Legal Commentary

House Report: Can't Assess Cheney Role in PlameGate; Stymied by Executive Privilege Claims

By Jeralyn

The House Oversight and Government Reform Committee released its report (pdf) on PlameGate today. The last two paragraphs tell the story:

The investigation sought to answer basic questions about this incident, including (1) how the Valerie Plame Wilson leak occurred, including whether there was a concerted effort to knowingly disclose classified information; (2) whether senior White House officials complied with requirements governing the handling of classified information; (3) whether the White House took appropriate steps to address an improper leak and sanction any individuals involved; and (4) what legislative or other actions are needed to ensure appropriate identification and handling of classified information by White House officials so that such leaks do not occur in the future.

The Committee has been unable to completely investigate these matters, in part, because of the President’s assertion of executive privilege over the report of the FBI interview of Vice President Cheney. This invocation of executive privilege was legally unprecedented and an inappropriate use of executive privilege. It prevented the Committee from learning the extent of the Vice President’s role in the disclosure of Ms. Wilson’s identity.

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It also discusses executive privilege:

"At its core, the doctrine of executive privilege is intended to preserve the ability of the President to receive confidential advice from the President's closest advisors," the report says. "In the case of the FBI interview with the Vice President, there is no legal basis - or precedent - for asserting executive privilege in a situation like this. The Vice President had no reasonable expectation of confidentiality regarding the statements he made to Mr. Fitzgerald and the FBI agents."

The report also notes that Fitzgerald himself even 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."

It also says there is absolutely no precedent for holding recaps of presidential conversations given to third parties are covered by executive privilege, nor are communications between vice presidents and their staff about vice presidential decision-making.

ON January 20, these executive branch power abusers are history. Let's hope the American people are smart enough not to replace them with John McCain and Sarah Palin -- more of the same.

Full post as published by TalkLeft on October 14, 2008 (boomark / email).