Cheney Case Strengthens Executive Branch
On June 24, 2004, the Supreme Court ruled (7-2) in Vice President Dick Cheney v. United States District Court for the District of Columbia, 542 U.S. ___, that private groups seeking to compel the Executive Branch to disclose information pertaining to advisory committee meetings have the burden to show that such disclosure does not interfere with the Executive Branch’s duties and privileges.1
This case strengthens the power of the Executive Branch, and it is a victory for the Bush Administration. It gives the Executive Branch protection from information-seeking law suits brought by private individuals. It expands and strengthens the executive privilege. Politically, it has upheld Vice President Cheney’s refusal to disclose the names of some individuals attending the meetings conducted by Vice President Cheney regarding the fashioning of a national energy policy.
Mr. Cheney, who has previously worked for or invested in oil and energy companies, was suspected of having received input at these meetings from some of his former business associates. Sierra Club and Judicial Watch sought to find out what influence was given by whom at these meetings. But the Supreme Court now ruled that the executive privilege puts a burden on those seeking information in civil litigation discovery against the Executive Branch to show that requiring the Executive to produce specific materials would not impinge on the constitutional duties and privileges of the Executive.
For most people, further discussion and analysis of what happened in this case may not be interesting. However, lawyers and students of the Constitution will find this to be a fascinating case.
The specific facts and findings in this case involve a rather complex, technical discovery dispute in the case brought by the Sierra Club and Judicial Watch against Vice President Cheney,2 in which the former sought to force the Vice President to disclose documents introduced and the names of people attending the advisory committee meetings related to the development of recommendations for a national energy policy.
Under the Federal Advisory Committee Act (5 U.S.C. App. Sec. 2, hereafter FACA), advisory committees are subject to various open-meeting and disclosure requirements. However, such committees that are “composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government” are exempt from the disclosure requirements (5 U.S.C. App. Sec. 3). Sierra Club and Judicial Watch alleged that the attendance of some non-federal employees at these meetings made them de facto members and therefore removed the exemption from disclosure obligations. The Vice President disputes this. But the case went forward on a “discovery” dispute; the courts have not, and probably will not ever address the ultimate issue.
I. The Discovery Dispute
In litigation, “discovery” is the pre-trial investigation and preparation that parties undertake to prepare for trial. It can include the taking of depositions, requesting answers to written interrogatories, and requesting the production of documents and things. In this case, Sierra Club and Judicial Watch [hereafter petitioners] sent a request for production of documents (a discovery request) that sought the exact information the production of which was the ultimate relief they sought in their law suit.
II. Procedural Steps to Block Discovery
In response to the discovery requests, compliance with which would have produced the very information that the Vice President contended could not be legally required, the Vice President filed a motion to dismiss the case and objected to providing requested documents until there was a final ruling on that issue. The District Court deferred ruling on the motion to dismiss and allowed some “tightly reined discovery”; the District Court was preparing to hold a hearing and determine whether the Plaintiffs’ de facto argument did require the Vice President to disclose information.
Thereafter, Petitioners immediately sent the Vice President a broad, far-reaching discovery request for documents. Before responding to the discovery request, the Vice President (a) filed a petition for a writ of mandamus with the same Court of Appeals, asking the Court to order dismissal of petitioners’ complaints.3
The Court of Appeals (by a 2-1 vote) dismissed the writ of mandamus, stating that the case of United States v. Nixon, 481 U.S. 683 (1974), 4 requires that the Vice President must first assert with particularity those matters which he seeks to protect from intrusion (Slip Opinion, p. 5).
The Vice President then filed a Petition for Writ of Certiorari, asking the Supreme Court to review the case. The Supreme Court granted review. Thereafter, on June 24, 2004, the Supreme Court vacated the judgment of the Circuit Court of Appeals and remanded the case for further consideration.
As will be shown, the Supreme Court’s opinion, which sets the guidelines to be followed by the Circuit Court, appears to guarantee that either the case will be dismissed by the Circuit Court or at least that the Vice President will be ultimately insulated from providing the requested information.
III. The Writ of Mandamus
A writ of mandamus is an order from a higher court, ordering a lower court to do something. It is similar to an appeal, but it can be obtained quickly. It is referred to as a “drastic and extraordinary remedy” (Slip Opinion, p. 9), and is intended to allow one to tap into the court’s broad powers to deal with unusual situations for which the usual rules are inadequate. There are three prerequisites to obtaining a writ of mandamus: (1) There must be no other adequate means for relief; (2) the right to the writ must be clear and indisputable; and (3) the writ must be appropriate under the circumstances.
In denying the Vice President’s request for a writ of mandamus, the Court of Appeals said that the Vice President had the burden to invoke the executive privilege with specificity as to each discovery request that it contends to be improper. The Court of Appeals went on to hold that because the Vice President did not do this, therefore he did not meet the first requirement to obtain a writ of mandamus; the Court of Appeals said that the Vice President had not done all that he could have done, and therefore his petition for a writ of mandamus was premature. (Slip Opinion, p. 12.)
But the Supreme Court disagreed with this approach.5 The Court pointed out that it has previously issued such a writ “to restrain a lower court when its actions would threaten the separation of powers by ‘embarrass[ing] the executive arm of the Government,’ [citations omitted]” (Slip Opinion, p. 10). The Court said that the Court of Appeals had misread the United States v. Nixon case. The Nixon case, being a criminal matter, carried with it more stringent disclosure requirements. Second, the information sought in Nixon was not for discovery, but involved subpoenas that were “required to satisfy exacting standards of ‘(1) relevancy; (2) admissibility; (3) specificity.’” (Slip Opinion, p. 16.) Finally, the Court found in Vice President Cheney’s case that this was not a routine discovery issue, and that special considerations existed because of “the Executive Branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications.” (Slip Opinion, p. 14.)
IV. Supreme Court Recognizes, Expands the Executive Privilege
The Court found that the discovery requests were “anything but appropriate,” and that the Nixon case did not support the proposition that the Executive Branch should have the burden to specifically invoke executive privilege by “making particularized objections.” (Slip Opinion, p. 17.) The Court called this a “real burden.” (Slip Opinion, p. 18.) The Court said that a mandamus writ could be proper to protect the Executive Branch from “unnecessarily broad subpoenas.” (Slip Opinion, p. 19.) The Court said that the Court of Appeals has an obligation to determine whether the lower court “actions constituted an unwarranted impairment of another ranch in the performance of its constitutional duties,” and that the assertion of executive privilege is not “a necessary precondition to the Government’s separation-of-powers objections.” (Slip Opinion, p. 20.)
The case remanded back to the Court of Appeals for the District of Columbia. This should ultimately lead to the termination of petitioners’ case, but as of this writing, the case continues, albeit only on life-support. government officials in the discharge of their duties and does not impinge upon the President’s constitutional privileges.
1. Note that the U. S. District Court is the party (opposing the Vice President) in this case and not Sierra Club and Judicial Watch, the two organizations who sued the Vice President. The reason for this is because the Vice President is seeking to obtain from the Circuit Court of Appeals a writ of mandamus against the District Court. There will be further discussion of this unusual procedural issue later in this article.
2. Initially there were other parties in the case, including the advisory committee itself, the National Energy Policy Development Group (NEPDG) and alleged non-government participants. The NEPDG was eventually dismissed from the case because it had already been dissolved. The alleged non-government participants were dismissed, since the Federal Advisory Committee Act (FACA, 5 U.S.C. App. Sec. 2) did not create a private cause of action. The suit against the Vice President and other government officials went forward. Their legal position in this case is the same as that of Vice President Cheney, therefore this article merely focuses on the Vice President.
3. The Vice President also filed an appeal to the Court of Appeals. No resolution has been made of that appeal, but the Supreme Court’s ruling on the writ of mandamus probably makes the appeal moot.
4. This is the case that precipitated President Nixon’s resignation, as he was ordered by a unanimous Court to turn over the audio tapes that provided evidence that he obstructed justice in connection with the prosecution of the Watergate break-in.
5. The Opinion of the Court was written by Justice Kennedy (joined by Chief Justice Rehnquist, Justice O’Connor and Justice Breyer). Three additional Justices concurred in the result. In a concurring opinion, Justice Stevens said that in a case where the ultimate relief sought is the same matter sought by discovery, then those seeking discovery have the burden to show the need for specific discovery requests. In another concurring opinion, Justice Thomas (joined by Justice Scalia) wrote that only if Sierra Club and Judicial Watch had demonstrated their right to the documents by “clear and undisputable evidence” would they be entitled to the documents. Justice Thomas said they failed to demonstrate this and therefore issuance of a writ of mandamus would be proper. Justices Ginsberg and Souter dissented. They felt the government should have the burden to object to intrusive discovery by making specific objections and specifically asserting executive privilege in order to avail itself of that privilege.
© 2006 C. Paul Smith
Contact the Web Master, Jimmy Smith, at jrs76@hotmail.com
or visit his website at www.jimmyandheather.com
Contact the Web Master, Jimmy Smith, at jrs76@hotmail.com
or visit his website at www.jimmyandheather.com