The Washington Post has quietly retreated from a legal battle with Vice President Cheney by dropping a lawsuit demanding Secret Service logs of visitors to his office and residence.
The newspaper's Freedom of Information Act lawsuit prompted a flurry of press attention and court action just prior to the November election. In October, a district court judge in the capital, Ricardo Urbina, cited the looming vote when he ordered the Secret Service to comply immediately with the Post's request. However, just six days before the election, the D.C. Circuit Court of Appeals issued an emergency stay blocking Judge Urbina's order.
"We have decided not to pursue litigation further, though we believe we would have prevailed in the court of appeals as we did in the trial court," a Post attorney, Eric Lieberman, said in an e-mail yesterday. He said the paper had "a fundamental goal" of getting the records to inform voters before the election and failed in that regard. "We also considered the fact that there are several other well positioned FOIA lawsuits seeking these same types of records, and we are confident that the public's right of access will ultimately be vindicated in them," Mr. Lieberman said.
Before the Post abruptly backed down, its case was shaping up as a high-profile clash between Mr. Cheney's broad notions of executive privilege and the newspaper's insistence that the public has the right to know about lobbying and influence peddling at the highest levels of government.
The Post withdrew its lawsuit in a one-page notice filed with Judge Urbina on January 8. An official at the newspaper said concerns about the cost of the litigation and about angering the White House did not play a role in the paper's decision.
A spokeswoman for Mr. Cheney, Lea Anne McBride, told The New York Sun that the government did not veer from its position that releasing the logs would violate the Constitution by interfering with the vice president's ability to seek candid advice. "That has not changed," she said yesterday.
"Disclosure of the records at issue could reveal an ever-expanding mosaic that would allow observers to chart the course of Vice Presidential contacts and deliberations in unprecedented fashion," government attorneys wrote during the legal maneuvering last fall. "Such an unwarranted intrusion into the most sensitive deliberations of the Vice Presidency cannot be countenanced."
In its records request, submitted in June, the Post sought information from the Secret Service about all visitors to Mr. Cheney and members of his senior staff since October 2004, both at the vice president's offices in the White House complex and at his official residence at the Naval Observatory in northwest Washington.
To fight the Post's lawsuit, government lawyers relied on a May 2006 memorandum of understanding that designated the Secret Service's visitor data as presidential records. While records of the Secret Service are subject to disclosure under the Freedom of Information Act, that law does not apply to the files of the president or his senior advisers.
The White House-Secret Service agreement was signed at about the same time the government released records of visits to the White House by a lobbyist who pleaded guilty to felony charges in an influence peddling scandal, Jack Abramoff. When it disclosed the Abramoff visits, the Secret Service said it had obtained the White House's consent and was not conceding any legal duty to release the data.
An attorney with a liberal watchdog group, Citizens for Responsibility and Ethics in Washington, said the White House and the Secret Service cannot designate the protective agency's records off limits simply by executing an agreement.
"You can't do in a private memorandum what the law doesn't allow you to do," the lawyer, Anne Weismann, said. She said she thinks the memo was written to affect ongoing litigation. "The timing of it is very suspicious."
Ms. Weismann said the Post was aware of similar lawsuits her group is pressing. One seeks information about White House visits by prominent conservative religious leaders. The group is also suing the National Archives and Records Administration for details about an order it sent to the Secret Service in 2004, telling the agency to halt its practice of routinely deleting visitor log information after sending copies to the White House.
Ms. Weismann said her organization took a somewhat different tack than the Post, requesting information about named individuals rather than every visitor during a certain time frame. "We're not asking for records of all visitors," she said. "Our requests have been much more narrow."
Ms. Weismann stressed that the government could decline to release portions of the records on a variety of grounds, including personal privacy, but that the Secret Service has made the blanket claim that it doesn't have to comply with the requests at all. "The government is saying these records are not subject to FOIA even though they're sitting in Secret Service computers," she said.