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Justices refuse to order Cheney to release details of energy panel

Showing deference to the president's right to seek private outside advice, the Supreme Court refused yesterday to force Vice President Dick Cheney to disclose records from an energy task force that critics complained was too heavily influenced by corporate executives.

Writing for the court's 7-2 majority, Justice Anthony M. Kennedy noted "the paramount necessity of protecting the executive branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties."

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The decision handed the White House victories on two fronts.

The Bush administration has taken extraordinary steps to protect the constitutional principle of executive privilege, and saw this case as a crucial test of that privacy issue. At the same time, the case had threatened to loom over the presidential campaign, and it now is almost certain to remain unfinished until after the election in November.

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The court sent the case back to a lower appeals court with instructions to reconsider its decision to uphold a trial judge's ruling requiring the White House to turn over documents that detail who met with the task force as it shaped the administration's energy policy in 2001.

The justices also gave a strong hint as to what direction they thought the case should take, writing that "separation-of-powers considerations should inform" the lower court's review.

The president "is not above the law," Kennedy wrote. But, he added, "the public interest requires that a coequal branch of government afford presidential confidentiality the greatest protection consistent with fair administration of justice."

Douglas W. Kmiec, a constitutional law professor at Pepperdine University, called the ruling a "strong reaffirmation of the doctrine of executive privilege" and said it could offer some clues as to how the court will decide broader questions of presidential power at issue in three cases about the detention of terrorism suspects, which are likely to be decided Monday.

"If I were the executive reading the opinions today, and I wanted a nice weekend, I guess I would be cheered up," because it signals at least some sympathy by the court for the executive branch, Kmiec said.

Bruce Fein, a Washington lawyer and constitutional expert, agreed.

"I think you can deduce that this court will be very, very sympathetic to the question of presidential powers," he said.

A clear majority

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While the case was closely watched because of the questions it raised about executive privilege, it was overshadowed at times by Justice Antonin Scalia's refusal to recuse himself because he had gone duck hunting in Louisiana with the vice president in the months before the court agreed to hear the case - a potential conflict.

But the court's clear majority yesterday showed that the Scalia decision not to step down made little difference in the outcome. Scalia and Justice Clarence Thomas joined the majority yesterday, although in a separate opinion wrote they would have gone further and reversed the lower court directly.

The two dissenting justices were Ruth Bader Ginsburg and David H. Souter. They wrote that it was not sufficient for the White House to claim a broad exemption from having to make records public. The trial-level judge in the District of Columbia should be allowed to determine what records could be released, they argued.

At the White House yesterday, spokesman Scott McClellan told reporters: "We believe the president should be able to receive candid and unvarnished advice from his staff and advisers. It's an important principle."

Quoting the ruling's own language, Justice Department spokesman Mark Corallo said in a statement that the department was "pleased the Supreme Court recognized the necessity of protecting the White House from vexatious lawsuits and intrusive discovery requests."

The records challenge was brought by an odd political pairing - Judicial Watch, a conservative legal organization, and the Sierra Club, a liberal environmental group. The two groups had claimed that task force violated an obscure open government law, the Federal Advisory Committee Act of 1972, by seeking outside advice without meeting in public.

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In court papers, the groups alleged that energy industry officials, including former Enron Corp. chairman Kenneth L. Lay, had a strong hand in shaping energy policy while environmental and other watchdog groups were excluded.

Two lower courts had ordered Cheney to turn over some records in the discovery process to show who had met with the task force without ruling specifically on whether the law was violated.

In its ruling yesterday, the Supreme Court was particularly critical of the breadth of the discovery order, saying it asked "for everything under the sky" and calling it "anything but appropriate."

'Ducking the issue'

Judicial Watch and the Sierra Club said yesterday that their fight was not over.

David Bookbinder, the Sierra Club's legal director in Washington, said the court was "essentially ducking the issue by sending it back to a lower court." Judicial Watch President Tom Fitton said in a statement said the administration had succeeded only in "kicking the case down the road to the fall election season."

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"In the end, we can't imagine the court endorsing the Bush administration's concept of unchecked executive secrecy and power," Fitton said.


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