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THE NATION | THE FALL OF ENRON

Cheney Faces Suit Over Energy Panel

Politics: The vice president claims legal privilege to conceal who helped him form policy.

January 31, 2002|EDWIN CHEN and HENRY WEINSTEIN | TIMES STAFF WRITERS

WASHINGTON — The General Accounting Office, the investigative agency of Congress, announced Wednesday that it would sue the White House for refusing to reveal the inner workings of Vice President Dick Cheney's energy task force, foreshadowing a high-stakes constitutional battle laced with political overtones.

The struggle over executive privilege--the right claimed by the president to withhold information from Congress or the judiciary--has been simmering since last spring, when the GAO initially sought information about the energy task force and was rebuffed by the White House.

That dispute gained momentum in recent weeks as it became intertwined with the Enron Corp. collapse. Questions arose over the now-bankrupt company's role in the task force that produced the administration's controversial national energy policy last spring.

Under public and congressional pressure, Cheney recently disclosed that he or his staff met with Enron representatives six times while preparing their plan.

But both he and President Bush have flatly rejected efforts seeking more information about meetings between the vice president and his staff and outside interest groups and experts.

That White House stance is supported by congressional GOP leaders but has perplexed many rank-and-file members, who fear that such obstinacy will feed public perceptions that the Bush administration and the GOP are too cozy with big business--and that they may have something to hide.

The GAO will make history when it files its lawsuit in U.S. District Court here next month; never in the agency's 80-year history has it sued the executive branch. The suit is expected to be filed in the next two to three weeks.

Legal experts differed on the merits of the case, but some joined the large body of political analysts in forecasting that the White House--for practical, if not legal, reasons--eventually will turn over the information.

"In the long run, [presidents] usually give in--after they've been pilloried for covering up," said Georgetown University law professor Sam Dash, former chief counsel to the Senate Watergate Committee, which clashed repeatedly with the Nixon White House.

Harold H. Bruff, dean of the University of Colorado Law School, added: "My prediction is that if Congress wants to push hard, they will get the stuff from Cheney--end of story."

As their lawyers prepare for legal combat, the dispute's central players--Bush, Cheney and GAO Comptroller General David M. Walker--already are waging a vigorous battle in the court of public opinion, reflecting the political stakes involved.

Bush and Cheney insist that they are standing up for "the executive branch's ability to conduct business," as the president put it Monday. The White House also portrays the GAO's demands as a fishing expedition.

Walker argues that Congress is entitled to such information as a part of its constitutional oversight responsibilities, noting that four Senate committee chairmen, all Democrats, have instructed the GAO to go after the information. He has said that agency was prepared to go to court last fall but set the issue aside after the Sept. 11 terrorist attacks.

Walker insisted that "a significant majority" of Republicans "are with us."

In an interview, Walker noted that Bush has yet to officially claim executive privilege in the matter.

"If he does that, it's a new ballgame. The GAO would have to reconsider whether to continue to go to court," Walker said.

USC constitutional law professor Erwin Chemerinsky described the clash as one involving "two interrelated questions: the scope of Congress' investigative power and the scope of executive privilege."

But there are few court cases on the controversy because most such disputes have been settled out of court, he said.

The leading case is United States vs. Nixon, the landmark 1974 decision arising out of former President Nixon's attempt to keep secret White House tapes that special prosecutor Leon Jaworski was seeking as part of the Watergate investigation.

In a unanimous ruling, the Supreme Court acknowledged that there was an inherent right of executive privilege--but then flatly rejected Nixon's contention that he alone determined its scope.

The language of the Federal Advisory Committee Act, a 1972 law that governs how federal advisory committees operate, indicates that Cheney would have to reveal the membership of the task force, said Noah Feldman, a constitutional law professor at New York University.

"Traditionally, executive privilege has been extended to the substance of what people said to the president and not to the identity of who spoke to him. To withhold identities would go beyond what executive privilege has meant in the past," Feldman said.

Also on Wednesday, the pressure on the White House escalated on two other fronts.

The San Francisco Chronicle reported that Kenneth L. Lay, the recently ousted chairman of Enron, had handed Cheney a three-page document in April arguing against price caps on electricity, which were being sought by California officials to stabilize prices there.

In Washington, the Natural Resources Defense Council filed a motion asking the federal court here to compel the Energy Department to hand over documents about Cheney's task force.

Bush spoke about the dispute during a Rose Garden session with reporters on Monday, calling the demands by Congress for such information an "encroachment on the executive branch's ability to conduct business."

*

Chen reported from Washington and Weinstein from Los Angeles. Times staff writer Richard Simon contributed to this report.

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