New Battle Over Executive Privilege Is Looming in Washington
A new executive privilege battle is looming in Washington as a federal appeals court considers whether to intervene in an election-eve dispute over records of visitors to Vice President Cheney's home at the Naval Observatory, as well as his offices in the White House complex.
Last month, a federal judge in Washington, Ricardo Urbina, ordered the Secret Service to disclose two years of visitor logs to the Washington Post immediately or explain in detail why the records are exempt from release under the Freedom of Information Act.
The Justice Department has asked the U.S. Court of Appeals to block Judge Urbina's order to allow the parties to present more extensive legal arguments about the dispute.
"Disclosure of the records at issue could reveal an ever-expanding mosaic that would allow observers to chart the course of vice presidential contacts and deliberations in unprecedented fashion," government attorneys argued in a brief filed yesterday. "Such an unwarranted intrusion into the most sensitive deliberations of the vice presidency cannot be countenanced."
Judge Urbina and the Post cited the upcoming election as a reason for expeditious release of the logs.
Justice Department lawyers said the election was not a proper factor to consider. They also scoffed at the suggestion that voters might change their minds because of the visitor records. "The timing of congressional elections should not drive (or be seen to drive) the timing of FOIA litigation, especially litigation raising sensitive issues concerning the vice president and separation of powers," the government said.
Judge Urbina's order did not actually order the release of any records, because the Secret Service could still assert exemptions, including one that covers executive privilege. "The government has failed to articulate how invocation of appropriate FOIA exemptions might somehow be inadequate to protect it from unwarranted harm," an attorney for the Post, David Sobel, told the appeals court. Mr. Sobel said the time pressure now on the Secret Service was the product of its failure to respond in a timely fashion to the Post's request, which was filed in June.
In his recent opinion, Judge Urbina signaled a willingness to shield personal visits to Mr. Cheney from disclosure. However, he said that if personal and official visits could not be easily segregated, Mr. Cheney's privacy might have to yield to the public's interest in open government.
In response to recent Freedom of Information Act lawsuits, the Secret Service has released logs of White House visits by a disgraced lobbyist, Jack Abramoff, and other GOP insiders, such as Grover Norquist and Ralph Reed. The Justice Department said those were "discretionary" releases that did not undermine the government's position that the visitor logs are presidential records not subject to public records requests until years after the president leaves office.
