Notice: This opinion is subject to formal revision before publication in the
`Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
`the Clerk of any formal errors in order that corrections may be made
`before the bound volumes go to press.
`
`United States Court of Appeals
`
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Argued April 17, 2003
`
`Decided July 8, 2003
`
`No. 02-5354
`
`IN RE: RICHARD B. CHENEY,
`VICE PRESIDENT OF THE UNITED STATES, ET AL.,
`PETITIONERS
`
`Consolidated with
`02–5355, 02–5356
`
`Appeals from the United States District Court
`for the District of Columbia
`(No. 01cv01530)
`(No. 02cv00631)
`(No. 02cv01530)
`–————
`On Petition for Writ of Mandamus
`–————
`Gregory G. Katsas, Deputy Assistant Attorney General,
`U.S. Department of Justice, argued the cause for appellants.
`With him on the emergency petition for writ of mandamus
`
` Bills of costs must be filed within 14 days after entry of judgment.
`The court looks with disfavor upon motions to file bills of costs out
`of time.
`
`

`
`2
`
`were Theodore B. Olson, Solicitor General, Paul D. Clement,
`Deputy Solicitor General, Shannen W. Coffin, Deputy Assis-
`tant Attorney General, Mark Stern, Michael S. Raab, Doug-
`las Hallward–Driemeier, and Eric D. Miller, Attorneys.
`Larry E. Klayman and Sanjay Narayan argued the cause
`for appellees. With them on the response were David G.
`Bookbinder, Alex Levinson, and Roger M. Adelman.
`Before: EDWARDS, RANDOLPH and TATEL, Circuit Judges.
`Opinion for the Court filed by Circuit Judge TATEL.
`Concurring opinion filed by Circuit Judge EDWARDS.
`Dissenting opinion filed by Circuit Judge RANDOLPH.
`TATEL, Circuit Judge: The Vice President of the United
`States and others, all defendants in this suit under the
`Federal Advisory Committee Act, petition for a writ of man-
`damus vacating the district court’s discovery orders, directing
`the district court to rule on the basis of the administrative
`record, and ordering dismissal of the Vice President as a
`party. Petitioners, however, have failed to satisfy the heavy
`burden required to justify the extraordinary remedy of man-
`damus: Their challenges to the district court’s legal rulings
`can be fully considered on appeal following final judgment,
`and their claims of harm can, at least at this stage of the
`litigation, be fully cured in the district court. We therefore
`dismiss the petition. The Vice President has also filed an
`interlocutory appeal from the district court’s rulings. We
`lack jurisdiction to entertain that appeal: The collateral order
`doctrine does not apply, nor does United States v. Nixon,
`where the Supreme Court entertained an interlocutory appeal
`because, unlike here, the district court had rejected a claim of
`executive privilege.
`
`I.
`Shortly after his inauguration, President George W. Bush
`issued a memorandum establishing the National Energy Poli-
`cy Development Group (NEPDG), a task force charged with
`‘‘develop[ing] TTT a national energy policy designed to help
`
`

`
`3
`
`the private sector, and government at all levels, promote
`dependable, affordable, and environmentally sound production
`and distribution of energy for the future.’’ Mem. Establish-
`ing National Energy Policy Development Group, Jan. 29,
`2001. Established within the Office of the President and
`chaired by Vice President Richard B. Cheney, the task force
`consisted of six cabinet secretaries, as well as several agency
`heads and assistants to the President. Id. The memoran-
`dum authorized the Vice President to invite ‘‘other officers of
`the Federal Government’’ to participate ‘‘as appropriate.’’ Id.
`Five months later, the NEPDG issued a final report recom-
`mending a set of energy policies. See NATIONAL ENERGY
`POLICY DEVELOPMENT GROUP, NATIONAL ENERGY POLICY: REPORT
`OF THE NATIONAL ENERGY POLICY DEVELOPMENT GROUP (2001),
`available
`at
`http://www.whitehouse.gov/energy/National-
`Energy-Policy.pdf.
`On July 16, 2001, Judicial Watch, a nonprofit organization
`that seeks ‘‘to promote and protect the public interest in
`matters of public concern,’’ Second Am. Compl. ¶ 3 (Judicial
`Watch Compl.), filed suit in the United States District Court
`for the District of Columbia against the NEPDG, the Vice
`President, other federal officials, and several private individu-
`als, alleging that the NEPDG had failed to comply with the
`procedural requirements of the Federal Advisory Committee
`Act (FACA), 5 U.S.C. App. 2. Enacted to ‘‘control the
`growth and operation of the ‘numerous committees, boards,
`commissions, councils, and similar groups which have been
`established to advise officers and agencies in the executive
`branch of the Federal Government,’ ’’ Ass’n of Am. Physi-
`cians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 902–03 (D.C.
`Cir. 1993) (AAPS) (quoting 5 U.S.C. App. 2, § 2(a)), FACA
`requires advisory committees to make public all reports,
`records, or other documents used by the committee, provided
`they do not fall within any Freedom of Information Act
`exemptions. Central to this case, FACA section 3(2) exempts
`advisory committees ‘‘composed wholly of full-time officers or
`employees of the Federal Government.’’ 5 U.S.C. App. 2,
`§ 3(2)(iii).
`
`

`
`4
`
`Although the President appointed only federal government
`officials to the NEPDG and authorized the Vice President to
`add additional ‘‘federal officials,’’ Judicial Watch alleges that
`‘‘non-federal employees, including Thomas Kuhn, Kenneth
`Lay, Marc Racicot, Haley Barbour, representatives of the
`Clean Power Group, and other private lobbyists TTT, regular-
`ly attended and fully participated in non-public meetings of
`the NEPDG as if they were members of the NEPDG, and, in
`fact, were members of the NEPDG.’’ Judicial Watch Compl.
`¶ 25; see AAPS, 997 F.2d at 915 (holding that the section 3(2)
`exemption does not apply if non-government officials’ ‘‘in-
`volvement and role are functionally indistinguishable from
`those of the other members’’). Brought pursuant to both the
`Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the
`All Writs Act, 28 U.S.C. § 1361, the complaint sought, among
`other things, a judgment declaring the defendants to be in
`violation of FACA and an order directing them to provide
`plaintiffs ‘‘a full and complete copy of all records TTT made
`available to or prepared for Defendant NEPDG,’’ as well as
`‘‘detailed minutes of each meeting of Defendant NEPDG TTT
`that contain a record of persons present, a complete and
`accurate description of matters discussed and conclusions
`reached, and copies of all report[s] received, issued, or ap-
`proved by Defendant NEPDG.’’ Judicial Watch Compl. at
`22.
`Before proceedings commenced in the district court, the
`Sierra Club, a nonprofit group seeking ‘‘to practice and
`promote the responsible use of the Earth’s resources and
`ecosystems,’’ filed a virtually identical lawsuit in the United
`States District Court for the Northern District of California.
`Compl. ¶ 3. The Sierra Club’s suit was subsequently trans-
`ferred to the district court here and consolidated with Judicial
`Watch’s.
`All defendants moved to dismiss, arguing, among other
`things, that FACA does not authorize a private cause of
`action, that the Vice President cannot be sued under the
`APA, and that ‘‘[a]pplication of FACA to the NEPDG’s
`operations would directly interfere with the President’s ex-
`press constitutional authority including his responsibility to
`
`

`
`5
`
`recommend legislation to Congress and his power to require
`opinions of his department heads.’’ Mem. in Support of Mot.
`to Dismiss at 3 (D.D.C. Mar. 8, 2002). Amplifying this latter
`point, defendants argued that ‘‘such an expansive reading of
`FACA would encroach upon the President’s constitutionally
`protected interest in receiving confidential advice from his
`chosen advisers, an interest that is also rooted in the principle
`of separation of powers.’’ Id. Although the district court
`agreed that no private cause of action exists under FACA and
`recognized that the Vice President cannot be sued under the
`APA, it ruled that FACA could be enforceable through man-
`damus. Judicial Watch, Inc. v. Nat’l Energy Policy Dev.
`Group, 219 F.Supp. 2d 20, 42 (D.D.C. 2002). Relying on the
`‘‘fundamental principle of constitutional interpretation that a
`court should not pass on any constitutional questions that are
`not necessary to determine the outcome of the case or
`controversy before it,’’ id. at 45, the district court deferred
`ruling on the government’s separation of powers claim, ex-
`plaining that ‘‘after discovery, the government may prevail on
`summary judgment on statutory grounds without the need for
`this Court to address the constitutionality of applying FACA
`[to the Vice President],’’ id. at 54–55. The court observed
`that, ‘‘while discovery in this case may raise some constitu-
`tional issues, those issues of executive privilege will be much
`more limited in scope than the broad constitutional challenge
`raised by the government here.’’ Id. at 55.
`After denying defendants’ motion to dismiss, the district
`court approved plaintiffs’ discovery plan and directed the
`government to ‘‘fully comply with the[ ] requests,’’ ‘‘file de-
`tailed and precise objections to particular requests,’’ or ‘‘iden-
`tify and explain their invocations of privilege with particulari-
`ty.’’ Order Approving Disc. Plan at 2 (D.D.C. Aug. 2, 2002).
`In response and on behalf of all federal defendants except the
`Vice President, the government produced some 36,000 pages
`of documents. On behalf of the Vice President, the govern-
`ment filed a motion for a protective order, arguing that
`discovery against the Vice President would violate the separa-
`tion of powers and seeking permission to file a motion for
`summary judgment based on the ‘‘administrative record.’’
`
`

`
`6
`
`According to the government, the administrative record con-
`sists of the President’s memorandum creating the NEPDG,
`the NEPDG’s final report, and an affidavit by Karen Knut-
`son, Deputy Assistant to the Vice President for Domestic
`Policy. Submitted with the motion for a protective order, Ms.
`Knutson’s affidavit declares that ‘‘[t]o the best of my knowl-
`edge, no one other than the officers of the Federal Govern-
`ment who constituted the NEPDG, the Federal employees
`whom they chose from their respective departments, agencies
`and offices to accompany them (all of whom were full-time
`Federal employees), and the Office of the Vice President
`personnel set forth above, attended any of the [NEPDG]
`meetings.’’ Knutson Aff. ¶ 10.
`Although the district court acknowledged that ‘‘[i]n APA
`cases, discovery is normally frowned upon,’’ it stated that it
`would not consider a motion for summary judgment until
`after discovery, explaining that ‘‘this case isn’t the typical
`case, where you have a significant administrative record.’’
`Tr. of Status Hr’g at 13:17–23 (D.D.C. Aug. 2, 2002). The
`court therefore denied the government’s motion for a protec-
`tive order and directed defendants to ‘‘produce non-privileged
`documents and a privilege log.’’ Order Den. Mots. for Re-
`cons. and Protective Order at 1 (D.D.C. Oct. 17, 2002). The
`court informed the parties that it was considering either
`reviewing allegedly privileged information in camera or ap-
`pointing a special master, such as a retired judge, to review
`privilege claims. Tr. of Omnibus Mots. Hr’g at 4:15–5:12
`(D.D.C. Oct. 17, 2002).
`Instead of responding to plaintiffs’ discovery requests and
`filing a privilege log, defendants asked the district court to
`certify an
`interlocutory appeal pursuant to 28 U.S.C.
`§ 1292(b). The district court declined, Mem. Op. and Order
`(D.D.C. Nov. 27, 2002), and defendants filed in this court an
`emergency motion for writ of mandamus pursuant to 28
`U.S.C. § 1651 seeking an order ‘‘vacat[ing] the discovery
`orders issued by the district court, direct[ing] the court to
`decide the case on the basis of the administrative record and
`such supplemental affidavits as it may require, and direct[ing]
`that the Vice President be dismissed as a defendant.’’ Emer-
`
`

`
`7
`
`gency Pet. for Writ of Mandamus at 20. The Vice President
`also filed a notice of appeal from the district court’s order
`denying the motion to dismiss and from the various discovery
`orders. Plaintiffs opposed the mandamus petition and filed a
`motion to dismiss the interlocutory appeal. We granted an
`administrative stay and heard oral argument on April 17,
`2003.
`Now before us are the petition for a writ of mandamus and
`the plaintiffs’ motion to dismiss the appeal. We address each
`in turn.
`
`II.
`In considering the petition for a writ of mandamus, we are
`bound by well-established rules of both the Supreme Court
`and this court. ‘‘The remedy of mandamus,’’ the Supreme
`Court has explained, ‘‘is a drastic one, to be invoked only in
`extraordinary situations.’’ Kerr v. United States Dist. Court,
`426 U.S. 394, 401 (1976) (internal citations omitted). ‘‘[O]nly
`exceptional circumstances amounting to a judicial ‘usurpation
`of power’ will justify the invocation of this extraordinary
`remedy.’’ Will v. United States, 389 U.S. 90, 95 (1967).
`Emphasizing the rarity of mandamus relief, the Supreme
`Court noted that ‘‘our cases have answered the question as to
`the availability of mandamus TTT with the refrain: ‘What
`never? Well, hardly ever!’ ’’ Allied Chem. Corp. v. Daiflon,
`Inc., 449 U.S. 33, 36 (1980) (emphasis in original).
`In Kerr, the Supreme Court explained the policy underly-
`ing the limited nature of mandamus relief:
`[P]articularly in an era of excessively crowded lower
`court dockets, it is in the interest of the fair and
`prompt administration of justice to discourage piece-
`meal litigation. It has been Congress’ determination
`since the Judiciary Act of 1789 that as a general rule
`‘appellate review should be postponed TTT until after
`final judgment has been rendered by the trial court.’
`A judicial readiness to issue the writ of mandamus in
`anything less than an extraordinary situation would
`run the real risk of defeating the very policies
`
`

`
`8
`
`sought to be furthered by that judgment of Con-
`gress.
`
`Kerr, 426 U.S. at 403 (internal citations omitted) (ellipses in
`original).
`Consistent with these principles, in determining whether
`mandamus is warranted, we consider ‘‘whether the party
`seeking the writ has any other adequate means, such as a
`direct appeal, to attain the desired relief,’’ and ‘‘whether that
`party will be harmed in a way not correctable on appeal.’’
`Nat’l Ass’n of Criminal Def. Lawyers, Inc. v. United States
`Dep’t of Justice, 182 F.3d 981, 986 (D.C. Cir. 1999). Petition-
`er ‘‘has the ‘burden of showing that its right to issuance of the
`writ is clear and indisputable.’ ’’ Gulfstream Aerospace Corp.
`v. Mayacama Corp., 485 U.S. 271, 289 (1988).
`Our recent decision in In re Executive Office of the Presi-
`dent, 215 F.3d 20 (D.C. Cir. 2000), not only demonstrates the
`strictness of the mandamus standard, but also largely con-
`trols the disposition of this case. There, plaintiff alleged,
`among other things, that President Clinton’s personal staff
`and other White House units that advise and assist the
`President were maintaining FBI files of former political
`appointees in violation of the Privacy Act. The district court
`denied the government’s motion to dismiss, ordered discov-
`ery, and rejected the White House’s assertion of the attorney
`client, deliberative process, and work product privileges. The
`government then sought a writ of mandamus to vacate the
`district court’s discovery order with respect to one particular
`interrogatory. The government also argued that without
`mandamus relief ‘‘the President’s interactions with his closest
`advisors will be irreparably damaged in the future, because
`the District Court has sought to coerce the White House, on
`threat of criminal sanction, into following a view of the
`Privacy Act to which it does not subscribe.’’ Id. at 24.
`Noting that ‘‘[a]lmost the entire thrust of [the govern-
`ment’s] petition is that the District Court erred in concluding
`that the White House is subject to the Privacy Act,’’ we
`explained that ‘‘[e]ven assuming, arguendo, that the District
`
`

`
`9
`
`Court’s holding on the scope of the Privacy Act is clear error,
`mandamus relief is not warranted in this case. This is so
`because, on the record at hand, there has been no showing of
`harm of the sort required to justify the drastic remedy of
`mandamus.’’ Id. at 23. Further, although acknowledging
`that ‘‘ ‘disclosure [of highly privileged material] followed by
`appeal after final judgment is obviously not adequate in such
`cases—the cat is out of the bag,’ ’’ id. (bracketed material in
`original), we observed that ‘‘[i]n the normal course, TTT
`mandamus is not available to review a discovery order,’’ id.
`We then denied the request for mandamus, explaining that
`the government ‘‘offered TTT no argument that it is even
`entitled to the privileges,’’ and that ‘‘[a]bsent a viable claim
`that some important privilege will be infringed if discovery is
`allowed to proceed, this court has no jurisdiction to review the
`interlocutory order on this ground.’’ Id. at 23–24. As to the
`government’s fear that the district court might hold White
`House staff in criminal contempt, we explained, ‘‘the District
`Court has no free-wheeling authority to run the affairs of the
`White House with respect to matters that are not related to
`the instant case.’’ Id. at 24.
`With this case law in mind, we consider the petition for writ
`of mandamus. Petitioners first argue that by allowing broad
`discovery into ‘‘the inner workings of the executive including
`the Vice President,’’ Emergency Pet. for Writ of Mandamus
`at 12, on nothing more than a ‘‘mere allegation of TTT
`unofficial non-government’’ participation in the work of the
`NEPDG, the district court has ‘‘brought to the fore the
`substantial constitutional questions it sought to avoid,’’ id. at
`14. Petitioners therefore ask that we direct the district court
`to decide the case on the basis of the administrative record.
`For two reasons, we may not do so.
`First, as petitioners concede, plaintiffs’ cause of action
`against the Vice President arises not under the APA, but
`under the Mandamus Act. 28 U.S.C. § 1361. Cf. Chamber of
`Commerce v. Reich, 74 F.3d 1322, 1326–28 (D.C. Cir. 1996)
`(explaining availability of ‘‘non-statutory review’’ even in the
`absence of a statutory cause of action). Moreover, even if
`APA review standards apply to mandamus actions—a ques-
`tion we need not resolve here—the rule that APA review is
`
`

`
`10
`
`generally limited to the administrative record has two excep-
`tions: ‘‘when there has been a ‘strong showing of bad faith or
`improper behavior’ or when the record is so bare that it
`prevents effective judicial review.’’ Commercial Drapery
`Contractors, Inc. v. United States, 133 F.3d 1, 7 (D.C. Cir.
`1998) (internal citation omitted).
` Petitioners argue that
`plaintiffs have not made the ‘‘strong showing’’ required by the
`first exception. This is true, but plaintiffs do not invoke the
`first exception. Instead, they rely on the second exception,
`arguing that the record is inadequate to resolve the statutory
`issue pending before the district court. As they point out,
`the President’s memorandum establishing the NEPDG and
`the NEPDG’s final report tell us only that the NEPDG’s
`members were all federal employees. The two documents
`reveal nothing about whether, notwithstanding the Presi-
`dent’s appointment of only federal officials, non-federal per-
`sonnel participated in the work of the NEPDG ‘‘as if they
`were members of the NEPDG.’’ Judicial Watch Compl. ¶ 25.
`Although the Knutson affidavit does address this question,
`because the government submitted it during litigation, it is
`not itself part of the administrative record. See Citizens to
`Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971)
`(administrative record does not include ‘‘litigation affidavits’’);
`Envtl. Def. Fund, Inc., v. Costle, 657 F.2d 275, 286 (D.C. Cir.
`1981) (rejecting creation of exception to Overton Park to
`allow parties challenging administrative action to submit affi-
`davits addressing the merits of the agency decision).
`As respondents point out, we faced a similar issue in
`AAPS. There, plaintiffs alleged that another presidential
`committee—President Clinton’s Task Force on National
`Health Care Reform—failed to follow FACA’s procedural
`requirements. We held that in determining the applicability
`of FACA section 3(2)’s exemption for meetings of full-time
`government officials, we would look beyond formal member-
`ship to whether persons described as consultants ‘‘may still
`be properly described as member[s] of an advisory committee
`if [their] involvement and role are functionally indistinguish-
`able from those of the other members.’’ AAPS, 997 F.2d at
`915. To answer that question—essentially the same question
`
`

`
`11
`
`the district court faces here—we remanded for ‘‘expedited
`discovery.’’ Id. at 916.
`Second, and most important given the interlocutory status
`of this case, even were there some doubt about the district
`court’s refusal to rely on the administrative record—indeed,
`even if, as petitioners insist, AAPS is distinguishable from
`this case and the district court’s ruling amounts to ‘‘clear and
`significant error,’’ Emergency Pet. for Writ of Mandamus at
`5—petitioners are entitled to mandamus relief only if they
`face a risk of harm that cannot be cured in the district court.
`This is the teaching of the mandamus cases discussed above.
`Absent harm for which there is ‘‘no other adequate means TTT
`[of] attain[ing] the desired relief,’’ Nat’l Ass’n of Criminal
`Def. Lawyers, 182 F.3d at 986, appellate courts may not grant
`mandamus relief from a district court’s legal judgment even if
`that judgment constitutes ‘‘clear error,’’ In re Executive
`Office of the President, 215 F.3d at 23. ‘‘[A]ny error—even a
`clear one—could be corrected on appeal.’’ Nat’l Ass’n of
`Criminal Def. Lawyers, 182 F.3d at 987. Because this is
`equally true of petitioners’ second challenge—that the district
`court erred by failing to dismiss the Vice President as a
`party—we turn to the key issue on which petitioners’ entitle-
`ment to mandamus relief depends: Have they identified some
`‘‘harm’’ flowing from the district court’s challenged rulings
`that cannot be remedied either in the district court or on
`appeal following final judgment?
`Petitioners’ primary claim of harm is that ‘‘in the circum-
`stances of this case, TTT extending the legislative and judicial
`powers to compel a Vice President to disclose to private
`persons the details of the process by which a President
`obtains information and advice from the Vice President raises
`separation of powers problems of the first order.’’ Emergen-
`cy Pet. for Writ of Mandamus at 4. Under the circumstances
`of this case, however, this argument is premature. Far from
`‘‘order[ing] extensive disclosure of communications between
`senior executive branch officials and those with information
`relevant to advice that was being formulated for the Presi-
`dent,’’ Reply to Appellees’ Resp. to Emergency Pet. for Writ
`of Mandamus at 1, the district court ordered defendants to
`
`

`
`12
`
`produce ‘‘non-privileged documents and a privilege log.’’ Or-
`der Den. Mots. for Recons. and Protective Order at 1 (D.D.C.
`Oct. 17, 2002). Petitioners neither produced a privilege log
`nor, as directed by the district court’s earlier order, did they
`invoke ‘‘privileges with particularity.’’ Order Approving Disc.
`Plan at 2 (D.D.C. Aug. 2, 2002). If mandamus was inappro-
`priate in Executive Office of the President, where the Presi-
`dent had asserted but failed to justify asserted privileges, it is
`certainly unjustified here, where petitioners have yet to as-
`sert a privilege in the district court. ‘‘Absent a viable claim
`that some important privilege will be infringed if discovery is
`allowed to proceed, this court has no jurisdiction to review the
`interlocutory order.’’ In re Executive Office of the President,
`215 F.3d at 24.
`Moreover, petitioners’ concerns about the potential disclo-
`sure of privileged information are fully addressable in the
`district court or, if necessary, in a later proceeding here. If,
`in response to the district court’s discovery order, petitioners
`choose to invoke executive or any other privilege, that court,
`keeping in mind the need to ‘‘accord[ ] high respect to the
`representations made on behalf of the President,’’ United
`States v. Nixon, 418 U.S. 683, 707 (1974), may sustain the
`privilege, thus giving petitioners all the relief they seek here.
`See Kerr, 426 U.S. at 401 (denying mandamus petition chal-
`lenging district court order rejecting broad state secrets
`privilege and allowing disclosure of state documents regard-
`ing prison-parole system because district court could review
`documents in camera to determine privilege’s applicability).
`On the other hand, were the district court to reject a claim of
`executive privilege, thus creating an imminent risk of disclo-
`sure of allegedly protected presidential communications, then
`mandamus might well be appropriate to avoid letting ‘‘the cat
`TTT out of the bag.’’ In re Executive Office of the President,
`215 F.3d at 23–24; see In re Papandreou, 139 F.3d 247 (D.C.
`Cir. 1998) (granting mandamus relief of district court order
`that diplomats submit to depositions in order to review diplo-
`mats’ assertion of immunity); In re: Sealed Case, 151 F.3d
`1059 (D.C. Cir. 1998) (granting mandamus where district
`court’s discovery order was insufficiently protective of secret
`
`

`
`13
`
`grand jury information). But so long as the separation of
`powers conflict that petitioners anticipate remains hypotheti-
`cal, we have no authority to exercise the extraordinary reme-
`dy of mandamus. As we said in Executive Office of the
`President, ‘‘[i]n the normal course, TTT mandamus is not
`available to review a discovery order.’’ 215 F.3d at 23.
`Petitioners next argue that in order to protect the separa-
`tion of powers, the ‘‘President should not be forced to ‘consid-
`er the privilege question’ in response to unnecessarily broad
`or otherwise improper discovery.’’ Emergency Pet. for Writ
`of Mandamus at 15 (internal citation omitted). We see two
`answers to this argument. First, executive privilege is itself
`designed to protect the separation of powers. ‘‘The privi-
`lege,’’ the Supreme Court explained in United States v.
`Nixon, ‘‘is fundamental to the operation of Government and
`inextricably rooted in the separation of powers under the
`Constitution.’’ Nixon, 418 U.S. at 708. Were we to hold, as
`petitioners and the dissent urge, that the Constitution pro-
`tects the President and Vice President from ever having to
`invoke executive privilege, we would have transformed execu-
`tive privilege from a doctrine designed to protect presidential
`communications into virtual immunity from suit. Yet, as the
`Supreme Court also held in Nixon, ‘‘neither the doctrine of
`separation of powers, nor the need for confidentiality of high-
`level communications, without more, can sustain an absolute,
`unqualified Presidential privilege of immunity from judicial
`process under all circumstances.’’ Id. at 707. Indeed, the
`Supreme Court has consistently held that because the Presi-
`dent is not ‘‘above the law,’’ he is subject to judicial process.
`Id. at 715; see also Clinton v. Jones, 520 U.S. 681, 703–04
`(1997).
`The second answer to petitioners’ argument is that their
`worry about ‘‘unnecessarily broad’’ discovery can be resolved
`in the district court. According to petitioners, discovery is
`excessive because (1) they have already produced some 36,000
`pages worth of documents and (2) the discovery ‘‘compelled
`by the district court would result in even more sweeping
`intrusions into the Vice President’s office than would result
`from the remedies available if plaintiffs were to prevail on the
`
`

`
`14
`
`merits of their suit.’’ Emergency Pet. for Writ of Mandamus
`at 4.
`The district court has already addressed the first concern.
`In its order approving plaintiffs’ discovery plan, the district
`court expressly stated: ‘‘[S]hould defendants believe that
`documents or information that they have already released to
`plaintiffs in different fora are responsive to these discovery
`requests, defendants shall bear the burden of identifying with
`detailed precision what information or documents have been
`so released, and to which discovery requests they believe the
`information or documents to be responsive.’’ Order Approv-
`ing Disc. Plan at 2 (Aug. 2, 2002). Petitioners have yet to
`avail themselves of this aspect of the district court’s order.
`Petitioners’ second concern is well taken. If the district
`court ultimately determines that the NEPDG is subject to
`FACA, plaintiffs would be entitled to ‘‘records, reports, tran-
`scripts, minutes, appendixes, working papers, drafts, studies,
`agenda, or other documents which were made available to or
`prepared for or by [the] TTT committee.’’ 5 U.S.C. App. 2,
`§ 10(b). Yet plaintiffs’ discovery seeks far more than these
`limited items. Their third interrogatory, for example, asks
`for the names of ‘‘all Task Force staff, personnel, consultants,
`employees, and all other persons who participated, in any
`manner, in the activities of the Task Force or the preparation
`of the Report.’’ The fourth interrogatory asks ‘‘[f]or each
`person listed in response to Interrogatory 3, TTT please
`provide TTT a description of the person’s role in the activities
`of the Task Force and in preparation of the Report.’’ The
`requests to produce also go well beyond FACA’s require-
`ments. For example, the first request seeks ‘‘[a]ll documents
`identifying or referring to any staff, personnel, contractors,
`consultants or employees of the Task Force.’’ As petitioners
`point out, if plaintiffs are entitled to ‘‘discovery TTT roughly
`coextensive with the available remedies for a FACA violation,
`then the textual exemption of advisory groups including only
`government officials, which presumably was designed to pro-
`tect against undue interference with executive functions, has
`little practical effect.’’ Emergency Pet. for Writ of Manda-
`mus at 14.
`
`

`
`15
`
`Plaintiffs’ discovery also goes well beyond what they need
`to prove, as they allege, that FACA applies to the NEPDG,
`i.e., that non-federal officials participated to the extent that
`they were effectively NEPDG members. For example, plain-
`tiffs have no need for the names of ‘‘all TTT persons’’ who
`participated in the Task Force’s activities, nor ‘‘a description
`of [each] person’s role in the activities of the Task Force.’’
`They must discover only whether non-federal officials partici-
`pated, and if so, to what extent. Nor do plaintiffs require
`‘‘[a]ll documents identifying or referring to any staff, person-
`nel, contractors, consultants or employees of the Task Force.’’
`Rather, they need only documents referring to the involve-
`ment of non-federal officials.
`Although petitioners did raise the question of excessive
`discovery in the district court, they did so in support of their
`plea for a ‘‘protective order relieving [defendants] of any
`obligation to respond to plaintiffs’ discovery.’’ Mem. in Supp.
`of Defs.’ Mot. for a Protective Order and for Recons. at 21
`(D.D.C. Sept. 3, 2002) (emphasis added). As far as we can
`tell, petitioners never asked the district court to narrow
`discovery to those matters plaintiffs need to support their
`allegation that FACA applies to the NEPDG. Moreover, we
`are confident that the district court, whose pending discovery
`order invites petitioners to file ‘‘objections,’’ will, consistent
`with the judiciary’s responsibility to police the separation of
`powers in litigation involving the executive, respond to peti-
`tioners’ concern and narrow discovery to ensure plaintiffs
`obtain no more than they need to prove their case.
`In thus relying on the district court to protect petitioners
`from harm, we are following closely in the Supreme Court’s
`footsteps in Kerr. There, the Court affirmed the Court of
`Appeals’ denial of a writ of mandamus sought by a state
`agency challenging a district court’s order granting a motion
`to compel discovery. Even though ‘‘the opinion below might
`be regarded as ambiguous,’’ the Court explained, ‘‘we are
`fortified in our reading of it by a recognition of the serious
`consequences which could flow from an unwarranted failure
`to grant petitioners the opportunity to have the documents
`reviewed by the trial judge in camera before being compelled
`
`

`
`16
`
`to turn them over.’’ Kerr, 426 U.S. at 405. The Supreme
`Court thus read the Court of Appeals’ opinion as ‘‘providing
`petitioners an avenue far short of mandamus to achieve
`precisely the relief they seek.’’ Id. at 404–05. ‘‘We are thus
`confident,’’ the Court concluded, ‘‘that the Court of Appeals
`did in fact intend to