By R. Jeffrey Smith
Washington Post Staff Writer
Friday, June 19, 2009
A federal judge yesterday sharply questioned an assertion by the Obama administration that former Vice President Richard B. Cheney's statements to a special prosecutor about the Valerie Plame case must be kept secret, partly so they do not become fodder for Cheney's political enemies or late-night commentary on "The Daily Show."
U.S. District Judge Emmet G. Sullivan expressed surprise during a hearing here that the Justice Department, in asserting that Cheney's voluntary statements to U.S. Attorney Patrick J. Fitzgerald were exempt from disclosure, relied on legal claims put forward last October by a Bush administration political appointee, Stephen Bradbury. The department asserted then that the disclosure would make presidents and vice presidents reluctant to cooperate voluntarily with future criminal investigations.
But career civil division lawyer Jeffrey M. Smith, responding to Sullivan's questions, said Bradbury's arguments against the disclosure were supported by the department's current leadership. He told the judge that if Cheney's remarks were published, then a future vice president asked to provide candid information during a criminal probe might refuse to do so out of concern "that it's going to get on 'The Daily Show' " or somehow be used as a political weapon.
Sullivan said Bradbury, who was the acting head of the Office of Legal Counsel, was not obviously qualified to make such claims and that they were in any event unsubstantiated. Sullivan said the department needed new evidence, if it hoped to prevail, and said the administration should supply him with a copy of Cheney's statements so he could directly assess whether the claims are credible.
The clash was provoked by a Freedom of Information Act request last July by a nonprofit group, Citizens for Responsibility and Ethics in Washington, for documents relating to Cheney's conversation with Fitzgerald. Cheney was interviewed as part of Fitzgerald's probe in 2004 and 2005 into the Bush administration's leak of Plame's links to the CIA.
Plame was a covert officer in the CIA until her name appeared in press accounts after public criticism by her husband, a former diplomat, of the Bush administration's policies in Iraq. Cheney was never charged with wrongdoing, but his former chief of staff I. Lewis "Scooter" Libby was convicted in 2007 of obstruction of justice, perjury and lying to the FBI during the probe. President George W. Bush later commuted Libby's 2 1/2 -year prison sentence but refused Cheney's request that Libby be pardoned outright.
Fitzgerald, in a 2008 letter to Rep. Henry A. Waxman (D-Calif.) cited by CREW, drew a distinction between interviews that he conducted under standard investigative secrecy rules and the meetings he held with Bush and Cheney. Fitzgerald said "there were no 'agreements, conditions, and understandings between the Office of Special Counsel or the Federal Bureau of Investigation' and either the President or Vice President 'regarding the conduct and use of the interview or interviews.' "
After Fitzgerald's probe was closed, however, the Bush administration turned down a subpoena from Congress for notes and a summary of Cheney's interview -- estimated to be about 70 pages long -- asserting that they were exempt from disclosure under executive privilege. Bradbury, in an eight-page response to the FOIA lawsuit, cited multiple reasons for refusing again but principally relied on a legal exemption for documents that "could reasonably be expected to interfere with enforcement proceedings."
Sullivan said this argument "does not carry any weight," because no such proceedings involving the White House are currently pending or anticipated. David Sobel, an attorney representing CREW, argued further that any White House official who wanted to provide a confidential statement could readily request such secrecy as a condition for the interview, or be subpoenaed as part of a secret grand jury probe.
Smith responded that any White House official, from the president on down, could indeed be compelled to testify but said it would be "somewhat unseemly" to use a subpoena for vice presidents, particularly at the outset of a probe. He also said more White House-related criminal probes could reasonably be anticipated, as "every administration in the last thirty years" has experienced such a probe.