The Breakfast Table

Ducking the Hard Questions on Cheney

Dear Dahlia,

Long after the opinions issued yesterday in the Cheney case are forgotten, lawyers not yet born will study the famous duck-hunting trip taken while the case was pending. Heading into the dark woods together were the aforementioned Richard B. Cheney and Antonin Scalia, a justice of the court then sitting in judgment on Cheney’s case. (For the record, I think that even if Scalia made a mistake in going on the trip, he was right to reject calls that he recuse himself from the decision. If you disagree, I’ll tell you why you are wrong.)

The core issue in Cheney is buried beneath several layers of the kind of law lawyers love because no one else can understand it. At the very center of many concentric circles is the question of whether the president and the vice president can keep private the advice they seek and receive in formulating policy—in this case the advice received by the energy policy task force appointed by President Bush and headed by Cheney. I should admit up front that I am biased toward the executive branch’s side of this particular issue. Like most of those from both parties who have headed the Office of Legal Counsel, I think the executive branch should have a “right to huddle” in formulating policy. A president needs the best, most candid advice he can get, and confidentiality is often conducive to that. (The same thing is true for Supreme Court justices and their clerks.)

But Congress may think differently. If Congress were to pass a law forcing the president to tell the world about everyone who gives him advice, a significant constitutional question would arise. Congress has passed something a little bit like that: the Federal Advisory Committee Act, which imposes a lot of open-meeting and disclosure requirements on groups that meet the definition of a presidential “advisory committee.” But there is a major, relevant exception here—FACA doesn’t apply to a group made up entirely of federal-government employees. Such an all-government team can circle up in private, formulate policy in confidence, and present it to the president without the public disclosure FACA otherwise requires.

Cheney’s energy task force was set up to be such an all-government group and thus exempt from FACA’s flashlight. But in the relevant appeals court in D.C., there is a novel doctrine that private persons who lobby a task force can be found to be de facto members of the group; thus the group’s membership is no longer all-governmental. The thinking goes like this: If a private party meets with the committee and acts like a member of the committee, then maybe he is sort of a “member” of the committee. (You know, “If it walks like a duck, and quacks like a duck, then … “)

The plaintiffs here, the Sierra Club and Judicial Watch, wanted access to what went on behind the energy task force’s closed doors. They seem to suspect that the task force’s nominal all-government membership was something of a front. In the dreams of the plaintiffs, access to the task force records would dramatically reveal that someone like Ken Lay of Enron came in, sat around with the members, was shown the secret group handshake, and was for all practical purposes a member of the task force, perhaps one who dictated the contents of the report. If that’s what happened, they argue, then it wasn’t really a true all-government team exempt from FACA.

I thought this would be an easy case and that the court would make short work of the plaintiffs by simply reading FACA to mean that if only government officials are technically appointed, the disclosure and open-meeting requirements don’t apply. And there is a reason for this (you might call it) simple-minded reading: Having judges go behind the formal membership of a committee and begin exploring whether there are, in addition to the appointed members, outsiders who are so influential that they ought to be considered de facto members would be intruding into the workings of the presidency. If Congress really insisted it wanted the court to intrude, then the court would have read the statute that way and then grappled with the hard question of whether such a law would be constitutional. But until such an explicit act is passed, the courts should have given a narrow reading to FACA, and the suit should have been dismissed up front. I expected a strong opinion from Scalia along those lines, but his voice was muted; he silently joined a cautious separate opinion by Justice Thomas.

The court’s majority ducked the hard questions, holding only that the Court of Appeals should hear the merits of Cheney’s appeal now without making him jump through hoops. The majority opinion strongly hints that Cheney should ultimately prevail but is unwilling at this point to cut off the plaintiffs’ action. (It is worth noting that the vice president could, if he wished, choose to release the names of those who met with the task force.)

The justices showed some deference to the executive branch—more, actually, than President Clinton got when he sought to postpone the Paula Jones suit—but did not protect the president’s prerogative to get private advice as strongly as it might have done. I would hazard a guess that the court is pushing back against the all-too-sweeping assertions advanced by the administration in various venues—that the president should be insulated from many of the normal processes of law. Although on the particular issue in the Cheney case I would have liked to have seen stronger protection of the executive, I think the court’s apparent skepticism about expansive claims of executive authority is generally healthy.

We will see next week if that skepticism extends to Guantanamo.

Kind regards,