I've Got a Secret
Dick Cheney's absolute right to know and not tell.
The Supreme Court is now regularly releasing audio transcripts of oral argument in "big" cases; that is, the cases for which the big news organizations request audio transcripts. I can't see a downside to doing this for every case: It improves the press corps' reporting, listeners are engaged, and the process hasn't morphed the justices into nine lunatic Judge Lance Itos. Justice David Souter can still walk the D.C. streets unmolested, and the public can start to understand who these justices really are. So will anyone interested in democracy, openness, and public access (and you wouldn't be reading this coverage about Vice President Dick Cheney's secret polluting playmates if you were not) please join me in a campaign to induce the networks to request audio for every oral argument?
Here's some real audio so you can listen in. First, for instance, you can hear how each session opens with a prayer. Click
Today's case is a study in the evils of premature litigation. It's a lesson in why the cheerleader who doesn't make the squad throws everything off when she appeals to the gym teacher, then the principal, and then the secretary of education, instead of just sucking it up and joining the band. Vice President Cheney was sued by two watchdog groups—Sierra Club and Judicial Watch—for information about the outsiders who served on his energy policy task force in 2001. The watchdogs contend that "task force" was just a series of cozy get-togethers in which energy executives and lobbyists, including Ken Lay, took turns sitting on Cheney's lap, licking his ear, and requesting special favors. The final report issued by the commission sort of reads that way. When Cheney was ordered to produce the rosters and minutes of these meetings as part of pretrial discovery, he appealed that order all the way up to the U.S. Supreme Court.
So, how do you get to the Supreme Court? "Mandamus, mandamus, mandamus." The government leapfrogged over the usual procedures and filed for extraordinary relief—in the form of a writ of mandamus—in the appeals court. And when the D.C. Circuit Court of Appeals denied that writ, noting that the case needed to be fully decided in the lower court first, Cheney took the up elevator to the Supreme Court instead of the down elevator back to the trial court.
This becomes one of the key issues in Cheney v. U.S. District Court for the District of Columbia. (That's right, he's named the lower court as his opponent.) It's a bedrock legal principle that courts of appeals don't decide issues over which they have no jurisdiction, and that courts of appeals don't decide cases when there has been no final decision from a lower court, unless there's a pretty good reason. And it's the issue on which the first half-hour is spent, as the justices take turns beating on Solicitor General Ted Olson with the "final judgment" stick. Olson contends that this case is about "the separation of powers," and that Congress and courts simply don't have the authority to use private litigation to impede the executive branch.
Justice Anthony Kennedy interrupts to note that the court has "rules designed to prevent us from unnecessarily deciding questions," and Justice Ruth Bader Ginsburg adds that the court must "adhere to the final judgment rule." Kennedy says Olson's comparison to an earlier Nixon case is misplaced because Nixon invoked the executive privilege, which Cheney has never done.
Olson points out that under the Federal Advisory Committee Act, the statute in question today, an executive committee "consisting of all government employees" is exempt from having to disclose its records to the public. This is true, but it assumes the answer to the core question about whether nongovernment people were on the energy task force. That Cheney's people promise only federal employees served doesn't seem to satisfy the watchdog groups.
Justice Antonin Scalia wonders, "Why would that be such an intrusion upon the executive, simply to require knowledge of whether anybody that voted on the various recommendations of the commission was a nongovernment employee?" Leading one to wonder, just briefly, if he's been out hunting with the people from Sierra Club recently. And Ginsburg again asks why the Supreme Court is being asked to consider the merits of a case that was never resolved with finality below. (You can listen
Olson says that the problem with the discovery order is "it's much broader than the relief itself." By giving the watchdog groups all the information they'd need to know if FACA had been violated, they'd be giving them all the information they sought in the first place.
And taking a page from the Scalia songbook, Olson refers disdainfully to the groups' "unadorned allegations" gleaned "from media reports" (ewwwwwwwwww, media reports) that outsiders participated on the task force. Kennedy tries to get Olson to define the scope of the exemption from FACA sought by the executive branch, and Olson says that the president shouldn't have to choose between obeying an "unconstitutional order" and subjecting himself to intrusive discovery, or having to assert the executive privilege. He keeps mentioning the "presumption of regularity," which means, it seems, that we should presume everything the president does in secret is regular.
Olson says the president (or the vice president acting as his surrogate) shouldn't have to submit to litigation, every time advice is sought from citizens. Kennedy points out that "I hear echoes of every discovery dispute I've ever heard" in that argument.
Alan Morrison has 15 minutes to represent Sierra Club, and he quickly runs afoul of both Scalia—the guy he tried to bump off the case —and Justice John Paul Stevens, who gang up on him about the breadth of the discovery order. (Listen
Paul Orfanedes has 15 minutes on behalf of Judicial Watch, and Scalia again distinguishes between "involvement of private individuals on the task force" and influencing the task force's ultimate decisions. Scalia will make this point about six times this morning, and maybe I just imagine the echoes of his own protests about the difference between "participating" in a duck hunt and being improperly influenced by the vice president.
Justice Stephen Breyer points out that under Orfanedes' view of FACA, the head of an agency would put everyone who telephones him with advice about a commission in danger of being hit with a discovery order. "Congress could not have intended to put the government in a cocoon when it tries to create legislation," he says. Stevens beats up Orfanedes even more: "They talked to a lot of people and got a lot of advice. Does that make them de facto members of the committee?" he asks.
Olson offers a masterful rebuttal: "There is no statute that creates the right that the petitioners seek here. There is no cause of action under FACA. And there is no clear remedy. And so, they just jumped over the fact that the statute didn't give them the right to bring this case and brought it in the form of mandamus. Mandamus is no substitute. It's not appropriate here."
Sure, that's the pot calling the kettle a mandamus—let's recall that a mandamus action was the sneaky way (the "razzle-dazzle" maneuver, to quote Professor Thomas Baker) the Cheney team got us here in the first place. But Olson almost manages to look like he pulls it off today. It's not clear that he'll get a majority of the court to set aside the jurisdictional problem of deciding a case that was never decided in the first place, but he almost makes a case for sweeping executive-branch immunity from any public scrutiny, ever, sound like a terrific idea.
In the interest of fairness, I offer the following clarification. In a recent piece about the federal marshal in Hattiesburg, Miss., who destroyed tapes of a speech by Justice Scalia, I was not at all clear on one point: The federal marshals who guard the justices on the road are not the same entity as the Supreme Court police, who provide for security at the high court. In comparing the conduct of both, I did not mean to suggest that the court police would erase audiotapes. The fact that the court police are charged with confiscating scarves, newspapers, and enforcing other capricious judicial preferences, however, remains problematic.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Dick Cheney by Jim Ruymen/Reuters.