The Law: Walker V. Cheney: Legal Insulation of the Vice President from GAO Investigations

Article excerpt

The tenure of the Bush administration has thus far been characterized by an orchestrated policy of restricting congressional and public access to information from executive agencies and the White House. There are several prominent examples of this strategy, including the issuance of Executive Order 13223 limiting the disclosure of presidential records; a claim of executive privilege regarding Department of Justice prosecutorial records that cast light upon past instances of corruption at the FBI; a memorandum by Attorney General John Ashcroft establishing a new policy advising federal agencies to limit to the extent possible the disclosure of information pursuant to FOIA requests; and, most recently, Executive Order 13292, which delays the release of certain classified documents and gives the government expanded authority to reclassify information.

Perhaps the most controversial of these actions was Vice President Dick Cheney's refusal to supply Comptroller General David Walker with information regarding the activities of the National Energy Policy Development Group. Cheney's refusal to acquiesce to GAO's demands for information resulted in the unprecedented initiation of a lawsuit by GAO in an effort to compel the requested information. The resulting case, Walker v. Cheney, was considered by many to be the most significant legal action between Congress and the executive branch since the Watergate era, and appeared destined for the Supreme Court. However, a district court held that GAO lacked standing to sue and did not address the merits of the case. In spite of the implications of the decision for GAO's oversight authority, Walker announced that he would not pursue an appeal.

While it is too early to ascertain the practical effect of the decision in Walker v. Cheney, the court's holding represents a significant victory for the aims of the administration, and could have a significant impact on executive-congressional relations in the oversight context. This article provides an overview of GAO's statutory authority and the events giving rise to the lawsuit, with a focus on the ramifications of the court's decision in light of the comptroller general's decision not to appeal.

GAO's Investigative Authority

GAO's primary audit authority is derived from section 312(a) of the Budget and Accounting Act of 1921. Currently codified at 31 U.S.C. [sections] 712, this provision directs the comptroller general to "investigate all matters related to the receipt, disbursement, and use of public money." Additionally, 31 U.S.C. [sections] 717(b) empowers the comptroller general to "evaluate the results of a program or activity the Government carries out under existing law." Under 31 U.S.C. [sections] 716, federal agencies are directed to provide the comptroller general with information regarding the duties, powers, activities, organization, and financial transactions of the agency. To effectuate this directive and buttress GAO's investigative power, [sections] 716 also authorizes the comptroller general to demand the release of relevant records and to sue for their production by a noncomplying agency.

Specifically, under [sections] 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 for noncompliance. 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. …