Vice (2 page)

The Government Accountability Office is often described as the watchdog of the federal government. The term particularly suits the organization under Walker's leadership. He tells reporters he represents 535 clients: all the members of the United States Congress. Reports issued by the agency are the gold standard of nonpartisan government audits. Walker has undertaken his own speaking tours, delivering grim, statistically grounded warnings about the
federal deficit
,
Social Security
, and the fiscal irresponsibility of the Bush
tax cuts
. Short, bald, always in a business suit, and speaking with actuarial certitude in a Jim Lehrer monotone, David Walker is as unflappable as Dick Cheney. When he took up Henry Waxman's request, the government's watchdog was challenging Dick
Cheney's attack dog
—
David Addington
.

Addington is an authoritarian Republican, who began his career at the CIA after graduating from Duke Law School. He joined the minority staff of the
House Intelligence Committee
in the eighties, where he connected with ranking minority member Dick Cheney. When President George H. W. Bush appointed Cheney secretary of defense in 1989, Cheney took Addington along with him. He is a distinct breed of lawyer, who like Attorney General
Alberto Gonzales
seems to believe that his first responsibility is to make the law work for his client. Since 2001, Addington's sole client has been Dick Cheney. Addington was Dick Cheney's staff legal counsel—until Scooter Libby was indicted and Addington replaced him as the VP's chief of staff. David Addington is as private as David Walker is public.

Addington is also a proponent of the
unitary executive
, an extravagant vision of the presidency that would allow the president to reinterpret or ignore laws passed by Congress, particularly in times of war. Like his boss, David Addington is a man on a mission to expand the power of the executive. He found, or created, an opportunity to do so in the National Energy Policy Development Group. The group should have been subject to FACA, the
Federal Advisory Committees Act. FACA
requires transparency when the government allows private parties to shape public policy. Addington devised a scheme to circumvent FACA and eliminate the transparency that Dick Cheney considers an intrusion into his business: Any time a group of
lobbyists
would sit down to create public policy, at least one government employee would be present. It was as bold as René Magritte's near-photographic representation of a pipe over the inscription
ceci n'est pas une pipe
—"this is not a pipe." Fifteen oil industry lobbyists meet in the Executive Office Building and one midlevel bureaucrat from the Department of Energy steps into the room—and voilà:
ceci n'estpas une foule de lobbyists.
Because one government employee sat in with every group of lobbyists, a committee of outside advisers was not a committee of outside advisers. The vice president would chair the entire working group, creating a penumbra of executive privilege, a second mechanism to keep the process closed. "The whole thing was designed so that the presence of a government employee at a meeting could keep the Congress out," says a congressional staff lawyer. It was also designed to avoid press scrutiny.

For
Paul O'Neill
, the first treasury secretary in the
Bush-Cheney administration
, the energy group's structure was a warning of the
insularity of
a White House in which Dick Cheney served as co-president. O'Neill is a former
Alcoa
CEO who had worked in the administrations of Nixon, Ford, and the first President Bush. His experience taught him that working groups perform best when government officials are encouraged to mix it up with experts from private industry—and when there was nothing to hide from the press and the public, unless
national security
issues were discussed. Cheney and Addington had created a task force exclusively staffed by government employees, so they were not subject to the federal transparency statute. But lined up outside the door were the "nonfederal stakeholders" actually making the policy: energy industry executives and lobbyists presenting detailed energy policy papers. It was all give and no take. According to O'Neill, that's the way Cheney wanted it. No transparency. No accountability. Five years at Halliburton had made the vice president an energy expert in his own right. If he didn't know the answer, he knew who did. In Ron Suskind's
The Price of Loyalty,
O'Neill says Cheney frequently complained about information released in the name of open government being used against you by "political enemies."

To Dick Cheney, the political enemy was a persistent congressman from Los Angeles. Henry Waxman was one of the reform Democrats elected to Congress in 1974, three months after the resignation of
Richard Nixon
. During Cheney's nine years in the House, Waxman served in the party that dominated Congress. When the Republicans won control of the House in 1994, Waxman adapted to minority status. As the ranking minority member of the
House Government Reform Committee
, he funds and directs a special investigations team focused on fraud, waste, and conflicts of interest. The French daily
he Monde
described Waxman as
"l'Eliot Ness du Congrès."
In the summer of 2001, Waxman turned his attention to Cheney's energy task force. Waxman and
John Dingell
, a Michigan Democrat who has served in the House since 1955, sent the vice president a formal request for the names of participants in the energy group meetings and their working notes. Cheney adviser Mary Matalin was contemptuous, accusing Waxman of engaging in a "politics of destruction"—perhaps a bit excessive considering that Waxman was requesting information regarding the vice president's compliance with a federal law.

When the vice president refused to turn over the names, Waxman and Dingell asked the
GAO
to get the list. David Walker made an initial request and received a firm no from David Addington. When Walker sent a demand letter, Addington again refused, even though Walker had scaled back his request—"out of respect to the vice president." Waxman and Dingell wanted both the names of participants and notes from the meetings; Walker was asking only for a list of the private parties who met with Cheney and the energy task force. On July 26, 2001,
ABC
's
Night-line
anchor
Ted Koppel
asked Cheney about meetings with his "pals" from the oil business. "I think it's going to have to be resolved in court, and I think that's perfectly appropriate," Cheney said. "I think, in fact, this is the first time the GAO has ever issued a so-called demand letter to a president/vice president. I'm a duly elected constitutional officer. The idea that any member of Congress can demand from me a list of everybody I meet with and what they say strikes me as—as inappropriate, and not in keeping with the Constitution." The vice president was deftly turning a request for records into a constitutional struggle between the legislative and executive branches. Cheney also used another
Nightline
interview to shut down any prospect of negotiating with Congress, telling Koppel the dispute would have to be resolved in court "unless [Waxman] decides he wants to back off."

Walker prepared to file suit, then put his plans on hold after the September 11 attacks and the war in Afghanistan. Cheney stayed in the fight, turning up the heat on
Fox News
, the media outlet where he feels most at home. "They've demanded of me that I give Henry Waxman a list of everybody I met with, of everything that was discussed, any advice that was revealed, notes and minutes of those meetings," Cheney said in a January 2002 Fox News interview. Not only was Cheney personalizing the fight, he was lying—as was his press flack Matalin, who continued to voice the same complaint long after Walker scaled back his request and was asking for only the names and schedules of private parties who participated in the process of drafting energy policy.

"What I object to," Cheney told Fox anchor
Tony Snow
(who would become Bush's mouthpiece four years later when the administration was in free fall), "and what the president's objected to, and what we've told the GAO we won't do, is make it impossible for me or future vice presidents to ever have a conversation in confidence with anybody without having, ultimately, to tell a member of Congress what we talked about and what was said. You just cannot accept that proposition without putting a chill over the ability of the president and the vice president to receive unvarnished advice."

"A bogus, specious, absurd argument," says
Bruce Fein
during an early morning interview at the Washington, D.C., University Club. Fein is a constitutional lawyer who worked in the Reagan administration and also worked closely with Cheney on the Iran-Contra Committee when Cheney was in the House. "I would worry about giving advice to the vice president because it would leak out? That's how you make money in this town. You want it to get out." Fein is one of a growing number of conservative Republicans alarmed by the Bush-Cheney administration's contempt for the Constitution evident in unauthorized
wiretapping
, the suspension of
habeas corpus
, and using presidential signing statements to ignore laws passed by Congress. He wonders where they came up with the idea that
executive privilege
could be used to protect people speaking to the president. "The president himself can waive privilege any time he wants to," Fein says. "So how are the advisers protected?"

Executive privilege is an established legal doctrine that allows a member of the executive branch to withhold information to protect national security or the functioning of the executive branch. Fein, who earns his living arguing constitutional issues in federal court, is unconvinced by the administration's novel privilege argument—probably because he spends too much time reading Hobbes,
John Stuart Mill
, and the Federalist Papers, the latter quoted at length over the course of a long interview. The vice president's privilege argument is so novel that its antecedents won't be found in any of these foundational texts. Yet, it was clearly articulated in a White House press conference by Zern Jenner twenty-six years earlier:

A President has to have complete candor and objectivity from those who assist him. Otherwise he is not going to explore all the alternatives and consequences of a decision before he makes it, and he's going to end up making some bad decisions. Now if the President's advisers can't be sure that what they say to him will be confidential, they're not going to deal straight with him. People just don't work that way. When they know they're speaking for the public record, they shade the truth because they worry about how their statements will appear.

If Zern Jenner's name is not familiar, it's because Lynne Cheney's novel
Executive Privilege,
in which he appears as president, was not a big seller. President Jenner is a character informed by Dick Cheney's brief time in Gerald Ford's White House. Confidentiality and executive privilege were issues that Cheney had been pondering since the Ford administration ended in 1976.

With Cheney refusing to budge, David Walker sued him in February 2002. It was the first time in its eighty-year history that the GAO had sued an elected official. "They had
Ted Olson
appear in district court to represent the vice president," says one lawyer close to the case. "Ted Olson is the solicitor general. He's their Supreme Court guy. He doesn't get involved at the district court level." Olson's appearance, and Cheney's overheated rhetoric, brought enormous pressure to bear on the judge,
John Bates
, who had been on the federal bench for less than a year. Bates, a Bush appointee who had worked for Special Prosecutor
Ken Starr
when he was investigating Bill Clinton, ruled that the GAO had no grounds to sue because there had been no vote by a congressional committee to request or subpoena the documents.

Bates's ruling creates a legislative catch-22 for Democrats. By House rules, all committee chairs are members of the majority party. And all committees reflect the partisan balance of the House. That Republican committee chairs refuse to issue subpoenas to the White House is not an overstatement. Through the sixth year of the Bush-Cheney presidency, despite regular reports of corruption, leaks, and nearly criminal incompetence, the lead oversight committee in the House has issued a total of five subpoenas regarding the White House and the Republican Party. During the eight years Clinton was in office, the same committee issued more than 1,052 subpoenas.

Walker did not appeal, citing the cost of a protracted court fight. He tried to contain the damage, telling reporters that Judge Bates's ruling applied only to the specifics of this case. Cheney knows better—as do serious students of the presidency and Congress.
Brookings Institution
congressional scholar
Thomas Mann
sees the decision as a big win for the Bush-Cheney administration and a big loss for the Congress.

"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," Mann 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 presidency."

Not only the presidency—the
vice presidency
. This was a decisive win for the vice president. He never revealed his list of contacts, and his constitutional power was expanded. A political consultant who worked in the George H. W. Bush administration says presidents will always fight to protect their memoranda. "But these guys believe that any time you can roll back the legislative branch, you do it. And they get away with it." Bruce Fein takes it further: "Now they have a precedent they can hold over Congress's head. Like a loaded gun. Forever."

So what was Cheney hiding?

"This was not about national security," says
Tom Fitton
, president of
Judicial Watch
, a conservative public-interest law firm that spent much of the 1990s suing the Clinton administration. "This was about an undersecretary talking to a lobbyist." In Judicial Watch's law library, Fitton lays a stack of files on the table. Judicial Watch lawyers used a back door approach to obtain some of the energy task force documents. They sent
Freedom of Information Act
requests to the federal agencies that worked with Cheney's energy group. The president and vice president are exempt from FOIA, but federal agencies are required by law to open their file cabinets to the public and press. When the agencies—backed by Attorney General
John Ashcroft
's blanket promise of legal defense—refused to turn over any documents, Judicial Watch sued, and prevailed. (As did the
Natural Resources Defense Council
. Because of the similar demands, the two suits were consolidated.) The only public documents related to Cheney's energy group, other than those leaked to reporters, were obtained by Judicial Watch and the NRDC. It required two years of litigation—enough time to get past the 2002 elections—and an order from a federal judge to force the release of the records. Yet only a fraction of the task force records were released, as most are under the control of the
OVP—the Office of the Vice President
.