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The General Accounting Office Drops Its Suit Against Vice President Cheney:
Given This Development, What's Next?


Friday, Feb. 14, 2003

Last year, as many readers will recall, the General Accounting Office, acting at the request of two senior Democrats in the Republican-controlled U.S. House of Representatives, sought information about Vice President Cheney's energy task force. The information the requests sought related, among other topics, to possible contacts between Enron and the task force.

Cheney refused to provide the information, and said, in essence, "Sue me." GAO did.

Why? GAO's head, Comptroller General David Walker, explained that GAO felt that losing the case could undermine its very ability to function - for "failure to pursue this matter could lead to a pattern of records access denials that would significantly undercut GAO's ability to assist Congress in exercising its legislative and oversight authorities."

Cheney moved to dismiss the suit on various grounds. Then, on December 9, 2002, federal district judge John D. Bates granted the motion - holding that GAO lacked standing to sue Vice President Dick Cheney for information.

The ruling was egregiously wrong. As I discussed in a prior column, a federal statute clearly authorizes Walker to sue in this instance. Thus, I expected GAO to appeal.

Instead, Walker announced on February 9 of this year, he was folding. That was the last day GAO had to file an appeal. Now, no appeal ever can be filed.

I find the decision mind-boggling.

The Stated Rationale for Walker's Decision Not To Appeal

The prepared statement in which Walker explains his decision not to appeal only adds insult to injury. The explanation it provides is not just underwhelming, it is also spineless and, at its base, utterly nonsensical. Comptroller Walker has all but apologized to the Vice President for filing the lawsuit to uphold a fundamental power of the legislative branch. What was needed was not an apology, but an appeal.

In the statement, Walker does not concede that Judge Bates's decision was right; on the contrary, he still maintains it was wrong. However, he notes that to proceed with an appeal "would require investment of significant time and resources over several years."

But of course, this is routinely the situation with every federal appeal - and this appeal is an especially important one, relating to allocation of power between the Executive and Legislative branches, a question of fundamental and ongoing importance, as Walker himself recognized when he filed suit in the first place.

GAO also suggests, in its statement, that it is not necessary to appeal because Judge Bates's "decision did not address the merits, [so] it has no effect on GAO's statutory audit rights or the obligation of agencies to provide GAO with information." This implies that the decision applies only to suits against the Vice President and other constitutional officers, not suits against others in the executive branch.

But neither of these claims is correct, and GAO ought to know that.

First, if GAO cannot sue to enforce agencies' obligations to provide information, its requests elsewhere will have no bite. Rights are no good if they're not enforceable; that's why we have courts in the first place.

Second, Judge Bates's opinion plainly means that GAO's head can never sue any executive branch member to turn over information; it does not depend on the identity of the defendant, but on that of the plaintiff, GAO.

The judge did not focus on Cheney, he focused on Walker. And he found that Walker, even as a statutory agent of Congress, had "no personal stake" in the dispute over information, and thus had no standing to sue. Despite the statute purporting to give Walker standing, he did not claim an injury sufficient to meet the constitutional minimum for standing. Thus, he had no standing and could not sue. End of case.

(For more detailed analysis of precedent on the standing issue, see my prior column. The key Supreme Court precedent is Raines v. Byrd, and Judge Bates said Raines was applicable to Walker, and that he thus had no standing to sue. The fact that the suit involved the Vice President was irrelevant to Judge Bates's ruling.)

That means any executive branch official - say, Attorney General Ashcroft or EPA Administrator Whitman - can stiff GAO when it serves him or her with information requests, and GAO can do nothing about it. It also may mean that executive officials can ignore Congressional committees, too. If GAO has no standing to enforce its delegated authority on Congress's behalf, why would a committee have standing to do so?

All GAO's prepared statement can offer, as a result, is a plea: "we hope that the Administration will do the right thing and fulfill its obligations when it comes to disclosures to GAO, the Congress, and the public, not only in connection with this matter but all matters in the future." If it had filed an appeal and won, it wouldn't be reduced to merely imploring the Administration to comply; it could seek an injunction forcing it to do so.

In addition, if GAO had appealed and won, executive branch officials could only stiff GAO, or a Congressional committee, by claiming executive privilege. And in the aftermath of the Nixon, Reagan and Clinton administrations, that assertion has serious political implications.

In sum, the pernicious long-term consequences of GAO's failure to appeal are plain. Yet GAO has given no good reason for declining to appeal.

Frankly, as this analysis indicates, I don't buy any of GAO's explanations for why it hasn't appealed. More than meets the eye is going on.

The Actual Reason for the Decision Not to Appeal Is Probably Very Different

In the prepared statement, Walker gives at least a clue to what GAO's real thinking may be. He notes, at the start of the statement, that he has made the decision not to appeal after, among other things, "extensive outreach with congressional leadership and others concerning various policy matters and the potential ramifications of the court's decision...." This reference to "extensive outreach" is disturbing, and betrays a misconceptualization of GAO's proper role.

GAO is part of the legislative branch, an arm of Congress. Understandably, Walker wanted the blessing of congressional leaders. But his job is to tell them what is in the best interest of GAO, and the legislative branch - not to kowtow to what is politically pleasing to the Republican leadership and the Vice President.

Indeed, I suspect Walker did tell the Republican leaders that going on with the lawsuit was in GAO's, and Congress's, best institutional interests. But they probably told him, in response, to shut down the lawsuit. Of course, no one other than Walker, his principal aides, and few members of Congress, really knows what conversations went on. And none of them are talking. But the reference to "extensive outreach" - whatever that bureaucrat-ese language means - is far from comforting.

As I see it, this lawsuit was stopped for one of two reasons. First, Republican congressional leaders may have wanted to avoid embarrassing the Vice President with revelations that might follow from court-ordered compliance with GAO's request.

Second, Republican congressional leaders decided that the federal courts have become so thoroughly packed with conservatives, a win for GAO on appeal was less than certain, even though GAO has by far the better case on the merits.

Leaders may also have worried that, if the case went forward to the U.S. Supreme Court, another Bush v. Gore-type political holding could result. And such a ruling could effectively rob Congress of its oversight powers for a very long time.

I do not know Comptroller David Walker, nor his immediate predecessor Charles Bower. But I did know Comptroller Elmer B. Staats, who was appointed by President Johnson in 1966 and served until 1981. Often I have thought about how Staats would have handled this matter, and I am sure he would have filed an appeal - choosing to operate from a position of strength, not one of weakness. Had anyone told him to back off, he would have resigned, and explained why, before letting GAO take such a deadly blow on his watch.

The Need For Constitutional Clarification on Congress's Oversight Powers

By not appealing, GAO may have ducked the issue - but only temporarily, and probably foolishly. The Supreme Court is not likely to become any more liberal. Nor is the D.C. Circuit. So if GAO is waiting for a more favorable forum, it may wait forever.

And it can't wait forever. There is a pressing need to clarify Congress's oversight authority. Only the U.S. Supreme Court can say whether, in fact, the Congress can delegate to the Comptroller the power to bring a civil action to obtain information. If it cannot, it is going to change the way the legislative branch has operated for over two centuries - and it's best to know that now, not later.

Democrats should be distressed at GAO's decision not to appeal. (GAO serves the entire Congress, not merely the party that controls.) So should the many Republicans who feel an institutional loyalty to Congress and believe that the checks and balances of the Constitution are important. Yet there's been silence on Capitol Hill. There shouldn't be. Congress should take the GAO to task for giving up power when it didn't have to do so.

If there is a better example than this situation of how Congress is making itself an irrelevant institution, it escapes me.

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

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