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Legal Commentary: TalkLeft
The Battle Over Dick Cheney's FBI Valerie Plame Interview
When I wrote a few weeks ago about the Obama Administration taking the position that documents related to Dick Cheney's FBI interview in the Valerie Plame leaks case should not be released, it was in the context of lack of transparency and the silliness of the Government's attempted justification:
Another sign of non-transparency from Obama: His Justice Department is fighting a Freedom of Information Act request in federal court, trying to keep CREW from obtaining FBI reports and summaries of Dick Cheney's statement to the FBI over the Valerie Plame Leak. The Judge held a hearing yesterday and was very unhappy with the Government's position. He's going to review the statement himself to see if there's any reason not to release the requested documents. The Government gave this ridiculous reason: They don't want the statements "to become fodder for Cheney's political enemies or late-night commentary on "The Daily Show."
In newer developments, David Corn reports the Government has filed a new pleading containing a more substantive reason: [More...]
Corn reports Deputy Chief of the Criminal Division Lanny Breuer submitted a declaration stating "if the Cheney interview is made public it could cause public officials in the future to not cooperate with criminal investigations." From Breuer's declaration:
As a general matter, the non-public nature of law enforcement interviews can be a significant factor in securing the voluntary cooperation of witnesses. Indeed, it is not uncommon for prosecutors and law enforcement investigators to inform witnesses that, subject to applicable statutes, regulations and rules, they will attempt to maintain the confidentiality of information provided. A non-public interview can be particularly important in gaining the cooperation of senior-level White House officials given the public role of such witnesses, the sensitive nature of the subject matters that may be discussed, the potential politicization of these sensitive issues, and the possibility that whatever matter is being investigated ultimately may not warrant any law enforcement action.
In other words, top government officials may only cooperate with a criminal investigation --that is, submit to questioning without being subpoenaed -- if they are promised confidentiality. Now what sort of public servant would a person be if he or she refused to help the FBI during an investigation? But Breuer claimed this is a real threat to future investigations.
Kevin Drum takes a different view and asks if any law bloggers want to respond:
I guess what I'm unclear about here is the distinction, if there is one, between an ordinary FBI interview and one with a high-ranking politico. Just speaking generally, it strikes me that it's genuinely in the public interest for interviews like these to be kept private unless they lead to criminal prosecutions. Lots of people really would would be less forthcoming during FBI investigations if they knew their interviews might become public, so it's reasonable that the default position should be that they stay confidential. That's certainly how I'd want things to stand if I were dishing dirt to the FBI.
Now, perhaps things should be different for non-ordinary people like vice presidents. But I don't know if that's part of the legal argument here or not. Are there any law bloggers out there who can step in and explain what's going on here?
First, the reason this is an issue is because Judge Emmett Sullivan ordered the following be filed by yesterday (From his order, available on PACER):
...the parties are directed to submit supplemental briefing that addresses (1) any known instances in which high level White House officials have engaged in interviews with law enforcement officials outside the context of a grand jury subpoena, and (2) what, if anything, such officials have done to protect against the content of those interviews from becoming public.
I would start with the difference between a Congressional committee subpoenaing the documents and a private interest group filing a FOIA lawsuit for them. I would also consider the parallel of grand jury secrecy, which isn't at issue here, for reasons discussed below, but which nonetheless seems relevant to me.
The Bush DOJ, on behalf of Cheney, asserted executive privilege among other claims after the House Oversight Committee had issued a subpoena for the Cheney interview. The Wilson's responded at the time:
“Today the president took the unprecedented step of asserting executive privilege to thwart congressional efforts to review Vice President Cheney’s interview with Special Prosecutor Patrick Fitzgerald concerning the betrayal of Valerie Wilson’s covert CIA identity. We agree with Congressman Waxman that the position taken by the president is ludicrous.
The American people have a right to know what role the vice president played in the leak of Ms. Wilson’s covert identity for political purposes. The fact that the Attorney General is recommending the assertion of executive privilege reveals that this Department of Justice is as beholden to the White House as that run by former Attorney General Alberto Gonzales.
I agree the Congressional Committee had a right to know. It was conducting a parallel investigation and the material it requested wasn't protected by grand jury secrecy. I don't think the American public did at that point. Or now. The lawsuit at issue here is not related to the Congressional investigation, even though the documents it requests mirror those the Committee requested. It is a Freedom of Information Act request by a public interest group, CREW.
U.S. Attorney Patrick Fitzgerald told the House Oversight Committee in this letter (pdf) that grand jury secrecy doesn't apply to its subpoena of these documents. Still, Cheney's 2004 interview by federal prosecutors was part of the grand jury investigation into the leak of Plame's identity. He may not have testified in front of the grand jury, but the grand jury was investigating the case and the interview was conducted as part of that investigation.
Vice President Dick Cheney was recently interviewed by federal prosecutors who asked whether he knew of anyone at the White House who had improperly disclosed the identity of an undercover C.I.A. officer, people who have been involved in official discussions about the case said on Friday.
...The interview of the vice president was part of a grand jury investigation into whether anyone at the White House violated a federal law that makes it a crime to divulge the name of an undercover officer intentionally.
As then President Bush said about his own interview, it was a criminal matter:
"In terms of whether or not I need advice from my counsel, this is a criminal matter, it's a serious matter, I have met with an attorney to determine whether or not I need his advice. And if I deem I need his advice, I'll probably hire him."
The Government may not disclose matters occurring before the grand jury. One reason is to protect the names and reputations of the innocent, those who don't get indicted.
The grand jury in the United States has become both a sword and a shield of justice: a sword, because it can investigate crime and indict criminals; a shield, because by its secret and nonpublic nature, it can protect the innocent against unfair publicity. These important powers carry equally grave responsibilities to see that such powers are not abused. Unless motivated by the highest sense of justice, a grand jury might return indictments not warranted by the evidence and thus become a source of oppression to innocent citizens.
Rule 6(e) of the Federal Rules of Criminal Procedure contains the secrecy rule and exceptions. One exception is that federal officials may share information with each other, but only in the conduct of their official duties. The Congressional investigation seems to fit this. A Freedom of Information Act request by private citizens does not.
But, CREW is not seeking the actual interview of Cheney. According to it's Cross-Motion for Summary Judgment (pdf), it is seeking matters occurring outside the grand jury, specifically:
- 1) “FBI report summarizing interview of Vice President Richard B. Cheney” (28 pages);
- “FBI handwritten notes summarizing interview of Vice President Richard B. Cheney” (22 pages);
- 3) “FBI handwritten notes (annotated on outline of questions to be asked) summarizing interview of Vice President Richard B.Cheney” (17 pages).
The FBI agent summaries were taken during the Cheney interview. Even though the interview, and the agents' notes of it don't fall under grand jury secrecy rules, I think the same principles should apply.
If the shoe were on the other foot, and you were a person interviewed by prosecutors and federal officials conducting a grand jury investigation, and you were not indicted, would you want a summary of your interview disclosed to the public? What if you were one of the people who was talked about in that person's grand jury interview? Would you want a one-sided account by that person disclosed to the public?
Not everyone talks to the FBI voluntarily, even without a subpoena. Some people are threatened with criminal charges unless they agree to an interview. Others refuse and are granted immunity and then compelled to talk. Or as part of a proffer for a deal. Or out of fear their loved ones will be targeted if they don't comply with the Government's request. These interviews are one-sided and not subject to cross-examination by representatives of individuals who are the discussed during the interview. These interviews may or may not be reliable.
Criminal trials take place in public. Criminal investigations take place in private. Even though this isn't a grand jury secrecy case, I think in order to protect the privacy and reputation of those who are mentioned or discussed by the subject of a law enforcement interview, the reports of these interviews, untested by cross-examination, should remain in government hands and not subject to release via a FOIA request.
This shouldn't be decided on executive privilege. Or on the basis of whether federal officials will clam up when those investigating possible criminal conduct want to interview them.
The same rule should apply to Cheney as to everyone else. In my view, the Congressional Committee had a right to the documents since they are federal officials investigating a matter related to the subject matter of the grand jury's Valerie Plame leak investigation. But CREW and the public don't. It's too bad that Dick Cheney is the one who wins if the material is not released to CREW and the public, but I'd rather have that than a precedent that allows reports of law enforcement interviews of the average citizen who ultimately is not indicted, and who may have slandered Tom, Dick and Mary during their interview, subject to public disclosure.
So while the Government's grounds are weak and unpersuasive, for other reasons, I hope the documents are not be released to the CREW and the public.
- Government Motion for Summary Judgment
- CREW Cross Motion for Summary Judgment
- Stephen Bradbury Declaration
- Larry Breuer Declaration
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