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UNITED STATES DISTRICT COURTFOR 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.: ____________________________________:
PLAINTIFFS’ REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT
In 1974 a disgraced president left office together with his presidential papers. Congressin response enacted a law mandating public ownership of a president’s papers to prevent anyfuture heist of our nation’s historical legacy. Through this legislation and its successor versions,including the Presidential Records Act (“PRA”) at issue here, Congress recognized a democracycannot survive without access to the historical record of its government’s behavior.  Now, over 34 years later, Vice President Cheney has launched a direct assault on that principle and the historical checks and balances Congress put in place, attempting to deprive the public of at least some of his vice presidential papers. Because of what he perceives as inimpermissible intrusion on executive power and prerogatives, Mr. Cheney claims the absolutediscretion to decide what the PRA means and to implement his interpretation, subject to nochallenge or judicial review whatsoever. At bottom this dispute is not just over the meaning and intent of an act of Congress. Rather, it raises a fundamental question as to whether the vice president will be allowed to subvert congressional checks and balances to further enhance the power of the executive. For a host of reasons the answer must be no.
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2 No precedent supports the unchecked discretion and power the vice president demandshere. Neither the Supreme Court in Kissinger v. Reporters Comm. for Freedom of Press, 445U.S. 136 (1980), nor the D.C. Circuit in Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991)(“Armstrong I”,) held that
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aspect of the PRA is subject to judicial review. Defendants’attempt to shoe-horn this case into the category of PRA challenges for which there is no reviewignores that plaintiffs are not challenging the vice president’s day-to-day compliance with thatAct. Rather, plaintiffs seek to prevent the vice president from re-writing the PRA to narrow a provision that is of “primary importance to the act.” Am. Historical Ass’n v. Peterson, 876F.Supp. 1300, 1314 (D.D.C. 1995).Alternatively, mandamus relief is available as the PRA leaves the vice president with nodiscretion to redefine the scope of his records subject to the Act’s provisions and to deprive the public of its unambiguous right of ownership and access to the records of the Bushadministration. Defendants’ arguments to the contrary rest on their unsupportable interpretationof the PRA as giving the vice president absolute discretion to define those classes of his recordsthat are subject to the Act.Defendants also challenge plaintiffs’ standing, ignoring the undisputed facts thatestablish the standing of each plaintiff. To counter this evidence defendants offer a merits-based argument, which fails on its own terms and is, in any event, a thinly disguised attempt to shift to plaintiffs a burden defendants properly bear.Finally on the merits, defendants fail to come to terms with the clear limitations on theso-called evidence they have proffered, evidence flowing from an unqualified source that doesnot address any of the actions of the vice president himself, a separately sued defendant. It is
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 Defendants’ Reply in Support of Their Motion to Dismiss (“Ds’ Reply”), pp. 4-5.3defendants, not plaintiffs, who refuse to acknowledge the record and their own facially under-inclusive definition of vice presidential records, and who rely at bottom on the repeated butunproven incantation that they are complying with the law. If the vice president’s interpretation of the PRA is left unchecked we face the risk of losing large swathes of records on a range of historically important issues, from the drafting of the government’s policy on detainee treatment and torture to the vice president’s involvement inthe leak of Valerie Plame Wilson’s covert CIA identity. Facially these areas do not fall under the “specially assigned” category of records defendants are preserving and there is otherwise noevidence documenting their preservation. This is a risk our nation simply cannot afford.
ARGUMENT
 
I. Plaintiffs Have Judicially Remedial Rights Afforded By The PRA For Which Declaratory And Mandamus Relief Is Available.A.
 In disputing plaintiffs’ ability to seek review of rights afforded them by the PRA,defendants misrepresent governing case law and misconstrue the proper private right of actionanalysis. Defendants start from the erroneous premise that the D.C. Circuit in a series of casesrecognized a “clear proscription on PRA-based claims,”
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 and argue that as a result, there can beno private right of action for plaintiffs to challenge defendants’ attempt to redefine vice presidential records under the Act. To the contrary, the D.C. Circuit in Armstrong v. ExecutiveOffice of the President, 1 F.3d 1274, 1293 (D.C. Cir. 1993) (“Armstrong II”), clarified that itsdecision in Armstrong I “does not stand for the unequivocal proposition that all decisions made pursuant to the PRA are immune from judicial review.”
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