D.C. Circuit tosses White House appeal on visitor logs

Monday, July 14, 2008

WASHINGTON — A federal appeals court late last week set back the White House’s efforts to keep the names of its visitors secret.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia threw out the government’s appeal, ruling it was too early in the case for the appeals court to intervene. The case was brought by a watchdog group trying to find out how often prominent religious conservatives visited the White House and Vice President Dick Cheney’s residence.

The Bush administration was appealing a federal judge’s decision last December that the government should gather the records the watchdog group wants.

The appeals court said in Citizens for Responsibility and Ethics in Washington v. Department of Homeland Security that ruling on the government’s appeal at this time would be “premature” because the government had not yet been ordered to release any records. Rather, “the district court has simply heard and rejected the Secret Service’s legal defense that its visitor logs fail to qualify as ‘agency records,’” the judges said.

“Under the court’s order,” the panel added, “the Secret Service will have to search for and locate any responsive documents and claim any exemptions it believes applicable. At that point, the court may agree with the agency, allowing it to withhold the requested records, in which case the government would have no cause to appeal.”

Or, the panel said, both sides in the case could reach a settlement. “In either case, appellate review at this stage is premature,” the panel said.

The case now goes back to U.S. District Judge Royce Lamberth, who ruled in December that White House visitor logs are public documents subject to disclosure requests under the Freedom of Information Act.

The Bush administration argued that releasing those documents would trample on the president’s right to seek private, confidential advice.

White House calendars are not normally considered public, but Lamberth said logs maintained by the Secret Service are not covered by that exemption.

Despite the appeals court ruling against the White House, public disclosure of visitor logs is by no means assured. The Bush administration can still raise a variety of legal arguments in an attempt to keep the identities of White House visitors secret.

But appeals court Judge David Tatel said the document request from Citizens for Responsibility and Ethics in Washington is narrowly drawn and can be processed.

Handling CREW’s request would not require the president, Cheney or their staffs to sort through mountains of files, said Tatel.

The burden “should prove minimal,” he added.

While last week’s ruling was a loss for the Bush White House, the wait for the ruling delayed activity in the case for seven months, bringing the administration that much closer to the time when President Bush leaves office.

In the midst of the Jack Abramoff lobbying scandal several years ago, the Secret Service acquiesced as the White House and Cheney’s office took control of the White House visitor records.

President Clinton’s political opponents made extensive use of 1990s Secret Service logs documenting White House visits by donors, fundraisers, pardon-seekers, and former White House intern Monica Lewinsky.

Tatel, the judge who wrote the appeals court opinion, is a Clinton appointee. The other two members of the panel were Chief Judge David Sentelle, an appointee of President Reagan; and appeals judge Merrick Garland, a Clinton appointee.

CREW brought its lawsuit for the records against the Department of Homeland Security, of which the Secret Service is a part.

The appeals judges rejected the Bush administration’s reliance on the Supreme Court’s 2004 ruling in Cheney v. United States District Court, which said the judicial branch of government should hesitate before putting the president or vice president in the position of having to invoke specific privileges. The appeals court said it found that separation-of-powers argument unpersuasive in the current case.

In the 2004 ruling in favor of the Bush administration, Cheney himself was being sued for records of meetings between company executives and lobbyists and the vice president’s energy task force, which drafted a report highly supportive of the energy industry’s agenda.

Tags: , , , ,