IP: John Dean: GAO V. CHENEY IS BIG-TIME STALLING

[David Farber <dave () farber net>]

> Date: Fri, 01 Feb 2002 21:21:21 -0800
> From: "Robert J. Berger" <rberger () ultradevices com>
>
> 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
> http://writ.findlaw.com/dean/20020201.html
> Friday, Feb. 01, 2002

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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.

Cheney says he is refusing to provide information to the Congress as a 
matter of principle.

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.

On January 30, 2002, GAO informed Congress, the President, and the Vice 
President that it was going to court.

To quote Mr. Cheney (from another context) - this is a "big time" 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.

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.)

Clearly, the Energy Group was constituted to avoid the Federal Advisory 
Committee Act (FACA).

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.

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.

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 ...

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.

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.

What If The GAO Lawsuit Reaches the Supreme Court?

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 resolving 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.


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