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Justices Appear to Support Cheney Task Force Secrecy

Times Staff Writer

In a closely watched test of the president’s right to operate behind closed doors, the Bush administration urged the Supreme Court on Tuesday to preserve the freedom of the executive branch to solicit private outside advice.

Most of the justices signaled that they were prepared to do just that.

The high court was asked to overturn two lower-court rulings that ordered Vice President Dick Cheney to turn over documents disclosing who met with his task force to help formulate the administration’s national energy policy in 2001.

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

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Olson won 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.

It was a point well-made. The justices enforce a strict rule of secrecy for their internal debates, and Olson said the president deserved the same right to consult in private with outside advisors.

The case was not really about Cheney, he said. “This is the president’s authority,” Olson said, adding that he had 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 advisors 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.

The task force helped create an energy policy that called for an expansion of nuclear power and oil and gas exploration.

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Environmentalists criticized what they saw as a cozy relationship between the Bush White House and the energy industry. In 2001, lawyers for the Sierra Club and Judicial Watch sued to find out who met with Cheney’s task force.

The Supreme Court voted to take up the administration’s appeal after a federal judge and the U.S. Court of Appeals here ruled that Cheney had to turn over documents.

Tuesday’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 south Louisiana in January.

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

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“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 [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.

Although 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.

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In their lawsuit, the Sierra Club and Judicial Watch claimed that Cheney’s task force violated that law by meeting in private with outside advisors. 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 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, liberal-leaning Justice John Paul Stevens said he agreed with Olson’s argument that the 1972 law did 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.”

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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 [corporate officials] members of the advisory committee? They may have talked to a lot of people, but I don’t see what that proves.”

Justice Stephen G. Breyer, another of the court’s liberals, also said he did not believe the 1972 law authorized lawsuits whenever government officials met with outsiders. “Congress could not possibly have intended to have created that circumstance ... putting government in a cocoon when it develops legislative policy,” he said.

But the two lawyers challenging the government said the law applied only to formal advisory committees that sought outside advice, not phone calls and meetings of top officials.

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“The executive office of the president and anyone else can call anyone they want at any time without triggering FACA,” said Morrison, using the acronym for the Federal Advisory Committee Act.

“It requires a certain degree of formality and structure and continuity,” said Paul Orfanedes of Judicial Watch, adding that Cheney’s task force met the test.

Scalia disagreed. Bush and Cheney said all the members of the task force were government officials, not outsiders, he noted. Therefore, the law did not apply.

But Morrison and Orfanedes argued that outside corporate lobbyists were sitting in meetings and drafting legislation for the administration. They were acting as de facto members of the task force, they said.

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“I’m asking whether they were members of the committee, and the answer has to be no,” Scalia said. “Now, suppose I bring ... a private individual with me to give me advice. Suddenly, the private individual becomes a member of the committee?”

“It is certainly a plausible interpretation, your honor,” Morrison responded.

“Not plausible to me,” Scalia replied.

The issue of who is a member of the advisory committee is crucial to the lawsuit.

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In 1993, when former President Clinton authorized First Lady Hillary Rodham Clinton to devise a healthcare reform law, the White House set up a task force to seek ideas and to formulate a legislative proposal. But Mrs. Clinton was accused by Republicans of violating the same advisory committee act by meeting in private without outside advisors, much as Democrats have criticized the secrecy of the Cheney task force.

A federal judge and the U.S. court of appeals ruled in 1993 that the advisory committee act was violated when outsiders met with her task force. But the Supreme Court did not take up the dispute.

In the Cheney case, the same U.S. Appeals Court applied the same rule to say that if outsiders, such as Lay, participated in the Bush administration’s task force, then its records and deliberations must be opened.

But the Bush administration’s lawyers argued that the presence of outside advisors in Cheney’s task force did not violate the law, and therefore they could not be forced to turn over documents describing its meetings.

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Chief Justice William H. Rehnquist, among others, indicated that he agreed with the argument. By focusing on that narrow issue, the high court could throw out the lawsuit against Cheney’s task force without ruling on Olson’s claim that the Constitution shields the White House from all such orders.

In the opening minutes of the argument, two justices -- Ginsburg and David H. Souter -- questioned whether the high court should rule on the issue, because the government failed to comply with the judge’s original order. They suggested the court should send the matter back to the trial judge to decide just what information must be turned over.

By the end of the argument, most of the justices sounded as though they were ready to resolve the matter, and most likely to side with the government.

A decision in the case of Cheney vs. U.S. District Court is expected by late June.

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