Separation of Powers and Executive Privilege

This is a partial transcript of "Special Report with Brit Hume", April 27, 2004 that has been edited for clarity.

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BRIT HUME, HOST: So, what is really at stake in the legal fight over Vice President Cheney's (search) Energy Task Force and which way did the questioning during today's Supreme Court argument suggest the justices might go?

For answers, we turn to our favorite law professor, Jonathan Turley of George Washington University. Jonathan, good to see you.


HUME: All right. Now, first of all, what was this Cheney task force?

TURLEY: Well, this was a task force created to try to establish new energy policy. And because it was a task force, it fell under a law called FACA or the Federal Advisory Committee Act. Now, that law is designed to achieve transparency, but it has an exception. And the exception is for committees composed wholly of executive officials.

HUME: So in other words, if everybody who's on the committee works for the government that means it's not under this law? It has an exception to the -- what this law requires?

TURLEY: Right. And the White House has said these were all our executive branch officials.

HUME: I heard it referenced in the report to Scalia talking about voting members. Well, who were these voting members? Are they all government employees as well?

TURLEY: Well, according the government, there is no reason to believe that anyone but formally appointed members voted. But what is being argued on the other side is that the law affects not just formally named members, but what are called "de facto" members. And what they're suggesting is that lobbyists actually played a very pronounced role...

HUME: Because the members of this committee consulted with representatives of the industry, energy industry in particular, and perhaps other representatives as well, that those people may, if we only knew what really went on, have in effect, become members of committee and have influence over the decisions and the product, correct?

TURLEY: Exactly.

HUME: And therefore, we're entitled to know that.

TURLEY: And that's really from a lower court. The D.C. Court of Appeals said in an earlier case, said you could have de facto members, if they were functionally indistinguishable from named members. Well, the United States Supreme Court has never agreed to that. And so, what Vice President Cheney...

HUME: Did the Congress and the legislature itself ever speak of de facto members?

TURLEY: No. The language...

HUME: So this is just something that the lower court just came up with?

TURLEY: Well, they came up with -- there is some ambiguity in the law. But you're right; it was basically a judicial creation. And what Vice President Cheney is arguing here, on behalf of the president, is pretty serious.

I mean in the -- I think that on the merit, many of the justices would indeed support him. There is a concern that if you start allowing de facto members to be included, that transparency becomes a nightmare. That it essentially forces what Justice Breyer referred to as a "cocoon" around the government, that you're afraid to consult with anyone.

HUME: Well, in other words, what he's saying is that if everything you do, even in all the consultations you have with people outside your committee, people outside the government, experts, representatives of very various special interest groups, if they all -- if all of those consultations are forced into the public eye, that what happens is you -- you, in effect, shut down the ability to consult with outside people...

TURLEY: That's right. You create an enormous ...

HUME: ... because nobody wants to do it.

TURLEY: ... chilling effect. Exactly. Breyer is an interesting guy to raise this because he held positions in both the legislative and executive branches that involved highly confidential information.

HUME: Well, he is also interesting to me because he is a Democratic appointee, and one would expect in a case of this kind, he might have some sympathies against the government. He seems not to, in your judgment?

TURLEY: Well, that -- I think that's true. That he seemed to be very concerned about the argument here, the argument raised by the opponents to vice president. And in the same fashion, Stephens, who's associated with a Democratic or left wing of the court, also raised serious questions about the arguments by these groups.

Conversely, you had people like O'Connor (search) and Kennedy (search), and most importantly Suter (search), who are raising strong procedural questions.

HUME: You mean about how the cases got here.

TURLEY: Right, as was Ginsberg. That is, all these justices did not believe necessarily that the Justice Department brought this case up in the right way.

HUME: Up to the Supreme Court?

TURLEY: That's right.

HUME: In other words, that they didn't -- that they didn't wait for it to be ripe for the court? Is that the idea?

TURLEY: That's right. The courts of appeals here did not rule against Vice President Cheney.

HUME: You mean it didn't rule against him in a final way or it didn't rule against him...

TURLEY: On the merits. On the merits. Basically what the court of appeals said was that we don't have jurisdiction. You've brought this up in the wrong way. Either you waited too long in appealing one order or you went too soon in appealing some other orders.

And what they said is go back to the district court and get this procedurally right. That is the live torpedo in the water here. There may be as many as four justices, from listening to this tape, that are somewhat uncomfortable with the procedure...

HUME: Well, if that were to happen, then that would mean it would go to the district court, it would still be -- it would have to be reargued?

TURLEY: Well, what the government probably should have done, quite frankly, is waited a little bit and made formal privilege assertions as to specific...

HUME: The government is not really claiming executive privilege here, is it?

TURLEY: It's coming up on a very broad separation of powers (search) claim.

HUME: All right. Now, let's assume it has to go back to the lower court. Can it come back up through the court system and back to the Supreme Court on the merits, if the government loses?

TURLEY: Absolutely. And actually, Breyer said something quite interesting. He said sometimes it's not enough to be right. Sometimes you have to be procedurally right.

HUME: So, it seems to me, from what you're saying, this could go either way. One that it goes back on procedure or it sounds to you the government otherwise wins?

TURLEY: I think they had a lot of support on the merits here and they've some very strong argument. But...

HUME: Jonathan Turley...


HUME: Good to have you.

TURLEY: Thanks, Brit.

HUME: Sorry to cut you off here, time intrudes.

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