Tuesday, February 12, 2002

Vice President Dick Cheney’s unwearied intransigence over disclosing six confidential Energy Task Force meetings with Enron grandees mystifies.

The constitutional claim of executive privilege is anemic. A privilege waiver conceding no constitutional turf would answer the fretting over Oval Office prerogatives for future incumbents. The assertion that presidential powers since Watergate have withered on an installment plan of capitulations is counterfactual. And the oblation to continued secrecy in light of the Enron conflict-of-interest ridden debacle is political folly.

At present, months of stately maneuvers have yielded the following. Imminent is a lawsuit by the General Accounting Office, an investigatory arm of Congress, demanding that the vice president unbosom the Enron and Task Force participants and the subjects explored in each of the confidential conclaves. The vice president’s defense has been twofold: the GAO’s asserted authority to demand the information is wanting under its statutory charter; and, a constitutional privilege for presidential communications would trump a legislative request irrespective of whether disclosure is sought by a congressional committee investigating maladministration or its GAO appendage.

According to the Nestor-like vice president, a parade of chief executives for more than three decades have forfeited the crown jewels. A once imperial presidency has plunged to the tatterdemalion faster than the descent of Enron stock. The Bush administration is thus drawing a constitutional line in the sand to strengthen an atrophied presidential office. The vice president further lectures that a breach in confidentiality would deter Enronlike special interests from offering their treasured and expert advice to President George Bush while he fashions slabs of a domestic agenda.

But none of the polemics seem persuasive. The office President Bush inherited has never been more muscular. The War Powers Resolution of 1973, seeking legislative constraints on executive war powers, has been reduced to muffled sounds and enervated fury signifying nothing. Since the Resolution, Grenada, Panama, Iraq and Serbia have been invaded or bombed with no congressional declaration of war. The federal judiciary uniformly rebuffed constitutional challenges by members of Congress to waging war by the chief executive unanchored to a statutory base. President Bush thus unilaterally launched war against al Qaeda, Taliban and global terrorism generally with at best ornamental congressional involvement. Congress also meekly acquiesced in Mr. Bush’s authorization of military commissions for the trial of war crimes.

Mr. Bush, in another solo performance, opted out of the ABM Treaty with Russia despite a welter of Senate Democrat lamentations. On that score, he walked under the constitutional umbrella of the Supreme Court’s decision in Goldwater vs. Carter (1979) sustaining President Jimmy Carter’s abrogation of the Taiwan Defense Treaty without Senate ratification. The high court additionally fortified presidential foreign policy powers in Dames & Moore vs. Regan (1981). There, President Carter’s freezing of Iranian funds and private claims of United States citizens against Iran and shuffling their suits to a joint American-Iranian arbitration commission to resolve Iran’s hostage villainy was sustained. And post-Watergate presidential power to impose financial or trade sanctions against any foreign country or entity is virtually unlimited under the International Economic Emergency Act.

In the domestic arena, the presidential hand is similarly dominant. A chief victory was the constitutional death of the legislative veto ordained by the Supreme Court in Immigration and Naturalization Service vs. Chadha (1983). That longstanding congressional prerogative since President Franklin D. Roosevelt enabled simple majorities in either the House or Senate, or their respective committees, to arrest executive decisions with no opportunity for a presidential veto. The Supreme Court also denounced congressional appointments to executive agencies in Buckley vs. Valeo (1976); legislative involvement in the administration of a balanced budget statute in Bowsher vs. Synar (1986); blessed sweeping executive discretion in the interpretation and execution of typically ambiguous legislation in Chevron vs. Natural Resources Defense Council (1984); and, upheld open-ended delegations of legislative power to the president in American Trucking Association vs. Browner (2000). The Supreme Court also declared presidents absolutely immune from damage suits for presidential conduct in Nixon vs. Fitzgerald (1982).

Congress displayed its servility to the executive under President William Jefferson Clinton by its grant of line-item veto power in tax and spending legislation. (The Supreme Court, however, held the grant unconstitutional). And Congress ended potential prosecution nightmares for the Bush administration by the lapse of the independent counsel statute.

In sum, Vice President Cheney’s claim of a toothless presidency does not bear serious scrutiny. Neither does his assertion that a constitutional line in the sand must be drawn now or never. President Bush could waive his asserted right to confidentiality for Enron or sister communications and defer the constitutional issue to another day. Countless of Mr. Bush’s predecessors selected that course without damage to executive authority. President Gerald Ford, for example, voluntarily testified before a House Judiciary Subcommittee about his pardon of former President Richard Nixon. And President Ronald Reagan waived privilege for National Security Council deliberations in the Iran-Contra investigation. Furthermore, Mr. Bush would probably lose a struggle with a congressional committee over disclosing the Enron advice and meeting participants. The Supreme Court has sanctioned broad legislative inquiries into maladministration or the appearance of corruption in the executive branch since the Teapot Dome scandal in the 1920s.

And can anyone doubt that a reasonable citizen could perceive an appearance of impropriety in the Bush administration’s meeting secretly with Enron tycoons in concocting a national energy policy? Enron’s buccaneering elite contributed handsomely to Mr. Bush’s presidential and gubernatorial campaigns; Mr. Bush’s secretary of Army was a former Enron stalwart; and, one of Mr. Bush’s economic gurus fed in private life at Enron’s seemingly inexhaustible consultancy trough. That explains why popularity among the electorate for full disclosure climbs daily. Vice President Cheney is thus likely to weaken the White House if he pushes the Enron secrecy dispute to a confrontation with Congress, precisely the result he hopes to avoid.

Finally, every lobbyist and pseudo-lobbyist in D.C. is laughing at the idea that private interests would cease Lincoln Bedroom sleepovers and advising the president of the United States on matters critical to their business success without iron-clad promises of confidentiality. Enron officers have made no such claim. Their chief reason for coveting White House meetings and consultations is the boosting of egos and the appearance of special influence they can market to ignorant outsiders.

Mr. Cheney brims with enormous intellect and savvy. Folly is not his signature. But even geniuses occasionally stumble, as a single blunder in Sam Johnson’s otherwise impeccable English dictionary substantiates.

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