Splitting The Baby

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

The White House made a curious argument to the Supreme Court on Tuesday in the case of Richard B. Cheney et al v. District Court. Come into the case and rescue us from this annoying public-interest lawsuit, the solicitor general essentially said on behalf of the vice president, but then back off, justices, because in the end how the executive branch makes policy is none of anyone else's business. Get involved, justices, but only so far as to declare that the lower federal courts cannot get involved in these sorts of discovery disputes involving committees like the National Energy Policy Development Group set up by President Bush in early 2001.

It was a day for chicken-and-egg arguments at the court. The administration wants the justices to stop this case before the White House has to assert executive privilege in order to keep the Energy Group information secret.

Judicial Watch and the Sierra Club want the justices to permit an initial round of discovery so that they, the plaintiffs in this slow-moving case, can figure out whether the government has violated the Federal Advisory Committee Act.

The White House says that since this case is all about an exchange of information, it will lose the case altogether if it is somehow forced to hand over the Energy Group materials. And the plaintiffs say that they will be deprived of their rights if they don't at least take a gander at those materials.

It's no great surprise, then, that the justices seemed to react to this official schizophrenia with a few contradictions of their own. The court seemed cool to the notion that it necessarily must save the White House's hide now (as opposed to later) by precluding the lower federal courts from trying to force Vice President Cheney to hand over information about which private individuals contributed to the formulation of energy policy. But the justices also didn't seem wild about creating a precedent through this case that would encourage other plaintiffs from making similar information requests in the future.

So while Solicitor General Theodore Olsen talked about this being "a case about the separation of powers," and while the plaintiffs' attorneys pleaded with the court to simply let the dispute evolve naturally through the lower courts, the justices seemed most eager to figure out a way to do as little as possible.

Faced with two less-than-palatable options, the court seems inclined to choose a Third Way. That likely path means the court will give neither side what it truly wants. The plaintiffs won't immediately get the information they want, but they also won't get their case kicked out of court. And the White House won't get the knockout blow it seeks but also won't have to disclose the names of who talked to whom and when about the Energy Group.

In the real world, it's called splitting the baby. In legal parlance, it's called resolving the matter on process rather than substance. In nitty-gritty terms, it's called "punting." Although it is virtually impossible to tell from oral argument which way a court is leaning, and although the justices in particular know how to avoid tipping their hands, I suspect the court is going to issue a procedural ruling that sends the whole case back down to the lower courts with certain instructions about how those courts ought to deal with the sticky disclosure issues presented by this clash of branches. Call it a hunch, call it lawyer's intuition, but I can almost see and hear the spinmeisters now trying to spin such a split decision once it's announced.

The White House will say that it is pleased that that the court did not rule on the merits of the discovery requests made by the plaintiffs (and approved by the lower courts). The plaintiffs will say that they are pleased that the Supreme Court refused to show absolute obedience and deference to the executive branch. The White House will protest that the ruling will force it to assert executive privilege over information that really shouldn't require such an extraordinary measure. The plaintiffs will say that the ruling continues to permit the executive branch to hide this information from the American people -- during an election year, no less.

And then, after the obligatory public hand-wringing, the case will go back down to the trial court, which will presumably follow the lead that the Supreme Court takes. And then we'll see more arguments, and more legal briefs, and more wrangling over the meaning of the Advisory Committee Act, and more talk of separation of powers, and more threats of the assertion of the privilege. The problem with this case is that its facts fall into a void Congress created when it enacted the Act, which is a typically half-hearted piece of compromise legislation. Into that void now have entered the other two branches, each with some sort of stake in the outcome.

That scenario doesn't make for neat decisions. And it doesn't make for quick decisions. I don't know which side ultimately will prevail in the case. But I can say, without offering a hint of a doubt, that the good folks at Judicial Watch and the Sierra Club won't be getting their hands on any of those energy documents anytime soon.

By Andrew Cohen

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