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September 28, 2002
Cheney Argues Against Giving Congress Records
By DON VAN NATTA Jr.WASHINGTON, Sept. 27 — Lawyers for the General Accounting Office and Vice President Dick Cheney clashed today before a federal judge here over which branch of government's claim is paramount: the executive power to keep records confidential or the legislative right to investigate how public money is spent.
For the first time in the 81-year history of the agency, the auditing arm of Congress, the comptroller general of the United States went to federal court to ask a judge to order a member of the executive branch to turn over records to Congress.
Lawyers for David M. Walker, the comptroller general and head of the General Accounting Office, and for the vice president argued over whether a judge could require the White House to reveal the identities of industry executives who helped the administration develop its energy policy last year.
Judge John D. Bates of Federal District Court, who was appointed in December by President Bush, did not decide the case today. "I will consider this as quickly as I can," Judge Bates said before returning to his chamber.
The lawsuit, Walker v. Cheney, raises important constitutional questions, including whether the vice president can ignore a request for information from the accounting office without the president's exercising executive privilege.
It also carries potential political consequences for the White House since the dispute has made it difficult for the administration to distance itself from the collapse of the Enron Corporation, whose executives met with Mr. Cheney and other task force members six times last year.
Carter G. Phillips, a lawyer representing the accounting office, argued that if Judge Bates sided with the administration, the decision would have a devastating effect on "the G.A.O.'s ability to do its job."
"It would have an extraordinarily sweeping effect and would significantly halt the Congress's use of the General Accounting Office to conduct nonpartisan investigations," said Mr. Phillips, a partner in the Washington law firm of Sidley, Austin, Brown & Wood.
Mr. Phillips argued that a 22-year-old law allowed the comptroller general to "investigate all matters related to the receipt, disbursement and use of public money."
He also contended that the law gives the comptroller general the right to obtain all "information the comptroller requires about the duties, powers, activities, organization and financial transactions" of the agency under investigation.
Paul D. Clement, the principal deputy solicitor general, representing Mr. Cheney, told the judge that the agency lacked the legal standing to bring the case against the vice president. Mr. Clement also argued that the law cited by Mr. Phillips did not give the accounting office the authority to demand records from the vice president.
"No court that I'm aware of has ever ordered the executive branch to turn over a document to a Congressional agent," Mr. Clement argued. "This is unprecedented."
Mr. Clement said that if the judge ordered the records to be released, there would be no end to similar lawsuits filed by the G.A.O. against the executive branch.
Mr. Clement was joined at the defense table by the solicitor general, Theodore B. Olson, who does not often attend arguments at the district court level. Mr. Olson's presence demonstrated the importance of the case to both Mr. Cheney and Mr. Bush, who have said that disclosure of the information would hamper the executive branch's ability to solicit the advice of outside experts.
Both sides told the judge that an important constitutional principle was at stake in the dispute. Mr. Phillips said if Mr. Cheney was forced to release the information, it was not "going to bring the republic to its knees." But the information was essential, he said, for the agency to do its job to "look over the shoulder" of the executive branch as it spent taxpayers' money.
"How do you engage in a meaningful oversight function of the way public funds are spent if you cannot look at the highest level of the executive branch?" Mr. Phillips said.
In a series of questions to lawyers on both sides, Judge Bates seemed to grapple with the question of whether the agency could sue the vice president.
Lawyers for Mr. Cheney argued that the comptroller general lacked standing because he had not suffered any personal injury and has no genuine stake in the outcome of the litigation.
>From February to May last year, Mr. Cheney and the task force held a series of meetings with as many as 400 people from 150 corporations, trade associations, environmental groups and labor unions, to devise a new energy policy for the nation. The task force report recommended more drilling for oil and gas, and promoted the need to build 1,300 to 1,900 electric plants to meet the nation's projected energy demand over the next two decades.
Since May 2001, the administration has repeatedly refused to turn over the documents the General Accounting Office seeks: lists of people present at each meeting of the national energy task force, and lists of the people who met with each member of the task force, including the date, subject and location of each meeting.
In February, the office sued Mr. Cheney for the documents.
Last summer, the administration turned over 77 pages of documents to the accounting office related to the costs of the task force. But Mr. Walter said those documents did not provide the identities of the industry executives who had advised the task force.
The documents were first sought in April 2001 by Representatives John D. Dingell, Democrat of Michigan, and Henry A. Waxman, Democrat of California.
Mr. Clement argued that there were other means that Congress could have used to obtain the documents, including a subpoena sent by the committee on which both men serve, the House Governmental Affairs Committee. But it is unlikely that the full committee, which is controlled by Republicans, would have approved the subpoena of the White House.
Copyright The New York Times Company |
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