NEW YORK - In the battle over the records of Vice President Dick Cheney's energy task force, the Bush Administration has been trying every defense except one: executive privilege. But it has been dancing around it. Yesterday, the administration lost a preliminary battle to keep task force records secret, though the court invited the vice president to test the one privilege he has refused to invoke.

A U.S. federal appeals court July 8, 2003 rejected Vice President Dick Cheney's request that it block a lawsuit seeking papers from his energy task force. Cheney waits to speak at the celebration of the 228th birthday of the U.S. Army at the Pentagon in this file photo taken on June 13, 2003. (Larry Downing/Reuters)

The administration formed the National Energy Policy Development Group, as the task force is known, shortly after taking power and assigned it the job of developing energy policy. Cabinet secretaries, agency heads and senior presidential aides were members. A lawsuit filed by Judicial Watch, later joined by the Sierra Club, alleged that private executives and lobbyists were also invited to consult. The list of nongovernmental advisors allegedly included Thomas Kuhn, president of the Edison Electric Institute; Marc Racicot, chairman of the Republican National Committee and a lobbyist; Haley Barbour, a former Bush campaign advisor and a lobbyist for Southern Company; and, most ominously, Kenneth Lay, former chairman of Enron.

While the task force issued its report and recommendations in May 2001, the fight over the task force records has continued long after. Yesterday, a divided D.C. Circuit Court of Appeals refused to grant the vice president's request for a writ of mandamus blocking discovery in the district court. The request for the writ, which the court called "extraordinary" and "drastic," was the vice president's latest effort to keep the task force records under lock and key. Earlier, the task force had defeated a lawsuit filed by the General Accounting Office on the grounds that the GAO and its chief David Walker lacked standing to sue.

But in the Judicial Watch case, U.S. District Court Judge Emmet Sullivan ordered the task force last October to produce the energy documents--or at least detail the reasons why they were privileged. The task force refused to do either. In the appeals court motion denied yesterday, the administration argued that the request for documents "raises separation of powers problems of the first order." It also argued that the document request was "unnecessarily broad." But it never invoked the doctrine of executive privilege in so many words.

Justice Department lawyers had argued that the White House should not be forced to consider invoking the doctrine, as they have argued that the suit should be dismissed altogether on a variety of grounds. But the appeals court said it could not intervene in the lower court in midcase. As long as the task force refused to claim executive privilege, its separation of powers claim was "hypothetical," the court wrote. In his dissent, Judge Raymond Randolph said that the vice president should not have to invoke the privilege. But the court, in an opinion by Judge David Tatel, said granting what the Bush Administration was asking would have meant transforming executive privilege into "virtual immunity from suit." Judge Sullivan could always narrow the request for documents and review privately any documents for which privilege is claimed, the appeals court added.

The aversion to asserting an executive-privilege claim may be that the doctrine, while oft-discussed, is never mentioned in the Constitution and is ill-defined. It is "an extremely murky area," said Charles Fried, U.S. solicitor general during the Reagan Administration, in response to the earlier GAO suit. "Every time it's come up, they've resolved it [without a judicial decision]." If the administration presented the issue squarely, it would risk a negative precedent that could haunt it later, Fried said.

The idea behind executive privilege is that the president's conversations with his advisers should be private, allowing all involved to be candid while formulating initiatives. But the task force allegedly included consultations with outsiders, including Enron executives, which may weaken its claim and also increase the suggestion that the governmental process was corrupted by private interests. This concern is persistent when the vice president is a former CEO of oil service firm Halliburton and the president also toiled in the oil patch.

Environmentalists say they were shut out of the decision-making process, after which Cheney's task force called for more oil and gas drilling and a revived nuclear power program, which would have come as no surprise no matter who the administration consulted. Cheney's predilections on energy policy--drill more, generate more, use more--are well known. Still, as the fight over records now moves back to Judge Sullivan's court, the suggestion that the vice president has something to hide lingers.

© 2003 Forbes.com™

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