Mukasey the Obstructionist

By Dan Froomkin
Special to
Thursday, July 17, 2008; 1:12 PM

Michael Mukasey has President Bush's back.

Mukasey succeeded toady Alberto Gonzales as attorney general last fall. But the notion that he would restore independence to that post took a big hit yesterday when he refused to turn over to a House committee key documents related to the CIA leak investigation.

Mukasey may have a better reputation than Gonzales, but it turns out he is just as willing to use his power to protect the White House from embarrassing revelations.

The House Oversight and Government Reform Committee had subpoenaed Mukasey to turn over, among other documents, a report on Vice President Cheney's interview with FBI agents investigating the leak of covert CIA operative Valerie Plame's identity.

In a move that was mutually self-serving, Bush yesterday -- on Mukasey's urging -- made what may be his most audacious assertion yet of executive privilege.

Congress's legitimate oversight interests aside, common sense suggests Cheney waived executive privilege when he voluntarily agreed to speak to FBI agents. But Mukasey countered that with a novel argument: "I am concerned about the subpoena's impact on White House cooperation with future Justice Department criminal investigations," he wrote in his Tuesday letter to Bush, asking to be ordered not to comply with the subpoena.

Special prosecutor Patrick Fitzgerald's criminal investigation of the Plame leak stopped short of indicting Cheney. But Fitzgerald made it clear that he was hot on Cheney's trail until he was obstructed by a pack of lies from former vice presidential chief of staff I. Lewis "Scooter" Libby. In the closing arguments of the trial at which Libby was found guilty, Fitzgerald declared: "There is a cloud over the vice president. . . . And that cloud remains because this defendant obstructed justice."

Had Fitzgerald indicted Cheney, or had Cheney been called as a defense witness in the Libby trial -- as Libby's legal team initially indicated they would do -- Cheney's interview would have become public record. Instead, like so many other intriguing products of Fitzgerald's investigation, it remained out of public view.

Oversight Committee Chairman Henry Waxman tried to pick up Fitzgerald's trail. As I wrote in my column of Dec. 3, Waxman first got Fitzgerald to agree to turn over key documents from his investigation. When the White House intervened, Waxman challenged the newly installed attorney general to show some independence.

"I hope you will not accede to the White House objections," Waxman wrote in his initial letter to Mukasey. "During the Clinton Administration, your predecessor, Janet Reno, made an independent judgment and provided numerous FBI interview reports to the Committee, including reports of interviews with President Clinton, Vice President Gore, and three White House Chiefs of Staff. I have been informed that Attorney General Reno neither sought nor obtained White House consent before providing these interview records to the Committee. I believe the Justice Department should exercise the same independence in this case."

Mukasey eventually allowed committee investigators to read considerably redacted versions of the reports on FBI interviews with senior administration officials, including Libby and Rove -- but not Cheney or Bush.

Waxman dropped his request for Bush's FBI interview. But he repeated his request for Cheney's. And he noted that Fitzgerald, in a July 3 letter responding to a question from Waxman, acknowledged that "there were no 'agreements, conditions and understandings between the Office of Special Counselor the Federal Bureau of Investigation' and either the President or Vice President 'regarding the conduct and use of the interview or interviews.'"

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