Cheney v. United States District Court
Liberal Civil Discovery Rules versus the Separation of Powers
Early in his Administration, President Bush created the National Energy Policy Development Group (NEPDG), placed Vice President Cheney at its head, and asked it to develop a new national energy policy. All of the designated members of the Task Force were high-ranking government officials. Several months later this “Energy Task Force,” generated a report filled with policy proposals. See Reliable, Affordable, and Environmentally Sound Energy for America’s Future: Report of the National Energy Policy Development Group, May 16, 2001 (available at www.whitehouse.gov/energy). The Task Force also generated litigation — which may end up having greater significance than its policy proposals.
In one case, the General Accounting Office (GAO) sued the Task Force and the Vice President over their refusal to grant GAO access to Task Force records. GAO employed for the first time a provision of the US Code permitting this agency of the Congress to sue executive branch agencies. See 31 USCS ยง 716(b)(2) (1982). Second, the Sierra Club and Judicial Watch sued, claiming that the Group was an “advisory committee” within the meaning of the Federal Advisory Committee Act (FACA), and as such had failed to discharge disclosure obligations imposed by that Act. The Enron scandal, which first came to light on June 30, 2001, lurked in the background of both lawsuits. It was widely thought that Ken Lay, CEO and Chairman of Enron’s board, had met with the Vice President, and that a number of other representatives of energy production companies had developed many of the suggestions that the Energy Report ultimately proposed. If records of meetings had to be disclosed either to the GAO or the private plaintiffs, that documentation carried potential political repercussions for the President and Vice President.
The GAO eventually discontinued its lawsuit, thus preventing a confrontation between the two branches of government. See Walker v. Cheney, 230 F. Supp. 2d 51, (D. D.C. 2002). The private organizations persevered in their FACA litigation, however. FACA exempts from its requirements committees composed entirely of government employees, and the U.S. had initially defended against the lawsuit by claiming that exemption. In response, the Sierra Club and Judicial Watch asserted the “de facto” member doctrine, which states that it is possible for private individuals who attend committee meetings to acquire de facto member status if their participation includes enough indicia of full membership. Sierra Club and Judicial Watch alleged that representatives of energy production companies had in fact participated to such an extent that they had become de facto memberships — hence, the Task Force was not exempt from FACA’s demands.
As is typical in much modern civil litigation, the plaintiffs lacked the information necessary to prove these allegations, and they sought the discovery of documents within the possession of the Task Force. The plaintiffs propounded a discovery request for “all documents” that related to a broad range of committee activities, members, communications among members, and preparations of the final report. The U.S. objected to the discovery on several different statutory grounds, including by challenging the de facto member doctrine itself. The Government also advanced a bold constitutional claim: the separation of powers doctrine prohibited the Congress from seeking and the federal court from ordering the production of Task Force records from the Vice President (by the time of the discovery dispute, the Task Force had been disbanded).
The district court ruled that discovery could proceed. The court responded to the separation of powers concerns by setting up discovery procedures that required the U.S. to produce any non-privileged documents and write a summary description of documents for which executive privilege or any other privilege was asserted. After the U.S. had “identifi[ed] and explain[ed] . . . invocations of privilege with particularity,” each claim of privilege would be reviewed prior to any document disclosure.
The U.S. sought a writ of mandamus from the court of appeals to vacate the discovery order, but the appellate denied the writ, which it (and the Supreme Court) described as an extraordinary remedy. The court of appeals thought that it lacked jurisdiction to issue the writ because alternative remedies were available. It reasoned that after the executive branch asserted any claimed privileges “with particularity” and the trial judge had ruled on the claims, appeal could be taken from any adverse rulings. The appellate court concluded that this procedure adequately respected the separation of powers, consistent with the holding in United States v. Nixon (the Nixon tapes case) concerning the role of the courts in evaluating claims of executive privilege.
The Supreme Court reversed. In an opinion authored by Justice Kennedy, the Court remanded for the court of appeals to reconsider issuing a writ of mandamus at this stage of the proceedings, holding that the appellate court erred in thinking it lacked jurisdiction to do so. The presence of the Vice President as a party in the case changed the usual mandamus analysis because the discovery order threatened “substantial intrusions on the process by which those in closest operational proximity to the President advise the President.” “Separation of powers considerations should inform a court of appeals’ evaluation of a mandamus petition involving the President or the Vice President.”
The court of appeals had acknowledged that the discovery request by Sierra Club and Judicial Watch was overbroad — and in fact compliance with it would produce more disclosure than FACA itself provides — but nonetheless had placed on the executive branch the burden of responding with particularity to it. The Supreme Court concluded that burden was inappropriate and distinguished United States v. Nixon on several grounds. First, Nixon involved a criminal case, and the claims of a criminal proceeding to executive branch information are stronger than the claims of plaintiffs in a criminal proceeding: “our historic[al] commitment to the rule of law . . . is nowhere more profoundly manifest than in our view that ‘the twofold aims [of criminal justice] is that guilt shall not escape or innocence suffer.” (quoting Nixon, 418 U.S. at 708-09). Second, withholding information in a criminal proceeding “conflicts with the function of the courts under Article III,” whereas doing so in a civil case does not impair the courts’ “essential functions” in the same way.
Third, the Court concluded that the burdens placed on the autonomy and confidentiality of the President were greater here than in Nixon. Sensitivity to the Government’s objections to broad discovery were called for because the request was directed at the executive branch “at its highest level,” and as such “threatened the “autonomy of the office [of the President] . . . and the confidentiality of its communications.” The discovery request was distinguished from the criminal subpoena in Nixon, which also involved the highest levels of the executive branch, as being potentially much more disruptive to that branch’s functioning, because the criminal justice system contains “various constraints, albeit imperfect, to filter out insubstantial legal claims.” The subpoenas issued in Nixon also had “to satisfy exacting standards of ‘(1) relevancy; (2) admissibility; [and] (3) specificity,’” and civil litigation did not impose comparable requirements on discovery.
Finally, the Court several times reiterated that the court below had placed significant burdens on the executive to respond to the discovery request, even prior to turning over any documents, whereas in Nixon the executive was required to respond only after the special prosecutor “had satisfied his burden of showing the propriety of the requests.” Here, in contrast, both courts below had agreed that the discovery request as it stood was overbroad, but had intended to trim it only after the executive produced non-privileged documents and a privilege log.
These considerations led the Court to conclude that the hazards discovery requests such as these pose for the functioning of the executive branch compel the lower courts to give more credence to the Government’s concerns, even though executive privilege had not yet been asserted in the case. The trial court should “explore other avenues, short of forcing the Executive to invoke privilege, when . . . asked to enforce against the Executive Branch unnecessarily broad subpoenas.” The court of appeals was also mistaken to think it had to wait until executive privilege had been asserted before it asked whether the lower court’s “actions constituted unwarranted impairment of another branch in the performance of its constitutional duties.”
The Court’s ruling constitutes a victory for the United States, although it does not necessarily terminate the litigation. The ruling appears to contemplate further proceedings below that would narrow the scope of discovery. However, throughout the litigation the government has asserted that it objected to any discovery whatsoever. If the government persists in that position, we may see another round of appeals from whatever order the lower court eventually crafts.
Cheney is also significant for what the Court’s opinion did not discuss. While showing sensitivity to the separation of powers, nowhere does the Court address the bold constitutional theory of presidential autonomy developed in the government’s briefs. The government argued that if FACA were interpreted to encompass the de facto member doctrine and to justify discovery against the Vice President, the statute would then be unconstitutional. This was so because the Task Force was gathering information and developing policy under the express direction of the President, who was exercising his textual constitutional power to seek opinions from his cabinet and to prepare to recommend “such measures as he shall judge necessary and expedient.” These powers, plus his obligation to report on the State of the Union, provide “specific textual foundations for the President’s powers to gather information and develop policy . . . [and are] not subject to manipulation or interference by the Congress.” The government’s brief concluded that “[i]nterference with the President’s advice- and information-gathering activities is no less unconstitutional when it affects the exercise of his Recommendations or Opinion Clause authority than when it touches on his power to grant pardons, nominate judges, or to have legislation presented for his approval or veto.”
Had this breathtaking approach to Presidential power been adopted, it would have resulted in far stronger protection from disclosure of executive branch communications and deliberations than is provided by the doctrine of executive privilege. Approaching the issue in Cheney as an application of the principle of executive privilege set forth in Nixon would eventually produce a balancing analysis, weighing the interests served by disclosure against the burdens on Presidential confidentiality and autonomy. Greater need for the information (for example, when information is critical to a specific legislative decision) tips the balance in favor of disclosure; greater need for confidentiality of the information (for example, when national security is directly implicated) tips the balance in favor of non-disclosure.
The claim presented in the government’s Cheney briefs is that the processes of Presidential advice- and information-gathering are beyond Congress’ power to regulate. Activities of the executive branch beyond Congress’ power to regulate are also beyond Congress’ power of inquiry or investigation as well. See Barenblatt v. United States. No balancing of competing interests is appropriate because Congress lacks any authority to interfere or inquire.
This theory of exclusive presidential authority not only is absolute in any individual case, but it also has a potentially far-reaching scope, because much of the activity of executive branch agencies falls into the categories of advice- or information-gathering. The theory thus has the potential to seclude much executive branch conduct behind a wall of secrecy to which only the President holds the key. The theory is, in this regard, of a piece with the theory of exclusive presidential authority that the government advanced in the detention cases decided the week following the Cheney decision. In the cases of the Guantanamo detainees, Shafiq Rasul and Fawzi Al Odah, as well as those of Yaser Hamdi and Jose Padilla, the government argued that the President could hold human beings behind a wall of secrecy to which only he holds the key. In those cases, the “textually committed” power upon which the government’s argument stood was the commander-in-chief power.
The Court decided Rumsfeld v. Padilla and the Guantanamo case, Rasul v. Bush, on statutory jurisdictional grounds, not reaching the merits of the detentions. In all of these decisions, however only Justice Thomas’ dissent in Hamdi v. Rumsfeld comes close to endorsing the government’s theory of exclusive presidential authority. In Cheney, as in Padilla and Rasul, the theory was not addressed. Should the Cheney litigation continue and should the government continue to assert its objection to any discovery whatsoever, it is conceivable the case could return to the Court in a posture where the question was no longer avoidable. Should that transpire, it is hard to believe that the government’s theory of exclusive presidential authority with regard to the Opinion, Recommendation and State of the Union clauses will receive any better reception than its commander-in-chief counterpart did in the detention cases.
The author, Chris Schroeder, is the director of the Program in Public Law.
