Walker v. Cheney: District Court Decision and Issues on Appeal

CRS Report for Congress
Walker v. Cheney: District Court
Decision and Related Statutory
and Constitutional Issues
Updated March 8, 2004
T.J. Halstead
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Walker v. Cheney: District Court Decision and Related
Statutory and Constitutional Issues
Summary
On January 29, 2001, President Bush established the National Energy Policy
Development Group (NEPDG), with Vice President Cheney serving as Chairman.
Along with the Vice President, the NEPDG consisted of six executive department
heads, two agency heads, and various other federal officers. The NEPDG was tasked
with developing a national energy policy “designed to help the private sector, and
government at all levels, promote dependable, affordable, and environmentally sound
production and distribution of energy for the future.”
Based on reports that meetings of the NEPDG included “exclusive groups of
non-governmental participants,” Representative Waxman and Representative Dingell
asked the General Accounting Office (GAO) to initiate an investigation regarding the
NEPDG’s activities. Subsequent to initiating its investigation, GAO requested
information from the Vice President regarding the names and titles of individuals
present at any NEPDG meetings, including any non-governmental participants, as
well as information pertaining to the purpose and agenda of the meetings, the process
by which the NEPDG determined who would be invited to such meetings, and any
minutes or notes produced. The Vice President refused to provide the requested
information, asserting that GAO did not possess the authority to investigate the
activities of the NEPDG. The Vice President further argued that GAO’s request
exceeded constitutional boundaries, even if authorized by statute. After several
attempts to obtain the requested information were unsuccessful, GAO invoked its
authority under 31 U.S.C. §716, which enables the Comptroller General to issue a
demand letter requesting the release of relevant records and, ultimately, to sue for
their production by a noncomplying agency.
After subsequent attempts to obtain the requested records were likewise
unsuccessful, GAO filed a suit for declaratory and injunctive relief to enforce its
asserted statutory right of access to the requested records on February 22, 2002. The
Vice President responded by filing a motion to dismiss on May 21, 2002, questioning
GAO’s statutory authority and arguing that the suit unconstitutionally interfered with
the functioning of the Executive Branch. On December 9, 2002, the United States
District Court for the District of Columbia dismissed the suit on standing grounds,
holding that the Comptroller General had not suffered a personal or institutional
injury sufficient to merit judicial resolution of issues affecting the balance of power
between Congress and the Executive Branch. The decision in Walker has the
potential to significantly limit the ability of GAO to exercise leverage in its oversight
of the Executive Branch, and could be interpreted as casting doubt on the scope of
congressional power regarding the exercise and delegation of its investigative
authority. The Comptroller General announced on February 7, 2003 that GAO would
not file an appeal of the district court decision.

Contents
In troduction ..................................................1
Overview of the Dispute........................................1
The Decision in Walker v. Cheney.................................3
GAO Access to Executive Branch Information After Walker........6
GAO Access to Private Sector Information After Walker...........7
The Decision Not to Appeal.................................7
Related Statutory and Constitutional Issues..........................8
Congressional Delegation of Investigative Authority.............13
Executive Privilege.......................................17
Conclusion ..................................................22

Walker v. Cheney: District Court Decision
and Related Statutory and Constitutional
Issues
Introduction
In Walker v. Cheney,¹ the District Court for the District of Columbia dismissed
the suit filed by the Comptroller General against the Vice President seeking
information related to the composition and activities of the National Energy Policy
Development Group (NEPDG), declaring that the Comptroller General did not have
standing to maintain the action. This report provides an overview of the dispute
giving rise to the lawsuit, a consideration of the potential ramifications of the district
court’s decision, and an analysis of related statutory and constitutional issues that
were not addressed by the district court.
Overview of the Dispute²
On January 29, 2001, President Bush established the National Energy Policy
Development Group (NEPDG) via Presidential Memorandum.³ President Bush
tasked the NEPDG with developing a national energy policy “designed to help the
private sector, and government at all levels, promote dependable, affordable, and⁴
environmentally sound production and distribution of energy for the future.” The
President’s memorandum directed the Vice President to serve as chair, with
membership extended to the Secretary of the Treasury, the Secretary of the Interior,
the Secretary of Agriculture, the Secretary of Commerce, the Secretary of
Transportation, the Secretary of Energy, as well as several other federal officers. The
memorandum also directed the Department of Energy to make funds available to the
NEPDG to cover the costs of support staff.
The memorandum established that the NEPDG’s functions were to “gather
information, deliberate, and...make recommendations to the President.” The
memorandum further called for the NEPDG to submit to the President a report

¹230 F.Supp.2d 51 (D.D.C. 2002).
²Much of the background material contained herein is taken from a prior CRS report which
discussed the issues in Walker v. Cheney prior to the district court’s decision. See, Walker
v. Cheney: Statutory and Constitutional Issues Arising From the General Accounting
Office’s Suit Against the Vice President, Congressional Research Service, Report No.
RL31397, May 1, 2002.
³Presidential Memorandum, National Energy Policy Development Group, January 29, 2001.
⁴Id.

“setting forth a recommended national energy policy designed to help the private
sector, and as necessary and appropriate State and local governments, promote
dependable, affordable, and environmentally sound production and distribution of
energy for the future.” The NEPDG issued its report on May 16, 2001, the provisions
of which were approved as the “National Energy Policy” by the President.⁵
On April 19, 2001, Representative Waxman and Representative Dingell wrote
to Andrew Lundquist, executive director of the NEPDG, requesting information
pertaining to the operations of the task force. Representatives Waxman and Dingell
also wrote to GAO, requesting that it initiate an investigation regarding the NEPDG’s
activities, based upon reports that task force meetings included “exclusive groups of
non-governmental participants.”⁶ Subsequent to initiating its investigation, GAO
requested information from the Vice President regarding the names and titles of
individuals present at any NEPDG meetings, including any non-governmental
participants, as well as information pertaining to the purpose and agenda of the
meetings, the process by which the NEPDG determined who would be invited to
such meetings, and whether minutes or notes were kept.⁷ After several attempts to
obtain the requested information were unsuccessful, GAO issued a demand letter on
July 18, 2001, pursuant to 31 U.S.C. §716(b),⁸ requesting the aforementioned
records, including copies of the minutes and notes of the meetings, as well as any
information presented by private sector attendees.⁹
On August 17, 2001, GAO submitted a report to Congress under 31 U.S.C.
§716(b), declaring that the Vice President had persisted in his refusal to turn over the
requested information.¹⁰ In its report, GAO stated that it was withdrawing its request
for copies of minutes, notes, and information presented by private individuals “as a
matter of comity” and was seeking documents regarding: (1) the names of those
present at NEPDG meetings; (2) the names of the NEPDG’s professional support
staff; (3) the names of those with whom NEPDG members and support staff met to
gather information for the National Energy policy, including the date, subject, and

⁵Letter from Vice President Cheney to the House of Representatives, August 2, 2001. All
correspondence referred to herein may be accessed at:
http://www.house.gov/ reform/min/inve s_energy/ energy_cheney.htm.
⁶Letter from Reps. Waxman and Dingell to GAO, April 19, 2001.
⁷For detailed chronologies of interactions between the Office of the Vice President and
GAO, see, Letter from Vice President Cheney to the House of Representatives, August 2,

2001; GAO Report on Vice President Cheney’s Refusal to Release Records, August 17,

2001.

⁸31 U.S.C. §716 directs federal agencies to provide the Comptroller General with access to
information regarding their activities. Section 716(b) enables the Comptroller General to
issue a demand letter requesting the release of relevant agency records, and, ultimately, to
sue an agency for their production. Section 716(d), however, establishes a certification
procedure whereby the Executive Branch can preclude a suit by the Comptroller General.
See n.57 and accompanying text, infra, for a detailed overview of GAO’s access
enforcement authority under §716.
⁹GAO Demand Letter to Vice President Cheney, July 18, 2001.
¹⁰GAO Report on Vice President Cheney’s Refusal to Release Records, August 17, 2001.

location of such meetings, and; (4) what direct and indirect costs were incurred in
developing the National Energy Policy. While this report to Congress specifically
identified the requested documents as relating to the four categories listed above, it
should be noted that GAO’s “scaling back” of its request related only to its prior
demand for the minutes and notes of NEPDG meetings with outside interests. As
such, it would appear that the request in the July 18 demand letter for information
pertaining to the purpose and agenda of the NEPDG meetings, as well as the process
by which the NEPDG determined who would be invited to such meetings, was still
in effect. Subsequent attempts to obtain the requested records were likewise
unsuccessful, prompting the Comptroller General to announce on January 30, 2002,
that GAO would file suit under 31 U.S.C. §716(b)(2) to enforce its asserted statutory
right of access to the requested NEPDG records.¹¹
GAO filed a complaint for declaratory and injunctive relief on February 22,

2002.¹² On April 11, 2002, GAO filed a motion for summary judgment. Thereafter,

the Vice President filed a motion to dismiss and an opposition to GAO’s motion for
summary judgment on May 21, 2002. Hearings on the motions by the parties were
held on September 27, 2002, and the district court dismissed the complaint on
December 9, 2002, holding that the Comptroller General did not have standing to
bring the suit.¹³ The Comptroller General announced on February 7, 2003, that GAO
would not file an appeal of the district court’s decision.¹⁴
The Decision in Walker v. Cheney
The court in Walker dismissed GAO’s suit after determining that the
Comptroller General lacked standing to sue under the principles and standards
delineated in Raines v. Byrd.¹⁵ In Raines, the Supreme Court held that six Members
of Congress lacked standing to challenge the constitutionality of the Line Item Veto
Act of 1996. In reaching this conclusion, the Court noted the “restricted role for
article III courts” in resolving disputes between the political branches, and
determined that the Members bringing the suit had not suffered a sufficient personal
injury to merit a finding of constitutional standing.¹⁶ The Court distinguished a
personal injury to a private right from an institutional or official injury, explaining
that a congressional plaintiff may be able to establish standing to sue in instances
where the plaintiff has suffered either a personal injury, such as the loss of a seat in

¹¹Decision of the Comptroller General Concerning NEPDG Litigation, January 30, 2002.
¹²GAO Statement Concerning Litigation, February 22, 2002. Walker v. Cheney, Complaint
for Declaratory and Injunctive Relief, Case No. 1:02CV00340 (D.D.C. February 22, 2002).
¹³See Walker v. Cheney, Civ. No. 02-0340(JDB), slip op. at 40 (D.D.C. Dec. 9, 2002). For
a thorough overview of the doctrine of standing and its application in Walker v. Cheney, See,
Jay R. Shampansky, “Walker v. Cheney: An Overview of the Standing Issue,” Congressional
Research Service, Congressional Distribution Memorandum, December 26, 2002.
¹⁴GAO press statement on Walker v. Cheney, February 7, 2003. Available from
[ h t t p : / / www.ga o.gov/ p r e ss/ w020703.pdf ] .
¹⁵521 U.S. 811 (1997).
¹⁶521 U.S. at 818-20.

Congress, or an institutional injury that is not “abstract and widely dispersed.”
Ultimately, the Court noted that the “diminution of legislative power” resulting from
the passage of the act constituted an institutional injury affecting all Members, as
opposed to a particularized and concrete personal injury.¹⁷
Applying these maxims, the court in Walker determined that it was required to
conduct an “especially rigorous” standing inquiry, because the case presented “core
separation of powers questions at the heart of the relationship among the three
branches of our government.”¹⁸ Engaging in this calculus, the court held that the
injury alleged by the Comptroller General was not personal, stressing that his interest
in the suit was “solely institutional, relating exclusively to his duties in his official
capacity.”¹⁹ The court then determined that the institutional injury alleged by the
Comptroller General, namely the Vice President’s denial of information requested
pursuant to GAO’s statutorily conferred investigative and access enforcement
authority, was insufficient to establish standing. The court predicated this finding on
its conclusion that the Comptroller General was acting as an agent of Congress in
demanding the information and bringing the suit, and had no “freestanding
institutional injury or personal injury of his own to assert.”²⁰ The court then reiterated
that the jurisdiction of the federal courts “can be invoked only when the plaintiff
himself has suffered some threatened or actual injury.”²¹
The court went on to consider the harm to the Comptroller General’s principal,
Congress, but found such an inquiry to be “of little comfort to plaintiff.”²² In
particular, the court characterized the importance of the requested documents as
relating only to Congress’ discharge of its general legislative and oversight functions,
and held that the alleged injury to these prerogatives was “too vague and amorphous
to confer standing.”²³ The court further declared that, “like the injury asserted in
Raines,” the injury to Congress in the current controversy “concerns merely an
‘abstract dilution of institutional legislative power,’” damaging all Members and both
Houses equally,²⁴ and is therefore not the kind of concrete injury that is sufficiently
“distinct and palpable” for standing.²⁵ The court did acknowledge that the potential
impact upon Congress in the present case was more concrete than the injury alleged
in Raines, in that “any harm here relates to a reasonably well-defined set of
information.”²⁶ The court proceeded, however, to discount the applicability of prior
precedents establishing that a House or committee has standing to enforce its right

¹⁷Id. at 821.
¹⁸Walker, 230 F.Supp.2d at 65 (quoting Raines, 521 U.S. at 819).
¹⁹Id. at 66.
²⁰Id. at 66.
²¹Id. at 67 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).
²²Id. at 67.
²³Id. at 67.
²⁴Id. at 67 (citing Raines, 521 U.S. at 821).
²⁵Id. at 67-68 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
²⁶Id. at 68.

of access to information, concluding that the injury to Congress’ right to the
documents was “conjectural” or “hypothetical” because no congressional entity had
requested or subpoenaed the information.²⁷
In reaching this conclusion, the court in Walker found it to be of “some
importance” that Congress had not expressly authorized the present suit, and
determined that a generalized delegation of investigative and access enforcement
authority to GAO was not sufficiently specific to provide a basis for the Comptroller
General to seek judicial resolution of the significant constitutional issues raised by
the suit.²⁸ In particular, while stressing that it did not “intend to direct the delegation
and exercise of Congress’ investigative powers,”²⁹ the court held that the “highly
generalized allocation of enforcement power to the Comptroller General...hardly
gives this Court confidence that the current Congress has authorized this Comptroller
General to pursue a judicial resolution of the specific issues affecting the balance of
power between the Article I and Article II Branches that have crystalized during the
course of this dispute and lawsuit.”³⁰ Based on these factors, the court concluded that
the exercise of judicial power in this case was not “warranted as a ‘last resort, and as
a necessity,’” and declined to address the merits of the suit.³¹
The court’s decision in Walker has the potential to significantly limit the ability
of GAO to sue the Executive Branch to obtain information, and could have the

²⁷Id. at 68 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). It should be
noted that the court distinguished “the generalized harm to legislative power” that may occur
when documents cannot be obtained from an injury pertaining “to a highly specific
constitutional mandate (such as the duty to apportion Representatives)” and from an injury
“threaten[ing] the composition of Congress itself.” Id. at 68 n.19. To illustrate this
distinction, the court pointed to United States House of Representatives v. United States
Department of Commerce, 11 F. Supp. 2d 76, 89 (D.D.C. 1998) (three-judge court), where
the court found that the House had standing to sue regarding the alleged refusal by the
Census Bureau to provide a proper accounting of the number of persons in each state,
because it “had been deprived of information to which it, as a legislative body, was
personally entitled and which it required in order to perform a mandatory constitutional
function — the apportionment of Representatives among the states.” The court in Walker
did not explain why the grant of legislative power to Congress by Article I, section 1, is not
as specific as the grant of the power to apportion Representatives by section 2 of the
Fourteenth Amendment. See Shampansky, n.14, supra.
²⁸Id. at 68.The court noted several other factors that contributed to its holding. In particular,
the court found it significant that Congress had an “alternate remedy” to cure its alleged
injury, in that it could issue a subpoena for the information. Id. at 30. Also, the court gave
some weight to the fact that while its decision prevented the Comptroller General from
gaining access to the NEPDG documents, private parties were seeking similar information
in other suits See id. at 31 n.14. Finally, the court was further influenced by the fact that
there was no precedent for a suit by a Comptroller General for access to executive branch
records, and that no court has “ever ordered the Executive Branch to produce a document
to Congress or its agents.” Id. at 32-33.
²⁹Id. at 69.
³⁰Id. at 69-70.
³¹Id. at 69 (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)).

practical effect of impairing its ability to gather information in a traditional sense.³²
It is also important to note that the court’s decision could even be interpreted as
casting doubt on the ability of Congress itself to bring suit to enforce subpoenas.³³
Accordingly, this report considers the potential impact of the decision on GAO’s
investigatory and access enforcement functions and provides an overview of related
statutory and constitutional issues that were not addressed by the district court.
GAO Access to Executive Branch Information After Walker.
If interpreted broadly, the holding in Walker could greatly limit the ability of
GAO to compel production of information from the Executive Branch. Specifically,
the court’s decision does not clearly establish whether GAO retains the ability to sue
executive departments and agencies. While it may be argued that the decision is
limited to the specific scenario of an enforcement action against the President or Vice
President, nothing in the court’s decision clearly indicates that a less rigorous
standing inquiry may be applied to actions against agencies.³⁴ In the event that the
decision is interpreted as only applying to suits against the President or Vice
President, its effect, while palpable, would not necessarily have a dramatic impact on
GAO’s efficacy, given that the majority of its investigations appear to focus on
agency activity. However, if the court’s analysis extends to suits against agencies, the
strict standing requirements delineated in the decision could effectively strip 31
U.S.C. §716 of any force in the congressional/executive context. If such an
interpretation adheres, GAO’s investigative efforts could be hampered by its inability
to bring suit to compel the production of requested information. Specifically, while
the present controversy marks the first time that GAO has brought suit against the
Executive Branch, it is important to note that prior investigations have been
characterized by mutual efforts at negotiation and compromise, presumably
influenced by an awareness on the part of the Executive Branch that a blanket refusal
to provide requested information could result in a lawsuit.
A modern example of this dynamic centers on GAO efforts to obtain records for
the House Committee on International Relations regarding the process used by the
Executive Branch to approve U.N. peacekeeping operations.³⁵ After the Departments
of State and Defense and the National Security Council failed to provide the
requested records, GAO issued demand letters to each agency on November 9, 2000.
The State Department responded by denying the demand for access, but nonetheless

³²See Stuart Taylor, Jr., Barring A Suit Against Cheney Could Cripple Oversight by the
GAO, Fulton County Daily Report, Dec. 19, 2002 (Taylor). The impact of the ruling on the
ability of GAO to sue an agency, rather than the Vice President, is uncertain. See 31 U.S.C.
§ 716. See also Randolph May, The Reluctant Referee, Legal Times, Jan. 13, 2003, at 38
(questioning whether ruling in Walker, as to standing of Comptroller General to sue Vice
President, would apply in suit against executive department head).
³³See Walker, 230 F.Supp.2d at 67-70.
³⁴ Id.
³⁵See, U.N. Peacekeeping: GAO’s Access to Records on Executive Branch Decision-
Making, General Accounting Office, GAO-01-440R, March 6, 2001.

committed to negotiate “a mutually acceptable accommodation.”³⁶ Subsequent
negotiations resulted in an agreement between GAO and State that provided
“reasonable access” to the records.³⁷ The Department of Defense failed to respond
adequately to GAO’s request, leading it to threaten the issuance of a statutory report
under §716(b)(1).³⁸ GAO and the DOD subsequently reached an accommodation
regarding the records at issue after GAO filed the report, indicating its willingness
to sue for access. The NSC responded to GAO’s demand letter by “formally
denying...full and complete access” to the requested records.³⁹ This step prompted the
GAO to issue a report, again evincing its contemplation of bringing suit to compel
access. In this instance, however, the Director of the Office of Management and
Budget certified, pursuant to §716(d)(1)(C), that disclosure of the material requested
from the NSC “reasonably could be expected to impair substantially the operations
of the Government,” thereby precluding the GAO from bringing suit.⁴⁰
As this example illustrates, GAO’s authority to sue for access to records appears
to have provided leverage in convincing executive entities to either provide requested
information or to invoke the certification mechanism of §716(d). Thus, the court’s
decision could have the practical effect of depriving GAO of its traditional point of
leverage in such negotiations, giving rise to the possibility that the Executive Branch
could become less responsive to future GAO inquiries.
GAO Access to Private Sector Information After Walker.
While the factors mentioned above give rise to the possibility that GAO’s ability
to exercise leverage in its oversight of executive branch entities could be significantly
diminished, it does not appear that the decision in Walker will impair its ability to
gain access to information held by private sector entities. As noted above, the
decision is predicated on the notion that a standing inquiry must be “especially
rigorous” in those rare cases that involve “core separation of powers questions at the
heart of the relationship among the three branches of our government.”⁴¹
Accordingly, there would appear to be little basis to the argument that the court’s
decision somehow undermines prior precedent establishing Congress’ authority to
delegate its investigative powers, especially in instances where such separation of
powers concerns are absent.⁴²
The Decision Not to Appeal.
As noted above, the court’s decision could have a significant impact on the
ability of GAO to investigate the activities of executive branch entities. However, on

³⁶Id. at 6.
³⁷Id. at 2, 6.
³⁸Id. at 9.
³⁹Id. at 2.
⁴⁰Id. at 2.
⁴¹Walker, 230 F.Supp.2d at 65.
⁴²See n.82 and accompanying text, infra.

February 7, 2003, GAO announced “[a]fter a thorough review and analysis of the
district court’s decision..., as well as extensive outreach with congressional
leadership and others concerning various policy matters and the potential
ramifications of the court’s decision,” that it would not file an appeal.⁴³ Explaining
this decision, GAO stated that it strongly believed the court’s decision was incorrect,
but that an appeal “would require investment of significant time and resources over
several years.” GAO then stated that since the district court did not consider the
merits of the suit, its decision had “no effect on GAO’s statutory audit rights or the
obligation of agencies to provide GAO with information.” GAO then forwarded a
narrow interpretation of the court’s holding, arguing that the decision “is confined to
the unique circumstances posed by this particular case and does not preclude GAO
from filing suit on a different matter involving different facts and circumstances in
the future.”⁴⁴
GAO then called on the administration to “do the right thing and fulfill its
obligations when it comes to disclosures to GAO, the Congress, and the public, not
only in connection with this matter but all matters in the future.”⁴⁵ However, as was
evidenced by the nature of the dispute in Walker v Cheney, the administration’s
position on what constitutes proper compliance with such obligations is significantly
narrower than that of GAO. Accordingly, GAO’s decision not to appeal the decision
in Walker could result in the practical curtailment of GAO oversight of the executive
branch.
Related Statutory and Constitutional Issues
Concluding the announcement of its decision not to appeal, GAO stated that it
hoped it would “never again [be] put in the position of having to resort to the courts
to obtain information that Congress needs to perform its constitutional duties, but we
will be prepared to do so in the future if necessary.”⁴⁶ Given this express declaration
of GAO’s willingness to revisit the issue of its access enforcement authority with
regard to the executive branch, it is useful to consider the underlying statutory and
constitutional issues that were not addressed in the decision in Walker v. Cheney, as
similar issues will likely adhere to any future dispute between the two parties.
GAO’s Investigative Authority.
GAO’s primary audit authority is derived from section 312(a) of the Budget and
Accounting Act of 1921.⁴⁷ Currently codified at 31 U.S.C. §712, this provision, in
pertinent part, directs the Comptroller General to “investigate all matters related to

⁴³ GAO press statement on Walker v. Cheney, February 7, 2003. Available from
[ h t t p : / / www.ga o.gov/ p r e ss/ w020703.pdf ] .
⁴⁴Id.
⁴⁵Id.
⁴⁶Id.
⁴⁷Pub. L. No. 67-13; 42 Stat. 20, 25-26 (1921).

the receipt, disbursement, and use of public money.”⁴⁸ Additionally, 31 U.S.C.
§717(b) empowers the Comptroller General to “evaluate the results of a program or
activity the Government carries out under existing law.” Based on this authority,
GAO requested access to the aforementioned information regarding the NEPDG on
the grounds that both §712 and §717(b) authorize such an inquiry. In response, the
Vice President argued that neither provision imbues the GAO with authority
sufficient to support its position.⁴⁹
Regarding §712, the Vice President argued that it merely provides GAO with
the authority to conduct an audit of the costs incurred by the NEPDG, and did not
provide any basis for its requests for such information as the names of NEPDG
meeting attendees. While this interpretation is plausible under the plain terms of the
statute, it should be noted that the express language of §712, viewed in relation to
relevant legislative history, indicates that Congress intended for GAO to serve a
broad role. Specifically, §712(1) states that the Comptroller General is to “investigate
all matters related to the receipt, disbursement and use of public money.” This
language, as enacted in 1921, was designed, according to one member, to ensure
“that the Comptroller General shall concern himself not simply with taking in and
paying out money from an accountant’s point of view, but that he shall also concern
himself with the question as to whether it is economically and efficiently applied.”⁵⁰
This conception was reiterated in 1980:
“[T]he Budget and Accounting Act of 1921 provides sufficiently broad
and comprehensive authority to investigate ...’all matters relating to the
receipt, disbursement, and application of public funds...’ This authority
extends not only to accounting and financial auditing but also to
administration, operations, and program evaluation. Succeeding legislation
affecting GAO’s authority generally has served to make mandatory, explicit,
and emphatic the requirement for GAO to assess the efficiency, economy, and
effectiveness of program operation by the Executive Branch.”⁵¹
Belying these statements to some degree, GAO did not utilize its full statutory
authority initially, serving Congress throughout the 1920's and 1930's primarily by
auditing vouchers to ensure the accuracy of payments.⁵² However, Congress has
explained that governmental expansion has necessarily increased its reliance on GAO
to provide it with “essential information about federal programs,” particularly in light

⁴⁸31 U.S.C. §712(1).
⁴⁹See “Defendant’s Motion to Dismiss and Opposition to Plaintiff’s Motion for Summary
Judgment” at 37.
⁵⁰61 Cong. Rec. 1090 (May 5, 1921) (Statement of Rep. Luce).
⁵¹S. Rep. No. 96-570, at 2, 96^th Cong., 2^nd Sess. (1980). See also, H. Rep. No. 96-425, 96^th
Cong., 1^st Sess. 2 (1979) (stating that the authority vested in the Comptroller General by the
Budget and Accounting Act of 1921 “extends not only to accounting and financial auditing
but also to related aspects of administration, operations and program evaluation”).
⁵²Harry S. Havens, The Evolution of the General Accounting Office: From Voucher Audits
to Program Evaluations, GAP/OP-2-HP, January 1990.

of its “statutory authority to participate directly in the oversight process as an
independent congressional entity.”⁵³
Turning to §717(b), the Vice President argued against its application on the
basis that it only authorizes the Comptroller General to “evaluate the results of a
program or activity the Government carries out under existing law.”⁵⁴ Specifically,
in light of the fact that the NEPDG was created by a presidential order, as opposed
to statute, the Vice President maintained that its activities did not constitute a
program or activity carried out under existing law for the purposes of §717. In
response, GAO argued that the term “existing law,” absent any qualifier or limitation,
refers to all sources of law.
While both positions are tenable, prior GAO practice could be interpreted as
supporting the notion that its statutory authority extends to entities such as the
NEPDG. In particular, GAO has previously investigated similarly situated entities,
such as the White House China Trade Relations Group and the President’s Task
Force on Health Care Reform, reportedly receiving sufficient responses to its
inquiries.⁵⁵ Furthermore, in 1980 when enacting the enforcement mechanisms of 31
U.S.C. §716, Congress specifically contemplated GAO’s authority to investigate
pertinent activities of the President and his advisers without questioning its
underlying authority to engage in such activity, indicating an assumption on the part
of Congress that such authority was preexisting.⁵⁶ This consistent assertion of
authority by GAO, coupled with Congress’ implicit acknowledgment, would likely
be given some degree of weight by a reviewing court.⁵⁷
GAO Access Enforcement Authority.
Under 31 U.S.C. §716, federal agencies are directed to provide the Comptroller
General with information regarding the duties, powers, activities, organization, and

⁵³S. Rep. No. 96-570, 96^th Cong., 2^nd Sess. 2 (1980); reprinted in 1980 U.S.C.C.A.N. 732.
⁵⁴ See “Def.’s Motion to Dismiss” at 39; Letter from Vice President Cheney to the House
of Representatives, August 2, 2001.
⁵⁵See, Federal Lobbying: China Permanent Normal Trade Relations (PNTR) Lobbying
Activities, GAO/GGD-00-199R, September 29, 2000; Cost of Health Care Task Force
Related Activities, GAO/T-GGD-95-114, March 14, 1995; GAO/GGD-96-114, March 14,

1995.

⁵⁶See n.67 and accompanying text, infra.
⁵⁷It might be argued that GAO’s interpretation of its authority is entitled to deference under
Chevron v. Natural Resources Defense Council, 467 U.S.837 (1984). This point is
especially pertinent in light of Congress’ determination that the Budget and Accounting Act
of 1921 is itself broad enough to justify GAO’s investigatory duties. See n. 7-8 and^th
accompanying text, supra. See also, Eli Lilly & Co. v. Staats, 574 F.2d 904, 910 (7 Cir.
1978), cert. denied, 439 U.S. 959 (1978) (noting that GAO access to records was justified
not only by the specific access provision in question, but also by the broad investigatory
powers vested in the Comptroller General). See also, Bowsher v. Merck, 460 U.S. 824
(1983).

financial transactions of the agency.⁵⁸ To effectuate this directive and buttress GAO’s
investigative power, §716 also imbues the Comptroller General with the ability to
demand the release of relevant records and to sue for their production by a
noncomplying agency. Specifically, under §716(b)(1), the Comptroller General may
make a written request to the head of an agency that has failed to make records
available. The Comptroller General’s letter must state the authority for inspecting the
records and the reason for inspection. Upon receipt of such a letter, the head of the
agency is afforded 20 days to respond, describing the records withheld and the
reasons therefore. In the event that the requested records are not released for
inspection within the 20 day response period, the Comptroller General may file a
report with the President, the Director of OMB, the Attorney General, the head of the
relevant agency, and Congress. Twenty days after the filing of the report, the
Comptroller General is authorized to file suit in the district court of the United States
for the District of Columbia to require the head of the agency to produce the
requested records.⁵⁹
This authority is tempered, however, by §716(d) which enables the Executive
Branch to preclude a suit by the GAO on certain grounds. In particular, §716(d)(1)
prevents the Comptroller General from bringing suit if the requested records pertain
to matters designated as foreign intelligence or counterintelligence activities by the
President, or in instances where the records are statutorily exempted from disclosure.
Additionally, the President or Director of the OMB may preclude a suit under
§716(d)(1)(C) by certifying to the Comptroller General and Congress that a record
may be withheld under 5 U.S.C. §552(b)(5) or 5 U.S.C. §552(b)(7) of the Freedom
of Information Act and that “disclosure reasonably could be expected to impair
substantially the operations of the Government.”⁶⁰ In the present case, the President
did not avail himself of the certification provision within the allotted period of time,
thereby enabling the Comptroller General to bring suit under §716(b)(2). It should
be noted, however, that the Administration may nonetheless choose to assert that the
requested information is privileged independent of §716(d)(1)(C).
Based upon the investigatory and enforcement authority outlined above, GAO
maintained that it had authority to bring suit to compel disclosure of the requested
NEPDG records. Conversely, the Administration asserted that the Comptroller
General may not bring suit under §716, arguing (1) that GAO’s lack of investigatory
authority under §712 and §717 prevents an enforcement action, and (2) that neither
the Vice President nor the NEPDG qualify as an agency that may be subjected to
such an action.⁶¹

⁵⁸31 U.S.C. §716(a).
⁵⁹31 U.S.C. §716(b)(2).
⁶⁰31 U.S.C. §716(d)(1)(C). Such a certification must be made by the 20^th day after a report
is filed by the Comptroller General under §716(b)(1). Id. Regarding matters that may be
precluded by such a certification, 5 U.S.C. §552(b)(5) pertains to deliberative materials,
while 5 U.S.C. §552(b)(7) relates to records or information compiled for law enforcement
purposes.
⁶¹ See “Def.’s Motion to Dismiss” at 22; The Vice President also argues that GAO may not
(continued...)

The first prong of the Vice President’s argument hinges upon the proper
interpretation of the investigative authority vested in the Comptroller General, as
discussed above. Regarding the second prong of the Vice President’s argument, a
review of the relevant statutory provisions and case law reveals countervailing
principles that could influence the determination of the issue. Chapter 7 of Title 31
appears to define “agency” quite broadly, to include a “department, agency, or
instrumentality of the United States Government” or the District of Columbia,
expressly excluding the legislative branch and the Supreme Court.⁶²
In Franklin v. Massachusetts, the Supreme Court determined that the term
“agency,” as employed in the Administrative Procedure Act (APA), could not be
construed to include the President.⁶³ Specifically at issue was whether provisions of
the APA authorizing review of final agency action applied to the presidential action
taken pursuant to statute.⁶⁴ The Court noted that while the APA exempts Congress,
the courts, territories of the United States and the District of Columbia from review,
no express provision removes the President from its ambit. Despite the negative
implication that presidential actions are covered under the APA arising from the
express preemption of the other bodies, the Court held the statute inapplicable.
Explaining this decision, the Court stated that “out of respect for the separation of
powers and the unique constitutional position of the President,” it “would require an
express statement by Congress before assuming it intended the President’s
performance of his statutory duties to be reviewed” under the APA.⁶⁵ Given the
status of the Vice President as a constitutional officer and the proximity of the
NEPDG to the President, it is possible that a reviewing court would likewise require
an explicit statement from Congress prior to acknowledging GAO’s authority in the
present scenario.
It is important to note, however, that the legislative history surrounding the
enactment of §716 indicates that Congress intended for the President and his
principal advisers to be subject to suit, potentially mitigating the effect of the Court’s

⁶¹(...continued)
request NEPDG records based on the fact that while §717(b)(3) states that an evaluation
may be requested by a “committee of Congress with jurisdiction over the program or
activity,” the current investigation was initiated at the behest of two individual
Congressmen. Id. at 48. While a literal reading of §717(b)(3) would seem to support this
position, the Supreme Court rejected an identical argument in Bowsher v. Merck & Co., 460
U.S. 824, 844 (1983), stating that if the “records sought by GAO are within the scope of the
access-to-records provisions, the fact that the Comptroller General’s request had its origin
in the requests of Congressmen or that the GAO reported the data to Congress does not
vitiate its authority.” Further, §717(b)(1) empowers the Comptroller General to conduct an
investigation on his own initiative. It should be remembered, however, that the district court
in Walker found it significant that Congress had not authorized the present suit. See, Walker,

230 F.Supp.2d at 69.

⁶²31 U.S.C. §701(1); 31 U.S.C. §717(a).
⁶³Franklin v. Massachusetts, 505 U.S. 788 (1992).
⁶⁴Id. at 801.
⁶⁵Id. at 800-801.

decision in Franklin.⁶⁶ Discussing the ability of the President or the Director of
OMB to prevent a suit by the Comptroller General, the Senate Report accompanying
the General Accounting Office Act of 1980⁶⁷ states:
“[W]ith regard to enforcement actions at the Presidential level,
certifications provided for under section102(d)(3) [currently 31 U.S.C. §716
(d)(1)(C)] of the bill are intended to authorize the President and the Director
of the Office of Management and Budget to preclude a suit by the
Comptroller General against the President and his principal advisers and
assistants, and against those units within the Executive Office of the
President whose sole function is to advise and assist the President, for
information which would not be available under the Freedom of Information
Act.”⁶⁸
From this statement, it appears that Congress intended to imbue the
Comptroller General with the authority to file suit against the President and his
principal advisers. Specifically, it seems that there would be no reason for Congress
to provide the certification provision unless the President and his advisers were
covered. Given this apparent intention, it would appear that Congress conceived of
the term “agency,” as used in Chapter 7 of Title 31, as necessarily including the
President and his principal advisers. Furthermore, the structure of the certification
provision itself contemplates high level access by GAO, given that it enables the
President to prevent access to deliberative information that could “impair
substantially the operations of the Government.”⁶⁹ Thus, while the President and his
advisors are not expressly included in the aforementioned definitions, it is possible
that a reviewing court would find the structure and legislative history of §716
sufficiently explicit to allow suit against the Vice President or the NEPDG in the
current case.
Congressional Delegation of Investigative Authority.
While the aforementioned statutory arguments were cited by both parties as
being dispositive of the controversy, the Vice President also asserted that the
initiation of a lawsuit by GAO to enforce its statutory right of access pursuant to
§716 constituted the execution of the laws of the United States,⁷⁰ a power which is

⁶⁶S. Rep. No. 96-570, 96^th Cong., 2^nd Sess. (1980); reprinted in 1980 U.S.C.C.A.N. 732.
⁶⁷Pub. L. 96-226, 96^th Cong., 2^nd Sess. (1980).
⁶⁸S. Rep. No. 96-570, at 8, 1980 U.S.C.C.A.N. at 739.
⁶⁹31 U.S.C. §716(d)(1)(C). According to the Senate Report, the certification provision
“represents a compromise” to objections by the Executive Branch that the enforcement
authority contained in §716 could endanger the confidentiality of highly sensitive
information. S. Rep. No. 96-570 at 6-8, 1980 U.S.C.C.A.N. at 737-739.
⁷⁰See “Def’s Motion to Dismiss” at 62. The Vice President also argued that allowing GAO
to access information regarding the activities of the NEPDG would violate the separation
of powers doctrine by intruding on the President’s constitutional authority to receive advice
from his principal officers. In forwarding this argument, the Vice President relied heavily
(continued...)

committed solely to the Executive Branch.⁷¹ To properly elucidate an analysis of the
ability of Congress to delegate investigatory and subpoena enforcement authority to
the GAO, it is first necessary to consider the scope of Congress’ oversight authority.
While there is no definitive constitutional or statutory provision imbuing
Congress with investigative authority, a long line of Supreme Court precedent
establishes Congress’ power to engage in oversight and investigation of any matter
related to its legislative function.⁷² Unless there is a countervailing constitutional
privilege or a self-imposed statutory restriction upon its authority, Congress
possesses the essentially unfettered power to compel necessary information from
executive agencies, private persons and organizations. Even though the Constitution
does not contain any express provision authorizing Congress to conduct
investigations and take testimony in support of its legislative functions, the Supreme

⁷⁰(...continued)
on the Supreme Court’s holding in Public Citizen v. Department of Justice, 491 U.S. 440
(1989).
In Public Citizen, the Supreme Court addressed the question of whether the Federal
Advisory Committee Act (FACA) applied to advice to the DOJ from the American Bar
Association’s Standing Committee on Federal Judiciary regarding nominees for federal
judgeships. The Court, while acknowledging that the ABA Committee furnished advice and
recommendations to the President via the DOJ, nonetheless found that the committee was
not covered by FACA. Id. at 452. In reaching this determination, the Court stated that it was
“an axiom of statutory interpretation that ‘where an otherwise acceptable construction of a
statute would raise serious constitutional problems, the Court will construe the statute to
avoid such problems unless such construction is plainly contrary to the intent of Congress.’”
Id. at 466. Noting that the application of FACA would present “formidable constitutional
difficulties” regarding infringement upon “the President’s Article II power to nominate
federal judges,” as well as the separation of powers doctrine, the Court applied this principle
of statutory interpretation to hold that the Committee was not utilized by the President in a
manner that would trigger the application of the Act. Id. at 467.
It is important to note that the decision in Public Citizen focused on the constitutional
difficulties that would arise if the provisions of FACA were allowed to intrude on the
President’s ability to gather information necessary to exercise his plenary Article II power
to nominate judges. See Public Citizen, 491 U.S. at 488-489 (Kennedy, J., concurring).
Accordingly, there is cause for doubt that a reviewing court would find a constitutional
difficulty in the current scenario, given that the Opinions Clause is not generally considered
to be a source of substantive constitutional power. See Youngstown Sheet and Tube Co. v.
Sawyer, 343 U.S. 579, 640-641 (1952). Nonetheless, it is possible that a reviewing court
could determine that GAO’s suit, under the circumstances presented in this case, interfered
with the President’s constitutional authority to receive advice from his closest advisors.
⁷¹See Buckley v. Valeo, 424 U.S. 1, 140-141; Springer v. Philippine Islands, 277 U.S. 189,

201-202 (1928).

⁷²For a thorough analysis of legal principles governing congressional oversight, See Morton
Rosenberg, Investigative Oversight: An Introduction to the Law, Practice and Procedure of
Congressional Inquiry, Congressional Research Service Report No. 95-464A, April 7, 1995.

Court has held conclusively that congressional investigatory power is so essential that
it is implicit in the general vesting of legislative power in the Congress.⁷³
In Eastland v. United States Serviceman’s Fund, for instance, the Court stated
that the “scope of its power of inquiry...is as penetrating and far-reaching as the
potential power to enact and appropriate under the Constitution.”⁷⁴ Also, in Watkins
v. United States, the Court emphasized that the “power of the Congress to conduct
investigations is inherent in the legislative process. That power is broad. It
encompasses inquiries concerning the administration of existing laws as well as
proposed or possibly needed statutes.”⁷⁵ The Court further stressed that Congress’
power to investigate is at its peak when focusing on alleged waste, fraud, abuse, or
maladministration within a government department. Specifically, the Court explained
that the investigative power “comprehends probes into departments of the federal
government to expose corruption, inefficiency, or waste.”⁷⁶ The Court went on to
note that the first Congresses held “inquiries dealing with suspected corruption or
mismanagement of government officials.”⁷⁷ Given these factors, the Court recognized
“the power of the Congress to inquire into and publicize corruption,
maladministration, or inefficiencies in the agencies of Government.”⁷⁸
As a corollary to this accepted oversight authority, the Supreme Court has
likewise determined that the “[i]ssuance of subpoenas...has long been held to be a
legitimate use by Congress of its power to investigate.”⁷⁹ In particular, the Court has
repeatedly cited the principle that:
“A legislative body cannot legislate wisely or effectively in the absence
of information respecting the conditions which the legislation is intended to
affect or change; and where the legislative body does not itself possess the
requisite information — which not infrequently is true — recourse must be
had to others who do possess it. Experience has taught that mere requests for
such information often are unavailing, and also that information which is
volunteered is not always accurate or complete; so some means of
compulsion are essential to obtain what is needed. All this was true before
and when the Constitution was framed and adopted. In that period the power
of inquiry — with enforcing process — was regarded and employed as a

⁷³E.g., McGrain v. Daugherty, 272 U.S. 135 (1927); Watkins v. United States, 354 U.S. 178
(1957); Barenblatt v. United States, 360 U.S. 109 (1959); Eastland v. United States
Servicemen’s Fund, 421 U.S. 491 (1975); Nixon v. Administrator of General Services, 433
U.S. 425 (1977); See also, United States v. A.T.T., 551 F.2d 384 (D.C. Cir. 1976) and 567
F.2d 1212 (D.C. Cir. 1977).
⁷⁴421 U.S. at 504, n. 15 (quoting Barenblatt, supra, 360 U.S. at 111).
⁷⁵354 U.S. at 187.
⁷⁶Id.
⁷⁷Id. at 182.
⁷⁸Id. at 200, n.33.
⁷⁹Eastland v. United States Servicemen’s Fund, 421 U.S. at 504.

necessary and appropriate attribute of the power to legislate — indeed, was
treated as inhering in it.”⁸⁰
Given that these cases establish Congress’ expansive authority to investigate and
compel information from the Executive Branch, the question turns to whether this
power may be delegated to an agent of the legislative branch. It is well established
that Congress possesses the fundamental ability to delegate investigative authority
to an entity such as GAO. In Buckley v. Valeo, for instance, the Supreme Court, while
invalidating certain functions of the Federal Election Commission on Appointments
Clause grounds, stated that “[i]nsofar as the powers confided in the Commission are
essentially of an investigative nature, falling in the same general category as those
powers which Congress might delegate to one of its own committees, there can be
no question that the Commission as presently constituted may exercise them.”⁸¹
A review of the applicable law indicates that the statutory enforcement scheme
of §716 appears to comport with constitutional requirements. In particular, reviewing
courts have determined that enforcement of a subpoena through judicial process is
not “execution of the laws of the United States” as contemplated for separation of
powers purposes. Such a determination was made in McDonnell Douglas Corp. v.
United States, where the Court of Appeals for the Eighth Circuit addressed a
challenge to the constitutionality of GAO’s access enforcement authority.⁸² Rejecting
the argument that an enforcement suit by GAO constituted execution of the law in
violation of the separation of powers doctrine, the court stated that GAO’s suit was
“[f]ar from being a case in which the [Comptroller General] brought suit against
[McDonnell Douglas Corporation] for breaching the law, the [Comptroller General],
in this case, was merely seeking information for a legitimate investigative purpose.”⁸³
Further stressing the legitimate investigative nature of GAO’s suit, the court went on
to explain that the issuance of a judicially enforceable subpoena was “necessary to
accomplish” its investigative mission and that a determination to the contrary would
“render meaningless the [Comptroller General’s] role as an investigating arm of
Congress.”⁸⁴ A similar conclusion was reached by the Court of Appeals for the
Federal Circuit in a related case: “[t]he power of the Executive, under the
Constitution, to execute the laws is not involved here. The 1980 Act does not erode
the Executive’s authority.”⁸⁵ Based on these two appeals court rulings, it is possible
that a reviewing court would uphold GAO’s access enforcement authority in the

⁸⁰McGrain v. Daugherty, 273 U.S. at 175; See also, Buckley v. Valeo, 424 U.S. 1, 138
(1976), Eastland v. United States Servicemen’s Fund, 421 U.S. at 504-505.
⁸¹424 U.S. 1, 137 (1976). See also, Hannah v. Larche, 363 U.S. 420, 427 n.9, 454-485
(1960) (approving the vesting in the Civil Rights Commission, an advisory body, subpoena
issuance and, “as is customary when Congress confers subpoena power on an investigatory
agency” subpoena enforcement authority, and listing 20 examples of such congressional
delegations to executive departments and agencies, independent agencies and commissions,
independent regulatory agencies, and legislative branch entities as far back as 1800).
⁸²751 F.2d 220 (8^th Cir. 1984).
⁸³Id. at 225.
⁸⁴Id. at 225.
⁸⁵McDonnell Douglas Corp. v. United States, 754 F.2d 365, 368 (Fed. Cir. 1985).

current case as it pertains to information sought in aid of GAO’s investigatory duties,
as distinguished from activities constituting “execution of the laws of the United
S t at es.”⁸⁶
Executive Privilege.
In the hypothetical event that a reviewing court determined that the weight of
the law fell in GAO’s favor regarding the statutory and constitutional issues
discussed above, it is possible that the Administration would have asserted that the
requested information was covered by the doctrine of executive privilege.
Just as the Constitution contains no provisions authorizing the investigatory
and oversight functions of Congress, there is likewise no express grant of executive
privilege. However, beginning with President Washington, the Executive Branch has
claimed that the separation of powers doctrine implies that the President possesses
the power to withhold confidential information in the face of legislative and judicial
demands.⁸⁷
Politically speaking, it is rare for interbranch disputes over contested
information to reach the courts for a judicial determination on the merits.
Consequently, the existence of a presidential confidentiality privilege was not
judicially established until the Watergate era, when the courts recognized the
presidential confidentiality privilege as an inherent aspect of presidential power.⁸⁸ In

⁸⁶It should also be noted that this conclusion adheres, irrespective of the Supreme Court’s
decision in Bowsher v. Synar, 478 U.S. 714 (1986). In Bowsher, the Court addressed the
constitutionality of the Gramm-Rudman Deficit Reduction Act. Under the Act, the
Comptroller General was empowered to review deficit estimates from the Office of
Management and Budget and the Congressional Budget Office, and to mandate spending
reductions to meet a specified deficit level. The Court found that the Act imbued the
Comptroller General, an official appointed by the President, but removable by Congress,
with the power to interpret provisions of the Act, and to dictate the means by which the
Executive Branch implemented budget reduction measures. Id. at 728. The Court determined
that the Comptroller General, a legislative branch officer, was performing the functions of
an executive officer in executing a law passed by Congress, a duty constitutionally
committed to an officer of the Executive Branch. Id. at 733. This dynamic rendered the Act
unconstitutional, according to the Court, since permitting “the execution of the laws to be
vested in an officer answerable only to Congress would, in practical terms, reserve in
Congress control over the execution of laws” in violation of the separation of powers
doctrine. Id. at 726. As the factors cited by the Court indicate, the scope of the holding in
Bowsher is clearly limited to instances where congressional agents are imbued with the
authority to execute the laws. As such, it seems evident that the ability of GAO to bring suit
pursuant to a “legitimate investigative purpose” is not implicated. McDonnell, 751 F.2d at

225.

⁸⁷See Morton Rosenberg, Presidential Claims of Executive Privilege: History, Law, Practice
and Recent Developments, Congressional Research Service, Report No. RL30319,
September 21, 1999.
⁸⁸United States v. Nixon, 418 U.S. 683 (1974); See also, Nixon v. Sirica, 487 F.2d 700 (D.C.
Cir.1973); Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725
(continued...)

United States v. Nixon, the Supreme Court addressed a claim of executive privilege
in response to a subpoena issued during a criminal trial to the President at the request
of the Watergate Special Prosecutor. The Supreme Court found a constitutional basis
for the doctrine of executive privilege, noting that “[w]hatever the nature of the
privilege of confidentiality of Presidential communications in the exercise of Article
II powers, the privilege can be said to derive from the supremacy of each branch
within its own assigned area of constitutional duties.”⁸⁹ The Court went on to explain
that while it considered presidential communications to be “presumptively
privileged,” there was no support for the contention that the privilege was absolute,
precluding judicial review whenever asserted, as such a conclusion “would upset the
constitutional balance of a ‘workable government.’”⁹⁰ In particular, the Court
explained that “when the privilege depends solely on the broad, undifferentiated
claim of public interest in the confidentiality of such conversations, a confrontation
with other values arises. Absent national security secrets we find it difficult to accept
the argument that even the very important interest in confidentiality of Presidential
communications is significantly diminished by production” of materials needed to
enforce criminal statutes.⁹¹
Upon determining that a claim of privilege is not absolute, the Court weighed
the President’s interest in confidentiality against the judiciary’s need for the materials
in a criminal proceeding, stating that it was “necessary to resolve those competing
interests in a manner that preserves the essential functions of each branch.”
Concluding this calculus, the Court held that the judicial need for the tapes, as
established by a “demonstrated, specific need for evidence in a pending criminal
trial,” was of greater significance than the President’s “generalized interest in
confidentiality....”⁹² It should be noted that the Court specifically limited the scope
of its decision, stating that it was not concerned with “the balance between the
President’s generalized interest in confidentiality...and congressional demands for
information.”⁹³
Coupled with related and subsequent decisions, the Court’s decision in Nixon
established the “contours of the presidential communications privilege.”⁹⁴ Pursuant
to the standards developed in these cases, the President may invoke the privilege
“when asked to produce documents or other materials that reflect presidential
decisionmaking and deliberations and that the President believes should remain

⁸⁸(...continued)
(D.C. Cir. 1974); Nixon v. Administrator of Gen. Services., 433 U.S. 425 (1977).
⁸⁹United States v. Nixon, 418 U.S. at 705.
⁹⁰Id. at 707.
⁹¹Id. at 706.
⁹²Id. at 685, 713.
⁹³Id. at 712, n. 19.
⁹⁴In re Sealed Case (Espy), 121 F.3d 729, 744 (D.C. Cir. 1997).

confidential.”⁹⁵ As noted above, such an invocation renders the requested materials
presumptively privileged, requiring an adequate showing of need to overcome the
claim. This standard was further clarified in In re Sealed Case (hereinafter referred
to as “Espy”), where the Court of Appeals for the District of Columbia Circuit
addressed issues regarding the scope of the privilege, whether and to what extent the
privilege extends to presidential advisers, whether the President must have seen or
had knowledge of the material at issue, and the standard of need necessary to
overcome a claim of privilege.⁹⁶
Espy arose from an Office of Independent Counsel (OIC) investigation
regarding allegations of impropriety by former Secretary of Agriculture Mike Espy.
As part of the investigation, a grand jury issued a subpoena for all documents relating
to a report prepared for the President by the White House Counsel’s Office regarding
the allegations. Regardless of the fact that the President had not viewed any of the
documents underlying the report, he withheld 84 documents on the basis of
“executive/deliberative privilege.” The OIC moved to compel production of the
withheld documents. Subsequent to in camera review, the district court upheld the
claims of privilege forwarded by the President. In its decision, the Court of Appeals
agreed generally with the district court’s determination that the documents in
question were subject to the presidential communications privilege.⁹⁷ However, the
court vacated and remanded in order to provide the OIC an opportunity to provide a
sufficient justification for its need for certain items of evidence.⁹⁸
At the outset of its opinion, the court distinguished between the presidential
communications privilege and the deliberative process privilege, noting that while
the former has a constitutional basis in the separation of powers doctrine, the latter
is a common law privilege applicable to the decisionmaking of executive officials
generally.⁹⁹ The court went on to explain that while both privileges are qualified, the
deliberative process privilege “disappears altogether when there is any reason to
believe government misconduct occurred,” whereas “the presidential
communications privilege is more difficult to surmount,” requiring a “focused
demonstration of need, even when there are allegations of misconduct by high level
offi ci al s.”¹⁰⁰
Turning to the question of whether the subpoenaed documents could be claimed
to be privileged even though the President had never viewed them, the court stated

⁹⁵Id.
⁹⁶Id.
⁹⁷Id. at 758.
⁹⁸Id. at 761-762.
⁹⁹Id. at 745-746.
¹⁰⁰Id. at 746. The deliberative process privilege allows the government to withhold
information that would reveal recommendations and deliberations pertaining to the
formulation of governmental decisions and policies, and does not apply to documents that
merely state or explain a decision made by the government, or material that is purely factual.
Id. at 737.

that “the public interest is best served by holding that communications made by
presidential advisers in the course of preparing advice for the President come under
the presidential communications privilege, even when these communications are not
made directly to the President.”¹⁰¹ The court based this conclusion on what it
characterized as “the President’s dependence on presidential advisers and the
inability of the deliberative process privilege to provide advisers with adequate
freedom from the public spotlight,” as well as “the need to provide sufficient elbow
room for advisers to obtain information from all knowledgeable sources.”¹⁰² Further
illuminating the scope of the privilege, the court stated that it “must apply both to
communications which these advisers solicited and received from others as well as
those they authored themselves. The privilege must also extend to communications
authored or received in response to a solicitation by members of a presidential
adviser’s staff, since in many instances advisers must rely on their staff to investigate
an issue and formulate the advice to be given to the President.”¹⁰³
Recognizing that a decision extending the presidential communications privilege
to presidential advisers “could pose a significant risk of expanding to a large swath
of the executive branch a privilege that is bottomed on a recognition of the unique
role of the president,” the court limited the privilege to White House advisers and
staff that are in “operational proximity” to presidential decisionmaking. Specifically,
the court stated that “the privilege should not extend to staff outside the White House
in executive branch agencies. Instead the privilege should apply only to
communications authored or solicited and received by those members of an
immediate White House adviser’s staff who have broad and significant responsibility
for investigating and formulating the advice to be given to the President on the
particular matter to which the communications relate. Only communications at that
level are close enough to the President to be revelatory of his deliberations or to pose
a risk to the candor of his advisers.”¹⁰⁴ The court went on to stress that the privilege
was not applicable to information that does not “call ultimately for direct
decisionmaking by the President.”¹⁰⁵
While the principles established above are applicable to the scenario at issue in
Walker v. Cheney, it is unclear whether a reviewing court would have accepted a
claim of privilege in the case. In particular, it seems evident that the Vice President
and the staff of the NEPDG would qualify as “immediate White House advisers” as

¹⁰¹Id. at 752.
¹⁰²Id. at 751-752.
¹⁰³Id. at 752. Regarding the standard of need necessary to overcome a claim of privilege, the
court determined that a party must demonstrate that the requested documents are relevant
to the proceeding and cannot be obtained elsewhere with due diligence. Id. at 754-755.
¹⁰⁴Id. at 752. “[I]t is ‘operational proximity’ to the President that matters in determining
whether the ‘[t]he President’s confidentiality interest’ is implicated (quoting American Ass’n
of Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898, 910 (D.C. Cir. 1993) (emphasis
omitted)).
¹⁰⁵Id. at 752.

conceived of in Espy.¹⁰⁶ To the extent that the Vice President and his staff were
engaged in the “investigation and formulation of advice to be given to the President,”
regarding a national energy policy, a substantial argument could be made that such
information would fall within the ambit of the presidential communications
privilege.¹⁰⁷
However, it should be noted that in Walker v. Cheney, any hypothetical assertion
of privilege would probably have been based on a broad claim of public interest in
the confidentiality of the requested material. Specifically, GAO’s current information
request, as outlined in the complaint, is significantly less intrusive than the demands
contained in the initial demand letter.¹⁰⁸ Whereas GAO’s original request sought
information that could be regarded as reflective of the deliberative product and
processes of the NEPDG, the complaint as filed sought:
“[D]ocuments that describe (1) who was present at each of the meetings
conducted by the NEPDG, including the names of the attendees, their titles,
and the office represented; (2) with whom the Vice President as chair of the
and each of the NEPDG support staff met to gather information for the
proposed national energy policy, including the name, title and office or
clients represented; and the date, purpose, agenda, and location of the
meetings; (3) how the Vice President, the members of the NEPDG, or others
determined who would be invited to the meetings; and (4) the direct and
indirect costs that were incurred in developing the proposed national energy
policy.”¹⁰⁹
Accordingly, while it is conceivable that the information requested in the
complaint pertaining to the purpose and agenda of NEPDG meetings with outside
interests and the process by which the NEPDG determined who would be invited to
such meetings could be construed as privileged, there is no indication that the
material was in any way related to the types of information, such as national security
secrets, that the Supreme Court deemed worthy of the highest levels of protection in
Nixon.¹¹⁰ Furthermore, it seems unlikely that the material sought by GAO would have
been deemed revelatory of presidential deliberations in light of the fact that it does
not appear to relate to information that would “call ultimately for direct
decisionmaking by the President.”¹¹¹ Rather, the material sought by GAO appears to
have encompassed information pertaining to the scope and composition of meetings
that were to provide the basis for the subsequent formulation of recommendations
and advice to be presented to the President regarding the development of a national

¹⁰⁶See Espy, 121 F.3d at 752.
¹⁰⁷Id.
¹⁰⁸See n.10 and accompanying text, supra.
¹⁰⁹Walker v. Cheney, Complaint for Declaratory and Injunctive Relief, p.24, Case No.

1:02CV00340 (D.D.C. February 22, 2002).

¹¹⁰See Nixon, 418 U.S. at 706-707.
¹¹¹Espy, 121 F.2d at 752.

energy policy.¹¹² Thus, to the extent that GAO’s request did not seek information
regarding the direct deliberations of individuals in “operational proximity” to the
President in formulating policy advice, it would not appear that the concerns voiced
by the court in Espy would be implicated. As such, it is possible that a reviewing
court would not have accepted a hypothetical claim of privilege. In Walker v. Cheney,
much would have depended on a reviewing court’s interpretation of the scope of
GAO’s request for information.
Conclusion
The district court in Walker v. Cheney predicated its decision on a determination
that the Comptroller General had not suffered a personal or institutional injury
sufficient to merit judicial resolution of issues affecting the balance of power
between Congress and the Executive Branch. Given the broad language employed by
the court, it seems evident that GAO’s ability to exercise leverage in its oversight of
the Executive Branch could be significantly limited, especially if the decision is
interpreted as prohibiting enforcement actions against executive departments and
agencies as well as the President and Vice President. Furthermore, even if the
Comptroller general had pursued an appeal in an effort to obtain a reversal of the
district court’s standing analysis, there were still a host of significant statutory and
constitutional issues that could have affected the outcome of the dispute.
As noted above, while GAO’s investigatory and access enforcement authority
have a strong historical and statutory basis, there are competing principles of
statutory interpretation that could influence a reviewing court’s consideration of this
authority in any future conflicts with the executive branch. Likewise, the
aforementioned constitutional issues regarding the delegation of access enforcement
authority to the GAO and the applicability of the presidential communications
privilege to the activities of presidential advisors could prove to be of substantial
significance in any future disputes. Given the breadth and importance of the issues
implicated in Walker v. Cheney, it would appear that the only certainty at this
juncture is that the district court’s decision will have a significant impact on the
future of legislative oversight in the congressional/executive context.

¹¹²In particular, Vice President Cheney stated that the meetings with outside interests were
separate from the NEPDG’s internal deliberations: “[w]e heard from a broad variety of folks
out there, but they were not in the meetings where we put together the policy and made
recommendations to the president.” Joseph Curl, “Cheney Refuses Demand by GAO,
Washington Times, at A1, A16, July 27, 2001.