The Cheney Decision

Today the Supreme Court decided that the DC Circuit wrongly dismissed Vice President Cheney's writ of mandamus challenging discovery orders in the district court (here's the opinion [PDF], or here [HTML or PDF]). The AP provides a brief summary here.

The decision was poorly decided, but in order to explain why I feel that way a couple of facts about the case must be understood. First, Vice President Chaney did not actually raise the executive privilege. Second, none of the defendants argued that the discovery requests were too broad--rather, the defendants argued that plaintiffs were entitled to zero discovery. The defendants argued that they did not need to turn over a freakin' thing, and didn't have to explain themselves either. And the Supreme Court essentially bought it.

The majority was right to note that the executive privilege case involving Nixon was different because it involved criminal and not civil charges. But the majority largely ignored some language in the Nixon opinion, which taught that the Presidnet cannot make some "broad and undifferentiated" assertion of an "absolute, unqualified" privilege. Such an expansive reading of executive power is what the Vice President was looking for--and what it received by this holding. The defendants admitted that their argument was "in the nature of a claim of immunity from discovery." And while the majority did not go that far, it did say that the courts below should have paid more attention to the separation-of-powers concerns and could not in fairness allow broad discovery requests to proceed.

But this case was not about how broad or narrow discovery should be in this case. It was about some over-arching immunity from discovery because of the position of the executive branch in our system--even without raising any executive privilege. The majority argues it would be far too burdensome to require the executive branch to raise objections to discovery in every instance (whether based on executive privilege or other grounds). And this is where things get really strange--the majority argues that the executive privilege should not be required because it is some serious weaponry that should not be used lightly:

Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive's Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive's claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These "occasions for constitutional confrontation between the two branches" should be avoided whenever possible.

Ok--Let me get this straight: The Executive branch should not have to raise the privilege, because whenever they raise the privilege, some tough questions come about. So we are just going to give them the benefits of the privilege without asking them to raise it. Any questions?