18 Office Building.
19 records under the PRA? 19 Q And so is it your testimony, and I don't
20 A I have never spoken to the Vice President 20 mean to mischaracterize it, so please correct me,
21 directly about records, so I don't want to 21 that you have no personal knowledge about -- let me
22 characterize. I know he supports the guidance that 22 just ask the question. Do you have any personal
21 (Pages 78 to 81)
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1 knowledge about what the Vice President does with 1 President.
2 records that he keeps in his immediate office? 2 Q And would your answer -- does the Vice
3 A I have no personal knowledge. 3 President, to your knowledge, have any obligations
4 Q And do you have any personal knowledge 4 or responsibilities beyond those that are specially
5 about how those records are handled for purposes of 5 assigned by the President? And before you answer,
6 the Presidential Records Act? 6 when I say any obligations, I am not limiting my
7 A I have no personal knowledge. 7 question to the Executive Branch, as you have
8 Q Okay. 8 referenced in your declaration.
9 A I have general knowledge. 9 A He has got legislative duties as President
10 Q What's the source of your general 10 of the Senate.
11 knowledge? 11 Q Okay. Is that the sum total of his
12 A His assistant will occasionally ask for 12 legislative duties as far as you know?
13 file boxes for things to be boxed up to go over to 13 A As President of the Senate?
14 Records Management. 14 Q Uh-huh.
15 Q Okay. But for those records that are not 15 A Those are his, to carry out those duties.
16 boxed up and sent to Records Management do you have 16 Q Okay. And are there any other
17 any personal knowledge? 17 responsibilities that he has?
18 MS. HONG: Objection. 18 A Everything would fall under those two
19 MR. TYLER: Objection. 19 categories, everything else he does.
20 A I have no personal knowledge. 20 Q And how -- what is the basis for your
21 MS. HONG: That assumes evidence or states 21 knowledge of that?
22 facts not in evidence. 22 A It's just general knowledge. You know,
Page 83 Page 85
1 1 his ceremonial responsibilities, that would fall
2 BY MS. WEISMANN: 2 probably under his executive, in his executive
3 Q Have the individual staff members within 3 bucket of responsibilities.
4 the OVP, has your definition of specially assigned 4 Q Do you know whether or not the President
5 function definition been shared with them for 5 orally assigns specially assigned functions to the
6 purposes of implementing the Presidential Records 6 Vice President?
7 Act? 7 A I don't have any firsthand knowledge of
8 A It's a description that's used frequently 8 that.
9 in the Vice President's office. 9 Q Do you know whether the President in
10 Q Now, I want to make -- when you say it's a 10 writing specially assigns functions to the Vice
11 description, you mean the specially assigned 11 President?
12 functions description exactly as its included in 12 A I don't have any firsthand knowledge of
13 your declaration? 13 communication between the President and the Vice
14 A I don't know if it's exactly, but the 14 President.
15 implication, the implied definition is the same; 15 Q If the Vice President or his staff --
16 that the President assigns things to the Vice 16 well, let's start with if the Vice President
17 President, both generally and specifically. 17 performs a function about which the President has no
18 Q Is it your understanding that everything 18 knowledge, such as what was reported as coordination
19 that the Vice President does in his executive 19 with OLC on the drafting of a torture memo, would
20 capacity is specially assigned by the President? 20 this be specially assigned by the President?
21 A In general terms and in specific terms, 21 A Could you repeat the question?
22 yes. It's all -- they are all assigned by the 22 MS. WEISMANN: Can you read back the
22 (Pages 82 to 85)
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Page 86 Page 88
1 question? 1 Vice President has created since January 20th, 2001,
2 - - - 2 be included as Vice Presidential materials turned
3 (Whereupon the following portion of the 3 over to NARA under the Presidential Records Act? )
4 testimony was repeated by the Court Reporter: 4 - - -
5 QUESTION: If the Vice President or his 5 A Those are the intentions that I've been
6 staff -- well, let's start with if the Vice 6 made aware of. Those are his intentions.
7 President performs a function about which the 7 Q In your declaration of September 15th,
8 President has no knowledge, such as what was 8 2008 that was filed in this litigation,
9 reported as coordination with OLC on the drafting of 9 September 16th, 2008, looking at paragraph five, you
10 a torture memo, would this be specially assigned by 10 refer to -- your phrase specially assigned refers to
11 the President?) 11 the discharge of executive duties and
12 - - - 12 responsibilities. Do you see that language?
13 A It's an area that the Vice President would 13 A Am I looking at the right thing here?
14 perform his functions that the President is aware 14 September 16th?
15 of. When I say specially assigned, I don't mean, 15 Q Yeah. The one you submitted in this
16 you know, everything he does, you know, it's a check 16 litigation that's captioned Declaration of Claire M.
17 list that they go through every day. It's kind of a 17 O'Donnell. It's the one that has that language
18 general term. 18 specially assigned in it.
19 Q What's the derivation of this term? 19 A Okay.
20 MS. HONG: Objection; vague. 20 Q As part of that language there is a
21 A Again, it was drafted for me and it's just 21 reference to executive duties and responsibilities.
22 kind of, again, a term of art that the Vice 22 Do you see that?
Page 87 Page 89
1 President's office uses. We are here to support the 1 A Uh-huh.
2 President. 2 Q That is also language that was supplied to
3 Q And are you aware outside of how it's 3 you by counsel's office?
4 discussed internally of any other external public 4 A That's correct.
5 documents that contain this expression, specially 5 Q Okay.
6 assigned? 6 MS. WEISMANN: I'll have this marked as
7 A I'm not. 7 Exhibit 3 I think.
8 Q Okay. Will all of the papers, records, 8 (O'Donnell Exhibit Number 3
9 notes, recordings, memos, that the Vice President 9 was marked for identification.)
10 has created since January 20th, 2001, be included as 10 BY MS. WEISMANN:
11 Vice Presidential materials turned over to NARA 11 Q I've handed you a document marked
12 under the Presidential Records Act? 12 Exhibit 3. It comes from a book commonly referred
13 A Will -- just repeat that? Will all of 13 to as the Plum Book. Are you familiar with that
14 the -- 14 book?
15 MS. HONG: Objection; compound. 15 A I am.
16 MS. WEISMANN: The court reporter can read 16 Q And this says it's Appendix Number Five
17 it back. 17 and it's a description of the Office of the Vice
18 - - - 18 President.
19 (Whereupon the following portion of the 19 A Uh-huh.
20 testimony was repeated by the Court Reporter: 20 Q And would you just read for me out loud if
21 QUESTION: Okay. Will all of the 21 you would the first -- if you want to take time to
22 papers, records, notes, recordings, memos, that the 22 read the description first and then let me know when
23 (Pages 86 to 89)
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1 you are ready? 1 Q You can answer.
2 A Is that okay? 2 A He has legislative duties as President of
3 Q Yes. Absolutely. 3 the Senate. That was your question, right, outside
4 A Okay. 4 the Executive Branch?
5 Q Okay. Do you see the first sentence where 5 Q Right, right, right. But if -- if this
6 it says and I'm going to quote: The Vice Presidency 6 definition contained in the Plum Book and advocated
7 is a unique office that is neither a part of the 7 publicly by David Addington is correct, if the Vice
8 executive branch nor a part of the legislative 8 President is not part of the Executive Branch, how
9 branch, but is attached by the Constitution to the 9 do you think he can perform executive functions, as
10 later. 10 you've described them in your declaration?
11 A Uh-huh. 11 MS. HONG: Objection; argumentative.
12 Q Okay. 12 A I wouldn't want to get into the legalese
13 MS. HONG: Yes or no. Just a reminder. 13 of it. I just know he does perform executive duties
14 A Yes. 14 assigned to him by the President.
15 Q Have you seen that language before? 15 Q And you know that because? What's the
16 A I have read this before, yes. 16 basis for your knowledge?
17 Q So this is a description of the Vice 17 A He assigns his staff different
18 Presidency that you are familiar with? 18 assignments, the Vice President does, to carry out
19 A I have read this language before. 19 functions for him as his, as part of his executive
20 Q Okay. And in your reference in your 20 duties.
21 declaration to executive duties and 21 Q And how do you know that the functions
22 responsibilities -- 22 that you as part of his staff have been assigned are
Page 91 Page 93
1 - - - 1 to carry out the President's executive duties?
2 (Discussion off the Record.) 2 MS. HONG: Can you read back --
3 - - - 3 MS. WEISMANN: To assist the Vice
4 BY MS. WEISMANN: 4 President in carrying out the President's executive
5 Q I'm going to strike that question. I'm 5 duties.
6 sorry. I got distracted by the hope of warmth. 6 A That's the way it's been explained to me.
7 Do you agree with this description of the 7 General knowledge.
8 Vice Presidency? 8 Q And is it -- is it an instruction or
9 MS. HONG: Objection; outside the scope. 9 explanation that you get with each assignment?
10 But you can answer. 10 A No.
11 A I have read the language and have seen it 11 Q Why in your declaration did you choose to
12 before. 12 use the word specially to modify the word assigned?
13 Q Are you also aware that David Addington, 13 A I took the advice of counsel.
14 Vice President Cheney's Chief of Staff and Counsel, 14 MS. HONG: Can we go off the record for
15 has stated publicly that the Vice President is not 15 one moment? And if you could just step out for one
16 part of the Executive Branch? 16 moment, Claire?
17 A I am aware of that, yes. 17 MS. WEISMANN: So we are off the record.
18 Q What functions does the Vice President 18 (Witness no longer present.)
19 perform then outside of the Executive Branch? 19 - - -
20 What's your understanding of those functions? 20 (Discussion off the Record.)
21 MS. HONG: Objection to the extent it 21 - - -
22 calls for a legal conclusion. 22 (Witness now present.)
24 (Pages 90 to 93)
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1 1 Q The OVP practices?
2 BY MS. WEISMANN: 2 A Just the guidance that we are all given
3 Q Going back to your declaration that you 3 and the orientation that we are given as new
4 submitted in this case, the one we've been talking 4 employees.
5 about, why did you choose to include the word 5 Q Okay. But with respect to the
6 executive in paragraph five in your description of 6 implementation of that guidance, what knowledge do
7 the functions specially assigned to the Vice 7 you have?
8 President by the President in the discharge of 8 A Just as kind of the overall person
9 executive duties and responsibilities? 9 responsible for making sure people are keeping all
10 A I think just to distinguish that he also 10 their files, so I --
11 has legislative responsibilities. 11 Q Okay. I apologize. I may have missed
12 Q Okay. Is there anyone on the payroll, if 12 this. Is that part of your responsibilities for the
13 you will, or within the budget of the Vice 13 entirety of the OVP?
14 President, be it his budget for his Congressional 14 A In general, yes.
15 office or his OVP, are they separately budgeted? 15 Q Making sure that --
16 Let me ask that. 16 A People are aware of the guidance and the
17 A They are, yes. 17 practices they should be adhering to.
18 Q How many different offices -- 18 Q And how do you carry out that
19 MS. HONG: I'm sorry. Objection; 19 responsibility?
20 misleading on the prior question. 20 A I make sure that when they come on as a
21 Q How many different offices does the Vice 21 new employee they are fully aware of everything they
22 President maintain that each of which has its own 22 do has to be kept as a Presidential record, and if
Page 95 Page 97
1 budget? 1 they have very specific questions on separate
2 A Let me just restate the question. How 2 things, they can always get guidance from the
3 many offices does the Vice President have each of 3 Counsel's Office.
4 which has its own budget? 4 Q And do you communicate that to people who
5 Q Correct. 5 are employed under his legislative budget as well?
6 A He has an executive budget and a 6 A Yes.
7 legislative budget. 7 Q Okay. Are there any other individuals who
8 Q Okay. So there are two camps of offices, 8 are considered or who are working as part of the
9 each with its own budget; his executive office and 9 staff of the Vice President who are not paid for
10 his legislative office? 10 under either of the two budgets you've identified?
11 A He has oversight of two budgets, yes. 11 A Yes.
12 Q Is there any individual who is paid from 12 Q And what would those -- who would those
13 funds under either budget whose papers -- whose 13 individuals be? I don't mean by name, excuse me,
14 records do not fall under the mandates of the 14 but what category of people would that be?
15 Presidential Records Act? 15 A Some are assignees, some are historically
16 A Not from my guidance or the Vice 16 provided. There are individuals who support the
17 President's practices, Vice President's Office 17 Vice President that come, that are paid from
18 practices. 18 different departments, executive agencies.
19 Q When you say practices, what do you have 19 Q And these -- would that include people who
20 personal knowledge of with respect to the Vice 20 come from -- who are on detail?
21 President's Office practices. 21 A The Vice President's office doesn't have
22 A The Vice President's Office? 22 any detailees. This is a little technical. It only
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Page 98 Page 100
1 has assignees. But for practical matters it's the 1 A Yes.
2 same kind of thing, yes. 2 Q And what is the basis for your knowledge
3 Q And these are people who, are they still 3 of that?
4 being paid off of the budget of an executive branch 4 A The interpretation that I have always
5 agency? 5 taken from the guidance and that I know the meaning,
6 A Yes. 6 the guidance that we have been given because it's
7 Q Outside of the EOP? 7 given on a regular basis.
8 A That's correct. 8 Q Right. But your declaration states
9 Q But they are helping and they are part of 9 specifically that what is being, what you intend --
10 the staff of the Vice President? 10 what OVP intends to deposit is everything within its
11 A That's correct. 11 possession, custody or control. And my question is
12 Q And are all of the records that they 12 does that everything within OVP's possession,
13 create as part of the staff, in their assistance of 13 custody and control include all of the Vice
14 the Vice President in OVP considered to be covered 14 Presidential records that have been generated or
15 by the PRA? 15 received during the Vice Presidency of Richard B.
16 A They are, yes. 16 Cheney?
17 Q Okay. In paragraph seven of this 17 A Yes. That's the intention. No --
18 declaration, the September 16th, 2008 declaration, 18 definitely that's the intention. Everything that we
19 you stated, and it's near the bottom of the page, 19 have created, and all the guidance that's been
20 that the OVP intends to deposit with the Archives 20 given, is everything you create keep a file of and
21 the Vice Presidential records of the Vice Presidency 21 turn it over to Records Management to go to the
22 of Richard B. Cheney within its possession, custody 22 Archives.
Page 99 Page 101
1 or control, including those that relate to the 1 Q Okay. But my question does not go to the
2 Constitutional, statutory or other ceremonial duties 2 intent. My question is in your declaration you
3 of the Vice President as President of the Senate by 3 specifically say your intent is to turn over
4 the conclusion of the Vice Presidency of Richard B. 4 everything in the possession, custody or control of
5 Cheney. Do you see that sentence? 5 the OVP. Does the OVP have possession, custody or
6 A I do. 6 control of all of the Vice Presidential records
7 Q Okay. Does this include all of the Vice 7 defined under the PRA that have been created or
8 Presidential records as defined under the 8 generated during the Vice Presidency of Richard B.
9 Presidential Records Act that have been created or 9 Cheney?
10 generated during the Vice Presidency of Richard B. 10 MS. HONG: Objection; asked and answered.
11 Cheney? 11 A To the best of my knowledge.
12 A I believe the answer is yes. If you want 12 Q And that would include all of the records
13 to read it one more time, I just -- it just -- 13 that are in the -- I forget how you defined the
14 Q All right. You stated in your deposition 14 Office of the Vice President himself. Was it his
15 that you were going to be depositing the records 15 personal office?
16 that were within the possession, custody or control 16 A His immediate office.
17 of the OVP. 17 Q His immediate office. Thank you. That
18 A Uh-huh. 18 would include those records?
19 Q And my question is does this include all 19 A Yes, it would.
20 of the Vice Presidential records as defined under 20 Q So those records currently are under the
21 the PRA that have been created or generated during 21 possession, custody or control of the OVP?
22 the Vice Presidency of Richard B. Cheney? 22 A Yes. If they haven't already been sent to
26 (Pages 98 to 101)
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1 the Archives. 1 anything that he has created that is not covered for
2 Q Yes. But if they are still physically 2 us under the PRA.
3 with the Vice President, do you consider them to be 3 Q Have you ever met the Vice President?
4 included within the possession, custody or control 4 A I have.
5 of the OVP? 5 Q Have you -- do you have -- what kind of
6 A Yes, I do. 6 contact do you have with the Vice President in the
7 Q And as I recall -- I don't want to 7 course of your day?
8 misstate. Do you have an understanding of the 8 A I don't see him on a daily basis.
9 status of personal records under the Presidential 9 Q How frequently would you say you see him?
10 Records Act? 10 A I see him twice a week.
11 A I don't recall exactly what it says as a 11 Q And for purposes of managing his records,
12 definition of personal records. I have my -- 12 is there some individual that you deal with for
13 Q Go ahead. 13 purposes of the Vice President's records as distinct
14 A -- own understanding of personal records. 14 from the OVP records?
15 Q And what is that? 15 MS. HONG: Objection; misleading.
16 A Just very limited, like a bank statement 16 A I know that Debbie Heiden, his assistant,
17 or a thank you note for a wedding reception or 17 manages his records.
18 something really personal in your personal life 18 Q What is her name?
19 outside of anything official. 19 A Debbie Heiden is his executive assistant.
20 Q And if a record is personal, what are the 20 Q Is there anyone else that has
21 consequences under the Presidential Records Act? 21 responsibility for managing the records in his
22 A What do you mean by consequences? 22 immediate office?
Page 103 Page 105
1 Q Do you know how that record has to be 1 A There are other people in his office, but
2 treated under the Presidential Records Act? 2 I believe she takes responsibility for all his
3 A I don't know the specific guidance that, 3 records.
4 that's in the Act. I don't know the exact wording 4 Q Okay.
5 of the Act. 5 A I believe. I'm not positive of that. It
6 Q And do you know who makes the 6 may have -- since the beginning she may have kind of
7 determination which of the Vice President's records 7 spread that out a little bit, but I don't know.
8 are personal? 8 Q If some employee of the OVP were not
9 A I believe for all practical purposes 9 complying with their record-keeping obligations
10 everything is considered official. I know he wrote 10 under the PRA, would you be aware of such
11 a note to his daughters when the President was sick; 11 non-compliance?
12 I believe that's official. Everything he does. I 12 MS. HONG: Objection; vague.
13 mean if he may have written a note to one of his 13 A I don't know what I don't know. So I
14 grandchildren at one point in time, I don't know. 14 guess not.
15 Q But you can think of no records -- I don't 15 Q You have identified, I believe -- what are
16 want to mischaracterize your testimony, so let me 16 the different offices that the Vice President
17 ask. Can you think of any record that the Vice 17 maintains?
18 President has created during his tenure as Vice 18 MS. HONG: Objection; asked and answered,
19 President that he has created in any capacity that 19 and vague.
20 you believe would be considered a personal record 20 A The different offices he maintains? He
21 and a personal record under the PRA? 21 himself?
22 A I don't have any firsthand knowledge of 22 Q Yes.
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1 A He is President of the Senate. 1 Q Yes.
2 Q Yes. 2 A Well, he has an office in the Senate
3 A And he is Vice President. 3 Building.
4 Q Are you aware that he has another office 4 Q Yes.
5 in Congress on the House side? 5 A The Old Executive Office Building is a
6 A I don't believe he has it anymore. He had 6 ceremonial office, just a big office that's called
7 space up there, but he doesn't have any office 7 the Vice President's Ceremonial Office; his Vice
8 space -- he doesn't have that space anymore. 8 Presidential Office in the West Wing. I know he has
9 Q Do you know when he stopped using that 9 a little office at the residence. I don't think
10 office space? 10 he -- that's it I believe.
11 MS. HONG: Objection; misstates the 11 Q And does he have a personal residence that
12 testimony. 12 he had before he became Vice President?
13 A I believe in 2006 we lost it. 13 A He has a house in Jacksonville.
14 Q Okay. What was the period of time for 14 Q But not one in the Washington, D.C. area?
15 which that space was assigned to the Vice President? 15 A Not a personal residence. They are in the
16 Do you know? 16 midst of getting one I believe.
17 A He got it in January 2001 and kept it 17 Q And do you know whether he maintains any
18 until probably November 2006. 18 records in his Wyoming office?
19 Q And do you know what functions he 19 A I'm not aware.
20 performed in that space? 20 MS. HONG: Objection; misstates the
21 A Not specifically. 21 testimony. Can you read back that last question?
22 Q Do you know if he created any records that 22 - - -
Page 107 Page 109
1 were maintained in that space? 1 (Whereupon the following portion of the
2 A Not that I'm aware of. I've never been 2 testimony was repeated by the Court Reporter:
3 with him up on the House floor or in the House 3 QUESTION: And do you know whether he
4 office. 4 maintains any records in his Wyoming office?)
5 Q Does the Vice President maintain records 5 - - -
6 at his -- at the Vice President's residence? 6 MS. HONG: Yeah. Object. Same objection.
7 A I know he has an office at the Vice 7 MS. WEISMANN: You made it twice.
8 President's residence, a separate office there. 8 BY MS. WEISMANN:
9 Q And do you know whether he maintains 9 Q You are part of the Office of the Vice
10 records there? 10 President; is that correct?
11 A I believe there is a -- I'm sure he does. 11 A That's correct.
12 I believe there is a file cabinet in that -- but I 12 Q Your office is. Is the Office of the Vice
13 haven't been in that office in a while, so they may 13 President part of the Executive Office of the
14 have moved it out. At one point in time there was a 14 President?
15 small file cabinet there. 15 MS. HONG: Objection; calls for a legal
16 Q And let me preface this by saying if there 16 conclusion.
17 is any sensitive or classified information that 17 Q Organizationally is the Office of the Vice
18 would be responsive to this question, we are 18 President located within the Executive Office of the
19 certainly not interested in it. But does the Vice 19 President?
20 President have offices and space at any other 20 A It's --
21 locations that you haven't identified? 21 MS. HONG: Same objection.
22 A The Vice President himself? 22 A It's located -- the Vice President's staff
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1 all has space on the second floor of the Old 1 one more question before we take a lunch break,
2 Executive Office Building. 2 though.
3 Q Okay. My question, maybe it was not clear 3 Okay. Let's -- should we come back at --
4 enough. I'm not asking physically where you are 4 let's be realistic and say 1:30, but really try to
5 located. If you look at an organizational chart and 5 be back and go at 1:30.
6 you have the Executive Office of the President as an 6 MS. HONG: You said be back at 1:30?
7 umbrella and you think about the different 7 MS. WEISMANN: No. Last time we said 45
8 components that are under EOP, such as the Office of 8 minutes and it really was more like an hour before
9 Administration and the Council on Environmental 9 we got going, so if we say an hour, can we do our
10 Quality and the like, is the OVP part, structurally 10 best to --
11 part of that umbrella? 11 MS. HONG: Gotcha. And I think -- yeah.
12 MS. HONG: Objection; calls for a legal 12 1:15 is probably.
13 conclusion and it's outside the scope of this 13 MS. WEISMANN: Right. But we will say
14 litigation. 14 1:30. We can say 1:15 with the expectation it will
15 BY MS. WEISMANN: 15 be 1:30.
16 Q You may answer. 16 - - -
17 A It shows on the page, but there is no line 17 (Recessed at 12:26 p.m.)
18 connecting it. All the other boxes have lines 18 (Reconvened at 1:30 p.m.)
19 connecting them. But I believe for information 19 - - -
20 purposes it does show that so that people can see 20 BY MS. WEISMANN:
21 there is an Office of the Vice President. 21 Q Back on the record. Ms. O'Donnell, what
22 Q But what is your understanding about 22 is -- you have two current titles, do you not?
Page 111 Page 113
1 whether or not the OVP is part of the EOP? 1 A I do.
2 MS. HONG: Objection; asked and answered. 2 Q And one is Assistant to the Vice
3 A I know legally we are not considered to be 3 President?
4 part of the Executive Office of the President. And 4 A It's one title, but they are --
5 for a practical matter, I operate basically that we 5 Q Okay. Just for clarity sake, why don't
6 are. 6 you tell me what those two titles are?
7 Q And what's the basis of your understanding 7 A It's one title. It's Assistant to the
8 that legally you are not part of the EOP? 8 Vice President and Deputy Chief of Staff.
9 MS. HONG: And I caution the witness not 9 Q It has two components, but it's one title?
10 to reveal the substance of any attorney/client 10 A Right.
11 privileged communications. 11 Q Within the OVP are there any other
12 A I have certainly heard it a fair amount. 12 Assistants to the Vice President?
13 MS. HONG: Anne, do you think that you 13 A Yes.
14 will be taking a break any time soon for lunch or -- 14 Q And how many?
15 MS. WEISMANN: It's really -- we can 15 A Maybe eleven.
16 decide now when we want to take. I don't mean to be 16 Q And within the OVP are there other Deputy
17 dictatorial. Is this a good time to take a break? 17 Chiefs of Staff?
18 It's fine with me. 18 A No.
19 MR. TYLER: Do you know how much you have 19 Q And so you are the only Deputy Chief of
20 left? 20 Staff; is that correct?
21 MS. WEISMANN: I have a good bit. I'm not 21 A That's correct.
22 making any promises on time. I do want to just ask 22 Q Okay.
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1 A Do you need that number to be exact on the 1 they don't come back to the OVP before being
2 Assistants to the Vice President? 2 transferred to NARA?
3 Q If you want to take some time. 3 A No.
4 A Okay. I just -- I should know this. I'm 4 MS. HONG: Objection; vague.
5 sorry. There are only eight. 5 Q Okay. Do you understand that you have any
6 Q Eight. Okay. 6 discretion to determine that a record within the
7 A Sorry. 7 Office of the Vice President is not subject to the
8 Q And what -- how often do you have, in the 8 Presidential Records Act?
9 course of your duties, do you have contact with 9 A I have discretion over my own records on
10 David Addington as his deputy? 10 something that may be personal, but, for myself, and
11 A How often do I have? 11 if somebody comes and says, you know, I got this
12 Q Yes. 12 Christmas card, I would advise them to the best of
13 A On a regular basis, on a daily, regular 13 my ability.
14 basis. 14 Q Okay. But your understanding, and correct
15 Q And are there any responsibilities that 15 me if I'm wrong, is that your discretion extends to
16 you have that David Addington also shares? 16 your records only?
17 A Yes. 17 MS. HONG: Objection.
18 Q And what would those be? 18 Q Is that --
19 A Oversight of the office. I mean he is the 19 A That's correct. If they needed further
20 ultimate person held responsible, but, you know, so 20 guidance and I wasn't sure whether something was
21 everything I do he is responsible for. 21 clearly not a Presidential record, I would send them
22 Q Who manages the electronic records that 22 to counsel.
Page 115 Page 117
1 the Vice President or the Office of the Vice 1 Q Okay. And do you understand that you have
2 President generate? 2 discretion to tell another OVP employee who comes to
3 A The Office of Administration. 3 you for guidance that a specific record is or is not
4 Q Does your office -- do you have any 4 covered by the PRA?
5 responsibility over electronic records for purposes 5 A I do have that ability.
6 of the Presidential Records Act? 6 Q Okay. Is there anyone above you in the
7 A Other than making sure everybody is aware 7 organizational chain within OVP who has the
8 of the documents they create on their computers, 8 discretion to reverse your determination that a
9 they are Presidential records, I don't have direct 9 particular record or class of records is subject to
10 responsibility over the systems, the electronic 10 the PRA?
11 systems. 11 MS. HONG: Objection; vague.
12 Q And to the extent that electronic records 12 A I always defer to counsel. Counsel always
13 are retired as paper records are, who would have 13 overrides my discretion, if I --
14 responsibility for that process? 14 Q Okay. And would David Addington as Chief
15 A The Office of Administration has all the 15 of Staff have the discretion to override a
16 electronic records, the disks and things. 16 determination that you might have made about the
17 Q Okay. And -- 17 coverage of the Presidential Records Act to a
18 A If there are disks. I don't know how they 18 particular record or class of records?
19 are actually managed and retired. 19 MS. HONG: Objection; vague.
20 Q But those are not -- to the extent that 20 A I wouldn't send anybody with a question to
21 the Office of Administration has electronic records 21 David Addington. I would send them to counsel. And
22 that would be considered Vice Presidential records, 22 how he and counsel operates, I would assume they
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1 would agree. 1 argue with the Presidential Records Act.
2 Q Okay. But my question, and maybe it 2 Q But in the implementation of that Act do
3 wasn't clear enough, did not go to who you would 3 you believe -- do you understand that as Chief of
4 send with a question. It was does David Addington 4 Staff he has the discretion to reverse an initial
5 have the discretion to reverse a determination you 5 determination that someone has made that a record is
6 may have made as to whether or not a particular 6 or is not covered by the Act?
7 record or class of records is covered by the PRA? 7 MS. HONG: Objection; vague, assumes facts
8 MS. HONG: Objection; there is compound, I 8 not in evidence and asked and answered.
9 don't know that she has testified about classes of 9 MS. WEISMANN: You know, I think every
10 records yet, and it's vague. 10 time I get to a question you don't like, you insert
11 A I was going to say there are no real 11 a vagueness objection and that's highly improper.
12 classes of records, also. There are strictly like 12 MS. HONG: For the record, that is not
13 cards or thank you notes that, you know, bank 13 when I object. I object for vagueness when a
14 statements that may be personal that are personal. 14 question is vague.
15 Otherwise, I know that the office policy is 15 MS. WEISMANN: All right. The record will
16 everything is -- 16 reflect.
17 Q Okay. But you are not -- 17 A I don't -- I think the answer is no,
18 MR. TYLER: Let her finish. 18 because he doesn't put out the guidelines. The
19 MS. HONG: Let her finish her response. 19 Counsel to the President has put out written
20 MS. WEISMANN: No. She is not answering 20 guidelines on what's a Presidential record.
21 my question. 21 Q And those guidelines are the memorandum --
22 MS. HONG: Maybe not the way you want it 22 the one memorandum you referred to earlier.
Page 119 Page 121
1 answered, but let her finish her response, please. 1 A That's correct. Well, there are two. One
2 MS. WEISMANN: And, John, I think you have 2 was under Judge Gonzales and the other was under
3 been warned by the judge that only one lawyer is 3 Harriett Meyers.
4 defending the deposition, so I would ask you not to 4 Q Perhaps I'm misremembering. I did not
5 interfere again, please. 5 recall that you had identified a second memorandum.
6 MS. HONG: Ms. O'Donnell, you can finish 6 So let's talk about that one.
7 your response if you have something more. 7 What -- explain to me what that guidance
8 BY MS. WEISMANN: 8 was.
9 Q Is there something more you want to add to 9 A It just came out. It's guidance on
10 your response? 10 Presidential records.
11 A That it's the general policy everything is 11 Q Okay. Does it apply to the Office of the
12 a Presidential record. 12 Vice President?
13 Q I understand that. But listen. The 13 A Yes, it does.
14 question I'm asking does not go to the general 14 Q Okay. And it was issued by Harriett
15 policy. My question is does David Addington as 15 Meyers?
16 Chief of Staff have the discretion in your 16 A That's correct.
17 understanding, does he have the discretion to 17 Q Do you recall the date that it was issued?
18 determine that a particular record that has been 18 A I want to say it was -- I don't recall
19 deemed covered by the Presidential Records Act is 19 exactly. It was when Harriett replaced Judge
20 not? 20 Gonzales.
21 MS. HONG: Objection; vague. 21 Q Did it -- did she issue it shortly after
22 A I don't think he has the discretion to 22 becoming --
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1 A I believe -- 1 A That we were all under the same, all had
2 Q -- White House Counsel? 2 the same responsibilities; to maintain our records
3 MS. HONG: Please wait for Anne, or excuse 3 as Presidential documents.
4 me, Ms. Weismann to finish the question before you 4 Q And do you remember anything more
5 respond. 5 specifically from the memo?
6 A Did she issue it shortly after she was 6 A No.
7 made Counsel? 7 Q And as a result of receiving Harriett
8 Q Yes. 8 Meyers's memo, did you change the practices or
9 A I believe so. Yes. 9 policies of the Office of the Vice President with
10 Q And would -- just so that we have a clear 10 respect to Vice Presidential records?
11 record, by shortly thereafter, would it have been a 11 A No.
12 matter of a month or two? 12 Q And as a result of receiving Judge
13 A That would be my guess, but I don't know 13 Gonzales's memo, did you change the policies or
14 exactly. 14 practices of the OVP with respect to Vice
15 Q Within -- would it -- would it be fair to 15 Presidential records?
16 say that your recollection is that it was issued 16 A No.
17 within a few months of her becoming White House 17 Q Okay. Are there any other written
18 Counsel? 18 guidelines or memoranda that you can now recall
19 A Yes. 19 receiving other than the two you've identified; one
20 Q Okay. And what was the subject of the 20 from Judge Gonzales and one from Harriett Meyers?
21 memo? 21 A No.
22 A Records management. 22 MS. HONG: Objection; asked and answered.
Page 123 Page 125
1 Q And to whom was it addressed? 1 MS. WEISMANN: I'm probing her memory.
2 A All staff, I believe. I have not seen 2 BY MS. WEISMANN:
3 this memo in a long time. I just remember that when 3 Q Are there any?
4 Harriett was made Counsel, she put out something 4 A No.
5 similar to what Judge Gonzales had put out. 5 Q Okay. So you do not recall receiving any
6 Q And do you recall if there were any 6 memo from Fred Fielding?
7 differences between the guidance she offered and 7 MS. HONG: Objection; asked and answered.
8 Judge Gonzales offered? 8 A No.
9 A I don't believe there was, but again I 9 Q And in light of the upcoming transition,
10 haven't seen either of these memos. I'm just -- 10 have you received any additional guidance specific
11 it's just a memory. 11 as to how for PRA purposes records are to be
12 Q Right. Were you provided copied of each 12 handled?
13 of these memos? 13 A I have -- in staff meetings we have been
14 A Yes. Everybody on the complex was given 14 verbally reminded that we need to get our files in
15 memos. 15 order, cataloged, boxed up and ready to go, that we
16 Q Okay. And do you still have copies of 16 shouldn't be waiting until the last minute to do all
17 these two memos? 17 this.
18 A I believe they have been archived simply 18 Q And who gave you that guidance?
19 for space reasons. 19 A It was given in our staff meetings, our
20 Q Okay. And what is your recollection of 20 senior staff meetings.
21 the guidance that White House Counsel Meyers offered 21 Q By which individual?
22 as it applies to Vice Presidential records? 22 MS. HONG: Can you let her finish her
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1 answer before you ask another question, please? 1 A No.
2 MS. WEISMANN: I apologize. Sometimes I 2 Q And --
3 think you are done and you are not. 3 A I looked at my Blackberry, but no
4 A David Addington conducts our staff 4 documents.
5 meetings and the counsel also reminds us on a 5 Q No. I'm sorry. Excluding your
6 regular basis, don't wait until the last minute. 6 Blackberry?
7 Q And did any of this guidance come directly 7 A No.
8 from David Addington? 8 Q And did you have any discussions relating
9 A Verbally, yes. 9 to the content of your deposition?
10 Q Okay. If the Vice President maintains a 10 A I did not.
11 diary, is he required to turn that over to NARA as a 11 Q Is it your understanding that if a
12 record covered under the Presidential Records Act? 12 document is covered by the PRA, that is, it falls
13 MS. HONG: Objection; vague. 13 within the definition of Vice Presidential record,
14 A I don't know if he maintains a diary. 14 that it has to be preserved?
15 Q I know. But if, to the extent that he 15 A Yes. I believe I understood the question.
16 does, is he required to turn it over? 16 Say that question again, I'm sorry.
17 MS. HONG: Objection; vague. 17 Q Okay. If a document is covered by the
18 A I don't know. It depends on the content 18 PRA, and by that I mean if a document is Vice
19 of the diary. I don't know enough about what you 19 Presidential, if it meets the definition of Vice
20 are asking I guess. 20 Presidential, of a Vice Presidential record within
21 Q Okay. So diaries as a category is not a 21 the meaning of the PRA, is it your understanding
22 record that you can say one way or the other that it 22 that that document then has to be preserved?
Page 127 Page 129
1 needs to be turned over to the Archives under the 1 A Yes.
2 Presidential Records Act? Is that your testimony? 2 Q Are you aware that Vice President Cheney
3 A I couldn't advise somebody about whether 3 attended and participated in meetings of the
4 they should hand over their diary. I would assume 4 Principles Committee?
5 in most cases it was personal, but if they got into, 5 A I know that there are meetings at the
6 you know, things they did at the office or meetings 6 White House called Principles Meetings. I believe
7 they had, I would send them to counsel to get 7 they are in different areas, too. I believe
8 further guidance. 8 domestic policy has some.
9 Q But if it's the diary of the Vice 9 Q To the extent that there is a Principles
10 President, does that change your view in any way 10 Meetings concerning foreign policy, are you aware
11 about whether or not it has to be maintained under 11 that Vice President Cheney attended, that he
12 the Presidential Records Act? 12 actually chaired the Principles Team that met on
13 MS. HONG: Objection; vague, asked and 13 foreign policy?
14 answered. 14 A I'm not aware of that.
15 A Again, I would want to know more what was 15 Q Okay. To the extent that as part of his
16 in the diary. If it's about, you know, his 16 participation in any Principles Committee meetings
17 grandchildren or Thanksgiving dinner, or, you know, 17 Vice President Cheney created or generated or
18 a walk with his wife or, you know, his pets, he is 18 received any memos or other papers, would they be
19 very close to his dogs; I would just have to know 19 treated as covered by the PRA?
20 the content of it. 20 A I believe so.
21 Q During the lunch break did you look at any 21 Q And what is the basis of your knowledge
22 documents? 22 for that?
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1 A The general guidance of any document that 1 Meetings, would those records be covered by the
2 is created or received in our capacities to support 2 Presidential Records Act?
3 the Vice President and in his capacity and his 3 A That's the guidance we have given out,
4 executive responsibilities, would be covered under 4 yes.
5 the PRA. 5 Q And do you have any personal knowledge
6 Q And when you say general guidance, you are 6 whether any such records are in fact be preserved?
7 referring to the memoranda you've identified? 7 A I do.
8 A Correct. 8 Q What is the basis for your knowledge.
9 Q And whatever other oral guidance you have 9 A By the legislative staff asking when they
10 been given? 10 got here. Now, Margaret is our new legislative
11 A That's correct. 11 person, is knew, and I remember very specifically
12 Q Okay. To the extent that Vice President 12 because she is relatively knew, I don't remember all
13 Cheney generates any notes, agendas, memos or other 13 my conversations back to the beginning, but asking
14 papers as a result of his participation in the 14 if we should keep these, and the answer was yes.
15 Wednesday Economic Team Meetings, would those 15 Should we keep documents prepared for him for the
16 documents be covered by the Presidential Records 16 lunch? The answer was yes.
17 Act? 17 Q And do you know whether or not your
18 MS. HONG: Objection; vague and compound. 18 guidance was followed?
19 A If he is creating documents or receiving 19 A I trust that it is. I don't have personal
20 documents for a luncheon or a meeting, my assumption 20 knowledge of her boxing up those files.
21 is they would be covered under the Presidential 21 Q To the extent that Vice President Cheney
22 Records Act. 22 has generated papers or other records resulting from
Page 131 Page 133
1 Q To the extent that Vice President Cheney 1 his so-called kitchenette cabinet of outside
2 generates or receives any records or documents 2 economists, would those be covered by the
3 resulting from his participation in the National 3 Presidential Records Act?
4 Economic Council, would those be treated as covered 4 MS. HONG: Objection; vague and compound.
5 by the Presidential Records Act? 5 A I'm -- that's the first I've heard of the
6 MS. HONG: Objection; vague and compound. 6 kitchen cabinet. So I'm not aware of that.
7 You can answer the question, if you understand. 7 Q To the extent that Vice President Cheney
8 A I believe so, yes. 8 or the OVP generated any records relating to the
9 Q And what is the basis for your knowledge? 9 Energy Task Force that he chaired -- by he I mean
10 A The same that I've repeated. It's general 10 Vice President Cheney -- would those be covered by
11 guidance and written guidance we've been given. 11 the Presidential Records Act?
12 Q Do you know for a fact -- do you have 12 A Yes.
13 personal knowledge that in fact those documents are 13 Q And what is the basis for your knowledge?
14 being preserved? 14 A When the -- that's more firsthand, because
15 MS. HONG: Assumes facts not in evidence. 15 when the Energy Task Force was housed in our space,
16 Objection. 16 they did -- they were -- the Energy Task Force ended
17 A I don't have personal knowledge, no. I 17 and many of the files and boxes were left in an
18 don't have personal knowledge of those documents. I 18 office in our space that we kept locked because we
19 know that in general documents are kept. 19 just didn't have time to make sure they were all
20 Q To the extent Vice President Cheney 20 cataloged properly.
21 receives or generates any records resulting from his 21 Q And ultimately were they treated as
22 attendance at weekly Senate Republicans Caucus 22 covered under the Presidential Records Act?
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1 A Yes. Absolutely. 1 A Okay.
2 Q And do you know how complete that 2 Q -- rather than have you? I'm trying to
3 collection of records was? 3 help you.
4 MS. HONG: Objection; vague. 4 When David Addington prepared a memo or an
5 A I believe it was very complete. 5 order that had the effect of stripping foreign
6 MS. WEISMANN: Can you read back her 6 terrorist suspects of access to courts and allowing
7 answer not to this past question, but the question 7 them to be tried in military commissions, would any
8 before? 8 records generated by him as part of that process be
9 - - - 9 covered by the Presidential Records Act?
10 (Whereupon the following portion of the 10 MS. HONG: Objection. Same objections as
11 testimony was repeated by the Court Reporter: 11 before.
12 ANSWER: When the -- that's more 12 A I'm not aware of that specific area. I
13 firsthand, because when the Energy Task Force was 13 know that, again, in general everything that is
14 housed in our space, they did -- they were -- the 14 prepared by any staff member for the Vice President
15 Energy Task Force ended and many of the files and 15 or by the Vice President is considered a
16 boxes were left in an office in our space that we 16 Presidential record.
17 kept locked because we just didn't have time to make 17 Q David Addington has two titles, does he
18 sure they were all cataloged properly.) 18 not?
19 - - - 19 A He has one title. It's a compound title I
20 BY MS. WEISMANN: 20 believe, but it's one title.
21 Q Do you know if there were files that were 21 Q And the title is?
22 not kept -- that were not kept or left behind in 22 A Chief of Staff to the Vice President and
Page 135 Page 137
1 that office that pertained to the task force? 1 Counsel.
2 A I don't believe there were. 2 Q And he is not an Assistant to the
3 Q And what is the basis for your knowledge? 3 President in addition?
4 A Because some of the -- they had exit 4 A He is. I'm sorry. He is an Assistant to
5 interviews with me and I would say before they went 5 the President.
6 to have an exit interview with our counsel, do we 6 Q And in the -- because he serves both the
7 have all your records and has everything been left 7 President and the Vice President, when he -- how is
8 in boxes. That was early on, so I really had more 8 the decision made whether his records are Vice
9 hands-on at that time to make sure that things were 9 Presidential or Presidential? Do you know?
10 being done. 10 A He is an employee of the Vice President.
11 Q To the extent that David Addington 11 But the distinction is, really doesn't have anything
12 generated records that as part of his process of 12 to do with it, because they are all Presidential,
13 preparing an order relating to how foreign 13 kept under the Presidential Records Act. We are all
14 terrorists were going to be tried by military 14 given the same guidance; the President's staff and
15 commissions, would those records be covered by the 15 the Vice President's staff, it's the same guidance.
16 Presidential Records Act? 16 Q But do you know whether or not any records
17 MS. HONG: Objection; vague, assumes facts 17 he generates in fulfillment of his function as
18 not in evidence and compound. 18 Assistant to the President are handled by an office
19 A Can I just summarize your question? 19 other than OVP?
20 Q Uh-huh. 20 MS. HONG: Objection; assumes facts not in
21 A When David Addington prepared -- 21 evidence.
22 Q Do you want me to repeat the question -- 22 A I believe they are not handled by any
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1 other office. They are handled in our office. 1 A The guidance that the staff that we trust
2 Q To the extent that the Vice President or 2 has been given.
3 any of his staff generated records relating to the 3 Q Are all records relating to the Vice
4 decision to place detainees at Guantanamo Bay, would 4 President's and the OVP's contact with the National
5 those records be covered by the PRA as Vice 5 Academy of Sciences being preserved as covered
6 Presidential records? 6 records under the Presidential Records Act?
7 MS. HONG: Objection; vague, assumes facts 7 MS. HONG: Objection; vague.
8 not in evidence. 8 A I believe the answer is yes. I believe
9 A Yes. 9 all documents, all documents in the Vice President's
10 Q And what's the basis for your knowledge? 10 Office, created or received by the Vice President or
11 A It's the general knowledge we've spoken 11 the Vice President's staff are being kept under the
12 about. 12 Presidential Records Act.
13 Q By general knowledge you mean the general 13 Q But as to this specific subset of records,
14 guidance that you have received? 14 do you have any personal knowledge whether or not
15 A That's correct. 15 they are being preserved under the Presidential
16 Q Okay. To the extent that the Vice 16 Records Act?
17 President received blind copies of memos that were 17 A I don't have specific knowledge about
18 intended for others within the EOP but outside the 18 those particular papers.
19 Office of the Vice President, would those blind 19 Q To the extent that the Vice President and
20 copies be considered Vice Presidential records and 20 his staff generated records regarding the 2002
21 treated as covered under the Presidential Records 21 allocation of water from the Klamath River and the
22 Act? 22 reason for the reallocation, would those records --
Page 139 Page 141
1 MS. HONG: Objection; vague, assumes facts 1 are those records being preserved as covered records
2 not in evidence. 2 understand the Presidential Records Act?
3 A I'm not aware of any memos he receives 3 MS. HONG: Objection; vague and compound.
4 blind copies of. 4 A To the best of my knowledge, like all
5 Q To the extent Vice President Cheney or any 5 other records, if records have been prepared for the
6 of his staff generated records regarding the Arsenic 6 Vice President, they are being kept under the
7 Rule and the Clean Water Act, would they be treated 7 Presidential Records Act.
8 as Vice Presidential records covered under the 8 Q Do you have any personal knowledge as to
9 Presidential Records Act? 9 this specific subset of records?
10 MS. HONG: Objection; vague. 10 A I do not.
11 A I believe so. 11 Q To the extent that the Vice President and
12 Q And what is the basis for your knowledge? 12 any of his staff generated records regarding
13 A The same I stated. Anything that the, is 13 meetings of the Vice President and his staff with
14 prepared or received by the Vice President for or, 14 Iranian exiles, are those records being treated as
15 received by the Vice President or staff. 15 covered under the Presidential Records Act?
16 Q And do you know whether in fact those 16 MS. HONG: Objection; vague and compound.
17 records are being preserved under the Presidential 17 A I believe all records prepared for the
18 Records Act? 18 Vice President are being kept under the Presidential
19 A If they have been created by the Vice 19 Records Act.
20 President's staff, I believe they are being 20 Q And what is the basis for your belief?
21 preserved. 21 A The guidance that the staff has been
22 Q What is the basis for your belief? 22 given.
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1 Q And do you have any personal knowledge 1 treated as covered under the PRA?
2 about this particular subset of records? 2 A I do not.
3 A I do not. 3 MS. HONG: Objection; assumes facts not in
4 MS. HONG: Objection; assumes facts not in 4 evidence.
5 evidence. 5 Q To the extent that the Vice President and
6 Q To the extent that the Vice President and 6 the Office of the Vice President have generated
7 his staff in the OVP have generated records 7 records concerning their communications with the
8 regarding or stemming from meetings of the Budget 8 FISA Court or records pertaining to the FISA Court,
9 Review Board, are they being preserved as covered 9 are those covered records under the Presidential
10 records under the Presidential Records Act? 10 Records Act?
11 MS. HONG: Objection; vague and compound. 11 MS. HONG: Objection; vague, compound.
12 A I believe so. 12 A I believe so.
13 Q And what is the basis for your belief? 13 Q And what is the basis for your belief?
14 A General guidance that's been given. 14 A Again, knowledge that the staff has been
15 Q Do you have any personal knowledge about 15 given guidance.
16 this specific subset of records? 16 Q Do you have any personal knowledge about
17 A No, I don't. 17 this particular subset of records?
18 Q Are all of the documents and records that 18 A I do not.
19 are contained in the vaults in EEOB268, which I 19 MS. HONG: Objection; assumes facts not in
20 believe is David Addington's office, being treated 20 evidence. Just give me time. Thank you.
21 as covered by the Presidential Records Act as Vice 21 BY MS. WEISMANN:
22 Presidential records? 22 Q To the extent that the Vice President or
Page 143 Page 145
1 MS. HONG: Objection; assumes facts not in 1 anyone within the Office of the Vice President has
2 evidence and vague. 2 received internal memos regarding National Security
3 A I believe he is keeping all his documents 3 Council meetings, are those documents treated as
4 and considers them Presidential records. 4 covered records -- Vice Presidential records under
5 Q And what is the basis for your belief? 5 the PRA?
6 A The guidance he has been given. 6 MS. HONG: Objection; compound.
7 Q Do you have any more specific knowledge as 7 A Again, all records are considered covered
8 to David Addington's, records that David Addington 8 under the PRA.
9 has generated? 9 Q Do you have any personal knowledge about
10 A I do not. 10 this subset of records?
11 Q To the extent that David Addington has or 11 A I do not.
12 any of his staff have generated records concerning 12 Q To the extent there are any records of
13 the so-called President's program which gives 13 communications between Defense Intelligence Agency
14 strategic direction on wiretapping, would those -- 14 employee Colonel Derick Harvey and anyone within the
15 are those records being preserved as covered records 15 OVP, including the Vice President, would those
16 under the Presidential Records Act? 16 records be treated as covered by the Presidential
17 MS. HONG: Objection; vague and compound. 17 Records Act?
18 A If they have been created for the Vice 18 MS. HONG: Objection; vague and compound.
19 President or by his staff, they are being kept to 19 A I have never heard of General Derick
20 the best of my knowledge. 20 Harvey.
21 Q And do you have any personal knowledge 21 Q Do you have any -- so -- do you have
22 whether this particular subset of records is being 22 any --
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1 A So I have no personal knowledge. 1 called Treated as Secret/SCI, would those records be
2 Q -- knowledge about this subset of records? 2 covered by the Presidential Records Act?
3 MS. HONG: Object; assumes facts not in 3 MS. HONG: Objection; vague and compound.
4 evidence. 4 A I believe so.
5 Q To the extent that David Addington 5 Q Do you have any personal knowledge about
6 generated records regarding his preparation or 6 this specific subset of records?
7 assistance in the preparation of the President's 7 MS. HONG: Objection; assumes facts not in
8 February 2nd, 2002 directive concerning the Geneva 8 evidence.
9 Principles, would those records be treated as 9 A I do not.
10 covered by the PRA? 10 Q And what is your, the basis for your
11 MS. HONG: Objection; vague and compound. 11 belief that they are being preserved and treated as
12 A I believe so. 12 covered by the PRA?
13 Q And do you have any personal knowledge 13 A The staff -- the advice and process that
14 about this subset of records? 14 the staff has been told.
15 MS. HONG: Objection; assumes facts not in 15 Q Are all records that anyone within the
16 evidence. 16 OVP, including the Vice President, have received and
17 A I do not. 17 that are stamped Secret/SCI treated as Vice
18 Q If the memo that was drafted by Pentagon 18 Presidential records covered by the PRA?
19 employee Mat Waxman, which proposed that Common 19 MS. HONG: Objection; compound.
20 Article 3 of the Geneva Convention be incorporated 20 A I believe so.
21 into military rules being preserved as a Vice 21 Q And what is the basis for your belief?
22 Presidential record under the PRA? 22 A The guidance that the staff has been given
Page 147 Page 149
1 MS. HONG: Objection; foundation, vague, 1 that all documents are to be kept as Presidential
2 assumes facts not in evidence. 2 records.
3 A I have never heard of that fellow. 3 Q Do you have any personal knowledge about
4 Q So you have no personal knowledge? 4 this specific subset of records?
5 A That's correct. 5 MS. HONG: Objection; assumes facts not in
6 Q To the extent that David Addington or his 6 evidence.
7 staff generated records regarding the drafting of 7 A I do not.
8 Executive Order 13233, would those records be 8 Q As part of your responsibilities within
9 covered as Vice Presidential records under the PRA? 9 the OVP, do you have responsibility for classified
10 MS. HONG: Objection; compound and vague. 10 records?
11 A To the best of my knowledge, anything 11 A No. Not specific responsibility.
12 that's prepared by the Vice President's staff is 12 Q And for purposes of complying with the
13 being kept as a Presidential record. 13 Presidential Records Act, who handles -- who handles
14 Q Do you have any personal knowledge about 14 or has responsibility for the classified records of
15 this particular subset of records? 15 the OVP?
16 A I do not. 16 A The individuals that are in receipt of the
17 MS. HONG: Objection; assumes facts not in 17 classified documents, in receipt or author,
18 evidence. 18 authoring the classified documents.
19 BY MS. WEISMANN: 19 Q To the extent that David Addington or his
20 Q To the extent that there are records 20 staff generated records relating to his efforts to
21 generated or created by anyone within the OVP 21 remove William Leonard from his position as Director
22 regarding a classification system the OVP used 22 of the Information Security Oversight Office at the
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1 National Archives, would those documents be covered 1 Q And what is the basis for your knowledge?
2 under the PRA as Vice Presidential records? 2 A The guidance that staff has been given.
3 MS. HONG: Objection; vague, compound, 3 Q To the extent that the Vice President or
4 assumes facts not in evidence. 4 OVP staff participate in video conferences, do those
5 A I don't recall hearing about that fellow. 5 generate records that are covered under the
6 Q So you have no personal knowledge about 6 Presidential Records Act?
7 this subset of records? 7 A The actual tape?
8 A That's correct. 8 Q Yes.
9 MS. HONG: Objection; assumes facts not in 9 A Actually, I'm not sure. I don't know the
10 evidence. You can answer. Or was there an answer? 10 answer to that question.
11 Q Are all appointment books for the Vice 11 Q Is all the data that was on any computer
12 President preserved as covered records under the 12 used by either the Vice President or any of the OVP
13 PRA? 13 staff and then retired treated as covered by the
14 MS. HONG: Objection; vague. 14 Presidential Records Act?
15 A What do you mean by appointment books? 15 MS. HONG: Objection; vague and compound.
16 Q To the extent that there is a recording of 16 A Any of the electronic data on computers
17 the appointments that the Vice President has in a 17 by, used by the Vice President or his staff?
18 book, is such a book treated as covered under the 18 Q Yes. For those computers that were
19 Presidential Records Act? 19 ultimately retired.
20 A I don't know of any book. I know he has a 20 A Uh-huh. They are considered. They are
21 scheduling office and their records are all kept. 21 kept for the Presidential Records Act.
22 Q To the extent that any other employee of 22 Q When you say they, what are you referring
Page 151 Page 153
1 the OVP creates records reflecting their 1 to?
2 appointments as part of their jobs at the OVP, are 2 A The data in it.
3 those records preserved under the Presidential 3 Q In what form are they preserved?
4 Records Act? 4 MS. HONG: This is outside the scope. But
5 A If an employee of the Office of the Vice 5 you can answer if you know.
6 President keeps records that have to do with the 6 A I believe they are, the box of their
7 Vice President's executive or legislative duties, 7 computer is kept.
8 they are kept for the PRA. 8 Q As a Vice Presidential record?
9 Q Okay. My question was a little more 9 A That's correct.
10 specific and I'm sorry if I wasn't clear enough. 10 Q Are all the records that the Vice
11 To the extent that an individual OVP 11 President and his staff generated as part of
12 employee keeps, whether it's electronically or in 12 considering their response to Joseph Wilson's
13 some other form, a record of his or her 13 editorial What I found in Niger covered under the
14 appointments, their official appointments -- I'm not 14 Presidential Records Act?
15 talking about personal business -- would that be a 15 MS. HONG: Objection; assumes facts not in
16 record that has to be preserved under the 16 evidence.
17 Presidential Records Act? 17 A I'm sorry. Can you just repeat the
18 A Official appointments, absolutely, yes. 18 question?
19 Q And do you know whether in fact those 19 Q Are all the records that the Vice
20 kinds of records are being preserved under the 20 President or his staff generated in considering a
21 Presidential Records Act? 21 response to Joseph Wilson's editorial What I Found
22 A To the best of my knowledge. 22 in Niger covered under the Presidential Records Act?
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1 MS. HONG: Objection; assumes facts not in 1 this subset of records?
2 evidence. 2 A I do not.
3 A I believe yes. 3 MS. HONG: Objection; assumes facts not in
4 Q Do you have any personal knowledge about 4 evidence.
5 this subset of records? 5 A I do not.
6 A I don't. 6 Q Is the talking points memo that was
7 MS. HONG: Objection; assumes facts not in 7 prepared on July 12th, 2003 for the Vice President
8 evidence. 8 and Mr. Libby to use in answering Matthew Cooper's
9 A I do not have any personal knowledge. 9 questions concerning Valerie and Joe Wilson being
10 Q Are documents reflecting the authorization 10 preserved as a covered record under the Presidential
11 that the President gave to Scooter Libby to disclose 11 Records Act?
12 to Judith Miller certain information from an 12 MS. HONG: Same objection. I don't think
13 October 2002 National Intelligence estimate being 13 any, any of these questions to this witness you have
14 treated as covered documents under the Presidential 14 laid a foundation that the documents that you have
15 Records Act? 15 been speaking of exist.
16 MS. HONG: Objection; assumes facts not in 16 BY MS. WEISMANN:
17 evidence. And it seems to me that we are going into 17 Q You can answer the question.
18 specific record-by-record inquiries about whether 18 A I believe that any documents that have
19 certain specific records have been preserved as 19 been created or received by the Vice President and
20 opposed to classification issues and I have allowed 20 staff or his staff are considered Presidential
21 lots of latitude. I'm hoping this will -- to the 21 documents.
22 extent that your record-by-record inquiry continues, 22 Q Do you have any personal knowledge about
Page 155 Page 157
1 that we will wrap this up pretty quickly. 1 these documents that I have just outlined?
2 MS. WEISMANN: Can I get the witness to 2 MS. HONG: Objection; assumes facts not in
3 answer the question? 3 evidence. You can answer.
4 MS. HONG: My objection stands. Can you 4 A I do not.
5 repeat the question so the witness has it? 5 Q Are all of the documents that were
6 MS. WEISMANN: Do you need the question 6 submitted to David Addington as potentially
7 repeated? 7 responsible -- responsive, excuse me, to a
8 THE WITNESS: Please. 8 Department of Justice subpoena in the Justice
9 MS. WEISMANN: Okay. 9 Department's investigation of the leak of
10 - - - 10 Ms. Plame's covert CIA identity being treated as
11 (Whereupon the following portion of the 11 covered by the Presidential Records Act?
12 testimony was repeated by the Court Reporter: 12 MS. HONG: Same objection as before.
13 QUESTION: Are documents reflecting the 13 A I have no specific knowledge of those
14 authorization that the President gave to Scooter 14 documents.
15 Libby to disclose to Judith Miller certain 15 Q Do you know -- do you have knowledge about
16 information from an October 2002 National 16 subpoenas that were issued to employees within or
17 Intelligence estimate being treated as covered 17 individuals within the Office of the Vice President
18 documents under the Presidential Records Act?) 18 as part of that leak investigation?
19 - - - 19 A I know people had to testify. But I don't
20 MS. HONG: Same objection. 20 know the details of the subpoenas.
21 A My -- yes, I would believe so. 21 Q I want to go back to, for a minute, to the
22 Q Do you have any personal knowledge about 22 discussion we had about the language specially
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1 assigned, and do you recall what that language 1 support the Vice President. Whether he gets
2 means? Do I need to -- 2 specially assigned is something between the
3 A I have it here. 3 President and the Vice President.
4 Q Okay. Would specially assigned include 4 Q Okay.
5 responsibilities that either the Vice President or 5 MS. WEISMANN: Let's take a five-minute
6 anyone on his staff have to respond to information 6 break.
7 requests? 7 - - -
8 MS. HONG: Objection. 8 (Recessed at 2:24 p.m.)
9 Q And by information requests I mean 9 (Reconvened at 2:34 p.m.)
10 subpoenas or document requests from any source, 10 - - -
11 including Congress. 11 BY MS. WEISMANN:
12 A I'm sorry. Repeat the question. 12 Q Back on the record. To the extent that
13 MS. WEISMANN: Can you read it back, 13 the President communicates a specially assigned
14 please? 14 function to the Vice President, how is staff in the
15 - - - 15 OVP made aware of that function?
16 (Whereupon the following portion of the 16 MS. HONG: Objection; vague.
17 testimony was repeated by the Court Reporter: 17 A People are assigned duties from the Vice
18 QUESTION: Okay. Would specially 18 President or the Vice President's Chief of Staff. I
19 assigned include responsibilities that either the 19 don't know that they are assigned things with the
20 Vice President or anyone on his staff have to 20 understanding that the President has specifically
21 respond to information requests? 21 asked. It's just kind of the understanding. That's
22 MS. HONG: Objection. 22 really what the Vice President is there for, to
Page 159 Page 161
1 QUESTION: And by information requests I 1 support the President in his duties.
2 mean subpoenas or document requests from any source, 2 MS. WEISMANN: Can we go off the record
3 including Congress.) 3 for a second?
4 - - - 4 - - -
5 BY MS. WEISMANN: 5 (Discussion off the Record.)
6 Q Do you understand my question? 6 - - -
7 MS. HONG: Objection. 7 MS. WEISMANN: Let's have this marked as
8 BY MS. WEISMANN: 8 an exhibit.
9 Q If not, I'll rephrase it. 9 (O'Donnell Exhibit Number 4
10 A If you don't mind rephrasing it. 10 was marked for identification.)
11 Q Not at all. As I said at the outset, you 11 BY MS. WEISMANN:
12 should always feel free to tell me if you don't 12 Q I'm going to hand you what I just had
13 understand a question. 13 marked as Deposition Exhibit 4. And this is a
14 Would it be within the specially assigned 14 document that was submitted in The Washington Post
15 function the responsibilities that any staff of the 15 v. U.S. Department of Homeland Security case, and
16 OVP have to respond to information requests as I've 16 it's entitled Supplemental Declaration of Claire M.
17 defined that term information requests? 17 O'Donnell, and I believe it was executed on
18 MS. HONG: Objection; vague. 18 October 25th, 2006.
19 A Would we say it's specially assigned? 19 So if you want to take some time to look
20 Q Yes. 20 over this document, and just let me know when you
21 A The Vice President's staff isn't specially 21 are done.
22 assigned. The Vice President's staff is there to 22 - - -
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1 (There was a pause in the proceedings.) 1 from visits by senior officials to address high
2 - - - 2 matters of State, and it continues from there.
3 MS. HONG: Was there a specific section 3 You use in this declaration the phrase
4 you wanted us to focus on? 4 official purposes. Is this language that you wrote
5 MS. WEISMANN: I have questions about 5 yourself?
6 paragraph seven, but I wanted to give the witness a 6 A It is not.
7 chance to look through the whole declaration 7 Q And where did this language come from?
8 carefully. 8 A It was drafted by counsel.
9 - - - 9 Q And what did you -- what is encompassed by
10 (There was a pause in the proceedings.) 10 the term official purposes?
11 - - - 11 A For meetings, official meetings, meetings
12 A Okay. 12 of business of the day, or meetings for, to see the
13 Q Are you ready? Okay. I want to direct 13 Vice President personally, official purposes.
14 your attention specifically to paragraph seven of 14 Q Now, after the phrase official purposes it
15 this declaration. First of all, do you recall this 15 says: Ranging from visits by senior officials to
16 declaration? 16 address high matters of State, to visits by repair
17 A I do. 17 personnel to fix broken office equipment.
18 Q Okay. And in paragraph seven, in the 18 Are visits by repair personnel to fix
19 second sentence, states: Such documents -- and so 19 broken office equipment encompassed within the
20 the record is clear, it's referring to documents 20 phrase official purposes?
21 generated by visits to the White House Complex or 21 A It's a subset of. I mean they are coming
22 the Vice President's residence. 22 to fix official equipment.
Page 163 Page 165
1 A Uh-huh. 1 Q Yeah. I did not mean to imply that that
2 Q Such documents would relate to -- 2 was the totality. But included within the category
3 MS. HONG: I'm sorry. It was more limited 3 of official purposes would be visits by repair
4 for a period time; right? During the period October 4 personnel to fix broken office equipment?
5 2004 through June 2006. 5 A Uh-huh.
6 MS. WEISMANN: You can make an objection 6 MS. HONG: Yes or no.
7 that I haven't accurately characterized the 7 A Yes.
8 document. 8 Q And what is the criteria you would use to
9 MS. HONG: Objection. The term of such 9 decide whether or not a particular visit, as defined
10 documents has not been accurately characterized. 10 in the first sentence, is for an official purpose?
11 BY MS. WEISMANN: 11 MS. HONG: Objection; vague.
12 Q All right. Let's look at the first 12 A Again, a visit that has to do with matters
13 sentence. It states: The documents generated by 13 of the day, policy, official matters relating to the
14 visits to the White House Complex or the Vice 14 Vice President or his duties or the Vice President's
15 President's residence during the period October 2004 15 staff and his duties.
16 through June 2006, the period covered by the Freedom 16 Q And are there purposes that could be
17 of Information Act (FOIA) request that resulted in 17 characterized as unofficial?
18 the above captioned case number in the tens of 18 MS. HONG: Objection; vague.
19 thousands, period. 19 A Yes.
20 Then it goes on to say: Such documents 20 Q And what would those -- what would the
21 would relate to individuals visiting for a variety 21 category of unofficial purposes include?
22 of purposes, including official purposes, ranging 22 A A social lunch. I have had friends that I
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1 went to college with come for lunch. Those are not 1 A They are, because they are records of
2 official, so they are cleared into the building and 2 people coming into the complex and I don't think we
3 they are not official visitors, or somebody that I 3 have any intention to break those records out. We
4 was going to share a ride with and you don't want 4 will submit them all to the Archives. It would be a
5 them to wait outside, so you clear them in. 5 very tedious job to go through and break out
6 Q Okay. At the very end of that same 6 clearance records for family members and things. So
7 sentence there is the phrase, and other private 7 we are just going to submit them all.
8 purposes. What is encompassed within the phrase 8 MS. WEISMANN: I'm going to have this
9 private purposes? 9 exhibit marked as Exhibit 5.
10 A What I just described. Personal friends, 10 (O'Donnell Exhibit Number 5
11 family coming to wait or for, you know, a gathering. 11 was marked for identification.)
12 Q Okay. Focusing specifically on the Vice 12 BY MS. WEISMANN:
13 President, who is among a subset of individuals 13 Q Ms. O'Donnell, I'm going to hand you what
14 covered by this paragraph, is he not? 14 has just been marked as Exhibit 5 for this
15 A Uh-huh. 15 deposition. And this is the declaration you
16 Q Are there private purposes for which 16 submitted in the current -- the litigation that this
17 someone would visit the Vice President? 17 deposition is a part of on --
18 MS. HONG: Objection; vague. It's really 18 MS. HONG: No.
19 getting outside the scope of this discovery. 19 MS. WEISMANN: I'm sorry. I misspoke.
20 BY MS. WEISMANN: 20 BY MS. WEISMANN:
21 Q You can answer the question. 21 Q This is a declaration that was submitted
22 A His grandchildren have come to visit him, 22 in CREW versus U.S. Department of Homeland Security,
Page 167 Page 169
1 his brother and his sister have come; they are not 1 and it is -- was submitted -- well, it is dated
2 there in any official capacity. 2 May 23rd, 2007. Why don't you take whatever time
3 Q So if the President has a visit that is 3 you need to familiarize yourself with the document.
4 encompassed within this category private purposes, 4 A Are you going to focus on one specific
5 are records generated by that visit treated as 5 area?
6 covered by the Presidential Records Act? 6 Q I have several questions. I'll probably
7 A You said the President. 7 focus most on paragraph five. But if you want to --
8 Q I meant the Vice President. I did not 8 take whatever time you need.
9 mean the President. Thank you for that correction. 9 A I'm ready when you are.
10 A You'll have to repeat the question. I'm 10 Q I would like you to turn to page 2,
11 sorry. 11 paragraph four, in which you describe the personnel
12 MS. WEISMANN: Can you read it back and 12 who work for the Vice President; is that correct?
13 then I'll substitute Vice President. 13 A Uh-huh. Yes.
14 - - - 14 Q And the last sentence of that paragraph
15 (Whereupon the following portion of the 15 states: All these personnel are under the
16 testimony was repeated by the Court Reporter: 16 supervision and control of the Vice President and
17 QUESTION: So if the President has a 17 are not under the supervision or control of any
18 visit that is encompassed within this category 18 other office or department, agency or entity of the
19 private purposes, are records generated by that 19 United States Government; is that correct? Is that
20 visit treated as covered by the Presidential Records 20 what it says?
21 Act?) 21 A That is what it says.
22 - - - 22 Q Does that mean that those personnel are
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1 not under the supervision or control of the 1 outside the scope of discovery.
2 President? 2 A I think in advising, assisting the Vice
3 MS. HONG: Objection; vague. 3 President to formulate advice for the President and
4 A Yes. That's what that means. 4 in other ways to help run the government. Maybe not
5 Q So then all of the personnel who work for 5 advice that would be directed or passed on to the
6 the Vice President -- for all of the personnel who 6 President, but just as a general kind of, as he is a
7 work for the Vice President the President has no 7 man of authority, he is going to get a lot of
8 supervision or control? 8 information. So it wouldn't be just to advise the
9 MS. HONG: Asked and answered. Objection. 9 President.
10 A He has no direct control. I mean it's -- 10 Q And then in that same paragraph, the first
11 the President can't supervise everybody. So he 11 sentence, back on page 2, it states: The Vice
12 relies on the Vice President to supervise the Vice 12 President relies in substantial part on OVP
13 President's staff. But everybody in the government 13 personnel for support in the performance of his
14 basically works for the President. 14 official functions. What -- as used herein, what
15 Q Why did you describe these personnel as 15 does that term official functions include?
16 not under the supervision or control of any other 16 A All of his executive and legislative
17 office or department, agency or entity of the United 17 functions.
18 States Government? 18 Q And does that term differ in any way from
19 MS. HONG: Objection. This is outside the 19 those functions that are specially assigned by the
20 scope of this discovery. 20 President?
21 A I think it was just describing that the 21 A It encompasses those functions, specially
22 office is small and that these people were under 22 assigned.
Page 171 Page 173
1 direct supervision of the Vice President. 1 Q The second sentence goes on to enumerate a
2 Q Okay. Let's look at paragraph five of 2 number of specific matters, and included within that
3 that same document. In the carry-over onto page 3 3 enumeration is, are administration and legal
4 there is a sentence that says -- first of all, would 4 matters. Can you tell me what you mean by the term
5 it be fair to characterize this paragraph as 5 administration? What would that encompass?
6 summarizing the kind of support that the OVP 6 A My office. You know, the running of the
7 provides for the Vice President? 7 office. The, you know, hiring and firing of people,
8 A I would say -- 8 the budgets, supplies, just the day-to-day running
9 MS. HONG: Objection; vague. 9 of the office.
10 Q Your answer? 10 Q And what would be encompassed within the
11 A I would say yes. 11 phrase legal matters?
12 Q Okay. And as part of that support, the 12 A Any legal advice or -- any legal advice
13 last sentence states: These duties include meeting 13 that either the Vice President himself needs or
14 at the White House Complex or at the Vice 14 advice that the staff needs.
15 President's residence with individuals from outside 15 Q Is there anything else?
16 the OVP to gather information and advice for the 16 A Is this a Presidential document? The kind
17 purpose of assisting the Vice President and in 17 of thing we have just chatted about above. If
18 formulating advice for the President and other 18 people want advice on ethics rules or Presidential
19 purposes. 19 documents or anything at all; whether the Vice
20 What is encompassed in the reference there 20 President should attend a function or not.
21 to other purposes? 21 Q Okay. In paragraph eight on page 4 there
22 MS. HONG: Objection. Again this is 22 is a reference -- there is the phrase included in
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1 that -- the phrase the Vice President or the 1 Staff, and dated June 26, 2007. Have you ever seen
2 personnel who perform official duties in the Office 2 this letter before?
3 of the Vice President. Do you see that phrase? 3 A I don't remember.
4 A Uh-huh. 4 Q Okay. I would like to direct your
5 Q What is meant by the term official duties 5 attention to the third paragraph, one, two, three,
6 in the Office of the Vice President? 6 four lines down. Well, I'll read the whole sentence
7 MS. HONG: Anne, this is outside the scope 7 and then I'll tell you what part of the sentence I
8 of discovery. It seems -- well, and you know that 8 want to focus on.
9 this is really relevant to ongoing litigation in 9 It states: Given that the executive order
10 another matter. 10 treats the Vice President like the President rather
11 A That's all his staff, all his staff 11 than like an agency, it is not necessary in these
12 perform official duties. 12 circumstances to address the subject of any
13 Q Right. I'm trying to -- I'm sorry. Maybe 13 alternative reasoning based on the law and history
14 my question wasn't clear. I'm trying to understand 14 of the legislative functions of the Vice Presidency
15 what you meant by the phrase official duties. 15 and the more modern executive functions of the Vice
16 MS. HONG: Same objection as before. 16 Presidency. And it goes on.
17 A Can you explain your question a little 17 I want to focus on that phrase, the more
18 bit? I mean it's all of their duties as staff are 18 modern executive functions of the Vice Presidency.
19 official. 19 Do you have any understanding of what that term
20 Q Okay. And is this language that you came 20 means?
21 up with? 21 MS. HONG: Objection; personal knowledge.
22 A It is not. 22 A Do I -- do I have any knowledge of --
Page 175 Page 177
1 Q And how did you get this language? 1 Q The phrase modern executive functions of
2 A Counsel. 2 the Vice Presidency; that's what I'm focusing on.
3 MS. WEISMANN: Let's take a five-minute 3 Do you have any understanding of what that phrase
4 break. 4 means?
5 - - - 5 A Not specifically, no.
6 (Recessed at 2:57 p.m.) 6 Q Okay. Going back -- I'm done with this
7 (Reconvened at 3:04 p.m.) 7 document.
8 - - - 8 Going back to the White House Office of
9 MS. WEISMANN: Can I have this marked as, 9 Records Management, is a log or inventory created
10 is it 6? 10 that reflects which records the OVP has transferred
11 (O'Donnell Exhibit Number 6 11 to the White House Office of Records Management?
12 was marked for identification.) 12 A Yes. They have a catalog.
13 BY MS. WEISMANN: 13 Q They being?
14 Q I'm going to hand you what I have just had 14 A Records Management.
15 marked as Exhibit 6. If you want to take whatever 15 Q The White House Office of Records
16 time you need to familiarize yourself with the 16 Management?
17 letter. Are you ready? 17 A That's correct.
18 A Yes. 18 Q And does the OVP itself also maintain any
19 Q I've just handed you a letter that I've 19 kind of inventory or log that reflects what records
20 had marked as Exhibit 6, which is on Office of the 20 it has sent to the White House Office of Records
21 Vice President letterhead addressed to the Honorable 21 Management?
22 John F. Kerry from David S. Addington, Chief of 22 A Individual offices have their own records
45 (Pages 174 to 177)
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Page 178 Page 180
1 of what they have sent down. 1 ACKNOWLEDGEMENT OF DEPONENT
2 Q But there is no central repository? I 2
3 don't mean central repository. There is no central 3
4 inventory? 4 I, CLAIRE M. O'DONNELL, do hereby acknowledge I
5 MS. HONG: Objection; vague. 5 have read and examined the foregoing pages of
6 A Records Management has a central 6 testimony, and the same is a true, correct and
7 inventory. 7 complete transcription of the testimony given by
8 Q I'm sorry. Within the OVP? 8 me, and any changes or corrections, if any, appear
9 A Not to my knowledge. 9 in the attached errata sheet signed by me.
10 Q Okay. And with respect to records that 10
11 you supervise or have control over, do you keep an 11
12 inventory of what is sent to the White House Office 12
13 of Records Management? 13
14 A From my office directly? 14
15 Q Yes. 15
16 A I -- yes, we do. 16
17 Q And do you keep or have an inventory of 17
18 records from any other component of the OVP that are 18
19 sent to the White House Office of Records 19 ____________________ _______________________
20 Management? 20 Date CLAIRE M. O'DONNELL
21 A I do not. 21
22 Q Okay. 22
Page 179 Page 181
1 MS. WEISMANN: I think that concludes our 1 UNITED STATES OF AMERICA )
2 questions. 2 ss:
3 MS. HONG: Okay. We would like to reserve 3 DISTRICT OF COLUMBIA )
4 the reading and signing. 4 I, ROBERT M. JAKUPCIAK, an RPR and Notary
5 MS. WEISMANN: And we want the rough 5 Public within and for the District of Columbia do
6 overnight. 6 hereby certify:
7 MS. HONG: And we would the same. 7 That the witness whose deposition is
8 (Whereupon, at 3:09 p.m., the 8 hereinbefore set forth, was duly sworn and that the
9 deposition of CLAIRE M. O'DONNELL 9 within transcript is a true record of the testimony
10 was concluded.) 10 given by such witness.
11 11 I further certify that I am not related to
12 12 any of these parties to this action by blood or
13 13 marriage and that I am in no way interested in the
14 14 outcome of this matter.
15 15 IN WITNESS WHEREOF, I have hereunto set my
16 16 hand this _____ day of ________________, 2008.
17 17
18 18 ________________________
19 19
20 20 My Commission Expires:
21 21 December 14, 2008
22 22
46 (Pages 178 to 181)

(866) 448-DEPO
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Page 182
1 Capital Reporting Company
2 1821 Jefferson Place, N.W.
3 3rd Floor
4 Washington, D.C. 20006
5 (202) 857-3376
6 ERRATA SHEET
7 Case Name: CREW, et al., vs. Cheney, et al.
8 Witness Name: CLAIRE M. O'DONNELL
9 Deposition Date: November 13, 2008
10 Page No. Line No. Change/Reason for Change
11
12
13
14
15
16
17
18
19
20
21 ____________________________ ____________
22 Signature Date
Page 183
1 Helen H. Hong, Esquire
2 U.S. Department of Justice
3 20 Massachusetts Avenue, N.W.
4 Washington, D.C. 20530
5
6 IN RE: CREW, et al., vs. Cheney, et al.
7
8 Dear Ms. Hong:
9 Enclosed please find your copy of the
10 deposition of CLAIRE M. O'DONNELL, along with the
11 original signature page. As agreed, you will be
12 responsible for contacting the witness regarding
13 signature.
14 Within 30 days of receipt, please forward
15 errata sheet and original signed signature page to
16 counsel for Plaintiffs.
17 If you have any questions, please do not
18 hesitate to call. Thank you.
19 Yours,
20
21 Robert M. Jakupciak, RPR/Notary
22 cc: Anne L. Weismann, Esquire
47 (Pages 182 to 183)

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EXHIBIT 3
1
1 ROUGH DRAFT DEPOSITION
2 NANCY KEGAN SMITH
3 BY MS. WEISMANN:
4 Q. Would you please state your name for the
5 record?
6 A. Nancy Kegan Smith.
7 Q. Ms. Smith, have you ever had your
8 deposition taken before?
9 A. Yes.
10 Q. Okay. Well just to go over a few ground
11 rules, one the court reporter can only take down
12 audible responses and so please try to make sure
13 that you give audible responses.
14 Second, if you don't understand the
15 question, please tell me and I'll try to rephrase it
16 so that you do understand it. If you go ahead and
17 answer the question and don't indicate to me that
18 you don't understand it, I'm going to assume that
19 you've understood the question.
20 What is your educational background
21 after high school?
22 A. I have a B.A. from the University of

2
1 Texas in Austin.
2 Q. And was that in a specific area?
3 A. History and Government.
4 Q. And after you got your B.A., what did
5 you do next?
6 A. I was hired at the Johnson Library in a
7 special program.
8 Q. The, by Johnson Library you mean the
9 President Johnson's Presidential library?
10 A. Uh-huh, yes.
11 Q. And when did you begin working there?
12 A. August.
13 MS. HONG: If you can just let
14 Ms. Weismann finish asking the question before you
15 respond.
16 THE WITNESS: Okay.
17 BY MS. WEISMANN:
18 Q. When did you begin working at the
19 Presidential, Johnson Presidential library?
20 A. August of 1973.
21 Q. And in what capacity did you work there?
22 A. As an archivist.
3
1 Q. And what were your responsibilities as
2 an archivist?
3 A. Reviewing President Johnson's papers and
4 records.
5 Q. For what purpose?
6 A. Under his donor deed of gift to make
7 those materials available. Additionally I did
8 reference and assisted in doing the research room at
9 the Johnson Library, working with researchers.
10 Q. And for how long did you, were you in
11 that position?
12 A. Well I was at the Johnson Library for 16
13 years.
14 Q. Did your position change?
15 A. It, the duties and responsibilities
16 somewhat changed.
17 Q. Why don't you walk us through that
18 change.
19 A. Oh, I, I started as a beginning
20 archivist, when I left, I had developed review
21 expertise in certain sensitive and classified files
22 and political files and was more senior archivist.

4
1 Q. Was that expertise specific to the
2 Johnson Library?
3 MS. HONG: Objection, vague. You can
4 answer the question if you understand.
5 THE WITNESS: Oh,. It wasn't specific
6 to the Johnson Library in that I, before I left the
7 Johnson Library I was doing consulting on Nixon
8 issues.
9 BY MS. WEISMANN:
10 Q. And who were you consulting?
11 A. I was consulting for the archivist of
12 the United States and the assistant archivist for
13 Presidential Libraries.
14 Q. Okay, and once you left the Johnson
15 Library, where did you go next?
16 A. To Washington, D.C.
17 Q. And what was your next job?
18 A. I was a review archivist for the head of
19 Presidential Libraries.
20 Q. At part of NARA, of the archives?
21 A. Uh-huh. Yes.
22 Q. And tell me what your responsibilities

5
1 were in that position?
2 A. In that position originally I was
3 working on Nixon contested documents and helping the
4 Board of review under Nixon decide what was keep
5 able and what was return able that the former
6 President had contested from an opening.
7 Q. And how long were you in that position?
8 A. I was in, I was in the office of
9 Presidential Libraries until 1997.
10 Q. And then in '97, where did you go?
11 A. I went to the Office of General Counsel.
12 Q. Okay and what did you do in the Office
13 of General Counsel?
14 A. I headed it up, access for Presidential
15 papers and records.
16 Q. And what were your responsibilities in
17 that capacity?
18 A. My responsibilities were to give
19 guidance and training and to handle with the head of
20 that office access requests to Presidential records.
21 Q. And by the head of that office I assume
22 that would be the General Counsel?

6
1 A. Well the head of the access office was
2 Miriam Nisbet, the General Counsel was Elizabeth
3 Pugh.
4 Q. But the office, it was all part of the
5 General Counsel's Office, correct?
6 A. Yes.
7 Q. And when you say access requests, did
8 that include Freedom of Information Act requests?
9 A. Yes, when they apply.
10 Q. Okay.
11 A. As they come in under the Presidential
12 Records Act.
13 Q. And that covered all of the collections
14 that the NARA had at that time of Presidential
15 records?
16 A. Yes.
17 Q. Okay. And what did you do, how long
18 were you in that position?
19 A. About a year and a half.
20 Q. And then where did you go?
21 A. I took this job as director of the
22 Presidential materials staff.

7
1 Q. And what would have been in what year?
2 A. September of 1998.
3 Q. Okay, and that is the position you
4 currently occupy?
5 A. That is correct.
6 Q. And have your duties and
7 responsibilities changed from September of 1998 to
8 the present?
9 A. Yes.
10 Q. How so?
11 Well why don't you tell me, again if you
12 could walk us through what your responsibilities
13 were initially and how they've changed?
14 A. Well, the responsibilities initially
15 were to head up the courtesy storage for incumbent
16 Presidential and Vice Presidential records and
17 artifacts, to head up the White House part of the
18 Presidential moves.
19 Q. Okay --
20 A. And.
21 Q. I'm sorry.
22 A. To assist on access and over time I have

29
1 categories of records, no.
2 BY MS. WEISMANN:
3 Q. Okay. Has NARA memorialized in any
4 written documents a definition of what Vice
5 President's are required to preserve under the
6 Presidential Records Act?
7 A. Not specifically to Vice Presidents. I
8 think the Presidential Records Act does that.
9 Q. And you're not aware of any written
10 documents or guidance that NARA has issued defining
11 or further defining or explaining the scope of the
12 PRA with respect to Vice Presidential records?
13 A. Not specifically to Vice Presidential
14 records, no.
15 Q. Okay. What was the definition that the
16 Clinton Administration used with respect to, in
17 defining those Vice Presidential records that are
18 encompassed within the scope of the Presidential
19 Records Act?
20 MS. HONG: Objection. Basis for
21 personal knowledge.
22 You can, if she's asking for your

109
1 there any other records, unclassified records of the
2 Office of the Vice President that are not being
3 managed by the White House Office of Records
4 Management?
5 MS. HONG: Objection, vague.
6 Are we talking, I don't think you --
7 retired records? Can you read back that question?
8 (Whereupon, the reporter read the
9 record as requested.)
10 BY MS. WEISMANN:
11 Q. Retired records, that's what we had been
12 talking about.
13 A. I'm just trying to think of the
14 different offices we -- that are component out.
15 I know that the White House Office of
16 Records Management manages unclassified, some
17 unclassified OVP records. I am not aware of what
18 all that world encompasses.
19 Q. Okay. Does the White House Office of
20 Records Management manage any retired records that
21 come from the Vice President?
22 A. Management.
110
1 Q. Any retired records that come from the
2 Vice President?
3 A. I don't know if they manage every
4 retired.
5 Q. No, I know, but we were talking about
6 the Office of the Vice President and now I'm
7 focusing on the Vice President himself.
8 Are you aware of any records that the
9 Vice President has retired that are being managed by
10 the White House Office of Records Management?
11 MS. HONG: Objection, vague, and
12 assumes, I mean I'm not sure --
13 MS. WEISMANN: I'm asking a question.
14 THE WITNESS: I don't make a distinction
15 between the OVP and the Vice President.
16 BY MS. WEISMANN:
17 Q. Right, but I am making that distinction.
18 A. I know, then I would have to say I don't
19 know.
20 Q. So you're not aware of any?
21 A. Right.
22 Q. Okay. And who manages?

111
1 MS. HONG: Wait, I'm not sure that
2 that's the answer --
3 THE WITNESS: Wait, wait, what is it,
4 how did you take my answer to that?
5 BY MS. WEISMANN:
6 Q. Well I just said you're not aware of
7 any.
8 A. I'm not aware of any Cheney documents
9 that are carved out and are not being managed by the
10 Office of the Vice President.
11 Is that what you thought I was saying?
12 Q. That wasn't my question, but?
13 A. Well that's what I'm saying.
14 Q. Okay, that's fine.
15 A. Okay.
16 Q. Who manages the classified documents
17 that have been retired by either the Office of the
18 Vice President or the Vice President?
19 A. The Vice President has a National
20 Security Advisor and we will pick up those records
21 from that office.
22 Q. To your knowledge, is the White House

112
1 Office of Records Management managing any records of
2 the Office of the Vice President or the Vice
3 President that have not yet been retired?
4 A. No.
5 MS. WEISMANN: Let's take a five-minute
6 break.
7 (Lunch Recess 12:42 p.m.)
8 11/10/08. ) Back on record 141 p.m. )
9 BY MS. WEISMANN:
10 Q. Other than the meeting you described
11 earlier with personnel from the Office of the Vice
12 President and in which David Addington was present,
13 have you had any other communications with
14 Mr. Addington with respect to record keeping issues?
15 A. Yes.
16 Q. And what were those communications?
17 A. We talked with him about how, where the
18 materials would be based in Washington, DC, after
19 the end of the Administration.
20 Q. When you say materials, what are you
21 referring to?
22 A. The Vice Presidential records and

185
1 A. I thought it was in something that CREW
2 wrote.
3 Q. No, actually it was an expression that
4 the defendants used.
5 Has NARA ever defined the functions of
6 the Vice President as those specially assigned by
7 the President, to your knowledge?
8 MS. HONG: Lack of foundation, there's
9 no basis for any understanding that NARA has defined
10 the functions of the Vice President at all.
11 BY MS. WEISMANN:
12 Q. Go ahead.
13 A. The question, please.
14 Q. Has NARA ever defined the functions of
15 the Vice President as those specially assigned by
16 the President?
17 MS. HONG: Same objection.
18 THE WITNESS: No, not that I know of.
19 BY MS. WEISMANN:
20 Q. For purposes of implementing the
21 Presidential Records Act, does NARA have a working
22 definition of which functions the Vice President

186
1 performs must be preserved -- records from which
2 functions that the Vice President performs must be
3 preserved under the Presidential Records Act?
4 A. I think it's clear in 2201.
5 Q. Okay. So you would rely then on the
6 language of the statute -- of the Presidential
7 Records Act itself?
8 A. Yes.
9 Q. Okay. And would you rely on that to the
10 exclusion of any other language?
11 A. I think the statute is very good to rely
12 on. It's Constitutional, statutory, offing,
13 ceremonial.
14 Q. Right?
15 A. Duties that are done in conducting his
16 official Vice Presidential duties.
17 Q. And does the Vice President have the
18 discretion to define his functions differently than
19 the PRA defines them for purposes of the
21 A. No, I mean it's defined in the Act.
22 Q. Based on your extensive experience

187
1 working with Presidential Libraries and Presidential
2 records, does the term specially assigned have any
3 significance to you for purposes of determining
4 whether a Vice President has complied with the
6 A. No.
7 Q. Other than what you've identified, have
8 you seen any guidance from the White House on
9 written or oral on how to implement the Section 2201
10 of the Presidential Records Act with respect to the
11 Vice President?
12 A. No.
13 MS. HONG: Objection, vague. That's
14 fine.
15 THE WITNESS: No.
16 BY MS. WEISMANN:
17 Q. Okay.
18 MS. WEISMANN: Let's take a five-minute
19 break.
20 ) Short recess taken )
21 One again, started up the deposition
22 again.
198
1 Q. Have you ever heard any reference to any
2 such guidance?
3 A. No.
4 Q. Written guidance I mean?
5 A. No.
6 Q. Have you ever heard any communications
7 between the White House Office of Records Management
8 and the Office of the Vice President about how to
9 treat Vice Presidential records for purposes of the
11 A. No.
12 Q. I want to, because the I think the
13 record I'm going to go back to two areas before in
14 which privileged objections were made because I want
15 to make sure we have a very clean record for
16 everybody. So I'm going to return now to the
17 discussions that you identified that were between
18 you, Gary Stern and Ms. Wheelbarger relating to the
19 treatment of the Vice President's legislative
20 records.
21 A. Okay.
22 Q. And it was your testimony, I believe,

199
1 that the Vice President's office made the final
2 decision that they would be treated as legs -- that
3 the legislative records of Cheney, Vice President
4 Cheney would be treated as covered under the
5 Presidential Records Act; is that correct?
6 A. They confirmed to NARA that in response
7 to a question we asked that they were treating
8 records that Cheney created in the Senate office as
9 Vice Presidential record.
10 Q. And what was the specific question that
11 NARA posed to them?
12 A. Since I am not the one who, who posed
13 that question, I'm not sure I remember the exact
14 question. I can give you --
15 Q. What's your understanding generally of
16 the question that was asked?
17 A. That, that, my general understanding of
18 the question was asked is how were they treating
19 Cheney's legislative records.
20 Q. And what was the response that came
21 back?
22 A. The response was they were treating them

200
1 as Vice Presidential record.
2 Q. Okay. And was there any discussion
3 about what specifically legislative records
4 consisted of?
5 A. There was a discussion that Cheney
6 didn't use the OVP office very much and I believe
7 they said he had two staff in the office and that
8 there weren't a lot of records that were created out
9 of that office.
10 MS. HONG: If you can, I just want to
11 clarify if you can read back that answer I think the
12 witness my have said the OVP office -- was it OVP,
13 did you mean Senate office.
14 THE WITNESS: Yes.
15 MS. WEISMANN: Can we go back to the
16 initial questioning on this subject matter where an
17 objection was lodged.
18 MR. SOBEL: The privileged claim.
19 MS. HONG: And just for your purpose, I
20 don't know if this will help at all, we just
21 cautioned the witness not to reveal the substance of
22 any deliberative process privileged information.

201
1 MS. WEISMANN: I just want to.
2 MS. HONG: Oh, I know I'm saying we just
3 caution the witness so she revealed I mean the up
4 shot, she revealed the Vice President's treatment of
5 those legislative records so I don't know that
6 there's an issue on this question, but you can look
7 back.
8 (Discussion off the record)
9 BY MS. WEISMANN:
10 Q. Earlier you described what sounded like
11 more than one discussion between NARA officials and
12 Katie Wheelbarger concerning the legislative
13 records, what specifically did you discuss with
14 Ms. Wheelbarger concerning this issue?
15 MS. HONG: Objection, misstates her
16 testimony.
17 MS. WEISMANN: It's a question. I'm not
18 stating any, she didn't testify to this. There was
19 an objection lodged and a deliberative process
20 lodged so I'm going back.
21 MS. HONG: No I'm sorry the reason I
22 objected -- I'm sorry, what was the question.

202
1 (Whereupon, the reporter read the
2 record as requested.)
3 MS. HONG: Same okay.
4 THE WITNESS: And I think I've given you
5 what we discussed.
6 BY MS. WEISMANN:
7 Q. No, you told me what the outcome of
8 those discussions were and what I want to know is
9 specifically what was discussed?
10 A. NARA specifically asked Gary Stern asked
11 how were they treating legislative or records
12 created in the Senate office and they responded over
13 I think it was several conversations, not all of
14 which I were involved in, that they were treating
15 them as Vice Presidential record.
16 Q. And why were there several, why was
17 there a need to have several conversations, do you
18 know?
19 A. Can I make a joke, probably because it
20 was lawyers, but I have no idea.
21 Q. When the question was first posed did
22 you get a response immediately from the White House

203
1 from this, from the Office of the Vice President?
2 A. I am unclear as to whether I -- which
3 conversation I was involved in, so whatever
4 conversation I was involved in we got a clear
5 response. Whether that was the first conversation
6 or the only conversation I really don't know.
7 Q. In the course of those discussions, did
8 the Office of the Vice President ever raise or ever
9 suggest that legislative records might not be
10 covered by the Presidential Records Act?
11 A. Not in any discussion I was involved in,
12 no.
13 Q. As part of this discussion -- as part of
14 this discussion did you also raise with them the
15 issue of Section 11 of executive order 13233?
16 MS. HONG: Objection. The witness has
17 already testified about not having any conversations
18 about that section. I mean you can answer the
19 question, but.
20 THE WITNESS: No.
21 BY MS. WEISMANN:
22 Q. And did you have any discussions within

237
1 MS. WEISMANN: We have nothing else.
2 MS. HONG: I have nothing. I just want
3 to reserve our rights to review the transcript.
4 (End 5:33 p.m.)
10
11
12
13
14
15
16
17
18
19
20
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EXHIBIT 4

__________________________________________
)
ETHICS IN WASHINGTON, et al., )
)
Plaintiffs, )
)
)
)
Defendants. )
__________________________________________)
DEFENDANTS’ LCvR 56.1 STATEMENT OF MATERIAL FACTS

IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT1
1. The vice presidency of Richard B. Cheney commenced at noon on January 20,
2001 and will conclude (unless his death or resignation occurs sooner) at noon on
January 20, 2009. See Ex. 1, O’Donnell Decl. ¶ 4.
2. The Office of the Vice President—which consists of personnel employed by,
assigned or detailed to, the Vice President, as well as the Vice President himself—has,
since noon on January 20, 2001 carried out reasonably, diligently and in good faith the
obligations of the Vice President under section 2207 of title 44 of the United States Code.
See id. ¶ 6.
1
Defendants present their motion for summary judgment in the alternative, only, to their
motion to dismiss. For the reasons set forth in defendants’ motion to dismiss, plaintiffs’
Amended Complaint must be dismissed in its entirety. Defendants present their
“statement of material facts” only in the event the Court finds that any claim survives the
threshold defenses, and in no way concedes that this Court has jurisdiction to entertain
plaintiffs’ claims or that plaintiffs raise claims upon which relief may be granted. See
Order Setting Schedule for Further Proceedings [38] at 5 (requiring only “one final round
of briefing”).
3. Specifically, the OVP has been carrying out—and intends to continue to carry
out—section 2207 with respect to documentary materials, or any reasonably segregable
portion thereof, created or received by the Vice President, his immediate staff, or a unit or
individual of the Office of the Vice President whose function is to advise and assist 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. See Second Supp. Decl. of Claire M. O’Donnell (“2d Supp.
Decl.”). There are no vice presidential records that the Office of the Vice President has
excluded from the scope of the PRA through its guidance or policies regarding vice
presidential records. See 2d Supp. Decl. ¶¶ 4-5; see also Supp. Decl. ¶ 5. And the OVP
has not relied on any guidelines issued by any other defendant to exclude any vice
presidential records of the vice presidency of Richard B. Cheney from the requirements
of section 2207 of title 44. See also Ex. 3, Smith Rough Dep. Tr. at 29:9-14 (NARA does
not provide written guidance on definition of vice presidential record); id. at 185:15-
186:20 (testifying that NARA relies on the definition of vice presidential records in the
PRA); Decl of Nancy Kegan Smith, Director of the Presidential Materials Staff in the
Office of the Presidential Libraries ¶ 4; Ex. 1, O’Donnell Decl. ¶ 7 (OVP does not rely on
Executive Order 13233 of November 1, 2001 or any guidelines issued by defendants to
exclude any vice presidential records of the vice presidency of Richard B. Cheney from
the requirements of section 2207 of title 44).
4. All official records received or created by the OVP are treated as vice presidential
records under the PRA. See Ex. 2, Dep. Tr. of Claire M. O’Donnell, 37:15-38:1 (“Q:
And what is your understanding of the documents that the Vice President is required to
transfer to NARA at the end of his administration? A: All of his executive and
legislative files. Q: Okay. Do you have any more specific understanding than that? A:
Any documents that he has either created or received in his official functions.”); 55:16-20
(“Again, every document that we receive or create in our capacities, meaning the staff of
the Vice President, to assist him in his duties are to be kept for the Presidential Records
Act.”); 54:6-9 (same); 99:19-100:22 (explaining that OVP’s guidance is to transfer all
vice presidential records as defined under the PRA that have been created or generated
during the vice presidency of Richard B. Cheney); 102:7-103:14 (explaining that “for all
practical purposes, everything is considered official” and maintained under the PRA,
except “something really personal in your personal life outside of anything official,” like
“a bank statement or a thank you note for a wedding reception); 119:11-12 (“[I]t’s the
general policy everything is a presidential record.”); 128:17-129:1 (Q: “If a document is
covered by the PRA, and by that I mean if a document is vice presidential, if it meets the
definition of vice presidential, of a vice presidential record within the meaning of the
PRA, is it your understanding that that document has to be preserved? A: Yes.”);
136:12-16 (“I know that, again in general, everything that is prepared by any staff
member for the Vice President or by the Vice President is considered a [vice] presidential
record.”); 139:5-140:2 (explaining that “guidance that the staff that we trust” has been
given is to preserve records that have been created by the Vice President’s staff); 140:8-
12 (“I believe all documents, all documents in the Vice President’s office, created or
received by the Vice President or the Vice President’s staff are being kept under the
Presidential Records Act.”); 141:4-7 (“To the best of my knowledge, like all other
records, if records have been prepared for the Vice President, they are being kept under
the Presidential Records Act”); 141:17-19 (same); 142:6-14 (same); 142:18-143:6
(same); 144:22-145:8 (same); 147:11-13 (same); 147:20-149:2 (same); 151:5-8 (“If an
employee of the Office of the Vice President keeps records that have to do with the Vice
President’s executive or legislative duties, they are kept for the PRA); 156:18-21 (“I
believe that any documents that have been created or received by the Vice President and
her staff or his staff are considered [vice] presidential documents.”); 77:15-22 (“I could
only answer that I don’t get into the legalese of all the Vice President’s duties. We view
it that everything he does he is doing on behalf of the President and that’s our practice
and that’s the guidance I give to people that, everything you are doing here is in support
of the Vice President and it’s considered a [vice] Presidential document.”); 78:9-13
(“Again, if he is – I don’t get into the legalese. If there are documents created, or
received on behalf of his duties, and if he sits on that board because he is Vice President,
then we would consider it a [vice] Presidential document.”); 78:14-79:2 (similar); 61:17-
22 (explaining that legislative records are treated “the same as the executive records are
kept. Everything is considered a document that has to be kept or filed.”); see also Ex. 3,
Smith Rough Dep. Tr. at 199:6-9 (“They confirmed to NARA that in response to a
question we asked that they were treating records that Cheney created in the Senate office
as vice presidential record.”); 202:10-15 (“NARA specifically asked Gary Stern asked
how were they treating legislative or records created in the Senate office and they
responded over I think it was several conversations, not all of which I were involved in,
that they were treating them as vice presidential record.”); 203:7-12 (same); Ex. 2,
O’Donnell Dep. Tr. at 79:22-80:5 (stating that Vice President “supports the guidance that
I have been asked to give out and the processes, processes that we follow”); 87:21-88:6
(stating that it is the intent of the Vice President to include “all of the papers, records,
notes, recordings, memo that the Vice President has created since January 20, 2001, . . .
as vice presidential materials turned over to NARA under the Presidential Records Act”).
5. Simply put, there are no “policies and guidelines that exclude from the reach of
the PRA all but a narrow category of vice presidential records created or received in the
very limited circumstances in which the vice president deems himself to be acting as part
of the executive branch,” Am. Compl. ¶ 35; it is not true that “Vice President Cheney and
the OVP will destroy, transfer, or otherwise dispose of many of the vice president’s
records under the theory they are personal records and therefore not covered by the PRA
or subject to any other record keeping law or obligation,” id ¶ 44; there is no validity to
the claim that “legislative records” are treated as personal by this Vice President; and it is
not true that the OVP and Vice President have been violating the terms of the PRA by
relying on guidelines that do not classify vice presidential records in accord with the
definition set forth in the PRA. See generally Ex. 1, Ex. 2, Ex. 3.
//
//
//
//
//
Respectfully submitted this 8th day of December, 2008.
GREGORY G. KATSAS
Assistant Attorney General
JOHN R. TYLER
Assistant Branch Director
/s/ Helen H. Hong

HELEN H. HONG (CA SBN 235635)
Trial Attorney
U.S. Department of Justice, Civil Division
P.O. Box 883, 20 Massachusetts Ave., NW
Washington, D.C. 20044
Telephone: (202) 514-5838
Fax: (202) 616-8460
[email protected]
Counsel for Defendants

CREW v. Cheney Et Al: Regarding VP Records: 12/8/08 - Cheney's Motion To Dismiss

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Case 1:08-cv-01548-CKK Document 39 Filed 12/08/2008 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT

DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE,

In passing the Presidential Records Act of 1978, 44 U.S.C. §§ 2201-2207 (“PRA”),

Procedure Act, 5 U.S.C. § 701.

other grounds, 924 F.2d 282 (D.C. Cir. 1991).

discretion by law and unreviewable under the APA.

must do the same.

claims must be dismissed in their entirety. Id.

behalf of all defendants.

I. The Presidential Records Act of 1978

Presidential records.” Id.

defines “vice presidential records” to be “documentary materials, or any reasonably segregable

§ 2201(2)(B). The PRA further defines “personal records” as documentary materials of “a

§ 2201(2); see also Ex. 2, Deposition Transcript of Claire M. O’Donnell at 128:17-129:1

(“O’Donnell Dep. Tr.”).

the conclusion of the vice presidency of Richard B. Cheney.

III. Plaintiffs’ Amended Complaint

president’s constitutional, statutory or other official or ceremonial duties and their

(D.D.C. March 20, 2006) (internal quotations and citations omitted).

to relief.’” See Bell Atl. Corp., 127 S. Ct. at 1966.

with the APA standard of review.” Id.

marks and citation omitted). Accordingly, absent an intent to create a judicially-enforceable

subject matter jurisdiction because of the absence of a private right of action).

defendants claim does not exist.”).

U.S.C. § 1361 “is strictly defined. . . . Mandamus is ‘drastic’; it is available only in

“fairly exude[] deference to the Director”).

entitled to no relief here. 5 U.S.C. §§ 701(a)(1), 701(a)(2).

necessary elements of causation . . . hinge on the independent choices of a . . . third party . . . it

claims against all defendants must be dismissed.

B. The PRA Precludes Judicial Review

constitutional concerns.” Armstrong I, 924 F.2d at 290.

In declining to give outsiders the right to interfere with White House

direct review of PRA compliance—distinct from FRA- or FOIA-based claims alleging

overbreadth of guidelines defining presidential records—remain immune from judicial review.

judicial review of the President’s recordkeeping practices and decisions.” Id.

review of PRA compliance.10

592, 600-01 (1988).

interfere with White House recordkeeping practices).

III. Plaintiffs’ Lack of Standing Requires that their Claims be Dismissed

“[C]ourts have developed a series of principles termed ‘justiciability doctrines,’ among

standing – whose absence requires dismissal of plantiffs’ claims.

establish traceability or redressability against the EOP, NARA and Archivist.

A. Plaintiffs Lack Imminent Injury

Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).

This court rejected in similar circumstances plaintiffs’ standing to challenge an executive

2822027 (D.D.C. Oct. 1, 2007). As the court explained,

standing, plaintiffs lack standing as to all of their claims.

would continue to use FOIA to gain access to agency records.

enough to establish an imminent, non-speculative injury-in-fact.” Id.

B. Plaintiffs Lack Any Injury-in-Fact

questions of fact and law.” Davis, 440 U.S. at 632.

constitutional, statutory, or other official or ceremonial duties of the [Vice] President.” 44

U.S.C. § 2201(2). As demonstrated by the Declaration and Supplemental Declaration, and

injunction briefing). Specifically:

complies fully with the PRA:

Question: If a document is covered by the PRA, and by that I mean if a document

stake their claims.

considered “executive” or “legislative” is immaterial in implementing the PRA: “all documents,