Cheney's Win Over the GAO Threatens Congressional Oversight

The ruling is broader than necessary to protect the president's ability to receive candid and confidential advice

At a time when presidential power is expanding inexorably to deal with unprecedented terrorist threats, aggressive congressional oversight is an essential check against abuse. And at a time when both the House and the Senate are controlled by the president's party—and unlikely to push him hard for information—the role of Congress's investigative and auditing arm, the General Accounting Office, is especially vital.

That is why not only elected Democrats but also ordinary citizens and congressional Republicans—at least those who can imagine being in the minority, facing a Democratic president—should be concerned about a broad December 9 judicial ruling. The judge found that the head of the GAO has no legal standing to sue Vice President Cheney or any other executive branch official for information. In this case, the GAO seeks records of Cheney's energy task force in order to learn, among other things, which executive branch officials met with which energy company executives and big campaign contributors. But the records sought by the GAO are far less important than the legal precedent the ruling could set.

If upheld on appeal, this decision could cripple the GAO's ability to ever obtain information that the president or his people want to keep secret, even when the public interest in disclosure far outweighs any legitimate need for confidentiality. The result could give President Bush and his successors a virtual exemption from aggressive oversight unless the opposition party controlled the House or the Senate. Members of the minority, who control no committees and can issue no subpoenas, have traditionally depended on the GAO to pursue their requests for executive branch information. And some portions of the decision, by Judge John D. Bates, of the U.S. District Court for the District of Columbia, seem skeptical as to whether the House, the Senate, or even Congress as a whole is entitled to sue the executive branch for information.

During the oral argument, Deputy Solicitor General Paul Clement suggested the likely effect of a broad ruling against the GAO: "The next time [the GAO] tried to get information out of, let's say, the secretary of Energy, the general counsel of the secretary of Energy would be pointing to that judicial decision and saying, 'I'm not going to give you that.' " That would be fine with Clement: the secretary of Energy is one of his office's clients.

Remember the travel office firings of 1993, which shone such a revealing light on the Clinton White House? Republicans should recall that the GAO did much of the investigative work to expose the Clintons' shabby conduct and cover-up efforts, and should note that the GAO might have had trouble obtaining information critical to any such investigation if Bates's decision had been the law.

This is not to say that Comptroller General David M. Walker, who heads the GAO, should win a complete victory over Cheney. As Bates stressed, "No court has ever required the executive branch to produce documents sought by Congress or its agents," and "this case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action."

Indeed, the genesis of the lawsuit exudes more than a whiff of political grandstanding by Reps. John D. Dingell of Michigan and Henry A. Waxman of California, the senior Democrats on two House committees, who urged the GAO to seek the energy task force records; they knew that it would have been futile to ask the Republicans who controlled their committees for subpoenas. A grand total of four other members of Congress—all Democratic Senate committee chairmen who (from all that appears) did not seek the views of their own committee members—supported the GAO's demands.

Notwithstanding Dingell's claim that Cheney is orchestrating a "cover-up," it seems unlikely that the energy task force records would tell us a great deal that we don't already know. In response to political pressure, Cheney has released some information—in particular, his contacts with Enron. And other agencies have handed over thousands of pages of energy task force documents in connection with GAO's investigation and lawsuits by private watchdog groups. It has long been clear that Cheney and his task force were far, far more interested in the views of Enron and other corporate interests—most or all of them big campaign contributors—than in the views of environmentalists and industry critics. So if the GAO ever gets the disputed documents, we will be shocked, shocked to learn what we already know: The Bush administration is in bed with its campaign contributors and the energy lobby.

If Cheney has nothing left to hide, why is he fighting so hard? He says that it is a matter of principle, and I believe him. But his principle—executive supremacy—goes too far. Cheney seeks to bolster presidential powers that, he has complained, have been weakened by similar GAO and congressional inquiries over the past "30, 35 years." (That period would include the Watergate investigations.) But the ruling that Cheney has now won seems far broader than necessary to protect the president's ability to receive candid, confidential advice. Indeed, the GAO is not seeking any information about what advice the president (or Cheney) received, just the names of the people who provided it.

This is, in short, a case that neither side deserves to win. While the GAO might have pure motives, it is being used as a stalking-horse by congressional Democrats who are interested more in scoring political points than in learning anything of great relevance to their legislative functions. What Cheney seeks, on the other hand, is a broad shield from aggressive congressional oversight for an administration that has shown a reflexive secretiveness and a disturbing disdain for democratic accountability. Judge Bates, whom President Bush appointed last year, has now given the administration just such a shield.

The judge's legal rationale seems less than compelling. The comptroller, said Bates, has no standing to sue the executive branch because he "has suffered no personal injury as a private citizen" from Cheney's refusal to surrender the records, "and any institutional injury exists only in his capacity as an agent of Congress—an entity that itself has issued no subpoena to obtain the information and given no expression of support for the pursuit of this action." True enough. But a 1980 act of Congress delegates broad, generic authority to the comptroller to sue the executive branch for documents and other information in cases like this one. Judicial precedents and historical practice alike establish that Congress can delegate its investigative powers to its agents, including House and Senate committees as well as the GAO. So this decision does not merely thwart Congress's "agent." It effectively guts Congress's oversight apparatus.

This is the first lawsuit the GAO has filed since its creation in 1921; the agency has not needed to sue in the past because the executive branch has generally provided the information it sought or has negotiated a compromise. The GAO's leverage in such negotiations has been largely a function of its ability to threaten a lawsuit. And while no court has ever ordered the executive to hand over documents sought by Congress or its agents, the Supreme Court has never said never.

If the Bates ruling stands, the executive branch will have the trump card in every negotiation. It will always be able to tell the GAO, "So sue us," knowing that the GAO cannot sue. This could lead to rejection of even the most reasonable requests for information, and hinder the GAO even in carrying out its core function of auditing how government agencies spend congressional appropriations.

The appeals court should rule for the GAO on the standing issue and send the case back to Judge Bates to sort out Cheney's various alternative arguments for dismissing the lawsuit. It should also deliver a strong hint that the administration risks a humiliating loss on all of those arguments unless it negotiates a settlement. The administration could also invoke a defense that it has so far shunned: executive privilege. It has argued in court papers that it should not be driven back on a claim of executive privilege because that would "expend political capital." So it would. Indeed, an executive privilege claim on these facts—which would presumably have to rest on the argument that the president's ability to serve the nation would be compromised by disclosure of the names of private fat cats consulted by Cheney's task force—would invite both political derision and judicial rejection. So it should.