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WASHINGTON — Until Tuesday, the case of Cheney v. United States District Court for the District of Columbia, 03-475, was best known for triggering a months-long debate over duck hunting. Or, more precisely, over the propriety of Supreme Court Justice Antonin Scalia taking a duck hunting trip with Vice President Dick Cheney while the case was pending.

Finally, the case, which actually concerns the scope of executive power, was argued Tuesday. Scalia took his place on the bench in spite of widespread criticism and pressure to recuse. Ducks were never mentioned, and Scalia participated in the argument with as many tough questions as usual, though they were delivered in an unusually subdued tone.

As it turned out, the arguments were almost an anticlimax, as the legal debate quickly became mired in procedural complexities that might derail the case and turn it into a forgotten footnote.

The factual question at the heart of the case is whether Cheney should be forced to make public the records of his now-defunct energy policy task force. But the hourlong arguments were consumed with technical questions about the finality of the lower-court judgment and why the Bush administration appealed so quickly to the Supreme Court when it was ordered to submit task force documents to a judge for discovery.

“Why are we dealing with the merits?” asked Justice Ruth Bader Ginsburg at one point. “I thought the merits have to be resolved in the first instance by the courts below.” Justice Sandra Day O’Connor also expressed annoyance that the government’s appeal strategy had not given lower courts a chance to rule on the merits of the issue.

Still, the debate over executive power was joined when the discussion veered into substance.

“This is a case about the separation of powers,” Solicitor General Theodore Olson told the high court in his opening line. He insisted that no judge-ordered discovery process would be acceptable in determining whether the Cheney task force was covered by the Federal Advisory Committee Act. That law requires executive branch advisory groups to meet in public and make their records accessible — but not if their membership is confined to full-time or permanent part-time federal employees.

Judge Emmet Sullivan of the U.S. District Court for the District of Columbia ordered the discovery so he could determine if non-employees had acted as “de facto” advisory committee members on the energy task force, thereby triggering application of the law.

Sullivan’s ruling was backed up by the D.C. Circuit U.S. Court of Appeals.

“Congress may not intrude” on presidential policy-making through the FACA law, Olson asserted, prompting Justice Anthony Kennedy to remind him that “the authority of the courts is also involved here” because of the discovery issue. Kennedy seemed unhappy with the suggestion that advisory committees reporting to the president and vice president should be immune from outside scrutiny. “I hear in your argument echoes of every discovery dispute I’ve ever heard,” Kennedy said.

But Olson said the presidency is different, justifying limits on judicial power. Presidents, he said, should not be forced by courts to choose between risking contempt charges and invoking executive privilege to resist discovery. If private groups can compel the president to turn over documents any time they suspect outside influence, there will be time-consuming “FACA lawsuits in a heartbeat” against all presidential advisory groups.

That argument appeared to resonate with justices, including Stephen Breyer, who expressed concern that the executive branch will be “hit with a discovery order” every time an assistant commerce secretary picks up the phone and consults with a private citizen over policy. “You’re putting government in a cocoon.”

The case before the high court arose nearly three years ago amid allegations that outsiders like Enron Corp. head Kenneth Lay had met with the task force. The public interest groups Judicial Watch and Sierra Club filed separate suits under FACA. They alleged that, in fact, the task force included nongovernment employees as “de facto” members, thereby bringing it under the public disclosure requirements of the law. They invoked a 1993 D.C. Circuit ruling that ordered similar public disclosure of documents of then-first lady Hillary Rodham Clinton’s health care reform task force.

The cases were consolidated before Sullivan, who ruled against Cheney and ordered discovery. But the vice president refused, instead seeking a protective order and claiming that no discovery was appropriate. The government stopped short of claiming executive privilege, but asserted that the law did not apply because all those attending task force meetings were federal employees.

The judge refused to grant a protective order, and Cheney sought a writ of mandamus against the court, which is why the district court is nominally a party in the case. A divided panel of the D.C. Circuit dismissed Cheney’s appeal for lack of jurisdiction and said the issues Cheney raised could be dealt with after final judgment-making the extraordinary plea unnecessary.

On Cheney’s behalf, Olson appealed to the Supreme Court, asserting in papers that “neither Congress nor the judiciary may interfere with or supervise communications among a group consisting of the vice president and high-level presidential subordinates.”

Alan Morrison of the Public Citizen Litigation Group, representing the Sierra Club, told the court it was unfair for the government to portray itself as “backed in a corner” with no other choice but to resist discovery. It had other options that would have preserved its claims of executive privilege.

Morrison also asserted that a loss for the government in the Cheney case will not hamper the ability of presidents to obtain advice. “We concede you can call anybody you want.”

Judicial Watch staff lawyer Paul Orfanedes told the high court that Judge Sullivan had acted properly in ordering discovery as a way to “avoid the constitutional issues” of executive power.

He also disputed Olson’s claim that the lawsuits were based on unsubstantiated allegations of outside influence on the energy task force. He said government officials had acknowledged consulting outside individuals, including Enron’s Lay.

“What does that prove?” asked Justice John Paul Stevens, who seemed unusually hostile to the public interest groups’ arguments.

Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected].

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