Mr. Cheney's Day in Court
The New York Times
April 27, 2004
The Supreme Court hears arguments today on Vice President Dick Cheney's
attempt to keep the public from knowing who met with him behind
closed doors three years ago to draft the administration's energy policy.
The case is best known for the controversy over Justice Antonin
Scalia's decision to go duck hunting with Mr. Cheney while it was pending.
But it raises important issues in its own right. The court should affirm
the decisions of the lower courts and order Mr. Cheney to disclose
the names of the participants. It should also be mindful of the role Justice
Scalia plays. There is a real danger that his participation will damage the court's reputation.
In early 2001, Mr. Cheney convened an energy task force whose membership
was secret. Environmental groups charge that he let energy
companies and other big campaign donors participate in drafting
energy policy and let them lobby for huge subsidies for themselves.
Judicial Watch and the Sierra Club sued, saying that because people
who are not federal employees were de facto members of the task force,
the Federal Advisory Committee Act requires that its records be made public.
Mr. Cheney says the act does not apply because the task force's members
were all federal employees.
To decide who is right, the trial court had to know something about who
participated. It ordered limited disclosure, but Mr. Cheney argued that the
order violated his executive privilege. The trial court said it was willing
to take reasonable steps to guard the information, such as by reviewing it
in private. But Mr. Cheney rejected these offers and is instead seeking
a blanket order that he does not need to release the names.
Mr. Cheney is on weak legal ground, as both the trial court and the
United States Court of Appeals for the District of Columbia Circuit have ruled.
Many of the legal issues are arcane procedural questions about when
pretrial discovery orders can be appealed. But the case also raises more
substantive issues about the degree to which a vice president can
claim to be above the law. As the Supreme Court held in a landmark case
involving President Richard Nixon's Watergate tapes, executive privilege
has its limits. Mr. Cheney may be entitled to ask that the disclosure
requests be narrowed, but there is no basis for exempting him entirely.
When Justice Scalia's hunting trip became public, there were widespread
calls for him to recuse himself. The Supreme Court said that the
decision was Mr. Scalia's, and that he had chosen not to. That may
resolve the question legally, but it remains troubling. If the court decides this
case, which has implications for the Bush-Cheney re-election campaign,
by 5 to 4, with Justice Scalia casting the deciding vote, it will bring back
memories of Bush v. Gore. And it will further harm the reputation of a
court whose authority has always derived from its claim to be a legal body,
not a political one.
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