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WASHINGTON — The Bush administration won at least a temporary victory Thursday in its legal battle to keep records of Vice President Richard Cheney’s energy policy task force out of public view. The Supreme Court, by a 7-2 vote, returned the dispute to the U.S. Court of Appeals for the District of Columbia, virtually guaranteeing that even if that court orders discovery on the task force, any documents would be released well after Election Day. In a ruling written by Justice Anthony Kennedy, the justices instructed the lower court to consider narrowing any discovery requests and be “mindful of the burdens imposed on the executive branch” by such litigation. The case, Cheney v. United States District Court for the District of Columbia , No. 03-475, is largely procedural — filled with references to writs of mandamus and the doctrine of laches — but its language on the special nature of the executive branch is likely to strengthen the hand of future presidents in a range of separation-of-powers disputes. The case will also be remembered for the headline-making judicial ethics dispute that it triggered. After it became known that Justice Antonin Scalia went on a private duck-hunting trip with Cheney, the Sierra Club filed a motion asking Scalia to recuse from the case. Scalia refused and remained in the case, but did not write separately. He joined Justice Clarence Thomas in a concurrence with Kennedy that dissented on one small aspect of the case. White House spokesman Scott McClellan expressed satisfaction with the ruling Thursday. “We believe the president should be able to receive candid and unvarnished advice from his staff and advisers. It’s an important principle.” Alan Morrison, lawyer for the groups that sought the information about the energy groups, said the ruling was “the best loss we could have gotten” because it still holds out the likelihood that some discovery will ultimately be ordered and some information will be made public. “It’s an unfortunate, but hopefully temporary, roadblock.” Morrison’s clients, public interest groups Sierra Club and Judicial Watch, filed suit against Cheney under the Federal Advisory Committee Act. That law imposes open-meeting and disclosure requirements on advisory committees — except those made up only of government employees. The groups claimed that participation by outside consultants and energy industry officials in the committee’s work put the energy task force outside the scope of that exception. A district judge ordered “tightly reined” discovery to determine the membership issue and invited the administration to invoke executive privilege if it objected. The administration appealed, but the appeals court also said Cheney should invoke executive privilege. The administration resisted and appealed to the Supreme Court, asserting that under the separation-of-powers doctrine, the president has a “zone of autonomy in obtaining advice” that should not be pierced by the judiciary. Kennedy’s majority opinion rejected the notion that the administration needed to take the extraordinary step of invoking executive privilege to resist the discovery order. “Once executive privilege is asserted, co-equal branches of the government are set on a collision course.” Other avenues exist, he said, including a winnowing of the discovery request by the lower courts. Kennedy also said the lower court should consider the burdens imposed on the executive branch by detailed discovery orders. “This is not a routine discovery dispute,” said Kennedy. “The executive branch, at its highest level, is seeking the aid of the courts to protect its constitutional prerogatives.” Kennedy, citing cases going back to the early 1800s, said courts should respect the special prerogatives of the executive branch and not treat it like any ordinary litigant. He spoke of the “paramount necessity of protecting the executive branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.” Justice Ruth Bader Ginsburg read from the bench a summary of her dissent, which was joined by Justice David Souter. Ginsburg said the case should have been sent back to the District Court so it could narrow the discovery request. Organizations that sided with the public interest groups said the court’s ruling amounted to an endorsement of government secrecy. “Excessive secrecy is the enemy of effective accountability,” said People for the American Way Foundation President Ralph Neas. “Unfortunately, the Supreme Court has failed to send a clear message to the most secretive administration in recent memory.” Tony Mauro is Supreme Court correspondent for American Lawyer Media andThe Recorder’s Washington, D.C., affiliateLegal Times. His e-mail address is [email protected].

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