Bush's GAO Playbook

012902, story image, Dick Cheney Enron General Accounting Office, JM AP / CBS

CBSNews.com Legal Consultant Andrew Cohen examines the Bush administration's legal strategy in its fight with the General Accounting Office.

The Bush administration knows more than many of its predecessors that a good offense is sometimes the best defense. We saw that strategy in the war on terror when U.S. forces were promptly dispatched to hit al-Qaida criminals where they lived in Afghanistan.

And we are seeing that strategy in the way the White House is fighting the battle over "selected factual and non-deliberative" records of National Energy Policy Development Group meetings, chaired by Vice President Dick Cheney, with executives from Enron and other energy industry companies.

Long before Wednesday, when the non-partisan General Accounting Office formally notified congressional leaders of its plan to sue the administration in federal court to compel the production of those NEPDG records, the White House had taken the fight right back to the GAO.

Way back in August, before the world turned upside down, the vice president was fighting the records request not by claiming executive privilege - which would be a defensive posture - but by attacking the very authority of the GAO itself even to make such requests - a very aggressive, offensive-minded tactic.

Attacking the power of its attacker will be the first line of defense the Bush folks are going to make if and when the GAO lawsuit makes it to the federal courthouse in Washington.

The White House will try to convince federal judges that the scope of the GAO's request exceeds its statutory authority under the Budget and Accounting Act of 1921 and the General Accounting Office Act of 1980.

How? The White House contends that the GAO may only request and review under the statute the "results" of the energy-related meetings in question and not any information touching upon the process or deliberations upon which the "results" were based.

The vice president's lawyers contend that the GAO request itself goes beyond these boundaries. The administration also argues that the vice president's records are beyond the reach of the GAO because he is a constitutional officer and thus not part of an "agency" properly within the purview of GAO oversight.

So is the administration right? Will it's strong offense end up being the best possible defense? It's almost impossible to say because the issue has not been litigated before.

The GAO has some fairly strong arguments and authority on its side, however, including the plain language of the relevant statutes themselves.

For example, federal law permits the GAO to investigate "all matters related to the receipt, disbursement, and use of public money" - a fairly broad mandate, if you ask me. The GAO folks contend that since public money was used to fund the NEPDG they have a right to find out who attended the meetings, when and where the meetings were held, and what their subject matters may be.

The GAO lso has a decent argument when it comes to the vice president's contention that he is immune from this review because he's not an agency. Federal law defines an agency in this context as a "department, agency or instrumentality" of the government.

You tell me: Is a "group" formed by the administration and led by the vice president in order to generate a national energy policy an "instrumentality" of government? Moreover, the GAO argues that Congress didn't intend when it drafted the GAO statutes to exclude constitutional functions from its purview.

So the sides and drawn and the die is cast. If no political solution is reached, if cooler heads don't prevail during this time of purported national emergency, the initial legal skirmish will take place over these fairly dry but important issues.

And it is only if the administration loses these initial battles that it will bring out the heavy gun - the claim of executive privilege - to try to avoid turning over the information to Congress' investigative body.

That means that if there is no political solution, this legal battle - a play in two acts if you will - could take years to finally resolve, especially if the GAO wins the first round and executive privilege ultimately IS asserted.

And the thing about a claim of executive privilege is that is concedes the information seeker's right to the information but then trumps that "right" by an executive's privilege to keep certain information confidential for a variety of reasons.

That's another easy way to comprehend precisely what's being argued here. The administration isn't willing now to concede that initial right to the information. Only if and when a court forces it to make that concession will it then assert that the right ought to be ignored anyway because of the privilege. Don't be fooled during this Super Bowl week. When it comes to the war or the law, the Bush administration is thinking offense first.


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  • CBSNews.com staff CBSNews.com staff

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