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Legislative vs. Executive Branch:
The Clash Over Access to Information

By Renee L. Giachino,
General Counsel, Center for Individual Freedom

A great deal of news coverage has been devoted to the collapse of Enron and the events surrounding its demise. Among the most controversial stories has been Vice President Dick Cheney’s refusal to turn over to the General Accounting Office (GAO) -- Congress’ investigative arm -- the names of individuals he, and other members of the energy task force, met with last spring as they formulated the administration’s position on energy matters. This power struggle between the legislative and executive branches will enter the court system soon, as David Walker, Comptroller General of the GAO, promises to sue the White House for the list.

Vice President Cheney maintains that his refusal is a matter of principle. Claiming that the legislative branch is intruding into the executive branch’s deliberative process, the Vice President argues that releasing the names would have a "chilling effect" on the President’s ability to get honest advice without having to worry about disclosure. President Bush echoed that sentiment, saying the GAO’s demand is "an encroachment on the executive branch’s ability to conduct business."

According to the GAO, the White House is hiding behind a vague privilege of confidentiality as a stall tactic while at least 10 congressional committees investigate the Enron debacle. Critics pushing for disclosure argue that the list of individuals will most likely reveal internal conflicts of interest that will prove domination by special interests in the formulation of energy policy. Critics further maintain that President Bush established the energy task force, chaired by the Vice President and comprised of full-time government employees, in an effort to avoid the open meetings and public access requirements of the Federal Advisory Committee Act ("FACA"). FACA exempts from its broad disclosure requirements an advisory committee comprised of government individuals. This exemption can be negated, however, if the role played by non-government individuals changed the make-up of the energy group.

Access disputes have a long history in American politics, dating back to President George Washington’s debate with the First Congress over the extent to which the House of Representatives could call for papers and persons. While most previous such disputes have resulted in compromise, this one appears to be heading for a legal showdown over the proper role of the legislature balanced against the President’s power to withhold information pursuant to some privilege. At the moment, the White House has not yet claimed "executive privilege," but rather is relying on the common law deliberative process privilege or the "privilege of secrecy." The stakes are obviously much higher if the constitutionally-based executive privilege is invoked.

The doctrine of executive privilege, while not explicitly stated in the Constitution, is founded upon the basic principles contained within Article II, Section 1, Clause 1 that provides the President with the right to receive confidential communications from his aides and advisors. This privilege, which belongs to the President, can be asserted by the Vice President in response to written instructions from the President. A U.S. Court of Appeals has extended the executive privilege to White House staff and presidential advisors "in the course of preparing advice for the President." In re: Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997) (involving then-Secretary of Agriculture, Mike Espy).

The power of Congress to attempt to gain access to sensitive executive branch information follows from the system of checks and balances favored by the framers of the Constitution. History and precedent recognize Congress’ power to oversee and investigate matters and the Constitution, "by no means contemplates total separation of each of these three essential branches of Government." Buckley v. Valeo, 424 U.S. 1, 121 (1976). The Supreme Court has been careful to limit Congress’ power as well. In one of the first cases to examine Congress’ investigative powers, Kilbourn v. Thompson, 103 U.S. 168 (1881), the Court found that Congress must have a valid legislative purpose for conducting the investigation.

The Supreme Court has never been called upon to decide whether executive privilege can overcome a congressional demand for information. The Court has recognized the existence of executive privilege in United States v. Nixon, a case involving a dispute between the executive and judicial branches. In that case, the Court found that the privilege is not absolute, noting that

"[t]he expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately . . .. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversation will be called for in the context of a criminal prosecution." 418 U.S. 683, 708, 712 ((1974) ("Nixon I").

Ultimately, the Supreme Court held in this case and one other that the President must disclose confidential, privileged information when presidential right is outweighed by other constitutional needs. (In Nixon I, the Court ruled that the privilege must give way to disclosure when the evidence is needed in a criminal case when it compelled President Richard Nixon to surrender audio tapes from the White House that were relevant to the Watergate scandal. In Nixon II, Nixon v. Administrator of General Services, 433 U.S. 425 (1977), the Court held that the public’s need for knowledge may overcome the privilege.)

The filing of the lawsuit will be the first time the GAO has sued to enforce access rights against a constitutional officer or president.

[Posted February 21, 2001]


February 28, 2002
GAO Sues White House over Energy List

As promised, the General Accounting Office (GAO), on February 22, 2002, sued the White House in Federal District Court in Washington, D.C. This unprecedented action comes in response to the administration’s repeated refusals to meet congressional demands for information regarding meetings between energy executives and Bush’s energy task force headed by Vice President Dick Cheney. [Read: Legislative vs. Executive Branch: The Clash Over Access to Information].

The GAO, headed by Comptroller General David Walker, issued a statement on Friday, acknowledging that this is "the first time that GAO has filed suit against a federal official in connection with a records access issue" and stating that this step was taken reluctantly, but with the hope that "[n]ow that the matter has been submitted to the judicial branch . . . [it] will be resolved expeditiously." GAO contends in its pleadings that it sought the requested information "in order to aid Congress in considering proposed legislation, assessing the need for and merits of future legislative changes, and conducting oversight of the executive branch’s administration of existing laws."

"We expected this (lawsuit) and we are ready to defend our principles in court," said Anne Womack, a White House spokeswoman. "This goes to the heart of the presidency, and to the ability of the president and vice president to receive candid, discreet advice." The lawsuit names Cheney as the only defendant, in his official capacity as both vice president and chairman of the National Energy Policy Development Group. The suit requests the federal court to order Cheney to reveal the names of energy executives who met with task force officials, the method for determining who was invited to attend the meetings and the cost of such meetings. The Washington, D.C. office of Sidley Austin Brown & Wood LLP is working with GAO lawyers on the matter.

Democratic Senator Harry Reid of Nevada has announced that he plans to file a friend of the court brief in support of GAO.

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