The Politico's Mike Allen is reporting that the White House has abandoned the claim that Vice President Cheney is not part of the Executive Branch. Apparently the letter from Cheney Chief of Staff David Addington to Senator John Kerry we reported on yesterday was intended to shift the ground away from the argument that Vice President Cheney is not in the Executive Branch to an equally difficult argument that the Vice President is not an "agency" that needs to comply with the President's Executive Order on National Security Oversight. I say difficult because that executive order is not limited to agencies, but by its very terms extends to all "entities" within the Executive Branch. Unless you are going to argue the Vice President isn't an entity it is hard to argue the Executive Order doesn't apply to either him or his office. In an update the Politico reports
Kerry called the Addignton letter "legalistic" and a continued attempt to "duck and dodge on agency scrutinty, classified documents." He has posted it on his Senate Web site.Rawstory is reporting that
In his original letter, dated Monday, Kerry said: "In the interest of transparency I request the reasoning behind any claims that the Office of the Vice President does not fall under the executive branch. Additionally, given that the Office of the Vice President has not been issuing reports or allowing inspectors to verify any safeguards, I would like to know what steps the Office is taking to protect classified information."
One legal scholar, Marty Lederman, offered a substantive critique of Addington's claim to Kerry.Here is a link to Lederman's outstanding legal analysis posted at Balkinization. Obviously, the Vice President's current legal argument isn't better than his first one. He needs to find new lawyers, maybe lawyers who realize that people aren't as dumb or deferential as the Vice President hopes.
"Such an interpretation would be belied by the fact that until 2003, the OVP did comply with the ISOO directive, and, even more so, by the fact that entities within the Executive Office of the President, such as the National Security Council, are reported to continue to comply to this very day," he observed in a lengthy post at Balkinization.
I don't think this story will end even if the Vice President comes clean. The only logical reason the VP would have stopped compling with the Executive Order in 2003 is that something very bad happened in his office. Something so bad that he doesn't want any of us to ever find out. If he comes clean, we will all find out what he is hiding. That might be the end of Vice President Cheney's career.