It Depends on What the Definition of "Agency" Is

by emptywheel

I get the feeling that someone in the White House told OVP that their claim to be a Fourth Branch of government carried some serious risk to the White House. After all, if Cheney now claims he's not in the Executive Branch, then he's got to hand over the Energy Task Force documents, right?

So now David Addington has revised his rationale, claiming that OVP is simply not an agency.

"Dear Senator Kerry," Addington writes. "The executive order on classified national security information -- Executive Order 12958 as amended in 2003 -- makes clear that the Vice President is treated like the President and distinguishes the two of them from 'agencies.'"

No longer satisfied with the Vice President's office's claim that Cheney is actually an admixture between the legislative and executive branch, Addington now posits that the Vice President's office is not an "agency."

"The executive order gives the [Information Security Oversight Office], under the supervision of the Archivist of the United States, responsibility to oversee certain activities of 'agencies,' but not of the Vice President or the President."

Luckily, we can revert to Clinton for clear language as to what an "agency" is in the relevant Executive Order:

     (i) "Agency" means any "Executive agency," as defined in 5 U.S.C. 105, and any other entity within the executive branch that comes into the possession of classified information. [my emphasis]

Bush adds a bit to Clinton's clear language when he amends the EO in 2003. But there's still that funny clause encompassing any entity within the executive branch that comes into possession of classified information.

     (b)  "Agency" means any "Executive agency," as defined in 5 U.S.C. 105; any "Military department" as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into the possession of classified information.[my emphasis]

So either Addington is still relying on the "not within the executive branch" gag, or he's making an even more ridiculous argument than Clinton made about his blow job.

And I bet Clinton's blow job was a lot more fun than the one Addington is giving us.

Update: Boy, Mike Allen is consistently just none too bright, huh? You see, they're painting Addington's latest word games as a win by the Dems. Or perhaps they just don't want to admit that Addington's letter is at least as absurd as the Fourth Branch argument, and a transparent attempt to have Rahm's money and avoid oversight too.

Officials working for Cheney had tried to claim he is separate from the executive branch, but they will no longer pursue that defense, senior administration officials tell The Politico.

The decision follows a threat by Rep. Rahm Emanuel (Ill.), the No. 3 House Democrat, to try to cut off the office’s $4.8 million in executive-branch funding.

[snip]

Addington said that therefore it “is not necessary in these circumstances to address the subject of any alternative reasoning.”

That amounted to throwing in the towel, according to administration officials speaking on condition of anonymity. The White House has no plans to reassert the argument there is any vice presidential distinction from the executive branch, the officials said.

Two senior Republican officials, speaking on condition of anonymity, said that the rationale had been the view of the vice president’s lawyers, not Cheney himself. [my emphasis]

Um, no, Mike, it amounted to playing word games in an effort to grasp tightly to the towel. And these leaks amount to you getting spun, badly. As you point out yourself...

Now, a senior administration official tells The Politico: “It's a moot point to get into executive functions and legislative functions because of the executive order's intent.

That trumps all because it is what the president intended.” The vice president's spokespeople have been explaining the intent that way for several days, without making a case on the executive-legislative issue. [my emphasis]

In other words, they're retreating from the Fourth Branch to a claim about "agency" that contradicts the plain language of the Executive Order, all the while invoking an "intent" that is less clear than any of hundreds of Bush's own signing statements. But they have, in no way, thrown in the towel.

Comments

[TiredFed]

what a strange web. The VP is a position, but his office is an Agency in my book. At last count, Cheney had something like 50 people in OVP, and more over in his Senate office. A little more sunshine, please.

[Neil]

EW, how does this reflect on your assessment that Addington has respect for the rule of law?

In case you missed it.

[P J Evans]

Addington is trying to dance through the minefield, but I think he's about to step on one.
I don't think Congress is going to buy the theory here - most of us non-lawyers aren't buying it, so why should they?

[Kagro X]

Addington can say what he says and still respect the rule of law. Someone just has to hand him a ruling.

Until someone does, blowing this kind of shit out his ass is just "zealous advocacy."

[bmaz]

Yeah, I am with Kagro X on this one; Addinton pitches a bunch of circular shit and never addresses the question, but that is what a high tech lawyer does every day. I would come a lot closer to buying the argument that the authoring of the torture document for abuGonzales indicates a lack of respect for the law than this letter.

[*xyz]

I think someone pointed out the other day that Addington's interpretation of the law gets a lot less "out there" when such an interpretation would put Addington himself in legal jeopardy...

However, in representing others, and to the extent that Addington himself would not be put at risk, Addington's interpretations may deviate greatly from the mainstream of the legal community and legal traditions.

I haven't done enough research on this observation to make any conclusions - but I wanted to mention it again as it seems relevant to the discussion.

[Albert Fall]

Bringing it all back to Scooter:

Cheney has been working on the motto, “I will pretend to tell the truth, and you will pretend to believe me,” which coupled with his influence was enough to carry the day for everyone except Patrick Fitzgerald.

At this point, the OVP lies are increasingly transparent.

The Post pieces make clear that NOBODY freelances on Dick Cheney. Scooter did what he was told when he leaked Plame’s identity.

Here is the OVP throwing out more of its made up excuses for why it does not have to be accountable, and Scooter is about to go to real jail.

Man, I wish that was enough to get him to talk.

[quake]

Since waterboarding isn't torture maybe it would be OK to give Shooter a little drink of water and see if he spills the beans..... Just kidding, I think. :-)

[Kagro X]

The Politico reports that Rahm has helped Cheney see the light:

Dems force Cheney flip-flop on secret docs
By: Mike Allen
June 27, 2007 10:36 AM EST

Dick Cheney's office is abandoning a justification for keeping the Vice-President's secret papers out of the hands of the National Archives.

Officials working for Cheney had tried to claim he is separate from the executive branch, but they will no longer pursue that defense, senior administration officials tell The Politico.

The decision follows a threat by Rep. Rahm Emanuel (Ill.), the No. 3 House Democrat, to try to cut off the office’s $4.8 million in executive-branch funding.

[Slothrop]

Whole thing reminds me of the scene in "Chicago" where "attorney" Richard Gere takes to tap dancing in the courtroom.

[Boo Radley]

All this talk of the Veep's office as "not an entity" of the Executive Branch reminded me of Enron's "SPE's" (special purpose entities) the Raptors, .... .

[TomJ]

At balkinization, there was mention of the fact that the Executive Order was required by a 1994 law:
"Counterintelligence and Security Enhancements Act of 1994, which requires (50 U.S.C. 435(a)) the President to "establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government." (Thanks to "gnarly trombone" in the comments for the cite.)"

So it really doesn't matter what the president's intent was. And the EO also resulted in administrative regulations:

http://www.archives.gov/isoo/policy-documents/eo-12958-implementing-directive.html

So I don't think that Bush can just step up to the mike and say 'it's all good'.

[Roe Pa Doap]

It was pretty clear several days ago that OVP would fall back on the "VP is not an executive entity" argument. For Mike Allen to misrepresent the current state of play the way he does indicates, as you say, his utter cluelessness, or his willingness to pitch the OVP's rope-a-dope talking points.

[Redshift]

Good catch, TomJ! It looks to me like they're really falling back on "the president can do whatever he wants, so if he says he meant for the VP to be exempt, that's that." (And also the little-noticed exemption of the president's office, with no legal justification whatsoever.)

It's the Unilateral Executive all over again, and that's the real fight Waxman et al. should be having. These regulations and orders are to implement laws, and where there are laws, the president can't just "do whatever he wants." If the president actually "intended" them not to apply to himself and Cheney, then the president "intended" to break the law.

And that's not an obscure matter for "constitutional scholars," Ms. Perino and Mr. Addington.

[bmaz]

People keep talking about the "exception for the President" and whether or not it also applies to the OVP. I have read the original EO, as well as the EO entered by Bush modifying the original, and do not see an exception for either President or OVP. This is just bullshit they spewed out their rear ends. They may wish there was an exception, but there is not. Even the lying sophist Tony Snowjob admitted that you would have to "infer" it; well, that is not how a rule or regulation of this type is interpreted. So, please folks, do not give them the legitimacy of discussing an "exception"; there is none.

[freepatriot]

kinda hard to keep all of your bullshit together in one pile, ain't it dead eye ???

and it's even harded when your bullshit this week contradicts your bullshit from last week

so which is it dead eye dick:

are you a part of the executive office, with responsibilities to preserve documents in accordance with US Law

or are you NOT a part of the executive office, in which case those enegy task force documents have to see the light of day, and begin the War Crimes trial

damned if you do, and damned if you don't

if dead eye dick is such a great hunter, how did he manage to constuct his own trap, and then walk right into it ???

short term thinking and bad bullshit are a dangerous combination

ROTFLMAO

[pdaly]

$4.8 million is a lot to me, but sounds like petty change to oil tycoons. Said another way, I am surprised at how much havoc OVP has wreaked with just $4.8 million. I guess it is always easier to destroy than to build. Just ask the 9-11 terrorists.

What else besides petty change does the OVP lose by stepping out of the "Executive Office" circle?

[Marlene Maldonado]

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