A federal appeals court sought compromise Monday between a liberal group demanding the names of White House visitors and the Bush administration, which says releasing the names would erode the president's power.
If released, the documents would show how often prominent religious conservatives visited the White House and Vice President Dick Cheney's residence, allowing a glimpse into how much influence they exerted on government policy.
White House calendars are not generally considered public records, but reporters and watchdog groups have used Secret Service documents, which normally are public, to report on White House visitors.
Rather than having those documents released on a case-by-casis basis, the Bush administration wants them considered White House documents, which would keep them from public view for more than a decade.
A federal judge rejected White House arguments in December and ordered the documents released. On appeal before the U.S. Court of Appeals for the District of Columbia Circuit, government attorneys said the president has a well-established right to seek advice privately.
Releasing lists of visitors would trample on that right, said Justice Department lawyer Jonathan F. Cohn, and the logs should be treated like other White House documents.
The judges were skeptical. They said they wanted to find a way to protect the president's rights without broadly prohibiting access to information that should be public.
"What in the documents are so quintessentially presidential?" asked Judge David S. Tatel.
"The name of the person going in to visit," Cohn replied.
"That's a public building," Tatel said. "You can stand out on 17th Street and watch who goes in and out."
"The Secret Service might have some qualms with that," Cohn responded.
"They might have some qualms but they couldn't stop you from doing it," said Chief Judge David B. Sentelle.
'A curtain around the White House'
Rather than balancing the president's interest with the public's, Tatel said, the government was simply disregarding the Freedom of Information Act. He said the policy would allow the president to "draw a curtain around the White House."
Judge Merrick B. Garland said he was concerned the Bush administration's policy could extend to other White House agencies such as the budget office, which normally releases public records. Under the government's theory, Garland said, visits to the White House social planner, caterer and gardener would all be secret because the president needs to receive advice privately.
The judges seemed equally dissatisfied with the argument of Citizens for Responsibility and Ethics in Washington, the group seeking the documents. Sentelle and Tatel said the group was using the Secret Service as an end-run, a way to get documents that normally would not be public.
"I think Congress would be surprised that, by requiring the president to receive Secret Service protection, it was opening up his calendars," Tatel said.
Sentelle became frustrated and at one point put his head in his hands after pressing attorney Anne L. Weissman to acknowledge that the president must be allowed to seek advice privately. He repeatedly urged her to explain how to balance the two interests.
"I don't understand what you don't understand," Sentelle said. "You're not acknowledging the separation-of-powers problem."
The judges pressed both sides to offer a compromise that would strike the right balance. Government lawyers said they couldn't discern from the logs which meetings were presidential policy meetings and which ones might not be sensitive, such as a meeting with the White House gardener. Weissman bristled at the idea that the government's only solution was blanket secrecy.
"I haven't heard from you a counter-suggestion," Tatel told Weissman. "We've never had a case like this."
Garland seemed to search for a solution short of the government's blanket secrecy but that would not allow journalists and special-interest groups to regularly request the names of every visitor to the White House. Under that scenario, he said., the president could never ensure that any meeting was confidential, he said.
The court did not immediately rule on the case. Nearly two dozen news organizations, including The Associated Press, filed court documents supporting the release of the Secret Service logs.
During the administration of President Clinton, political opponents made extensive use of Secret Service logs documenting White House visits by donors, money-raisers, pardon-seekers and former White House intern Monica Lewinsky.