Published on Friday, April 18, 2003 by the Washington Post
Judges Question U.S. Move in Cheney Suit
Panel Criticizes Request for Intervention in Two Groups' Bid for Task Force Data
by Henri E. Cauvin
A government lawyer for Vice President Cheney received a scolding yesterday from a panel of federal appeals judges over the Bush administration's use of an unusual legal maneuver to avoid disclosing information about Cheney's energy policy task force.
Arguing for Cheney, Justice Department lawyer Gregory G. Katsas said that the appellate court should intervene to halt a district court effort to force Cheney to release records about the task force. But Judge Harry T. Edwards, the senior jurist on the three-member panel hearing the case, said it was hard to see why the case merited preemptive action.
"There's not one single case anywhere that supports what you're asking," Edwards, a Carter appointee, told Katsas. Edwards said that in asking the appeals court to intervene, the government was ignoring American jurisprudence. "You pretend there's no law on the books," he said. "You have no case."
The spirited scene at the U.S. Court of Appeals in Washington was the latest development in a two-year effort by public-interest groups and Congress to obtain information such as who attended those meetings and for what purpose. The General Accounting Office, the investigative arm of Congress, recently dropped its effort after a federal judge threw out its lawsuit.
Yesterday's hearing came about because of a lawsuit brought by the Sierra Club, an environmental group, and Judicial Watch, a government watchdog group. The two groups believe the energy industry had a direct hand in shaping the task force's recommendations, and they have demanded the White House release records that could support their claim.
The White House, which says the task force was made up exclusively of government employees, has said that the deliberations can remain secret and that any court ruling to the contrary would exceed the judiciary's constitutional authority.
But U.S. District Judge Emmet G. Sullivan has said that as part of the discovery process, the Sierra Club and Judicial Watch may be entitled to see some of the records, and now the government has taken the unusual step of seeking a "mandamus" intervention, in which the appeals court would halt the case before the lower court judge issues a final ruling.
The three judges at yesterday's hearing expressed doubt, in varying degrees, about whether the case belongs in the appeals court at this point, but they did not issue a ruling. It could be weeks or months before they do. Interceding in the case could be justified only if irreparable harm would otherwise be done, Edwards and his colleague Judge David S. Tatel said, but they did not appear to see it.
"Where's the harm?" asked Tatel, a Clinton appointee.
Judge A. Raymond Randolph, who was appointed by President George H.W. Bush, took the lead in questioning Larry Klayman, chairman of Judicial Watch, and Sanjay Narayan, an attorney for the Sierra Club.
Randolph asked why the plaintiffs should be allowed to go "rummaging" through the government's files without showing some evidence to contradict the government's assertion that no one from outside government sat on the energy task force. "Why isn't that adequate?" he asked.
George Washington University Law professor Jonathan Siegel said the government is understandably concerned about releasing documents in discovery. "Once you turn over documents that you don't think you should have to reveal, you can't un-reveal them," said Siegel, who was a Justice Department appellate lawyer in the early 1990s.
The Bush administration's ties to the energy industry have made the energy task force, which released its recommendations two years ago, the subject of considerable scrutiny. Environmentalists believe they were shut out of an important policymaking process, while other critics say the task force is emblematic of an administration determined to do much of its important business beyond public scrutiny.
Speaking to the American Society of Newspaper Editors last week, Cheney said "the debate has now been settled" by his victory over the GAO. "The court has ruled in favor of the administration that we did handle it in an appropriate way," he said.
Cheney said the matter would not have a "chilling" effect on government openness. "I think it restored some of the legitimate authority of the executive branch, the president and the vice president, to be able to conduct their business," he said.
After yesterday's hearing, Klayman said that "the writing is on the wall" and that Cheney "will finally have to answer questions about exactly who was participating in the formulation of our nation's energy policy."
Staff writer Dana Milbank contributed to this report.
© 2003 The Washington Post Company