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The Vice President Can Win Only If We Have Another Bush v. Gore -like Ruling


Friday, Feb. 01, 2002

This is Part Two of a two-part series by Mr. Dean on Enron. Part One is archived on this site. - Ed.

Vice President Dick Cheney has thrown down the gauntlet. He has refused to give the General Accounting Office the very limited information they have requested about the work of his energy task force. (GAO, created in 1921 during the Harding Administration, has from its inception been an independent and nonpartisan agency of the Congress, charged with studying the programs and expenditures of the federal government.)

Cheney says he is refusing to provide information to the Congress as a matter of principle. He told the Today Show that he wants to "protect the ability of the president and the vice president to get unvarnished advice from any source we want." That sounds all too familiar to me. I worked for Richard Nixon.

In fact, not since Richard Nixon stiffed the Congress during Watergate has a White House so openly, and arrogantly, defied Congress's investigative authority. Nor has any activity by the Bush Administration more strongly suggested they are hiding the incriminating information about their relationship with the now-moribund Enron, or other heavy-hitting campaign contributors from the energy business.

After nine months of shilly-shallying, the Vice President and his operatives have failed to bluff the General Account Office. The issues are being ratcheted up a few quantum notches. On January 30, 2002, GAO informed Congress, the President, and the Vice President that it was going to court. GAO noted that this will be the first time it "has filed suit to enforce our access rights against a federal official" in its fourscore history.

To quote Mr. Cheney (from another context) - this is a "big time" lawsuit.

GAO's Historic Lawsuit

The first important thing to understand about the GAO suit is that it is not a political lawsuit. GAO's current Comptroller General, David Walker, is not from the ranks of Bush-Cheney bashers. In fact, he was a member of the Reagan Administration and the first Bush Administration. And when he was appointed in 1998 to his fifteen-year term by President Clinton, it was at the urging of top Republicans. Filing this historic lawsuit will not be pleasant for Walker.

But the Comptroller has no choice; Cheney and the White House have forced the issue. Litigation is necessary, unless Cheney reneges. Cheney has not claimed "Executive Privilege," for the Vice President has no such power. Rather, Cheney has claimed - and Bush has backed up his claim - that GAO (and therefore the Congress, too) has no authority to seek the information they have requested. Thus, for the Comptroller not to go to court would be tantamount to a declaration of Congressional impotence, not to mention a concession impairing GAO's basic mission.

Background Of the GAO Lawsuit

For those who've not followed this evolving turmoil, a brief recap of the background of the GAO lawsuit is in order.

On January 29, 2001, President Bush established the National Energy Policy Development Group ("Energy Group"), which was chaired by Vice President Dick Cheney. Cheney's Energy Group consisted of six cabinet officers (Treasury, Interior, Agriculture, Commerce, Transportation and Energy), plus other government officials he was authorized to include. (For example, he could include the Secretary of State, if international issues were involved.) The staff was made up of full time government employees.

Clearly, the Energy Group was constituted to avoid the Federal Advisory Committee Act (FACA). That 1972 law applies if any group of two or more persons utilized by a president for advice includes a non-government employee or official. If this occurs, FACA requires that the group must make all of its proceedings open to the public, keep records of the proceedings, and accommodate a broad spectrum of views.

Cheney's Energy Group sought to avoid the FACA requirements by including only government employees, and no outside persons, and it appears they did so successfully. But we don't really know, because the Vice President refuses to provide the information necessary to make a determination. For all we know, non-government persons, perhaps from industry, may effectively have become part of the Energy Group in that they became involved in the advice given to the President.

By April 19, 2001, the buzz in Washington had it that Cheney's Energy Group was meeting with Bush's big contributors in the energy business, and that the heavy hitters from the oil patches and gas fields were looking for a return on their investment in Bush's campaign. The bottom line: energy was going to win; environmentalism would lose.

Congressman Henry Waxman (D. CA), the ranking member on the Committee On Government Reform, and John Dingell (D. MI), the ranking member on the Energy and Commerce Committee, were sufficiently concerned about this prospect to write to both the Energy Group and the Comptroller General requesting information about the composition of the Group, and its activities. But all their inquiries have been to no avail.

The Vice President's Stonewalling

Counsel to the Vice President David Addington responded to the Congressional request. He explained that the Energy Group was not subject to the Federal Advisory Committee Act, but as a matter of comity - a more accurate word might be "comedy," given his response -- he would provide some answers about the Energy Group's members, staff and activities. Unfortunately, these "answers" were extremely vague. As for the General Accounting Office, Addington told them (nicely) to get lost.

GAO's General Counsel, Anthony Gamboa, advised Addington that, as a matter of law, GAO had full authority to "intrude into the heart of Executive deliberations." Gamboa cited the GAO law, chapter and verse, setting forth its legislative history which addresses this very point by making clear that: "[The] mere fact that materials sought are subject to ... [deliberative process] and therefore exempt from public disclosure does not justify withholding them from the Comptroller General."

More to the point, GAO stated that it was "not inquiring into the deliberative process but are focused on gathering factual information regarding the process of developing President Bush's National Energy Policy." Thus, to the extent that Addington's letter had misinterpreted what was being sought, the GAO corrected any misinterpretation, and made clear that there was no longer any good reason for Cheney not to respond.

But Vice President Cheney did - and still does - not want to be troubled with what GAO is actually seeking. Accordingly, he has continued to claim in almost all his public statements that GAO is seeking to intrude into the deliberate process, when GAO itself has made clear that is not the case.

On January 30, 2002, the Controller, in announcing his contemplated lawsuit once again made clear what he was and was not seeking: "[C]ontrary to recent assertions," he stressed, "we are not seeking the minutes of [the Energy Group's] meetings or related notes of the Vice President's staff."

Cheney is hoping that if you repeat a lie enough, people will believe it. If the public knew how little GAO is seeking, it would be difficult for the Vice President to make his case publicly that GAO is being unreasonable. In fact, GAO seeks only "certain narrowly defined, factual information concerning the development of the National Energy Policy [which was publicly announced on May 18, 2001]."

More precisely, GAO seeks to answer one question: "What process did [the Cheney Energy Group] use to develop the National Energy Policy?" To answer that question they have asked who was present at the Group's meetings, what are the names of the professional staff, from whom did the Group members or staff gather information (dates, subjects, and locations), and what direct and indirect costs were incurred in developing the National Energy Policy. That is it. This information could be embarrassing - and could even cause the group to lose FACA protection if there was too much industry influence (such as an industry representative who became a de facto member). But it does not intrude into executive deliberations.

Still, Speaker Dennis Hastert, emerging from a meeting at the White House, told reporters that he does not believe it is right and fair that GAO should have access to private conversations of the President or Vice President, nor the deliberative processes of the White House. The Speaker has either been misled or has joined the effort at disinformation about what is being requested. That is simply not the information GAO is actually seeking.

While the public duplicity about what is and is not at issue is shameful, the how-dare-you-ask-me refusal of the Vice President to give GAO anything is bold, if nothing else. It's caused me to dust off my copy of The Imperial Presidency, Arthur Schlesinger, Jr.'s seminal work on Executive hubris.

The Vice President Contests GAO's Authority

The short answer was they couldn't be stopped, only delayed. While I was not sure what concerned Haldeman and the President, based on my own earlier experiences with GAO's professionalism, I convinced Haldeman that these auditors were not partisans looking for dirt. He relented when I told him that it was unheard of to litigate their authority, and it would generate a lot of unwanted negative publicity to force them to sue. Nothing untoward came from the GAO audit of the Nixon White House. To the contrary, all was found in order.

Cheney has spent enough years on Capitol Hill, and in the Executive Branch, to know that GAO auditors and examiners play it straight. Indeed, that must be what concerns him.

It is difficult for anyone familiar with GAO's history, which has long included investigations of both Republican and Democratic administrations, to look upon Cheney's challenge as anything but a stalling tactic. Given the fact the President has not also invoked executive privilege, I cannot but wonder if the stall strategy is this: First, the Administration will fight the lawsuit over GAO's authority; second, when the Administration loses that suit (as it likely will), the Administration will mount another fight over executive privilege. That should get them past the 2004 presidential election.

Much of the Watergate cover-up actually involved stalling - delaying everything until the last minute, and then looking for a way to delay further. The goal was to push the potential problems past the elections, which we did. Everyone who is familiar with the ways of Washington scandals will understand the stalling strategy. Among its other virtues, delay creates an opportunity for an intervening event to change the dynamic of an unfolding scandal.

The tragedy of September 11th is a perfect example. It caused GAO to pull back from pursuing its lawsuit at an earlier date, not wishing to distract the White House. Now another terrorist strike could similarly dwarf even the Enron debacle, and certainly the GAO suit, in the headlines, and create even more momentum for even unreasonable assertions of executive power like this one.  

Bush-Cheney Versus GAO

The Cheney position that GAO cannot pursue an investigation of the Energy Group is based upon three basic fallacious arguments. First, Cheney claims that GAO's authorizing statute (found at 31 U.S.C. sections 712, 716 and 717) limits it to reviewing only financial matters and end results, not the underlying government activities.

Second, Cheney claims that under the same statute, GAO has no authority to examine Executive activities undertaken by reason of Constitutional, rather than statutory power, and the Energy Group was acting pursuant to the Constitutional powers of the President and Vice President.

Third, and finally, Cheney claims that, again under the authorizing statute, GAO has no power to undertake an investigation based on requests of ranking minority members of a committee (such as Representatives Waxman and Dingell); rather, such an investigation can only be initiated at the request of a full committee, and no such request has been made.

What is fascinating about Cheney's position is that it appears to be exactly the kind of argument that Enron officials made, internally and with their Arthur Andersen auditor, to keep the offshore partnerships off the balance sheet. The Vice President wants the GAO auditors to keep out of his "off the books" Energy Group's dealings with industry contributors, too - even though, as with the Enron offshore partnerships, these dealings may be the most relevant information of all to those reviewing the work of this Group.

Raising Smoke And Throwing Sand

Those readers who are attorneys will immediately recognize what the Vice President and his counsel are doing. They don't care if their arguments are baseless; they are simply trying to cloud the air with smoke to obscure what would otherwise be a clear-cut legal answer: GAO has the legal right to information it seeks, period, full stop. They have already succeeded in clouding the picture, and tossing sand in the gears slows down the process.

As someone who knows a White House cover-up from first-hand experience, I must say that if the Vice President forces the Comptroller to file his lawsuit, it will certainly appear that a cover-up is in the works. Whether the cover-up relates to Enron, or to his Energy Group's relationship with Halliburton (the energy company he ran before running for his present office), or to a dubious relationship with some other contributor that has received some benefit, or all of the above, I cannot say. But something is amiss.

Cheney's contentions about GAO are meritless, and he should give them up. Having worked both ends of Pennsylvania Avenue, I appreciate that it is difficult to govern in a fishbowl. Yet I also know that the genius of our system is that the White House is responsible not only to the people, but to their representatives on Capitol Hill. Congressional oversight of the executive is as important as, maybe more so than, lawmaking.

Dick Cheney, like Dick Nixon, is too smart and shrewd to take a stand on a makeshift principle for no reason. There is a reason Cheney has decided to take the heat and political fallout from resisting GAO's request; the reason is that the alternative, of giving GAO access to the information it wants, would, from Cheney's perspective, be worse. As fine and dedicated a public servant as he is - he is stonewalling. This is how a cover-up begins.

What If The GAO Lawsuit Reaches the Supreme Court?

But maybe there is another explanation. It has occurred to me that Cheney may know something about the Supreme Court that the rest of don't. Ultimately, the issues of the GAO lawsuit will have to be resolved by the Supreme Court - although the suit will begin in the lower federal courts and take time to work its way up (thus playing into the stalling strategy that could push all of this past the 2004 election).

For the Vice President to prevail would only require the support of the same five conservative justices who put the Vice President in his current job with their ruling in Bush v. Gore. But should these justices decide to hold in favor of Cheney in the GAO lawsuit, and thus neuter the Congress's authority to investigate the Executive Branch, the ramifications will be much more serious and far-reaching than the results of their aberrant holding in Bush v. Gore - which they themselves limited even as they handed it down.

If Vice President Cheney were to prevail in such a suit, the high Court will have decided that Congressional oversight of the Executive Branch is limited to only what the President and Vice President are willing to permit. This would be an awesome realignment of power in Washington.

Before Bush v. Gore, I would have said such a ruling would be impossible. Today, all I can say is it is a time for vigilance. This lawsuit, should it proceed, calls for close watching.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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