ASHINGTON,
June 24 - The Supreme court held Thursday that a lower court had acted
"prematurely" when it rejected a request from Vice President Dick Cheney to
block disclosure of records from his energy policy task force.
In a vote of 7 to 2, the court sent the case back to a federal appeals
court, a decision that will defer any resolution of the politically
sensitive lawsuit until after the November elections. The lawsuit had the
potential to embarrass the administration, especially given Mr. Cheney's
former role as chief executive of Halliburton and the close ties of other
administration members to the energy industry.
In telling the appeals court to be "mindful of the burdens imposed on the
executive branch in any future proceedings," Justice Anthony M. Kennedy's
majority opinion, implicitly but not definitively, rejected the Bush
administration's position that the vice president's activities should not be
subject to pretrial discovery at all. Two members of the seven-justice
majority, Justices Clarence Thomas and Antonin Scalia, would have accepted
the administration's argument that the Supreme Court itself should block
discovery at this point.
The dissenting justices, Ruth Bader Ginsburg and David H. Souter, said
the Supreme Court should have permitted the case to proceed in the district
court. In her dissenting opinion, which Justice Souter signed, Justice
Ginsburg said the lower courts could have handled the case under procedures
that would "accommodate separation-of-powers concerns."
Two organizations, the conservative Judicial Watch and the liberal Sierra
Club, sued Mr. Cheney and his National Energy Policy Development Group to
force it to comply with an open-government law, the Federal Advisory
Committee Act. The lawsuit has been stalled at a preliminary phase for more
than two years. The pretrial discovery dispute that the Supreme Court's
decision keeps alive was generated by uncertainty over whether the task
force was covered by the disclosure law in the first place.
The Federal Advisory Committee Act does not apply to committees composed
entirely of federal officials. With its membership composed of the vice
president, six cabinet secretaries and four other government officials, the
energy task force appeared to fall outside the law's coverage.
But the plaintiffs argued that officials of Enron and other private
energy companies had played such an active role in the group's deliberations
that they should be considered as de facto members, bringing the task force
within the disclosure law.
The United States Court of Appeals for the District of Columbia Circuit
ruled that the plaintiffs were entitled to enough discovery to show whether
that was in fact the case.
As it went to the Supreme Court, the case, Cheney v. United States
District Court, No. 03-475, was a mix of high-stakes politics and complex
issues of federal jurisdiction.
It was clear that the justices, while resolving the jurisdictional
questions, were fully aware of the broader context as well.
While the appeals court had ruled that the Bush administration had to
include a claim of executive privilege as part of any effort to block
discovery, Justice Kennedy said that was incorrect as a matter of law and
not sensitive enough to the constitutional separation of powers.
"Executive privilege is an extraordinary assertion of power not to be
lightly invoked," Justice Kennedy said, adding, "Once executive privilege is
asserted, coequal branches of the government are set on a collision course."
A court should "explore other avenues short of forcing the executive to
invoke privilege," he said.
While pretrial discovery issues are not ordinarily subject to appeal,
"this is not a routine discovery dispute," Justice Kennedy said. He said the
court going back to John Marshall had recognized the special position of
president and vice president. While these officials were not "above the
law," Justice Kennedy said, it did mean that courts should recognize "the
paramount necessity of protecting the executive branch from vexatious
litigation that might distract it from the energetic performance of its
constitutional duties."
The appeals court had relied for its analysis in part on the Supreme
Court's 1974 decision in United States v. Nixon, which rejected Nixon's
claim of executive privilege and ordered him to turn over the Watergate
tapes to the special prosecutor. But there were "fundamental differences"
between the cases, Justice Kennedy said. The Nixon case was a criminal case;
this is a civil suit.
"The need for information for use in civil cases, while far from
negligible, does not share the urgency or significance of the criminal
subpoena requests in Nixon," Justice Kennedy said, indicating that the
interests to be served in the suit against Mr. Cheney were much less
pressing.
In her dissenting opinion, Justice Ginsburg said there was no indication
that the federal district court would ignore the majority's
separation-of-powers concerns as discovery proceeded. She noted that the
trial judge had invited the administration to make specific objections and
in other ways limit the government's exposure. She said she would "allow the
district court, in the first instance, to pursue its expressed intention
tightly to rein in discovery" if the government, instead of resisting all
discovery, requested it to do so.
It could now be many months before the lower courts sort out the next
phase of the lawsuit. The majority suggested that the court of appeals might
reconsider its precedent holding that private citizens acting as "de facto"
members of a government panel can bring the group within the coverage of the
disclosure law.
Administration officials said that the ruling vindicated their position
and protected the president's ability to seek confidential advice.
Shannen W. Coffin, a former deputy assistant attorney general, who
handled the case in district court, said that the decision was a "huge
victory for executive authority" that would help the White House regain
legal prerogatives in the courts.
At the same time, by returning the case to the lower courts, the ruling
kept alive for Democrats the secrecy issue they had seized on.
"George Bush and Dick Cheney have forgotten that the White House belongs
to America, not Enron, and they owe it to the public to disclose this
information," Phil Singer, a spokesman for Senator John Kerry, the
presumptive Democratic presidential nominee, said in a statement.
The majority opinion was joined by Chief Justice William H. Rehnquist and
Justices Sandra Day O'Connor, Stephen G. Breyer and John Paul Stevens, who
also wrote a concurring opinion.