[Congressional Record Volume 147, Number 135 (Wednesday, October 10, 2001)]
[Senate]
[Pages S10447-S10448]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      EXECUTIVE BRANCH FUNCTIONING

  Mr. BYRD. I ask unanimous consent to have printed in the Record a 
letter addressed to the Senate from the Vice President, together with 
two appendices, on the subject of the interaction of the Vice 
President's staff with the General Accounting Office.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           The Vice President,

                                       Washington, August 2, 2001.
     To the Senate:
       I am writing to inform you of certain actions undertaken by 
     an agent of the Congress, Comptroller General David M. 
     Walker, which exceed his lawful authority and which, if given 
     effect, would unconstitutionally interfere with the 
     functioning of the Executive Branch.
       By memorandum of January 29, 2001, the President 
     established the National Energy Policy Development Group 
     (``Group''). The Group consists of six executive department 
     heads (Treasury, Interior, Agriculture, Commerce, 
     Transportation and Energy), two agency heads (Federal 
     Emergency Management Agency and Environmental Protection 
     Agency), three officers of the White House staff (Policy, 
     Economic Policy, Intergovernmental), and the Vice President. 
     The memorandum specified that the Group's ``functions shall 
     be to gather information, deliberate, and as specified in 
     this memorandum, make recommendations to the President.'' It 
     called for the Group to submit to the President a near-term 
     assessment and then a report setting forth ``a recommended 
     national energy policy 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 
     Group issued its report on May 16, 2001. The President 
     approved the report's recommendations, now commonly called 
     the National Energy Policy.
       The Comptroller General proposed to investigate the 
     workings of the Group and sought certain information from the 
     Vice President's staff. The first appendix to this Message is 
     a chronology of the interaction between the Comptroller 
     General and my staff on this matter. As a matter of comity, 
     my staff furnished substantial information regarding the 
     Group, providing written answers dated May 4, 2001 to 
     questions concerning the Group, a copy of the Presidential 
     Memorandum establishing the Group, and documents responsive 
     to the Comptroller General's inquiry concerning costs 
     associated with the Group's work. In response to separate 
     requests from the General Accounting Office, executive 
     agencies also have provided substantial responses concerning 
     the roles of their agency heads on the Group.
       On July 18, 2001, the Comptroller General sent to me a 
     letter which stated that he was reviewing ``the process by 
     which the National Energy Policy was developed'' and that the 
     purpose of the letter was to ``demand'' certain documents. 
     With regard to documents not already provided that the 
     Comptroller General has demanded, statutory and 
     constitutional reasons for not providing them are set forth 
     in the second appendix to this Message. I am furnishing a 
     copy of this Message, including its appendices, to the 
     Comptroller General so that the copy will serve as the 
     response to his letter of July 18, 2001 that he would receive 
     under Section 716(b)(1) of Title 31 of the U.S. Code if that 
     provision were applicable in this matter.
     Richard B. Cheney.
                                  ____


  Appendix 1: Chronology of Interaction of the Vice President's Staff 
                   with the General Accounting Office

       On April 19, 2001, Representatives John Dingell (D-MI) and 
     Henry Waxman (D-CA) sent a letter to the Executive Director 
     of the National Energy Policy Development Group (``Group''), 
     asking a lengthy series of questions and asking for all 
     records of the Group relating to its meetings. That same day, 
     they asked the General Accounting Office (GAO) to initiate an 
     investigation.
       On May 4, 2001, the Vice President's counsel forwarded to 
     Messrs. Dingell and Waxman answers from the Executive 
     Director of the Group to their questions.
       On May 8, 2001, a GAO Assistant Director faxed to the 
     Office of the Vice President a request to interview Group 
     officials and staff and for production of records and 
     information.
       On May 15, 2001, Representatives Dingell and Waxman sent 
     another letter to the Executive Director of the Group, 
     expressing dissatisfaction with the answers to their 
     questions previously received and requesting more information 
     and records, including all of the following relating to the 
     Group:
       ``. . . correspondence, memoranda, records, summaries of 
     personal conversations or interviews, minutes or records of 
     meetings or conferences, opinions or reports of consultants, 
     projections, statistical statements, drafts, contracts, 
     agreements, purchase orders, invoices, confirmations, 
     telegraphs, telexes, agendas, books, notes, pamphlets, 
     periodicals, reports, studies, evaluations, opinions, logs, 
     diaries, desk calendars, appointment books, tape recordings, 
     video recordings, e-mails, voice mails, computer tapes, or 
     other computer stored mater, magnetic tapes, microfilm, 
     microfiche, punch cards, all other records kept by 
     electronic, photographic, or mechanical means, charts, 
     photographs, notebooks, drawings, plans, inter-office 
     communications, intra-office and intra-departmental 
     communications, transcripts, checks and canceled checks, bank 
     statements, ledgers, books, records of statements of 
     accounts, and papers and things similar to any of the 
     foregoing, however denominated.''
       On May 16, 2001, the Vice President's counsel wrote to the 
     GAO General Counsel, asking the Comptroller General to 
     determine whether the proposed GAO inquiry was appropriate, 
     in compliance with the law, and, especially in light of 
     information already provided, a productive use of resources, 
     and asking the GAO General Counsel for a statement of GAO's 
     legal authority to conduct its proposed inquiry.
       On May 22, 2001, Representatives Dingell and Waxman wrote 
     to the Vice President's counsel stating that they were 
     ``astounded'' that the GAO's authority had been questioned.
       On May 25, 2001, the Vice President's counsel wrote to 
     counsel for Messrs. Dingell and Waxman, reporting on the 
     status of correspondence with GAO in the matter.
       On June 1, 2001, the GAO General Counsel wrote to the Vice 
     President's counsel, advising that the Comptroller General 
     wished to go forward with the inquiry and citing as authority 
     for the inquiry Section 712, 716, and 717 of Title 31 of 
     the U.S. Code. The letter said that GAO would 
     ``initially'' like to focus on:]
       ``1. Previously, you identified 9 meetings conducted by the 
     NEPDG and indicated that each meeting was held in the White 
     House Complex. For each meeting, we want to learn the name of 
     each attendee, title, and office represented, as well as the 
     duration of the meeting.
       ``2. Previously, you stated that 6 professional staff, 
     referred to as the Group support staff, were assigned to the 
     Office of the Vice President for the purpose of supporting 
     the NEPDG. We want to learn their name, title, office or 
     employer represented; the date on which that person began 
     working for that office; and their responsibilities.
       ``3. Previously, you indicated that various members of the 
     Group support staff met with many individuals to gather 
     information relevant to the NEPDG work. For each interview or 
     meeting, want to establish (a) its date and location, (b) the 
     persons met with, including their name, title, and office or 
     clients represented, (c) its purpose and agenda, (d) the 
     information presented, (e) whether minutes or notes were 
     kept, and (f) how members of the NEPDG or Group support staff 
     determined who would be invited to the interviews of 
     meetings.
       ``4. We are interested in learning whether the Vice 
     President met with individuals to gather information relevant 
     to the NEPDG and, if so, we want to obtain the same 
     information listed in question 3 above.
       ``5. We are interested in obtaining the direct and indirect 
     costs incurred by both the Vice President and the Group 
     support staff.
       ``After discussing these questions with you, we would also 
     like to arrange meetings with members of the Group support 
     staff to discuss meetings they conducted and the process they 
     used to develop information in support of the task force.''
       On June 7, 2001, the Vice President's counsel wrote to the 
     GAO General Counsel, advising that Sections 717 (which allows 
     GAO to investigate agency implementation of statutes, but no 
     performance of constitutional duties) and 716 of Title 31 of 
     the U.S. Code

[[Page S10448]]

     (which provides information collection procedures for 
     otherwise-authorized investigations) provide no basis for the 
     GAO inquiry, and that the limited authority of Section 712 
     (authorizing investigation of use of public money) would 
     provide support for only one of the questions asked, relating 
     to costs. The letter therefore stated that the Office of the 
     Vice President would search for documents responsive to the 
     GAO question regarding the direct and indirect costs of the 
     Group.
       On June 21, 2001, the Vice President's counsel sent a 
     letter to GAO forwarding 77 pages of documents responsive to 
     the GAO question regarding the direct and indirect costs of 
     the Group.
       On June 22, 2001, GAO sent to the Vice President's counsel 
     a letter claiming to have broad authority to investigate 
     under Sections 712 and 717 of Title 31 and indicating that 
     GAO may issue a ``demand letter'' under Section 716 of Title 
     31 that could lead to litigation.
       On July 9, 2001, in response to the request of Executive 
     Branch lawyers for an opportunity to meet with the GAO 
     General Counsel to see if a proper accommodation were 
     possible, the meeting occurred, but no proper accommodation 
     was reached.
       On July 18, 2001, the Comptroller General issued a letter 
     to the Vice President of the United States demanding 
     documents as follows:
       ``1. Your counsel identified nine meetings conducted by the 
     National Energy Policy Development Group (NEPDG) in his May 
     4, 2001, letter to the Chairmen and Ranking Minority Members 
     of the House Committee on Energy and Commerce and the House 
     Committee on Government Reform (hereinafter May 4 letter). We 
     request records providing the names of the attendees for each 
     meeting, their titles, and the office represented.
       ``2. In the May 4 letter, your counsel indicated that six 
     professional staff, referred to as the group support staff, 
     were assigned to the Office of the Vice President to provide 
     support to the NEPDG. We request records providing their 
     names, titles, the office each individual represented, the 
     date on which each individual began working for such office, 
     and the responsibilities of the group support staff.
       ``3. In the May 4 letter, your counsel indicated that 
     various members of the group support staff met with many 
     individuals to gather information relevant to the NEPDG work. 
     We request records providing the following information with 
     regard to each of these meetings: (a) the date and location, 
     (b) any person present, including his or her name, title, and 
     office or clients represented, (c) the purpose and agenda, 
     (d) any information presented, (e) minutes or notes, and (f) 
     how members of the NEPDG, group support staff, or others 
     determined who would be invited to the meetings.
       ``4. We request records providing the following information 
     with regard to any meetings the Vice President as chair of 
     the NEPDG had with individuals to gather information relevant 
     to the NEPDG. (a) the date and location, (b) any person 
     present, including his or her name, title, and office or 
     clients represented, (c) the purpose and agenda, (d) any 
     information presented, (e) minutes or notes, and (f) how the 
     Vice President or others determined who would be invited to 
     the meetings.
       ``5. We request any records containing information about 
     the direct and indirect costs incurred in the development of 
     the National Energy Policy. To date, we have been given 77 
     pages of miscellaneous records purporting to relate to these 
     direct and indirect costs. Because the relevance of many 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 these costs.''
       The GAO has also made separate requests for information 
     relating to the Group to various executive departments and 
     agencies and has received responses.
       On July 31, 2001, the Comptroller General and the Counsel 
     to the Vice President spoke by telephone regarding the 
     Comptroller General's letter of July 187, 2001 to the Vice 
     President.
       On August 1, 2001, the General Counsel of the General 
     Accounting Office and the Counsel to the Vice President spoke 
     by telephone regarding the Comptroller General's letter of 
     July 18, 2001 to the Vice President.
                                  ____


                         Appendix Two: Reasons

       With regard to documents not already provided that the 
     Comptroller General has demanded from the Vice President, the 
     reasons for not providing them are as set forth in this 
     appendix. The statutes under which the Comptroller General 
     purports to act, Sections 717, 712, and 716 of Title 31 of 
     the U.S. Code, do not grant the authority he purports to 
     exercise. Moreover, if his misconstruction of the statutes 
     were to prevail, his conduct would unconstitutionally 
     interfere with the functioning of the Executive Branch of our 
     Government.
       Section 717 permits the Comptroller General at the request 
     of a House of Congress, a congressional committee of 
     jurisdiction, or on his own initiative to ``evaluate the 
     results of a program or activity the Government carries out 
     under existing law.'' The Comptroller General lacks authority 
     under Section 717 to investigate the President's exercise of 
     his constitutional powers. The National Energy Policy 
     Development Group and its work constitute such an exercise. 
     The Vice President and the other officers of the United 
     States who serve on the Group act not pursuant to statute but 
     instead only in relation to exercise of the President's 
     constitutional authorities, including his authority to 
     ``require the Opinion, in writing, of the principal Officer 
     in each of the executive Departments, upon any Subject 
     relating to the Duties of their respective Offices,'' to 
     ``take care that the Laws be faithfully executed,'' and, with 
     respect to Congress, to ``recommend to their Consideration 
     such Measures as he shall judge necessary and expedient.'' 
     Further, the Comptroller General is not evaluating the 
     ``results'' of the Group's work; he is attempting to inquire 
     into the process by which the results of the Group's work 
     were reached. Finally, the Comptroller General has not 
     claimed that he is conducting the proposed investigation on 
     his own initiative, and has instead stated that he is 
     conducting it at the request of two Congressional committees, 
     yet no Committee (as distinguished from two individual 
     Members of Congress who serve as the ranking minority members 
     of two committees) has made such a request to the Comptroller 
     General.
       Section 712, which permits the Comptroller General to 
     investigate matters related to the ``receipt, disbursement, 
     and use of public money,'' applies if at all only to his 
     question concerning the costs of the Group's work. Documents 
     that pertain to the costs of the Group already have been 
     produced to the Comptroller General as a matter of comity. 
     The narrow authority conferred by Section 712 does not 
     provide a basis for his other questions.
       Section 716 allows the Comptroller General to seek to 
     compel production of documents only when he has the requisite 
     need for the documents for a lawful inquiry conducted in 
     accordance with Section 712 or 717. Because Sections 712 and 
     717 do not provide a basis for the Comptroller General's 
     inquiries, and because Section 716 is not an independent 
     source of authority to investigate, Section 716 provides no 
     authority to demand or compel production of the Vice 
     Presidential documents demanded. Moreover, the term 
     ``agency'' as used in Section 716 does not include the Vice 
     President of the United States, who is a constitutional 
     officer of the Government.
       If the Comptroller General's misconstruction of the 
     statutes cited above were to prevail, his conduct would 
     unconstitutionally interfere with the functioning of the 
     Executive Branch. For example, due regard for the 
     constitutional separation of powers requires respecting the 
     independence of the President, the Vice President and the 
     President's other senior advisers as they execute the 
     function of developing recommendations for policy and 
     legislation--a core constitutional function of the Executive 
     Branch. Also, preservation of the ability of the Executive 
     Branch to function effectively requires respecting the 
     confidentiality of communications among a President, a Vice 
     President, the President's other senior advisers and others. 
     A President and his senior advisers must be able to work in 
     an atmosphere that respects confidentiality of communications 
     if the President is to get the good, candid advice and other 
     information upon which wise decisionmaking depends. Note that 
     while the Vice President is the President of the Senate, he 
     also has executive duties and responsibilities in support of 
     the President, as the Congress has by law recognized.

                          ____________________