Walker v. Cheney: Statutory and Constitutional Issues Arising From the General Accounting Office's Suit Against the Vice President
Report for Congress
Walker v. Cheney: Statutory and Constitutional
Issues Arising From the General Accounting
Office’s Suit Against the Vice President
May 1, 2002
American Law Division
Congressional Research Service ˜ The Library of Congress
Walker v. Cheney: Statutory and Constitutional Issues
Arising From the General Accounting Office’s Suit
Against the Vice President
On January 29, 2001, President Bush established the National Energy Policy
Development Group (NEPDG), with Vice President Cheney serving as Chairman.
Along with the Vice President, the NEPDG consisted of six executive department
heads, two agency heads, and various other federal officers. The NEPDG was tasked
with developing a national energy policy “designed to help the private sector, and
government at all levels, promote dependable, affordable, and environmentally sound
production and distribution of energy for the future.”
Based on reports that meetings of the NEPDG included “exclusive groups of
non-governmental participants,” Representative Waxman and Representative Dingell
requested information from the Administration regarding the operations of the task
force. Representatives Waxman and Dingell also wrote to the General Accounting
Office (GAO), requesting that it initiate an investigation regarding the NEPDG’s
activities. Subsequent to initiating its investigation, GAO requested information from
the Vice President regarding the names and titles of individuals present at any
NEPDG meetings, including any non-governmental participants, as well as
information pertaining to the purpose and agenda of the meetings, the process by
which the NEPDG determined who would be invited to such meetings, and any
minutes or notes produced. The Vice President refused to provide the requested
information, asserting that GAO did not possess the authority to investigate the
activities of the NEPDG. The Vice President further argued that GAO’s request
exceeded constitutional boundaries, even if authorized by statute.
After several attempts to obtain the requested information were unsuccessful,
GAO invoked its authority under 31 U.S.C. §716, which enables the Comptroller
General to issue a demand letter requesting the release of relevant records and,
ultimately, to sue for their production by a noncomplying agency. GAO issued its
demand letter on July 18, 2001, and, on August 17, 2001, submitted a report to
Congress declaring that the Vice President had persisted in his refusal to turn over
the information. After subsequent attempts to obtain the requested records were
likewise unsuccessful, GAO filed suit to enforce its asserted statutory right of access
to the requested NEPDG records on February 22, 2002.
The Comptroller General’s suit marks the first time GAO has exercised its
authority to sue an Executive Branch entity in an effort to obtain information
pursuant to 31 U.S.C. §716. Accordingly, novel questions have been raised
concerning the scope of GAO’s authority to investigate and compel information from
Executive Branch entities such as the NEPDG. Likewise, there are also significant
constitutional issues at play regarding the delegation of investigative and access
enforcement authority to GAO by Congress, as well as the applicability of the
presidential communications privilege to the information at issue.
Overview of the Dispute........................................1
Congressional Delegation of Investigative Authority..............8
Walker v. Cheney: Statutory and
Constitutional Issues Arising From the
General Accounting Office’s Suit Against the
Overview of the Dispute
On January 29, 2001, President Bush established the National Energy Policy1
Development Group (NEPDG) via Presidential Memorandum. President Bush
tasked the NEPDG with developing a national energy policy “designed to help the
private sector, and government at all levels, promote dependable, affordable, and
environmentally sound production and distribution of energy for the future.”2 The
President’s memorandum directed the Vice President to serve as chair, with
membership extended to the Secretary of the Treasury, the Secretary of the Interior,
the Secretary of Agriculture, the Secretary of Commerce, the Secretary of
Transportation, the Secretary of Energy, as well as several other federal officers. The
memorandum also directed the Department of Energy to make funds available to the
NEPDG to cover the costs of support staff.
The memorandum established that the NEPDG’s functions were to “gather
information, deliberate, and...make recommendations to the President.” The
memorandum further called for the NEPDG to submit to the President a report
“setting forth a recommended national energy policy designed to help the private
sector, and as necessary and appropriate State and local governments, promote
dependable, affordable, and environmentally sound production and distribution of
energy for the future.” The NEPDG issued its report on May 16, 2001, the provisions3
of which were approved as the “National Energy Policy” by the President.
On April 19, 2001, Representative Waxman and Representative Dingell wrote
to Andrew Lundquist, executive director of the NEPDG, requesting information
pertaining to the operations of the task force. Representatives Waxman and Dingell
also wrote to GAO, requesting that it initiate an investigation regarding the NEPDG’s
activities, based upon reports that task force meetings included “exclusive groups of
1Presidential Memorandum, National Energy Policy Development Group, January 29, 2001.
3Letter from Vice President Cheney to the House of Representatives, August 2, 2001. All
correspondence referred to herein may be accessed at:
http://www.house.gov/ reform/min/inve s_energy/ energy_cheney.htm.
non-governmental participants.”4 Subsequent to initiating its investigation, GAO
requested information from the Vice President regarding the names and titles of
individuals present at any NEPDG meetings, including any non-governmental
participants, as well as information pertaining to the purpose and agenda of the
meetings, the process by which the NEPDG determined who would be invited to
such meetings, and whether minutes or notes were kept.5 After several attempts to
obtain the requested information were unsuccessful, GAO issued a demand letter on
July 18, 2001, pursuant to 31 U.S.C. §716(b),6 requesting the aforementioned
records, including copies of the minutes and notes of the meetings, as well as any
information presented by private sector attendees.7
On August 17, 2001, GAO submitted a report to Congress under 31 U.S.C.
§716(b), declaring that the Vice President had persisted in his refusal to turn over the
requested information.8 In its report, GAO stated that it was withdrawing its request
for copies of minutes, notes, and information presented by private individuals “as a
matter of comity” and was seeking documents regarding: (1) the names of those
present at NEPDG meetings; (2) the names of the NEPDG’s professional support
staff; (3) the names of those with whom NEPDG members and support staff met to
gather information for the National Energy policy, including the date, subject, and
location of such meetings, and; (4) what direct and indirect costs were incurred in
developing the National Energy Policy. While this report to Congress specifically
identified the requested documents as relating to the four categories listed above, it
should be noted that GAO’s “scaling back” of its request related only to its prior
demand for the minutes and notes of NEPDG meetings with outside interests. As
such, it would appear that the request in the July 18 demand letter for information
pertaining to the purpose and agenda of the NEPDG meetings, as well as the process
by which the NEPDG determined who would be invited to such meetings, was still
in effect. Subsequent attempts to obtain the requested records were likewise
unsuccessful, prompting the Comptroller General to announce on January 30, 2002,
that GAO would file suit under 31 U.S.C. §716(b)(2) to enforce its asserted statutory
right of access to the requested NEPDG records.9
GAO filed a complaint for declaratory and injunctive relief on February 22,
2002.10 On April 11, 2002, GAO filed a motion for summary judgment. The Vice
President’s formal response is due to be filed by May 21, 2002. Informally, the Vice
4Letter from Reps. Waxman and Dingell to GAO, April 19, 2001.
5For detailed chronologies of interactions between the Office of the Vice President and
GAO, see, Letter from Vice President Cheney to the House of Representatives, August 2,
6See n.22 and accompanying text, infra, for a discussion of 31 U.S.C. §716.
7GAO Demand Letter to Vice President Cheney, July 18, 2001.
8GAO Report on Vice President Cheney's Refusal to Release Records, August 17, 2001.
9Decision of the Comptroller General Concerning NEPDG Litigation, January 30, 2002.
10GAO Statement Concerning Litigation, February 22, 2002. Walker v. Cheney, Complaint
for Declaratory and Injunctive Relief, Case No. 1:02CV00340 (D.D.C. February 22, 2002).
President has asserted that GAO’s current request exceeds its statutory authority and
unconstitutionally intrudes upon the prerogatives of the Executive Branch.
Accordingly, characterization of the Vice President’s position, as outlined below, is
based on such pre-litigation statements by the Administration.
The Comptroller General’s suit marks the first time GAO has exercised its
authority to sue an Executive Branch entity in an effort to obtain information
pursuant to 31 U.S.C. §716. Accordingly, novel questions have been raised regarding
the scope of GAO’s authority to investigate and sue Executive Branch entities.
GAO’s Investigative Authority.
GAO’s primary audit authority is derived from section 312(a) of the Budget and
Accounting Act of 1921.11 Currently codified at 31 U.S.C. §712, this provision, in
pertinent part, directs the Comptroller General to “investigate all matters related to
the receipt, disbursement, and use of public money.”12 Additionally, 31 U.S.C.
§717(b) empowers the Comptroller General to “evaluate the results of a program or
activity the Government carries out under existing law.” Based on this authority,
GAO has requested access to the aforementioned information regarding the NEPDG
on the grounds that both §712 and §717(b) authorize such an inquiry. In response, the
Vice President has argued that neither provision imbues the GAO with authority
sufficient to support its position. The Vice President’s refusal to acknowledge GAO’s
asserted authority under these provisions has led to GAO’s lawsuit, necessitating an
analysis of the provisions of §712 and §717.
Regarding §712, the Vice President has asserted that it merely provides GAO
with the authority to conduct an audit of the costs incurred by the NEPDG, and does
not provide any basis for its requests for such information as the names of NEPDG
meeting attendees. While this interpretation is plausible under the plain terms of the
statute, it should be noted that the express language of §712, viewed in relation to
relevant legislative history, indicates that Congress intention that GAO serve a broad
role. Specifically, §712(1) states that the Comptroller General is to “investigate all
matters related to the receipt, disbursement and use of public money.” This language,
as enacted in 1921, was designed, according to one member, to ensure “that the
Comptroller General shall concern himself not simply with taking in and paying out
money from an accountant’s point of view, but that he shall also concern himself
with the question as to whether it is economically and efficiently applied.”13 This
conception was reiterated in 1980:
“[T]he Budget and Accounting Act of 1921 provides sufficiently broad
and comprehensive authority to investigate ...‘all matters relating to the
receipt, disbursement, and application of public funds...’ This authority
11Pub. L. No. 67-13; 42 Stat. 20, 25-26 (1921).
1231 U.S.C. §712(1).
1361 Cong. Rec. 1090 (May 5, 1921) (Statement of Rep. Luce).
extends not only to accounting and financial auditing but also to
administration, operations, and program evaluation. Succeeding legislation
affecting GAO’s authority generally has served to make mandatory, explicit,
and emphatic the requirement for GAO to assess the efficiency, economy, and
effectiveness of program operation by the Executive Branch.”14
Belying these statement to some degree, GAO did not utilize its full statutory
authority initially, serving Congress throughout the 1920's and 1930's primarily by
auditing vouchers to ensure the accuracy of payments.15 However, Congress has
explained that governmental expansion has necessarily increased its reliance on GAO
to provide it with “essential information about federal programs,” particularly in light
of its “statutory authority to participate directly in the oversight process as an
independent congressional entity.”16
Turning to §717(b), the Vice President has argued against its application on the
basis that it only authorizes the Comptroller General to “evaluate the results of a
program or activity the Government carries out under existing law.”17 Specifically,
in light of the fact that the NEPDG was created by a presidential order, as opposed
to statute, the Vice President maintains that its activities do not constitute a program
or activity carried out under existing law for the purposes of §717.18 In response,
GAO has stated that the term “existing law,” absent any qualifier or limitation, refers
to all sources of law.
While both positions are tenable, prior GAO practice could be interpreted as
supporting the notion that its statutory authority extends to entities such as the
NEPDG. In particular, GAO has previously investigated similarly situated entities,
such as the White House China Trade Relations Group and the President’s Task
Force on Health Care Reform, reportedly receiving sufficient responses to its
inquiries.19 Furthermore, in 1980 when enacting the enforcement mechanisms of 31
U.S.C. §716, Congress specifically contemplated GAO’s authority to investigate
pertinent activities of the President and his advisers without questioning its
underlying authority to engage in such activity, indicating an assumption on the part
14S. Rep. No. 96-570, at 2, 96th Cong., 2nd Sess. (1980). See also, H. Rep. No. 96-425, 96th
Cong., 1st Sess. 2 (1979) (stating that the authority vested in the Comptroller General by the
Budget and Accounting Act of 1921 “extends not only to accounting and financial auditing
but also to related aspects of administration, operations and program evaluation”).
15Harry S. Havens, The Evolution of the General Accounting Office: From Voucher Audits
to Program Evaluations, GAP/OP-2-HP, January 1990.
16S. Rep. No. 96-570, 96th Cong., 2nd Sess. 2 (1980); reprinted in 1980 U.S.C.C.A.N. 732.
17 Letter from Vice President Cheney to the House of Representatives, August 2, 2001.
19See, Federal Lobbying: China Permanent Normal Trade Relations (PNTR) Lobbying
Activities, GAO/GGD-00-199R, September 29, 2000; Cost of Health Care Task Force
Related Activities, GAO/T-GGD-95-114, March 14, 1995; GAO/GGD-96-114, March 14,
of Congress that such authority was preexisting.20 This consistent assertion of
authority by GAO, coupled with Congress’ implicit acknowledgment, would likely
be given some degree of weight by a reviewing court.21
GAO Access Enforcement Authority.
Under 31 U.S.C. §716, federal agencies are directed to provide the Comptroller
General with information regarding the duties, powers, activities, organization, and
financial transactions of the agency.22 To effectuate this directive and buttress GAO’s
investigative power, §716 also imbues the Comptroller General with the ability to
demand the release of relevant records and to sue for their production by a
noncomplying agency. Specifically, under §716(b)(1), the Comptroller General may
make a written request to the head of an agency that has failed to make records
available. The Comptroller General’s letter must state the authority for inspecting the
records and the reason for inspection. Upon receipt of such a letter, the head of the
agency is afforded 20 days to respond, describing the records withheld and the
reasons therefore. In the event that the requested records are not released for
inspection within the 20 day response period, the Comptroller General may file a
report with the President, the Director of OMB, the Attorney General, the head of the
relevant agency, and Congress. Twenty days after the filing of the report, the
Comptroller General is authorized to file suit in the district court of the United States
for the District of Columbia to require the head of the agency to produce the
This authority is tempered, however, by §716(d) which enables the Executive
Branch to preclude a suit by the GAO on certain grounds. In particular, §716(d)(1)
prevents the Comptroller General from bringing suit if the requested records pertain
to matters designated as foreign intelligence or counterintelligence activities by the
President, or in instances where the records are statutorily exempted from disclosure.
Additionally, the President or Director of the OMB may preclude a suit under
§716(d)(1)(C) by certifying to the Comptroller General and Congress that a record
may be withheld under 5 U.S.C. §552(b)(5) or 5 U.S.C. §552(b)(7) of the Freedom
of Information Act and that “disclosure reasonably could be expected to impair
20See n.33 and accompanying text, infra.
21It might be argued that GAO’s interpretation of its authority is entitled to deference under
Chevron v. Natural Resources Defense Council, 467 U.S.837 (1984). This point is
especially pertinent in light of Congress’ determination that the Budget and Accounting Act
of 1921 is itself broad enough to justify GAO’s investigatory duties. See n. 7-8 andth
accompanying text, supra. See also, Eli Lilly & Co. v. Staats, 574 F.2d 904, 910 (7 Cir.
1978), cert. denied, 439 U.S. 959 (1978) (noting that GAO access to records was justified
not only by the specific access provision in question, but also by the broad investigatory
powers vested in the Comptroller General). See also, Bowsher v. Merck, 460 U.S. 824
2231 U.S.C. §716(a).
2331 U.S.C. §716(b)(2).
substantially the operations of the Government.”24 In the present case, the President
did not avail himself of the certification provision within the allotted period of time,
thereby enabling the Comptroller General to bring suit under §716(b)(2). It should
be noted, however, that the Administration may nonetheless choose to assert that the
requested information is privileged independent of §716(d)(1)(C).
Based upon the investigatory and enforcement authority outlined above, GAO
maintains that it has authority to bring suit to compel disclosure of the requested
NEPDG records. Conversely, the Administration asserts that the Comptroller General
may not bring suit under §716, arguing (1) that GAO’s lack of investigatory authority
under §712 and §717 prevents an enforcement action, and (2) that neither the Vice
President nor the NEPDG qualify as an agency that may be subjected to such an
The first prong of the Vice President’s argument hinges upon the proper
interpretation of the investigative authority vested in the Comptroller General, as
discussed above. Regarding the second prong of the Vice President’s argument, a
review of the relevant statutory provisions and case law reveals countervailing
principles that could influence the determination of the issue. Chapter 7 of Title 31
appears to define “agency” quite broadly, to include a “department, agency, or
instrumentality of the United States Government” or the District of Columbia,
expressly excluding the legislative branch and the Supreme Court.26
In Franklin v. Massachusetts, the Supreme Court determined that the term
“agency,” as employed in the Administrative Procedure Act (APA), could not be
construed to include the President.27 Specifically at issue was whether provisions of
the APA authorizing review of final agency action applied to the presidential action
taken pursuant to statute.28 The Court noted that while the APA exempts Congress,
the courts, territories of the United States and the District of Columbia from review,
2431 U.S.C. §716(d)(1)(C). Such a certification must be made by the 20th day after a report
is filed by the Comptroller General under §716(b)(1). Id. Regarding matters that may be
precluded by such a certification, 5 U.S.C. §552(b)(5) pertains to deliberative materials,
while 5 U.S.C. §552(b)(7) relates to records or information compiled for law enforcement
25Letter from Vice President Cheney to the House of Representatives, August 2, 2001. The
Vice President has also stated that GAO may not request NEPDG records based on the fact
that while §717(b)(3) states that an evaluation may be requested by a “committee of
Congress with jurisdiction over the program or activity,” the current investigation was
initiated at the behest of two individual Congressmen. While a literal reading of §717(b)(3)
would seem to support this position, the Supreme Court rejected an identical argument in
Bowsher v. Merck & Co., 460 U.S. 824, 844 (1983), stating that if the “records sought by
GAO are within the scope of the access-to-records provisions, the fact that the Comptroller
General’s request had its origin in the requests of Congressmen or that the GAO reported
the data to Congress does not vitiate its authority.” It should also be noted that §717(b)(1)
empowers the Comptroller General to conduct an investigation on his own initiative.
2631 U.S.C. §701(1); 31 U.S.C. §717(a).
27Franklin v. Massachusetts, 505 U.S. 788 (1992).
28Id. at 801.
no express provision removes the President from its ambit. Despite the negative
implication that presidential actions are covered under the APA arising from the
express preemption of the other bodies, the Court held the statute inapplicable.
Explaining this decision, the Court stated that “out of respect for the separation of
powers and the unique constitutional position of the President,” it “would require an
express statement by Congress before assuming it intended the President’s
performance of his statutory duties to be reviewed” under the APA.29 Given the
status of the Vice President as a constitutional officer and the proximity of the
NEPDG to the President, it is possible that a reviewing court would likewise require
an explicit statement from Congress prior to acknowledging GAO’s authority in the
It is important to note, however, that the legislative history surrounding the
enactment of §716 indicates that Congress intended for the President and his
principal advisers to be subject to suit, potentially mitigating the effect of the Court’s
decision in Franklin.30 Discussing the ability of the President or the Director of
OMB to prevent a suit by the Comptroller General, the Senate Report accompanying
the General Accounting Office Act of 198031 states:
“[W]ith regard to enforcement actions at the Presidential level,
certifications provided for under section102(d)(3) [currently 31 U.S.C. §716
(d)(1)(C)] of the bill are intended to authorize the President and the Director
of the Office of Management and Budget to preclude a suit by the
Comptroller General against the President and his principal advisers and
assistants, and against those units within the Executive Office of the
President whose sole function is to advise and assist the President, for
information which would not be available under the Freedom of Information
From this statement, it appears that Congress intended to imbue the
Comptroller General with the authority to file suit against the President and his
principal advisers. Specifically, it seems that there would be no reason for Congress
to provide the certification provision unless the President and his advisers were
covered. Given this apparent intention, it would appear that Congress conceived of
the term “agency,” as used in Chapter 7 of Title 31, as necessarily including the
President and his principal advisers. Furthermore, the structure of the certification
provision itself contemplates high level access by GAO, given that it enables the
President to prevent access to deliberative information that could “impair
substantially the operations of the Government.”33 Thus, while the President and his
29Id. at 800-801.
30S. Rep. No. 96-570, 96th Cong., 2nd Sess. (1980); reprinted in 1980 U.S.C.C.A.N. 732.
31Pub. L. 96-226, 96th Cong., 2nd Sess. (1980).
32S. Rep. No. 96-570, at 8, 1980 U.S.C.C.A.N. at 739.
3331 U.S.C. §716(d)(1)(C). According to the Senate Report, the certification provision
“represents a compromise” to objections by the Executive Branch that the enforcement
authority contained in §716 could endanger the confidentiality of highly sensitive
advisors are not expressly included in the aforementioned definitions, it is possible
that a reviewing court would find the structure and legislative history of §716
sufficiently explicit to allow suit against the Vice President or the NEPDG in the
While the aforementioned statutory arguments have been cited by both parties
as being dispositive of the current controversy, the Vice President has also made
general statements indicating that the Administration views its position as necessary
to protect the constitutional prerogatives of the Executive Branch. While there has
been no formal articulation of the basis for a constitutional challenge, the Vice
President and other officials in the Bush Administration have made general
statements implicating congressional authority to delegate investigative and access
enforcement authority to GAO, as well as the doctrine of executive privilege.
Congressional Delegation of Investigative Authority.
To properly elucidate an analysis of the ability of Congress to delegate
investigatory and subpoena enforcement authority to the GAO, it is first necessary
to consider the scope of Congress’ oversight authority.
While there is no definitive constitutional or statutory provision imbuing
Congress with investigative authority, a long line of Supreme Court precedent
establishes Congress’ power to engage in oversight and investigation of any matter
related to its legislative function.34 Unless there is a countervailing constitutional
privilege or a self-imposed statutory restriction upon its authority, Congress
possesses the essentially unfettered power to compel necessary information from
executive agencies, private persons and organizations. Even though the Constitution
does not contain any express provision authorizing Congress to conduct
investigations and take testimony in support of its legislative functions, the Supreme
Court has held conclusively that congressional investigatory power is so essential that
it is implicit in the general vesting of legislative power in the Congress.35
In Eastland v. United States Serviceman’s Fund, for instance, the Court stated
that the “scope of its power of inquiry...is as penetrating and far-reaching as the
information. S. Rep. No. 96-570 at 6-8, 1980 U.S.C.C.A.N. at 737-739.
34For a thorough analysis of legal principles governing congressional oversight, See Morton
Rosenberg, Investigative Oversight: An Introduction to the Law, Practice and Procedure of
Congressional Inquiry, Congressional Research Service Report No. 95-464A, April 7, 1995.
35E.g., McGrain v. Daugherty, 272 U.S. 135 (1927); Watkins v. United States, 354 U.S. 178
(1957); Barenblatt v. United States, 360 U.S. 109 (1959); Eastland v. United States
Servicemen’s Fund, 421 U.S. 491 (1975); Nixon v. Administrator of General Services, 433
U.S. 425 (1977); See also, United States v. A.T.T., 551 F.2d 384 (D.C. Cir. 1976) and 567
F.2d 1212 (D.C. Cir. 1977).
potential power to enact and appropriate under the Constitution.”36 Also, in Watkins
v. United States, the Court emphasized that the “power of the Congress to conduct
investigations is inherent in the legislative process. That power is broad. It
encompasses inquiries concerning the administration of existing laws as well as
proposed or possibly needed statutes.”37 The Court further stressed that Congress’
power to investigate is at its peak when focusing on alleged waste, fraud, abuse, or
maladministration within a government department. Specifically, the Court explained
that the investigative power “comprehends probes into departments of the federal
government to expose corruption, inefficiency, or waste.”38 The Court went on to
note that the first Congresses held “inquiries dealing with suspected corruption or
mismanagement of government officials.”39 Given these factors, the Court recognized
“the power of the Congress to inquire into and publicize corruption,
maladministration, or inefficiencies in the agencies of Government.”40
As a corollary to this accepted oversight authority, the Supreme Court has
likewise determined that the “[i]ssuance of subpoenas...has long been held to be a
legitimate use by Congress of its power to investigate.”41 In particular, the Court has
repeatedly cited the principle that:
“A legislative body cannot legislate wisely or effectively in the absence
of information respecting the conditions which the legislation is intended to
affect or change; and where the legislative body does not itself possess the
requisite information – which not infrequently is true – recourse must be had
to others who do possess it. Experience has taught that mere requests for such
information often are unavailing, and also that information which is
volunteered is not always accurate or complete; so some means of
compulsion are essential to obtain what is needed. All this was true before
and when the Constitution was framed and adopted. In that period the power
of inquiry – with enforcing process – was regarded and employed as a
necessary and appropriate attribute of the power to legislate--indeed, was
treated as inhering in it.”42
Given that these cases establish Congress’ expansive authority to investigate and
compel information from the Executive Branch, the question turns to whether this
power may be delegated to an agent of the legislative branch. It is well established
that Congress possesses the fundamental ability to delegate investigative authority
to an entity such as GAO. In Buckley v. Valeo, for instance, the Supreme Court, while
invalidating certain functions of the Federal Election Commission on Appointments
36421 U.S. at 504, n. 15 (quoting Barenblatt, supra, 360 U.S. at 111).
37354 U.S. at 187.
39Id. at 182.
40Id. at 200, n.33.
41Eastland v. United States Servicemen’s Fund, 421 U.S. at 504.
42McGrain v. Daugherty, 273 U.S. at 175; See also, Buckley v. Valeo, 424 U.S. 1, 138
(1976), Eastland v. United States Servicemen’s Fund, 421 U.S. at 504-505.
Clause grounds, stated that “[i]nsofar as the powers confided in the Commission are
essentially of an investigative nature, falling in the same general category as those
powers which Congress might delegate to one of its own committees, there can be
no question that the Commission as presently constituted may exercise them.”43
It is also possible that the Vice President will assert that the initiation of a
lawsuit by GAO to enforce its statutory right of access pursuant to §716 violates the
separation of powers doctrine. This contention would hinge on the argument that the
GAO lawsuit constitutes the execution of the laws of the United States, a power
which is committed solely to the Executive Branch.44
A review of the applicable law indicates that the statutory enforcement scheme
of §716 appears to comport with constitutional requirements. In particular, reviewing
courts have determined that enforcement of a subpoena through judicial process is
not “execution of the laws of the United States” as contemplated for separation of
powers purposes. Such a determination was made in McDonnell Douglas Corp. v.
United States, where the Court of Appeals for the Eighth Circuit addressed a
challenge to the constitutionality of GAO’s access enforcement authority.45 Rejecting
the argument that an enforcement suit by GAO constituted execution of the law in
violation of the separation of powers doctrine, the court stated that GAO’s suit was
“[f]ar from being a case in which the [Comptroller General] brought suit against
[McDonnell Douglas Corporation] for breaching the law, the [Comptroller General],
in this case, was merely seeking information for a legitimate investigative purpose.”46
Further stressing the legitimate investigative nature of GAO’s suit, the court went on
to explain that the issuance of a judicially enforceable subpoena was “necessary to
accomplish” its investigative mission and that a determination to the contrary would
“render meaningless the [Comptroller General’s] role as an investigating arm of
Congress.”47 A similar conclusion was reached by the Court of Appeals for the
Federal Circuit in related case: “[t]he power of the Executive, under the Constitution,
to execute the laws is not involved here. The 1980 Act does not erode the
Executive’s authority.”48 Based on these two appeals court rulings, it is possible that
a reviewing court would uphold GAO’s access enforcement authority in the current
case as it pertains to information sought in aid of GAO’s investigatory duties, as
distinguished from activities constituting “execution of the laws of the United
S t at es.”49
43424 U.S. 1, 137 (1976).
44See Buckley v. Valeo, 424 U.S. at 140-141; Springer v. Philippine Islands, 277 U.S. 189,
45751 F.2d 220 (8th Cir. 1984).
46Id. at 225.
47Id. at 225.
48McDonnell Douglas Corp. v. United States, 754 F.2d 365, 368 (Fed. Cir. 1985).
49It should also be noted that this conclusion adheres, irrespective of the Supreme Court’s
decision in Bowsher v. Synar, 478 U.S. 714 (1986). In Bowsher, the Court addressed the
constitutionality of the Gramm-Rudman Deficit Reduction Act. Under the Act, the
In the event that a reviewing court determined that the weight of the law falls
in GAO’s favor regarding the statutory and constitutional issues discussed above, it
is possible that the Administration may assert that the requested information is
covered by the doctrine of executive privilege.
Just as the Constitution contains no provisions authorizing the investigatory
and oversight functions of Congress, there is likewise no express grant of executive
privilege. However, beginning with President Washington, the Executive Branch has
claimed that the separation of powers doctrine implies that the President possesses
the power to withhold confidential information in the face of legislative and judicial
Politically speaking, it is rare for interbranch disputes over contested
information to reach the courts for a judicial determination on the merits.
Consequently, the existence of a presidential confidentiality privilege was not
judicially established until the Watergate era, when the courts recognized the
presidential confidentiality privilege as an inherent aspect of presidential power.51 In
United States v. Nixon, the Supreme Court addressed a claim of executive privilege
in response to a subpoena issued during a criminal trial to the President at the request
of the Watergate Special Prosecutor. The Supreme Court found a constitutional basis
for the doctrine of executive privilege, noting that “[w]hatever the nature of the
privilege of confidentiality of Presidential communications in the exercise of Article
II powers, the privilege can be said to derive from the supremacy of each branch
Comptroller General was empowered to review deficit estimates from the Office of
Management and Budget and the Congressional Budget Office, and to mandate spending
reductions to meet a specified deficit level. The Court found that the Act imbued the
Comptroller General, an official appointed by the President, but removable by Congress,
with the power to interpret provisions of the Act, and to dictate the means by which the
executive branch implemented budget reduction measures. Id. at 728. The Court determined
that the Comptroller General, a legislative branch officer, was performing the functions of
an executive officer in executing a law passed by Congress, a duty constitutionally
committed to an officer of the executive branch. Id. at 733. This dynamic rendered the Act
unconstitutional, according to the Court, since permitting “the execution of the laws to be
vested in an officer answerable only to Congress would, in practical terms, reserve in
Congress control over the execution of laws” in violation of the separation of powers
doctrine. Id. at 726. As the factors cited by the Court indicate, the scope of the holding in
Bowsher is clearly limited to instances where congressional agents are imbued with the
authority to execute the laws. As such, it seems evident that the ability of GAO to bring suit
pursuant to a “legitimate investigative purpose” is not implicated. McDonnell, 751 F.2d at
50See Morton Rosenberg, Presidential Claims of Executive Privilege: History, Law, Practice
and Recent Developments, Congressional Research Service, Report No. RL30319,
September 21, 1999.
51United States v. Nixon, 418 U.S. 683 (1974); See also, Nixon v. Sirica, 487 F.2d 700 (D.C.
Cir.1973); Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725
(D.C. Cir. 1974); Nixon v. Administrator of Gen. Services., 433 U.S. 425 (1977).
within its own assigned area of constitutional duties."52 The Court went on to explain
that while it considered presidential communications to be "presumptively
privileged," there was no support for the contention that the privilege was absolute,
precluding judicial review whenever asserted, as such a conclusion “would upset the
constitutional balance of a ‘workable government.’”53 In particular, the Court
explained that “when the privilege depends solely on the broad, undifferentiated
claim of public interest in the confidentiality of such conversations, a confrontation
with other values arises. Absent national security secrets we find it difficult to accept
the argument that even the very important interest in confidentiality of Presidential
communications is significantly diminished by production” of materials needed to
enforce criminal statutes.54
Upon determining that a claim of privilege is not absolute, the Court weighed
the President's interest in confidentiality against the judiciary's need for the materials
in a criminal proceeding, stating that it was “necessary to resolve those competing
interests in a manner that preserves the essential functions of each branch."
Concluding this calculus, the Court held that the judicial need for the tapes, as
established by a “demonstrated, specific need for evidence in a pending criminal
trial,” was of greater significance than the President's "generalized interest in
confidentiality...."55 It should be noted that the Court specifically limited the scope
of its decision, stating that it was not concerned with “the balance between the
President’s generalized interest in confidentiality...and congressional demands for
Coupled with related and subsequent decisions, the Court’s decision in Nixon
established the “contours of the presidential communications privilege.”57 Pursuant
to the standards developed in these cases, the President may invoke the privilege
“when asked to produce documents or other materials that reflect presidential
decisionmaking and deliberations and that the President believes should remain
confidential.”58 As noted above, such an invocation renders the requested materials
presumptively privileged, requiring an adequate showing of need to overcome the
claim. This standard was further clarified in In re Sealed Case (hereinafter referred
to as “Espy”), where the Court of Appeals for the District of Columbia Circuit
addressed issues regarding the scope of the privilege, whether and to what extent the
privilege extends to presidential advisers, whether the President must have seen or
52United States v. Nixon, 418 U.S. at 705.
53Id. at 707.
54Id. at 706.
55Id. at 685, 713.
56Id. at 712, n. 19.
57In re Sealed Case (Espy), 121 F.3d 729, 744 (D.C. Cir. 1997).
had knowledge of the material at issue, and the standard of need necessary to
overcome a claim of privilege.59
Espy arose from an Office of Independent Counsel (OIC) investigation
regarding allegations of impropriety by former Secretary of Agriculture Mike Espy.
As part of the investigation, a grand jury issued a subpoena for all documents relating
to a report prepared for the President by the White House Counsel’s Office regarding
the allegations. Regardless of the fact that the President had not viewed any of the
documents underlying the report, he withheld 84 documents on the basis of
“executive/deliberative privilege.” The OIC moved to compel production of the
withheld documents. Subsequent to in camera review, the district court upheld the
claims of privilege forwarded by the President. In its decision, the Court of Appeals
agreed generally with the district court’s determination that the documents in
question were subject to the presidential communications privilege.60 However, the
court vacated and remanded in order to provide the OIC an opportunity to provide a
sufficient justification for its need for certain items of evidence.61
At the outset of its opinion, the court distinguished between the presidential
communications privilege and the deliberative process privilege, noting that while
the former has a constitutional basis in the separation of powers doctrine, the latter
is a common law privilege applicable to the decisionmaking of executive officials
generally.62 The court went on to explain that while both privileges are qualified, the
deliberative process privilege “disappears altogether when there is any reason to
believe government misconduct occurred,” whereas "the presidential
communications privilege is more difficult to surmount," requiring a “focused
demonstration of need, even when there are allegations of misconduct by high level
offi ci al s.” 63
Turning to the question of whether the subpoenaed documents could be claimed
to be privileged even though the President had never viewed them, the court stated
that “the public interest is best served by holding that communications made by
presidential advisers in the course of preparing advice for the President come under
the presidential communications privilege, even when these communications are not
made directly to the President.”64 The court based this conclusion on what it
characterized as “the President’s dependence on presidential advisers and the
inability of the deliberative process privilege to provide advisers with adequate
60Id. at 758.
61Id. at 761-762.
62Id. at 745-746.
63Id. at 746. The deliberative process privilege allows the government to withhold
information that would reveal recommendations and deliberations pertaining to the
formulation of governmental decisions and policies, and does not apply to documents that
merely state or explain a decision made by the government, or material that is purely factual.
Id. at 737.
64Id. at 752.
freedom from the public spotlight,” as well as “the need to provide sufficient elbow
room for advisers to obtain information from all knowledgeable sources.”65 Further
illuminating the scope of the privilege, the court stated that it “must apply both to
communications which these advisers solicited and received from others as well as
those they authored themselves. The privilege must also extend to communications
authored or received in response to a solicitation by members of a presidential
adviser’s staff, since in many instances advisers must rely on their staff to investigate
an issue and formulate the advice to be given to the President.”66
Recognizing that a decision extending the presidential communications privilege
to presidential advisers “could pose a significant risk of expanding to a large swath
of the executive branch a privilege that is bottomed on a recognition of the unique
role of the president,” the court limited the privilege to White House advisers and
staff that are in “operational proximity” to presidential decisionmaking. Specifically,
the court stated that “the privilege should not extend to staff outside the White House
in executive branch agencies. Instead the privilege should apply only to
communications authored or solicited and received by those members of an
immediate White House adviser’s staff who have broad and significant responsibility
for investigating and formulating the advice to be given to the President on the
particular matter to which the communications relate. Only communications at that
level are close enough to the President to be revelatory of his deliberations or to pose
a risk to the candor of his advisers.”67 The court went on to stress that the privilege
was not applicable to information that does not “call ultimately for direct
decisionmaking by the President.”68
While the principles established above are applicable to the current scenario, it
is unclear whether a reviewing court would accept a claim of privilege in the present
case. In particular, it seems evident that the Vice President and the staff of the
NEPDG would qualify as “immediate White House advisers” as conceived of in
Espy.69 To the extent that the Vice President and his staff were engaged in the
“investigation and formulation of advice to be given to the President,” regarding a
national energy policy, a substantial argument could be made that such information
would fall within the ambit of the presidential communications privilege.70
However, it should be noted that in the present instance, any assertion of
privilege would probably be based on a broad claim of public interest in the
65Id. at 751-752.
66Id. at 752. Regarding the standard of need necessary to overcome a claim of privilege, the
court determined that a party must demonstrate that the requested documents are relevant
to the proceeding and cannot be obtained elsewhere with due diligence. Id. at 754-755.
67Id. at 752. “[I]t is ‘operational proximity’ to the President that matters in determining
whether the ‘[t]he President’s confidentiality interest’ is implicated (quoting American Ass’n
of Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898, 910 (D.C. Cir. 1993) (emphasis
68Id. at 752.
69See Espy, 121 F.3d at 752.
confidentiality of the requested material. Specifically, GAO’s current information
request, as outlined in the complaint, is significantly less intrusive than the demands
contained in the initial demand letter.71 Whereas GAO’s original request sought
information that could be regarded as reflective of the deliberative product and
processes of the NEPDG, the complaint as filed seeks:
“[D]ocuments that describe (1) who was present at each of the meetings
conducted by the NEPDG, including the names of the attendees, their titles,
and the office represented; (2) with whom the Vice President as chair of the
and each of the NEPDG support staff met to gather information for the
proposed national energy policy, including the name, title and office or
clients represented; and the date, purpose, agenda, and location of the
meetings; (3) how the Vice President, the members of the NEPDG, or others
determined who would be invited to the meetings; and (4) the direct and
indirect costs that were incurred in developing the proposed national energy
Accordingly, while it is conceivable that the information requested in the
complaint pertaining to the purpose and agenda of NEPDG meetings with outside
interests and the process by which the NEPDG determined who would be invited to
such meetings could be construed as privileged, there is no indication that the
material is in any way related to the types of information, such as national security
secrets, that the Supreme Court deemed worthy of the highest levels of protection in
Nixon.73 Furthermore, it seems unlikely that the material sought by GAO would be
deemed revelatory of presidential deliberations in light of the fact that it does not
appear to relate to information that would “call ultimately for direct decisionmaking
by the President.”74 Rather, the material sought by GAO appears to encompass
information pertaining to the scope and composition of meetings that were to provide
the basis for the subsequent formulation of recommendations and advice to be
presented to the President regarding the development of a national energy policy.75
Thus, to the extent that GAO’s request does not seek information regarding the direct
deliberations of individuals in “operational proximity” to the President in formulating
policy advice, it would not appear that the concerns voiced by the court in Espy
would be implicated. As such, it is possible that a reviewing court would not accept
a claim of privilege in the case at hand. In this case, much would depend on the
court’s interpretation of the scope of GAO’s request for information.
71See n.5 and accompanying text, supra.
72Walker v. Cheney, Complaint for Declaratory and Injunctive Relief, p.24, Case No.
73See Nixon, 418 U.S. at 706-707.
74Espy, 121 F.2d at 752.
75In particular, Vice President Cheney has stated that the meetings with outside interests
were separate from the NEPDG’s internal deliberations: “[w]e heard from a broad variety
of folks out there, but they were not in the meetings where we put together the policy and
made recommendations to the president.” Joseph Curl, “Cheney Refuses Demand by GAO,
Washington Times, at A1, A16, July 27, 2001.
In light of these factors, it is evident that there are a host of significant statutory
and constitutional issues that may affect the ultimate outcome of Walker v. Cheney.
As noted above, while GAO’s investigatory and access enforcement authority have
a strong historical and statutory basis, there are competing principles of statutory
interpretation that could influence the court’s view of this authority as applied to the
Vice President. Likewise, the aforementioned constitutional issues regarding the
delegation of access enforcement authority to the GAO and the applicability of the
presidential communications privilege to the activities of the NEPDG could prove
to be of substantial significance. Finally, it should also be remembered that the Vice
President has yet to file a response to the GAO’s suit, making it difficult to ascertain
the scope of the issues that will ultimately confront the court. Indeed, it would appear
that the only certainty at this juncture is that the disposition of the current controversy
will have a significant impact on the future of legislative oversight in the