this morning, emptywheel writes on
cheney-bush, and why the OLC opinion
holding that presidents aren’t bound
by their own executive orders is so scary.
it means that every executive order
may have been turned to “pixie dust” — and
we’d never know it. unless, of course, there
were persistent, unpunished violations. . .
one such prior example of this — click
to enlarge — (this is complete-DoJ-cases-
and-investigations-access for cheney):
let’s listen in — do go read it all, though:
. . .In 2003, for example, Vice President Cheney
(and the President’s Foreign Intelligence Advisory
Board) stopped providing the National Archives
with data describing his office’s classification
and declassification activities. No explanation,
he just stopped doing so.
Then, in 2004, the National Archives prepared
to do an inspection of OVP, as it is mandated
to do. Yet OVP refused to let the NA conduct
the inspection. Finally, when Bill Leonard of
ISOO appealed to DOJ for a ruling on Cheney’s
refusal to submit to the plain text meaning
of Bush’s EO, he was told (six months later)
that the EO had turned to Pixie Dust.
Specifically, he was told four years after
the fact that President Bush did not intend
for OVP to be an agency under the EO. On
July 12, 2007, the Counsel to the President
wrote a letter to Congress stating that
“[t]he President has asked me to confirm
to you that … the Office of the Vice President … is not
an ‘agency’ for purposes of the Order.” …
That statement on behalf of the President resolves
the question you presented to the Attorney General.
Therefore, the Department of Justice will not be
providing an opinion addressing this question.
Poof! Four years after Cheney stopped reporting
his classification activities, three years after
NA tried to do the original inspection, Bush got
around to telling Bill Leonard that the plain
text of the EO doesn’t mean what it appears to
mean. And Bush only told Leonard that news via
Fred Fielding via Sam Brownback via Steven Bradbury.
It took Congress threatening to withdraw funding
from OVP before the President decided to tell the
guy whose job it is that the EO at the center of
his mandate doesn’t mean what it appears to mean — and
what he has understood it to mean for all the
years he has done the job. As Leonard said via email:
I was not told that the Order was in some way being
modified, I was told that the Order meant
something other than what I (and others)
thought a plain text reading would indicate,
especially in the context in which it was
originally developed. . .
You see how these Pixie Dust EOs can confuse issues?. . .