When Dick Cheney accepted the GOP nomination for vice president, he vowed that the Bush administration would be more forthright than its predecessor: "They will offer more lectures, and legalisms, and carefully worded denials. We offer another way—a better way—and a stiff dose of truth." It's a promise worth remembering as Cheney confronts the first-ever lawsuit filed against the executive branch by the General Accounting Office, the investigative arm of Congress. So far, Cheney's response has been to hide behind a stiff dose of lectures, legalisms, and lies.
First, the big-time, major-league whopper: When Cheney made the talk show rounds this past Sunday, he asserted not once but twice that the GAO had abandoned its quest to acquire information about Cheney's secretive Energy Policy Development Group in August. Cheney implied that the GAO was wowed by his provocative legal strategy.
Here's Cheney on ABC's This Week: "When we took this position last August, the GAO sort of backed off. They, in effect, then said, 'Well, maybe we're not going to pursue it at this point.' " He repeated the assertion on Fox News Sunday: "As of last August, we made that decision to go to court. We'd come to an ultimate showdown, and we concluded that, in fact, we were prepared to go to court if that's what was necessary. At that point, the GAO backed off, and they, in effect, sort of put everything in abeyance."
But the GAO was spoiling for a fight well into September, and Cheney knew it. U.S. Comptroller Gen. David Walker, the head of the GAO, has been consistent: The terrorist attacks on the World Trade Center and the Pentagon, not the power of Cheney's legal arguments, swayed the GAO to put its lawsuit on hold. In case Cheney didn't understand, Walker spelled it out for him on Nov. 9 when he told the Washington Post, "On Sept. 10, there was virtually no question we were headed to court."
Now, the lectures: The White House says that turning over the information would imperil "the right of the people in our country to petition their government, to talk to their government," as White House spokesman Ari Fleischer told the press. Cheney himself protests that disclosing such conversations would threaten the administration's ability to receive "unvarnished advice."
But it strains credulity to believe that this administration prizes the confidentiality of policy recommendations from private individuals as a matter of highest principle. When Robert Rubin gave the Treasury Department advice that made Democrats look bad, the Bush administration felt no qualms about exposing it to the sunshine. And when Ken Lay gave advice to Don Evans and Paul O'Neill—advice that Evans and O'Neill ignored, making Bush look good—the administration disclosed that, too. Why didn't those leaks threaten the administration's capacity to receive the bluntest advice possible? And what's different about the advice that Lay or other energy execs gave Cheney and his task force? (In case you're still not suspicious, Cheney threw in a "carefully worded denial" for good measure. When Fox News' Tony Snow asked Cheney if anything in the energy plan "was done specifically for or at the behest of Enron," Cheney responded, "I can't say. I'm sure [Enron]supported many parts of it.")
Even many conservatives aren't buying the veep's line. Republicans such as Robert Novak have urged Cheney to come clean. The lone stalwart in the vast right-wing conspiracy has been the Wall Street Journal op-ed page, which Tuesday defended the administration's principled stand to preserve "the power of the executive branch to deliberate in confidence." True, the Journal has long stood up for executive power against what it considers unconstitutional statutes. But when it was Hillary Clinton and her health-care task force who wanted to deliberate in confidence, the Journal shrieked that the executive branch couldn't ignore the laws of the land as merely "inconvenient details." (The Washington Post compared the Clinton and Cheney lawsuits today.)
Finally, Cheney's legalisms: Cheney plans to object to the GAO suit on a technicality, CNN reports. The GAO's formal "demand letter" in July that kicked this controversy into high gear asked Cheney for his energy task force's minutes and notes, among other things. But the GAO dropped its request for minutes and notes in August when it sent its follow-up "non-compliance" report to Congress and the president. Now the White House says the GAO needs to issue an entirely different demand letter and non-compliance report if it wants to sue for everything but the minutes and notes. But all that would do is delay the lawsuit by 40 days. Why not just get it over with?
All of this evading and obfuscating is made stranger by the fact that Cheney all but asked for this lawsuit. The Bush administration could have rebuffed the GAO simply by issuing what's known as a "certification letter," informing Walker that turning over the information would substantially impair the operations of government. Goodbye, GAO lawsuit. That's what Cheney did in 1990, when he was faced with a similar dispute as secretary of defense. The White House sent the certification letter, and the GAO had to go home empty-handed. That's the law. (Click here for an "Explainer" that describes the process.)
This time, by missing the deadline for issuing the letter, Cheney looked like he wanted to get sued. He even told FoxNews Sunday as much when he said, "As of last August, we made that decision to go to court." And Cheney spokeswoman Juleanne Glover Weiss hinted to me in September that the administration's refusal to issue a certification letter was part of a larger legal strategy. "Sending a letter of certification would concede that they have the authority to request that information," she said.
Why invite an unprecedented lawsuit? Hard to say. Maybe Cheney thinks the legal return justifies the political risk. Winning a court battle would wall off a host of congressional inquiries. Or maybe Cheney thinks it's the best way to lose. Assuming the information will eventually come out, Cheney may prefer to have his hand forced by the relatively anonymous GAO than by a congressional subpoena.
Right now, Cheney isn't telling. Why isn't that a surprise?