Edition: U.S. / Global

Justices' Ruling Postpones Resolution of Cheney Case

Published: June 25, 2004

WASHINGTON, 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.