By Dan Froomkin
11:26 AM ET, 06/19/2009
The Obama Justice Department yesterday put forth an new legal argument, one that even the Bush team might not have had the gall to employ. Call it the Daily Show disclosure exclusion.
Yes, a Justice Department lawyer actually argued to a federal district court judge that there should be an exemption from Freedom of Information Act disclosure rules for documents that would subject senior administration officials to embarrassment -- as in on late-night television.
This is not just wrong, it's perversely wrong. By contrast, a good rule of thumb would be: The more embarrassing, the more we need to know. The Justice Department and the White House should be forced to renounce this assertion immediately.
And if this wasn't bizarre enough, consider the irony that in the case at hand, the Obama Justice Department is fighting the release of a transcript of former vice president Dick Cheney's testimony to special prosecutor Patrick Fitzgerald about his role in the outing of Valerie Plame as a CIA agent.
And guess what else? The Obama team relied extensively on a legal opinion (via Emptywheel) authored by Stephen Bradbury, the utterly discredited head of the Office of Legal Counsel whose other writings included memos outrageously asserting that torture was legal -- and that Karl Rove had absolute immunity from congressional oversight.
In his memo, Bradbury described the information in question:
Portions of the withheld documents reflect or describe frank and candid deliberations involving, among others, the Vice President, the White House Chief of Staff, the National Security Adviser, the Director of the Central Intelligence Agency, and the White House Press Secretary. These deliberations concern, among other things, the preparation of the President's January 2003 State of the Union Address, possible responses to media inquiries about the accuracy of a statement in the President's address and the decision to send Ambassador Joseph Wilson on a fact-finding mission to Niger in 2002, the decision to declassify portions of the October 2002 National Intelligence Estimate, and the assessment of the performance of senior White House staff.
OK, right this second, I can't think of a single document that I want -- or deserve to have -- more.
And yet, as R. Jeffrey Smith chronicled in The Washington Post this morning:
[C]areer 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.
This is yet another example of Obama's lawyers blatantly violating the president's promise not to "protect information merely because it reveals the violation of a law or embarrassment to the government."
Shocked? You're not the only one. As Smith writes:
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....
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.
This is not the first time the public has gotten this close to seeing Cheney's statements.
As I wrote in December 2007, it took an intervention by the White House to prevent Fitzgerald from turning it over to congressional investigators.
Then-House Oversight Committee chairman Henry Waxman had gotten Fitzgerald, up until then reluctant to divulge any information about his investigation that hadn't come out in open court, to turn over documents that weren't protected by grand-jury secrecy rules. Fitzgerald explicitly 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.'"
After the White House intervened, Waxman subpoenaed the Justice Department for the information. He pointed out that what he was asking for was far from unprecedented: "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." But then-attorney general Michael Mukasey backed up the White House, and refused to turn it over.
Why all this still matters is that it's long been clear that Fitzgerald 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."
So while Fitzgerald couldn't prove a case against Cheney, that doesn't mean there isn't plenty of evidence of wrongdoing in his case file. And Cheney's interview with Fitzgerald would, I am quite sure, be revelatory. For instance, Libby told the FBI in 2003 that Cheney might have ordered him to reveal Plame's identity to reporters. What did Cheney say to that?
Nedra Pickler writes for the Associated Press about how this latest case came to be:
In July 2008, the liberal watchdog group Citizens for Responsibility and Ethics in Washington submitted a Freedom of Information Act request to the Justice Department seeking records related to Cheney's interview in the investigation. The Justice Department declined to turn over the records, and CREW filed a lawsuit in August.
And Ben Conery writes in The Washington Times:
The judge's move came as the Obama administration continues to defend the legal positions of the Bush administration on the Plame affair.
In addition to fighting against the release of the interview notes, the Obama Justice Department is carrying on its predecessor's opposition to a lawsuit filed by Mrs. Plame and her husband, former U.S. Ambassador Joseph C. Wilson IV, against several top Bush administration officials, including Mr. Cheney. The Justice Department recently asked the Supreme Court not to hear an appeal of the case, which has been dismissed by two lower courts.