I had some time to kill this evening, so I printed out a copy of the Supreme Court opinion issued today on Cheney’s energy task force. I had read a couple of the news reports during the day, and had a nagging feeling that I didn’t really understand what was going on. Contrary to popular belief, the Supreme Court usually gets involved only when there is a really tasty issue of constitutional law. As this whole thing has proceeded on these last couple of years, in fact, I never really felt like I understood what was going on from a legal point of view. Now I do.
Now, I am definitely not a lawyer (my sister is – hi Kathy) but I do read a bit around the topic. Here is my layman’s description of what happened. Any lawyers out there who can offer corrections to my mistakes, please shout out. (or let me know if I got it right)
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In early 2001, President Bush created and authorized the National Energy Policy Development Group to give advice and make recommendations on energy policy. Officially, all of the members of this task force were federal employees. This is important, because the Federal Advisory Committee Act places a set of open-meeting and information-disclosure requirements on all “advisory committees” – except, notably, those whose membership is entirely federal employees.
Here’s where it gets fun. Judicial Watch and the Sierra Club asserted that the NEPDG had a number of executives from private energy companies participating so frequently and deeply in the meetings and work of the group that they were de facto members of the group – thus disallowing the exemption and forcing it to meet the full disclosure requirements.
By this time, the task force had finished its work and disbanded, making it impossible to sue the group; so they sued the individual members, including the Vice President.
Judicial Watch and Sierra Club filed suit to compel the disclosure. They filed a motion for discovery, asking the task force members to produce documents that would help them prove their case, namely that private citizens were deeply involved in the process and thus de facto members. It’s a wonderful trap: they are using discovery to force them to reveal the very documents that they wanted revealed in the first place under FACA. The motion for discovery was very broad, since they were trying to make the case that private citizens’ involvement was very broad.
The Vice President objected, of course. The District Court denied the objection. The Vice President appealed, requesting a “writ of mandamus” asking the Appeals Court to step in. The Appeals Court denied, citing precedent that a writ of mandamus from an appeals court should only be used in extreme circumstances, and as a last resort – and since the White House could invoke executive privilege, there was another avenue that could be tried before a writ of mandamus should be issued.
The Vice President appealed to the Supreme Court, questioning the Appeals Court’s logic on refusing to even consider the merits of issuing a writ of mandamus.
The Supreme Court issued a rather fractured opinion, with lots of partial dissents. The majority said three things:
- Litigation that is allowed to proceed against the President or Vice President is almost by definition an extreme circumstance, since by law and precedent the situations under which they can be sued are very constrained – recognizing the huge burdens placed upon them and the need to avoid tying up the executive branch with volumes of frivolous lawsuits. They weren’t calling the lawsuit frivolous; they were arguing that it’s a no-brainer that the case meets the bar of “extreme circumstances” for considering issuing a writ of mandamus.
- “Executive privilege,” by judicial precedent, can’t be invoked broadly. It must be exercised on a case by case (in this case, document by document) basis, where for each document the justification for invoking executive privilege must be detailed. In the case of a broad motion for discovery, that makes the use of executive privilege a huge and undue burden (essentially impossible, certainly impractical) to invoke, and thus the Appeals Court erred in ruling that executive privilege was an available option that should be exhausted before the appeals court considered a writ of mandamus.
- The Appeals court ruling is vacated, and the case is sent back down to the Appeals Court to consider the writ of mandamus on its merits.. The Appeals Court will consider whether allowing the discovery will create an issue of separation of powers: that the judicial branch is going beyond their constitutionally mandated check and balance on the executive branch by poking its nose into the inner workings of this committee. Which will require more hearings, and more time – and most likely the appeals court won’t even rule until well after the November elections, doing Bush/Cheney a huge favor by keeping the documents out of the public eye during the campaign
I think it's interesting that they aren't even arguing (yet) whether the documents should be released. The entire argument so far, including apeals all the way up to the Supreme Court, has been about a discovery motion to produce documents which would lead to a hearing about whether the task force had private citizens on it and was therefore subject to FACA. The case is so far away from actual release of documents, it isn't even funny. And you can assume that if the discovery does proceed, it will be under tight seal.
Some of the news reports said that the Supreme Court made scathing comments about the discovery requests. Actually, they did nothing of the sort -- they simply observed that the discovery requests were very broad which made use of executive privilege difficult. They did throw in one parting shot at the end, which was to suggest that lower courts should try very hard not to overburden the executive branch with requirements related to how they conduct their business, as it is not the job of the judicial branch to make it harder for the executive branch to get its job done.
Even if Kerry wins in November, I would assume that they will continue to litigate this case, because as much as they would like to have the documents released, they can't afford to set that precedent and erode their own ability to have private meetings.
One other amusing and ironic note: a significant proportion of the case law cited in this opinion are Nixon with the Watergate tapes, and Clinton vs. Paula Jones. Makes you wonder if there’s enough case law out there now to justify a law school seminar entirely on the topic of presidential scandal law.
10:53:25 PM  ; ;
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