Case 1:08-cv-01548-CKK Document 18 Filed 09/23/2008 Page 1 of 10

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 HON. RICHARD B. CHENEY, et al., :
:
Defendants. :
____________________________________:

JOINT STATUS REPORT

By Order dated September 22, 2008, the Court directed the parties to confer “to discuss

whether or not it is appropriate for one or both parties to take narrow and expedited discovery”

and, “to the extent it is appropriate, the amount and nature (e.g., depositions, interrogatories) of

such discovery.” Thereafter the parties were directed to file a Joint Status Report including, as

appropriate, “an expedited discovery and briefing schedule” with an outside date of November

17, 2008. Pursuant to that Order the parties hereby submit this Report.

Plaintiffs’ Position

Discovery Requested

The record currently before the Court raises critical questions to which plaintiffs need

answers before they can move for summary judgment based on a lack of dispute over material

facts. Most fundamentally, as the Court’s Memorandum Opinion of September 20, 2008 (“Mem.

Op.”) (Document 16) recognizes, the White House defendants are preserving “only documentary

material reflecting the ‘functions of the Vice President specially assigned to the Vice President

by the President in the discharge of executive duties and responsibilities’ and the ‘functions of

the Vice President as President of the Senate.’” Mem. Op. at 12 (emphasis in original).
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Unaccounted for are records related to all other activities in which Vice President Cheney

engages, such as any functions he performs in his self-proclaimed non-executive branch

capacity, those functions he performs that are not “specially assigned” to him by the president --

including his more general and wide-sweeping advisory role -- and those functions he performs

pursuant to statute.1

In addition, through the declarations of Claire M. O’Donnell, Assistant to the Vice

President and Deputy Chief of Staff, defendants have established only what the Office of the

Vice President (“OVP”) is preserving and intends to transfer to the National Archives and

Records Administration (“NARA”) at the end of this administration. See, e.g., Declaration of

Claire M. O’Donnell, ¶ 7 (attesting to OVP’s intent to transfer to NARA “the vice presidential

records of the vice presidency of Richard B. Cheney within its possession, custody, or control . .

.”) (emphasis added). Still unaccounted for, however, are those records within the possession,

custody or control of the vice president, including records in his Senate office.

As a result, plaintiffs need discovery on the universe of functions the vice president

performs that are still not addressed and the documents he creates in fulfilling those functions.

To be clear, plaintiffs are not seeking discovery on the content of any particular document.

Rather, plaintiffs seek discovery on defendants’ policies as to how these other categories of

documents are treated for purposes of the Presidential Records Act (“PRA”).

Plaintiffs therefore propose to take the deposition of David Addington, former counsel to

the vice president and currently his chief of staff. Mr. Addington has been a leading proponent

1
For example, the vice president’s membership on the National Security Council is
conferred by statute, 50 U.S.C. § 402(a), as is his membership on the Board of Regents of the
Smithsonian Institution. See 20 U.S.C. § 42.

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of the position that the vice president is not part of the executive branch, has clearly been

involved in all aspects of Richard Cheney’s vice presidency and is therefore in the best position

(with the exception of Vice President Cheney) to address what is still unaccounted for in Ms.

O’Donnell’s declarations. Mr. Addington also serves as a record keeper for the vice president.

For example, it was Mr. Addington alone who maintained the vice president’s documents related

to the administration’s warrantless domestic surveillance program.2

Not only is Mr. Addington the most appropriate deponent, but a deposition is the best

way to seek this clearly relevant discovery. As the course of this litigation to date has revealed,

relying solely on written documents, carefully crafted by lawyers, does not bring the clarity

needed to advance the litigation. Answers to written depositions will pose the same problems as

the declarations have already posed, requiring follow-up to explore ambiguous responses and

even then not assuring that all the relevant facts will be provided.

Depositions will best meet the stated need for expedition. Any discovery of White House

officials, no matter how conducted, is likely to be contentious and involve assertions of

privilege. But privilege assertions made in response to written discovery will lead to the biggest

delay; defendants will not even raise claims of privilege until the deadline for responding to

discovery, and to the extent plaintiffs dispute those claims they will need to file a motion to

compel, which will generate a round of briefing before the issues are ready for resolution. By

contrast, a deposition conducted under the auspices of the court if necessary, or with the court

readily available to resolve issues that arise, presents the quickest way to address and resolve

2
See Barton Gellman, Angler The Cheney Vice Presidency (2008), pp. 282-284.

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privilege claims.3

Defendants cannot reasonably argue that such discovery is unduly intrusive, given that

the Vice President and the OVP are at the heart of this litigation: they are defendants and it is

their record keeping practices that are at issue. Moreover, the discovery is necessitated by the

defendants’ own failure to account fully for all of the records at issue by virtue of their

unlawfully narrow definition of what constitutes vice presidential records under the PRA.

Having already elected to respond to the Court’s inquiry with the patently inadequate

declarations of Claire O’Donnell, any objection to discovery beyond Ms. O’Donnell is not well

founded.

Second, plaintiffs seek to depose Nancy Kegan Smith, Director of the Presidential

Materials Staff in NARA’s Office of Presidential Libraries. While the declaration she has

already submitted fleshed out some of NARA’s policy with respect to a vice president’s

legislative records under the PRA, it did not address how Vice President Cheney’s legislative

records will be treated. See Smith Decl. at ¶ 4 (attesting only to NARA”s position regarding

former vice presidents). Just as critically, while Ms. Smith attested that NARA will retain all

records at issue, Smith Decl. at ¶ 6, she not define what constitutes that universe of records.

In addition, through their declarations both NARA and the OVP have suggested they are

working diligently to ensure that all of the vice president’s records are transferred to NARA at

the end of the administration. See, e.g., O’Donnell Decl. at ¶¶ 6, 7; Smith Decl. at ¶ 5. But a

3
For example, in CREW v. Dep’t of Justice, Civil No. 05-2078 (EGS), CREW took the
deposition of then-Associate Attorney General Robert McCallum at the courthouse and with a
magistrate judge on call to address any privilege claims. This procedure involved the most
minimal intrusion into the schedule of a high-level official and also allowed the expeditious
resolution of privilege claims.

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careful reading of Ms. Smith’s declaration reveals that, at most, she has attested to NARA’s

future intent. Smith Decl. at ¶ 5 (“NARA intends to work closely with the Office of Vice

President . . .”) (emphasis added). As set forth in the amended complaint, it is CREW’s

understanding that the White House has kept from NARA critical details about its records and

that this absence of information has impeded NARA’s ability to meet its obligations under the

PRA. Certainly these facts are relevant to the issue of whether all defendants have complied

with their obligations under the PRA.

Defendants’ position, as set forth below, is that no discovery is appropriate for the

reasons set forth in defendants’ motion for reconsideration (“Ds’ M. to Reconsider”), filed early

this morning. Plaintiffs have not had an adequate opportunity to fully assess this motion, but a

few points merit discussion.

First, defendants continue to ignore that the defendants include not only the Office of the

Vice President (“OVP”), but Vice President Cheney himself. As even the Office of Legal

Counsel opinion on which defendants rely in their recent motion makes clear, the OVP “is only a

small personal staff for the Vice President” that “does not even qualify as an ‘establishment.’”

Op. of Office of Legal Counsel, Whether the Vice President is an “Agency” for Purposes of the

Freedom of Information Act, Feb. 14, 1994, available at http://www.usdoj.gov/olc/foiavp.htm.

Thus, the three declarations of Claire O’Donnell, which speak only to what the OVP maintains

but are completely silent as to what the vice president maintains -- either in his White House or

Senate offices4 -- are patently inadequate to demonstrate that defendants are preserving all

4
See, e.g., Ds’ M. to Reconsider at pp. 2 (asserting that there are no vice presidential
records, as defined by defendants, “that the Office of the Vice President has excluded”); 2-3
(characterizing O’Donnell declarations as reflecting how the OVP “applies section 2207 [of the

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records at issue.5

Second, like the two declarations filed previously by Ms. O’Donnell, her latest

declaration makes sweeping statements not backed by factual support and that, in key respects,

are simply false. For example, defendants continue to argue that all of the vice president’s

functions are covered by either the category of functions specially assigned to the vice president

by the president or the category of his functions as president of the Senate. Ds’ M. to Reconsider

at 4. But neither of these categories includes the vice president’s duties assigned by statute,

including his membership on the National Security Council, 50 U.S.C. § 402(a), and the Board

of Regents of the Smithsonian Institution, 20 U.S.C. § 42. Rather than deal with this glaring

omission straight-on, defendants resort to contorted logic, arguing that these statutory functions

are “specially assigned to the Vice President by the President,” Ds’ M. to Reconsider at 4. Such

an argument may be the outgrowth of a very aggressive view of the unitary executive, but it

remains the case that these functions were assigned by Congress, not the president.6

PRA]”); 4 (reiterating this characterization as to how the OVP applies the PRA); 5
(mischaracterizing lawsuit as arising only out of “the bald assertion that the [OVP] has failed to
comply with section 2207"); 6 (“declarations . . . show that the [OVP] applies section 2207 to all
document materials . . .”).
5
As this Court noted in its Memorandum Opinion, defendants “have not established a
factual record to support” the argument of their counsel that only the OVP should be bound by
any preservation requirement (Mem. Op. at 21). This remains the case.
6
And what of the records that Vice President Cheney has maintained exclusively and
separately in a vault in his office, accessible to only a few individuals in the White House? See
supra at 3. Not having made even the president aware of at least some of these documents, there
is no basis to conclude that the vice president has shared their existence with Ms. O’Donnell or
that Ms. O’Donnell, in turn, is preserving them as vice presidential records. The most that can
be said from Ms. O’Donnell’s declarations is that she is preserving all that she has; her
declarations do not, however, account for all vice presidential records that exist -- whether or not
housed with the OVP.

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Third, defendants still have yet to acknowledge, much less deal with, the conduct that is

at the core of this lawsuit. The vice president believes he is not part of the executive branch and

therefore has the ability to unilaterally opt out of executive duties and responsibilities at his

discretion. All three of the O’Donnell declarations speak to the vice president’s “executive-

related functions,” but say nothing about his self-proclaimed non-executive functions.7 Nowhere

in the declarations is there a statement or other assurance that these functions are accounted for.

This omission is all the more glaring given defendants’ refusal to also acknowledge that the vice

president is a defendant to this litigation with obligations under the PRA separate and apart from

obligations that run to the OVP.

In short, Defendants’ motion and latest declaration highlight in graphic relief the need for

depositions. Through their complaint and motion for a preliminary injunction, defendants have

made abundantly clear from the outset of this litigation the nature of this dispute and its factual

underpinnings. With numerous opportunities to address these issues, defendants have come up

short each time. Only through focused depositions will the Court be afforded an adequate record

from which to resolve the important issues this litigation raises.8

7
While Ms. O’Donnell now states that “in doing his job as Vice President” Mr. Cheney
engages only in activities that fall within the two enumerated categories of functions, Second
Supplemental Declaration of Claire M. O’Donnell at ¶ 6, she does not state here -- or anywhere
else -- that this includes any record the vice president creates in his self-proclaimed non-
executive capacity. Moreover, given that her responsibilities are limited to records management
within the OVP, id. at ¶ 1; that she does not even mention, much less address, a basis for any
knowledge she may have of the vice president’s duties beyond the OVP; and the facially under-
inclusive nature of the categories she insists are all-inclusive (e.g., they exclude statutory
functions), her bald statement provides no basis to deny discovery.
8
Defendants also argue that discovery should be stayed pending their filing of a
dispositive motion that will go to the Court’s jurisdiction. Ds’ M. to Reconsider at 7, 8. But
defendants only hint at the jurisdictional deficiencies they perceive, suggesting plaintiffs lack

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Timing Of Discovery

Defendants failed to respond to plaintiffs’ request for the availability of Ms. Smith and

Mr. Addington in the next week, even though plaintiffs explained that they could not propose a

briefing schedule without this necessary information. Plaintiffs are prepared to take these

depositions as early as September 26, 2008, with an outside date for completing discovery of

October 6, 2008.

Plaintiffs’ Proposed Briefing Schedule9

In light of the need to conduct discovery, plaintiffs propose that the current briefing

schedule be modified as set forth below, retaining the outside filing date of November 17, 2008.

This schedule is dependent on all discovery being completed by October 6, 2008.

Plaintiffs’ Motion for Summary Judgment: October 17, 2008

Defendants’ Opposition and Cross Motion: November 3, 2008

Plaintiffs’ Reply and Opposition: November 12, 2008

Defendants’ Reply: November 17, 2008

Defendants’ Position

standing. Id. at 8-9. Divorced of any analysis or facts, defendants’ argument offers no basis to
stay discovery in light of the material facts in dispute. Defendants’ additional argument that
discovery should be stayed because plaintiffs’ causes of action “arise only under the APA or
seek statutory review,” id. at 9 n.5, mischaracterizes the nature of this action -- which is not
based on a formal administrative record -- and ignores that plaintiffs’ claims arise out of the
Declaratory Judgment Act as well as the mandamus statute. Of note, defendants have yet to
certify an administrative record. Finally, defendants ignore altogether plaintiffs’ claims against
NARA and the archivist, based on those defendants’ separate policy of treating legislative
records of vice presidents as subject to the PRA only at the discretion of each vice president.
9
Plaintiffs note that defendants’ proposed briefing schedule, by which defendants would
file their dispositive brief on October 15, 2008, is completely at odds with their previously
expressed insistence that plaintiffs file the first brief

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For the reasons set forth in defendants’ Motion for Reconsideration and Clarification of

the Court’s Memorandum Opinion and Order of September 20, 2008 [17], any proposal by

plaintiffs to conduct “narrow and expedited discovery” is not appropriate. Because the case

should be resolved on defendants’ motion to dismiss, defendants propose the following

accelerated briefing schedule, which would complete briefing only one week after defendants

would otherwise have to respond to the Amended Complaint under the Federal Rules of Civil

Procedure:

C October 15, 2008: Deadline by which defendants file a motion to dismiss;

C October 29, 2008: Deadline by which plaintiffs file an opposition to the motion

to dismiss and any cross-motion for summary judgment;

C November 7, 2008: Deadline by which defendants file they reply in support of

their motion to dismiss/opposition to cross-motion for summary judgment;

C November 17, 2008: Deadline by which plaintiffs file their reply in support of

their cross-motion for summary judgment.

Defendants received plaintiffs’ portion of the “joint status report” at 11:41 a.m. in

advance of the 1 p.m. deadline by which to file a joint status report. Plaintiffs’ submission

consists of argument that would be more appropriately raised in support of a motion to conduct

significantly expedited discovery outside of the timing and sequence even permitted by the

Federal Rules of Civil Procedure (assuming that discovery would be appropriate in an

Administrative Procedure Act action at all). If plaintiffs intend to convert their “status report”

into a motion to conduct expedited discovery, defendants respectfully request the opportunity to

file a formal opposition, setting forth all the reasons why discovery is wholly inappropriate in

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this action. This is particularly so in light of defendants’ motion for reconsideration and all four

declarations submitted in this action, which construed reasonably, conclusively establish that no

case or controversy exists in this case.

Respectfully submitted,

/s/
Anne L. Weismann
(D.C. Bar No. 298190)
Melanie Sloan
(D.C. Bar No. 434584)
Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
Phone: (202) 408-5565
Fax: (202) 588-5020

Attorneys for Plaintiffs

GREGORY G. KATSAS
Assistant Attorney General

JEFFREY A. TAYLOR
United States Attorney

/s/ Helen H. Hong _______________

JOHN R. TYLER (DC Bar No. 297713)
HELEN H. HONG (CA SBN 235635)
Trial Attorneys
U.S. Department of Justice, Civil Division
P.O. Box 883, 20 Massachusetts Ave., NW
Washington, D.C. 20044
T: (202) 514-5838
Counsel for Defendants

September 23, 2008

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