Court Lets Cheney Avoid Disclosure

In a victory for the White House, the Supreme Court set aside a judge’s order Thursday that would have required Vice President Dick Cheney to turn over documents that would show whether industry lobbyists had met secretly with his energy policy task force.

The 7-2 decision says that the president and his closest advisors are usually entitled to shield their meetings and messages from prying outsiders. And rarely, if ever, is a judge authorized to force the White House to disclose information to those who seek it through a private lawsuit, the high court said.

The justices sent the dispute back to the U.S. Court of Appeals here, advising its judges to give more heed to the “weighty separation-of-powers objections” voiced by the Bush administration. That alone will take many months and will put off a further ruling until after the presidential election in November.

Environmentalists have alleged that energy lobbyists wrote parts of Cheney’s national energy policy early in 2001, and have accused Cheney -- a former energy executive -- of meeting privately with industry leaders, including then-Enron Chairman Kenneth L. Lay. The vice president has denied the charges, but his office also has refused to disclose exactly who met with the task force.

When Judicial Watch, a conservative watchdog group in Washington, and the liberal Sierra Club sued to get the information, the case became a high-stakes test of the boundaries of an administration’s right to conduct business behind closed doors. On Thursday, the administration’s lawyers won most of what they sought from the Supreme Court, which itself operates behind a veil of secrecy.

The Constitution “affords presidential confidentiality the greatest protection consistent with the fair administration of justice,” Justice Anthony M. Kennedy wrote in Cheney vs. U.S. District Court. Judges must keep in mind “the paramount necessity of protecting the executive branch from vexatious litigation,” he added.

The high court cited only two cases that proved to be exceptions to this rule of White House secrecy.

In the first, President Nixon was forced to turn over secret tapes of Oval Office conversations because he was caught up in the criminal investigation that grew out of the Watergate break-in. When a person’s guilt or innocence is at stake, the courts need all “the relevant evidence,” the justices said Thursday, referring back to the unanimous ruling in U.S. vs. Nixon.

More recently, when President Clinton was sued by Paula Jones, her lawyers won a court order requiring the president to turn over information and submit to an interview. That order was upheld unanimously by the high court in 1997 on the grounds that the lawsuit involved Clinton’s private life, not his conduct as the president.

The Cheney case fell into neither category. The president and the vice president were not caught up in a criminal investigation. And the lawsuit seeking information on Cheney’s energy policy task force involved the official business of the White House, not the private lives of the top officials.

In such cases, judges should be wary of requiring the president or vice president to turn over documents, Kennedy said. “Special considerations control when the executive branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated,” he said.

Lest the lower court judges miss the point, he closed by warning that “all courts should be mindful of the burdens imposed on the executive branch in any future proceedings.”

President Bush welcomed Thursday’s ruling. “We believe the president should be able to receive candid and unvarnished advice from staff and advisors. It’s an important principle,” White House Press Secretary Scott McClellan said.

A spokesman for Sen. John F. Kerry (D-Mass.), Bush’s presumed Democratic presidential challenger, countered that the administration should have released the information on its own. “The Nixon legacy of secrecy is alive and well in the Bush White House,” Kerry spokesman Phil Singer said.

Chief Justice William H. Rehnquist and Justices John Paul Stevens, Sandra Day O’Connor and Stephen G. Breyer signed on to Kennedy’s opinion.

During the oral argument, Stevens and Breyer questioned the underlying basis for the lawsuit. The two groups that sued Cheney accused him of violating the Federal Advisory Committee Act, which requires outside advisory boards to open their meetings to the public. But Stevens wondered why that law was even triggered, since the decision makers in Cheney’s task force were government officials, not outsiders.

In a concurring opinion, Justices Clarence Thomas and Antonin Scalia said they would have gone further and thrown out the judge’s original order, rather than requiring the appeals court to reconsider the case. Thomas said the district court “clearly exceeded its authority” by ordering the disclosure of documents. Scalia joined Thomas’ opinion and did not offer one of his own.

Scalia’s role in the case had drawn extra attention because of his friendship with Cheney. In early January, three weeks after the court agreed to take up Cheney’s appeal, Scalia flew to Louisiana with the vice president aboard a small government jet to go duck hunting.

When their trip came to light, Sierra Club lawyers urged Scalia to withdraw from the case, arguing that he could not be impartial. Scalia refused, saying the dispute involved the office of the vice president, not Cheney personally. In the end, Scalia’s vote in favor of Cheney’s position did not affect the outcome.

Justices Ruth Bader Ginsburg and David H. Souter dissented in Thursday’s decision. They said the appeals court handled the matter correctly.

Despite the setback, lawyers for the Sierra Club found something to like in the ruling.

“We didn’t get all we wanted, but they didn’t get what they wanted either -- which was to have the case thrown out,” said Alex Levinson, deputy legal director for the group in San Francisco. “This keeps the public in the dark, but it keeps the case alive. We are unlikely to get anything more before the election.”

The case has highlighted the legal barrier that shields the White House when it wants to protect its confidentiality. The Freedom of Information Act permits the public to seek data contained in the files of government agencies, but it does not apply to the White House.

Congress can demand information from the White House, but only if lawmakers are determined to press the issue. The House and Senate, controlled by Republicans, have not issued subpoenas for information in this case.

In seeking information on the Cheney task force, the General Accounting Office, the congressional watchdog agency, filed its first-ever lawsuit. The case came before U.S. District Judge John D. Bates, a new Bush appointee. He ruled against the GAO, and the agency dropped its suit.

But the Sierra Club and Judicial Watch had more success when they came before U.S. District Judge Emmet G. Sullivan, a Clinton appointee. Lawyers for the two groups claimed in their suit that Cheney had violated the Federal Advisory Committee Act by meeting in private with outside lobbyists.

Sullivan said he could not decide whether Cheney had violated the law without knowing who had met with or submitted recommendations to his task force. He then issued an order requiring the vice president’s office to turn over documents to answer these questions.

Cheney refused and took his case to the U.S. Court of Appeals. That court’s randomly chosen three-judge panel included two Democratic appointees and one Republican. In a 2-1 ruling, the appeals court panel upheld Sullivan’s order.

Judge David S. Tatel, a Clinton appointee, wrote the court’s opinion and pointed out that the Federal Advisory Committee Act had been applied by the same court when then-First Lady Hillary Rodham Clinton led a healthcare task force early in the Clinton administration.

Last fall, U.S. Solicitor Gen. Theodore B. Olson appealed the case to the Supreme Court, saying it would “violate fundamental principles of separation of powers” if the vice president were forced to turn over the internal documents.