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What Judge Sullivan’s Opinion Means

As I reported, Judge Emmet Sullivan has issued his ruling in the Dick Cheney interview FOIA, ruling partly for and partly against CREW. Sullivan has ordered DOJ to turn over the documents in question by October 9. He has directed DOJ to redact the information exempted in two earlier filings. So, as I suggested, we’ll get some new information. But we won’t learn how Cheney answered when asked whether Bush authorized him to leak classified information (which ended up including Valerie Wilson’s identity).

Here’s some more detail on what the ruling means.

A Rebuke to Obama’s Executive Power Grab

While Judge Sullivan accepted all of Ralph DiMaio and David Barron’s specific exemptions based on national security or deliberative grounds, he rejected the laughable DOJ argument that releasing Cheney’s interview materials would dissuade other high level White House officials from cooperating in investigations. That’s important, because it rejects a theory that would shield a great deal of information on White House criminality. Here’s Sullivan’s description of everything that would be shielded under such a theory.

In this sense, the category of proceedings that DOJ asks this Court to conclude are “reasonably anticipated” could encompass any law enforcement investigation during which law enforcement might wish to interview senior White House officials. Such proceedings might include an investigation into alleged criminal activity that physically took place in the White House; financial wrongdoing by a White House official that took place before or during his or her tenure in the executive branch; misconduct relating to official responsibilities, such as the breach of national security protocol that formed the basis of the Plame investigation; or even an event occurring outside the White House with only tangential connection to one or more White House officials. Thus conceived, it becomes clear that the scope of the proceedings described by DOJ is breathtakingly broad.

I’m guessing, but unless the parts of Cheney’s interview Sullivan has ordered to be released are a lot more scandalous than I think they are, I don’t think Obama’s DOJ will appeal this because it’s unlikely the Appeals Court will agree with them, and as we’ve seen, Obama’s Administration tends to go to great lengths to avoid letting Appeals Courts issue rulings in relatively unimportant cases that reign in executive power. 

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Judge Sullivan Rejects DOJ’s Expansive Claims to Protect Cheney Interview

Judge Sullivan has rejected DOJ’s most expansive claims they used to try to protect Dick Cheney’s CIA Leak case interview.

I am reading this now for more detail, but the key graph is this one.

For the reasons stated above, the Court concludes that the agency has met its burden of demonstrating that certain limited information was appropriately withheld from disclosure to protect the well-recognized deliberative process and presidential communications privileges under Exemption 5, personal privacy under Exemptions 6 and 7(C), and national security interests under Exemptions 1 and 3. The Court cannot, however, permit the government to withhold the records in their entirety under Exemption 7(A) on the basis that disclosure might interfere with some unidentifiable and unspecified future law enforcement proceedings. The purpose of Exemption 7(A) is to protect specific ongoing or reasonably anticipated law enforcement proceedings. There are no such proceedings at issue here. Neither congressional intent nor well-established precedent supports the application of the exemption under the circumstances in this case, and the Court declines the government’s invitation to create a new, per se FOIA exemption for any and all law enforcement interviews involving high level White House officials. Accordingly, the Court GRANTS IN PART AND DENIES IN PART the parties’ cross-motions for summary judgment. An appropriate Order accompanies this
Memorandum Opinion.

I suspect this will still shield the key information about whether or not Bush authorized Cheney to leak classified information–up to and including Plame’s identity. 

I’ll confirm that after I’ve read more carefully.

Update: Here’s Sullivan’s order. He’s ordering DOJ to turn over a redacted document by October 9. It seems that Sullivan has permitted DOJ to shield everything listed under the CIA and DOJ declarations, which will shield whether or not Bush explicitly authorized Shooter and Scooter to go leaking classified information to shut Joe Wilson up.

Does Lanny Breuer Have a Conflict in the Cheney Interview FOIA Case?

Assistant Attorney General Lanny Breuer’s background has been a key topic of discussion in CREW’s lawsuit to force DOJ to release Dick Cheney’s interview with Patrick Fitzgerald. The problem is, DOJ forgot to reveal that Breuer had represented one of the people involved with issues directly related to Cheney’s interview.

DOJ needed an expert on investigations of White House officials–so they got Breuer

During a hearing on whether or not DOJ should release Dick Cheney’s interview with Patrick Fitzgerald back in June, Judge Emmet Sullivan suggested that DOJ ought to have someone with actual experience in investigations of high level White House officials make their argument that releasing Cheney’s interview would make such investigations more difficult in the future.

MR. SMITH: In this case I don’t see — the law enforcement issue here is very unique and it’s very different than I think in Sussman and in most other cases. It’s an interest, it’s basically a chilling interest that if the Vice-President’s interview is released, that could have a chilling effect on future senior leadership.

THE COURT: Says who?

MR. SMITH: Says the Attorney General Mukasy [sic], that was his conclusion.

THE COURT: He didn’t file a declaration. Mr. Bradbury filed a declaration. He didn’t base it upon any experience, he didn’t base it upon anything. He didn’t articulate the bases for his declaration. Other than he was designated to follow declaration. So it wasn’t Mr. Mukasy [sic] who filed the declaration which arguably could have carried great weight. If the chief law enforcement officer says based on my experience and experience of others in law enforcement, it could have but that’s not the case here. Bradbury was a political appointee. I don’t know what his experience was. He was appointed to, maybe he was appointed to file this declaration. I don’t know what else he did. He’s no longer there at OLC. And essentially the government in footnote says I should defer to his declaration.

This is not a deferential review. I want to be clear I’m not suggesting that the Attorney General should sign a declaration. I’m not ordering, certainly not ordering him to do anything, but I’m just saying in response to what you just said arguably it could have carried greater weight for such a declaration to come from a law enforcement official based upon his or her experiences with respect to this chilling effect. Otherwise, it’s just an assumption this man makes based upon nothing he can point to. [my emphasis]

So rather than have the discredited Steven Bradbury submit this declaration, DOJ got Breuer to do so. After Breuer submitted a statement arguing that release of Cheney’s interview will present some new disincentive for high level White House officials in the future to cooperate that thirty years of routine release don’t already present, CREW questioned what basis Breuer had to make that claim.

The only experience plaintiff is aware of Mr. Breuer having with law enforcement investigations involving the White House is his tenure as special counsel to President Clinton during the Independent Counsel’s “Whitewater” investigation. Read more

“Protecting” President Cheney, Too

In today’s second installment on ways American taxpayers are wasting money to protect Dick Cheney from embarrassment, Josh Gerstein has a report on today’s hearing on CREW’s FOIA of Cheney’s interview in the CIA Leak Case. And DOJ is unabashedly making the argument that it should not release Dick Cheney’s interview because it might embarrrass him. (h/t MadDog)

Smith said the Justice Department’s view was that a delay of five to ten years was appropriate, marked from the time the official or his or her administration left office. “It’s a judgment call,” Smith acknowledged.

Smith suggested that such a delay would make it more likely that the information was used for historical purposes and not for political embarrassment. “The distinction is between releasing it for historical view and releasing it into the political fray,” Smith said.

Funny, DOJ claimed it was arguing for the longer-than-statutes-of-limitation delay because of concerns that future Vice Presidents wouldn’t cooperate willingly with investigations. As time goes on an their arguments look shittier and shittier, I guess, they become more and more truthful. Thus their invention of a new FOIA embarrassment exemption.

It sounds like Emmet Sullivan is not buying that argument–though he is also unwilling to just order the release of the interview without giving Obama’s DOJ an opportunity to waste more money protecting Cheney from embarrassment.

As the hearing concluded, Sullivan said he thought Congress had drawn a “bright line” with language in the Freedom of Information Act that generally exempts information about pending investigations from disclosure, but not closed probes, like the CIA leak case. He also said he would stay any ruling so the government could appeal before he released any documents.

President Obama? Attorney General Holder? This nonsense has gone on long enough. As I noted, Cheney’s participation in this probe is proof enough that the investigative concerns are bunk. It really is high time to stop wasting money preventing taxpayers from learning what Cheney did in our name.

Im-me-di-ate: adjective (DOJ) 1. More Than 2 Years

Goddamn did DOJ bring the stupid in their response to CREW’s brief in its Cheney interview FOIA.

745 days ago, George Bush commuted Scooter Libby’s sentence, thereby ensuring that Scooter Libby would not testify about whether–as all the evidence indicated–Dick Cheney had ordered him to leak Valerie Wilson’s identity to Judy Miller. 745 days ago, for all intents and purposes, the investigation of Dick Cheney’s involvement in outing a CIA officer ended in the dead end of Scooter Libby’s successful criminal obstruction of justice.

Yet DOJ describes CREW’s efforts to get Cheney’s interview report via FOIA to be an attempt to get "a ruling that would make public interview reports of high ranking White House officials immediately upon the conclusion of the relevant investigation." For the whizzes in DOJ, I guess, 745 days equates to "immediate."

But that’s not the only heap of stupid they bring in this filing.

Next, these whizzes argue that if DOJ turns over Cheney’s interview, then senior White House officials will no longer provide criminal investigators a "full account of relevant events."

This argument, however, is ultimately immaterial because, while in some circumstances public pressure could possibly force a White House official to sit down for an interview, it cannot ensure that that official will be willing “to provide law enforcement officials with a full account of relevant events,”

Dudes! Let me tell you a secret about this case!! It ended in a successful perjury and obstruction of justice prosecution that revealed–among other things–that convicted felon Scooter Libby had worked out a cover story with Dick Cheney before Libby first testified to the FBI! Had Cheney given a "full account of relevant events," then Scooter Libby probably wouldn’t have been prosecuted successfully (or, at the least, Judy Miller wouldn’t have had to testify or Cheney would have been charged with obstruction himself).

Next, DOJ claims that a precedent in which the release of a summary of deliberations was found not to constitute a waiver over the source documents of that deliberation applies here, in which key source documents have already been released, but which wouldn’t–DOJ argues–constitute a waiver for the interview report which is fundamentally a summary. For DOJ, a precedent finding that a summary doesn’t equal source is the same as a source not equaling a summary. 

The D.C. Circuit held that the release of the report did not constitute a waiver of privilege and that the White House could retain privilege over all documents that had not specifically been provided to individuals outside the government. Id. at 741. Read more

Could Cheney’s Lawyer’s Leak Break through the Cloud over Cheney?

This may sound self-evident. But the fact that Dick Cheney’s lawyer, Terry O’Donnell, leaked material that Dick Cheney told Fitzgerald in his interview absolutely destroys the government’s argument for keeping those interview materials secret. That’s because the government is arguing that materials collected for law enforcement should never be used for political purposes.  But O’Donnell’s leak was just that, and as such constitutes not only an explicit waiver to release the materials, but devastating proof that DOJ’s hand-wringing about letting this information out to be misplaced.

DOJ Produced a Vaughn Index in Response to a Sullivan Order

The government produced last week’s filing–complete with descriptions of all the contents of Cheney’s interview, in response to an order from Judge Sullivan, who didn’t buy that Steven Bradbury was properly qualified to claim that releasing Cheney’s interview materials would "chill" future investigations without more explanation. (This is from the transcript from the June 18 hearing, with spelling corrected.)

THE COURT: Otherwise, it’s just an assumption [Bradbury] makes based upon nothing he can point to. He didn’t say that he had spoken with the Vice-President, the Vice-President told him in retrospect had I known that, I never would have done this absent a subpoena. So that’s the problem the Court finds itself in. There’s not a lot said in the declaration other than this will happen.

Of particular note, Sullivan noted that the government has not properly invoked executive privilege here.

THE COURT: But it’s clear from the record the President and no one in the executive branch has clearly asserted executive privilege here. There are the law enforcement exemption and there’s certain other deliberative process et cetera, et cetera, exemptions that the government avails itself of but it’s not an executive privilege.

So Sullivan gave the government a second shot to appropriately explain why this stuff should be exempt from FOIA.

But it’s not going to help the government much. Granted, the government did have someone more qualified to talk about how releasing this interview would "chill" future  investigations than Steven Bradbury–Criminal Division Head Lanny Breuer. But Breuer’s examples of how releasing Cheney’s interview materials would "chill" future investigations were totally inapposite to this case. Breuer argues that releasing a late-investigation interview of a key subject of that investigation will dissuade ancillary witnesses from cooperating early in an investigation. And his examples of previous high level investigations show that the norm for such investigations is public disclosure.

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Cheney’s Lawyer Already Leaked the Content of Cheney’s “Privileged” Interview

You know how Obama’s DOJ claims that we can’t see Cheney’s interview with Patrick Fitzgerald because it’s privileged? Well, Dick Cheney’s own lawyer already leaked the so-called privileged content three years ago.

It appears that Dick Cheney’s lawyer, Terry O’Donnell, attended the interview. When Ted Wells asked David Addington at the Libby trial when he realized he was going to be a witness in the case, Addington explained that he was not permitted to attend Cheney’s interview, but Cheney’s lawyer was.

The point at which I knew I was likely to be a witness in the case was when the government went to interview the Vice President and indicated they would prefer I didn’t come and that only his private attorney come.

I’m interested in that because we know that Terry O’Donnell spread a cover story on the NIE leak–precisely the content DOJ now claims is privileged–to Michael Isikoff.

One of the details that most surprised me in Scott McClellan’s account of the CIA Leak investigation and aftermath was his description of the White House response to the confirmation–on April 5, 2006–that Libby had testified he had leaked the NIE with the authorization of the President.

Now the fact that he himself had authorized the selective leaking of national security information to reporters made him look hypocritical.

[snip]

In time, we would learn that the president’s penchant for compartmentalization had played an important role in the declassification story. The only person the president had shared the declassification with personally was Vice President Cheney. Two days after the Fitzgerald disclosure, Cheney’s lawyer told reporters that the president had "declassified the information and authorized and directed the vice president to get it out" but "didn’t get into how it would be done." Then the vice president had directed his top aide, Scooter Libby, to supply the information anonymously to reporters. [my emphasis]

[snip]

But it all made sense when someone pointed me to the one piece of journalism he could find repeating that citation–would you believe it, a Michael Isikoff piece?

A lawyer familiar with the investigation, who asked not to be identified because of the sensitivity of the matter, told NEWSWEEK that the "president declassified the information and authorized and directed the vice president to get it out." But Bush "didn’t get into how it would be done. He was not involved in selecting Scooter Libby or Judy Miller." Bush made the decision to put out the NIE material in late June, when the press was beginning to raise questions about the WMD but before Wilson published his op-ed piece. [my emphasis]

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The Contents of the Fitzgerald-Cheney Interview, Annotated Edition

225px-richard_cheney_2005_official_portrait.thumbnail.jpg

Since there is still some confusion over the material from Dick Cheney’s interview with Patrick Fitzgerald that, DOJ says, cannot be made public, I decided to provide a more detailed description of what was in the interview with handy links for any media outlets that are too busy selling access to lobbyists to do their own work. What follows are the page-specific references in the DOJ FOIA response to material that appears in the FBI report of the interview. That document is 28 pages long, total, so this is a pretty good outline of what’s in the interview. I treat information that appears on the same page together, so a couple of these descriptions cover a number of separate issues raised in the filing.

Vice President’s discussion of the substance of a conversation he had with the Director of the CIA concerning the decision to send Ambassador Wilson on a fact-finding mission to Niger in 2002. (Page 3, lines 15-17, 21-28); The name of a covert CIA employee (Page 3)

As you recall, Libby first learned of Valerie Plame’s covert identity from a conversation with Dick Cheney some time during the week of June 9, 2003. He recorded his conversation with Cheney in a note which was a central focus of Libby’s grand jury testimony. When asked, Libby said Cheney may have learned of Valerie’s status from Tenet. And, when Fitzgerald was questioning Libby about Cheney’s notations on Joe Wilson’s op-ed, Libby explained that Cheney had asked Tenet earlier in June or July about the CIA sending ambassadors to gather information.

Q. When the Vice President asked you the question, "have they done this type of thing before," question to that effect, Vice — did the Vice President ever ask you has the Agency ever done this sort of thing before where an ambassador was sent out?

A. I think he may have at some point.

Q. And what did you do in response to that question, if anything?

A. I don’t know if I did anything particularly about it. I think he may have taken it up with, with Tenet rather than asking me.

[snip]

Q. What did he talk to the official that you do know he talked about?

A. About, you know, how this came about. I have a sense that he had talked to Tenet or somebody about, about that.

Q. And what time frame was that?

A. Summer, June, July, something like that.

In other words, this conversation appears to be the conversation Cheney had during the week of June 9 in which he learned of Plame’s identity. That makes the reference to "a covert CIA employee’s identity" all the more interesting. While that might be a reference to Valerie’s colleague who first suggested sending Joe, it might well be a reference to Valerie herself. While we know the CIA still wants to hide details of Plame’s career, it would be the height of absurdity if CIA tried to prevent us from seeing Fitzgerald ask Cheney about Plame.

In any case, DOJ is probably attempting to prevent us from learning of Cheney’s account of how he learned of Plame’s identity before he passed it on to Scooter Libby.

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Cheney Interview: Pay2PlayPo Losing Its Ability to Report, Too

picture-113.pngThe WaPay2PlayPo’s Jeffrey Smith is usually a much better reporter than this. In his report on DOJ’s latest attempt to keep the materials from Cheney’s Fitzgerald interview secret–published right under a link to all the evidence released in the trial–Smith "reports,"

A document filed in federal court this week by the Justice Department offers new evidence that former vice president Richard B. Cheney helped steer the Bush administration’s public response to the disclosure of Valerie Plame Wilson’s employment by the CIA and that he was at the center of many related administration deliberations.

Which, if you take "new evidence" to mean "a new list summarizing many of the events described in evidence introduced two years ago at the Libby trial," would be factually correct.

But this isn’t.

Barron also listed as exempt from disclosure Cheney’s account of his requests for information from the CIA about the purported purchase; Cheney’s discussions with top officials about the controversy over Bush’s mention of the uranium allegations in his 2003 State of the Union speech; and Cheney’s discussions with deputy I. Lewis "Scooter" Libby, press spokesman Ari Fleischer, and Chief of Staff Andrew H. Card Jr. "regarding the appropriate response to media inquiries about the source of the disclosure" of Valerie Plame Wilson’s identity. [my emphasis]

Smith gets that last bit from this language in the filing.

Vice President’s recollection of discussions with Lewis Libby, the White House Communications Director, and the White House Chief of Staff regarding the appropriate response to media inquiries about the source of the disclosure of Valerie Plame Wilson’s identity as a CIA employee.

gx53201-libby-sonnet.thumbnail.jpgNow, the language used there–"the source of the disclosure of Valerie Plame Wilson’s identity"–ought to be a pretty big clue to Smith that this conversation happened after Plame’s identity was actually made public. That is, after July 14, 2003, which happened to be Ari Fleischer’s last day, meaning it’s pretty clear that Ari Fleischer (who was White House Spokesperson, not Communications Director) isn’t the guy referenced here. But you don’t really need clues like that to figure out that Smith is wrong here. Had Smith only clicked that link above his article and actually looked at the evidence released at trial, he would have seen the famous "meat grinder note," a note Cheney used as a talking point document for conversations with Andy Card (correctly identified by Smith as Chief of Staff) and Dan Bartlett (in his role as "White House Communications Director," the position listed in the filing) in early October 2003 to get them to force Scottie McClellan to exonerate Scooter Libby publicly. 

Has to happen today. 

Call out to key press saying same thing about Scooter as Karl.

Not going to protect one staffer and sacrifice the guy the Pres that was asked to stick his neck in the meat grinder because of the incompetence of others.

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Cheney Interview: The New Jon Stewart-Worthy Excuses

As I mentioned, DOJ did one crappy-ass job of trying to give Emmet Sullivan a better reason they can’t turn over Dick Cheney’s interview materials than that Jon Stewart would embarrass poor Dick. They trot out the same canard about needing cooperation from high level officials in the future. But there two big problems with their argument.

The Release of a Late-Investigation Interview of the Target of that Investigation Will Hurt Early Investigative Cooperation

First, they’re basically forced to argue that they won’t be able to get information early in an investigation if VPs and the like worry that their interviews with Special Counsels will eventually be made public.

For example, obtaining information through interviews early in an investigation “often assists law enforcement agents in obtaining important background information,” “help[s] law enforcement investigators determine where to concentrate or focus the investigation,” and may “obviate the need to convene a grand jury at all or circumscribe the focus of the grand jury’s inquiry.” Breuer Decl. ¶ 6. “A law enforcement investigation based upon interviews subject to an expectation of confidentiality also benefits from senior officials more inclined to provide identifiable leads, name percipient witnesses, offer credibility assessments of the accuser or other witnesses, and even articulate inferences, insight or hunches that can be invaluable to a law enforcement investigator.”

But of course this interview wasn’t about "obtaining important background information" about "where to concentrate or focus the investigation" that might "obviate the need to convene a grand jury." Neither Bush nor Cheney gave an interview at that early stage of the process. Rather, this was an interview conducted while there was an active grand jury, at a time when all major witnesses save journalists had already been interviewed.

This was an interview of the ultimate target of the investigation, not a mere bystander.

Meanwhile, the DOJ wants to pretend that a grand jury investigation of top White House officials might thwart an investigation.

Additionally, if a senior White House official were to require the investigators to go through the grand jury process, “[s]uch a decision could impose considerable practical difficulties and burdens upon investigators and prosecutors that at best could prolong investigations and at worst thwart investigations.”

Tell that to Karl Rove and his five grand jury appearances. Turdblossom couldn’t get enough of the grand jury (and he’s been before a grand jury since). Read more