Friday, June 25, 2004; Page A28
WHEN HILLARY Clinton wanted to keep secret the proceedings of her health care task force in 1993, the courts drew an important legal line. If people who were not government employees were effectively acting as members of the group, the U.S. Court of Appeals for the D.C. Circuit wrote, federal law required certain disclosures. What's more, groups suing the task force to get access to its proceedings were entitled to discovery to find out what role those outside figures were actually playing. Yesterday the Supreme Court decided the case of Vice President Cheney's energy policy task force -- a case most famous for Justice Antonin Scalia's duck hunt but one that deals with the same law as the health care task force litigation a decade ago. The court said, in essence, that the White House is owed more deference than the D.C. Circuit showed it in either case; without quite saying so, it seemed to instruct the lower court to review its precedent.
The decision is a partial win for Mr. Cheney, who gets to keep the task force's records secret while litigation continues. But it also casts the courts in an odd light, for the rules appear to be suddenly different for the Bush administration than they were for its predecessor.
The Clinton administration was subjected in a range of cases to intrusive discovery that, it frequently complained, burdened executive confidences. The Supreme Court okayed personal sexual harassment litigation against the president with blithe disregard for its potential impact on the presidency. Now, by contrast, the high court bends over backward to emphasize, even at the risk of tension with its own precedents, the president's special needs in fighting off lawsuits. In this case, it goes so far as to allow an extraordinary appeal procedure to make sure those needs get accommodated. Ms. Clinton is entitled to wonder why the rules seem so unstable.
There are procedural differences between the cases that can at least partly explain the difference in outcome. Most notably, the Supreme Court was never asked to review the health care case, so this is really its first look at the principle the D.C. Circuit articulated then. And judges may feel uncomfortable now with the degree to which they encumbered President Bill Clinton's administration. Yet it is critical that the courts, having articulated rules for one administration, follow those rules for others. Few things can more damage public confidence in apolitical courts than if the principles that guide relations between the presidency and judiciary seem to shift based on the solicitude of judges for the incumbent administration.
© 2004 The Washington Post Company
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