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On Jan. 5, Vice President Dick Cheney, Supreme Court Justice Antonin Scalia, one of Scalia’s sons and his son-in-law flew on an Air Force II Gulfstream jet to Amelia, La., for several days of duck hunting. A month before the trip, the Supreme Court had 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). The Air Force II flight was provided without charge to Scalia and his family members — who returned via commercial airline — and the food, lodgings and hunting facility were provided by a friend of Scalia’s, Wallace Carline, owner of an oil exploration service company. For Scalia, this was an annual trip he had taken for about five years, and he invited the vice president for this year’s hunt. The hunting and fishing lasted for almost five days; Cheney participated for a little more than two days. The foregoing description is set forth in a highly unusual memorandum issued by Scalia on March 18, denying the motion for his recusal by the Sierra Club. The fact that Scalia felt compelled to issue this 21-page memorandum speaks to the extent of the criticism expressed about this trip while the vice president was a party to the Energy Task Force case. Scalia states in his memorandum that he issued the invitation to Cheney months before the Energy Task Force case went before the Supreme Court. Appropriately, the first issue that Scalia addressed is whether the Energy Task Force case involves the vice president in a personal or official capacity. Scalia asserts, I think correctly, that where a case before the Supreme Court in which a member of the executive branch is a party 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 that requires 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. In this respect, I think that Scalia is correct. Scalia has strongly held views concerning 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. Scalia dissented because he believed 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 at issue in the Cheney case, Scalia recused himself because, as a Department of Justice official, he had participated in the department’s conclusion that it would violate the Constitution for Congress to impose requirements on the American Bar Association committee advising 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. That said, our faith in the judicial system requires that, in every case, judges be open to the arguments of the litigants. It is therefore necessary that judges’ social relationships with litigants not extend to providing financial benefits beyond usual socializing or hospitality. Accordingly, the theme of the article that I wrote for the Feb. 23 edition of The National Law Journal was that Scalia and Cheney needed to make disclosure concerning the arrangements and payment for the duck-hunting trip. Scalia has now provided a number of pertinent facts. These facts are materially different from what the media had surmised, in that Scalia, not Cheney, extended the invitation, and the relationship with Carline was Scalia’s, not Cheney’s. The facts as to Air Force II are consistent with the media presentation, with the addition of Scalia’s explanation that he and his family members had to pay as much for their one-way return flight as they would have had to pay for a round-trip ticket and, therefore, did not benefit financially from their trip on Air Force II. Scalia’s facts largely allay the concern that he accepted anything of value from Cheney (although one can question whether “value” of Air Force II travel is objective or subjective, and whether the practice of guests on “non-official” Air Force II trips reimbursing the government at commercial rates should have been followed). Nonetheless, Scalia’s role in obtaining the duck-hunting excursion for Cheney, without cost and via a third party in the energy exploration business, goes beyond normal socializing and hospitality. The value of the use of Carline’s facility, and of the services Carline provided, was significant, and Carline’s involvement in the energy exploration business raises additional questions in the context of the Energy Task Force case. And, from the vice president’s perspective, Carline appears to be a person “whose interests may by affected by the performance or nonperformance of . . . [Cheney's] official duties,” such that the receipt of “anything of value” from Carline to Cheney violated the Ethics in Government Act of 1989, 5 U.S. Code Section 7353(a). Finally, although only tangentially relevant to the recusal issue, Scalia does not indicate in his memorandum that he reported the value of the prior duck-hunting trips on his financial disclosure reports, as required by 5 U.S.C., App. 4, Section102. The theme of Scalia’s memorandum is not that he is exercising discretion but rather that in “good conscience” he cannot recuse himself in light of the facts he presents. However, Scalia’s role in obtaining special benefit for Cheney from a person owning an energy exploration services company goes beyond simple friendship and socializing. This factor, added to the timing and extent of private contact afforded by the trip, suggests that Scalia’s “impartiality might reasonably be questioned.” Whatever else can be said of Scalia’s decision not to recuse himself, his conclusion that it was compelled by “conscience” is not persuasive. The issue is a close one, but in such a case, the prudent course is recusal. Richard L. Bazelon is a shareholder at Philadelphia’s Bazelon Less & Feldman. He can be reached at [email protected].

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