Closing the Door

The Bush administration today unveiled a set of novel and controversial legal arguments in refusing to disclose key details about Vice President Dick Cheney's role in the leak of CIA operative Valerie Plame's identity.

In two letters released Wednesday, the Justice Department revealed that, upon the recommendation of Attorney General Michael Mukasey, President Bush had invoked executive privilege rather than turn over to Congress a never-released FBI report (known as a "302") recounting a confidential 2004 interview with Cheney about his knowledge of the Plame affair.

The White House move effectively closes the door on the last chance for the public to learn answers to a swirl of questions that have surrounded Cheney's actions from the outset of the Plame case. Indeed, in his summation to the jury last year in the trial that led to the conviction of the vice president's top aide, I. Lewis (Scooter) Libby, special counsel Patrick Fitzgerald repeatedly pointed to Cheney's actions, telling the jury at one point that "there is a cloud over what the vice president did."

The decision by the White House to refuse to honor the subpoena from Democratic Rep. Henry Waxman's House Oversight and Government Reform Committee for Cheney's interview was hardly unexpected, given the administration's history of fiercely protecting presidential prerogatives. What was surprising to some legal scholars was the basis for shielding the FBI interview report. It was covered, Mukasey said, by what he called "the law-enforcement component of executive privilege."

"As far as I know, this is an utterly unprecedented executive-privilege claim," said Peter Shane, an Ohio State University law professor who is an expert on executive privilege and separation-of-powers issues. "I've never heard this claim before."

Normally, claims of executive privilege are invoked to protect the disclosure of the president's communications with his top advisers. But in this case, the White House invoked the claim to keep secret Cheney's responses to FBI agents (hardly what anybody would call his advisers), who were grilling him as part of the now-closed criminal investigation headed by Fitzgerald.

Fitzgerald's probe focused on whether any administration officials broke the law when they disclosed to members of the press that Plame, an undercover CIA operative who was the wife of Iraq War critic Joseph Wilson, worked for the agency. The disclosures were allegedly made as part of a White House attempt to discredit Wilson by suggesting that a trip he took for the agency to investigate claims about Saddam Hussein's nuclear-weapons program was arranged by his wife. Evidence in the case showed that Libby—who was convicted of lying and obstruction—first learned about Plame's CIA work from Cheney and was later directed by the vice president to meet with reporters on an off-the-record basis to rebut criticism by Wilson.

What makes the decision to withhold the Cheney interview all the more unusual was the fact that the White House had already agreed to permit congressional investigators to inspect the FBI 302 reports of other top White House aides in the Plame case, including Karl Rove.

So what was different about Cheney?

Mukasey argued that giving Congress a copy of the FBI 302 report on Cheney would "significantly impair" the Justice Department's ability to investigate wrongdoing by future White House officials. Presidents and vice presidents would be reluctant to submit voluntarily to FBI interviews because there would be "an unacceptable risk" that their accounts would eventually become public, he contended in a letter to Bush recommending that the president invoke the privilege. (Both Bush and Cheney had agreed to be interviewed by Fitzgerald and FBI agents working for him. Waxman had initially subpoenaed Bush's FBI 302, as well, but the chairman dropped the request in an effort to encourage White House cooperation).

Justice Department spokesman Brian Roehrkasse disputed the contention that the arguments used by Mukasey to protect Cheney's FBI report were novel. He cited a 1986 legal opinion in which the Reagan Justice Department refused to turn over closed files from an independent counsel probe on the grounds that their disclosure might impair "prosecutorial decision-making in future cases."

The idea of applying this to "potential" future criminal investigations, as opposed to future decisions to prosecute in cases already underway, "is simply a particular variation on the same general concept," Roehrkasse said.

But a number of former federal prosecutors and legal scholars said that Mukasey's argument that future White House officials wouldn't cooperate with the Justice Department if Cheney's 302 report were to be publicly disclosed seemed a stretch. (The legal claims were prepared in part by Office of Legal Counsel chief Stephen Bradbury, whose legal opinions on interrogation and torture have come under fire from Congress).

"Creative is a good word to describe it," said Mark Rozell, another executive-privilege expert who is a professor at George Mason University's School of Public Policy, about the attorney general's contention. "This is really an argument to protect the White House's own political interests and save it from embarrassment."

As a practical matter, White House officials—including presidents and vice presidents—must cooperate with Justice Department criminal investigations involving their administrations, noted Michael Bromwich, a former federal prosecutor who investigated White House wrongdoing during the Iran-contra affair and later served as the Justice Department's inspector general. The alternative to submitting voluntarily to FBI interviews is simple: officials would invariably receive grand-jury subpoenas—and pay a rather high political, if not legal cost—if they refused to cooperate. "In the real world, high-level White House officials don't have the choice of not submitting to FBI interviews," Bromwich said.

Investigators for Representative Waxman, the chairman of the House oversight panel whose staff prepared the subpoenas, noted other problems with Mukasey's argument. Former attorney general Janet Reno agreed to turn over to Congress closed Justice Department files from the campaign-finance investigations into the Clinton White House in the 1990s, including FBI interviews with both President Clinton and Vice President Al Gore. Yet, as one staffer noted, that didn't stop Bush or Cheney from submitting to FBI interviews by Fitzgerald's team. (Indeed, Bush himself publicly ordered everybody in the White House to cooperate when the Plame probe began.)

The White House move left Waxman and his team momentarily stymied. The California congressman began his probe of the Plame affair shortly after the Democrats took back control of the House in January 2007, claiming that there were still a host of key questions about the matter (such as why no White House officials were fired or reprimanded for disclosing classified information) that were left unanswered by Fitzgerald's more narrowly focused criminal probe. (Fitzgerald ultimately prosecuted Libby for perjury and obstruction—not any underlying crime for leaking Plame's status as a CIA agent.)

Among the documents that Waxman had subpoenaed—which the White House also refused to turn over Wednesday—were notes taken by then deputy national-security adviser Stephen Hadley about conversations he had with Cheney and other White House officials during the course of the probe. Other subpoenaed material included papers relating to the preparation of President Bush's 2003 State of the Union speech and internal notes about how to rebut criticism by Plame's husband, former U.S. ambassador Wilson, that the speech's claim that Saddam Hussein was seeking uranium from Niger was untrue.

It was, of course, the Niger uranium claim—eventually shown to have been based on a crude forgery—that triggered concerns that the White House had hyped and inflated intelligence to sell the invasion of Iraq. But while he can always try to take the White House to court, Waxman's hopes that he will get to the bottom of that matter—or any of the multiple controversies that flowed from it, including the Plame affair—were considerably dimmed today.