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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 
---- 
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.
----------------------------------------------------------------------
John Dean, a FindLaw columnist, is a former Counsel to the President 
of the United States.