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On jan. 5, Vice President Dick Cheney and Supreme Court Justice Antonin Scalia, with one of Scalia’s children, flew on an Air Force II Gulfstream jet to Armelia, La., for several days of duck hunting. Recent reports are that the vice president’s office paid for Scalia’s plane trip; there is no indication as to who paid for the food, lodging and other amenities, other than reports that Cheney and Scalia were the guests of Wallace Carline, the owner of an oil services company. According to the sheriff for St. Mary Parish, Scalia had come to the parish “several times before.” A month before the trip, the U.S. Supreme Court agreed to hear the vice president’s appeal in Cheney v. U.S. District Court for the District of Columbia (known as the Energy Task Force case). Newspapers and commentators are calling for Scalia’s recusal because of the extent of socializing occurring while the case is before the court. This argument is not compelling, for the reasons explained below. There is, however, another potentially more serious problem: Whether Scalia and Cheney violated the federal statute concerning gratuities given to, or received by, public officials. If a case before the high court involves institutional issues, as opposed to personal issues, friendship, even close friendship, is not a basis to call into question a justice’s impartiality. The vice president’s case is institutional. The issue is separation of powers-whether Congress unconstitutionally encroached on the executive branch when it enacted a statute requiring executive-branch officers, in certain situations, to disclose the identity of persons outside of government with whom they consult in formulating policy or making decisions. Cheney’s motives for not disclosing the information are irrelevant. Scalia has strongly held views concerning the separation of powers between the legislative and executive branches. In Morrison v. Olson, Scalia was the sole dissenting justice in the case that upheld the statute creating the office of independent counsel; he reasoned that the statute was an impermissible encroachment by Congress on the executive branch. In Public Citizen v. Department of Justice, which involved the same statute now at issue in the Cheney case, Scalia recused himself because, as a U.S. Department of Justice official, he had participated in the DOJ’s conclusion that it would be unconstitutional for Congress to impose requirements on the American Bar Association committee that advised the attorney general on prospective federal judicial nominees. With or without duck hunting, there can be little question that Scalia would support the government’s position in the Cheney case, based on his federalist principles. Yet our faith in the judicial system requires that, in every case, judges be open to both sides’ arguments and not be subject to extraneous influences. Acceptance of a gratuity suggests a financial interest that at the very least causes the appearance of partiality. The Ethics in Government Act of 1989 prohibits the solicitation or acceptance of anything “of value” by a government employee from a person “whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties.” The Code of Conduct for U.S. Judges contains an almost identical provision, although it doesn’t apply to Supreme Court justices. Still, in light of the gratuities statute, the code’s clear ethical standard and judicial precedent, when a jurist has received an unlawful gratuity of significant value, there is a basis to question impartiality. Questions need answers The concern is what, if anything, “of value” was given, by whom and to whom, on this now infamous hunting trip, including transportation, lodging and other amenities. Did the provider of benefits have interests likely to be affected by the performance or nonperformance of duties by the vice president (in the case of Carline) and by Scalia (in the case of Cheney)? In the latter situation, the vice president’s role as a party before the court constitutes an “interest” under the plain meaning of the government ethics act and the code for federal judges. Also, a gratuity in this situation undermines confidence in a jurist’s impartiality-a concern under the statute and the code. We don’t know, nor should we presume to know, what the arrangements for the trip were. However, the facts necessary to determine whether Scalia’s impartiality can be reasonably questioned, and whether he and Cheney violated the federal statute concerning gratuities, would not be difficult to elicit. Scalia and Cheney should make full disclosure of the financial arrangements for the trip so we can know whether recusal is called for, and whether they crossed the line of permissible relationships between members of two branches of government. Richard L. Bazelon is a shareholder at Philadelphia’s Bazelon, Less & Feldman.

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