Cheney Removes Himself Again From Executive Branch

Cheney Removes Himself Again From Executive Branch

National Journal
August 21, 2007

Less than two months after Dick Cheney reversed course on the claim under a congressional threat and much ridicule, the vice president is once again severing himself from the executive branch of government — this time to defy a subpoena.

In June, Cheney’s lawyers whipped out a novel — and almost certainly wrong — claim that as the Senate’s tiebreaker, his office actually belongs in the legislative branch. At the time, he was resisting an executive order renewed by President Bush that their offices hand over reports on classified data to the National Archives. Red-faced officials eventually said they would back off of the bizarre claim.

But yesterday it resurfaced, in a letter [PDF] to Senate Judiciary Committee Chairman Patrick Leahy.

Asking for more time to produce documents related to a domestic surveillance program, Shannen Coffin, the VP’s counsel, writes that the “committee authorized the chairman to issue subpoenas to the Executive Office of the President and Department of Justice, but did not authorize issuance of a subpoena to the Office of the Vice President.”

That is just… weird. Any constitutional lawyer worth his or her salt will tell you this line of argument ends badly for Cheney. (As Leahy noted in his written response, “Both the United States Code and even the White House’s own Web site say so.”) A bigger question, though, is: Why pursue this claim at all?

Congressional subpoenas are deflected from the Bush administration like bullets bouncing off Wonder Woman’s bracelets. The arguments that the Senate Judiciary Committee subpoenas don’t apply to Cheney’s office because a) lawmakers didn’t follow “congressional custom” and send a notification letter first, and b) by the way, we’re not part of the executive branch to begin with, seem prima facie weak, in both senses of the word.

Even more strangely, Coffin separates the VP’s functions between “executive” and “legislative.” What? Bush’s hand might occasionally brush against a piece of legislation. Sometimes, he will even sign such a thing. Does that make him part of the legislature? (See Balkinization’s Marty Lederman for a dissection of that argument.)

The simpler route, it seems, would have been to follow the crowd and reject the panel’s request for documents by citing executive privilege.

Plus, the administration has better standing here. It’s hard to imagine any court, save maybe the 9th Circuit, that wouldn’t be swayed by the administration’s “national security” claims on domestic wiretapping and every other program involved in counterterrorism. Yes, Bush admitted two years ago that the U.S. was conducting domestic electronic surveillance without seeking warrants. But since then, the administration has stonewalled on just about everything related to security, from the surveillance program to the treatment of detainees.

Still, the president has made some important concessions, which should count in his favor if the goading and baiting from Congress actually escalates into something that matters. In January, Bush announced that the National Security Agency surveillance program would be brought under the purview of the Foreign Intelligence Surveillance Act, meaning warrants would again be required for all domestic wiretapping. (In May, however, officials said Bush had a constitutional right to bypass the FISA court.) And earlier in the administration, the White House reshaped the program to make it palatable to DOJ, which considered the original program unconstitutional.

We only know that, of course, because of testimony former DOJ officials have given to Congress in the attorney firings scandal. This fight is in some ways about the past — how the administration gathered intelligence stateside before Congress and the media began to wonder what it was up to. A few newspaper headlines might give the impression that Leahy’s about to cite Cheney for contempt, but that is highly unlikely. White House “officials” are one thing, but a sitting president or vice president is a whole other ball of wax. Arlen Specter, ranking Republican on the committee, has indicated he will resist taking the White House to court.

If history’s a reliable guide, all the administration’s secrets will come out eventually — just not while Bush is still in office. It’s hard to believe that even the most ardent critics don’t know on some level that their battle is a losing one. Jameel Jaffer, director of the ACLU’s National Security Project, says he doesn’t expect the administration to grant his organization’s request to view recent FISA court rulings.* However, the court has taken the unprecedented step of ordering the administration to respond to the ACLU’s brief by Aug. 31.

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