The Decision Dismissing the Lawsuit Against Vice President Dick Cheney:
Why It Was Wrong, Both Legally and Logically

A few years ago, two unlikely allies - Judicial Watch and the Sierra Club - commenced legal action under a federal open meetings law against Vice President Dick Cheney. They both sought access to certain government records regarding the formulation of national energy policy.

This litigation probably would have flown under the radar, but for the politically-damaging allegation that indicted former Enron executive Kenneth Lay participated in the development of the controversial policy. With an election on the horizon, the Bush administration put on its legal armor and went to battle to prevent discovery of these potentially embarrassing records.

Before the trial and appeals courts, Judicial Watch and the Sierra Club won. But the White House continued to withhold the records, taking its case all the way to the Supreme Court. And in 2004, the high court vacated the ruling of the Court of Appeals for the D.C. Circuit. It remanded the case, instructing the court to show deference to the Vice President in light of the separation of powers issues involved. That decision ensured that the documents would not become available before the 2004 presidential election.

Last week, in a resounding 8-0 en banc decision, the D.C. Circuit ordered the district court to dismiss the suit. (An en banc decision is made by a large panel of an appeals court; typically, federal appellate decisions are made by a three-judge panel.)

This should end the legal dispute. The controversy is sure to remain, however, as the appellate court's opinion is heavily flawed on both legal and logical grounds.

The Federal Advisory Committee Act

The decision centered on the Federal Advisory Committee Act (FACA). FACA, a decades-old law, was enacted to promote transparency with regard to the workings of the nearly one thousand advisory groups from which the federal government annually receives policy advice and recommendations.

Among other things, FACA requires that all advisory committees must file a charter; hold open meetings; announce their upcoming meetings in the Federal Register; and make their records, reports, minutes, and transcripts available for public inspection. In addition, FACA requires that all advisory committees "be fairly balanced in terms of the points of view represented" and "not be inappropriately influenced by the appointing authority or by any special interest."

The law defines an advisory committee as "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . . which is . . . established or utilized . . . in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government."

The law then goes on to note a key exemption from FACA: It does not cover "any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government." In other words, FACA does not require openness when it comes to meetings attended by government employees alone.

Judicial Watch and the Sierra Club Bring Suit

During his first weeks in office, President George W. Bush set up the National Energy Policy Development Group (NEPDG), under the chairmanship of the Vice President Cheney. This task force was charged with developing a policy that would "promote dependable, affordable, and environmentally sound production and distribution of energy." The President appointed several cabinet secretaries, agency directors, and presidential assistants to the group.

In May 2001, the NEPDG released its final report, which proffered a set of recommendations for the Bush administration's new national energy policy. (Elements of that policy started coming to fruition last month with the House's passage of a comprehensive, and controversial, energy bill.)

After that report, Judicial Watch and the Sierra Club brought legal action against the NEPDG and the Vice President, seeking the discovery of documents that, they argued, were subject to disclosure under FACA. ("Discovery" is the authorized exchange of litigation-related evidence.)

The Vice President objected, asserting, among other reasons, that FACA did not apply because all members appointed to the NEPDG were federal government employees. But the plaintiffs responded that FACA did apply, for although private lobbyists and corporate executives were not appointed to the group, the reality was that they were active de facto members of the group - participating in meetings and the like.

The Courts' Rulings

In 2002, the district court ruled, in Judicial Watch v. NEPDG, that discovery could proceed for purposes of determining whether or not private individuals were indeed de facto members of the NEPDG. It based that ruling on a prior D.C. Circuit decision that said that - as the plaintiffs had argued - FACA applies when a private individual's "involvement and role" in an advisory group is "functionally indistinguishable from those of the other members."

The D.C. Circuit Court of Appeals agreed. But in 2004, the U.S. Supreme Court, in Cheney v. District Court, deemed the discovery requests "anything but appropriate," complaining that they "ask for everything under the sky." Greater precision and specificity were warranted, the Court argued, for "Special considerations control when the Executive Branch's interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated." Requests for documents approved by the Judicial Branch, and sent to the Executive Branch, the Court reasoned, must tread carefully due to separation of powers issues.

On remand, the D.C. Circuit, en banc, unanimously decided that a dismissal of the action was justified. It held that the FACA exemption would apply "if the President has given no one other than a federal official a vote in or, if the committee acts by consensus, a veto over the committee's decisions." And it pointed out that there was no evidence in the record that the NEPDG did not fit this test. (Kenneth Lay, for instance, might have attended meetings - but had no vote or veto.)

The Flaws in the D.C. Circuit's Opinion

There are at least six aspects of this opinion that are troubling.

First, the ruling is in tension with U.S. Supreme Court cases. It concludes that committee memberships are strictly limited to voting members. But prior Supreme Court rulings have acknowledged the role of non-voting members in committees. The cases are legion, and span several decades. Examples include the 2001 decision in Brentwood Academy v. Tennessee Secondary School Athletic Association, the 1994 decision in FEC v. NRA Political Victory Fund, the 1989 decision in Mistretta v. United States, and the 1979 decision in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency.

Second, the ruling contradicts the language of the FACA statute itself. This language shows that Congress had in mind committees formed "in the interest of obtaining advice or recommendations," not merely those that vote on or veto recommendations. (Emphasis supplied.)

Third, the ruling contradicts common sense. People frequently provide advice and recommendations in group settings without vote or veto power. They can still have great influence, by providing information, ideas, expert counsel, and more. It's contrary to logic and experience to claim that the only bona fide participants on committees are those authorized to vote or veto. And because this claim is so illogical, it's very unlikely that this was Congress' belief when it passed the law.

Fourth, it is based on tortured logic regarding the purpose of discovery. This logic put the plaintiffs in a Catch-22. To win, they must show that non-federal personnel actually attended, and participated in, NEPDG meetings (and, under the court's test, that they had a vote or veto). How can they get this evidence? Through discovery. But here's the Catch-22: They can't conduct discovery unless they already have the evidence.

Fifth, the D.C. Circuit ignored the Supreme Court's own guidance in the Cheney case. The Court had pointed out that "[t]here is sound precedent in the District of Columbia itself for district courts to explore other avenues . . . when they are asked to enforce against the Executive Branch unnecessarily broad subpoenas." Thus, the Court suggested that the district court could "narrow, on its own, the scope of the subpoenas to allow the Executive 'to consider whether to invoke executive privilegewith respect to . . . a smaller number of documents following the narrowing of the subpoenas.'" Why, then, did the D.C. Circuit not send the case back to the district court so it could do exactly that? Quite narrow discovery might have sufficed - in the form of a list of attendees at every NPEDG meeting.

Sixth, the ruling is sustained by two ambiguously written affidavits submitted by Bush administration political appointees. But there are problems with simply relying on the affidavits. The plaintiffs have made contrary allegations in their complaints - and at this stage, courts are supposed to assume the truth of those allegations. Later, discovery will allow for a factual dispute, but for now, the plaintiffs' allegations control. Moreover, unless the plaintiffs have the opportunity to muster contrary evidence, there remains the possibility that the affidavits are untrue, or at least misleading. Not even a decade ago, in a similar FACA case, political appointees represented that certain White House Health Care Reform groups were composed completely of government employees - a claim falsified subsequently by discovery.

In sum, the D.C. Circuit reached a result that the Supreme Court never suggested, and that was contrary to the result the Court did suggest, of having the district court narrow the subpoenas. This result contravened Supreme Court guidance, not to mention common sense - and it is virtually certain it contravened the intent of Congress when it passed FACA. Limited discovery here - in the form of lists of meeting attendees - would have both allowed the plaintiffs due process, and followed the High Court's suggestion.

Louis Klarevas is Assistant Professor of Political Science at City University of New York-College of Staten Island. He also teaches in the graduate Global Studies program at New York University's School of Continuing and Professional Studies. His analysis of the Supreme Court's ruling in Cheney v. District Court appears in the December 2004 issue of Presidential Studies Quarterly.