Judge Says Bush Administration's View of Executive Privilege is Too Expansive

Judge Says Bush Administration's View of Executive Privilege is Too Expansive

by John Heilprin
The Associated Press
July 12, 2002

A federal judge says the Bush administration has a disturbingly broad legal view of confidential advice to the president that would keep a huge amount of government information secret.

U.S. District Judge Emmet Sullivan also accused the Bush administration of making purposefully misleading arguments in defending Vice President Dick Cheney's energy task force against two lawsuits.

The Sierra Club environmental organization and Judicial Watch, a conservative watchdog group, are seeking records about how the Cheney task force was influenced by industry executives and lobbyists in formulating national energy policy.

Sullivan criticized the Bush administration's position that applying the Federal Advisory Committee Act to the Cheney task force encroaches on the president's right to receive confidential advice necessary to carry out his duties.

"The implications of the bright-line rule advocated by the government are stunning," Sullivan said.

The judge said the government's position signifies that "any action by Congress or the judiciary that intrudes on the president's ability to recommend legislation to Congress or get advice from Cabinet members in any way would necessarily violate the Constitution."

"Such a ruling would eviscerate the understanding of checks and balances between the three branches of government on which our constitutional order depends," said the judge, who was appointed to the bench by former President Clinton. The administration's arguments "fly in the face of precedent."

The judge said the proper approach is to examine whether disclosure would prevent the executive branch from carrying out any constitutionally assigned function.

The judge's opinion details his legal reasoning for an oral decision he made in May that rejected the Bush administration's motion to dismiss the cases.

Sullivan said Justice Department lawyers defending the Cheney task force had mischaracterized a minority opinion in a Supreme Court case as if it were controlling legal authority that should result in dismissal of the lawsuits.

"One or two isolated mis-citations or misleading interpretations of precedent are forgivable mistakes of busy counsel, but a consistent pattern of misconstruing precedent presents a much more serious concern," Sullivan wrote.

He said the government misstated the law in other instances as well.

Larry Klayman, chairman and general counsel of Judicial Watch, said Friday the judge's opinion shows the arguments of the Bush administration were frivolous and were made only to delay the case.

Justice Department spokeswoman Barbara Comstock noted that the judge granted the Bush administration's motion to dismiss Judicial Watch's claims based on the Freedom of Information Act, and the judge agreed that FOIA does not apply to the vice president.

"To the extent that he denied our motions to dismiss the lawsuits, he has indicated he will go forward with discovery, and he is allowing limited discovery to determine whether our legal defenses have merit," Comstock said.

The battle over the Cheney task force is among several that the Bush administration has waged over secrecy involving confidential advice and the president. The General Accounting Office, Congress' investigative arm, also is suing over the Cheney task force, seeking the identities of industry executives and lobbyists who met with the task force.

Bush invoked executive privilege in December when he ordered Attorney General John Ashcroft not to turn over records to a congressional committee on the Boston FBI's handling of mob informants in the 1960s. The Justice Department and Congress eventually reached an agreement.

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