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The showdown between the White House and the General Accounting Office over records related to Vice President Dick Cheney’s energy task force may be the Bush administration’s most high-profile assertion of presidential prerogative. But it is hardly an isolated case. From the beginning, lawyers working for President George W. Bush have pursued an aggressive strategy to advance presidential authority and to expand the protection of executive privilege. Their aim: to roll back 30 to 35 years of compromise by presidents of both parties and restore a power to the executive branch not seen since the Supreme Court forced President Richard Nixon to turn over tapes of private conversations in the Oval Office. “The administration really wants to enforce a new policy that Congress does not get types of information that it received under past administrations,” says James Wilson, chief counsel of the House Government Reform Committee, which is battling Bush on another privilege claim. Of course, Cheney’s unwillingness to work with the GAO, an investigatory arm of Congress, is not without political risk — even for an enormously popular administration. Because the failed energy behemoth Enron Corp. submitted policy suggestions to Cheney’s group, the secrecy surrounding the panel has already been characterized as a cover-up by political opponents. Last week, despite growing pressure from Republican members of Congress to turn over the documents, Cheney once again defied the GAO’s request to release information about whom his energy task force consulted with as it developed a national energy policy. In response, the GAO is preparing to sue the vice president in U.S. District Court for the District of Columbia. “He’s better off politically turning over the documents than letting people speculate,” says law professor Abner Mikva, White House counsel from 1994 to 1995. “What we learned in the Clinton White House is that if Congress wants something badly enough, they’ll get it, no matter how strong the president’s legal claim. The more you resist, the worse it becomes politically.” What’s more, by failing to resolve the energy task force tussle out of court, White House lawyers are flouting conventional wisdom that no litigation is good litigation when it comes to executive privilege. Case law on the subject is murky. While the Supreme Court has recognized broad executive privilege in theory, it has also said the privilege is not absolute and can be outweighed by sufficient public interest. Past presidents and lawmakers have compromised rather than risk establishing damaging legal precedent in a court battle. “There’s a reason why there have not been many lawsuits on this issue in the past,” says Jenner & Block partner Thomas Perrelli, a former DOJ litigator. “Both sides have a tremendous amount to lose.” White House lawyers did not return phone calls. The Bush administration is not the first to aggressively assert executive privilege. According to Catholic University’s Mark Rozell, an expert on the privilege, the Ronald Reagan White House demonstrated a similar commitment to restoring a strong executive branch in its early days, but had difficulty maintaining claims of executive privilege in the face of a hostile Democratic Congress. “The Reagan administration asserted executive privilege on several occasions and ultimately backed down,” Rozell says. “They tended to pound their chests and say this is a matter of principle. Then Congress would turn up the heat and the administration would ultimately cave.” Charles Cooper, head of the Office of Legal Counsel under Reagan, says Bush and Cheney seem resolved not to succumb to such pressure. “In the Clinton administration, executive privilege was eroded because of exaggerated claims of executive privilege that were rejected in litigation. But equally damaging has been the failure of administrations to insist upon executive privilege in clear cases,” says Cooper, partner at Cooper & Kirk in the District. “The doctrine itself has atrophied because of a failure to assert it.” DEFYING BURTON President Bush made his first formal claim of executive privilege in December, snubbing a congressional subpoena for Department of Justice documents. The subpoena, issued by the House Committee on Government Reform, chaired by Rep. Dan Burton, R-Ind., sought a number of documents, including prosecutorial memorandums related to the Justice Department’s investigation into possible campaign finance violations by the Democratic Party in 1996. The courts have held that such documents are presumptively protected since they reveal the internal decision making of executive branch officers. Still, the committee had demanded similar documents from then-Attorney General Janet Reno and, ultimately, memos written by Director Louis Freeh of the Federal Bureau of Investigation and campaign finance task force chair Charles La Bella were handed over. Reno fought the request, but Clinton never made a formal claim of executive privilege. To some, it is telling that the Republican administration is holding its ground. “It speaks to the sincerity of the president’s dedication to this principle,” Cooper says. “The information being requested by the Burton committee is as close to the heart of executive privilege as you can get. The only reason to disgorge it would be a political reason.” The battle may not yet be over, says Wilson, the House Government Reform Committee’s top lawyer. “There have always been incidents where Congress has gotten access to deliberative documents. The administration doesn’t like it. They fight, they kick, they scream — but in the end they compromise,” Wilson says. Indeed, the typical pattern since Watergate has been for administrations to resist congressional requests for such deliberative documents as prosecutorial memos. The two branches feud, but ultimately reach a settlement. For instance, congressional staffers may be permitted to review documents, but not to make copies. Several lawyers who worked at the Justice Department under Reno describe a freewheeling approach to handling requests from the Hill. Even during tense congressional investigations, there was no institutional philosophy against accommodation, says one former DOJ official. “By the time I came to the White House, we were turning over everything,” Mikva says. “I think we recognized we couldn’t avoid the hard politics of disclosure.” In contrast, Wilson says the message he received from the Bush administration from Day One is this: “There will be an analysis of situations on a case-by-case basis, but the analysis will be conducted by the Department of Justice and the White House, and they will always win.” In his dispute with the GAO, Cheney has made it clear that the White House is determined to break with a tradition of compromise he believes has eroded the principle of executive privilege. “Time after time administrations have traded away the authority of the president to do his job,” Cheney said in a Jan. 27 interview with Fox News. “We’re not going to do that in this administration.” But if the White House is not backing down, neither is Congress. In January White House Counsel Alberto Gonzales offered Burton a briefing on the subpoenaed documents. The congressman refused. “I would be pleased to accept the offer of a briefing, but only as long as the briefing is provided in conjunction with the review of the relevant documents by Committee staff,” Burton wrote in a letter to Gonzales. “The President’s claim of privilege has saddled Congress with a potentially crippling precedent,” the letter continues. “If the President’s claim of privilege remains unchallenged … it would effectively eliminate meaningful oversight of the Executive Branch in cases of corruption, mismanagement, or other abuse.” TAKING OFF THE GLOVES In the case of the Burton subpoena, the president’s assertion of executive privilege is likely to go unchallenged. Suing the president would require a full vote of the House and is unlikely to be supported by the Republican leadership. On the other hand, a court battle with the GAO now seems inevitable. On Jan. 30, Comptroller General David Walker announced plans to sue. Prominent appellate lawyer Carter Phillips, a partner in the D.C. office of Sidley Austin Brown & Wood, will represent the agency. According to constitutional law experts, the case may be difficult for the Bush administration to win as a straightforward claim of executive privilege. Instead, the administration has crafted a first line of defense based on an assertion that the GAO lacks statutory authority to review the activities of the energy task force. It is similar to the position taken by the Clinton administration in litigation over the health care task force chaired by then-first lady Hillary Rodham Clinton. In that case, government lawyers argued that the health care panel was not covered by open government provisions of the Federal Advisory Committee Act cited by the plaintiffs. The U.S. Court of Appeals for the D.C. Circuit ruled in favor of the administration on the narrow statutory question, but noted “[i]f a President cannot deliberate in confidence, it is hard to imagine how he can decide and act quickly.” One element distinguishing Cheney’s case: the GAO is an agent of Congress, a coequal branch of government — and not private citizens as in the health care task force litigation. Secondly, many lawyers question whether the type of factual information requested by the GAO falls under any definition of executive privilege previously accepted by the courts. “They are taking the position that if someone goes out at a president or vice president’s direction and meets with private citizens, that would fall within executive privilege,” says Jenner & Block’s Perrelli. “That’s an exceedingly broad claim, one that no administration has come close to making since Nixon.”

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