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.
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.