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Cheney Has Discretion Over Records, Judge Says

(CN) - A federal judge in Washington, D.C., ruled that, despite the government's "constantly shifting positions," a coalition of historians and archivists were unable to prove that outgoing Vice President Dick Cheney and his office intended to illegally destroy records at the end of President Bush's eight-year term.

U.S. District Judge Colleen Kollar-Kotelly said she was "bound to apply the Presidential Records Act (PRA) as Congress enacted it, which provides only narrow areas of oversight relating to the Vice President's document preservation decisions."

Plaintiffs, led by the Citizens for Responsibility and Ethics in Washington, accused Cheney of changing the definition of vice-presidential records, which would allow his office to destroy records that were supposed to be preserved.

Judge Kollar-Kotelly first determined that the PRA does not preclude judicial review of the plaintiffs' claims.

"The court finds that it 'borders on the absurd' to believe that Congress statutorily defined Vice-Presidential records and required the Vice President to implement steps to preserve them, but denied any judicial review to prevent the Vice President from using a different definition for Vice-Presidential records," Kollar-Kotelly wrote.

She then ruled that although the plaintiffs brought "legally cognizable" claims under the Mandamus Act and the Declaratory Judgment Act, she was required to rule for the defendants.

The plaintiffs deposed a senior White House aide, who testified that Cheney and his office were fully complying with their obligations under the PRA.

"Plaintiffs were unable to rebut this representation through their discovery," Kollar-Kotelly wrote. "The Court therefore has no basis on which to award Plaintiffs relief against the Vice President and the Office of the Vice President."

She dismissed claims against the Executive Office of the President, because it was not in charge of document classification or preservation.

"It is clear, as Defendants emphasize, that the Vice President has discretion concerning the decision to create or dispose of Vice-Presidential records, and even how he chooses to preserve them."

Kollar-Kotelly also dismissed the plaintiffs' claims against the U.S. Archivist and the National Archives & Records Administration, because they have limited roles during the vice president's term in office.

The decision vacates a September 2008 order requiring the defendants to preserve the records while the case was pending.

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