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U.S. Court Denies Cheney Appeal on Energy Papers by Susan Cornwell, Reuters Environmental News Network, July 9, 2003

WASHINGTON -- Saying the White House is not immune from legal proceedings, a U.S. appeals court Tuesday rejected Vice President Dick Cheney's request that it block a lawsuit seeking papers from his energy task force.

By a ruling of 2-1, the appeals panel said the White House must comply with an order from U.S. District Court Judge Emmet Sullivan last October to produce the energy documents or give a detailed explanation of what was withheld and why.

Cheney's Justice Department lawyers had argued that the White House should not be forced to consider invoking executive privilege for the documents, claiming the request for them from environmental and watchdog groups was "unnecessarily broad."

But the appeals court said it could not intervene in the lower court in mid-case, adding that for it to grant what the Bush administration was asking would have meant transforming executive privilege into "virtual immunity from suit." Judge Sullivan could always narrow the request for documents and review privately any documents for which privilege is claimed, the appeals court added.

Both judges who ruled against Cheney, David Tatel and Harry Edwards, were appointed by Democratic presidents: Bill Clinton and Jimmy Carter, respectively. The dissenting judge, Raymond Randolph, was appointed by U.S. President George W. Bush's father.

Justice Department lawyers late last year asked the appeals court to step into the lawsuit, brought by the private watchdog group Judicial Watch and environmental group Sierra Club. They are seeking documents from the energy task force Cheney directed in 2001.

"The Court has affirmed that the vice president is not above the law," Tom Fitton, Judicial Watch's president, said in a statement. "This ruling is a legal blow to the Bush administration's arrogant view of executive branch power."

Environmentalists Cry Foul
Justice Department lawyer Peter Keisler, responding to the ruling, chose to highlight Randolph's dissent. Randolph said "the intrusion into the inner workings of the presidency" presented "formidable constitutional difficulties" and that he would have dismissed the entire lawsuit.

"We will carefully study the three opinions by the judges and decide how best to proceed in the courts to protect the effective functioning of the executive branch," said Keisler, an assistant attorney general.

Cheney's task force called for more oil and gas drilling and a revived nuclear power program.

But environmentalists said they were largely shut out of the decision-making process, while Cheney met with industry chieftains including former Enron Corp. executive Ken Lay to discuss energy policy.

Cheney was chief executive of energy and construction company Halliburton Co. from 1995 to 2000.

The administration has handed over tens of thousands of pages of documents in the lawsuit from agencies such as the Energy Department and the Environmental Protection Agency, but the White House has not produced any of its task force papers.

In February the investigative arm of the U.S. Congress, the General Accounting Office, gave up a separate courtroom battle to obtain energy task force records.

Related Pages:
Suit Versus Cheney Is Dismissed by Neely Tucker, Washington Post, 12/10/2
Enron Met 6 Times with Cheney or His Staff by Reuters, 1/9/2
Judge Scolds Cheney Lawyers in Energy Case by Susan Cornwell, 4/18/3