White House could lose showdown; perception is administration hiding something

Executive privilege vs. Enron

Posted: Tuesday, January 29, 2002

WASHINGTON -- The White House readiness to go to court rather than release details of Vice President Dick Cheney's meetings with energy officials poses a political risk for President Bush and his party.

Polls show many Americans think the administration is hiding something about its dealings with Enron, and a court fight could help drive that impression home.

It also could make it more likely that the collapse of the Houston-based energy giant, with its close ties to the Bush administration, will be an issue in the fall midterm elections.

Furthermore, the White House could lose the showdown. Recent presidents have not had a great track record in executive-privilege cases -- most famously illustrated by the unsuccessful attempts by former Presidents Nixon and Clinton to keep evidence secret during impeachment investigations.

''For most of our history, presidents have resisted these kinds of claims for documents,'' said Lloyd Cutler, who served as counsel to both Clinton and former President Carter. He noted that such battles have been going on since George Washington refused congressional demands for information on treaty negotiations.

''Congress has abandoned the fight in most cases,'' Cutler said.

In this instance, however, there is little sign that either Congress or the White House is about to back down.

''Politics and perceptions should take second (place) to principle,'' White House spokesman Ari Fleischer said Monday. The administration contends releasing the documents would undermine the president's decision-making authority.

The head of the General Accounting Office, Congress' investigative arm, said he will decide this week whether to sue for the documents. Cheney served notice in television interviews over the weekend that the White House is bracing for a court showdown.

Standing fast, Bush on Monday said, ''This is part of how you make decisions.''

''It's not only important for this administration, it's an important principle for future administrations,'' he told reporters.

At issue are meetings Cheney and his energy task force had last year with energy executives during the formulation of the administration's energy policy, including six meetings with Enron officials. Those sessions have taken on added significance with the controversy now swirling around Enron and its auditors, Arthur Andersen.

''As this drags on, and as more of the Enron stuff comes out, Cheney's position becomes weaker and weaker,'' said Washington defense lawyer William Moffitt. ''The presumption is that there is something to hide. Whether that is the case or not, I do not know. But this is certainly the perception.''

Moffitt said a president's executive privilege is not as clear-cut as other legal privileges -- such as those between marriage partners or between attorney and client -- and remains open to political as well as judicial interpretation.

Polls suggest growing skepticism among Americans toward White House conduct on the Enron matter, even though Bush's popularity remains at astronomical levels of 80 percent and above.

Almost six in 10 feel the administration is hiding something, according to a CBS-New York Times poll released over the weekend. Two-thirds in a CNN-Time poll say administration officials who knew of Enron's troubles should have spoken out sooner.

The battle is being portrayed by the White House as over executive privilege, not Enron.

''They're in a very weak spot. It is an Enron issue in the public's eye,'' said James Thurber, a political science professor at American University. ''Even if they do win in court, they lose in the eye of the public and they lose on Capitol Hill.''

Digging in now on the Cheney documents ''is a dangerous thing to do,'' said Norman Ornstein, a scholar at the American Enterprise Institute who studies Congress.

''The case Cheney has chosen to stand on is, I think, a relatively weak one. This is going to turn into a major diversion that looks like a cover-up. If I was them, I'd find other places to make a stand on executive privilege.''

Tom Raum has covered national affairs for The Associated Press since 1973.

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