Court Hands Cheney a Win on Disclosures

WASHINGTON -- A federal judge on Monday dismissed a lawsuit seeking to force Vice President Dick Cheney to disclose whom he met with last year during the drafting of the Bush administration’s energy policy.

In a historic constitutional showdown between the legislative and executive branches, U.S. District Judge John D. Bates ruled against the General Accounting Office, the investigative arm of Congress. In its first such suit against the White House, the GAO had sought records of the participants in and topics of private meetings held by an energy task force headed by Cheney.

“No court has ever before granted what the comptroller general seeks,” Bates wrote, noting that neither Congress nor any of its committees had issued a subpoena for the information or authorized the suit.

Comptroller General David M. Walker, who is the head of the GAO, said he would decide whether to appeal after reviewing the decision to “fully understand the basis for it and its potential implications” and after consulting with Democratic and Republican congressional leaders.

Rep. Henry A. Waxman (D-Los Angeles), who along with Rep. John D. Dingell (D-Mich.) first sought the information, said the decision “by a Republican judge” was not the final word. Bates was appointed to the federal bench by President Bush last year.

But the suit was filed before Republicans expanded their majority in the House and gained control of the Senate in the November elections.

“Vice President Cheney’s cover-up will apparently continue for the foreseeable future, unless a Republican Congress demands appropriate disclosure,” Dingell said. “I’m not holding my breath.”

Phil Schiliro, Waxman’s chief of staff, said that if the case is not appealed, “they should close up the GAO. If GAO doesn’t have the authority to enforce its investigations, it has no reason to exist.”

A Justice Department spokeswoman said the court’s decision “protects and respects the right of the president to have an independent decision-making process. Allowing the GAO to sue the vice president without legal authority would improperly interfere with the president’s ability to formulate the best possible policies for the American people.”

The suit, filed in February, is part of a larger struggle between Congress and the White House over access to government records, a struggle that the judge noted in his opinion dates back to the early days of the republic.

Critics of the White House energy plan contend that it was heavily influenced by industry lobbyists to promote oil and gas drilling and nuclear power.

Administration officials say secrecy is necessary for presidents and their staffs to seek candid advice.

The White House has also accused the GAO of exceeding its authority and vowed, if necessary, to invoke executive privilege, the right of a president to keep secret the advice and deliberations that go into his decision-making.

“We believe it’s important that the president can receive unvarnished advice,” a White House spokeswoman said Monday.

Assessing the decision, Harold H. Bruff, dean of the University of Colorado School of Law, said, “Before we have a collision of the size implied by a congressional demand for documents held near the center of the executive branch, I’d want to know that Congress, in the form of one of its houses or an authorized committee, really wants to press a subpoena.”

“GAO, as a subordinate instrumentality, lacks that heft, and the statute is unclear whether it even authorizes GAO to seek documents at this level. Judicial forbearance is wise in this situation, and that’s what we got,” Bruff said.

Separately, Judicial Watch, a conservative watchdog group, and the Sierra Club, an environmental group, are suing Cheney to force disclosure of the task force documents.

The organizations are using a different legal theory -- that the task force is subject to a federal law that is designed to open government panels to public scrutiny.

“The vice president may not have to give documents about his energy task force to the GAO anytime soon,” Judicial Watch President Tom Fitton said in a statement.

The statement said Judicial Watch was confident it would prevail in this case.