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GOP's Solyndra Probe Hits the Cheney Roadblock

October 17, 2011

As the House GOP's probe into the $535 million lost loan to Solyndra heated up, the Obama White House had dutifully provided thousands of documents demanded by the House Energy and Commerce Committee. Dutifully, that is, until Friday, when White House Counsel Kathryn Ruemmler announced that President Obama's Blackberry messages and other internal White House communications about Solyndra would not be forthcoming due to "long-standing and significant institutional Executive Branch confidentiality interests." That response should be perfectly acceptable to House Republicans. After all, when Vice President Dick Cheney refused to provide any details about his secret energy task force because of a "zone of autonomy" protecting "the constitutional right of the president and vice president to obtain information in confidentiality", they lined up in lockstep behind him.
Last week, President Obama's chief inquisitor and House Oversight and Government Reform committee chairman Darrell Issa called the Solyndra case "salacious" and "a story of political interference" on behalf of "people giving to President Obama's campaign." To get to the bottom of it, Rep. Cliff Stearns (R-FL) wanted more than the "impressive" initial delivery of 700 pages of emails from the White House and the Office of Management and Budget. As Politico reported:

"We asked for all communications between the president, the White House and Solyndra," Stearns said. "So if there's nothing on his BlackBerry, that's fine. But if there's something on his BlackBerry, I would assume that would include that.
"I don't know how that technically works," Stearns added of his unusual request. "But we've asked for them, so we're hopeful we'll get some response."

On Friday, Stearns got his answer in the form of Ruemmler's letter. While promising to continue to provide any new documents needed from OMB and the Energy and Treasury Departments of Energy in addition to the 70,000 pages already delivered to the House, the White House Counsel ruled out handing over the content of President Obama's Blackberry:

But Ruemmler said the investigators' request for all internal White House communications about Solyndra -- dating back to the first day of the Obama administration -- "implicates long-standing and significant institutional Executive Branch confidentiality interests."
"Encroaching upon these important interests is not necessary, however, because the agency documents the Committee has requested, which include communications with the White House, should satisfy the Committee's stated objective -- to 'understand the involvement of the White House in the review of the Solyndra loan guarantee and the Administration's support of this guarantee,'" Ruemmler added.

That should more than satisfy the likes of Cliff Stearns and Darrell Issa. After all, they were untroubled when Bush administration staffers used RNC accounts to skirt Freedom of Information Act and Presidential Records Act requirements. When millions of Bush White House emails (including those during the outing of covert CIA operative Valerie Plame) mysteriously went missing, Congressman Issa turned IT expert and declared they were accidentally destroyed as a result of a software problem. And when House Democrats pushed a resolution in September 2004 "seeking the names of individuals who worked behind closed doors with Vice President Cheney's energy task force to craft the Bush administration's national energy policy," it was blocked by all 30 Republican members of the House Energy and Committee. Among the obstructionists were Reps. Issa and Stearns.
As it turned out, in 2001 Dick Cheney and his secret energy task force held dozens of meetings with 300 groups and individuals in formulating Bush administration policy. Among them was Enron CEO and Bush "Pioneer" Ken Lay. And as Paul Krugman noted in speculating about the group's role in altering "new source review" and other policies, "the day after the executive director of Mr. Cheney's task force left the government, he went into business as an energy industry lobbyist." Nevertheless, the Bush administration fought requests by the Sierra Club and Judicial Watch for information about the participants under the Federal Advisory Committee Act all the way to the Supreme Court.
Despite the precedent of a federal appeals court concluding that non-governmental participants in the1993 Clinton health care group constituted "de facto members," the Supreme Court sided with Cheney and his Republican protectors. By a 7-2 margin, the Court found, in Justice Anthony Kennedy's words, that "A president's communications and activities encompass a vastly wider range of sensitive material than would be true of any ordinary individual."
For his part, Dick Cheney claimed in 2007 that the Bush White House was "very responsible" in supplying information to lawmakers, but that "sometimes requests have been made that clearly fall outside the boundaries." And as he made clear again in his memoirs, his secret energy task force was one of those cases:

"We had the right to consult with whomever we chose -- and no obligation to tell the press or Congress or anybody else whom we were talking to. .... I believed something larger was at stake: the power of the presidency and the ability of the president and vice president to carry out their constitutional duties." When they won the fight, he says, "it was a major victory both for us and for the power of the executive branch."

Unless, Cheney's allies now insist, that executive branch is headed by a Democrat.
As details about the names and roles of some of the key players have trickled out over the years, it seems increasingly likely that the clandestine Cheney energy task force helped drive subsidies for energy companies, opening up deep water drilling in the Gulf of Mexico and possibly laid the groundwork for last year's BP Horizon disaster.
As for the Obama White House and the Solyndra investment gone bad, Professor Jonathan Turley is surely right that the affair "creates more than bad optics." But whether or not Solyndra is, in the words of New York Times business columnist Joe Nocera, a "phony scandal," it seems unlikely that House Republicans will get President Obama's Blackberry messages regardless. As CNN legal analyst Jeffrey Toobin explained on Friday:

Remember when Obama became president people said don't carry a BlackBerry. People will wind up subpoenaing it. Well it took 2.5 years and that day has finally come. Look I think this is a very predictable response...I don't think this is going to be all that legally controversial. If it's about the BlackBerry, this is the core of presidential decision making, his (INAUDIBLE) his diary, that is not something that any court is going to turn over unless there's very direct proof that there's something relevant to criminality and it's far from clear there's any criminality even here.

Which means that President Obama's right-wing foes in Congress and online at Townhall, Big Government, Newsmax and HotAir are probably going to be on the losing the side of a battle over executive privilege.
For that, they can thank Dick Cheney.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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