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U.S.: White House Faces Legal Confrontation With Congress

  • Andrew Tully

The U.S. Congress and the White House are in a legal fight over whether Vice President Dick Cheney must surrender a list of business executives with whom he and his staff discussed national energy policy. Cheney is citing what is known as "executive privilege," which he says keeps private conversations by the government's executive branch from the scrutiny of the other two branches -- legislative and judicial. But courts say this claim is not always legitimate.

Washington, 29 January 2002 (RFE/RL) -- The U.S. Congress is embroiled in a legal battle with the administration of President George W. Bush that could be reminiscent of its confrontations with President Richard Nixon three decades ago.

The current dispute revolves around the Enron Corporation, the huge energy-trading concern that collapsed nearly two month ago, throwing most of its 20,000 employees out of work and leaving their retirement savings worthless.

About a year ago, Bush set up a task force to explore ways to make the U.S. less dependent on imported energy, and appointed his vice president, Dick Cheney, as its director. One of the ideas being considered by Cheney's task force was lessening the regulations that are imposed on energy companies to enable them to produce at lower cost and pass this savings on to consumers.

Enron had long been a beneficiary of light regulation of the energy industry. For example, the company was able to artificially inflate its total profits by more than $580 million since 1987, thus concealing huge market losses. Regulations governing other industries forbid this practice.

The General Accounting Office (GAO), the investigative department of Congress, wants to know whether Enron officials sought further regulatory immunity for its industry in meetings with the vice president and his aides. So the GAO has asked Cheney's office for a list of business executives who met with him or his aides. Cheney has refused to surrender the list. The GAO says it will decide this week whether to ask a court to force the White House to do so.

Cheney contends that no one would speak candidly with him or any other member of the executive branch of the U.S. government if these conversations were open to public scrutiny. And he says the GAO cannot force him to divulge the list because of what is known as "executive privilege."

Since the founding of the republic, presidents and members of their administrations have invoked executive privilege as a way of maintaining the integrity of the executive branch of government -- which includes the presidency and the cabinet departments -- by keeping it separate from the legislative and judicial branches. Under this "separation of powers," as it is known, all three branches interact, but none is subordinate to another.

Executive privilege is not addressed in the U.S. Constitution, but it has been the subject of a few court rulings. Those who invoke executive privilege infer it from the constitutional separation of powers.

In claiming executive privilege, Cheney says that to submit to the GAO's demand for the list of executives would be to weaken the presidency by making it subordinate to Congress.

Probably the most famous claim of executive privilege came 30 years ago, when Nixon refused to surrender to Congress tape recordings that were made daily of the conversations he held in his White House office. At the time, a congressional committee was investigating whether Nixon or his top aides deliberately obstructed justice by trying to hide a White House link to a burglary at the headquarters of Nixon's political rivals.

Nixon and his lawyers said the tapes fell under the protection of executive privilege, essentially for the same reasons that Cheney has cited. Eventually, the U.S. Supreme Court, the highest court in the country, ruled that executive privilege may be invoked only when the conversations in question deal with delicate diplomatic matters or national security. In this case, the court ruled, the issue was a suspected violation of criminal law.

The Nixon tapes eventually were surrendered, and they made it clear that the president himself had knowledge of an effort to obstruct justice. He resigned the presidency in 1974 rather than face almost certain impeachment.

More recently, in 1998, Bill Clinton, Bush's immediate predecessor as president, invoked executive privilege in trying to keep top aides from testifying about conversations they had with him about investigations into whether he lied under oath in a civil lawsuit.

Clinton eventually decided to let the aides testify, evidently fearing that the Supreme Court would view his argument the way it had viewed Nixon's. Clinton eventually was impeached on a perjury charge by the House of Representatives -- the equivalent of being indicted by a prosecutor. But the Senate, which tried the president, did not convict him. The entire episode, however, badly tainted his presidency.

Political analysts interviewed by RFE/RL say it is wrong to argue -- as Nixon, Clinton, and Cheney have -- that the presidency would be weakened if the White House were forced to submit to investigatory demands from Congress. In fact, the presidency is weakened by an administration that tries to hide questionable activity from the public, according to Allan Lichtman, a professor of history and politics at American University in Washington. "I think history has shown that the presidency becomes weaker when it becomes more insulated from public commentary and scrutiny. Usually the sunlight of public view strengthens and does not weaken the presidency. I think the presidency remains very strong today. And to the extent that it has been weakened, it has been weakened by abuses of power on the part of presidents."

Lichtman was asked why Clinton and Cheney have not learned from Nixon's experience that invoking executive privilege is legitimate only to protect national security or diplomatic initiatives. He replied that every presidential entourage enters the White House with an undaunted sense of political power.

"I think the broader problem is the arrogance of power. They come in as the only elected public officials elected by the entire country. They believe they have the power, they believe they know what's best for the country, and I think that arrogance of power has led every single administration to make the same kinds of mistakes."

Larry Sabato goes even further. Sabato -- a political analyst at the University of Virginia -- says a president's staff has no institutional memory. He says that because no administration lasts longer than eight years, no member of an administration that is confronted with a problem can remember, from personal experience, precisely how the White House dealt with a similar problem in the past.

As a result, Sabato told RFE/RL, they make the same mistakes as their predecessors.

"Every White House has to learn the same lessons anew. There's something about the White House that encourages its occupants and senior people to believe they're special, that they don't have to follow the rules as laid down by prior administrations, that they somehow can avoid the pitfalls that come with secrecy."

Sabato says that in the current confrontation between the White House and Congress, Cheney may be morally and perhaps even legally right in wanting to withhold the list of names sought by the GAO. But that does not mean the vice president is making a wise political decision.

"It seems to me that what Vice President Cheney has done is to draw far more attention to this than would otherwise have been the case. He's also led people, maybe inadvertently, into believing that the Bush administration has something to hide here. It's foolish even if it's justified."

According to Sabato, a stand by a politician can be legitimate, but it can simultaneously be "politically stupid," as he put it. And here, he says, the Bush administration may be acting just that way.

Such political stupidity may not lead to Bush's resignation, as it did with Nixon. But it could lead to his defeat at the polls if he runs for re-election in 2004. Nationwide polls show Bush now enjoys high approval ratings with the American public, as much as his father, President George Bush, enjoyed in 1991 after the allied victory over Iraq.

But those approval ratings evaporated the next year as the country slipped into economic recession, and the elder Bush lost the presidency to Clinton.

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