GAO V. CHENEY IS BIG-TIME STALLING:
The Vice President Can Win Only If We Have Another Bush v. Gore -like Ruling
By JOHN W. DEAN
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Friday, Feb. 01, 2002
This is Part Two of a two-part series by Mr. Dean on Enron. Part One
is archived on this site. - Ed.
Vice President Dick Cheney has thrown down the gauntlet. He has
refused to give the General Accounting Office the very limited
information they have requested about the work of his energy task
force. (GAO, created in 1921 during the Harding Administration, has
from its inception been an independent and nonpartisan agency of the
Congress, charged with studying the programs and expenditures of the
federal government.)
Cheney says he is refusing to provide information to the Congress as
a matter of principle. He told the Today Show that he wants
to "protect the ability of the president and the vice president to
get unvarnished advice from any source we want." That sounds all too
familiar to me. I worked for Richard Nixon.
In fact, not since Richard Nixon stiffed the Congress during
Watergate has a White House so openly, and arrogantly, defied
Congress's investigative authority. Nor has any activity by the Bush
Administration more strongly suggested they are hiding the
incriminating information about their relationship with the now-
moribund Enron, or other heavy-hitting campaign contributors from the
energy business.
After nine months of shilly-shallying, the Vice President and his
operatives have failed to bluff the General Account Office. The
issues are being ratcheted up a few quantum notches. On January 30,
2002, GAO informed Congress, the President, and the Vice President
that it was going to court. GAO noted that this will be the first
time it "has filed suit to enforce our access rights against a
federal official" in its fourscore history.
To quote Mr. Cheney (from another context) - this is a "big time"
lawsuit.
GAO's Historic Lawsuit
The first important thing to understand about the GAO suit is that it
is not a political lawsuit. GAO's current Comptroller General, David
Walker, is not from the ranks of Bush-Cheney bashers. In fact, he was
a member of the Reagan Administration and the first Bush
Administration. And when he was appointed in 1998 to his fifteen-year
term by President Clinton, it was at the urging of top Republicans.
Filing this historic lawsuit will not be pleasant for Walker.
But the Comptroller has no choice; Cheney and the White House have
forced the issue. Litigation is necessary, unless Cheney reneges.
Cheney has not claimed "Executive Privilege," for the Vice President
has no such power. Rather, Cheney has claimed - and Bush has backed
up his claim - that GAO (and therefore the Congress, too) has no
authority to seek the information they have requested. Thus, for the
Comptroller not to go to court would be tantamount to a declaration
of Congressional impotence, not to mention a concession impairing
GAO's basic mission.
Indeed, if the Vice President's position should prevail, it will
change the very nature of our government's system of checks and
balances. If GAO is held to be as restricted at Cheney would have it,
such a ruling will create a black hole in the Federal firmament - a
no man's land where only the President and Vice President can go,
unobserved by their Constitutional co-equals on Capitol Hill.
Background Of the GAO Lawsuit
For those who've not followed this evolving turmoil, a brief recap of
the background of the GAO lawsuit is in order.
On January 29, 2001, President Bush established the National Energy
Policy Development Group ("Energy Group"), which was chaired by Vice
President Dick Cheney. Cheney's Energy Group consisted of six cabinet
officers (Treasury, Interior, Agriculture, Commerce, Transportation
and Energy), plus other government officials he was authorized to
include. (For example, he could include the Secretary of State, if
international issues were involved.) The staff was made up of full
time government employees.
Clearly, the Energy Group was constituted to avoid the Federal
Advisory Committee Act (FACA). That 1972 law applies if any group of
two or more persons utilized by a president for advice includes a non-
government employee or official. If this occurs, FACA requires that
the group must make all of its proceedings open to the public, keep
records of the proceedings, and accommodate a broad spectrum of
views.
Cheney's Energy Group sought to avoid the FACA requirements by
including only government employees, and no outside persons, and it
appears they did so successfully. But we don't really know, because
the Vice President refuses to provide the information necessary to
make a determination. For all we know, non-government persons,
perhaps from industry, may effectively have become part of the Energy
Group in that they became involved in the advice given to the
President.
By April 19, 2001, the buzz in Washington had it that Cheney's Energy
Group was meeting with Bush's big contributors in the energy
business, and that the heavy hitters from the oil patches and gas
fields were looking for a return on their investment in Bush's
campaign. The bottom line: energy was going to win; environmentalism
would lose.
Congressman Henry Waxman (D. CA), the ranking member on the Committee
On Government Reform, and John Dingell (D. MI), the ranking member on
the Energy and Commerce Committee, were sufficiently concerned about
this prospect to write to both the Energy Group and the Comptroller
General requesting information about the composition of the Group,
and its activities. But all their inquiries have been to no avail.
The Vice President's Stonewalling
Counsel to the Vice President David Addington responded to the
Congressional request. He explained that the Energy Group was not
subject to the Federal Advisory Committee Act, but as a matter of
comity - a more accurate word might be "comedy," given his response --
he would provide some answers about the Energy Group's members,
staff and activities. Unfortunately, these "answers" were extremely
vague. As for the General Accounting Office, Addington told them
(nicely) to get lost.
Addington declared that GAO was seeking "to intrude into the heart of
Executive deliberations, including deliberations among the President,
the Vice President, members of the President's Cabinet, and the
President's immediate assistants, which the law protects to ensure
the candor in Executive deliberation necessary to effective
government." While this was a gross overstatement - the answers GAO
was seeking were much more modest, and did not really intrude into
the "heart" of executive deliberations - GAO persuasively argued that
even assuming this claim was accurate, it still had the authority to
make the requests it had made.
GAO's General Counsel, Anthony Gamboa, advised Addington that, as a
matter of law, GAO had full authority to "intrude into the heart of
Executive deliberations." Gamboa cited the GAO law, chapter and
verse, setting forth its legislative history which addresses this
very point by making clear that: "[The] mere fact that materials
sought are subject to ... [deliberative process] and therefore exempt
from public disclosure does not justify withholding them from the
Comptroller General."
More to the point, GAO stated that it was "not inquiring into the
deliberative process but are focused on gathering factual information
regarding the process of developing President Bush's National Energy
Policy." Thus, to the extent that Addington's letter had
misinterpreted what was being sought, the GAO corrected any
misinterpretation, and made clear that there was no longer any good
reason for Cheney not to respond.
But Vice President Cheney did - and still does - not want to be
troubled with what GAO is actually seeking. Accordingly, he has
continued to claim in almost all his public statements that GAO is
seeking to intrude into the deliberate process, when GAO itself has
made clear that is not the case.
On January 30, 2002, the Controller, in announcing his contemplated
lawsuit once again made clear what he was and was not seeking: "[C]
ontrary to recent assertions," he stressed, "we are not seeking the
minutes of [the Energy Group's] meetings or related notes of the Vice
President's staff."
Cheney is hoping that if you repeat a lie enough, people will believe
it. If the public knew how little GAO is seeking, it would be
difficult for the Vice President to make his case publicly that GAO
is being unreasonable. In fact, GAO seeks only "certain narrowly
defined, factual information concerning the development of the
National Energy Policy [which was publicly announced on May 18,
2001]."
More precisely, GAO seeks to answer one question: "What process did
[the Cheney Energy Group] use to develop the National Energy Policy?"
To answer that question they have asked who was present at the
Group's meetings, what are the names of the professional staff, from
whom did the Group members or staff gather information (dates,
subjects, and locations), and what direct and indirect costs were
incurred in developing the National Energy Policy. That is it. This
information could be embarrassing - and could even cause the group to
lose FACA protection if there was too much industry influence (such
as an industry representative who became a de facto member). But it
does not intrude into executive deliberations.
Still, Speaker Dennis Hastert, emerging from a meeting at the White
House, told reporters that he does not believe it is right and fair
that GAO should have access to private conversations of the President
or Vice President, nor the deliberative processes of the White House.
The Speaker has either been misled or has joined the effort at
disinformation about what is being requested. That is simply not the
information GAO is actually seeking.
While the public duplicity about what is and is not at issue is
shameful, the how-dare-you-ask-me refusal of the Vice President to
give GAO anything is bold, if nothing else. It's caused me to dust
off my copy of The Imperial Presidency, Arthur Schlesinger, Jr.'s
seminal work on Executive hubris.
The Vice President Contests GAO's Authority
It was during Watergate that I first became aware of GAO's authority.
I received a call from then White House Chief of Staff H.R. "Bob"
Haldeman. He said that GAO wanted to examine the White House books
and records. Haldeman said the President did not want them sniffing
and snorting around the White House. How could we stop them?
The short answer was they couldn't be stopped, only delayed. While I
was not sure what concerned Haldeman and the President, based on my
own earlier experiences with GAO's professionalism, I convinced
Haldeman that these auditors were not partisans looking for dirt. He
relented when I told him that it was unheard of to litigate their
authority, and it would generate a lot of unwanted negative publicity
to force them to sue. Nothing untoward came from the GAO audit of the
Nixon White House. To the contrary, all was found in order.
Cheney has spent enough years on Capitol Hill, and in the Executive
Branch, to know that GAO auditors and examiners play it straight.
Indeed, that must be what concerns him.
It is difficult for anyone familiar with GAO's history, which has
long included investigations of both Republican and Democratic
administrations, to look upon Cheney's challenge as anything but a
stalling tactic. Given the fact the President has not also invoked
executive privilege, I cannot but wonder if the stall strategy is
this: First, the Administration will fight the lawsuit over GAO's
authority; second, when the Administration loses that suit (as it
likely will), the Administration will mount another fight over
executive privilege. That should get them past the 2004 presidential
election.
Much of the Watergate cover-up actually involved stalling - delaying
everything until the last minute, and then looking for a way to delay
further. The goal was to push the potential problems past the
elections, which we did. Everyone who is familiar with the ways of
Washington scandals will understand the stalling strategy. Among its
other virtues, delay creates an opportunity for an intervening event
to change the dynamic of an unfolding scandal.
The tragedy of September 11th is a perfect example. It caused GAO to
pull back from pursuing its lawsuit at an earlier date, not wishing
to distract the White House. Now another terrorist strike could
similarly dwarf even the Enron debacle, and certainly the GAO suit,
in the headlines, and create even more momentum for even unreasonable
assertions of executive power like this one.
Bush-Cheney Versus GAO
The Cheney position that GAO cannot pursue an investigation of the
Energy Group is based upon three basic fallacious arguments. First,
Cheney claims that GAO's authorizing statute (found at 31 U.S.C.
sections 712, 716 and 717) limits it to reviewing only financial
matters and end results, not the underlying government activities.
Second, Cheney claims that under the same statute, GAO has no
authority to examine Executive activities undertaken by reason of
Constitutional, rather than statutory power, and the Energy Group was
acting pursuant to the Constitutional powers of the President and
Vice President.
Third, and finally, Cheney claims that, again under the authorizing
statute, GAO has no power to undertake an investigation based on
requests of ranking minority members of a committee (such as
Representatives Waxman and Dingell); rather, such an investigation
can only be initiated at the request of a full committee, and no such
request has been made.
GAO has addressed and thoroughly refuted each point - in letters of
June 22, 2002, and August 17, 2001.
What is fascinating about Cheney's position is that it appears to be
exactly the kind of argument that Enron officials made, internally
and with their Arthur Andersen auditor, to keep the offshore
partnerships off the balance sheet. The Vice President wants the GAO
auditors to keep out of his "off the books" Energy Group's dealings
with industry contributors, too - even though, as with the Enron
offshore partnerships, these dealings may be the most relevant
information of all to those reviewing the work of this Group.
Raising Smoke And Throwing Sand
Those readers who are attorneys will immediately recognize what the
Vice President and his counsel are doing. They don't care if their
arguments are baseless; they are simply trying to cloud the air with
smoke to obscure what would otherwise be a clear-cut legal answer:
GAO has the legal right to information it seeks, period, full stop.
They have already succeeded in clouding the picture, and tossing sand
in the gears slows down the process.
As someone who knows a White House cover-up from first-hand
experience, I must say that if the Vice President forces the
Comptroller to file his lawsuit, it will certainly appear that a
cover-up is in the works. Whether the cover-up relates to Enron, or
to his Energy Group's relationship with Halliburton (the energy
company he ran before running for his present office), or to a
dubious relationship with some other contributor that has received
some benefit, or all of the above, I cannot say. But something is
amiss.
Cheney's contentions about GAO are meritless, and he should give them
up. Having worked both ends of Pennsylvania Avenue, I appreciate that
it is difficult to govern in a fishbowl. Yet I also know that the
genius of our system is that the White House is responsible not only
to the people, but to their representatives on Capitol Hill.
Congressional oversight of the executive is as important as, maybe
more so than, lawmaking.
Dick Cheney, like Dick Nixon, is too smart and shrewd to take a stand
on a makeshift principle for no reason. There is a reason Cheney has
decided to take the heat and political fallout from resisting GAO's
request; the reason is that the alternative, of giving GAO access to
the information it wants, would, from Cheney's perspective, be worse.
As fine and dedicated a public servant as he is - he is stonewalling.
This is how a cover-up begins.
What If The GAO Lawsuit Reaches the Supreme Court?
But maybe there is another explanation. It has occurred to me that
Cheney may know something about the Supreme Court that the rest of
don't. Ultimately, the issues of the GAO lawsuit will have to be
resolved by the Supreme Court - although the suit will begin in the
lower federal courts and take time to work its way up (thus playing
into the stalling strategy that could push all of this past the 2004
election).
For the Vice President to prevail would only require the support of
the same five conservative justices who put the Vice President in his
current job with their ruling in Bush v. Gore. But should these
justices decide to hold in favor of Cheney in the GAO lawsuit, and
thus neuter the Congress's authority to investigate the Executive
Branch, the ramifications will be much more serious and far-reaching
than the results of their aberrant holding in Bush v. Gore - which
they themselves limited even as they handed it down.
Osama bin Laden himself could not concoct a more hurtful blow to our
democracy. For the Court to resolve the case against GAO (and the
Congress) and in favor of the Vice President would diminish the role
of Congress as drastically as a reveral of Marbury v. Madison would
diminish the judiciary's role.
If Vice President Cheney were to prevail in such a suit, the high
Court will have decided that Congressional oversight of the Executive
Branch is limited to only what the President and Vice President are
willing to permit. This would be an awesome realignment of power in
Washington.
Before Bush v. Gore, I would have said such a ruling would be
impossible. Today, all I can say is it is a time for vigilance. This
lawsuit, should it proceed, calls for close watching.
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John Dean, a FindLaw columnist, is a former Counsel to the President
of the United States.
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