GAO Decides to Sue White House

JESSE J. HOLLAND / AP 30jan02

[ GAO text below ]

WASHINGTON -- The General Accounting Office has decided to sue the White House for access to documents from President Bush's energy task force, a congressional source told The Associated Press Wednesday.

The GAO's plan to take the White House to court sets up a political battle over executive privilege. Bush on Monday flatly refused to hand over the documents, saying to do so would encroach on his ability to freely seek outside views.

A decision had been expected all week from Comptroller General David Walker, leader of GAO, Congress' investigative arm. The GAO wants to force Vice President Dick Cheney, who ran the task force, to turn over documents on the meetings held last year with business executives as the Bush administration crafted a national energy policy.

Some of the meetings included officials from the now-collapsed Enron Corp., a Houston-based energy trader with deep ties to Bush.

"We have been notified that they will be announcing their decision today and that their decision is that they will be moving forward," said the Senate source, speaking on condition on anonymity.

It would be the first time in the GAO's 80-year existence that it sued the executive branch. The lawsuit would be filed in the U.S. District Court in Washington.

The White House said it had not received notification of the GAO lawsuit. "The president will stand on principle and for the right of presidents and this president to receive candid advice without it being turned into a news release," said White House spokesman Ari Fleischer.

White House officials, fearing political fallout from the legal action, scrambled to raise questions about the GAO's actions.

GAO officials were calling congressional leaders Wednesday to tell them of the decision. An official announcement was expected later in the day.

The White House said Kenneth Lay, then chairman of Enron, gave Cheney a three-page document in April arguing for federal authorities to refrain from imposing price caps or other measures sought by California officials to stabilize electricity prices. Lay was one of Bush's biggest political supporters.

"Events in California and in other parts of the country demonstrated that the benefits of competition have yet to be realized and have not reached consumers," the memo said.

Cheney spokeswoman Mary Matalin dismissed the significance of the memo first reported by the San Francisco Chronicle. Nine of Lay's 11 suggestions were not included in the White House energy plan - and the two that made the report were noncontroversial, she said.

On Tuesday, an energy consultant suggested to the Senate Energy and Natural Resources Committee that Enron may have been using largely secret trades to manipulate energy markets.

Robert McCullough, a consultant whose clients include several Northwest utilities, testified that in the week after Enron announced its bankruptcy, the "forward price" of electricity in the West fell sharply. Enron had been a key trader in this market, which is used as a hedge against future power price changes and is unregulated.

"That certainly raises the question about whether Enron was manipulating the West Coast market" by keeping prices artificially high, Sen. Ron Wyden, D-Ore., said in response to the consultant's testimony.

McCullough said "the clear implication is that Enron may have been using its market dominance to set forward prices."

Other energy experts said other reasons may have been behind the price decline. Lawrence Makovich, a power industry expert at Cambridge Energy Research Associates, said it would be impossible to determine simply from the decline in price whether prices were manipulated.

The Federal Energy Regulatory Commission told the Senate panel it would investigate Enron's influence on wholesale electricity prices.

In resisting the GAO's demands, Cheney insists that providing the list of industry executives would harm his ability to receive advice in the future and that the congressional investigators are overstepping their bounds. GAO, as a congressional agency, insists it has the authority to request the information.

Any GAO lawsuit would be highly controversial on Capitol Hill. The agency's investigation began after Democrats on April 19 requested that GAO investigate the conduct, operations and funding of the Cheney energy task force.

Democrats have criticized the GOP for not wanting Cheney to turn over the documents. Rep. John Conyers, D-Mich., senior Democrat on the House Judiciary Committee, said that in 2000, Republicans had no problem publicizing a confidential Justice Department memo that urged appointment of an independent counsel to investigate former President Clinton and Vice President Al Gore for possibly illegal campaign fund-raising practices in the 1996 election.

"This deathbed conversion on deliberative process is a new low for hypocrisy," Conyers said.

On Tuesday, some Republicans had threatened to try to block the suit.

"I think it may come to that," said Sen. Orrin Hatch, R-Utah, top Republican on the Senate Judiciary Committee.

Congress' investigative arm shouldn't be "trying to impose disclosure on internal White House meetings to determine policy," Hatch said. "If you have to do that, pretty soon there wouldn't be any meetings."

House Majority Leader Dick Armey, R-Texas, said he and House Speaker Dennis Hastert, R-Ill., planned to "talk to the agency."

Comptroller General of the United States

Accountability • Integrity • Reliability
United States General Accounting Office
Washington, DC 20548

Decision of the Comptroller General Concerning NEPDG Litigation

January 30, 2002

As you know, the United States General Accounting Office (GAO) has been engaged in an ongoing effort to obtain certain narrowly defined, factual information concerning the development of the National Energy Policy proposal from Vice President Cheney in his role as Chair of the National Energy Policy Development Group (NEPDG). Importantly, we are only seeking limited information in connection with NEPDG-related matters.

The administration used the NEPDG as a mechanism to, among other things, outreach to selected nongovernmental parties and develop a proposed comprehensive energy policy. In addition, contrary to recent assertions, we are not seeking the minutes of these meetings or related notes of the Vice President's staff. This was conveyed to the White House in writing on August 17, 2001. Unfortunately, despite our numerous attempts to reach a reasoned and reasonable accommodation on this matter, to date, the information we requested has not been made available to us.

In his August 2, 2001, letter to both Houses of Congress, the Vice President raised a number of objections to providing the information we requested. Importantly, for both the Congress and GAO, the Vice President challenged GAO's fundamental statutory authority to assist the Congress in connection with its constitutional, legislative and oversight authorities. These challenges went far beyond issues relating to his constitutional position as Vice President and White House staff related matters. As noted in our prior correspondence concerning this matter, the information we are seeking is clearly within our statutory audit and access authority. Accordingly, as provided in our statutory access authority, on July 18, 2001, we issued a formal request for the records. Unfortunately, the statutory 20-day response period passed without any meaningful action by the Office of the Vice President. In accordance with the prescribed statutory process, on August 17, 2001, we reported to the Congress, the President, the Vice President, and other officials that the NEPDG had not provided the requested records. (See enclosed August 17, 2001, report.) While the NEPDG did provide some cost-related documents to GAO, most of these documents were not useful or self-explanatory. Moreover, even though the Vice President and his counsel acknowledge our authority to access cost information, they have not provided us the remaining cost information and explanations requested. Apart from information concerning the Vice President's meetings, they also have not provided us with factual information concerning who the NEPDG staff, including non-White House staff who were assigned to the NEPDG from various government departments and agencies, met with and the purpose of those meetings.

We strongly disagree with the Vice President's objections to our audit and access authority. Significantly, under GAO's statutory access authority, Congress provided the President and the Director of the Office of Management and Budget a safety valve to preclude judicial enforcement of GAO's access rights. The executive branch has chosen not to use this mechanism. Furthermore, the President has not claimed executive privilege in connection with our request. As previously noted, all of our attempts to reach a reasoned and reasonable accommodation, including reducing the scope of our request, have been rebuffed, and we have now exhausted the statutory process for resolving our access requests. As a result, our only remaining recourse is either to file suit in the United States District Court for the District of Columbia or to forego further assertion of our access rights.

GAO was preparing to go to court in September of this past year until the tragic events of September 11. As I stated last September, prudence dictated that we delay any related legal action given the immediate need for the administration and the Congress to focus on developing our Nation's initial response to our fight against international terrorism and efforts to protect our homeland.

The Congress has a right to the information we are seeking in connection with its consideration of comprehensive energy legislation and its ongoing oversight activities. Energy policy is an important economic and environmental matter with significant domestic and international implications. It affects the lives of each and every American. How it is formulated has understandably been a longstanding interest of the Congress. In addition, the recent bankruptcy of Enron has served to increase congressional interest in energy policy, in general, and NEPDG activities, in particular. This, plus the Senate's expected consideration of comprehensive energy legislation this session, reinforces the need for the information we requested concerning the development of the National Energy Policy proposal. In this regard, we recently received a request for the NEPDG information we are seeking from four Senate committee and subcommittee chairmen with jurisdiction over the matters involved. Importantly, our governing statute requires GAO to perform such committee requests.

Clearly, the formulation and oversight of energy policy and the investigation of Enron-related activities represent important institutional prerogatives of the Congress. Furthermore, a number of other important principles are involved. Failure to provide the information we are seeking serves to undercut the important principles of transparency and accountability in government. These principles are important elements of a democracy. They represent basic principles of "good government" that transcend administrations, partisan politics, and the issues of the moment. As such, they should be vigorously defended. Otherwise, it could erode public confidence in and respect for the institutions of government.

The disclosure of the activities of the NEPDG is also important for precedential reasons. Specifically, the NEPDG was financed with appropriated funds and staffed largely by government department and agency personnel assigned to it. We disagree with the White House position that the formation of energy policy by the NEPDG is

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beyond congressional oversight and GAO review. Were the Vice President's arguments in this case to prevail, any administration seeking to insulate its activities from oversight and public scrutiny could do so simply by assigning those activities to the Vice President or a body under the White House's direct control.

In our view, failure to pursue this matter could lead to a pattern of records access denials that would significantly undercut GAO's ability to assist Congress in exercising its legislative and oversight authorities. We would have strongly preferred to avoid litigation in connection with this matter, but given the request by the four Senate committee and subcommittee chairmen, our rights to this information and the important principles and precedents involved, GAO will take the steps necessary to file suit in United States District Court in order to obtain, from the Chair of the NEPDG, the information outlined in our August 17, 2001, report. This will be the first time that GAO has filed suit to enforce our access rights against a federal official. We hope it is the last time that we will have to do so.

We have great confidence in our nation's legal system and look for a timely resolution of this important matter. If you have any questions, comments or concerns, please do not hesitate to contact me.

Sincerely yours,
[signed]
David M. Walker Comptroller General of the United States

cc: President of the United States

Vice President of the United States

Enclosure

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