Executive branch's privacy argued

Justices appear receptive in Cheney task force case

`About separation of powers'

April 28, 2004|By David G. Savage | David G. Savage,LOS ANGELES TIMES

WASHINGTON - In a closely watched test of the president's right to operate behind closed doors, the Bush administration urged the Supreme Court yesterday to preserve the freedom of the executive branch to solicit private outside advice. Most of the justices signaled that they are prepared to do just that.

The Supreme Court was asked to overturn two lower-court rulings that ordered Vice President Dick Cheney to turn over documents disclosing who met with his energy policy task force three years ago.

"This is a case about the separation of powers," U.S. Solicitor General Theodore B. Olson said. He went on to describe a "constitutional immunity" that protects the White House from all legal demands for information, except when the president is under a criminal investigation.

Olson got a generally friendly reception from the justices. In one exchange, he asked them to imagine a law that would require the Supreme Court to disclose its inner workings.

The justices enforce a strict rule of secrecy for their internal debates, and Olson said the president deserves the same right to consult in private with outside advisers.

The case was not really about Cheney, he said. "This is the president's authority," Olson said, and he has the right to seek confidential advice from outsiders.

Moreover, neither Congress nor the courts may force the president to turn over information through so-called discovery orders, he said. "We are submitting that the discovery itself violates the Constitution," he said.

"All discovery?" asked Justice Ruth Bader Ginsburg.

"Yes," Olson replied.

In this case, the outside advisers were oil industry lobbyists and prominent corporate executives such as then-Enron Chairman Kenneth L. Lay, a Texan who was close to Bush and Cheney.

Environmentalists decried what they saw as an unduly cozy relationship between the Bush White House and the energy industry. In 2001, lawyers for the Sierra Club and Judicial Watch sued seeking information on who met with Cheney's energy policy task force.

The Supreme Court voted to take up the administration's appeal after a federal judge and the U.S. Court of Appeals in Washington ruled that Cheney must turn over documents on who met with his task force.

Yesterday's argument included a face-to-face clash between Justice Antonin Scalia and a veteran Washington lawyer, Alan Morrison, who had asked the justice to withdraw from the case because he went duck hunting with Cheney in Louisiana in early January.

Scalia refused, saying his personal friendship with Cheney did not affect his ability to impartially decide the legal issue before the court. And yesterday, he left little doubt that he agreed with the Bush administration's argument.

"I think executive privilege means whenever the president feels that he is threatened, he can simply refuse to comply with a court order," Scalia told Morrison in one exchange. "He has the power . . . to say, `No, this intrudes too much upon my powers. I will not do it.'" The justice added that the president should not even be forced to fight the issue before a judge.

"If you view executive privilege that way, forcing him [Bush] to assert executive privilege is really pushing things to an extreme that should not very often occur in this republic," Scalia said.

Morrison, who is representing the Sierra Club, disagreed. "I don't think the government has the right to withhold that kind of information in this kind of case," he said.

While much of the argument focused on the president's powers under the Constitution, the outcome may turn on the meaning of the Federal Advisory Committee Act, an obscure, open-government measure enacted in 1972. It says that when the government sets up advisory committees to seek outside advice, the committees must meet in public.

In their lawsuit, the Sierra Club and Judicial Watch claimed that Cheney's task force violated that law by meeting in private with outside advisers. A federal judge in Washington said it was not clear whether the law had been violated, but he ordered Cheney to turn over information on who met with his task force.

The administration's lawyers flatly refused to comply. They argued that the law did not apply to Cheney's task force, since all of its members were government officials, not outsiders. And if the law did apply, it was unconstitutional because it intruded on the president's special powers.

Such court orders are "invasive of fundamental presidential prerogatives," Olson argued.

Significantly, the liberal-leaning Justice John Paul Stevens said he agreed with Olson's argument that the 1972 law does not authorize lawsuits against the president and vice president. It "does not create a cause of action," he said. "And the vice president is not an agency."

Stevens also said he was unimpressed with claims that Cheney had talked with Lay or other corporate executives.

"What does that prove? Does that make them [corporate officials] members of the advisory committee? They may have talked to a lot of people, but I don't see what that proves."

The Los Angeles Times is a Tribune Publishing newspaper.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.