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A federal judge in Washington, D.C., has cast a dark shadow over Congress’ investigative powers by dismissing the suit by the head of the General Accounting Office (GAO) against Vice President Dick Cheney over records involving the Bush administration’s national energy task force. “This decision marches the GAO back to the dark days before enactment of the GAO Act of 1980, namely the Nixon Watergate era, when the executive branch treated all kinds of waste and abuse as off-limits to GAO auditing and scrutiny,” says law professor Charles Tiefer of the University of Baltimore, a former solicitor general and deputy general counsel to the U.S. House of Representatives. In a case that presents a “clear constitutional confrontation between the political branches,” U.S. District Judge John D. Bates on Dec. 9 held that Comptroller General David M. Walker, despite a provision in the 1980 act authorizing civil suits to enforce the GAO’s requests, lacked standing to sue Cheney. Walker v. Cheney, No. 02-0340. The GAO is the investigative and auditing arm of Congress. The suit was the first time that it used a civil action to seek release of executive-branch records. Bates said that the comptroller general did not have the “personal, concrete and particularized injury” required by the Constitution’s standing doctrine, either to himself or as an agent of Congress, that would allow the suit to go forward. Walker’s lawyer, Carter G. Phillips of Chicago’s Sidley Austin Brown & Wood, said at press time no appeal decision had been made. The ruling leaves the comptroller general’s power to get information from the executive branch, and perhaps even from private individuals, restricted to what he can cajole with the threat of a congressional subpoena — which may not be enforceable given the administration’s view, some experts say. “I could imagine the administration’s friends in Congress instructing [Walker] not to appeal,” says Michael Dorf, vice dean of Columbia University Law School. “They could repeal his authority to sue or repeal it partially. I hope they don’t do that.” The fight began in May 2001 when Reps. John Dingell, D-Mich., and Henry Waxman, D-Calif., minority chairmen of two committees, asked the GAO to investigate the “conduct and composition” of the energy task force that Cheney headed. They suspected that it sought input only from campaign contributors in the energy industry. Cheney argued that the investigation violated separation of powers. Without asserting executive privilege, he said the president and his aides “must be able to work in an atmosphere that respects confidentiality of communications.” The GAO scaled back its request and sought only the names of those meeting with the task force and the costs involved. Cheney continued to refuse. Walker, a former official in the Reagan and first Bush administrations, sued in January. Congress created the GAO in 1921 as “an officer, responsible to it alone, to check upon the application of public funds in accordance with appropriations.” In the Nixon era, the administration “stonewalled” Congress in its investigative efforts. The 1980 act gave the comptroller general broad investigative authority. Congress wasn’t seeking to make it impossible to hold the GAO at bay, Tiefer says, but to force the president to say expressly that keeping the information secret was in the national interest. “Cheney and Bush have been unwilling to do this, and the judge has now said they don’t have to,” he says. Bates relied heavily on the U.S. Supreme Court’s 1997 ruling that six congressmen did not have standing to challenge the constitutionality of the Line Item Veto Act of 1996. Raines v. Byrd, 521 U.S. 811 (1997). The high court said the plaintiff must have a personal stake in the alleged dispute and the alleged injury must be particularlized to him. The alleged injury in Raines — the loss of political power — was institutional, not personal, and that was insufficient for standing, the court said. Bates said the alleged injury to Walker was to his statutory right to information, also not personal but rather institutional. Even as an institutional injury, the judge said, it was not “freestanding” because the comptroller general derives his authority from Congress. He also gave weight to the fact that Congress had issued no subpoenas in this fight and hadn’t expressed support for the suit. The decision is in the “vortex of some conflicting signals on the Supreme Court,” says Peter Shane of Carnegie Mellon University and co-author of “The Law of Presidential Power.” “The two things clashing are the evolving jurisprudence of what counts as an injury for standing purposes,” he says, and “a concern which has to do with the court wanting to remain out of what it perceives as purely political fights between the branches.” The high court does not want to allow a thwarted Congress, or member, to call lack of political success an injury, the situation in Raines, Shane says. “The GAO case strikes me as different,” says Shane, an ex-Justice Department official. “The GAO is seeking a particular thing that they have a statutory entitlement to seek, namely information. I don’t think the GAO is asserting Congress’ right to the information, nor do I think it has to.” Dorf says he found logic in the judge’s statement that a GAO suit might stand if Congress authorized it. “We want to avoid courts’ refereeing executive-legislative disputes, and if the courts are going to get involved, then both Congress and the executive should really want this fight,” Dorf says. “So a general authorization of the comptroller general to sue does not indicate that Congress wants the particular fight.” There’s little chance the GOP-run Congress will endorse the suit, says Michael Gerhardt of the William and Mary School of Law. “This could only be embarrassing to the president for this information to come out,” he says. “In the long run,” says Tiefer, “the congressional investigative power recovers and reasserts itself, regardless of these rulings, because it represents the quest of a democratic nation to learn about the problems in its own government. In the long run, the people insist on knowing and the Congress creates the means for them to find out. But it can take a while.”

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