WASHINGTON – The Supreme Court on Thursday ordered a federal appeals court to give Vice President Dick Cheney another chance to shield the internal workings of the 2001 energy policy task force he headed, all but ensuring that none of the task force’s alleged contacts with industry lobbyists will be aired before the November elections.
A 7-2 majority of the court said the U.S. Court of Appeals for the District of Columbia Circuit had not given due weight to the executive branch’s need to be free of “vexatious litigation” when it ruled last year that it could not grant Cheney a special order blocking a federal district judge’s order permitting two public interest groups to examine the task force’s records.
The decision set the stage for months or years of additional legal wrangling, assuming that President Bush and Cheney are re-elected. Meanwhile, the White House will not have to release contested documents, avoiding potentially embarrassing revelations of the extent to which companies such as the now-bankrupt Enron may have influenced its policies.
At the White House, spokesman Scott McClellan welcomed the ruling, saying, “We believe that the president should be able to receive candid and unvarnished advice from his staff and advisers. It’s an important principle.”
Democrats renewed their charges of excessive White House secrecy, with the presidential campaign of Sen. John Kerry, D-Mass., declaring that the “Nixon legacy of secrecy is alive and well in the Bush White House.”
An attorney for the two groups seeking access to the records, Alan Morrison, said, “If the government’s goal is to push ‘no disclosure’ through the election, they will win that.” Morrison is representing the Sierra Club, a liberal environmentalist organization, and Judicial Watch, a conservative anti-corruption organization.
Justice Antonin Scalia had come under fire for refusing to bow out of the case even though he went on a duck-hunting vacation with Cheney while it was pending before the court. But although he indicated in a concurring opinion that he would have ruled more broadly in the vice president’s favor, Scalia’s vote did not determine the outcome of the case. While drafted in narrow terms applicable mainly to the case before it, the court’s opinion offered a window on its broader views of the executive branch’s constitutional prerogatives – revealing a court now sympathetic to the White House’s need to insulate itself from lawsuits.
In 1997, the court ruled 9-0 that President Bill Clinton would not be unduly hampered by Paula Jones’ lawsuit for sexual harassment he had allegedly committed while governor of Arkansas; Thursday, the court warned of “meritless claims against the executive branch.”
The Jones case flowed in part from the court’s landmark 1974 ruling that ordered President Nixon to divulge his White House tapes to a Watergate special prosecutor, but in Thursday’s opinion, Justice Anthony Kennedy chided the D.C. Circuit for reading the Nixon case too broadly.
During Watergate, Kennedy wrote, an intrusion on internal White House deliberations was justified to produce information for a criminal case. While criminal prosecutors are relatively limited in the charges they can file and evidence they can demand, Kennedy wrote, “there are no analogous checks in the civil discovery process here.”
Given that fact, Kennedy wrote, the White House should not be forced by the prospect of revealing its internal deliberations to invoke executive privilege, as the D.C. Circuit had recommended it do.
His opinion was joined by Chief Justice William Rehnquist, Scalia and Justices John Paul Stevens, Sandra Day O’Connor, Clarence Thomas and Stephen Breyer.
Cheney’s task force, known officially as the National Energy Policy Development Group and made up of several Cabinet officers and White House aides, was set up on Jan. 29, 2001. That May 16, it issued a report including recommendations favored by industry, but the administration has failed to win passage of energy legislation including them.
From the beginning, environmental and consumer organizations, as well as congressional Democrats, said the White House shut them out while throwing its doors open to industry lobbyists.
The White House has seen the case as a front in its battle to preserve control over internal information and to establish the principle that the president should be able to receive candid advice in private.
Cheney lashes out
Vice President Cheney cursed at Democratic Sen. Patrick Leahy during a confrontation on the Senate floor while members were having a group picture taken Tuesday, Leahy and Senate sources said Thursday. Aides with knowledge of the encounter said Cheney confronted Leahy about criticism regarding alleged improprieties in military contracts awarded to Halliburton Co. Cheney is a former CEO of Halliburton. Leahy then criticized the White House for standing by allies who accused Democrats of being anti-Catholic last year in opposing one of President Bush’s judicial nominees, a Senate aide said. Cheney then responded, “F— off” or “F— you,” the aide said. Leahy, D-Vt., confirmed the confrontation took place. “I was kind of shocked to hear that kind of language on the floor,” he said.
Cheney lashes out
Vice President Cheney cursed at Democratic Sen. Patrick Leahy during a confrontation on the Senate floor while members were having a group picture taken Tuesday, Leahy and Senate sources said Thursday. Aides with knowledge of the encounter said Cheney confronted Leahy about criticism regarding alleged improprieties in military contracts awarded to Halliburton Co. Cheney is a former CEO of Halliburton. Leahy then criticized the White House for standing by allies who accused Democrats of being anti-Catholic last year in opposing one of President Bush’s judicial nominees, a Senate aide said. Cheney then responded, “F— off” or “F— you,” the aide said. Leahy, D-Vt., confirmed the confrontation took place. “I was kind of shocked to hear that kind of language on the floor,” he said.
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