CHENEY CASE

There's something I don't understand about the government's argument in the Cheney task force case heard today at the Supreme Court. (This is not an area of the law that I am very familiar with, so this is a tentative assertion.) If I understood him correctly, Solicitor General Olson argued that:

1. the open records law only applies to policy groups specifically established by executive order to have private citizens on the committee (or, as he put it at the end of the argument, private citizens have to be de jure, not just de facto committee members), and


2. that the courts should presume that executive officials are telling the truth whenever they say that only government employees were members of the committee (as he put it, the courts should employ an "overriding presumption of regularity" when considering executive assertions about the inner workings of such groups)

If I understand the argument correctly, this would mean that all the President has to do is issue an official order establishing a policy group that has only government employees as members, but allow major advisory decisions to be made in subgroups composed of private citizens, and, according to the Solicitor General, the courts should never ask the government to provide documents to prove their case that the advisory group was only composed of government employees. (Subgroups are included in the statute.) Combine Olson's arguments with his further argument that the courts should avoid making the executive actually assert executive privilege in this case, and in a secretive White House, the open records law could be evaded without too much difficulty.

The Solicitor General claims that if the presumption of regularity were dropped, all executive branch officials could be hauled into court whenever anyone challenges a government claim that an advisory group was composed of government officials only. According to the Solicitor General, this would a) distract the executive branch and b) prevent them from asking private citizens for confidential advice.

As to a), note that the extent of the distraction is, in all likelihood, inversely proportional to the extent to which the executive branch is telling the truth.

As to b), perhaps, but if the Vice President is willing to admit that he called up outside groups for advice (as was said often today, government officials call up all sorts of people for advice all the time), what harm is there in court inquiry into how formal the process of getting the advice is? The whole point of the open record statute in question here was to make more transparent the process by which the executive branch gets advice from outside groups. Now if the discovery process requires disclosure of the content of all advice of outside groups, then there might be a problem. But I don't think that that was the case here. As I said, though, I could be mistaken in that belief, and my hold on all of these issues is shaky at best.