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Politics, not law, at heart of Cheney disclosure case

The Star-Ledger
April 25, 2004
Anne Gearan, Associated Press

WASHINGTON - The Supreme Court case involving Vice President Dick Cheney's efforts to fight disclosure of White House records has more to do with politics than law, say defenders and critics of the Bush administration's hard line in the dispute.

Legal experts said they doubted that the case no matter how it turns out will have much bearing on the broad issue of executive privilege.

A loss for the administration would make it easier for outside groups to get hold of documents or other materials from some kinds of advisory bodies now shielded from public view. But that will not allow broad new access to private or sensitive Oval Office business, most lawyers agree.

The Supreme Court, which will hear arguments on the case Tuesday, must decide a rather arcane issue of law. At most, the administration would be required to begin turning over some documents about the inner workings of a study group chaired by Cheney that came up with recommendations for a national energy policy.

The White House has framed the case as a major test of executive power, although it has toned down some of the rhetoric. Lawyers for Bush have argued that the forced disclosure of confidential records intrudes on a president's power to get candid advice and act on it as he sees fit.

"I think the case has gotten an importance beyond the actual substance. It's being touted by both sides as a dramatic decision that will weaken the presidency or strengthen the presidency," said Ronald Rotunda, a conservative law professor at George Mason University. "I don't think it's going to affect the presidency much one way or the other."

Still, the case should not be brushed off as mere politics, said law professor Douglas Kmiec at Pepperdine University. If Cheney loses, "the message to the president would be clear no one in the executive branch can rely upon outside sources, even derivatively, and that would exalt ignorance, not accountability."

Government "will be less well informed, less efficient, and generally, less responsive to public need," he said.

The court is expected to rule on the case this summer.

Whatever the long term legal implications, the political fallout could be significant should Cheney have to open the records and if they reveal cozy White House contacts with former Enron chief Kenneth Lay and others in the energy industry.

Doug Kendall, a lawyer for the environmental group Community Rights Counsel, said by fighting disclosure the administration has only drawn more attention to the case.

"The administration posture here has been incredibly bad politically," he said. "It is unseemly for the administration to have tried to create national energy policy by listening almost exclusively to energy industry executives. It would have been a two day story if the administration simply had provided the information."

Also hanging over the case is controversy over a hunting trip Cheney took with Supreme Court Justice Antonin Scalia, an old friend, just weeks after the high court agreed to hear Cheney's appeal.

Scalia has rejected requests to recuse himself from the case.

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