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U.S. News
GAO drops Cheney energy suit, unable to force vice president to give up administration data

Saturday, February 08, 2003

By Dana Milbank, The Washington Post

WASHINGTON -- The investigative arm of Congress yesterday dropped its lawsuit against Vice President Dick Cheney over the administration's energy policy, a decision that scholars said could significantly weaken the legislative branch's ability to check executive power.

The General Accounting Office, which probes the executive branch for Congress, said it would not appeal a December federal court ruling that said the GAO could not force Cheney to turn over information about which individuals and groups met with the Bush administration's energy task force.

The GAO's decision to drop the suit, made under pressure from Republicans after they won majorities in both houses of Congress in November, ends a dispute between the two branches of government that has spanned nearly two years.

The decision, hailed by the White House and decried by Democrats and advocates of open government, came despite the GAO's earlier worries that accepting defeat in the case would cripple its ability to oversee the executive branch. Though the court ruling's reach is unclear, many lawyers have interpreted it as stripping the GAO of its ability to go to court to enforce its demands for executive branch information.

"Despite GAO's conviction that the district court's decision was incorrect, further pursuit of the [energy task force] information would require investment of significant time and resources over several years," Comptroller General David Walker, head of the GAO, said in a statement. Walker said the "court's decision is confined to the unique circumstances posed by this particular case and does not preclude GAO from filing suit on a different matter, involving different facts and circumstances, in the future."

But Thomas Mann, a Brookings Institution senior fellow in governance studies, said the GAO decision has large implications. "President Bush and Vice President Cheney have an extreme and relentless executive-centered conception of American government, and it plays out every day, and there are dozens of fronts in this effort to strengthen the presidency," he said. "Power naturally gravitates to the presidency in times of uncertainty, but people are going to question putting all of our trust in an unfettered president."

The administration has also skirmished with Congress over access to information about intelligence matters, the military, environmental decisions and the records of judicial nominees.

The Cheney case centered on whether the GAO could demand to know who met with the interagency task force, chaired by Cheney, that wrote Bush's energy policy. Democrats had argued that Big Business was having too much influence in the process. When Cheney refused to cooperate, the GAO went to court for the first time in its 81-year history.

In court, the GAO argued that a loss would "either be extremely damaging to the General Accounting Office or fatal to its ability to perform functions that it has in the past for Congress and the public." It argued that Cheney's position, if accepted, would be "literally devastating to the General Accounting Office's ability to obtain any information from the executive branch under any circumstances."

The White House yesterday praised Walker's decision as a benefit to executive deliberations. "We're pleased because of the important principle at stake, which is ensuring that the president and the vice president are able to receive unvarnished advice," said spokeswoman Claire Buchan.

Rep. Henry Waxman, D-Calif., one of the lawmakers who requested the probe, said he was "very disappointed" with Walker's move. "This is a tremendous setback for open government," he said.

Walker, in an interview, said he softened his earlier vow of "going to the mat" in this case because the administration did not press arguments that the GAO could do nothing more than financial audits. He said the ruling "moves things toward the executive with regard to items dealing with the vice president and entities like this," but he said he was "very confident" that the GAO could still sue other agencies.

People who have discussed the matter with the GAO said Walker felt heavy pressure from GOP leaders to drop the case, which had the support of Senate committee chairmen when Democrats controlled that chamber. Walker said there was "significant bipartisan support" for his decision to drop the matter.

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