Policy And Privacy
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GWEN IFILL: At the high court today, the debate was about privacy, secrecy, and executive privilege. At issue: Did the vice president have the right not to disclose details of the meetings of his energy task force? And did a lower court have the standing to order him to do that?
The case has attracted attention in part because of Justice Antonin Scalia’s resistance to demands that he recuse himself from the case because of leisure time he’s spent with the vice president.
Marcia Coyle of the National Law Journal was in the chambers today. Jan Crawford Greenburg continues on maternity leave. Marcia, give us a sense of what the basic dispute was that brought this case to the court.
MARCIA COYLE: This case really stems from a controversy over the operations of the National Energy Policy Development Group which was a task force chaired by Vice President Cheney back in 2001, and it was charged with developing a national energy policy.
Environmental groups, consumer groups and others suspected at the time that the task force was meeting primarily with energy industry officials and lobbyists.
What we have today before the Supreme Court comes from two lawsuits that were filed by two organizations, the Sierra Club, which is an environmental group, and Judicial Watch, which is a legal ethics government watchdog organization. They sued the vice president charging that the task force had violated a federal law — the Federal Advisory Committee Act, better known as FACA. That law requires advisory committees to make public documents, records of their meetings and who attended them.
GWEN IFILL: The government in the person of Solicitor General Ted Olson argued that the president and the vice president should not… should be protected from releasing this kind of information.
And as they did last week, the Supreme Court released audio tape recordings immediately of those arguments today. Let’s listen for a moment to what Ted Olson had to say in making his argument.
SOLICITOR GENERAL TED OLSON: Mr. Chief Justice, and may it please the court, this is a case about the separation of powers. The constitution explicitly commits to the president’s discretion the authority to obtain the opinions of subordinates and to formulate recommendations for legislation. Congress may neither intrude on the president’s ability to perform these functions, nor authorize private litigants to use the courts to do so. As this court has construed the Federal Advisory Committee Act to avoid what the court regarded and described as “formidable constitutional questions,” FACA does not permit the litigation and discovery the respondents wish to pursue.
GWEN IFILL: Marcia, is there a precedent behind this that takes us to this point about whether presidents in the past have been able to do this?
MARCIA COYLE: Well, there is a precedent that came up during arguments, and that’s the Nixon Watergate case.
The government is basically making two arguments here. FACA has an exception in it that says if the advisory committee is composed entirely of federal employees or officials, it does not… the statute does not apply.
Solicitor General Olson was saying this task force was composed entirely of federal employees and officials. FACA cannot apply. But he’s also arguing that if the court, as the lower court did here, says that discovery can go forward — and discovery as you know is the production of documents and information before trial that helps either side prove their case — that that is so intrusive on the president’s right to solicit advice and information that it violates the separation of powers.
GWEN IFILL: And that the discovery they’re asking for, the lower court, would actually satisfy the demands of the people who brought the lawsuit.
MARCIA COYLE: Well, that’s what some of the justices implied. That’s what Mr. Olson argued. But the other side, which was representing by Alan Morrison and Paul Orfanedes argue that the district court here has really ordered limited discovery. It’s just trying to find out if there were any non-federal employees at these meetings and what was their role at the meetings.
GWEN IFILL: Let’s listen to some of the exchange between Paul Orfanedes who is representing Judicial Watch and Justice Anthony Kennedy today on that point.
JUSTICE ANTHONY KENNEDY: When they’re hit with a discovery order, it gives them all the same information. Why isn’t the government right, that this really is the essence of the suit and we should hear the merits of it now?
PAUL ORFANEDES: I don’t think that is the essence of the suit. I think the appellate court gave some strong advice to the district court to limit discovery to two points, really: Number one being the involvement… whether there were private individuals involved, and to what extent.
ANTHONY KENNEDY: Well, I don’t know how the court of appeals can give any advice at all if it says it has no jurisdiction, or the case is improperly before it.
PAUL ORFANEDES: Well, I think… and also a significant point to be considered in that regard is that the government did not object to the scope of this, of the discovery that it was… as it was served. They had the opportunity. They had every opportunity to submit particularized objections, including privileges but not just privileges; also objections as to scope, relevance, materiality — the usual long litany of discovery objections that any party is able to. They declined that opportunity.
GWEN IFILL: Translate some of that for us.
MARCIA COYLE: Okay. Mr. Orfandes is saying basically what I just said is that the discovery order against the government is very limited. It’s not as broad as Mr. Olson argues. It’s not as intrusive. They just basically need to get to first base to find out if FACA applies. And the government had plenty of time to object to that in the lower courts.
One of the problems with the case is — and the justices are concerned about this — is that the government did not want any discovery at all. And instead of waiting as is the normal case in a trial for a final decision that the litigants can appeal, the government went right to the U.S. Court of Appeals for the District of Columbia and challenged the discovery order there. The appellate court said it didn’t have jurisdiction to consider that claim and that the claims were premature. Go back to the trial court and work this out. So the Supreme Court has to decide whether the lower court was right in sending the government back before it can reach the merits of the case.
GWEN IFILL: Why is this case… why is it not rendered moot by the notion of executive privilege, the ability of the president or the vice president or anyone in the executive branch to be able to say this is our work product and you can’t have it.
MARCIA COYLE: The justices actually asked the government why they did not assert executive privilege early on in the case. Mr. Olson said, well, first of all, executive privilege does not cover all of the paper and documents that are at issue in this case. Secondly, claiming executive privilege makes the president and the vice president sit down and go through all the papers to determine whether executive privilege should attach.
GWEN IFILL: Case by case by case.
MARCIA COYLE: Exactly. But finally, Mr. Olson argues, the whole process here is wrong and violates the Constitution because it forces the vice president to make a decision between either submitting to an unconstitutional act — discovery — or defying a court order and facing contempt. So they’ve not asserted executive privilege as of yet.
GWEN IFILL: One of the justices who was very interested in this notion about executive privilege was the one justice everybody was watching specifically closely today and that’s Justice Scalia. We’ll get to why in a moment. Let’s listen first to what he had to say about executive privilege.
JUSTICE ANTONIN SCALIA: I think executive privilege means whenever the president feels that he is threatened he can simply refuse to comply with a court order, and the same thing with Congress. And it ends up in, he has the power, as an independent branch, to say, ‘No, this intrudes too much upon my powers. I will not do it.’ And after that, it’s a struggle between two branches. And if you view executive privilege that way, forcing him to assert executive privilege is really pushing things to an extreme that should not very often occur in this republic.
GWEN IFILL: When it has occurred before in this republic, wasn’t it involving President Nixon and the Watergate tapes?
MARCIA COYLE: Yes, that’s true. It was. And President Nixon asserted executive privilege to prevent the disclosure of the tapes. And the court in that case ruled that the privilege was not absolute. It would bow to certain other concerns, and here it was the… in the Watergate case it was the concerns and demands of the criminal justice system.
Presidents generally are reluctant to assert executive privilege for the reason Justice Scalia said. It sets up a conflict between the branches of government. It’s almost like a stand-off. You have to be very careful. In prior cases where executive privilege has been raised but not asserted, the branches have tended to work out a compromise.
But I think Justice Scalia also was sort of tipping his hand. He is a very strong believer in deferring to executive power. And I think in this case, we may see that he will vote in favor of the government.
GWEN IFILL: Anyone who expected Justice Scalia to defer to any sort of questions that had been raised about his friendship with the vice president must have been disappointed today. Famously he went on a duck hunting trip with Vice President Cheney and even more famously wrote a lengthy refusal to recuse explanation. What did it feel like in the court today? Was everybody leaning forward every time he spoke?
MARCIA COYLE: No. I think everybody was just watching. He didn’t seem restrained at all. He was his usual active questioning self. But in a way it’s sad because that whole controversy over his recusal has also overshadowed the importance of the case.
GWEN IFILL: Well, bring us back around to the importance of the case, which is in the end today’s argument, it didn’t seem as if it were so much about the merits as about the legalities that get you to hearing the merits.
MARCIA COYLE: Yes. That’s true. The government though wants the court to reach the merits. It feels the lower court was wrong in sending it back to the district court. The government says you have everything you need here to decide the merits if you find the lower court was wrong and that’s the big question: Will the Supreme Court say that the D.C. circuit was wrong in sending it back to the trial judge?
It’s important because FACA is a good government statute. Congress enacted it because it was worried about the proliferation of advisory committees in the government — advisory committees that often wasted taxpayer money and often were loaded in terms of the membership and provided one-sided advice to agency heads or cabinet officials. So the case is important in terms of what FACA will really stand for when it’s over and also it’s important in terms of executive power.
GWEN IFILL: The government would like the Supreme Court to decide and end it there.
MARCIA COYLE: Yes, it would.
GWEN IFILL: But the people bringing this suit they would like to see as many documents as possible, whether it’s in discovery or later on down the road. They want to see this litigated to the nth degree.
MARCIA COYLE: Yes they do. They have received some documents. Some federal agencies have released documents pertain to go their own involvement in the task force. But what still hasn’t been released are the task force staff records themselves. That’s what these groups feel they need to see.
GWEN IFILL: Marcia Coyle, as always, thanks for clearing it up.
MARCIA COYLE: Thank you.