Don't Misunderestimate Dick Cheney

By John Dean, FindLaw.com. Posted June 30, 2007.

Vice President Dick Cheney has regularly claimed that he is above the law, but until recently he has not offered any explanation of why.

In fact, it is becoming increasingly difficult to find a law that Cheney believes does apply to him, whether that law be major and minor. For example, he has claimed that most of the laws passed in the aftermath of Watergate were unconstitutional, and thus implicitly inapplicable. His office oversees signing statements claiming countless new laws will not be honored except insofar as the President's extremely narrow interpretation allows. He does not believe the War Powers Act should be honored by the President. Nor, in his view, should the President be bothered with laws like the Foreign Intelligence Surveillance Act (FISA). In fact, it appears Cheney has actively encouraged defiance of such laws by the Bush Administration.

For Cheney, the Geneva Conventions -- considered among the nation's most important treaties -- are but quaint relics that can be ignored. Thus, he publicly embraced their violation when, on an Idaho talk radio program, he said he was not troubled in the slightest by our forces using "waterboarding" -- the simulated drowning of detainees to force them to talk. There are serious questions as to whether Cheney himself has also conspired to violate the War Crimes Act, which can be a capital crime.

A man who can so easily disregard the War Powers Act, FISA, the Geneva Conventions, and the War Crimes Act is merely flicking fleas when it comes to complying with laws like the Presidential Records Act, which requires him to keep records. Yet as CNN and other news organizations have reported, Cheney ordered the destruction of the visitor logs to his residence. These, of course, are presidential records the law requires him to preserve and protect. (Indeed, neighbors of the Vice President were surprised when, in the past, a truck for a document shredding service would regularly visit the Vice President's residence at the Naval Observatory.)

Most recently, the Vice President has refused to comply with Executive Order 12958, as amended by his boss, George W. Bush. These orders were issued to implement the law adopted by Congress in 1995 to clarify the classification and protection of national security information.

Most interesting in Cheney's defiance is his absolutely absurd explanation of why the law is not applicable to him or his staff.

Cheney's explanation(s) for defying the National Security Classification orders

Henry Waxman, who may be the nation's most diligent and vigilant member of Congress, recently reported that Vice President Cheney claims he is exempt from the presidential orders requiring government-wide procedures to safeguard classified national security information because he is not an "entity within the executive branch." According to information provided to Chairman Waxman's Oversight committee, Cheney further claimed he was not an "agency" as set forth in the Executive Orders.

When Cheney was widely ridiculed by humorists, cartoonists, pundits, commentators and several members of Congress for his claim of not being an "entity within the executive branch," the Vice President's chief of staff and counsel David Addington responded by asserting that the Vice President is not subject to the order because he is not an "agency" as defined by the order. (Addington thus effectively dropped the claim that the Vice President is not an "entity.")

However, Addington does not cite any authority or language for his new claim that the Vice President is not an "agency." In fact, there is none. To the contrary, the order controlling national security classification states exactly the opposite of what Addington claims. Executive Order 12958 states that the term "Agency" means any "Executive agency," as defined in the statutory language found at 5 U.S.C. 105, and it includes "any other entity within the executive branch that comes into the possession of classified information." An entity is any "body" or "unit" or "thing" within the executive branch, and to claim the Vice President's office is none of these is an insult to common sense. So is Addington's claim that the Office of Vice President is not an agency under the law.

Section 105 of Title 5 of the United States Code states that an "‘Executive agency' means an … independent establishment" within the executive branch. Independent establishments are defined by Section 104 as "an establishment in the executive branch … which is not an Executive department [which are listed in Section 101, and include the Departments of State, Treasury, Justice, etc.], military department, Government corporation, or part thereof, or part of an independent establishment."

The Justice Department issued an opinion in 1994 that the Vice President was not an "agency" under the Freedom of Information Act. That opinion was largely based on the Supreme Court ruling, in Kissinger v. Reporters Comm. for Freedom of the Press, that "agency" does not cover "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President."

However, the agency definition in E.O. 12985 is very different from that in the Freedom of Information Act. If, as Addington claims, E.O. 12985 was intended to exempt the Vice President's office, why did it not so state? Or, why did Bush not exempt the Vice President when he amended that order in July 2005?

Cheney's claim his office is neither an entity nor agency defies logic, but it is not surprising since he continues also to claim, with absolutely no evidence to support his claim, that Saddam Hussein was involved in 9/11 and that terrorist Abu Musab al Zarqawi set up an al Qaeda operation in Iraq.

Needless to say, Cheney's claim -- or Addington's claim, since Cheney appears to be backing away from his chief of staff and counsel on this issue -- raises the question of what the vice president is. Legally, the vice president has only the most limited of powers and authority, unless the president empowers him.

The limited role the Constitution and a federal statute envision for the Vice President

The Vice President's very limited but vital roles are set forth in the Constitution. He is the next in succession to become President, should there be a vacancy or should the president suffer from mental or physical inability to serve. And he is the president of the Senate, which means he can preside over the Senate but under the Senate Rules, he cannot take part in debate, and under the Constitution, he can only vote to break a tie.

In the event of a vacancy in the office of the president, under Article II and the Twenty-Fifth Amendment, the Vice President becomes the Acting President. Also under the Twenty-Fifth Amendment, the Vice President, when acting with a majority of the Cabinet, can also declare the president is "unable to discharge the powers and duties of his office." If he so declares, then after so informing Congress, the Vice President becomes Acting President until the President notifies Congress that he is fine; if there is a dispute, the Congress resolves it.

The only other Constitutional duty of the Vice President is that set forth in Article I, Section 3, clause 4, which makes the Vice President the "President of the Senate, but [he/she] shall have no Vote, unless they be equally divided." Not since the nation's second Vice President, Thomas Jefferson, decided it was a waste of time to preside over the Senate has any Vice President done so -- other than to break ties or for ceremonial events, such as the State of the Union or the tallying of electoral college votes.

Since 1947, the Vice President has been given a number of statutory duties, when President Truman recommended, and the Congress agreed, that the Vice President should be a member of the National Security Council. This, however, is the most significant of his statutory assignments.

Thus, beyond the limited constitutional responsibilities, and the few statutory tasks, the Vice President's role comes down to whatever the President assigns him. Vice Presidents can have no role greater than the assignments given by the president -- or in the case of Dick Cheney, whatever he has been able to convince the President he can appropriately handle for him.

The source of Cheney's power: influence, not a formal grant of authority

Washington insiders have long understood that Cheney's power stems from his knowledge of the way the White House and the Office of the President operate. This is knowledge he acquired as President Ford's Chief of Staff. With Bush's consent, much of the paper flow of the White House which heads up the chain of command toward the President goes through Cheney's office. In addition, Cheney's staff reaches down into the executive bureaucracy to shape the debate before it reaches the White House.

Those with whom I have spoken have serious doubt that Bush and the White House staff really knows what Cheney is doing, why he is doing it, or how he is doing it. From the outset of this administration, Cheney has been instrumental in placing people loyal to him throughout the Executive Branch. This is not to say that Bush in not "the decider," for he is, but by shaping the debate and controlling the paper flow, Cheney decides what the decider will decide.

It has long been apparent that Cheney's genius is that he lets George W. Bush get out of bed every morning actually believing he is the President. In fact, his presidency is run by the President of the Senate, for Cheney is its true center of gravity. That fact has become more apparent with every passing year of this presidency, and anyone who thinks otherwise has truly "misunderestimated" our nominal president and his vice president.

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John W. Dean, a FindLaw columnist, is a former counsel to the president.

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