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GAO sues for energy panel files
Naftali Bendavid . NY Times . 23 february 2002

WASHINGTON -- The General Accounting Office, Congress' investigative arm, sued Vice President Dick Cheney on Friday, demanding a list of the individuals who met with a White House task force as it was formulating the administration's energy policy.

The lawsuit sets up a potentially historic confrontation between Congress and the White House, and both sides appeared to be positioning themselves for a long battle. The GAO has never before sued a federal official in such a case and the decision caps months of fruitless negotiations between the two sides.

The conflict arises from President Bush's decision shortly after he took office to form an energy task force and to appoint Cheney to head it. Democrats have accused the group of meeting almost exclusively with representatives of powerful energy companies, and they asked the GAO to look into the matter.

The collapse of Enron Corp. has raised the temperature on the dispute, as Bush's critics try to tie the White House to the fallen energy giant. Under pressure, the White House has acknowledged that Cheney or his staff met six times with representatives from the Houston-based company as the energy policy was being developed.

Cheney's office has refused to provide documents, and Friday the dispute finally landed in court.

"We take this step reluctantly," the GAO said in a statement. "Nevertheless, given the GAO's responsibility to Congress and the American people, we have no other choice. Our repeated attempts to reach a reasonable accommodation on this matter have not been successful."

The White House, however, argued that the agency had no authority to demand the information. In addition, its lawyers say, disclosing the information would chill the ability of the president and the vice president to get candid advice.

"This is an important principle," said White House spokesman Scott McClellan. "We have been ready to fight for it since the GAO first said they were going to file suit last August. We look forward to the courts reviewing this matter."

The two camps are signaling their determination to fight it out by bringing in high-profile legal firepower. The GAO has hired the Chicago-based law firm of Sidley Austin Brown & Wood, and the White House has assigned Solicitor General Theodore Olson to lead its efforts.

The lawsuit itself is a no-frills document, dryly setting forth the history of the GAO's attempts to get the information and arguing that it has good reasons for doing so.

"For decades, GAO has monitored and investigated myriad executive branch activities," the agency's suit says. "During that period, the executive branch has complied with countless GAO requests for information."

Inquiry started last spring
Since beginning its investigation on May 7 at the request of two Democratic congressmen-- Reps. John Dingell of Michigan and Henry Waxman of California -- the GAO has made "a good-faith effort to fulfill its statutory responsibilities in a manner that accommodated the vice president's asserted need to protect executive deliberations," the document adds.

Cheney's office, on the other hand, refused to cooperate, and now the GAO "has exhausted all reasonable means of resolving this dispute without litigation," the lawsuit says.

The court will have to decide whether the GAO's mission gives it the right to seek the information. If so, the judge will rule on whether the White House can assert a legal privilege to shield it from complying.

Whatever its legal significance, the case has a major political dimension, with Democrats trying to portray the Bush team as closely tied to big energy companies.

Dingell, the top Democrat on the House Energy and Commerce Committee, wasted little time expressing his views on the lawsuit Friday.

"Just under a year ago, Vice President Cheney's National Energy Policy Group issued its report on energy policy--a beautiful, slick document," he said. "Today, regrettably, the GAO was forced to file suit to lift the veil of secrecy surrounding that same report."

Other lawsuits have also been filed to obtain documents and information on the task force. One action was brought by the legal watchdog group Judicial Watch, and a hearing is scheduled for April 9.

Another case has been brought by the Natural Resources Defense Council, an environmental group, demanding that the information be turned over under the Freedom of Information Act.

In some ways, the dispute mirrors the 1994 fight over President Bill Clinton's health-care task force. The GAO and Republican lawmakers demanded information about that panel's workings, with mixed results.

In a historical irony, John Dean, who served as White House counsel to President Richard Nixon, recently urged Cheney to release the records. Dean compared the Bush administration's approach to the GAO request to Nixon's attempt to stonewall during Watergate.

Harold Krent, dean of the Chicago-Kent College of Law and the Illinois Institute of Technology, said the dispute over the energy task force in some ways revolves around a trivial dispute, given that it has prompted a constitutional clash.

He said the White House would be giving up little by providing a list of the task force meetings, and the GAO would not lose much by forgoing a request far afield from its usual inquiries.

Intriguing, `but little at stake'

"What is unusual, and at the same time intriguing, about this case is that we could be setting a constitutional precedent in a case in which very little is at stake on the part of either the GAO or the vice president's task force," Krent said.

It is the political stakes that really matter, he added,

"The reason this is such a hot potato is that there is--at minimum--an appearance problem of having too much power wielded by the backers of the president, and especially energy companies," Krent said. "There is little at stake from a constitutional perspective, but a great deal from a political perspective."

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