Cheney wasn't budging before the suit was announced and he's not budging now. "The fact is, Enron didn't get any special deals," Cheney told ABC's "This Week." "Enron has been treated appropriately by this administration."
The GAO begs to differ, demanding details about the Vice President's meetings with Enron brass. The big question: Did Cheney respond to Enron requests for help by changing U.S. energy policy? And if so, was there anything wrong with that? If Cheney has his way, we may never know White House officials are talking executive privilege and the Vice President isn't talking at all. Is this a case the White House can win? Or is the Bush administration going to get a very public, very damaging slap on the wrist?
The legal landscape
There's a precedent for Presidents and their staff refusing to provide information about what goes on behind closed doors in the White House and for Supreme Court overruling them: The Nixon tapes and Watergate. Reviewing Nixon's refusal to turn over tapes of private conversations, the Court, in its only decision on executive privilege, ruled that while the President must maintain a certain degree of privilege, the specifics and criminal nature of the Watergate case rendered that privilege secondary to the public's right to know. On the other hand, while Enron is under criminal investigation, Cheney himself is not a key distinction between this standoff and the Watergate scenario, in which members of the executive branch were directly linked to criminal charges.
Unfortunately, the Watergate precedent may not hold up. "Legal scholars generally agree the Nixon case wasn't very well reasoned, and actually provided very little guidance for future cases," says Northwestern School of Law professor Bob Bennett. Generally, a certain allowance of privilege is given to situations that appear to concern issues of national security or deliberative privacy. Is this one of those cases?
Philip Melanson, professor of law at the University of Massachusetts at Dartmouth, doesn't think this has anything to do with national security, and believes that fact could be hurting the White House's case. "While it's true that deliberations in the White House certainly have some valid claim to executive privilege, allowing the White House to be this secretive about public policy that has nothing to do with national security seems to be pushing the envelope of executive privilege."
Then there's the deliberative aspect of executive privilege, generally considered to be less politically resonant than the national security claim but important nonetheless, says John McGinnis, a visiting professor at Northwestern and a former Justice Department official who has served as an advisor on issues of executive privilege. "I certainly think Cheney is able to point to a long history of executive branch precedent, in which the President claims privilege in deliberations," McGinnis says. "Cheney can argue that high-ranking members of the executive branch must be able to have candid conversations without fearing disclosure."
The political aftershocks
Then there's the political calculus of the midterm elections. Voters will probably be willing to cut Cheney and the administration some slack if there is a clear-cut reason for secrecy. Otherwise, Cheney and the GOP could take a pounding in the press. "Everyone is very sympathetic to issues of national security," says Melanson, "especially in times like these. But when it comes to issues of domestic policy that affect a controversial matter, I think the public right to know and even the doctrine of executive privilege suggests some information should be forthcoming."
Some argue there's nothing wrong with the Cheney-Enron interactions, even if the worst-case scenario bears out. This argument is, essentially, so what if Enron lobbied Cheney to change the wording in the administration's energy policy in a way that helps Enron? That's what lobbyists are for, right? "That's what politics are all about," says Steve Milner, managing partner for Squar Milner, a CPA and financial advisory firm in Newport Beach. "The problem is when there's a quid pro quo: I give you money in direct exchange for what I want." Proving that, of course, becomes very problematic, especially since Enron gave to very nearly everyone on the Hill over the past decade.
But even if it's legal, is it good PR? Is Cheney making a major public relations mistake by withholding any information? Spilling the beans, says Melanson, is almost always the best option in cases like this. "History shows that the public does not abide secrecy when there's a domestic scandal going on even if there was no wrongdoing," he says. And, he adds, there is still time for the Bush administration to reverse course. "What the White House should have done, and still can do, is say, okay, we still believe our claim of executive privilege, but things have changed in this case, and so now we're willing to make this information available." This is the "we're bigger people than you are" tactic of backtracking gracefully.
Bennett believes that's the road Cheney will take even if it takes him a while to start moving. "Eventually Cheney will give in to a certain degree, because I think he'll comes to understand that he's playing with political fire. He doesn't look good, regardless of how principled he hopes this makes him appear."