Above the law

April 29, 2004

VICE PRESIDENT Dick Cheney has been clear about his desire to repair what he believes to have been a grave erosion of White House power over recent decades. Thus he has been fighting tooth and nail to resist demands that he identify the outside advisers who helped shape the administration's lopsided and ill-fated energy legislation.

But the three-year legal battle now appears to put the U.S. Supreme Court in the awkward spot of either greatly expanding the privacy privileges accorded to presidents or further limiting them. Neither result is desirable.

If he truly cares about the principle at stake, the vice president would be wise to voluntarily release information about his energy task force, to spare the court from rendering a ruling his successors may one day rue.

There's not much mystery about what Mr. Cheney is hiding. The task force that President Bush created and Mr. Cheney ran is believed to have consulted heavily with energy company executives and lobbyists, who appeared to have had a hand in crafting legislation loaded with subsidies and other favors for their industries. None of this would be surprising; both Mr. Bush and Mr. Cheney are former energy company executives themselves.

After the 2001 Enron debacle, though, White House associations with industry executives and campaign donors such as Enron's Kenneth Lay became politically embarrassing, and Mr. Cheney ever more robustly asserted his right to seek advice privately.

He stiff-armed Congress, and prompted a lawsuit from an odd-couple team of environmentalists and conservative judicial activists. The Sierra Club-Judicial Watch team won a lower court ruling ordering Mr. Cheney to turn over the names and roles of private citizens who consulted with the energy task force, so that the court then could use these to determine if there is merit to the complaint that these advisers secretly had a major influence on the legislation.

However, in an unusual legal maneuver, the White House appealed that preliminary ruling to the Supreme Court, arguing this week that demanding such information from the executive branch is unconstitutional. Unless the court finds a creative alternative, it may be forced to choose between granting this sweeping protection of White House secrecy or agreeing with the lower court, and potentially opening the executive branch to a new flood of lawsuits seeking information about its sources of private advice.

The nation would be best served if the court errs on the side of openness. Presidents and vice presidents are certainly entitled to confidential advice from their aides. But when outsiders who also happen to be deep-pocket contributors are playing an active role in policy-making, the voters have a right to know about it.

Once again, though, the situation needn't have come to this point. If Mr. Cheney had released the list of those he consulted when the first request was made, the flap would be long over by now. If he had consulted more broadly on the topic, he might have an enacted energy bill, as well.

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