CREW v. DOJ: Re: Valerie Plame: 10/30/08 - CREWs Memorandum in Opposition

8/7/2019 CREW v. DOJ: Re: Valerie Plame: 10/30/08 - CREWs Memorandum in Opposition

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON, )

)Plaintiff, ) v. ) C. A. No. 08-1468 (EGS)

)

U.S. DEPARTMENT OF JUSTICE, )

)

Defendant. )

__________________________________________)

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT

OF PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,

seeking the disclosure of records held by defendant Department of Justice (“DOJ”)

concerning interviews of Vice President Richard B. Cheney conducted as part of Special

Counsel Patrick J. Fitzgerald’s investigation into the leak of Valerie Plame Wilson’s covert

CIA identity. DOJ has moved for summary judgment, asking the Court to sustain its

decision to withhold the requested material in its entirety. Because the agency has failed to

meet its burden – both procedurally and substantively – the Court should deny DOJ’s

motion and grant plaintiff’s cross-motion for summary judgment.

BACKGROUND

The CIA Leak Investigation and the Role of Vice President Cheney

As part of Special Counsel Fitzgerald’s investigation into the leak of the covert

CIA identity of Mrs. Wilson, the FBI interviewed I. Lewis Libby, the vice president’s chief

of staff, on November 26, 2003. During his interview, Mr. Libby stated that it was

“possible” he was instructed by someone, including possibly the vice president, to inform a

member of the press of the identity and employment of Mrs. Wilson. Complaint, ¶ 19;



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Answer, ¶ 19. The leak of Mrs. Wilson’s covert identity followed the publication of aNew

York Times op-ed column by her husband, former Ambassador Joseph Wilson, outlining

what he found in his trip to Niger to investigate allegations that Iraq had sought uranium

from Africa. During the criminal trial of Mr. Libby, Cathie Martin, Assistant to the Vice

President for Public Affairs, testified that she, Mr. Libby and Vice President Cheney all

participated in a press strategy to discredit Ambassador Wilson’s account. Complaint, ¶

20; Answer, ¶ 20.

Special Counsel Fitzgerald, in his closing remarks to the jury during the criminal

prosecution of Mr. Libby, stated that “[t]here is a cloud over what the Vice President did

that week. He wrote those columns. He had those meetings. He sent Libby off to Judith

Miller at the St. Regis Hotel. At that meeting, the two-hour meeting, the defendant talked

about the wife. We didn’t put that cloud there. That cloud remains.” Complaint, ¶ 21;

Answer, ¶ 21.

For more than a year, the House of Representatives Committee on Oversight and

Government Reform (“the Committee”) has been seeking documents from defendant DOJ

as part of the Committee’s investigation into the leak of Mrs. Wilson’s covert CIA identity.

As part of that investigation, DOJ provided the Committee with redacted versions of

reports of FBI interviews of White House staff, but has refused to permit any access to the

interview reports of the president and vice president. Complaint, ¶ 22; Answer, ¶ 22.

Special Counsel Fitzgerald has advised the Committee that as to the FBI’s interviews of

the president and vice president, “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



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the interview or interviews.” Complaint, ¶ 23; Answer, ¶ 23; Letter from Special Counsel

Patrick J. Fitzgerald to Hon. Henry A. Waxman, July 3, 2008, attached hereto as Plaintiff’s

Exhibit (“Pl. Ex.”) A, at 2.

On July 15, 2008, Attorney General Michael B. Mukasey requested that the

president assert executive privilege in response to a subpoena from the Committee seeking

the FBI’s reports of the Special Counsel’s interviews with the vice president as well as

notes prepared during the interviews. On July 17, 2008, the Committee announced that

President Bush had invoked executive privilege to block DOJ from providing the

Committee with the subpoenaed documents. Complaint, ¶ 24; Answer, ¶ 24; Declaration of

Steven G. Bradbury (“Bradbury Decl.”), ¶¶ 4-5.1

Plaintiff’s FOIA Request and DOJ’s Decision

to Withhold All Responsive Material

On July 17, 2008, plaintiff Citizens for Responsibility and Ethics in Washington

(“CREW”) sent a FOIA request to defendant DOJ seeking records, regardless of format

and including electronic records and information, “relating to any interviews outside the

presence of the grand jury of Vice President Richard B. Cheney that are part of Special

1

On October 14, 2008, the Committee released a draft report summarizing its thwartedefforts to obtain relevant material, including the interview reports at issue here.

Significantly, the report notes:

The central document in this dispute is the report of the FBI interviewwith the Vice President. Both the Chairman and the Ranking Member are

in agreement that the President’s assertion of executive privilege over thisdocument was legally unprecedented and an inappropriate use of executive

privilege.

Draft Report of the Committee on Oversight and Government Reform, U.S. House of Representatives, Regarding President Bush’s Assertion of Executive Privilege in Response

to the Committee Subpoena to Attorney General Michael B. Mukasey (“Draft CommitteeReport”), attached hereto as Pl. Ex. B, at 7.



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Counsel Patrick Fitzgerald’s investigation into the leak of the identity of Valerie Plame

Wilson, a covert CIA officer.” CREW explained that its request was coextensive with the

subpoena issued by the Committee to the attorney general on June 16, 2008, for the same

records concerning Vice President Cheney. CREW’s request was directed to the DOJ’s

Office of Information and Privacy (“OIP”), which is responsible for FOIA requests seeking

records of the attorney general, deputy attorney general and associate attorney general.

Complaint, ¶ 25; Answer, ¶ 25; Bradbury Decl., ¶ 6. CREW requested that DOJ expedite

the processing of its FOIA request, pursuant to the FOIA and DOJ regulations, in view of

the particular urgency to inform the public about the role Vice President Cheney played in

the leak of Mrs. Wilson’s covert CIA identity and the basis for Special Counsel

Fitzgerald’s decision not to prosecute the vice president. Complaint, ¶ 27; Answer, ¶ 27.

By letter dated July 24, 2008, DOJ acknowledged receipt of CREW’s FOIA request

and advised CREW that its request for expedited processing had been granted.

Notwithstanding that purported decision, DOJ failed to respond to CREW’s request within

the generally applicable twenty-day deadline for the processing of any FOIA request, 5

U.S.C. § 552(a)(6)(A). CREW initiated this action on August 25, 2008, and promptly

moved for a preliminary injunction to compel DOJ to respond immediately to CREW’s

request. Based upon DOJ’s representation to plaintiff and the Court that it “expect[ed] to

complete processing of [CREW’s] request on or before September 12, 2008,” the parties

agreed that CREW’s motion for preliminary relief was moot. Joint Stipulation and

Proposed Order [Docket No. 5] at 1. Despite that representation, DOJ did not respond to

the request until September 18, 2008, when it advised CREW that it had “identified three





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543 F. Supp. 2d 83, 93 (D.D.C. 2008) (citation omitted); see also Judicial Watch, Inc. v.

DOJ , 365 F.3d 1108, 1112 (D.C. Cir. 2004) (“The Supreme Court has long recognized that

Congress’ intent in enacting FOIA was to implement ‘a general philosophy of full agency

disclosure.’”).

Agency records requested under FOIA must be disclosed unless they squarely fall

within one of the statute’s nine enumerated exemptions. The exemptions “must be

narrowly construed,” and “do not obscure the basic policy that disclosure, not secrecy, is

the dominant objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976). In reviewing a motion for summary judgment under the FOIA, the Court must

conduct a de novo review of the record. 5 U.S.C. § 552(a)(4)(B). In the FOIA context,

“de novo review requires the court to ‘ascertain whether the agency has sustained its

burden of demonstrating that the documents requested . . . are exempt from disclosure

under the FOIA.’” Assassination Archives & Research Ctr. v. Cent. Intelligence Agency,

334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. Dep’t of Justice, 140 F.3d 1077,

1080 (D.C. Cir. 1998)). Under the FOIA, all underlying facts and inferences are analyzed

in the light most favorable to the FOIA requester; as such, summary judgment is only

appropriate where an agency proves that it has fully discharged its FOIA obligations.

Moore v. Aspin, 916 F. Supp 32, 35 (D.D.C. 1996) (citing Weisberg v. Dep’t of Justice,

705 F.2d 1344, 1350 (D.C. Cir. 1983)).

I. DOJ Has Failed to Meet the Procedural Requirements

Necessary to Sustain its Burden Under the FOIA

In Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973), the D.C. Circuit

established the “procedural requirements” that “an agency seeking to avoid disclosure”

must follow in order to carry its burden. Vaughn requires that “when an agency seeks to



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withhold information it must provide a relatively detailed justification, specifically

identifying the reasons why a particular exemption is relevant and correlating those claims

with the particular part of a withheld document to which they apply.” Mead Data Cent.,

Inc. v. United States Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) (citations

omitted).3

In King v. United States Dep’t of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987), the

court of appeals reviewed the caselaw applying Vaughn and emphasized that

[s]pecificity is the defining requirement of the Vaughn index and affidavit;affidavits cannot support summary judgment if they are “conclusory,

merely reciting statutory standards, or if they are too vague or sweeping.”To accept an inadequately supported exemption claim “would constitute an

abandonment of the trial court’s obligation under the FOIA to conduct a denovo review.”

(footnotes omitted). See also Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (“[t]he

court has provided repeated instruction on the specificity required of a Vaughn index”). As

the court concluded in King , “[c]ategorical description of redacted material coupled with

categorical indication of anticipated consequences of disclosure is clearly inadequate.”

830 F.2d at 224 (footnote omitted).

Here, as we discuss more fully below in the context of DOJ’s specific exemption

claims, the agency has proferred a classic example of the kind of “conclusory” affidavit

that the D.C. Circuit has long rejected. The declaration of Mr. Bradbury is wholly lacking

in the requisite “specificity” and, at best, attempts to offer a “categorical indication of

anticipated consequences of disclosure.” Thus, for instance, Mr. Bradbury states, without

3

The Vaughn requirements are typically satisfied through an agency’s submission of anaffidavit describing the basis for its withholdings, and providing justifications for

redactions, accompanied by an index listing responsive records and indicating the preciseredactions made to the records. We refer to the affidavit and index collectively herein as a

“Vaughn submission.”



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any explanation or elaboration, that “DOJ’s ability to conduct future law enforcement

investigations that might require White House cooperation would be significantly

impaired” if any portion of the disputed material is disclosed. Bradbury Decl., ¶ 9.

Similarly, Mr. Bradbury offers the categorical and conclusory opinion that “[d]isclosing

. . . sensitive conversations involving the President, the Vice President, and other senior

White House officials could impair effective presidential decisionmaking.” Id ., ¶ 14. The

inadequacy of DOJ’s Vaughn submission is apparent, and that shortcoming – standing

alone – compels the Court to find that the agency has failed to carry its burden.

II. Defendant DOJ Has Not Met Its Burden of Showing that theRecords Are Exempt From Disclosure Under Exemption 7(A)

Apparently cognizant of the fact that the disputed records do not fall within the

scope of any “narrowly construed” FOIA exemption, Rose, 425 U.S. at 361, defendant

DOJ attempts to expand the reach of the statutory exemptions to lengths never

countenanced by this or any other court. DOJ’s claim under Exemption 7(A) exemplifies

its approach. While devoting the bulk of its argument to assertions that the records were

“compiled for law enforcement purposes,” and that Congress “relaxed” the government’s

burden under Exemption 7(A) through amendments in 1986 – assertions that CREW does

not dispute – DOJ attempts to gloss over the fatal flaw in its position.

The exemption permits the withholding of “records or information compiled for

law enforcement purposes . . . to the extent that production of such law enforcement

records or information . . . could reasonably be expected to interfere with enforcement

proceedings.” 5 U.S.C. § 552(b)(7)(A). The courts have consistently interpreted the

exemption to require the existence of an ongoing investigation or enforcement proceeding.

See, e.g ., Juarez v. Dep’t of Justice, 518 F.3d 54, 58-59 (D.C. Cir. 2008). In light of the





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DOJ also cites Mapother v. Dep’t of Justice, 3 F.3d 1533, 1541 (D.C. Cir. 1993), to

support the proposition that Exemption 7(A) protects against interference with

enforcement proceedings that are “pending or reasonably anticipated .” Def. Mem. at 8, 9

(emphasis in original; citation omitted). InMapother , the D.C. Circuit distinguished

between “an enforcement action brought on an agency’s own initiative and one that is

triggered by the action of a third party,” 3 F.3d at 1541. At issue in that case was a Justice

Department report that formed the basis for a decision to exclude former Austrian

President Kurt Waldheim from entry into the United States as a result of his associations

with Nazi activities. The court of appeals explained that its use of the term “reasonably

anticipated” was intended to account for the possibility that other aliens excluded from

entry on the basis of Nazi associations might initiate challenges to exclusion orders, and

that such “reasonably anticipated” proceedings might be hampered by disclosure of the

Waldheim report. Here, in contrast, defendant DOJ merely cites the hypothetical

possibility that some vague “future Department of Justice criminal investigations involving

official White House activities” might be hampered. Def. Mem. at 8, quoting Bradbury

Decl., ¶ 9.

It is clear that the circumstances present in this case are a far cry from those the

courts confronted in Ctr. for Nat’l Sec. Studies and Mapother , where the government

pointed to concrete and specific enforcement proceedings that could be hampered by

disclosure of the disputed records – the “ongoing September 11 terrorism investigation,”

331 F.3d at 926; and the “likelihood of a challenge . . . [to] an exclusion order” based upon

participation in Nazi activities, 3 F.3d at 1542. Permitting DOJ to withhold the material at

issue here solely to protect against hypothetical interference to some vague “future . . .



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investigations involving official White House activities” would violate the Supreme

Court’s longstanding command that FOIA’s exemptions “must be narrowly construed.”

Rose, 425 U.S. at 361. The Court should reject the agency’s sweeping and unprecedented

application of Exemption 7(A).

III. Defendant DOJ Has Not Met Its Burden of Showing that the

Records Are Exempt From Disclosure Under Exemption 5

Defendant DOJ next asserts that the requested records fall within the scope of three

distinct privileges and are thus subject to withholding under Exemption 5; “law

enforcement privilege” (records exempt in their entirety); “deliberative process privilege”

(portions exempt); and “presidential communications privilege” (portions exempt). We

raise two initial matters in response to DOJ’s claims and then address the shortcomings of

the three individual assertions of privilege.

First, we note that the utter inadequacy of DOJ’s purported Vaughn submission,

which we have already addressed, leaves both plaintiff and the Court unable to assess the

validity of the agency’s claim that “portions” of the disputed records are exempt from

disclosure under the latter two privileges. DOJ’s motion thus runs afoul of the D.C.

Circuit’s repeated admonition that “when an agency seeks to withhold information, it must

provide ‘a relatively detailed justification, specifically identifying the reasons why a

particular exemption is relevant and correlating those claims with the particular part of a

withheld document to which they apply,’” Morley, 508 F.3d at 1122 (emphasis added;

citations and internal quotation marks omitted). Based upon that failure alone, the Court

should reject the government’s exemption claims.

Additionally, the latter two claims of privilege (“deliberative process privilege” and

“presidential communications privilege”) must be rejected because the White House has



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waived them.4 It is a basic tenet of privilege law that “any voluntary disclosure . . . to a

third party breaches the [claimed] confidentiality . . . and therefore waives the privilege.”

In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982). Indeed, in a holding that applies

with equal force in this case, the D.C. Circuit found in In re Sealed Case (“Espy”), 121

F.3d 729, 741-742 (D.C. Cir. 1997), that “the White House . . . waived its claims of

privilege in regard to the specific documents that it voluntarily revealed to third parties

outside the White House.”5

It is beyond dispute that the information at issue here (the contents of the vice

president’s interview with the FBI) was “voluntarily revealed to third parties outside the

White House.” In his July 15, 2008, letter to the president requesting an assertion of

executive privilege in response to the Committee’s subpoena, Attorney General Mukasey

conceded that “[the President], the Vice President and White House staff cooperated

voluntarily with the Special Counsel’s investigation, agreeing to informal interviews

. . . .” Exhibit B (attached to Bradbury Decl.) at 4 (emphasis added);see also Bradbury

Decl., ¶ 3 (the Committee’s subpoena “sought the reports of voluntary interviews of the

Vice President and senior White House staff”) (emphasis added).

4

We describe the party in interest as “the White House” guardedly, as it is not clear fromthe government’s cursory Vaughn submission which entity or individual is actually

asserting the privilege claims at issue here. In his declaration, Mr. Bradbury alternatelyasserts that “the Attorney General requested that the President assert executive privilege in

response to the Committee’s subpoena,” that “the President subsequently assertedexecutive privilege,” and that the documents at issue in this case have been “withheld by

OLC.” Bradbury Decl., ¶¶ 4, 5, 17. 5 The court made clear that the White House’s waiver applied “to executive privilegesgenerally, [and] to the deliberative process privilege in particular.” 121 F.3d 729 at 741.



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It is equally clear that the voluntary disclosure of the information contained in the

disputed interview reports was provided by the vice president without any “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.’” Letter from Special Counsel Patrick J. Fitzgerald

to Hon. Henry A. Waxman, July 3, 2008 (attached hereto as Pl. Ex. A), at 2.6 Under these

circumstances, it is beyond dispute that the White House has “waive[d] [the asserted]

privileges for the . . . information specifically released” to the FBI and the Special Counsel.

Espy, 121 F.3d at 741.

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A. The Records Are Not Properly Withheld Under “The

Law Enforcement Privilege”

Consistent with its attempt to overreach and distort the applicable caselaw in

support of its decision to withhold the requested records, defendant DOJ invites the Court

to validate the agency’s novel invention – a “law enforcement privilege” that supposedly

trumps FOIA’s disclosure requirements and permits the disputed material to be withheld in

its entirety. No court has ever recognized such a privilege within the context of Exemption

5, and the only court that appears to have considered it expressly rejected the notion.

6 The actions of previous high-level White House officials demonstrate that “agreements,conditions [or] understandings” are, in fact, necessary to preserve privilege claims of the

kind at issue here. Thus, “C. Boyden Gray, White House Counsel during the [first] BushAdministration, and his deputy, John Schmitz, refused to be interviewed by the

Independent Counsel investigating the Iran-Contra affair and only produced documentssubject to an agreement that ‘any privilege against disclosure . . . []’ was not waived.” In

re Lindsay, 148 F.3d 1100, 1111 (D.C. Cir. 1998) (citation omitted). 7

In the absence of an assurance to the contrary, individuals providing information to theFBI do so recognizing the likelihood that the information may be used in a variety of ways.

See, e.g ., U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 174 (U.S. 1993) (“at the time aninterview is conducted, neither the source nor the FBI agent ordinarily knows whether the

communication will be disclosed”).





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“law enforcement” interests it seeks to invoke fare no better masquerading as Exemption 5

claims.8

B. No Portions of The Records Are Properly Withheld

Under The Deliberative Process Privilege Defendant DOJ next argues that certain unspecified “portions” of the requested

records “fall within the deliberative process privilege” and are thus exempt from

disclosure. Def. Mem. at 12. The agency’s claim fails for two distinct reasons: 1) the

withheld portions appear merely to state or explain decisions that had been previously

rendered; and 2) the withheld portions appear to include purely factual material. We

address each of these issues in turn.

1. The Withheld Material Is Not “Predecisional”

The D.C. Circuit has made clear that “[m]aterials that are ‘predecisional’ and

‘deliberative’ are protected, while those that ‘simply state or explain a decision the

government has already made . . .’ are not.” Judicial Watch, 365 F.3d at 1113, quoting

Espy, 121 F.3d at 737. Here, there is no question that the information contained in reports

of the vice president’s FBI interview relates to “decision[s] the government ha[d] already

made” by the time the interview was conducted. DOJ’s declarant states in support of the

government’s privilege claim:

Portions of the withheld documents reflect or describe frank and candid

deliberations involving, among others, the Vice President, the White HouseChief of Staff, the National Security Advisor, the Director of the Central

Intelligence Agency, and the White House Press Secretary. Thesedeliberations concern, among other things, the preparation of the President’s

January 2003 State of the Union Address, possible responses to media

8

DOJ’s declarant concedes that “[t]he reasons supporting the applicability to these

documents of Exemption Five by virtue of the law enforcement privilege are the samereasons that are set forth . . . to support the applicability of Exemption Seven.” Bradbury

Decl., ¶ 12.



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inquiries about the accuracy of statement in the President’s address and thedecision to send Ambassador Joseph Wilson on a fact-finding mission to

Niger in 2002, the decision to declassify portions of the October 2002National Intelligence Estimate, and the assessment of the performance of

senior White House staff.

Bradbury Decl., ¶ 13. All of the referenced matters pre-dated the vice president’s FBI

interview by more than one year.9

As the D.C. Circuit has explained, while such material might be deemed

“deliberative,” it may not be withheld under Exemption 5 because it fails to meet the

requirement of being “predecisional.” Access Reports v. Dep’t of Justice, 926 F.2d 1192,

1194 (D.C. Cir. 1991).

[A]n agency’s . . . after-the-fact explanation of a decision will often be“deliberative” as the word is used in common parlance, in that it carefully

weighs the arguments for and against various outcomes before announcinga winner. Because the courts have determined that Congress did not intend

to exempt such explanatory documents from FOIA’s disclosurerequirements, they have denied the privilege in these circumstances by

finding that the documents are not “predecisional.”

Id . (emphasis added). The court of appeals noted that “[t]he Supreme Court took this

approach” in NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975), and had expressly

stated that it is “difficult to see how the quality of a decision will be affected by

communications with respect to the decision occurring after the decision is finally

reached.” 926 F.2d at 1194,quoting Sears, 421 U.S. at 151.

9 Although DOJ’s submissions are silent on the date of the interview, it appears to have

been conducted in June 2004. See Susan Schmidt, Bush Aide Testifies in Leak Probe;Gonzales Appears Before Grand Jury, Washington Post, June 19, 2004; Page A07 (“Vice

President Cheney was recently interviewed by Fitzgerald’s staff”) (available at http://www.washingtonpost.com/wp-dyn/articles/A53351-2004Jun18.html).



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Given that the withheld information was created more than a year “after the

decision[s] [at issue were] finally reached,” it is not properly subject to a claim of

deliberative process privilege and must be disclosed.10

2. The Withheld Material Is “Purely Factual”

The deliberative process privilege may not be invoked to “protect material that is

purely factual.” Judicial Watch, 365 F.3d at 1113, quoting Espy, 121 F.3d at 737; see also

Petroleum Info. Corp. v. U.S. Dep’t of Interior , 976 F.2d 1429, 1434 (D.C. Cir. 1992)

(“[u]nder the deliberative process privilege, factual information generally must be

disclosed”).

Given that the information at issue here was developed during a fact-finding

process – the Special Counsel’s investigation into the unauthorized disclosure of Mrs.

Plame’s covert identity – it is obvious that the vast bulk, if not the entirety, of the withheld

material is “purely factual.” See, e.g., Department of Justice Press Conference,

“Appointment of Special Prosecutor to Oversee Investigation Into Alleged Leak of CIA

Agent Identity and Recusal of Attorney General Ashcroft from the Investigation,”

December 30, 2003 (attached hereto as Pl. Ex. C), at 9-10 (“Fitzgerald has been told [to]

10 Defendant DOJ cites two decisions in support of the proposition that “a documentcreated after the decision at issue, can still be ‘predecisional’ if it memorializes protected

predecisional information.” Def. Mem. at 11. InAppleton v. FDA, 451 F. Supp. 2d 129,144 n.9 (D.D.C. 2006), the court mentioned, in the footnote DOJ cites, “memorializations

of discussions”). The text of the decision, however, makes plain that “[a]ll of the[]documents [at issue] are predecisional because they were made ‘antecedent to the adoption

of an agency policy.’” Id . at 143 (citation omitted). In Electronic Privacy Info. Ctr. v.DHS , No. 04-1625, 2006 U.S. Dist. LEXIS 94615 (D.D.C. Dec. 22, 2006), an unreported

magistrate’s decision, the magistrate applied Exemption 5 to an e-mail that “recounted”past deliberations over a prior decision. In light of the clear Supreme Court and D.C.

Circuit authority on the question, which the magistrate did not address, plaintiff respectfully submits that the case was wrongly decided.



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. . . [f]ollow the facts . . .); (“I’m confident that the facts will be found professionally . . .

by someone with impeccable judgment and impartiality, and that is Mr. Fitzgerald.”).

Indeed, it is difficult to imagine how the information illicited during an interview

conducted in the course of a criminal investigation could be anything but “purely factual.”

As such, it may not properly be withheld under Exemption 5.

C. No Portions of the Records Are Properly Withheld

Under the Presidential Communications Privilege

Defendant DOJ’s failure to meet its burden of justifying the withholding of the

requested information is seen most starkly in its invocation of the presidential

communications privilege to withhold unspecified “portions” of the disputed records.

Review of DOJ’s cursory “justification” leads to the inescapable conclusion that the

agency has failed either to “specifically identify[] the reasons why [the presidential

communications privilege] is relevant,” or to “correlat[e] those claims with the particular

part of a withheld document to which they apply.” Mead Data Cent., Inc., 566 F.2d at

251. DOJ’s showing with respect to the presidential communications privilege is, in its

entirety, as follows:

[P]ortions of each of the withheld documents are also protected by the

presidential communications privilege, which protects communications withthe President and confidential communications that relate to possible

presidential decisionmaking and that involve the President, his senior advisors, or staff working for senior presidential advisors. Portions of the

withheld documents summarize communications among the Vice Presidentand senior presidential advisers in the course of preparing information or

advice for potential presentation to the President. In addition, some portionsexplicitly reference a conversation between the President and the Vice

President. Disclosing such sensitive conversations involving the President,the Vice President, and other senior White House officials could impair

effective Executive Branch decisionmaking.

Bradbury Decl., ¶ 14.



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In considering DOJ’s claims, the Court must “proceed on the basis that ‘the

presidential communications privilege should be construed as narrowly as is consistent

with ensuring that the confidentiality of the President’s decisionmaking process is

adequately protected.’” Judicial Watch, 365 F.3d at 1116, quoting Espy, 121 F.3d at 752.

Guided by the mandate to narrowly construe the privilege, in cases such as this where the

disputed material involves the communications of advisors, rather than the President

himself, the D.C. Circuit has “recognized that the need for the presidential

communications privilege becomes more attenuated the further away the advisers are from

the President.” Id ., 365 F.3d at 1123; see also id . at 1115 (“there is, in effect, a hierarchy

of presidential advisers such that the demands of the privilege become more attenuated the

further away the advisers are from the President operationally”), citing Espy, 121 F.3d at

752.

An advisor’s proximity to the President is not the only relevant factor in assessing

the propriety of a privilege claim. InEspy, the court of appeals described the “dual hat”

problem that places additional importance on the identity of the advisors whose

communications are being withheld.

Of course, the privilege only applies to communications that these advisersand their staff author or solicit and receive in the course of performing their

function of advising the President on official government matters. Thisrestriction is particularly important in regard to those officials who exercise

substantial independent authority or perform other functions in addition toadvising the President . . . . The presidential communications privilege

should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct

decisionmaking by the President . If the government seeks to assert thepresidential communications privilege in regard to particular

communications of these “dual hat” presidential advisers, the governmentbears the burden of proving that the communications occurred in

conjunction with the process of advising the President.



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121 F.3d at 752 (emphasis added; citation omitted).

Here, DOJ has failed not only to identify the advisors and the responsibilities that

they exercise, but has also failed to assert that the “governmental operations” involved in

the protected communications “call[ed] ultimately for direct decisionmaking by the

President.” Indeed, in asserting that the withheld material summarizes “communications

among the Vice President and senior presidential advisers in the course of preparing

information or advice for potential presentation to the President,” Bradbury Decl., ¶ 14

(emphasis added), DOJ does not even come close to establishing the required nexus to

presidential decisionmaking.

11

The agency clearly has failed to carry its burden of

showing that “portions” of the requested records are exempt from disclosure under the

presidential communications privilege.

IV. Defendant DOJ Has Not Met Its Burden of Showing that Portions of

the Records Are Exempt From Disclosure Under Exemptions 6 and 7(C)

Defendant DOJ correctly notes that invocations of Exemptions 6 and 7(C) require

the Court to “balance the individual’s right to privacy against the public’s interest in

disclosure.” Def. Mem. at 15 (citation omitted);see, e.g., Rose, 425 U.S. 352 (Exemption

6); U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749

(1989) (Exemption 7(C)). Under the circumstances of this case, however, there is reason to

question DOJ’s conclusory assertion that “[t]here is no legitimate public interest” in the

withheld information, and that “its disclosure would shed no light on official government

11 The participation of the vice president in the “communications” adds nothing to DOJ’s

claims. As this Court has recognized, there is no authority “to suggest that the privilegeextends to documents prepared for the purpose of advising the Vice President alone.”

United States v. Philip Morris United States, F/K/A Philip Morris, 2004 U.S. Dist. LEXIS24517, 21-22 (D.D.C. Sept. 9, 2004).



21

activities.” Bradbury Decl., ¶ 15.

The information at issue is contained in notes of an FBI interview of the Vice

President of the United States conducted in the course of a high-profile and controversial

criminal investigation. That investigation resulted in the conviction of the Vice President’s

former chief of staff. The information collected by the FBI and the Special Counsel

focused on questions of alleged illegal activity within the White House. It is well-

established that personal information may be withheld under Exemptions 6 and 7(C)

“unless disclosure is ‘necessary in order to confirm or refute compelling evidence that the

agency is engaged in illegal activity.’” Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661

(D.C. Cir. 2003), quoting SafeCard Services, Inc. v. SEC , 926 F.2d 1197, 1206 (D.C. Cir.

1991). DOJ’s bald assertion of “no legitimate public interest” does not even attempt to

show that disclosure is not appropriate in the face of the undisputed illegal activity that

gave rise to the underlying FBI interview.

Likewise, the agency’s boilerplate exemption claim does not address the fact that a

large amount of information concerning the Plame leak investigation – including the

identities of many individuals – came into the public domain as a result of Mr. Libby’s

public trial and has been made available to congressional investigators. See Draft

Committee Report at 3 (Special Counsel produced documents consisting of “FBI

interviews of federal officials who did not work in the White House, as well as interviews

of relevant private individuals.”). Such previous “public disclosures” of personal

information vitiate the privacy interests DOJ asserts. Nation Magazine v. U.S. Customs

Serv., 71 F.3d 885, 896 (D.C. Cir. 1995). Under the unique circumstances surrounding the



22

disputed material, DOJ’s generic and non-specific claims of exemption do not suffice.12

V. Defendant DOJ Has Not Met Its Burden of Showing that Portions of

the Records Are Exempt From Disclosure Under Exemptions 1 and 3

Finally, DOJ seeks to withhold unspecified “portions” of the requested records on

“national security” grounds under Exemptions 1 and 3. In opposing DOJ’s motion, we

note that the agency’s claims are not “made on personal knowledge,” Fed. R. Civ. P. 56(e),

and for that reason alone must be rejected. In his declaration, Mr. Bradbury asserts that “a

number of paragraphs in the FBI interview report and portions of the notes” contain

information “currently classified at the SECRET level by the Central Intelligence Agency

and exempted from disclosure by the National Security Act of 1947.” He goes on to relate

that “the CIA has determined that the documents contain information concerning

intelligence sources and methods that is properly classified pursuant to section 1.4(c) of

Executive Order 12958.” Bradbury Decl., ¶ 16 (emphasis added).13

Under similar circumstances, the district court for the Eastern District of Virginia

rejected an agency’s classification claims:

[The agency’s declarant] does not have classification authority. Moreover,

the declaration fails to even name the official who does have the authorityto classify these documents as “Secret.” . . . The [agency] has not provided

12 Plaintiff does not seek the disclosure of “social security numbers, addresses, [or] phonenumbers,” Def. Mem. at 17, and thus, to the extent that DOJ has withheld such

information, plaintiff does not challenge such withholdings. 13

It is not clear whether Mr. Bradbury attributes to the CIA the determination that thematerial is “exempted from disclosure by the National Security Act of 1947.” In any

event, DOJ, in its invocation of Exemption 3, seeks to rely upon the Intelligence Reformand Terrorism Prevention Act of 2004, which, as DOJ explains, “requires the Director of

National Intelligence [“DNI”] to ‘protect intelligence sources and methods fromunauthorized disclosure.’” Def. Mem. at 20 (emphasis added; citation omitted). There is

no indication in the record that the DNI has made any determination with respect to thematerial at issue here.



23

the Court with sufficient information from which it can conclude that anofficial with classification authority determined that these documents were

“secret.”

Wickwire Gavin, P.C. v. Def. Intelligence Agency, 330 F. Supp. 2d 592, 601 (E.D. Va.

2004); see also Wolf v. CIA, 473 F.3d 370, 375 n.5 (D.C. Cir. 2007) (CIA affidavit

adequate where it “reflects personal knowledge, obtained in [affiant’s] official capacity [as

CIA Information and Privacy Coordinator], regarding the classified nature of [the]

information”); Londrigan v. FBI , 670 F.2d 1164, 1174-75 (D.C. Cir. 1981) (FOIA affidavit

not based on personal knowledge should have been disregarded); Grand Central

Partnership Inc. v. Cuomo, 166 F.3d 473, 480 (2d Cir. 1999) (FOIA affidavit on use of

records rejected where affiant was not shown to have had personal knowledge of the use of

the records). This Court should likewise find that DOJ has failed to establish that the

withheld material was properly classified.14

Mr. Bradbury’s lack of personal knowledge concerning the CIA’s determination to

classify “portions” of the material is particularly troubling under the circumstances of this

case, where the material at issue was developed during the course of a criminal

investigation involving a breach of CIA security and the disclosure of a covert operative’s

identity. Executive Order 12958, under which Mr. Bradbury asserts that the CIA

“determined” to classify the material, expressly provided that “[i]n no case shall

information be classified in order to: (1) conceal violations of law, inefficiency, or

14

DOJ asserts that “[t]he issue for the Court is whether ‘on the whole record, theAgency’s judgment objectively survives the test of reasonableness, good faith, specificity

and plausibility in the field of foreign intelligence in which (the agency) is expert and (hasbeen) given by Congress a special role.’” Def. Mem. at 18 (citation omitted). Here, the

“judgment” of the agency that classified the material – the CIA – is not even before theCourt.



24

administrative error; [or] (2) prevent embarrassment to a person, organization, or agency.”

Id ., § 1.8(a); see, generally, American Civil Liberties Union v. Dep’t of Defense, 2008 U.S.

App. LEXIS 20074, at *30 (2d Cir. Sept. 22, 2008) (“Congress has greatly reduced the

possibility of abuse [of Exemption 1] by providing that the classification must be proper

under criteria established by Executive order .”) (emphasis in original; citation omitted).

Given the subject matter of the material at issue in this case, there exists a

“possibility of abuse” and the potentially improper classification of information to

“conceal violations of law, inefficiency, or administrative error” or to “prevent

embarrassment to a person, organization, or agency.” Because DOJ’s declarant has not

attested to the propriety of the purported decision classification – and, indeed, cannot – the

agency has clearly failed to meet its burden of showing that the withheld “portions” are

exempt from disclosure under Exemptions 1 and 3.15

CONCLUSION

For the foregoing reasons, DOJ’s motion for summary judgment should be denied,

and CREW’s cross-motion for summary judgment should be granted.

Respectfully submitted,

/s/ David L. Sobel

DAVID L. SOBEL, D.C. Bar No. 3604181875 Connecticut Avenue, N.W.

Suite 650

15 It should be noted that there is no indication in the record that Attorney General

Mukasey, Special Counsel Fitzgerald, or any other executive branch official at any timesuggested to the House Committee that material concerning the FBI’s interview with Vice

President Cheney was classified. See, e.g., Draft Committee Report. Serious questionsthus exist as to when, and for what purposes, the determination to classify the material was

made.



25

Washington, DC 20009(202) 246-6180

ANNE L. WEISMANN, D.C. Bar No. 298190

MELANIE SLOAN, D.C. Bar No. 434584

Citizens for Responsibility andEthics in Washington1400 Eye Street, N.W., Suite 450

Washington, D.C. 20005(202) 408-5565

Counsel for Plaintiff



PLAINTIFF’S EXHIBIT A

Plaintiff’s Cross-Motion for Summary Judgment

Citizens for Ethics and Responsibility in Washington v. U.S. Department of Justice,

C. A. No. 08-1468 (EGS)

Case 1:08-cv-01468-EGS Document 9-2 Filed 10/30/2008 Pag



Office of Special Counsel

Patrick J. FitzgeraldSpecial Counsel

Chicago Office: Dirksen Federal Building

2/9 South Dearborn Street. Fifth Floor

Chicago, Illinois 60604(3/2) 353-5300

Washington Office: Bond Building

/400 New York Avenue, Ninth Floor

Washington, DC NW 20530

(202) 5/4-1/87

Please address all correspondence to the W a t ~ h i n g t o n Office

July 3, 2008

The Honorable Henry A. Waxman

Chairman, Committee on Oversight and Government Reform

United States I-louse ofRepresentatives

2157 Rayburn House Office Building

Washington, DC 20515-6143

Dear Mr. Chairman:

I write in response to your letter of June 27, 2008. I incorporate by reference my earlier

letters to you ofAugust 17,2007; September 6, 2007; January 18,2008; February 8, 2008; and June

18,2008; all addressing the issues raised in your July 16,2007, letter to me.

In your most recent letter, you requested documents concerning "all agreements, conditions

and understandings between the Office of Special Counselor the Federal Bureau of Investigation"

and the President of the United States "regarding the conduct and use ofthe interview or interviews

of the President conducted as part of the Valerie Plame Wilson leak investigation."

Similarly, you also sought documents concerning "all agreements, conditions and

understandings between the Office of Special Counselor the Federal Bureau ofInvestigation" and

theVice President of the United States "regarding the conduct and use ofthe interview or interviews

of the Vice President conducted as part of the Valerie Plame Wilson leak investigation."

As set forth in the above referenced letters, in responding to requests by your Committee

concerning witness interviews (and related documents), we have endeavored as to all witnesses

interviewed at any time to separate out interviews that are protected by Rule 6(e) of the Federal

Rules of Criminal Procedure (the rule providing for grand jury secrecy) and those that are not so

protected. As to the former, we have declined to provide any information whatsoever and have not

forwarded responsive documents to other agencies to review as such documentswould be protected

by Rule 6(e).

As to interviewswhichwe have determined are not protected by Rule6(e), wehave provided

responsive information to you, after allowing the appropriate executive branch agencies to review

the documents consistent with the process described in my earlier letters. As discussed in prior




correspondence, the Special Counsel team is not responsible for determining whether executive

branchconfidentiality interests will be asserted in response to particular requests by the Committee.

Consistent with the above process, I can advise you that as to any interviews of either the

President or Vice President not protected by the rules of grand jury secrecy, there were no

"agreements, conditions and understandings between the Office of Special Counselor the FederalBureau of Investigation" and either the President or Vice President "regarding the conduct and use

of the interview or interviews."

Very truly yours,

vicAJ!J;;;::;-PATRICK J. FITZGERALD

Special Counsel

cc: The Honorable Tom Davis

Ranking Minority Member

Keith B. NelsonPrincipal Deputy Assistant Attorney General

Office of Legislative Affairs

Department of Justice




PLAINTIFF’S EXHIBIT B

Plaintiff’s Cross-Motion for Summary Judgment

Citizens for Ethics and Responsibility in Washington v. U.S. Department of Justice,

C. A. No. 08-1468 (EGS)




DRAFT

R E P O R T

OF THE

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

U.S. HOUSE OF REPRESENTATIVES

REGARDING PRESIDENT BUSH’S ASSERTION OF

EXECUTIVE PRIVILEGE IN RESPONSE TO THE COMMITTEE SUBPOENA TO

ATTORNEY GENERAL MICHAEL B. MUKASEY

On July 16, 2008, President George W. Bush asserted executive privilege regardingdocuments relating to the FBI investigation of an alleged illegal leak of the identity of former

CIA officer Valerie Plame Wilson that the Committee subpoenaed on June 16, 2008, from

Attorney General Michael Mukasey. The principal document in contention is a report of aninterview that Special Counsel Patrick J. Fitzgerald and FBI investigators conducted with Vice

President Richard B. Cheney. This interview was conducted by Mr. Fitzgerald as part of his

criminal investigation into the leak of Ms. Wilson’s identity. According to Mr. Fitzgerald, “therewere 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.”1

On a bipartisan basis, the Committee finds that the President’s assertion of executive

privilege over the report of the Vice President’s interview was legally unprecedented and an

inappropriate use of executive privilege. The assertion of executive privilege prevents theCommittee from having access to a complete set of records and thus results in the Committee’s

inability to assess fully the actions of the Vice President.

I. THE COMMITTEE’S INVESTIGATION

The Committee initiated an investigation in March 2007 into the disclosure by officials in

the White House of the identity of Valerie Plame Wilson, a covert CIA agent. At a hearing on

March 16, 2007, Chairman Waxman explained the purpose of the Committee’s investigation asfollows:

In June and July 2003, one of the nation’s most carefully guarded secrets the

identity of covert CIA agent Valerie Plame Wilson was repeatedly revealed byWhite House officials to members of the media. …

[W]e will be asking three questions: (1) How did such a serious violation of ournational security occur? (2) Did the White House take the appropriate

investigative and disciplinary steps after the breach occurred? And (3) what

1 Letter from Patrick J. Fitzgerald, Special Counsel, to Henry A. Waxman, Chairman

(July 3, 2008).




changes in White House procedures are necessary to prevent future violations of our national security from occurring?2

At the March 16, 2007, hearing, the Committee heard the first public testimony of Valerie Plame Wilson. A statement cleared for public release by CIA Director Michael Hayden

established definitively that Ms. Wilson had worked at the CIA “on the prevention of thedevelopment and use of weapons of mass destruction against the United States”; that she hadtaken “serious risks on behalf of her country”; that she was “covert” at the time Mr. Novak’s

column was published; and that her “employment status with the CIA was classified information

prohibited from disclosure under Executive Order 12958.”3 The cleared statement also

established that “maintaining her cover was critical to protecting the safety of both colleaguesand others” and that the disclosure of her employment “placed her professional contacts at

greater risk” and “undermined the trust and confidence with which future CIA employees and

sources hold the United States.”4

In addition, the Committee learned that White House officials did not take the actions

required under an Executive Order after Ms. Wilson’s identity was disclosed. Under ExecutiveOrder 12958 and applicable regulations, the White House must investigate security breaches

which originate within it, implement prompt corrective action to deter such future violations, and

punish violators.5 Federal employees who commit security violations can be subject to a range

of administrative sanctions, including reprimand, suspension without pay, denial of access toclassified information, and termination.6 At the hearing, James Knodell, the director of the

White House Security Office, testified:

• The Office of Security for the White House never conducted any investigation of thedisclosure of Ms. Wilson’s identity, because of the ongoing criminal investigation;

• Karl Rove, Scooter Libby, and other senior White House officials failed to report what

they knew about the disclosure of Ms. Wilson’s identity, as required by the applicableexecutive order and regulations; and

• There was no suspension of security clearances or any other administrative sanction forMr. Rove and other White House officials because of the disclosure.7

2 Opening Statement of Henry A. Waxman, Chairman, House Committee on Oversight

and Government Reform, Hearing on White House Procedures for Safeguarding Classified

Information, 110th Cong. (Mar. 16, 1007) (H. Rept. 110-28).

3 Id.

4

Id. 5 Exec. Order No. 12958, Classified National Security Information, as amended by

Executive Order 13292, § 5.5 (Mar. 25, 2003).

6 Id. § 5.5(c).

7 Testimony of James Knodell, Hearing House Committee on Oversight and Government

Reform, Hearing on White House Procedures for Safeguarding Classified Information, 110thCong. (Mar. 16, 2007) (H. Rept. 110-28).

2




On July 16, 2007, Chairman Waxman wrote to Special Counsel Fitzgerald to requestdocuments from the Special Counsel investigation that were relevant to the Committee’s

investigation into the leak of the identity of Valerie Plame Wilson.8 The Committee’s letter

included a request for “transcripts, reports, notes, and other documents relating to any interviewsoutside the presence of the grand jury” of President George W. Bush, Vice President Richard B.

Cheney, and members of the White House staff.

9

On August 16, 2007, and September 6, 2007, Mr. Fitzgerald produced a number of

documents responsive to the Committee. These documents consisted of FBI interviews of

federal officials who did not work in the White House, as well as interviews of relevant private

individuals.10

Combined with a later production made on June 18, 2008, the Justice Departmentproduced at total of 224 pages of records of Federal Bureau of Investigation interview reports

with 31 individuals, including materials related to a former Secretary, Deputy Secretary,

Undersecretary, and two Assistant Secretaries of State, and other former or current CIA and StateDepartment officials, including the Vice President’s CIA briefer.

Mr. Fitzgerald did not provide any records of interviews with White House officialsbecause of objections raised by the White House. As he explained in a January 18, 2008, letter

to the Committee:

[M]y responsibilities as Special Counsel encompass making decisions on mattersnormally incident to the execution of prosecutorial authority for the assigned matter,

including making determinations of what information is protected by the rules of grand

jury secrecy. However, I have concluded that neither the December 2003 delegation northe February 2004 clarification delegated to me the authority of the Attorney General to

provide counsel to the White House concerning the assertion of executive branchconfidentiality interests in response to possible Congressional oversight, or to represent

such executive branch interests in responding to an oversight request. …

Accordingly, the Office of Special Counsel will complete our work providing responsive

documents to the White House and other appropriate agencies after assuring ourselves

that such materials are not protected by grand jury secrecy. We will also continue totransmit to you the materials to which the White House or other agencies do not assert

executive branch confidentiality interests. To the extent there are materials we forward to

the White House for which the executive branch asserts confidentiality interests, we will

not be acting as attorneys for the executive branch in that regard. I am advised that the

8 Committee correspondence regarding its document requests in this investigation areattached in Appendix A.

9 Letter from Henry A. Waxman, Chairman, to Patrick J. Fitzgerald, Special Counsel

(July 16, 2007).

10Letter from Patrick J. Fitzgerald, Special Counsel, to Henry A. Waxman, Chairman

(Aug. 16, 2007); Letter from Patrick J. Fitzgerald, Special Counsel, to Henry A. Waxman,

Chairman (Sept. 6, 2007).

3




Department’s Office of Legislative Affairs will correspond with you … regarding thoseinterests.11

On December 3, 2007, Chairman Waxman wrote to Attorney General Mukasey to requestthat he make an “independent judgment” as the Attorney General about producing the White

House interview reports and the other requested materials.

12

On December 18, 2007, ChairmanWaxman renewed this request in a second letter to the Attorney General.13

On January 18, 2008, the Justice Department agreed to allow Committee staff to review

redacted versions of reports of FBI interviews of White House staff, but refused to permit any

access to the interview reports of the President and Vice President, citing “serious separation of powers and heightened confidentiality concerns.”14

Over the next few weeks, Committee staff and Department of Justice officials hadnumerous discussions regarding the terms under which the Committee staff review of requested

documents would take place. Through an accommodation process, on March 31 and April 7,

2008, the Department of Justice made available for Committee staff review a subset of thewithheld documents. These documents included redacted reports of the FBI interviews with Mr.

Libby, Andrew Card, Karl Rove, Condoleezza Rice, Stephen Hadley, Dan Bartlett, and Scott

McClellan and another 104 pages of additional interview reports of the Director of Central

Intelligence, and eight other White House or Office of the Vice President officials.

The Committee staff’s review of the reports of the FBI interviews with White House staff

and other developments raised questions about the involvement of Vice President Cheney in thedisclosure of Ms. Plame Wilson’s name and place of employment and the White House response

to this disclosure. For example, the review of Mr. Libby’s FBI interview showed that Mr. Libbystated that it was “possible” that Vice President Cheney instructed him to disseminate

information about Ambassador Wilson’s wife to the press.15 To assist the Committee in

answering these questions, Chairman Waxman wrote the Attorney General on June 3, 2008, torenew the Committee’s request for information the Attorney General had been withholding.

11

Letter from Patrick J. Fitzgerald, Special Counsel, to Henry A. Waxman, Chairman(Jan. 18, 2008).

12

Letter from Henry A. Waxman, Chairman, to Michael B. Mukasey, Attorney General(Dec. 3, 2007).

13Letter from Henry A. Waxman, Chairman, to Michael B. Mukasey, Attorney General

(Dec. 18, 2007).

14 Letter from Brian A. Benczkowski, Principal Deputy Assistant Attorney General, to

Henry A. Waxman, Chairman (Jan. 18, 2008).

15 FBI 302 Report of Interview of Scooter Libby (Nov. 26, 2003).

4




On June 11, 2008, the Justice Department responded to the June 3, 2008, letter by againrefusing to produce the interview reports of the President and Vice President, again citing

“serious separation of powers and heightened confidentiality concerns.”16

On June 16, 2008, the Committee served a subpoena on Attorney General Mukasey

requiring the production of the interview reports of the President and Vice President, unredactedversions of five interview reports previously shown to Committee staff, and all remainingresponsive documents that had been determined not to be subject to grand jury secrecy rules,

with a return date of June 23, 2008.17

On June 24, 2008, the Justice Department informed the Committee by letter that it wouldnot “provide or make available any reports of interviews with the President or the Vice President

from the leak investigation.”18 The Department’s letter alluded to the “constitutional magnitude”

of the “confidentiality interests” relating to these interview reports, and asserted that“communications of the President and the Vice President with their staffs relating to official

Executive Branch activities lie at the absolute core of executive privilege.”19 The Justice

Department also argued that providing the interviews to the Committee would undermine futurelaw enforcement investigations, as future Presidents or Vice Presidents “might limit the scope of

any voluntary interview or insist that they will only testify pursuant to a grand jury subpoena and

subject to the protection of the grand jury secrecy provision.”20 The letter suggested that the

Justice Department might be willing to further accommodate the Committee with additionalaccess to the redacted portions of interviews with White House staff, but because the relevant

redactions dealt with presidential or vice presidential communications, efforts by the Committee

staff to arrange for a review of these passages were unsuccessful.

Chairman Waxman responded to the Attorney General’s June 24, 2008, letter on July 8,2008. As an accommodation to issues the Department raised, Chairman Waxman stated that the

Committee would refrain from seeking the report of the FBI interview with the President at that

time. However, noting the serious questions that remained unanswered regarding the VicePresident’s conduct in the leak of Valerie Plame’s status as a CIA officer, he reiterated the

Committee’s demand for the report of the FBI interview with the Vice President.21

16

Letter from Keith B. Nelson, Principal Deputy Assistant Attorney General, to Henry A.Waxman, Chairman (June 11, 2008).

17 Committee on Oversight and Government Reform, Subpoena to Attorney General

Michael B. Mukasey (served June 16, 2008).

18 Letter from Keith B. Nelson, Principal Deputy Assistant Attorney General, to Henry A.

Waxman, Chairman (June 24, 2008).

19 Id.

20 Id.

21 Letter from Henry A. Waxman, Chairman, to Michael B. Mukasey, Attorney General

(July 8, 2008).

5




In his July 8, 2008, letter, Chairman Waxman also responded to arguments made byAttorney General Mukasey to justify withholding the report of Vice President Cheney’s FBI

interview, and advised the Attorney General that the Committee would meet on July 16, 2008, to

consider a resolution citing the Attorney General in contempt unless all responsive documentswith the exception of the FBI interview report of President Bush had been provided to the

Committee or a valid assertion of executive privilege had been made.

22

Attorney GeneralMukasey did not subsequently provide the Committee any additional responsive documents.

II. THE PRESIDENT’S ASSERTION OF EXECUTIVE PRIVILEGE

On July 16, 2008, Keith Nelson, principal deputy assistant attorney general at theDepartment of Justice, responded to Chairman Waxman’s July 8, 2008, letter. Mr. Nelson

stated: “the Attorney General has requested that the President assert executive privilege with

respect to these documents, and the President has done so.”23

Mr. Nelson’s letter attached a July 15, 2008, legal opinion prepared for the President on

this subject from the Attorney General himself. The Attorney General’s legal opinion arguesthat executive privilege applies in this case because “much of the content of the subpoenaed

documents falls squarely within the presidential communications and deliberative process

components of executive privilege,” noting that several subpoenaed interview reports summarize

conversations between the President and his advisors, and other portions “summarizedeliberations” among the President’s senior advisors in the course of preparing information or

advice for presentation to the President.24 The Attorney General further claimed that the

subpoena implicates the “law enforcement component of executive privilege” because it seeksdocuments from law enforcement files.25

On August 5, 2008, Chairman Waxman wrote Attorney General Mukasey requesting a

specific description of the documents being withheld from production on the basis of executive

privilege, including the type of document, subject matter of the document, the date, author, andaddressee, and the relationship of the author and addressee to each other.26 The Administration

to date has not provided this information to the Committee.

22 Id.

23

Letter from Letter from Keith B. Nelson, Principal Deputy Assistant Attorney General,to Henry A. Waxman, Chairman (July 16, 2008).

24Letter from Michael B. Mukasey, Attorney General, to President George W. Bush

(July 15, 2008).

25 Id.

26 Letter from Henry A. Waxman, Chairman, to Michael B. Mukasey, Attorney General

(Aug. 5, 2008).

6




III. ASSESSMENT OF THE PRESIDENT’S ASSERTION OF EXECUTIVE

PRIVILEGE

The central document in this dispute is the report of the FBI interview with the VicePresident. Both the Chairman and the Ranking Member are in agreement that the President’s

assertion of executive privilege over this document was legally unprecedented and aninappropriate use of 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. In the case of the

FBI interview with the Vice President, there is no legal basis or precedent for assertingexecutive 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.27 As Mr.

Fitzgerald wrote the Committee: “there were no agreements, conditions, and understandingsbetween 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.”28 For

this and other reasons the statements should have been produced to the Committee.

There are other problems with the assertion of executive privilege over the report of the

Vice President’s interview. There is no precedent holding that summaries of presidential

conversations given to third parties as opposed to the original conversations themselves aresubject to claims of executive privilege. Courts have carved out a presidential communications

privilege, but they have limited it quite narrowly to communications had directly with the

President or his immediate advisors about presidential decisionmaking.29

There is also no precedent in which executive privilege has been asserted overcommunications between a vice president and his staff about vice presidential decisionmaking.

The Administration’s refusal to produce the Vice President’s interview report is particularly

puzzling in light of the position taken by the Office of the Vice President that the Vice Presidentis not an “entity within the executive branch.” 30

The logical extension of the Vice President’s

27 In In re Sealed Case, 121 F.3d 729, 742 (D.C. Cir. 1997), the Court held the White

House had waived its claim of executive privilege with regard to a specific document it

voluntarily sent to former Secretary of Agriculture Mike Espy’s counsel, who was a third partyoutside the White House. It is unclear whether this precedent would govern in this situation.

28 Letter from Patrick J. Fitzgerald, Special Counsel, to Henry A. Waxman, Chairman

(July 3, 2008).

29

See In Re Sealed Case,

121 F.3d 729, 749-53 (D.C. Cir. 1997);Judicial Watch v.

Department of Justice, 365 F.3d 1108, 1115-1117 (D.C. Cir. 2004).

30 See Letter from Henry A. Waxman, Chairman, to Richard B. Cheney, Vice President

(June 21, 2007); Testimony of David Addington, Chief of Staff to the Vice President, House

Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties,

Hearing on From the Department of Justice to Guantanamo Bay: Administration Lawyers and

Administration Interrogation Rules, Part III , 110th Cong. (June 26, 2008) (asserting that “the

Vice President belongs neither to the executive nor the legislative branch”).

7




position is that executive branch confidentiality interests would not be relevant to hiscommunications.

The Attorney General argues that the Committee should not have access to the report of the interview because of the sensitive nature of the matters discussed. In this case, however, the

Committee is not seeking to examine sensitive questions of foreign policy or national security.Rather, the Committee is seeking information on the role, if any, played by the Vice Presidentand others in the White House in the leak of the identity of a covert CIA officer and what steps,

if any, the Vice President and others took to investigate and respond to the leak after it occurred.

There is no reason to believe that the Special Counsel’s interview with the Vice President went

beyond these questions and into areas relating to presidential decisionmaking about foreignpolicy or national security.

The Attorney General’s argument that the subpoena implicates the “law enforcementcomponent” of executive privilege is equally flawed. There is no basis to support the proposition

that a law enforcement privilege, particularly one applied to closed investigations, can shield

from congressional scrutiny information that is important for addressing congressional oversightconcerns. The Attorney General did not cite a single judicial decision recognizing this alleged

privilege. Even the Department’s own opinions that he cited, which do not have the force of law,

only apply the privilege to open law enforcement inquiries, not to closed matters like the Special

Counsel investigation.31

Further, the Attorney General’s “chilling effect” argument that the Committee

subpoena would discourage voluntary cooperation with future criminal investigations involvingWhite House actions contradicts both experience and logic. The previous Department of

Justice production to this Committee of the reports of FBI interviews of President Clinton andVice President Gore from the 1998 campaign finance investigation did not deter President Bush

and Vice President Cheney from submitting to voluntary interviews with Special Counsel

Fitzgerald in this investigation. Executive officials’ decisions whether to cooperate with lawenforcement investigations will be shaped primarily by political pressures to be forthcoming and

the knowledge that grand jury subpoenas can issue to compel their testimony if they do not

volunteer it.

31

Only one of the four memoranda and opinions cited by the Attorney General evenmentions the issue of closed law enforcement files. See Prosecution for Contempt of Congress

of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C.

101, 117, 118 (1984) (referring only to “open law enforcement files” and “open enforcementfiles”); Assertion of Executive Privilege in Response to Congressional Demands for Law

Enforcement Files, 6 Op. O.L.C. 31, 31, 33, 34 (1982) (referring only to “open investigativefiles” and the release of files in “the course of the investigation”); Position of the Executive

Department Regarding Investigative Reports, 40 Op. Att’y Gen. 45 (1941) (no mention of closedinvestigative files). Moreover, the 1941 opinion by Attorney General Robert Jackson, on which

many subsequent Department opinions have been based, is fundamentally flawed because it was

based on the erroneous and outdated assumption, see United States v. Nixon, 418 U.S. 683, 706-07 (1974), that “the question whether the production of papers would be against the public

interest is one for the executive and not for the courts to determine.” 40 Op. Att’y Gen. at 49.

8






oversight jurisdiction, including authority to “conduct investigations of any matter” within thejurisdiction of any standing committee of Congress.37 The same rule directs the Committee to

make available “the findings and recommendations of the committee … to any other standing

committee having jurisdiction over the matter involved.”38

Under House Rule XI, theCommittee is authorized to “require, by subpoena or otherwise, the attendance and testimony of

such witnesses and the production of such books, records, correspondence, memoranda, papers,and documents as it considers necessary.”39

The Committee’s investigation into the alleged White House involvement into the

improper disclosure of the employment status of Central Intelligence Agency officer Valerie

Plame Wilson was undertaken pursuant to these authorities. The investigation sought to answerbasic 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 WhiteHouse 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 VicePresident 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.

37 House Rule X, clause (4)(c).

38 Id .

39 House Rule XI, clause (2)(m)(1)(B).

10

Case 1:08-cv-01468-EGS Document 9-3 Filed 10/30/2008 Page





10/26/08 12:ttorney General Ashcroft Recuses Himself from CIA Leak Investigation

Page 1ttp://www.fas.org/irp/news/2003/12/doj123003.html

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DEPARTMENT OF JUSTICE PRESS CONFERENCE

WASHINGTON, D.C.

APPOINTMENT OF SPECIAL PROSECUTOR TO OVERSEE

INVESTIGATION INTO ALLEGED LEAK OF CIA AGENT IDENTITY

AND RECUSAL OF ATTORNEY GENERAL ASHCROFT FROM THE

INVESTIGATION

DEPUTY ATTORNEY GENERAL JAMES COMEY

ASSISTANT ATTORNEY GENERAL CHRISTOPHER RAY

DECEMBER 30, 2003

MR. COMEY: Good afternoon, folks. I'm joined behind the podium by Assistant AttorneyGeneral Christopher Ray. We are here to announce a couple of procedural developments in theinvestigation into allegations that the identity of a CIA employee was improperly disclosed tothe media last July.

The first development is that effective today, the attorney general has recused himself and hisoffice staff from further involvement in this matter. By that act, I automatically become theacting attorney general for purposes of this case with authority to determine how the case isinvestigated, and if warranted by the evidence, prosecuted.

The attorney general, in an abundance of caution, believed that his recusal was appropriatebased on the totality of the circumstances and the facts and evidence developed at this stage of the investigation. I agree with that judgment. And I also agree that he made it at the appropriatetime, the appropriate point in this investigation.

The second development is that prior to his recusal, the attorney general and I agreed that it wasappropriate to appoint a special counsel [read: special prosecutor] from outside our normalchain of command to oversee this investigation.


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By his recusal, of course, the attorney general left to me the decision about how to choose acounsel, who that person should be and what that person's mandate should be. In anticipation of this development, I have given a great deal of thought to this in recent days and have decidedthat, effective immediately, the United States attorney for the Northern District of Illinois,Patrick J. Fitzgerald, will serve as special counsel in charge of this matter. I chose Mr.Fitzgerald, my friend and former colleague, based on his sterling reputation for integrity andimpartiality. He is an absolutely apolitical career prosecutor. He is a man with extensive

experience in national security and intelligence matters, extensive experience conductingsensitive investigations, and in particular, experience in conducting investigations of allegedgovernment misconduct.

I have today delegated to Mr. Fitzgerald all the approval authorities that will be necessary toensure that he has the tools to conduct a completely independent investigation; that is, that hehas the power and authority to make whatever prosecutive judgments he believes areappropriate, without having to come back to me or anybody else at the Justice Department forapprovals. Mr. Fitzgerald alone will decide how to staff this matter, how to continue theinvestigation and what prosecutive decisions to make. I expect that he will only consult with meor with Assistant Attorney General Ray, should he need additional resources or support

You should know that as I thought about this matter in recent days, I considered otheralternatives. I first considered having the matter handled by Assistant Attorney General Ray andmyself acting as ultimate supervisors and decision-makers.

You will not be surprised to learn that I have great confidence in my own ability to be fair andimpartial. I also have complete confidence in Chris Ray's ability to be fair and impartial. He is -- those of you who don't know him, he is a total pro and one of the people who makes thisdepartment great.

But as I said, both the attorney general and I thought it prudent -- and maybe we are being

overly cautious, but we thought it prudent to have the matter handled by someone who is not inregular contact with the agencies and entities affected by this investigation. As part of ourcounterterrorism responsibilities, Assistant Attorney General Ray and I work every single daywith the national security intelligence community here in Washington. Mr. Fitzgerald, inChicago, does not.

At a time when fighting terrorism is the department's top priority, as it should be, it isimperative that Mr. Ray and I be able to focus on that responsibility without the complicationthat would come from also having to make decisions about this investigation.

Let me add that my decision to assign this matter to the United States attorney from Chicago is

not a reflection on the people who have conducted this investigation to date or the way theyhave done it. We have a fabulous team of FBI agents working this case, coordinating with someof our very best career lawyers. I now know in great detail the work that they have done veryquickly in this investigation, and it is impressive.

I should add that Mr. Fitzgerald may well decide to keep some or all of the career team that hasbeen working this case, but that's entirely his call.

I also considered naming a special counsel from outside the government.






The regulations promulgated in 1999 by Attorney General Reno say that an outside specialcounsel should -- and I'm going to read you the quote -- "be a lawyer with a reputation forintegrity and impartial decision-making, and with appropriate experience to ensure both that theinvestigation will be conducted ably, expeditiously and thoroughly and that investigative andprosecutorial decisions will be supported by an informed understanding of the criminal law andDepartment of Justice policies."

When I read that, I realized that it describes Pat Fitzgerald perfectly. I once told a Chicagonewspaper that Pat Fitzgerald was Eliot Ness with a Harvard law degree and a sense of humor.Anyone who knows him, who knows his work, who knows his background, knows that he is theperfect man for this job.

The attorney general and I agree that all leak investigations must be conducted with energy andurgency. That is all the more true when the investigation centers on allegations that there hasbeen a disclosure of national security information. To date this investigation has been conductedprofessionally and expeditiously, and I believe it would not be in the public interest foranything I do to cause this investigation to be put on hold for any period of time.

My choice of Pat Fitzgerald, a sitting United States attorney, permits this investigation to moveforward immediately and to avoid the delay that would come from selecting, clearing andstaffing an outside special counsel operation. In addition, in many ways the mandate that I amgiving to Mr. Fitzgerald is significantly broader than that that would go to an outside specialcounsel.

In short, I have concluded that it is not in the public interest to remove this matter entirely fromthe Department of Justice, but that certain steps are appropriate to ensure that the matter ishandled properly and that the public has confidence in the way in which it is handled. I believethe assignment to Mr. Fitzgerald achieves both of those important objectives.

Now I'd be happy to take any questions you might have.

Yes, sir?

Q: What happened? I mean, you guys were defending the professional staff here at the JusticeDepartment to handle it, and now all the sudden you're appointing Mr. Fitzgerald. Whathappened to tip it?

MR. COMEY: Well, I think what the Department of Justice has said to date is that all optionswere open; that it was being handled professionally by the career lawyers and FBI agents on thematter. And that's absolutely true. I know the details of this investigation. I've been down in the

weeds and looked at the work they've done, and it's exactly what you were told it was: careerprosecutors working very, very hard on it.

It's just that we reached a point in the investigation where the attorney general and I thought itwas appropriate to make the judgment that's been made.

Q: Well what's different? Why did you decide now to send it to Fitzgerald if everything wasgoing so well?






MR. COMEY: Well, I can't tell you that, and the reason for that is obvious; I can't tell youabout the details of any criminal investigation because our goal is to make sure that anyonewe're pursuing doesn't know what we're doing, and also, anyone who might not be charged witha crime is not unfairly smeared.

What happened is that the attorney general and I have periodically looked at these facts thathave been developed and made a judgment, based on the totality of the circumstances, as towhether he should remain involved in it, and if he's to be out of it, what I should do with it.And so I just decided that based on what I knew about it, it was appropriate, for the reasons Isaid, for the attorney general to step aside -- a conclusion he reached on his own -- and for meto assign it to an independent United States Attorney.

Yes, sir?

Q: Even without names, was there some conflict, particular conflict that arose?

MR. COMEY: Well, the issue surrounding the attorney general's recusal is not one of actualconflict of interest that arises normally when someone has a financial interest or something. Theissue that he was concerned about was one of appearance. And I can't go beyond that. That's thereason he decided, really in an abundance of caution, that he ought to step aside and leave meas acting attorney general for those matters.

Yes, sir?

Q: You mentioned the facts and the evidence that's been developed and how that played a rolein this decision. Should this be seen as a sign that the evidence has taken you closer to peoplethat Mr. Ashcroft has a connection with and that could create at least the appearance of aconflict? Has the evidence led you in that direction?

MR. COMEY: I can't answer that, Eric. And I know it's inevitable that you're going to

speculate. I really hope you don't do that because as I said, the attorney general made thisjudgment based on the totality picture, looking at all the circumstances and facts and evidencein the case. If you were to speculate in print or in media about particular people, I think thatwould be unfair to them. The reason, as you know, that we work so hard -- I've done this for along time -- to keep these investigations secret is so that we don't do that to people.

What I can tell you is that the investigation has been moving along very, very quickly; has beenworked very, very hard and very, very well, and it reached a point where we simply thoughtthese judgments were appropriate.

Yes, sir?

Q: Jim, but you did say, when you were asked why now, that you can't tell us that, you can'ttalk about the details of any criminal investigation. Is it at least safe to say that it's the details atthis point that tipped the balance? Is that accurate?

MR. COMEY: It's fair to say that an accumulation of facts throughout the course of theinvestigation over the last several months has led us to this point. What those facts are andwhere they tell us we're going is stuff I can't get into and that I would hope you would not








matter and had sort of reached this conclusion over the last week, I had plenty of time to thinkabout what I wanted to do with it.

Q: Is this a suggestion that you brought to him first?

MR. COMEY: I don't want to talk about my discussions with the attorney general. What I cantell you is that it was always in his mind that it might be necessary at some point for him to stepaway from this, step aside from this, and that it might be necessary to change the way it wasapproached, to move it outside the normal chain of command.

I can't -- and for that reason -- that was the reason -- much was made in the press, apparently,that he was learning about the facts of it. He was being briefed periodically on the facts, so thathe could make the very judgment he made here. And I can tell you none of that acted to delaythis investigation in any way. The attorney general learned enough about the case that at a pointwhere it was appropriate, he made the judgment to step aside.

And I, at the same time, was making my own judgments, and that is agreeing with him that itwas appropriate for him to step aside, but also reaching the conclusion that it was appropriate tochange the way we were handling this, for the reasons I talked about in my statement.

And as I said, I have great confidence in the two guys standing on this stage. And -- but myjudgment was, simply because of the subject matter involved here and our duties -- which mostpeople don't realize, but we spend part of every day working on national security intelligencestuff -- that it was better for us to be able to focus on that, which is our nation's number-onepriority, and not, at the same time, be making judgments about who to interview and all thethings that come with an investigation.

Yes, sir?

Q: Pat Fitzgerald works a lot with national security and intelligence issues as well, however,does he not? I mean, he's running one of the largest U.S. attorney's offices in the country. He'soverseen some major prosecutions. Where's the line between the contact you two have versusthe kind of contact that he -- he's also fairly well-known, I think, for his work in nationalsecurity.

MR. COMEY: He is, but his -- not to say what he's doing now is not real important, but hisrole is very, very different. I mean, every day Chris Ray and I are dealing with the key nationalsecurity intelligence agencies. Mr. Fitzgerald is not. He may have a case that occasionallybrings him into contact with that, but he's running a U.S. attorney's office, working oncorruption cases, drug cases, gang cases. It's a very different sort of connection. And so that's

why I thought this was appropriate.

Yes, sir?

Q: Will this office be an independent office that's set up someplace outside of Justice and theFBI, where most of the people may be drawn from? (Off mike) -- special prosecutor's office.

MR. COMEY: I don't know where it'll be housed. Wherever Mr. Fitzgerald wants to house it,






we'll make sure we get him the space that he wants. That's not a matter I've discussed with him.

Q: You mentioned that the attorney general's office -- the staff in his office itself are also beingrecused. Why was that decision made? And who and how many people are included in thatrecusal?

MR. COMEY: I don't know how many people. The entire -- "personal staff" is not what theycall it, but the entire staff of the office of the attorney general would be recused. And that, Ibelieve, is fairly standard fare, because they are -- just as my staff, whether they like it or not, isan extension of me, his staff is an extension of him, and they're of a piece.

There was a question --

Q: Attorney General Reno said several years ago -- and I think many of us quoted this when allthis came up -- that many of the investigations -- leak investigations are closed without asuspect ever being identified. Can you tell us if a suspect or suspects, in your term of art, hasbeen identified in this case, or do you -- are you confident that that is likely to happen in thiscase?

MR. COMEY: I can't do that. Just -- and it's not this particular investigation. I would never saythat kind of details on any pending criminal investigation. I just can't do it, for the reasons Isaid. We don't want people that we might be interested in to know we're interested in them. Wealso don't want to smear somebody who might be innocent and might not be charged. That'swhy the secrecy of our process, I think, is what makes our process great.

STAFF: A question here. Sir?

Q: Does the attorney general still have the authority to fire the U.S. attorney?

MR. COMEY: No. I don't think the attorney general ever has the authority to fire a U.S.

attorney. It's one of the things I loved about being a U.S. attorney. I believe the president is theonly person who has authority to remove a United States attorney.

In this circumstance, because the attorney general is recused, I am the acting attorney general,for purposes of this matter. So to the --

Q: Could you fire Fitzgerald?

MR. COMEY: That's a great question. (Laughter.) Now I believe that I could revoke thedelegation of authority that I've given to him. I don't believe that I could --

Q: So how does that move it outside the traditional chain of command, as you put it?

MR. COMEY: Well, because what I've done with Fitzgerald is -- the normal outside counsel,appointed outside, or the ordinary U.S. attorney, if he needs to issue a subpoena involving themedia, for example, or if he wants to grant immunity to somebody or if he wants to take anappeal, has to come for approval to the Department of Justice. Pat Fitzgerald will not, for thesepurposes.








MR. COMEY: Yes. An outside counsel has a -- the regulations prescribe a number of ways inwhich they're very similar to a U.S. attorney. For example, they have to follow all Departmentof Justice policies regarding approvals. So that means if they want to subpoena a member of themedia, if they want to grant immunity, if they want to subpoena a lawyer -- all the things thatwe as U.S. attorneys have to get approval for, an outside counsel has to come back to theDepartment of Justice. An outside counsel also only gets the jurisdiction that is assigned to himand no other. The regulations provide that if he or she wants to expand that jurisdiction, they

have to come back to the attorney general and get permission.

Fitzgerald has been told, as I said to you: Follow the facts; do the right thing. He can pursue itwherever he wants to pursue it.

An outside counsel, according to the regulations, has to alert the attorney general to anysignificant event in the case; file what's called an "urgent report." And what that means is justas U.S. attorneys have to do that, he would have to tell the attorney general before he broughtcharges against anybody, before maybe a significant media event, things like that. Fitzgeralddoes not have to do that; he does not have to come back to me for anything. I mean, he can if he wants to, but I've told him, our instructions are: You have this authority; I've delegated to

you all the approval authority that I as attorney general have. You can exercise it as you see fit.

And a U.S. attorney or a normal outside counsel would have to go through the approval processto get permission to appeal something. Fitzgerald would not because of the broad grant of authority I've given him.

So, in short, I have essentially given him -- not essentially -- I have given him all the approvalauthorities that rest -- that are inherent in the attorney general; something that does not happenwith an outside special counsel.

Q: I assume this is written down somewhere, and are we going to get a copy of it?

MR. COMEY: I don't know whether you'll get a copy, but he will.

Q: Getting back to orange alert for a second, what are DOJ's responsibilities in an orange alertsituation? I mean, we know what TSA does, DHS. What does the Justice Department do?

And also, do you plan to file any kind of response on the Padilla case? (Off mike) -- halfwaythrough the 30 days.

MR. COMEY: With respect to the orange alert, the Justice Department's role in general,obviously, is before the alert level is raised, the attorney general is part of any deliberationsabout raising that.

More generally, I hope you know what we do, and that is the men and women of the FBI andall of our agencies are out there working like crazy to try and keep the homeland safe. I can'tanswer it other than -- as broadly as that. A lot of people's holidays have not been holidaysbecause of the effort they've been putting forth, and I hope people remember that.

With respect to Padilla, I can't comment. I know we still have time on the clock, but I don'tknow exactly where it stands.






Eric?

Q: President Bush said, soon after the leak story broke, that he wasn't sure that the leaker wouldever be caught. I know you can't talk about specific suspects that you may be narrowing in on,but in general, are you confident that this case is going to result in a prosecution?

MR. COMEY: That's not a characterization I can make. I wouldn't do it about any case, butI'm not going to do it about this case. All I can tell you is that I'm confident that the facts willbe found professionally and that the judgments will be made by someone with impeccablejudgment and impartiality, and that is Mr. Fitzgerald.

Yes, ma'am?

Q: Have you set a budget for Mr. Fitzgerald's office? And -- well, that's it.

MR. COMEY: The answer is no.

Mr. Fitzgerald's office has a budget, which he no doubt -- as U.S. attorney -- no doubt thinks istoo small. And that's what I meant when I said resources. If he needs people or money or chairs

or sticky pads, he can come back to me or to Assistant Attorney General Ray and we'll makesure that he gets it. I would expect that because he's already in the Department of Justice, wealready have a team in place, he'll at least be able to draw on some, maybe all, of thoseresources and supplement them. He happens to run one of the best U.S. attorney's offices in thecountry, and he has senior people with great experience in a host of issues that might berelevant. So I would expect he'd draw on those troops.

Q: So there won't be a separate budget for this independent investigation?

MR. COMEY: No.

Yes, ma'am?

Q: He's just building on what Mr. Dionne (sp) has already completed; is that correct? And whathappens to Mr. Dionne (sp)? Will he work for MR. Fitzgerald? Will he continue to play animportant role in this investigation since he's conducted the majority of the investigation to thispoint?

MR. COMEY: Well, that's a judgment for Mr. Fitzgerald to make as to what he builds on,what he does. I'm sure he knows of Mr. Dionne's (sp) reputation just as I do. But again, I don'twant to prejudge that. It's entirely his call as to how he staffs it. Like I said, I wouldn't besurprised if he thought maybe he ought to keep some or all of the career folks involved.

I know that one of the things that makes Mr. Fitzgerald a great prosecutor is that he worksquickly. He understands that justice delayed is not a good thing. So I would expect -- and that'sone of the things that made me prefer this over an outside option. Mr. Fitzgerald can be here --(snaps his fingers) -- like that to pick up this ball and to run with it, which would not bepossible with the alternative.

Q: (Off mike) -- bring people from Chicago -- (off mike) -- to Washington?






MR. COMEY: The answer to that is I don't know. And I really would not presume to tell himthat. I'm giving him a broad mandate and saying this is your charge.

Yes, sir?

Q: A quick question. Eric asked if you were confident that you could -- that you might be ableto prosecute the leaker. That's a pretty high standard of proof. Are you confident that you willbe able to identify the leaker or leakers?

MR. COMEY: Same answer I gave Eric, which I hope was vague and noncommittal.

Thank you, folks.

(end transcript)








)Plaintiff, ) v. ) C. A. No. 08-1468 (EGS)

)


)

Defendant. )

__________________________________________)

PLAINTIFF’S RESPONSE TO DEFENDANTS’ STATEMENT OF MATERIAL

FACTS NOT IN DISPUTE, AND PLAINTIFF’S STATEMENT OF MATERIAL

FACTS NOT IN DISPUTE

Pursuant to Local Civil Rules 7(h) and 56.1, plaintiff respectfully submits this

response to defendant’s statement of material facts, and statement of material facts as to

which plaintiff contends there is no genuine issue or dispute.

Response to Defendants’s Statement of Material Facts

1. This paragraph is not disputed.


3. This paragraph is not disputed, but plaintiff notes that it contains legal

conclusions advanced by defendant that plaintiff disputes.


5. This paragraph is not disputed to the extent that it states what “[t]he Attorney

General has determined,” but plaintiff notes that it contains legal conclusions advanced

by defendant that plaintiff disputes.




2

6. This paragraph is not disputed to the extent that it states what “[t]he Attorney

General has determined,” but plaintiff notes that it contains legal conclusions advanced

by defendant that plaintiff disputes.

7. This paragraph consists of legal conclusions that are in dispute.

8. This paragraph consists of legal conclusions that are in dispute.


10. This paragraph is disputed to the extent that the agency’s declarant lacks the

requisite “personal knowledge” of the matters at issue.

Plaintiff’s Statement of Material Facts Not in Dispute

Plaintiff submits that the following material facts, in addition to those presented by

defendant and not disputed by plaintiff, as set forth above, are not in dispute:

1. As part of Special Counsel Patrick J. Fitzgerald’s investigation into the leak of

the covert CIA identity of Valerie Plame Wilson, the FBI interviewed I. Lewis Libby, the

vice president’s chief of staff, on November 26, 2003. During his interview, Mr. Libby

stated that it was “possible” he was instructed by someone, including possibly the vice

president, to inform a member of the press of the identity and employment of Mrs. Wilson.

Complaint, ¶ 19; Answer, ¶ 19.

2. The leak of Mrs. Wilson’s covert identity followed the publication of a New York

Times op-ed column by her husband, former Ambassador Joseph Wilson, outlining what

he found in his trip to Niger to investigate allegations that Iraq had sought uranium from

Africa. During the criminal trial of Mr. Libby, Cathie Martin, Assistant to the Vice

President for Public Affairs, testified that she, Mr. Libby and Vice President Cheney all




3

participated in a press strategy to discredit Ambassador Wilson’s account. Complaint, ¶

20; Answer, ¶ 20.

3. Special Counsel Fitzgerald, in his closing remarks to the jury during the criminal

prosecution of Mr. Libby, stated that “[t]here is a cloud over what the Vice President did

that week. He wrote those columns. He had those meetings. He sent Libby off to Judith

Miller at the St. Regis Hotel. At that meeting, the two-hour meeting, the defendant talked

about the wife. We didn’t put that cloud there. That cloud remains.” Complaint, ¶ 21;

Answer, ¶ 21.

4. For more than a year, the House of Representatives Committee on Oversight and

Government Reform (“the Committee”) has been seeking documents from defendant DOJ

as part of the Committee’s investigation into the leak of Mrs. Wilson’s covert CIA identity.

As part of that investigation, the DOJ provided the Committee with redacted versions of

reports of FBI interviews of White House staff, but has refused to permit any access to the

interview reports of the president and vice president. Complaint, ¶ 22; Answer, ¶ 22.

5. The information obtained during the vice president’s interview with the FBI was

voluntarily disclosed. In his July 15, 2008, letter to the president requesting an assertion of

executive privilege in response to the Committee’s subpoena, Attorney General Mukasey

stated that “[the President], the Vice President and White House staff cooperated

voluntarily with the Special Counsel’s investigation, agreeing to informal interviews

. . . .” Exhibit B (attached to Declaration of Steven G. Bradbury (“Bradbury Decl.”));see

also Bradbury Decl., ¶ 3 (the Committee’s subpoena “sought the reports of voluntary

interviews of the Vice President and senior White House staff”) .




4

6. Special Counsel Fitzgerald has advised the Committee that as to the FBI’s

interviews of the president and vice president, “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.” Complaint, ¶ 23; Answer, ¶ 23; Letter from Special Counsel

Patrick J. Fitzgerald to Hon. Henry A. Waxman, July 3, 2008, filed herewith as Plaintiff’s

Exhibit (“Pl. Ex.”) A, at 2.

7. On July 15, 2008, Attorney General Michael B. Mukasey requested that the

president assert executive privilege in response to a subpoena from the Committee seeking

the FBI’s reports of the Special Counsel’s interviews with the vice president as well as

notes prepared during the interviews. On July 17, 2008, the Committee announced that

President Bush had invoked executive privilege to block the DOJ from providing the

Committee with the subpoenaed documents. Complaint, ¶ 24; Answer, ¶ 24; Bradbury

Decl., ¶¶ 4-5.

8. On October 14, 2008, the Committee released a draft report summarizing its

thwarted efforts to obtain relevant material, including the interview reports at issue here.

The report notes:

The central document in this dispute is the report of the FBIinterview with the Vice President. Both the Chairman and the Ranking

Member are in agreement that the President’s assertion of executiveprivilege over this document was legally unprecedented and an

inappropriate use of executive privilege.

Draft Report of the Committee on Oversight and Government Reform, U.S. House of

Representatives, Regarding President Bush's Assertion of Executive Privilege in Response




5

to the Committee Subpoena to Attorney General Michael B. Mukasey, filed herewith as Pl.

Ex. B, at 7.

Respectfully submitted,

__/s/ David L. Sobel__________________

DAVID L. SOBEL, D.C. Bar No. 360418

1875 Connecticut Avenue, N.W.Suite 650

Washington, DC 20009(202) 246-6180

ANNE L. WEISMANN, D.C. Bar No. 298190

MELANIE SLOAN, D.C. Bar No. 434584Citizens for Responsibility and

Ethics in Washington1400 Eye Street, N.W., Suite 450

Washington, D.C. 20005(202) 408-5565

Counsel for Plaintiff








)Plaintiff, )

v. ) C. A. No. 08-1468 (EGS)

)


)

Defendant. )

__________________________________________)

O R D E R

UPON CONSIDERATION of defendant’s motion for summary judgment,

plaintiff’s cross-motion for partial summary judgment, the parties’ responses, and the

entire record, it is this ____ day of _________, 2008;

ORDERED that defendant’s motion is hereby denied; and it is

FURTHER ORDERED that plaintiff’s motion is hereby granted; and it is

FURTHER ORDERED that defendant shall produce to plaintiff all agency

records responsive to the Freedom of Information Act request at issue in this action, in

their entirety, within five days of the issuance of this order.

UNITED STATES DISTRICT JUDGE


CREW v. DOJ: Re: Valerie Plame: 10/30/08 - CREWs Memorandum in Opposition

Documents