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The approaching court battle between the White House and the General Accounting Office (GAO) over records of meetings between special interest groups and the administration’s energy policy task force has left some scholars of presidential powers puzzled and asking, “What in the world is the administration fighting over?” It’s not that the GAO’s request — names of attendees, dates, locations and subjects of task force meetings — is unimportant, they say, but that this narrow inquiry does not rise to the kind of potential injury that historically drove two government institutions to the courts. David M. Walker, comptroller general of the United States, announced on Jan. 30 that the watchdog agency — congressionally created in 1921 — which has been stymied since the summer in its efforts to get the records, will sue Vice President Dick Cheney in his capacity as head of the National Energy Policy Development Group. It would be the first suit against a U.S. official by the GAO. “Very rarely do these kinds of interbranch battles end up in court,” said Professor Mark Rozell of Catholic University and author of “Executive Privilege.” “The typical pattern is for both sides to thump their chests and make big noises about institutional prerogatives, but ultimately they come to some accommodation where each side claims it won. “I think ultimately there is concern that going into court may lead to a loss, and that loss could have serious, long-term consequences for the institution,” he explained. Agreeing, Professor Charles Tiefer of the University of Baltimore School of Law, a former deputy general counsel of the House of Representatives, added, “I’m sure the GAO never expected, after 20 years of using its authority under the 1980 [GAO] act and resolving every dispute by negotiation and compromise, that this unlikely location would become the place of the big battle.” If suit is filed, the legal issue is whether the information sought by the GAO is protected by the deliberative process privilege, said Tiefer. The vice president has argued that releasing the information would harm his ability and future officials’ ability to get necessary advice for making decisions, and the president has said it would hamper the executive branch’s ability to conduct business. “This is the unusual situation where the president personally has announced that he supports their invoking the deliberative process privilege while he’s not asserting executive privilege,” added Tiefer. “That’s rare, but that’s what makes this interesting.” The situation is also “procedurally unique in that, typically, this kind of demand against the White House would be brought pursuant to an investigation by a congressional committee and a subpoena would be involved,” said presidential power scholar Peter M. Shane of the University of Pittsburgh School of Law. “Of course, if the GAO loses, there’s no saying that a subpoena won’t happen,” Shane said. The administration is challenging the GAO politically as well as legally, said Tiefer. It has hinted that the investigation is partisan — although Walker was the choice of Senate Minority Leader Trent Lott, R-Miss., for that job and Walker is a former partner at Arthur Anderson, chief auditor for the scandal-ridden Enron Corp. It also has suggested that the GAO’s action is unauthorized or illegitimate. The agency’s investigation began after congressional Democrats last April asked it to examine the operations and funding of the energy task force. The GAO has investigative authority, which, in this instance, was strengthened and codified by the GAO Act of 1980, said Tiefer. “No one questions the GAO’s use of its own statutory authority, and that’s why this case will turn on deliberative process and not why there was no congressional subpoena,” Tiefer said. “A judge will want to know why there’s a claim of privilege for what the GAO is seeking.” That claim, suggested Tiefer and others, is thin. The White House Office of Information and Regulatory Affairs once engaged in a protracted struggle with the GAO over the release of a log of special interests who approached the office for favors but ultimately gave up the information — the same kind of information sought from the energy task force, recalled Tiefer. When dealing with the GAO, the executive branch has been very careful not to utter the words “executive privilege,” noted Shane. And that is wise, he and Rozell said, because that claim is weakest when justified by the generalized need to protect privacy and not, for example, national security or a particular function of the office. “Executive privilege strikes me as a principle that applies to protecting deliberations over matters of grave national import, not protecting the identity of individuals and dates and times,” said Rozell. “This just doesn’t seem big enough for a legal battle or for executive privilege.”

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