A June 25 article on the Supreme Court's ruling in Vice President Cheney's effort to keep records of his energy task force private incorrectly said that Alan B. Morrison represented the Sierra Club and Judicial Watch before the court. Morrison represented the Sierra Club. Judicial Watch was represented by its litigation director, Paul J. Orfanedes. (Published 6/26/04)
The Supreme Court ordered a federal appeals court yesterday to give Vice President Cheney another chance to shield the internal workings of the 2001 energy policy task force he headed, all but ensuring that none of its alleged contacts with industry lobbyists will be aired before the November elections.
A 7 to 2 majority of the court said the U.S. Court of Appeals for the District of Columbia Circuit had not given due weight to the executive branch's need to be free of "vexatious litigation" when it ruled last year that it could not grant Cheney a special order blocking a federal district judge's order permitting two public interest groups to examine the task force's records.
The decision set the stage for months or years of additional legal wrangling if Cheney and President Bush are reelected. Meanwhile, the White House will not have to release contested documents, avoiding potentially embarrassing revelations of the extent to which companies such as the now-bankrupt Enron Corp. may have influenced its policies.
At the White House, spokesman Scott McClellan welcomed the ruling, saying: "We believe that the president should be able to receive candid and unvarnished advice from his staff and advisers. It's an important principle."
Democrats renewed their charges of excessive White House secrecy, with the presidential campaign of John F. Kerry declaring that the "Nixon legacy of secrecy is alive and well in the Bush White House."
Alan B. Morrison, a lawyer for the two organizations seeking access to the records, said, "If the government's goal is to push 'no disclosure' through the election, they will win that." Morrison is representing the Sierra Club, a liberal environmentalist organization, and Judicial Watch, a conservative anti-corruption organization.
Justice Antonin Scalia had come under fire for refusing to bow out even though he went on a duck-hunting vacation with Cheney while the case was pending before the court. Although he indicated in a concurring opinion that he would have ruled more broadly in the vice president's favor, Scalia did not determine the outcome of the case by his vote with the majority.
While drafted in terms applicable mainly to the case before it, the opinion revealed a court now sympathetic to the White House's need to insulate itself from lawsuits. In 1997, the court ruled 9 to 0 that President Bill Clinton would not be unduly hampered by Paula Jones's lawsuit for sexual harassment he had allegedly committed while governor of Arkansas; yesterday, the court warned of "meritless claims against the executive branch."
The Jones case flowed in part from the court's landmark 1974 ruling that ordered President Richard M. Nixon to divulge his White House tapes to a Watergate special prosecutor, but in yesterday's opinion, Justice Anthony M. Kennedy chided the D.C. Circuit for reading the Nixon case too broadly.
During Watergate, Kennedy wrote, an intrusion on internal White House deliberations was justified to produce information for a criminal case. While prosecutors are relatively limited in the charges they can file and evidence they can demand, Kennedy wrote, "there are no analogous checks in the civil discovery process here."
Given that fact, Kennedy wrote, the White House should not be forced by the prospect of revealing its internal deliberations to invoke executive privilege, as the D.C. Circuit had recommended it do.
His opinion was joined by Chief Justice William H. Rehnquist, Scalia and Justices John Paul Stevens, Sandra Day O'Connor, Clarence Thomas and Stephen G. Breyer.
Cheney's task force, known officially as the National Energy Policy Development Group and made up of several Cabinet officers and White House aides, was set up on Jan. 29, 2001. That May 16, it issued a report including recommendations favored by industry, but the administration has failed to win passage of energy legislation that includes them.
From the beginning, environmental and consumer organizations, as well as congressional Democrats, have said the White House shut them out while throwing its doors open to industry lobbyists.
The White House has seen the case as a front in its battle to preserve control over internal information and to establish the principle that the president should be able to receive candid advice in private.
The Sierra Club and Judicial Watch maintain that the lobbyists' influence over Cheney's task force was so great that it was not a government policy commission, but a public-private advisory board including "de facto" members from industry. As such, the groups argued, the task force is required to disclose its proceedings under the Federal Advisory Committee Act.
The court did not rule on that contention yesterday, dealing exclusively with the issue of "discovery," meaning access to documents and testimony. In 2002, U.S. District Judge Emmett G. Sullivan ordered the White House to give the two organizations access to the task force records so they could try to substantiate their claims.
Rather than directly contest that order, Bush administration lawyers asked the D.C. Circuit to cancel it out through a writ of mandamus, a rarely granted order usually reserved for cases in which there is no alternative method of preventing a court from acting illegally.
Normally, an appeals court would not hear a challenge to a lower court's discovery order before it has been precisely formulated with input from both parties to the case. The D.C. Circuit invoked that rule in rejecting the request for mandamus.
But the White House appealed to the Supreme Court. Solicitor General Theodore B. Olson argued that because FACA is a disclosure law, granting the Sierra Club and Judicial Watch the right to look through the task force's papers would be tantamount to giving them a victory in the lawsuit itself.
In dissent, Justice Ruth Bader Ginsburg, joined by Justice David H. Souter, defended the D.C. Circuit's view of the case, noting that it had "abided by the ordinary rules of appellate jurisdiction."
Reading a summary of her opinion from the bench, a sign of especially strong disagreement with the majority, Ginsburg said that "this court has no cause to . . . fault the Court of Appeals for insensitivity to separation-of-powers concerns the Court of Appeals opinion showed it had well in mind."
The case is Cheney v. the United States District Court for the District of Columbia, No. 03-475.