The Battle Over Dick Cheney's FBI Valerie Plame Interview

When I wrote a few weeks ago about the Obama Administration taking the position that documents related to Dick Cheney's FBI interview in the Valerie Plame leaks case should not be released, it was in the context of lack of transparency and the silliness of the Government's attempted justification:

Another sign of non-transparency from Obama: His Justice Department is fighting a Freedom of Information Act request in federal court, trying to keep CREW from obtaining FBI reports and summaries of Dick Cheney's statement to the FBI over the Valerie Plame Leak. The Judge held a hearing yesterday and was very unhappy with the Government's position. He's going to review the statement himself to see if there's any reason not to release the requested documents. The Government gave this ridiculous reason: They don't want the statements "to become fodder for Cheney's political enemies or late-night commentary on "The Daily Show."

In newer developments, David Corn reports the Government has filed a new pleading containing a more substantive reason: [More...]

Corn reports Deputy Chief of the Criminal Division Lanny Breuer submitted a declaration stating "if the Cheney interview is made public it could cause public officials in the future to not cooperate with criminal investigations." From Breuer's declaration:

As a general matter, the non-public nature of law enforcement interviews can be a significant factor in securing the voluntary cooperation of witnesses. Indeed, it is not uncommon for prosecutors and law enforcement investigators to inform witnesses that, subject to applicable statutes, regulations and rules, they will attempt to maintain the confidentiality of information provided. A non-public interview can be particularly important in gaining the cooperation of senior-level White House officials given the public role of such witnesses, the sensitive nature of the subject matters that may be discussed, the potential politicization of these sensitive issues, and the possibility that whatever matter is being investigated ultimately may not warrant any law enforcement action.

Corn asks:

In other words, top government officials may only cooperate with a criminal investigation --that is, submit to questioning without being subpoenaed -- if they are promised confidentiality. Now what sort of public servant would a person be if he or she refused to help the FBI during an investigation? But Breuer claimed this is a real threat to future investigations.

Kevin Drum takes a different view and asks if any law bloggers want to respond:

I guess what I'm unclear about here is the distinction, if there is one, between an ordinary FBI interview and one with a high-ranking politico. Just speaking generally, it strikes me that it's genuinely in the public interest for interviews like these to be kept private unless they lead to criminal prosecutions. Lots of people really would would be less forthcoming during FBI investigations if they knew their interviews might become public, so it's reasonable that the default position should be that they stay confidential. That's certainly how I'd want things to stand if I were dishing dirt to the FBI.

Now, perhaps things should be different for non-ordinary people like vice presidents. But I don't know if that's part of the legal argument here or not. Are there any law bloggers out there who can step in and explain what's going on here?

First, the reason this is an issue is because Judge Emmett Sullivan ordered the following be filed by yesterday (From his order, available on PACER):

...the parties are directed to submit supplemental briefing that addresses (1) any known instances in which high level White House officials have engaged in interviews with law enforcement officials outside the context of a grand jury subpoena, and (2) what, if anything, such officials have done to protect against the content of those interviews from becoming public.

I would start with the difference between a Congressional committee subpoenaing the documents and a private interest group filing a FOIA lawsuit for them. I would also consider the parallel of grand jury secrecy, which isn't at issue here, for reasons discussed below, but which nonetheless seems relevant to me.

The Bush DOJ, on behalf of Cheney, asserted executive privilege among other claims after the House Oversight Committee had issued a subpoena for the Cheney interview. The Wilson's responded at the time:

“Today the president took the unprecedented step of asserting executive privilege to thwart congressional efforts to review Vice President Cheney’s interview with Special Prosecutor Patrick Fitzgerald concerning the betrayal of Valerie Wilson’s covert CIA identity. We agree with Congressman Waxman that the position taken by the president is ludicrous.

The American people have a right to know what role the vice president played in the leak of Ms. Wilson’s covert identity for political purposes. The fact that the Attorney General is recommending the assertion of executive privilege reveals that this Department of Justice is as beholden to the White House as that run by former Attorney General Alberto Gonzales.

I agree the Congressional Committee had a right to know. It was conducting a parallel investigation and the material it requested wasn't protected by grand jury secrecy. I don't think the American public did at that point. Or now. The lawsuit at issue here is not related to the Congressional investigation, even though the documents it requests mirror those the Committee requested. It is a Freedom of Information Act request by a public interest group, CREW.

U.S. Attorney Patrick Fitzgerald told the House Oversight Committee in this letter (pdf) that grand jury secrecy doesn't apply to its subpoena of these documents. Still, Cheney's 2004 interview by federal prosecutors was part of the grand jury investigation into the leak of Plame's identity. He may not have testified in front of the grand jury, but the grand jury was investigating the case and the interview was conducted as part of that investigation.

Vice President Dick Cheney was recently interviewed by federal prosecutors who asked whether he knew of anyone at the White House who had improperly disclosed the identity of an undercover C.I.A. officer, people who have been involved in official discussions about the case said on Friday.

...The interview of the vice president was part of a grand jury investigation into whether anyone at the White House violated a federal law that makes it a crime to divulge the name of an undercover officer intentionally.

As then President Bush said about his own interview, it was a criminal matter:

"In terms of whether or not I need advice from my counsel, this is a criminal matter, it's a serious matter, I have met with an attorney to determine whether or not I need his advice. And if I deem I need his advice, I'll probably hire him."

The Government may not disclose matters occurring before the grand jury. One reason is to protect the names and reputations of the innocent, those who don't get indicted.

The grand jury in the United States has become both a sword and a shield of justice: a sword, because it can investigate crime and indict criminals; a shield, because by its secret and nonpublic nature, it can protect the innocent against unfair publicity. These important powers carry equally grave responsibilities to see that such powers are not abused. Unless motivated by the highest sense of justice, a grand jury might return indictments not warranted by the evidence and thus become a source of oppression to innocent citizens.

Rule 6(e) of the Federal Rules of Criminal Procedure contains the secrecy rule and exceptions. One exception is that federal officials may share information with each other, but only in the conduct of their official duties. The Congressional investigation seems to fit this. A Freedom of Information Act request by private citizens does not.

But, CREW is not seeking the actual interview of Cheney. According to it's Cross-Motion for Summary Judgment (pdf), it is seeking matters occurring outside the grand jury, specifically:

  • 1) “FBI report summarizing interview of Vice President Richard B. Cheney” (28 pages);
  • “FBI handwritten notes summarizing interview of Vice President Richard B. Cheney” (22 pages);
  • 3) “FBI handwritten notes (annotated on outline of questions to be asked) summarizing interview of Vice President Richard B.Cheney” (17 pages).

The FBI agent summaries were taken during the Cheney interview. Even though the FBI reports of the interview, and the agents' notes taken during it, don't fall under grand jury secrecy rules, I think the same principles should apply.

If the shoe were on the other foot, and you were a person interviewed by prosecutors and federal officials conducting a grand jury investigation, and you were not indicted, would you want a summary of your interview disclosed to the public? What if you were one of the people talked about in someone else's grand jury interview? Would you want a one-sided account by that person disclosed to the public?

Not everyone talks to the FBI voluntarily, even without a subpoena. Some people are threatened with criminal charges unless they agree to an interview. Others refuse to interview request and are granted immunity and then compelled to talk. Or the interview may be part of a proffer for a deal. Or the subjects talk out of fear their loved ones will be targeted if they don't comply with the Government's request. These interviews are one-sided and are not subject to cross-examination by representatives of the individuals who are discussed during the interview. These interviews may or may not be reliable.

Criminal trials take place in public. Criminal investigations take place in private. Even though this isn't a grand jury secrecy case, I think in order to protect the privacy and reputation of those who are mentioned or discussed by the subject of a law enforcement interview, the reports of these interviews, untested by cross-examination, should remain in government hands and not subject to release via a FOIA request.

This shouldn't be decided on executive privilege. Or on the basis of whether federal officials will clam up when those investigating possible criminal conduct want to interview them.

The same rule should apply to Cheney as to everyone else. In my view, the Congressional Committee had a right to the documents since they are federal officials investigating a matter related to the subject matter of the grand jury's Valerie Plame leak investigation. But CREW and the public don't. It's too bad that Dick Cheney is the one who wins if the material is not released to CREW and the public, but I'd rather have that than a precedent that allows reports of law enforcement interviews of the average citizen who ultimately is not indicted, and who may have slandered Tom, Dick and Mary during their interview, subject to public disclosure.

So while the Government's grounds are weak and unpersuasive, for other reasons, I hope the documents are not released to the CREW and the public.


< Once More On Preventive Detention | Thursday Night Open Thread >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Great post (5.00 / 1) (#1)
    by Big Tent Democrat on Thu Jul 02, 2009 at 07:26:15 PM EST

    So glad you liked it (5.00 / 2) (#3)
    by Jeralyn on Thu Jul 02, 2009 at 07:40:58 PM EST
    What's your view?

    I had no view (5.00 / 2) (#7)
    by Big Tent Democrat on Thu Jul 02, 2009 at 08:22:44 PM EST
    until I read your post.

    You convinced me.


    Not Sure How I Feel About This (5.00 / 1) (#4)
    by BDB on Thu Jul 02, 2009 at 07:53:31 PM EST
    I certainly agree that interviews of ordinary people should be kept confidential, but Cheney was being paid by taxpayers and was interviewed about alleged wrong doing in connection with his government job.  I think that might make a difference.  To me it isn't about whether anyone committed a crime, it's about my right to know about alleged improprieties of elected officials.  

    And I know I don't agree with the Government's argument about people not sitting for interviews.  First, the only reason Dick Cheney got interviewed was that he was Vice President.  Almost anyone else in his position in this kind of case would be hauled before a grand jury.  Where he would've gotten his vaunted secrecy.  He chose to be interviewed instead.  As most people would.  The reason a lot of people (although not all) agree to be interviewed - which does not have the 6(e) protections - is because they don't want to go before a grand jury.  I don't think that's going to change, especially not for public officials.  No public official wants to be dragged in front of a grand jury.  

    oh my! wayyyyyyyyyyy too late! (5.00 / 3) (#8)
    by cpinva on Thu Jul 02, 2009 at 10:35:16 PM EST
    They don't want the statements "to become fodder for Cheney's political enemies or late-night commentary on "The Daily Show."

    cheney's been fodder for both for years now. this is attempting to close the barn door, eons after all the animals left.

    I see no justification (5.00 / 0) (#14)
    by Bemused on Fri Jul 03, 2009 at 10:31:53 AM EST

    for different standards for enforcing FOIA depending on whether a person is a high ranking government official beyond the standards contained in the statute, which contains provisions which are or could be directly applicable to such issues:

    5 U.S.C. § 552


    b) This section does not apply to matters that are--

    (1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;


    (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;


    (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;



    Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made.

    (c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and--

    (A) the investigation or proceeding involves a possible violation of criminal law; and

    (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.

    (2) Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed.

    (3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.

    (d) This section does not authorize the withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress. (

    Regardless of the reasons, valid or not, (none / 0) (#2)
    by Anne on Thu Jul 02, 2009 at 07:40:41 PM EST
    why the reports and transcripts of the interviews cannot or should not be released, it has gotten to the point where the assumption is that preventing their release has less to do with protecting the future ability of investigative authorities to obtain much-needed information, and more to do - perceptually, anyway - with protecting the specific individual - Cheney - whose statements to the FBI might well have made it obvious that he should have been prosecuted for his involvement in the Plame leak.

    Yeah, I know it was Patrick Fitzgerald, and everyone thinks he is such a straight-shooter that if there had been grounds to prosecute Cheney, he would have, but it's hard to forget that this was Bush's FBI and Bush's Department of Justice, and there was a whole lot of rot going on in Bush's government.

    The special circumstances of the Valerie Plame (5.00 / 0) (#13)
    by KeysDan on Fri Jul 03, 2009 at 10:29:36 AM EST
    case augur for special treatment. Scooter Libby, the VP's chief of staff, was convicted of perjury as well as obstructing and impeding justice.  As Fitzgerald stated at the conclusion of the trial, sand was thrown in the eyes of the investigation.  The case is not really resolved and FBI interviews of Cheney are still germane.

    I'm also ambivalent (none / 0) (#5)
    by andgarden on Thu Jul 02, 2009 at 08:15:22 PM EST
    Personally, I would not want any such materials from a hypothetical interview of me to be made public. But what cuts against that for Cheney is that he is a public figure and was an elected official at the time.

    I do not agree that the same rules should necessarily apply for Cheney as for me or other private citizens.

    Though I accept that even Dick Cheney (5.00 / 1) (#6)
    by andgarden on Thu Jul 02, 2009 at 08:17:31 PM EST
    has equal protection rights.

    I think that the public official acting (5.00 / 0) (#12)
    by inclusiveheart on Fri Jul 03, 2009 at 09:58:55 AM EST
    in official capacity question is an important one to consider here.  The question really being what are the public's interests in this particular case - which was let's not forget at least tangentially related to important national security issues - versus the right of a public servant - who IIRC avoided testifying under oath - and just about every other attempt that was made to get at the truth.  Our government is becoming more and more secretive and our public servants more and more protected in ways that most average Americans could ever hope to be and that is very problematic and dangerous in my opinion.

    Seems to me it depends on whether (none / 0) (#9)
    by oculus on Thu Jul 02, 2009 at 11:56:13 PM EST
    he interviewing agency assured the witness the interview would be confidential and whether the agency swears under penalty of perfury it has made ever effort to fulfill that promise.