by John Dean
September 6, 2003
This month, the General Accounting Office (GAO) -- the investigative and auditing arm of Congress -- issued a report that contains some startling revelations. Though they are couched in very polite language, they are bombshells nonetheless.
The report -- entitled "Energy Task Force: Process Used to Develop the National Energy Policy" -- and its accompanying Chronology strongly imply that the administration has, in effect, been paying off its heavy-hitting energy industry contributors. It also very strongly implies that Vice President Dick Cheney lied to Congress.
The Background: How Cheney Stonewalled GAO
In a sense, this story begins during the close 2000 Presidential election, when energy industry special interests were big-dollar contributors to the Bush-Cheney campaign. (In 2004's re-election campaign, they will doubtless be called upon once again.)
After he was elected -- and very much beholden to those contributors -- Bush put Cheney in charge of developing the National Energy Policy. To do so, Cheney convened an Energy Task Force.
Cheney's selection alone was ominous: He had headed Halliburton, just the kind of big-dollar Republican energy industry contributor that had helped Bush-Cheney win the election in the first place.
The Energy Task Force might have operated in absolute secrecy, were it not for GAO. GAO is a nonpartisan agency with statutory authority to investigate "all matters related to the receipt, disbursement, and use of public money," so that it can judge the expenditures and effectiveness of public programs, and report to Congress on what it finds.
To fulfill its statutory responsibility, GAO sought documents from Vice-President Cheney relating to Energy Task Force expenditures. But in a literally unprecedented move, the White House said no.
Amazingly, it did so without even bothering to claim that the documents sought were covered by executive privilege. It simply refused.
On August 2, 2001, Vice President Cheney sent a letter -- personally signed by him -- to Congress demanding, in essence, that it get the Comptroller off his back. In the letter, he claimed that his staff had already provided "documents responsive to the Comptroller General's inquiry concerning the costs associated with the [Energy task force's] work." As I will explain later, this turned out to be a lie.
In the end, GAO had to go to court to try to get the documents to which it plainly was entitled. On December 9, 2002, GAO lost in court, though the decision was incorrect.
Then, on February 9, 2003, the Comptroller General announced GAO's decision not to appeal. He said he feared that another adverse decision would cause the agency to lose even more power, more permanently. Several news accounts suggest that it was the Republican leadership of Congress that stopped the appeal.
This August's Report Reveals Cheney Lied About Providing Responsive Documents
Then this August's Report was issued. It was not the thorough, comprehensive Report GAO wanted it to be. (Indeed, GAO's Comptroller General has stressed that "the Vice President's persistent denial of access to" records "precluded GAO from fully achieving our objectives and substantially limited our analysis.") But it is enough to shock, and disturb, the reader.
The Report shows that Cheney's claim to Congress, in the August 2, 2001 letter, that responsive documents were provided to GAO, was plainly false.
According to the Report, Cheney provided GAO with 77 pages of "documents retrieved from the files of the Office of the Vice President responsive to" GAO's inquiry regarding the Energy Task Force's "receipt, disbursement, and use of public funds."
To any lawyer, a mere 77-page document production seems suspiciously slim -- especially when it is meant to represent information from a group of people on a fairly broad topic. Surely there were more documents that were not turned over.
Moreover, it turned out, as the Report reveals, that the documents that were turned over were useless: "The materials were virtually impossible to analyze, as they consisted, for example, of pages with dollar amounts but no indication of the nature or purpose of the expenditure." They were further described as "predominantly reimbursement requests, assorted telephone bills and random items, such as the executive director's credit card receipt for pizza."
In sum, the incomplete document production was not only nonresponsive -- it was insulting. So the GAO pressed for responsive documents numerous times in different ways: letters, telephone exchanges and meetings.
Perhaps the most pointed of these was a July 18, 2001 letter from the Comptroller to the Vice President. It noted that GAO had "been given 77 pages of miscellaneous records purporting to relate to these direct and indirect costs. Because the relevance of these records is unclear, we continue to request all records responsive to our request, including any records that clarify the nature and purpose of the costs." (Emphasis added.)
Cheney's False Statement About the Responsive Documents Was Plainly Intentional
Despite receiving this letter, Cheney still claimed to Congress, a few weeks later, on August 2, that responsive documents had been produced.
Of course, Cheney is a busy man. Yet there can be no question as to whether he was aware of the July 18, 2001 letter from the Comptroller complaining about the 77 pages of documents' being unresponsive: He even attached it to his own August 2 letter to Congress, as part of a chronology. And again, he personally signed that August 2 letter.
Nor can there be any question that Cheney knows what it means to produce responsive documents -- and not to do so. In the same paragraph of the August 2 letter in which he claims he was responsive to the Energy Task Force request, he makes a lesser claim with respect to another GAO request -- stating that there, he had merely "provided substantial responses." (Emphasis added.)
Plainly, Cheney knows the difference between being responsive; offering a substantial response; and sending insulting non-responsive materials, featuring unexplained phone bills, columns of unidentified figures, and a pizza receipt.
Thus, Cheney's claim to have produced responsive documents was a false statement and, all evidence suggests, an intentional one. That means it is also a criminal offense -- a false statement to Congress.
GAO's Polite Tone Belies The Shocking Evidence Its Report Offers
The straight arrows at GAO were no doubt horrified that the Vice President of the United States, who is the Constitutional presiding officer of the U.S. Senate, would deliberately mislead the Congress with such blatant misinformation.
Being nonpartisan, they refrained from accusing the Vice President of this crime. But as their Report shows, they included evidence that makes the crime evident for all to see. They also provided evidence of what the motive for the crime was.
The Report quietly -- but tellingly -- notes that the Vice President's team "solicited input from, or received information and advice from nonfederal energy stakeholders, principally petroleum, coal, nuclear, natural gas, and electricity industry representatives and lobbyists." (Emphasis added.)
In other words, if the Vice President is not trying to cover up the fact that he met with big energy interests -- including past contributors -- and allowed them a large role in settling our nation's energy policy, why all the secrecy? That is what other observers have suspected -- and what has been rumored from the beginning. Thanks to Cheney's obfuscation, we still can't know for certain. Yet thanks to GAO, we do now know for certain that he lied to Congress to cover up something, and there is little doubt in my mind as to what he is hiding.
John Dean is the former White House counsel for President Richard Nixon and author of The Rehnquist Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme Court. This commentary first appeared on FindLaw.com (www.findlaw.com).