WASHINGTON - Vice President Dick Cheney won a major victory yesterday when a federal district judge here threw out a suit, brought by the head of the General Accounting Office, to require him to release records of the Bush administration's energy task force, which Cheney led.
Though the ruling made no fundamental pronouncement on the separation-of-powers issues that Cheney had insisted were at the heart of the case, it served as a judicial validation for an administration that has come under criticism as excessively secretive.
The judge, John D. Bates, observed that no court had ever ordered a president or a vice president to produce information for Congress, which the GAO serves as an investigative and auditing arm. But he avoided deciding between the "competing theories of the proper balance of power between the legislative and executive branches," ruling instead that the head of the accounting office, Comptroller General David M. Walker, lacked standing to sue.
Bates, appointed to the bench a year ago by President Bush, said that Walker had suffered no "personal, concrete and particularized injury" and that the institutional claim he made on behalf of Congress was flawed because neither a house of Congress nor any congressional committee had sought the records.
An appeal is almost certain, although Walker said he had not yet decided what to do.
"We are very disappointed with the judge's decision," he said. "We are in the process of reviewing and analyzing the decision to fully understand the basis for it and its potential implications."
Cheney had no comment. But at the White House, Claire Buchan, a deputy press secretary, said: "We are pleased by the judge's decision today. We believe it is important for the president to receive unvarnished advice, and this decision supports that."
The fight began on May 7, 2001, when Reps. John D. Dingell of Michigan and Henry A. Waxman of California, the senior Democrats on two House committees, asked Walker to investigate the "conduct and composition of the task force," which they suggested had met with "political contributors to discuss specific policies, rules, regulations and legislation." The two congressmen went to the GAO because they had no hope that a committee of the Republican-controlled House would demand the information.
That spring the task force publicly issued its policy recommendations, which were generally supported by the energy industry and emphasized an increase in oil and gas exploration on public land and the building of more power plants and transmission lines. The policy was submitted to Congress but stalled in the Senate.
Three months after Dingell and Waxman approached the GAO, Cheney argued in a memorandum to Congress that the inquiry violated the separation of powers laid out in the Constitution.
"A president and his senior advisers," the vice president said then, "must be able to work in an atmosphere that respects confidentiality of communications if the president is to get the good, candid advice and other information upon which wise decision-making depends."
In a series of television interviews, Cheney cast the inquiry as an infringement on the power of the executive branch of a sort he said had repeatedly weakened it over the past three decades.
At one point early this year, defending his refusal to turn over the records, he told the Cable News Network that "there has been a constant, steady erosion of the prerogatives and the power of the Oval Office and a continual encroachment by Congress - the War Powers Act, Anti-Impoundment and Budget Control Act, previous instances where presidents have given up, if you will, important principles."
Despite that position, and the vice president's legal victory, some information related to the task force's contacts has been released over the course of many months.
Last January, for instance, amid mounting political pressure over the collapse of Enron, long a big campaign contributor to George W. Bush, Cheney listed a half-dozen contacts that he or his aides had had about energy policy with Enron representatives, though details of those discussions were not disclosed.
Further, lawsuits brought by the Sierra Club and the conservative watchdog Judicial Watch have forced a number of federal agencies to disclose a variety of information about the contacts they had with the energy industry as they assisted the task force.
As for the demand from Dingell and Waxman, the GAO initially asked Cheney for notes of what had been discussed at meetings of the task force. Before suing, though, the GAO scaled back its request, asking only for the names of the staff members and of people present at the meetings, as well as the task force's costs.
In dismissing the suit, Bates wrote: "This case, in which neither a house of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action" as requiring the executive branch to turn over information to Congress.
He said that because the case raised "core separation-of-powers arguments at the heart of the relationship among the three branches of government," his examination of standing must be "especially rigorous." This follows, he said, from the duty of the courts to avoid constitutional issues when they can.
But while he said that in this case "any possible injury to Congress is too vague and amorphous to confer standing," he suggested that if the facts were different - if Congress as a whole or a committee were seeking the information - that entity might "have standing to sue to retrieve information to which it is entitled."