- The Washington Times - Friday, June 25, 2004

A U.S. Court of Appeals was out of bounds when it ordered Vice President Dick Cheney to reveal the inner workings of a White House energy task force that he headed in early 2001, the Supreme Court said yesterday.

But the high court’s 7-2 decision kept the case alive by ordering it back to a lower court for further hearings on whether Mr. Cheney is protected by executive privilege from handing over his records.

In a 21-page majority opinion by Justice Anthony M. Kennedy, the court said the Constitution recognizes “the paramount necessity of protecting the executive branch from vexatious litigation that might distract it from the energetic performance of its constitutional responsibilities.”

Justice Kennedy, who decided that a federal district court judge had not given the Bush administration demands appropriate deference and ruled mistakenly on the relevant law, was backed in his decision by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas, Sandra Day O’Connor, Stephen G. Breyer and John Paul Stevens.

A dissenting opinion by Justices Ruth Bader Ginsburg and David H. Souter said they would have affirmed the lower court’s ruling, which had ordered Mr. Cheney to turn over papers disclosing the makeup of his energy task force.

The two justices said, “The district court could accommodate separation-of-powers concerns short of denying all discovery or compelling the invocation of executive privilege.”

The case stems from suits filed by Judicial Watch, a government watchdog group, and the Sierra Club, an environmental organization. The suits argue that Republican operatives, lobbyists and energy-industry officials such as former Enron Chairman Kenneth L. Lay steered the administration’s energy policy not only as advisers, but as members of the task force.

The Sierra Club said the Supreme Court was “essentially ducking the issue by sending it back to a lower court,” and Judicial Watch said the ruling was “no victory for the Bush administration,” although the case will be delayed until past the November elections.

The case was overshadowed for a time by a series of developments outside the courtroom involving conflict-of-interest questions about Mr. Cheney’s friendship with Justice Scalia.

Justice Scalia had gone duck hunting with the vice president in Louisiana just weeks after the Supreme Court agreed to hear the case. The Sierra Club filed a motion demanding that he recuse himself, but the justice refused, saying no legally relevant questioning of his impartiality had been made.

He joined Justice Thomas in separate opinion that would protect Mr. Cheney from having to release his records at all.

U.S. District Judge Emmet Sullivan “clearly exceeded” his authority in ordering the administration to release records, Justice Thomas wrote for the two.

The case revolves around whether Mr. Cheney is legally bound to full disclosure by the 1972 Federal Advisory Committee Act, which requires government panels to conduct business openly, unless all members are government officials.

But the issue of who was a member or an adviser of the task force has been pushed aside by the Bush administration’s position that Mr. Cheney has executive privilege from disclosing his records — a position that hinges on the “separation of powers” section of the Constitution, which protects confidentiality in the highest rungs of the executive branch.

The separation-of-powers concerns were wrongly and hastily “dismissed” by the lower courts, Justice Kennedy wrote yesterday, adding that a U.S. Appeals Court had wrongly based its ruling on the 1974 Supreme Court ruling on President Nixon’s Watergate tapes.

That case found that no person, even the president, is above having to comply with the law. But Justice Kennedy said the Nixon case “cannot bear the weight the Court of Appeals puts on it” because it distinguished criminal and civil proceeding, and the Cheney case is merely a civil suit.

The Bush administration was pleased with the finding yesterday.

“We believe the president should be able to receive candid and unvarnished advice from his staff and advisers,” said White House spokesman Scott McClellan.

Bush opponents have tried to use the energy task force to turn Mr. Bush’s close ties to the oil and energy industries into a campaign issue.

“For now, the public will remain in the dark about the Bush administration and energy industry executives’ secret meetings about national energy policy,” said David Bookbinder, Sierra Club’s Washington legal director.

He also said the administration’s “obsession with secrecy has already led to a polluting energy policy that will harm Americans’ health safety and the places they treasure.”

Kerry campaign spokesman Phil Singer said, “The Nixon legacy of secrecy is alive and well in the Bush White House.”

“Americans shouldn’t have to rely on court orders to learn what special interest lobbyists are writing White House policies,” he said. “George Bush and Dick Cheney have forgotten that the White House belongs to America, not Enron, and they owe it to the public to disclose this information.”

Judicial Watch, meanwhile, cited a 1993 ruling by the D.C. Circuit Court of Appeals which forced first lady Hillary Rodham Clinton to expose the inner workings of a health care task force she had created. The group said it thinks the lower court eventually will force a similar full disclosure of the energy task force case.

“In the end, we can’t imagine the court endorsing the Bush administration’s concept of unchecked executive secrecy and power, which is so truly at odds with a republican form of government,” said Judicial Watch President Tom Fitton.

Stephen Dinan contributed to this report.

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