More litigation will follow on the Cheney energy task force
By John W. Dean, FindLaw Columnist
Special to CNN.com
(FindLaw) -- On June 24, in Cheney v. U.S. District Court, the Supreme Court gave Vice President Dick Cheney only a partial victory in the suit that seeks to learn how his National Energy Policy Development Group developed its recommendations.
The plaintiffs in the suit suspect that -- and want to find out whether -- there was extensive involvement and improper influence by private industry in what was supposed to be a government group. They note that the Group's recommendations had a decidedly pro-energy slant.
Cheney wanted the suit to be dismissed. Instead, the court sent the case back to the U.S. Court of Appeals for the D.C. Circuit for further adjudication.
This case is laden with important implications. That is still true. Indeed, the Supreme Court may have avoided an ultimate decision in the case in part because of the political reverberations that would doubtless have resulted from their examining the separation of powers issues (read: the secrecy powers of the presidency) in an election year.
Scalia sides with Cheney, as expected
This case received a great deal of press attention because Justice Antonin Scalia refused to recuse himself from it, despite his duck-hunting trip with Cheney. And unsurprisingly, Scalia did indeed side with Cheney in the case.
But rather than write an opinion, Scalia joined a brief dissent by Justice Clarence Thomas that would have resolved the matter in Cheney's favor -- and resolved it on the merits, going into the constitutional issues involved.
But that did not happen. Five other Justices -- Kennedy, Rehnquist, Stevens, O'Connor and Breyer -- preferred to send the case back to the Court of Appeals, as noted above. They based their ruling on a number of fairly esoteric procedural grounds.
Finally, the remaining two Justices, Ginsburg and Souter, wanted to send the case all the way back to the trial judge -- and allow it to proceed.
FACA's scope, and permissible discovery
The core issue in this case is whether the Federal Advisory Committee Act of 1972 (FACA) applies to the National Energy Policy Development Group. If so, then the Group's proceedings must be revealed.
Cheney's position is that FACA does not apply, by its own terms, since the president appointed only federal officials to serve on the panel.
But the plaintiffs in the case -- Judicial Watch and the Sierra Club -- argue that in fact, it's not true that only federal officials served on the panel. To the contrary, they say, a number of energy industry lobbyists (such as Enron's Ken Lay) were so deeply involved in the work of the Group, they were effectively members. And the D.C. Circuit ruled in 1993, in Association of Physicians & Surgeons v. Clinton, that in such a situation, FACA does apply.
The Supreme Court left the question whether FACA applies for the Court of Appeals. But it did speak, at least to some extent, to the discovery issues the case also raised. The plaintiffs had served discovery requests -- principally requests for documents, and written interrogatories -- on Cheney.
Cheney refused to respond. He also refused to invoke executive privilege. Thus, were it not for his decision to seek Supreme Court review, he would have had to either invoke executive privilege, or produce documents and respond to the interrogatories. On this issue, the Supreme Court sided with Cheney.
It held that: "Given the breadth of the discovery requests in this case ..., our precedent provides no support for the proposition that the Executive Branch "shall bear the burden" of invoking executive privilege with sufficient specificity and of making particularized objections."
But it also pointed out that the federal trial courts in the District of Columbia had previously fashioned discovery requests from the executive that did not require an invocation of executive privilege, and caused no separation of powers problems. Thus, the Supreme Court left the ultimate issue of whether similar requests could be fashioned in this case, to the D.C. Circuit.
November election results key to future of case
What will likely happen next in the case? That will be influenced by the results of the election.
First, suppose Kerry wins. A new president and attorney general might not be invested in defending Cheney's records -- but since Bush and Cheney will still have control over the records, and the information requested in the interrogatories, it won't be entirely up to the new Administration what to do. Even if the government wanted to settle, Bush and Cheney could make it difficult.
Still, the new administration could change the status of the case by not pressing for secrecy as Cheney did. If a new administration takes a more moderate position, when the case arrives back at the Supreme Court, it may not be such a landmark case after all, for the executive and judiciary may be more of one mind as to what should occur.
If Bush wins, and Cheney is still his vice president, it is difficult to predict what will happen. But there are a number of possibilities.
First, discovery may show that no private person was effectively -- in legal parlance, "de facto" -- a member of the group. If so, the case will be dismissed. If not, it may go forward.
Second, even if discovery does show that the Group had a de facto member, the Supreme Court may not agree with the D.C. Circuit that, under such circumstances, FACA applies. It may hold instead that FACA applies only when a private person is formally a member of a government group. And such a holding is more likely if additional conservative justices join the Supreme Court in a second Bush term -- after all, Bush's ideal justice is Scalia.
On the other hand, however, the Supreme Court may agree with the D.C. Circuit -- which gave persuasive reasons for its "de facto member" doctrine.
The D.C. Circuit has also noted, in one of the few FACA cases, that "[t]he very reason that presidential communications deserve special protection, namely the President's unique powers and profound responsibilities, is simultaneously the very reason why securing as much public knowledge of presidential action as is consistent with the needs of governing is of paramount importance."
This logic might lead the appeals court to fashion some intermediate solution, rather than just dismissing the case naming Cheney outright.
In short, it is not clear what will happen -- and much depends on what the D.C. Circuit does. Still, I remain hopeful that the underlying lawsuits in Cheney v. District Court will open the records of the National Energy Policy Development Group.
That is the right result legally and constitutionally -- and the right outcome for our democracy. We deserve to know if private interests are unduly influencing purportedly governmental bodies.
Supreme Court ill-suited to resolve secrecy issues
It is not clear, however, if the court will agree, should this case return to the Supreme Court. Justices, who operate in secret, and who are unaccountable to anyone so long as they do not commit an impeachable offense, have never struck me as good judges of matters relating to secrecy. More importantly, they have little insight and understanding of what is -- and is not -- necessary privacy for a Chief Executive to carry out his (or her) responsibilities under Article II of the Constitution.
For example, look at how a unanimous Supreme Court failed to understand the situation in Clinton v. Jones. Former President Clinton discusses this in his autobiography, My Life: "The Court said that adopting a principle of delay involving a President's unofficial acts could cause harm to the other party in the suit, so the Jones's suit should not be delayed. Besides, the Court said, defending the suit wouldn't be unduly burdensome or time-consuming for me. It was one of the most politically naive decisions the Supreme Court had made in a long time."
The high court is, in fact, remarkably unsophisticated in the workings of the modern presidency. As in Cheney v. District Court (and countless other rulings), the court talks of "afford[ing] Presidential confidentiality the greatest protection." But in the end, the Supreme Court's decisions have merely been license for presidents so disposed to maintain the shroud of secrecy -- at the expense of the accountability that is so essential to democracy.
The chief executive (and the executive branch) often assert that forcing openness on them would have a negative impact on their ability to carry out their responsibilities under Article II of the Constitution. But in fact, the reverse is true. Openness would merely encourage conscientious governance. And closed doors encourage just the opposite.
John W. Dean, a FindLaw columnist, is a former counsel to the president of the United States.