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White House Waste Of Energy

Attorney Andrew Cohen analyzes legal issues for CBS News and

It is easy to think both too much and think too little of the White House's fight with the federal courts over who told what to whom before, during, and after meetings of the National Energy Policy Development Group.

It's easy to overestimate the dispute because, in the end, it involves highly technical matters of legal procedure. But it's easy to underestimate Tuesday's battle before the Supreme Court because the showdown represents a (so far) high-water mark of executive branch arrogance toward the judiciary.

The Justices must decide whether to order Vice President Dick Cheney to disclose the identity of any private citizens (hello there, Ken Lay) who may have participated in any meetings of the Energy Group. Two private groups from opposite ends of the political spectrum, the Sierra Club and Judicial Watch, have sued to gain those disclosures and to try to find out whether and to what extent the Energy Group was influenced by such private considerations. Arguing that this is a case involving separation of powers principles, the White House says that only government employees attended the meetings and that, anyway, the information sought is none of anyone else's business.

So far, the two federal courts that have looked at the case both have sided with the plaintiffs and against the White House. If the Court affirms those rulings, the White House will be forced either to turn over the information (whatever it is) or assert executive privilege over them (which, of course, would generate another huge legal mess).

If the Court overrules the lower courts, the White House will be able to similarly avoid turning over such information in the future. So, like many cases that come before the Justices, this is a case about governmental boundaries; about who gets to make whom do what and when in the grand and eternal contest between the branches. It's a case about judicial deference and political prerogatives. It's a case about raw power.

The Vice President is in the thick of the fight because he was ordered by President George W. Bush in 2001 to run the Energy Group. Given the Vice President's background in the oil industry -- in particular his affiliation with giant Halliburton -- the assignment made sense.

But it is those very same close ties to big oil that has generated the controversy here. Judicial Watch and the Sierra Club say they have reason to believe private individuals have influenced the Energy Group. There is nothing inherently wrong with that but, if it is true, then the White House so far has failed to comply with federal reporting requirements.

Which brings us to the Federal Advisory Committee Act, an otherwise obscure piece of legislation enacted years ago to curb "specific ills, above all the wasteful expenditure of public funds for worthless committee meetings and biased proposals." Now, you would think that language would apply to virtually everything Congress itself does, but the lawmakers, being the humorous gang that they are, made the law apply only to the executive branch, imposing upon their sisters and brothers in government the obligation to publicly disclose loads of information about meetings and groups that fall within the Committee Act's definitions. You can keep private meetings when only federal employees attend, the Act mandates, but when you open up the doors to private individuals you also have to eventually open information up to the public.

The White House says it doesn't have to disclose more than it already has under the Act because there were no "private" citizens who served as members of the Energy Group. If that's true, the White House is correct and the case would be over. Only there is a factual dispute about whether that assertion is true. The two plaintiffs, who normally wouldn't be able to agree upon whether the sun is shining or not, seem to think that there were private influences on the Energy Group.

Judicial Watch, for example, claims "that private executives and lobbyists representing the energy industry 'regularly attended and fully participated' in non-public meetings of [the Energy Group] as if they were members 'of the advisory committee.'" If that allegation is true, then the Committee Act's reporting requirements would require the White House to disclose more than it already has.

Clearly, the stories don't match and, so, like tens of thousands of other litigants each year, the parties have taken their case to court. The going has been slow. Judicial Watch's case is nearly three years old and still the parties are fighting over the information-gathering process called "discovery." The plaintiffs say they want to get access to the information in order to better evaluate what kind of Committee Act claim they have on the merits. They say that the Act's reporting requirements would be meaningless if the White House could avoid those requirements simply by refusing to turn over gateway information. So they sent nine "interrogatories" (requests for information) and eight requests for documents -- hardly an overwhelmingly broad inquiry.

Typically, there is no dispute over a judge's ability to manage discovery disputes between parties. Except in this case the White House says the courts have no authority to permit the plaintiffs to look behind the barest of explanations of the workings of the Energy Group. Moreover, the White House even has refused to permit the judges in the case to undertake a private review of the material in order to determine what to do with it. The mere act of turning over the information to the plaintiffs, the White House argues, would be virtually the same as giving up on the merits of the case. Politics ain't beanbag, folks, and this is truly hardball between the branches.

So the Justices have to figure out whether they have a right even to poke into the case at this time. They have to figure out whether and to what extent the Committee Act applies. They have to figure out whether the Act, if it is applied, is unconstitutional. They have to figure out whether the lower courts properly limited the scope of the discovery requests made to the White House. They have to keep in mind the government's looming executive privilege claims in the case -- the White House hopes to knock the case out on separation-of-powers grounds in order to avoid the politically messy notion of claiming a privilege where none may exist. The Vice President has the better of the technical arguments. The plaintiffs have the better "big picture" claims. Interpreting, in part, Congress' will, the Justices get to decide.

Of course, a cynic might say the whole mess serves the White House right. Everyone knows this Administration is tight with big oil and gas interests. Everyone knows that both the President and Vice President owe a lot to that particular industry. No one would be surprised to learn that "Kenny Boy" and perhaps other, less notorious, energy honchos helped developed policy. So if, in spite of all that, the Administration is hiding behind the doctrines of "separation of powers" and "executive privilege" in order to keep its dirty laundry hidden, then it is no less short-sided and imperious than its predecessors have been. And I reckon it likely will be no more successful in fending off the other two branches now that they've gotten a whiff of the scent.

By Andrew Cohen