- The Washington Times - Thursday, June 24, 2004

Yesterday, the Supreme Court decided by 7-2 that Vice President Dick Cheney does not have to disclose records of the energy task force he led in 2001. While the decision does not end the matter entirely, it is an important clarification of executive power and reins in what had threatened to become an endless distraction to the executive branch.

The complaints, brought by Judicial Watch and the Sierra Club, alleged that the confidential meetings of the vice president’s energy task force violated the Federal Advisory Committee Act. They demanded that the deliberations of the task force be opened during the discovery process. The administration asserted that such deliberations were subject to executive privilege and that there was an important separation of powers question, since the discovery process interfered with the executive’s ability to fulfill its duties of developing policy.

While the Supreme Court sent the question of discovery back to the lower court for further analysis, it largely sided with the vice president. It decided that the document-release order had been written too broadly and that deference had to be shown to the Executive Branch. Writing for the majority, Justice Anthony Kennedy declared, “A president’s communications and activities encompass a vastly wider range of sensitive material than would be true of any ordinary individual.”

It must not be forgotten that at the time the energy report was composed, the nation faced an energy crisis. To resolve it, Mr. Cheney had to have the candid opinions of energy experts, which could only be given in confidence. The vice president’s determination — that America needs more energy — has only gained urgency since his report was issued.

The political implications of the Supreme Court decision cannot be overlooked, although the vote of Justice Antonin Scalia would not have affected the outcome. Justice Scalia and Mr. Cheney have become favored targets for the outrageous arrows of the left. Partisans planned to leave no stone unturned in their search for alleged corruption. Even Justices Ruth Bader Ginsburg and David Souter acknowledged in their dissent, “The discovery plan drawn by Judicial Watch and Sierra Club was indeed ‘unbounded in scope.’ ”

Fulfilling the demands of those unbounded discoveries would have been difficult for the Executive Branch — particularly given the demands of September 11. “This is not a routine discovery dispute,” the court said, adding that the filters for frivolous discovery orders and civil lawsuits against the Executive Branch are insufficient.

High-ranking members of the Executive Branch should have a reasonable expectation that they will be shielded from those lawsuits while fulfilling their official duties. As Justice Kennedy wrote, there is a “paramount necessity of protecting the executive branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.”

The court’s decision yesterday sets an important precedent, providing protection to the Executive Branch and those who advise it. It will not stop partisans from filing lawsuits, but it should give executive officials greater confidence that such frivolous suits will be thrown out of court.

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