Supreme Court to Hear Cheney Secrecy Case

The Supreme Court agreed Monday to consider erecting a shield of secrecy around Vice President Dick Cheney and the other close advisors to the president whenever they are discussing official business.

The justices voted to hear the Bush administration’s appeal of a judge’s order that would require Cheney to turn over documents describing who participated in formulating President Bush’s national energy policy in 2001.

In voting to take up the appeal, the high court set the stage for a possible historic ruling on the powers of the presidency and whether a general shield of secrecy surrounds the White House.

The Sierra Club, an environmental group, and Judicial Watch, a conservative public interest group, sued Cheney, contending that as head of the energy task force he had violated the Federal Advisory Committee Act of 1972, which generally requires open meetings whenever outsiders offer advice to high government officials.

The lawsuits alleged that Cheney and other Bush advisors met behind closed doors with corporate officials and lobbyists from the oil, gas, coal and nuclear industries in devising the energy policy.

From the start, Bush and Cheney rejected the charge and said only federal officials, not outsiders, had participated in the task force on energy policy. The advisory committee act is triggered only if outside advisors are involved.

Bush’s lawyers also dispute whether the law even applies to the vice president’s office, because it is not an ordinary agency.

During the litigation, Cheney has taken an unyielding stand. He has refused to turn over documents detailing who met with his energy task force. And he has argued that the Constitution forbids private lawyers from asking for the information.

In July, a U.S. appeals court in Washington, in a 2-1 ruling, sided with the lower court judge and said Cheney must turn over the documents to the lawyers for the Sierra Club and Judicial Watch. They had alleged that former Enron chief executive Kenneth L. Lay and Washington lobbyist Haley Barbour, who was elected last month as the Republican governor of Mississippi, had met with the task force.

If so, this could show the vice president had violated the advisory committee act, the appeals court said. Therefore, the lawyers who brought the suit were entitled to take the next step and look at documents related to the energy task force, the judges concluded.

The “fundamental separation-of-powers principles” in the Constitution bar private lawsuits or judges from forcing the president and his top advisors to reveal who they meet with and what subject they discuss, Solicitor Gen. Theodore B. Olson said in his appeal on Cheney’s behalf. Such court orders would be “distracting” to the president and vice president and would make it harder for them to receive “uninhibited advice” from advisors, he argued.

Olson’s appeal suggests that the high court should either narrow the reach of the Federal Advisory Committee Act or rule it unconstitutional for infringing on a “core executive function.”

A Justice Department spokesman said he was pleased the high court had agreed to hear the case. “It is important the president’s constitutional authority to gather candid advice from his advisors be respected,” said spokesman Mark Corallo. The government has already turned over 36,000 pages of information, he said.

The lawyers who filed the suit said the documents turned over so far included everything but who met with whom.

“They’re obsessed with secrecy,” said Alan B. Morrison, a Washington lawyer who is representing the Sierra Club. “If they are not violating the law, what are they hiding? All we want to know is who participated in the meetings.”

Two years ago, the General Accounting Office filed its own lawsuit against Cheney over the energy task force, a first for the congressional audit agency. But it abandoned the suit after losing in a lower court.

The Sierra Club and Judicial Watch persisted and had the good fortune to come before judges in Washington who had been appointed by former President Clinton.

The judges pointed out that when the Clinton White House was sued over its health-care task force and its use of FBI files, the same appeals court in Washington ruled that the White House must disclose its relevant files.

So the same rule applies to the Bush White House, said Judges David Tatel, a Clinton appointee, and Harry Edwards, an appointee of President Carter. They upheld the original order by U.S. District Judge Emmet Sullivan, also a Clinton appointee.

The lone dissenter, Judge Raymond Randolph, was appointed by the previous President Bush. “I would grant the writ ... not only to bar discovery but to dismiss the actions,” he said, referring to the lawsuits.

The Supreme Court will hear the case in the spring and issue a ruling by summer. The justices have not ruled squarely on whether the Constitution shields the president and his top advisors from answering to legal claims involving official business.

There are two famous precedents in this area -- one involving a criminal investigation and the other a private lawsuit over “unofficial acts” by the president.

The Watergate scandal led to a 1974 ruling that made clear the president was not shielded from court orders in a criminal case.

President Nixon was being investigated for conspiring to cover up the White House’s role in the break-ins at the headquarters of the Democratic National Committee. The special prosecutor had sought the previously secret tapes that the president had made in the Oval Office. Although Nixon asserted an executive privilege to block the order, the Supreme Court ruled unanimously in the case of U.S. vs. Nixon that the president must comply with a judicial order in a criminal case. Shortly afterward, Nixon resigned.

Clinton was sued by Paula Jones over alleged sexual harassment that she said happened three years earlier when he was governor of Arkansas. Clinton tried to delay the lawsuit until he left the White House. In the Supreme Court, his lawyers argued that the chief executive had “temporary immunity” from answering to lawsuits. They relied in part on an earlier ruling that said presidents were absolutely immune from being sued for their official actions.

But in another unanimous ruling, the Supreme Court rejected the president’s claim and ruled that the “current occupant” of the White House had no constitutional shield against lawsuits that grow out of his “unofficial acts.” That ruling opened the door for questioning Clinton under oath and eventually led to his impeachment in the House of Representatives.

In Cheney’s appeal, Olson cites U.S. vs. Nixon as establishing the rule that presidents and vice presidents were free to challenge court orders without fear of being held in contempt. Forcing Cheney to comply with the document order “is clearly inconsistent with Nixon, not to mention the separation of powers established by the Constitution,” Olson concluded.