Executive Privilege and Judicial Recusal

In a politically charged case, the Court handed the Bush Administration one of its few court victories in Cheney v. United States District Court for the District of Columbia (2004).  The case arose from an action taken by President Bush in his first week in office, setting up the National Energy Policy Development Group headed by Vice-President Dick Cheney. The group, consisting of cabinet officers and White House aides, met irregularly for the next three months and issued its report in May 2001.  The task force quickly became a focus of controversy when rumors spread that key lobbyists for the energy industry had attended the meetings. The General Accounting Office, at the request of leading congressional Democrats, tried to gain access to the internal records of the group to see with whom the Group had met, but lost in federal court.

Another lawsuit by Judicial Watch, a conservative watchdog organization, and the liberal Sierra Club, claimed that the involvement of the lobbyists in the energy task force meant that the group's records were subject to the provisions of a federal law requiring advisory committees to be balanced and open.  The administration fought this suit strenuously, and argued that making the information known would deprive the president of the ability to receive candid information and opinions privately, something that would not happen if these advisors knew their deliberations would be made public.

Judicial Watch and the Sierra Club won in the district court, but Cheney appealed on the grounds that Judge Emmett Sullivan's order requiring him to turn over documents to help prove or disprove the role of lobbyists in a trial would effectively send the two organizations on the type of fishing expedition that they are not entitled to conduct.  

Because this was a discovery order, it normally would not be appealable before a trial.  But Solicitor General Olson urged the justices to make an exception, because the "discovery itself violates the Constitution" by intruding on the president's "core functions" of soliciting advice. "This is a case about separation of powers," Mr. Olson said, and the vice president "acting as the subordinate and surrogate for the president here" should not have to pay the price of submitting to discovery "in order to challenge the constitutionality of a process that invasive to fundamental presidential prerogatives and responsibilities."

Lawyers for the two advocacy groups found the justices leery of granting their discovery request, on the grounds that the discovery would in essence give them victory, i.e., the information they had gone to court to secure. The justices also seemed incline to ignore an earlier lower court order that had opened up the records of the task force on health care that Hillary Rodham Clinton had headed in 1993. There the court had seemed to indicate that the law could be invoked if it could be shown that outsiders served as de facto members, an interpretation the justices did not find convincing.

In June the Court voted 7-2 that the vice president, at least for the present, did not have to turn over the secret details of his energy task force. The majority agreed with the administration's argument that private deliberations among the president, the vice president and their close advisers are entitled to special treatment under the constitutional principle of executive privilege.  But the administration must still prove in the lower court that this principle applies and trumps the federal statute on advisory committees. That process could take several months, thus removing final resolution until after the November election.  While John Kerry and John Edwards will undoubtedly emphasize the fact that the president and vice-president hid the list, at least Bush and Cheney will not have to give it up because of a court order.  Cheney also lost his request that the justices determine that he is not subject to discovery; instead, the Court said he would have to prove that.  Only Justices Ginsburg and Souter thought that the lower courts should be left to determine what could be secured through discovery.

A side show to the case actually garnered far more attention that the issues involved in the suit.  In January 2004, after the case had been docketed for argument, Justice Antonin Scalia went duck-hunting with the vice president in Louisiana , the trip hosted by oil services executive Wallace Carline.  Scalia and Chaney are old friends and have participated in other social events over a number of years.  But this time the Sierra Club filed a motion asking Scalia to recuse himself from the case, a call joined by a number of newspaper editorials.  

Decisions to recuse -- that is, not to participate in a case -- are individual, and there are no Court rules governing the matter. Two years earlier Scalia, without any request at all, had recused himself in Kahvedzic v. Republic of Croatia (2003), because, as it later turned out, he had been reimbursed by that country for a trip to meet with Croation judges, one of fifteen subsidized trips Scalia took that year. In the Pledge of Allegiance case, Scalia withdrew without comment because he had, in fact, prejudged the matter and spoken openly about it.

A justice does not have to explain why he or she recuses or decides not to, and in fact recusals are not that rare. On the current Court Justice Stephen Breyer recuses himself the most often (averaging 42 times a year) while Chief Justice Rehnquist recuses the least, seven times per Term. The reasons may be substantial or insignificant, and most of the time no reason is given. In this case, however, Scalia issued a 21-page explanation of his decision not to recuse.  He said that his readings of his duties as a justice required him to stay in the case, which involved Cheney not in any personal capacity but only in his official role as vice president.

"A rule that required members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling." In lower courts if a judge must step aside he or she can be replaced by another, but not at the Supreme Court. Scalia pointed to a history of close friendships between justices and official litigants, such as the late Byron White skiing with Attorney General Robert Kennedy, or Robert H. Jackson vacationing with President Franklin Roosevelt. "A no-friends rule would have disqualified much of the Court in Youngstown Sheet & Tube Co. v. Sawyer [the 1952 steel seizure case]. . . since most of the justices knew Truman well, and four had been appointed by him." Scalia drew a sharp distinction between the official and the personal, noting that Cheney had nothing personal or financial at stake. The question revolved solely around an interpretation of the Federal Advisory Committee Act. While there could certainly be political consequences, the justice noted, "political consequences are not my concern, and the possibility of them does not convert an official suit into a private one."

Scalia then detailed the duck-hunting trip, noting that Carline had invited Cheney at Scalia's suggestion, after he learned that his host admired the vice president. Cheney accepted the invitation and invited Scalia, one of his sons and a son-in-law to join him aboard a government jet. But because Scalia wanted to return to Washington later than Cheney did, he bought his own round-trip ticket to Louisiana, flew down with Cheney, and then returned on commercial jet.

Finally, Scalia noted that the lawyer representing the Sierra Club who asked him to recuse, Alan Morrison, was also a personal friend, and two days before filing the brief in the case Morrison wrote a "Dear Nino" letter asking the justice to speak to a class Morrison will be teaching at Stanford Law School. Without using Morrison's name, Scalia said lawyers for the Sierra Club were seeking to impose "a standard regarding friendship, the appearance of friendship, and the acceptance of social favors, that is more stringent than what they themselves observe."

Although a number of critics suggested that Scalia had acted improperly, it would be impossible for members of the Court, many of whom have served in government or have been politically active over the years, to recuse themselves whenever a friend or acquaintance or even a former clerk appears before them as a litigant or as an attorney. The most common reason for recusal is financial, in that members of the Court served as attorneys to business interests at one time, or hold financial interests in a company.  While a few justices put their holdings in a blind trust, they are not required to do so, and recuse when there might be an appearance of conflict of interests.

As Scalia noted, the times have changed since justices such as Felix Frankfurter, William O. Douglas, and Robert H. Jackson freely advised their friend and sponsor, Franklin Roosevelt, on government policy. But it would be crippling to the Court to require recusal if a friend or acquaintance is involved in, as Scalia noted, a suit involving official duties.

Scalia appeared to have been the justice most in the news this year with another flap following the destruction of audiotapes made by reporters at a speech he gave at the Presbyterian Christian High School in Hattiesburg, Mississippi in April. The reporters, one for the Associated Press and the other for a local newspaper, had been told by a federal marshal to destroy the tapes after the half-hour speech by the justice, an action apparently taken without Scalia's knowledge.  The marshal, however, was acting on Scalia's long-standing policy of not allowing audio or video recordings of his talks. The Reporters Committee for Freedom of the Press immediately protested the action.

Scalia responded by apologizing for the incident, and noted that "you are correct that the action was not taken at my direction. I was as upset as you were."  In the future he would permit recording for the use of print media "to promote accurate reporting," but he would continue to ban the recording of his speeches by the broadcast press.  "The electronic media have in the past respected my First Amendment right not to speak on radio or television when I do not wish to do so, and I am sure that courtesy will continue." While the Reporters Committee and the journalists involved expressed satisfaction with Scalia's "handsome" apology, Barbara Cochrane, president of the Radio-Television News Directors Association, objected to the distinction he drew between print and broadcast media, claiming no legal basis existed to justify the distinction.

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