June 24, 2004,
EDITOR'S NOTE: This article was posted before the Supreme Court ruled 702, in the administration's favor Thursday morning.
It is a rare instance in today's Washington that a person takes a stand for principle no matter what the price. But that is precisely what President Bush and Vice President Cheney have done in numerous disputes relating to the media and public access to government information. This is particularly true in the current lawsuit relating to the records of the National Energy Policy Development Group (NEPDG), a case soon to be decided by the Supreme Court. Paying a high political price for what the mass media has derisively called its "pursuit of secrecy," the Bush administration has nevertheless stood firm against the continuing erosion of executive authority that began in the aftermath of Nixon's Watergate scandal.
In the first days of the Bush presidency, the president assembled several of his senior advisers including the vice president White House staff, and Cabinet officers and asked them to develop a comprehensive energy plan. That group met several times and also gathered input from the private sector, including not surprisingly, given its task of developing a national energy plan representatives from the energy industry. In May 2001, it presented a comprehensive plan to the president. That plan was released to the public at the time and formed the basis of the president's proposed energy legislation, which has since languished on Capitol Hill.
The media labored mightily to put a negative spin on the work of the NEPDG (the title given to the group by the president), charging that it was a puppet of the energy industry and excluded environmental interests from its deliberations. In the aftermath of Enron's fall, the media also tried unsuccessfully to find in the plan a quid pro quo between Kenneth Lay and Vice President Cheney. The media scrutiny of the group's work produced little more than guilt-by-association and innuendo.
But a lack of damning evidence was not enough to stop the inevitable lawsuits. First, prodded by two Democratic legislators, the General Accounting Office (an investigative arm of Congress) sued the vice president, demanding the details of who met with whom in the deliberations of the NEPDG. That lawsuit met with a swift demise: It was dismissed in late 2002 by U.S. district-court judge John Bates, who concluded that nothing short of a demand by the majority of both chambers of Congress could support judicial enforcement of the plaintiff's request and even that might not be enough.
A second set of lawsuits, filed separately by Judicial Watch and the Sierra Club, is currently pending before the Supreme Court. Those suits claim that the president's group violated a 1970s-era blue-ribbon-commission law, the Federal Advisory Committee Act, which imposes substantial regulations on the manner in which the executive branch gathers advice from members of the public. The plaintiffs claimed that because the energy task force met with members of the energy community, the president and vice president had an obligation to open the meetings to the public and publicly disclose all documents showing the details of its deliberations. Relying on no more than speculative media accounts of supposed meetings between the vice president and energy executives, the plaintiffs sought the details of every NEPDG meeting and contact between the public and members of the NEPDG or its staff.
To their credit, President Bush and Vice President Cheney did not roll over to this demand. Instead, the vice president appealed an order which required either full production of the documents or a formal assertion of executive privilege all the way to the Supreme Court. Thus, the decision soon to come from the Supreme Court will address the question of whether Congress or the courts can impose on the president by a statute or through the litigation-discovery process a requirement that he disclose the details of the process by which he gathers advice from his closest advisers on national policy issues.
Skeptics have charged that Vice President Cheney's position in this case is more about politics and shielding the facts from public scrutiny than about principle. But that is hardly a fair characterization of the vice president's conduct here. Even before the lawsuits were filed, Cheney disclosed substantial details of the group's processes in response to a request from certain members of Congress. That disclosure included details about staffing and the time and place of NEPDG's meetings. Indeed, in response to a request from Congressman Henry Waxman, one of the administration's most vocal critics, Cheney detailed perhaps the most politically sensitive information the number of times he or his staff met with executives from Enron disclosing a single meeting by the vice president and a couple of meetings involving NEPDG staff.
Beyond that, the vice president has resolutely maintained that disclosing the details of the process by which he gathers information and advice for the president would have a substantial chilling effect on that process and would hamstring the presidency. Congress and the courts should not be able to intrude into that process any more than the president should be able to examine the processes by which Henry Waxman and his colleagues gather ideas for legislation or the Supreme Court makes its decisions.
The administration has consistently touted these principles, regardless of the political implications. It has invoked the same ideas in its opposition to lawsuits seeking documents relating to President Clinton's controversial midnight-pardon decisions. If there were ever a good opportunity to bend principle for political gain, pushing to open up those documents would be it. But principle, not politics, has guided the administration's view of executive authority. Successor presidents of both political stripes will benefit.
The administration's position in these cases is a welcome change from that of its predecessors, who often shrunk from public controversy in the aftermath of Watergate. One former White House counsel of an administration past, recalling his advice to the president regarding congressional demands for sensitive presidential information, joked that his mantra was: "Cave early and cave often." But such an approach, as even the Supreme Court has acknowledged, harms the candid exchange of ideas at the highest levels of government. The president already lives very much in a fishbowl, but we are all much better off when he and his advisers can share their ideas freely without having to subject every one of them good or bad to immediate public critique.
Shannen W. Coffin, a Washington, D.C., attorney, is a former deputy assistant attorney general for the civil division of the Department of Justice. In that capacity, he argued Sierra Club and Judicial Watch v. Cheney in the United States district court and participated in the current appeal before the Supreme Court.