Cheney Wins — For Now, Maybe Forever

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.

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5 Responses to Cheney Wins — For Now, Maybe Forever

  1. Jazzhound says:

    It’s difficult not to become cynical when one reads things like this.

    I guess there is a shred of hope in that the Court did not dismiss the case outright but sent it back to the lower court for review. A process I should imagine will take far too long to be helpful in the next national election.

    But we’re fed this line when growing up that this is a government of the people and for the people. It’s getting harder and harder not to think that if that was ever once true, that it no longer seems be the case.

    Yes, the government has the right to create energy policy.

    But, I have the right to know who they met with to create this policy so that I can decide if the process was fair and above board.

    I need this kind of information to decide if I think this administration deserves a second term in office. I need this information to be a knowledgeable voter.

    How am I, as American citizen, supposed to participate in the governing process if that process is cloaked in secrecy?

    I guess I’ll have to make my decision based solely on the fact that this Administration is too secretive to be open and honest with the American people about how they create policy. Energy or otherwise.

  2. Jazzhound says:

    Sorry for the double post.

  3. JD says:

    I don’t know a whole lot about the VP’s constitutional duties, but I believe they are limited to the following:

    (i) break ties in Senate votes; and
    (ii) be alive if the President isn’t.

    How does ordinary civil discovery seriously prevent him from carrying these two things out (other than the possibility that it could lead to such a horrifying revelation of malfeasance that Cheney’s ticker stops ticking)?

  4. C.E. Petit says:

    JD asks “[h]ow does ordinary civil discovery seriously prevent him from carrying [his constitutional duties] out”? Well, it doesn’t. But, as Justice Stevens pointed out in the footnote of his concurring opinion, that’s not what happened. Instead, the plaintiffs appear to have insisted upon one means, and one means only, of civil discovery. At minimum, they should have–

    * Issued an interrogatory requesting the identification of every document that names or would allow one to infer the identity of every person or entity that actually provided input during deliberation, including the identity of the author and document custodian; and

    * On the basis of that interrogatory, deposed custodians to determine exactly what documents would be responsive and how.

    Keep in mind that the identity of the custodian of a document is never privileged, and the identity of an author and the fact of a consultation almost never are; only the substance of the consultation has even an arguable basis for privilege. The plaintiffs’ discovery tactics present the _appearance_ of a fishing expedition, even if that is not the intent or reality.

  5. Raven says:

    CHENEY V. USDCDC, 2004

    “While the President is not above the law, the Judiciary must afford Presidential confidentiality the greatest possible protection…, recognizing the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.”

    Cf. CLINTON V. JONES, 1997

    “The Court rejects petitioner’s contention that this case — as well as the potential additional litigation that an affirmance of the Eighth Circuit’s judgment might spawn — may place unacceptable burdens on the President that will hamper the performance of his official duties.”

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