While the Bush administration decides how much privacy Americans should have, John Bates is about to decide how much privacy the Bush White House should have.
U.S. District Judge Bates is putting the final touches on his opinion regarding the White House request to shield the activities of Vice President Cheney's energy task force from the prying eyes of Congress. The ruling is expected to be released within days.
The 56-year-old Bates, after less than a year on the job, is surrounded by powerful crosscurrents as he prepares to rule in Walker v. Cheney, the first-of-a-kind lawsuit brought by Congress's General Accounting Office against the vice president.
Bates is an appointee of President Bush and has many friends in the administration, leading critics of the White House to assume that the fix is in for the Cheney lawsuit. Yet part of Bates's background also gives the GAO reason to hope. Five years ago, he led a fight to force the disclosure of information from a stubborn White House.
As a deputy to Whitewater prosecutor Kenneth W. Starr in 1997, Bates was a key figure in a case called Office of the President v. Office of Independent Counsel. Bates tried fervently to get the release of White House documents, winning the case when the Supreme Court refused to reconsider an appellate court ruling in Starr's favor.
The facts of the two cases are different. The one Bates fought was an attorney-client privilege case involving notes of then-first lady Hillary Rodham Clinton's conversations with government lawyers about her former law firm's billing records. The Walker case -- about whether the White House must disclose who met with Cheney and his aides and what energy advice they gave -- hinges on the GAO's statutory authority to sue the executive branch.
But the similarities are strong. In both cases, the White House (first President Bill Clinton and then Bush) argued that presidential advisers must be able to give confidential advice and disclosing that advice would have a "chilling effect" on presidential decision-making. In both cases, the White House said that its opponent was on a "fishing" expedition and that the matter should be handled not by the courts but in the give-and-take of the legislature. And in both cases, the White House decided not to invoke executive privilege, inviting a precedent-setting legal battle by relying on less absolute legal arguments.
In the Clinton case, the U.S. Court of Appeals for the 8th Circuit in St. Louis accepted many of the arguments made by Bates's team. The judges rejected the White House claim that Starr did not show a "demonstrated, specific need" for the documents. They also had no use for the White House argument that "anticipated congressional hearings will suffice." The judges agreed with Bates's side in arguing that "we cannot conclude that advisers will be moved to temper the candor of their remarks." They dismissed some White House arguments as "nothing more than political concerns."
In Walker v. Cheney, the Bush administration is making many of the same arguments Clinton's lawyers did. Bush administration lawyers have argued that the GAO's request is "incredibly intrusive on the president's and the vice president's autonomy to make decisions, to make recommendations." They argued that the case should not be in court because "there were other things that could be done between the political branches to resolve the dispute."
So how will Judge Bates decide the case? Bates, understandably, will not say.
"I have no comment about any matter pending before me," he said recently.
Even those who know him well say it's not at all clear which way Bates will go. "I couldn't predict it," fellow Starr underling Mark Tuohey said.
Bates, a father of college-age children who lives in Bethesda, had a tour with the Army in Vietnam before graduating from the University of Maryland law school. He spent most of his career as a prosecutor and more recently was a partner at the Miller & Chevalier law firm. In his free time, he chose pickup basketball over politics.
"He's the lawyer's lawyer, very thoughtful, very careful," said Sam Maruca, another Miller & Chevalier partner. He tried to talk Bates out of being a judge because of the big pay cut, but "he obviously always wanted to be a federal judge," Maruca said.
During the oral arguments in Walker v. Cheney, observers were struck by Bates's skeptical questioning of part of the administration's case and its decision not to cite executive privilege. Those on the GAO's side believe that if Bates rules for Cheney, he will do so on narrow grounds rather than give the White House the broad protection from oversight it seeks.
Bates, after all, has experience with high-minded White House arguments for confidentiality. "We honestly believed principle was at stake, and that's what we were fighting for," said Andrew Frey, a lawyer hired by the White House in the Hillary Clinton case. "And that transcends the particular administration."
But Bates had no use for White House declarations of principle then. In a few days, he'll answer the question anew.