A federal appeals court threw out a lawsuit against Vice President Dick Cheney on Tuesday and ruled that he was free to meet in secret with energy industry lobbyists in 2001 while drawing up the president's energy policy.
Previously, the same appeals court, in a 2-1 decision, upheld a judge's order that called for Cheney to turn over the names of the oil and gas industry officials who met with his energy policy task force. But the Supreme Court set aside the ruling, and urged the appellate judges to take another look.
This time, the court declared that the president and vice president had no duty to tell the public when they sought advice from outsiders.
"In making decisions on personnel and policy, and in formulating legislative proposals, the president must be free to seek confidential information from many sources, both inside the government and outside," said Judge A. Raymond Randolph in an opinion for the full U.S. Court of Appeals for the District of Columbia.
Therefore, the Sierra Club and Judicial Watch had no legal right to know who met with Cheney's energy policy task force in 2001, the court said.
The Sierra Club, a liberal environmental group, and Judicial Watch, a conservative watchdog group, had sued Cheney, alleging that he violated a 1972 open-government law known as the Federal Advisory Committee Act. It says that when top officials seek outside advice, they must do so in public, not behind closed doors.
A federal judge agreed that the lawsuit had merit, and he ordered Cheney to turn over documents that described who participated in the meetings.
Cheney refused and appealed the issue to the Supreme Court. In December 2003, the high court voted to hear Cheney's case. Three weeks later, Justice Scalia flew with Cheney aboard Air Force Two to go duck hunting in Louisiana.
The Sierra Club lawyers asked Scalia to withdraw from the case, and he refused. In June, the high court set aside the appeals court ruling in a 7-2 decision. Scalia joined the majority.
Bush administration lawyers had argued that it was unconstitutional to force the president or the vice president to disclose whom they met with in private. The justices agreed in part, saying the appeals court had failed to consider the "weighty separation-of-powers issue" raised by the lawsuit.
In Tuesday's opinion, the appeals court stopped short of saying it was unconstitutional to force Cheney to disclose the participants in his meetings. Instead, its opinion said the 1972 law did not apply to this case.
Outsiders may have met with Cheney's task force, but they were not members of it, Judge Randolph said. All the members of the task force were Bush administration officials, and therefore, the National Energy Policy Task Force was not governed by the open-disclosure rules of the Federal Advisory Committee Act, he said.
"The outsider might make an important presentation, he might be persuasive, the information he provides might affect the committee's judgment," Randolph wrote. "But having neither a vote nor a veto over the advice the committee renders to the president, he is no more a member of the committee than the aides who accompany congressmen or Cabinet officers to committee meetings."
During the Clinton administration, the same appeals court gave the 1972 law a broader scope, saying it applied to the health policy task force led by First Lady Hillary Rodham Clinton. Then, the court said outside participants in a White House advisory group were "de facto members" of the group, and therefore the public had a right to know about the meetings.
The Freedom of Information Act allows the public to learn about how decisions are made by federal agencies, but it does not apply to the White House.
Tom Fitton, president of Judicial Watch, denounced the decision as "without any basis in the text of the open meetings law and contrary to the intent of the law."
"The American people have a right to know whether lobbyists became de facto members of the Energy Task Force," he said. "Today's decision means that now the public may never know the truth about how these policies were formulated."