The Supreme Court held today in Cheney v. U.S. District Court that the Court of Appeals erred when it said the Vice President Cheney had to either assert executive privilege or cough up documents about his meetings with energy lobbyists. Those are the meetings in which, it is widely believed, he and the lobbyists drew up US energy policies — and may even have discussed the disposition of Iraq's oil, many months before even 9/11, much less the administration's public talk of any invasion. The case produced an unusual constellation of coalitions and opinions:
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, and Breyer, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Parts I, II, III, and IV. Stevens, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Scalia, J., joined. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined.
No matter what happens next, any disclosures will happen after the election. In that sense, it's a big win for Cheney.
In the long run, though, the most significant part of this ruling may be somethng more announced than justified in this decision: the almost automatic equation, with no real explanation as to why, of the Vice President's prerogatives in civil litigation with the President's. It's long been agreed that, as Chief Justice Marshall once put it (while sitting as a trial judge), “In no case … would a court be required to proceed against the president as against an ordinary individual.” Today, the Supreme Court held that in civil as opposed to criminal cases, courts should in effect bend over backwards to be as solicitous of the Vice President's need for confidentiality and freedom of action as for the President. I leaned a little to the view that the Veep should be treated for this purpose as just another top aide, but thought there were valid arguments on both sides. It was an open issue—but not any more.
Thus, while civil discovery requests are not forbidden, the Court sent strong signals that judges should police them to avoid the sort of fishing expedition that constitutes routine civil discovery when applied to most everyone else. Even so, this sentence mus surely rate high in the irony sweepstakes: “Special considerations control when the Executive’s interests in maintaining its autonomy and safeguarding its communications’ confidentiality are implicated. See, e.g., Clinton v. Jones, 520 U.S. 681, 707.”
Working from this basis, the Court in effect sent the case back to the Court of Appeals, also ruling that given the importance of the executive interest in not being unduly bothered with discovery fishing requests, the Ninth Circuit had erred when it stated that it lacked the power to craft an immediate and interlocutory order restraining the District Court's approval of wide discovery. But the Court did not say that narrowly tailored discovery should be prohibited. Indeed, it did even come right out and say that the Court of Appeals should in no circumstances approve the wide discovery ordered by the district court. Rather, having found that the court of appeals had taken narrow a view of its own powers and thus failed to engage the substance of the matter, the Supreme Court sent it back to them for consideration:
we decline petitioners’ invitation to direct the Court of Appeals to issue the writ against the District Court. Moreover, this is not a case where, after having considered the issues, the Court of Appeals abused its discretion by failing to issue the writ. Instead, the Court of Appeals, relying on its mistaken reading of United States v. Nixon, prematurely terminated its inquiry after the Government refused to assert privilege and did so without even reaching the weighty separation-of-powers objections raised in the case, much less exercised its discretion to determine whether “the writ is appropriate under the circumstances.” Ante, at 10. Because the issuance of the writ is a matter vested in the discretion of the court to which the petition is made, and because this Court is not presented with an original writ of mandamus, see, e.g., Ex parte Peru, 318 U.S., at 586, we leave to the Court of Appeals to address the parties’ arguments with respect to the challenge to AAPS and the discovery orders. Other matters bearing on whether the writ of mandamus should issue should also be addressed, in the first instance, by the Court of Appeals after considering any additional briefs and arguments as it deems appropriate. We note only that all courts should be mindful of the burdens imposed on the Executive Branch in any future proceedings. Special considerations applicable to the President and the Vice President suggest that the courts should be sensitive to requests by the Government for interlocutory appeals to reexamine, for example, whether the statute embodies the de facto membership doctrine.
Which is nonetheless a strong hint that the discovery request should be at least severely narrowed if not tossed out entirely. Justice Steven's concurrence suggests helpfully that,
A few interrogatories or depositions might have determined, for example, whether any non-Government employees voted on NEPDG recommendations or drafted portions of the committee’s report. In my view, only substantive participation of this nature would even arguably be sufficient to warrant classifying a non-Government employee as a de facto committee member.
Justice Ginsburg's dissent makes the devastating pleading point — one of limited relevance to the harsh realities of Supreme Court decisionmaking — that the relief ordered by the Court's decision bears no relation to what Cheney asked for. Indeed, despite many invitations and opportunities to do so, the government refused to discuss how the request might be narrowed in both the District Court and the Court of Appeals, preferring in each case to was asked to kill the discovery request. Under the circumstances, since the Court majority rejects the government's sole assertion that it need provide nothing under any circumstances, the proper thing to do would be to send the case back to the District Court for further proceedings, not to the Court of Appeals with instructions to review and probably reign in the District Court.