The Bush administration told the Supreme Court yesterday that Vice President Dick Cheney is protected by the Constitution from having to reveal the inner workings of the White House energy task force he headed in early 2001.
U.S. Solicitor General Theodore B. Olson told the justices that the case before them is “about the separation of powers” and that forcing the White House to release confidential papers would jeopardize the president’s ability to receive candid advice.
Mr. Olson, who serves as the administration’s top Supreme Court lawyer, said attendance records from the task force meeting nearly three years ago should not be revealed because of a “pure, unadorned allegation” that business executives were involved.
The case stems from lawsuits filed in lower courts by two advocacy groups, the Sierra Club and Judicial Watch, that seek the names of those on the task force. The groups say Republican operatives, lobbyists and energy insiders such as former Enron Chairman Kenneth L. Lay were members.
Although the White House has released about 36,000 pages of the energy task force’s papers, it has withheld the vice president’s records.
By doing so, the White House violated a federal statute requiring such information be available to the public, says the Sierra Club, the nation’s oldest and largest environmental organization, and Judicial Watch, a conservative nonprofit watchdog group.
Justice Antonin Scalia appeared yesterday as perhaps the least likely justice to see a need for forcing the release of Mr. Cheney’s documents.
“What does that prove?” asked Justice Scalia at one point, in response to a statement by Judicial Watch lawyer Paul J. Orfanedes that releasing the records would show the vice president had met with Mr. Lay and others.
“Involvement of private individuals in the committee does not mean de facto membership,” Justice Scalia said.
Justice Stephen G. Breyer said it is common for government officials to meet with private individuals for advice when shaping policy. Forcing officials to disclose explicit details of such meetings runs the risk of “putting the government in a cocoon,” he said.
However, the finer points of the case have been overshadowed by events outside the courtroom. It became known early this year that Justice Scalia had gone duck hunting with the vice president in the weeks after the Supreme Court agreed to hear the case.
Justice Scalia has refused a motion filed by the Sierra Club asking that he recuse himself from the case.
“There are, I am sure, those who believe that my friendship with persons in the current administration might cause me to favor the government in the case brought against it,” Mr. Scalia said in a brief responding to the motion. “That is not the issue here.”
The Supreme Court is expected to rule on the case by July.
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