On Tuesday, Vice President Dick Cheney, represented by Solicitor General Theodore Olson, will be a petitioner before the Supreme Court in a case arising out of his battle with two antagonists, the Sierra Club and the gadfly group Judicial Watch.
In the case, called Cheney vs. U.S. District Court for the District of Columbia, the vice president is urging the justices to block his adversaries from using the legal discovery process to get documents revealing the workings of the National Energy Policy Development Group, a task force Cheney headed three years ago.
According to the Washington Post, Cheney met in early 2001 with executives from the oil and gas industries, including Anadarko Petroleum’s Robert Allison and then-Enron Chairman Kenneth Lay.
The Sierra Club and Judicial Watch charge that the Cheney task force included energy industry bigwigs as de facto members and therefore was subject to a 1972 law called the Federal Advisory Committee Act (FACA), which requires disclosure of the work of advisory groups that include non-federal employees.
There are odd aspects to this controversy:
- Many of the task force’s recommendations for expanding energy supplies were the very same ones Bush had made during the 2000 campaign, including more oil and gas drilling on federal lands in Western states, more subsidies for using cleaner-burning coal to generate electricity, and oil drilling in part of Alaska’s Arctic National Wildlife Refuge. What the task force came up with was neither new nor surprising, given the platform on which Bush had campaigned.
- None of the legislative recommendations sketched out in the Cheney group’s report has been enacted by Congress, partly due to the hubbub over energy companies having a voice in crafting the proposals.
- One of Cheney’s adversaries in the case, Carl Pope, the head of the Sierra Club, is also the co-founder of a group called America Coming Together, which is working to defeat Bush and Cheney by registering Democratic voters and in its words “highlighting the extremist positions of the Bush Republican agenda.”
- The Sierra Club filed a motion urging Supreme Court Associate Justice Antonin Scalia to recuse himself from the case, after the Los Angeles Times reported that he had gone on a duck hunting trip in Louisiana last January with Cheney, at the invitation of Scalia’s friend Wallace Carline, who owns a firm that provides services to oil rigs in the Gulf of Mexico.
Cheney and Scalia have been friends since their days serving in the Ford administration 30 years ago.
Scalia issued a memorandum last month explaining why he did not believe his impartiality could reasonably be questioned in the case. He had spent almost no time alone with Cheney during the hunting trip and “of course we said not a word about the present case,” he wrote.
Scalia noted, “there could be political consequences from disclosure of the fact (if it be so) that the Vice President favored business interests. ... But political consequences are not my concern. ... To expect judges to take account of political consequences ... is to ask judges to do precisely what they should not do.”
Judicial Watch president Tom Fitton said the suit against Cheney is driven by the need for open government.
“The administration has an interest in making sure that the American people do not know whether or not folks like Ken Lay or any other energy industry executives had a hand in conducting government business,” Fitton said. “We have right to know that. It is not improper to ask those questions. And it is not improper for the court to ask them. The court is only saying, ‘Tell us what outsiders, if any, were involved and what was the extent of their involvement.’”
Abusing the judicial process?
But critics of the suit see it as an attempt to use the courts to inflict political damage on Cheney.
“This case is a paradigmatic example of abuse of the judicial process,” said Washington lawyer Michael Carvin, a former Justice Department official in the Reagan administration and one of the lawyers for Bush in the 2000 Florida election recount battle. “You rarely see a case where it is so blatantly obvious that they are seeking discovery for its own sake to achieve some separate public relations objective, rather than to enforce any kind of real right or legal obligation.”
In Carvin’s view, the Sierra Club and Judicial Watch want to rummage through the task force files to dig up information that would help paint the administration as controlled by the oil, gas and coal industries.
In order to figure out whether energy industry executives became de facto members of the task force by regularly meeting with Cheney and his aides, Carvin said, a judge would need to allow a wide-ranging search of the files.
“You would authorize the intrusions into the executive branch which … are way more intrusive than anything that FACA ever contemplated,” Carvin said.
Arguing for restraint
At stake in the Cheney case, said George Washington University Law School Professor John Duffy, is the principle of judicial restraint, which means judges should “try not to get into what are inherently political fights, as this very much is.”
Perhaps if Cheney’s task force had consulted with environmental groups, the Bush energy legislation would have had more success on Capitol Hill, Duffy speculated. “But that shows precisely why the courts should not be involved. This is about politics, about whether it is expedient for a president to include a balanced group of advisers or a partisan group of advisers.”
The bad blood between Cheney and his environmentalist foes goes back to his service as chairman and chief executive officer of Halliburton, a Texas-based oil services company.
Even before Bush announced his pick of Cheney as his running mate four years ago, the Sierra Club was attacking him.
“A Bush-Cheney ticket would be just what the oil industry wants," said a Sierra Club statement when the first reports of Cheney’s selection leaked out on July 24, 2000. It happened to be the same day that the club gave its endorsement to Democratic candidate Al Gore.
Cheney has been unyielding on the need to expand energy supplies. In a goading rebuff to environmentalists, Cheney declared in 2001 that America could not “simply conserve or ration our way out of the situation we’re in.”
In the wake of the Sept. 11 attacks, the tussle over the energy task force receded as Cheney worked from his “undisclosed secure location.”
Back in political spotlight
In recent weeks, Cheney has been at the center of arguments over how the administration made the case for war against Saddam Hussein’s regime.
And Congressional Democrats say Bush and Cheney’s decision to make a joint appearance before the commission investigating the Sept. 11 attacks, rather than each testifying separately, shows that Cheney dominates the president. In a press release headlined “Ventriloquism,” Democratic firebrand Jim Jordan compared Cheney to puppet-master Edgar Bergen and Bush to his dummy, Charlie McCarthy.
For forecasting purposes, Cheney remains “a riddle wrapped in a mystery inside an enigma” since it is hard to know whether he’ll help or hurt Bush’s chances of re-election.
What is certain is that never has a vice president wrapped such varied roles — Supreme Court petitioner, foreign policy strategist, re-election campaigner — under the cloak of such an imperturbably low-key persona.