Вы находитесь на странице: 1из 58

Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 1 of 26

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. )
__________________________________________)

PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

Pursuant to Fed. R. Civ. P. 56, plaintiff respectfully moves for summary judgment.

The grounds for this motion are set forth in the accompanying memorandum of points and

authorities.

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. 434584
Citizens for Responsibility and
Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
(202) 408-5565

Counsel for Plaintiff


Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 2 of 26

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;
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 3 of 26

Answer, ¶ 19. 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

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

2
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 4 of 26

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 thwarted
efforts 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 interview
with the Vice President. 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 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 Committee
Report”), attached hereto as Pl. Ex. B, at 7.

3
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 5 of 26

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

4
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 6 of 26

. . . records (totalling 67 pages) that are responsive to your FOIA request,” and that all of

the responsive material was being withheld. Exhibit E (attached to Bradbury Decl.).2

DOJ moved for summary judgment on October 10, 2008, and described the

withheld material as follows: 1) “FBI report summarizing interview of Vice President

Richard B. Cheney” (28 pages); 2) “FBI handwritten notes summarizing interview of Vice

President Richard B. Cheney” (22 pages); and 3) “FBI handwritten notes (annotated on

outline of questions to be asked) summarizing interview of Vice President Richard B.

Cheney” (17 pages). Vaughn Index, Records Withheld by the Office of Legal Counsel,

Exhibit E (attached to Bradbury Decl.). In support of its motion, DOJ asserts that all of

this material is exempt from disclosure under FOIA in its entirety. For the reasons set

forth below, CREW opposes the government’s motion.

ARGUMENT

The Freedom of Information Act is intended to safeguard the right of the American

people to know “what their Government is up to.” Dep’t of Justice v. Reporters Committee

for Freedom of the Press, 489 U.S. 749, 773 (1989). The central purpose of the statute is

“to ensure an informed citizenry, vital to the functioning of a democratic society, needed to

check against corruption and to hold the governors accountable to the governed.” NLRB v.

Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); Maydak v. Dep’t of Justice, 218

F.3d 760 (D.C. Cir. 2000). As this Court recently noted, “Congress enacted FOIA for the

purpose of introducing transparency to government activities.” In Def. of Animals v. NIH,

2
DOJ further advised CREW that, notwithstanding the agency’s purported decision to
“expedite” the processing of CREW’s FOIA request, responsive documents were not even
referred to the Office of Legal Counsel, the component apparently responsible for the
disposition of the material, until September 4, 2008 – more than 40 days after the agency
acknowledged its statutory obligation to “expedite” processing. Exhibits D & E (attached
to Bradbury Decl.)

5
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 7 of 26

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

6
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 8 of 26

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 de
novo 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 an
affidavit describing the basis for its withholdings, and providing justifications for
redactions, accompanied by an index listing responsive records and indicating the precise
redactions made to the records. We refer to the affidavit and index collectively herein as a
“Vaughn submission.”

7
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 9 of 26

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 the
Records 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

8
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 10 of 26

fact that “the Special Counsel’s investigation and the Libby prosecution are closed

matters,” Letter from the Attorney General to the President, July 15, 2008 (attached to

Bradbury Decl. as Exhibit B) at 4, DOJ is left to argue merely that “release of the

documents could reasonably be expected to interfere with future enforcement proceedings

that can be reasonably anticipated . . .” Defendant’s Memorandum in Support of its

Motion for Summary Judgment (“Def. Mem.”) at 9 (emphasis added). No court has ever

adopted the wildly expansive application of Exemption 7(A) that DOJ asserts here.

In support of its novel assertion, DOJ selectively quotes language from Ctr. for

Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003), to the effect

that, “Exemption 7(A) does not require a presently pending ‘enforcement proceeding.’”

Def. Mem. at 8. In that case, which involved the identities of foreign nationals detained in

the aftermath of the September 11 terrorist attacks, the court of appeals followed the

quoted language with this: “[A]s the district court correctly noted, it is sufficient that the

government’s ongoing September 11 terrorism investigation is likely to lead to such

proceedings.” Id. (citation omitted). The court approvingly cited the district court’s

observation that “[a]lthough typically there must be a pending or a specific ‘concrete

prospective law enforcement proceeding’ at issue, Exemption 7A has also been extended

to protect information related to ongoing investigations likely to lead to such proceedings,

as in this case.” Ctr. for Nat’l Sec. Studies v. United States DOJ, 215 F. Supp. 2d 94, 101

n.9 (D.D.C. 2002). Lest there be any doubt on the point, the D.C. Circuit noted in Ctr. for

Nat’l Sec. Studies that “impediments to an ongoing law enforcement investigation are

precisely what Exemption 7(A) was enacted to preclude.” 331 F.3d at 933 (emphasis

added).

9
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 11 of 26

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). In Mapother, 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 . . .

10
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 12 of 26

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

11
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 13 of 26

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 from
the government’s cursory Vaughn submission which entity or individual is actually
asserting the privilege claims at issue here. In his declaration, Mr. Bradbury alternately
asserts that “the Attorney General requested that the President assert executive privilege in
response to the Committee’s subpoena,” that “the President subsequently asserted
executive 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 privileges
generally, [and] to the deliberative process privilege in particular.” 121 F.3d 729 at 741.

12
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 14 of 26

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 741.7

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] Bush
Administration, and his deputy, John Schmitz, refused to be interviewed by the
Independent Counsel investigating the Iran-Contra affair and only produced documents
subject 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 the
FBI 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 an
interview is conducted, neither the source nor the FBI agent ordinarily knows whether the
communication will be disclosed”).

13
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 15 of 26

DOJ cites just one case in support of its proposition that “DOJ and other law

enforcement agencies possess a law enforcement privilege” that somehow justifies the

withholding of records sought under FOIA. Def. Mem. at 10, citing Singh v. S. Asian

Soc’y, 2007 WL 1556669, at *3 (D.D.C. 2007). Significantly, Singh was not a FOIA case,

but rather involved a motion to compel enforcement of a subpoena duces tecum issued in a

wrongful death action. DOJ’s failure to cite any authority holding that FOIA’s Exemption

5 encompasses a “law enforcement privilege” is not surprising; plaintiff’s research has

similarly failed to locate any such authority.

The only case that appears to address the issue is Dean v. FDIC, 389 F. Supp. 2d

780 (E.D. Ky. 2005), in which the district court rejected the novel proposition DOJ asserts

here:

The defendants also argue that Exemption 5 encompasses something


referred to as the “law enforcement privilege,” which exists to prevent harm
to law enforcement efforts that might arise from public disclosure of
investigatory files. The defendants acknowledge that the Sixth Circuit has
not ruled on the existence of the law enforcement privilege, but assert that
two sister courts within the Sixth Circuit have recognized its existence
....

The Court is unwilling to recognize the “law enforcement privilege” in the


present case. Neither of the cases cited by the defendants were FOIA cases
and a number of the factors to be considered in whether to apply the
privilege are already covered in other FOIA exemptions . . . . Further, the
Court is of the opinion that if this privilege were to be recognized at all, it
should be recognized under Exemption 7, not Exemption 5.

Id. at 791-792 (citations omitted). Indeed, this Court has likewise noted that any

“privilege” of the sort DOJ seeks to raise here is incorporated into Exemption 7. See, e.g.,

Dow Jones & Co. v. U.S. Dep’t of Justice, 724 F. Supp. 985, 989 (D.D.C. 1989)

(referencing “the law enforcement privileges of exemption 7”). As we have shown, the

government’s attempt to rely upon Exemption 7(A) cannot be sustained, and the illusory

14
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 16 of 26

“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 House
Chief of Staff, the National Security Advisor, the Director of the Central
Intelligence Agency, and the White House Press Secretary. These
deliberations 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 same
reasons that are set forth . . . to support the applicability of Exemption Seven.” Bradbury
Decl., ¶ 12.

15
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 17 of 26

inquiries about the accuracy of statement in the President’s address and the
decision to send Ambassador Joseph Wilson on a fact-finding mission to
Niger in 2002, the decision to declassify portions of the October 2002
National 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 announcing
a winner. Because the courts have determined that Congress did not intend
to exempt such explanatory documents from FOIA’s disclosure
requirements, 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).

16
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 18 of 26

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 document
created after the decision at issue, can still be ‘predecisional’ if it memorializes protected
predecisional information.” Def. Mem. at 11. In Appleton 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.

17
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 19 of 26

. . . [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 with
the 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 President
and senior presidential advisers in the course of preparing information or
advice for potential presentation to the President. In addition, some portions
explicitly 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.

18
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 20 of 26

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. In Espy, 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 advisers


and their staff author or solicit and receive in the course of performing their
function of advising the President on official government matters. This
restriction is particularly important in regard to those officials who exercise
substantial independent authority or perform other functions in addition to
advising 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 the
presidential communications privilege in regard to particular
communications of these “dual hat” presidential advisers, the government
bears the burden of proving that the communications occurred in
conjunction with the process of advising the President.

19
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 21 of 26

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 privilege
extends 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. LEXIS
24517, 21-22 (D.D.C. Sept. 9, 2004).

20
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 22 of 26

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

21
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 23 of 26

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 authority
to classify these documents as “Secret.” . . . The [agency] has not provided

12
Plaintiff does not seek the disclosure of “social security numbers, addresses, [or] phone
numbers,” 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 the
material 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 Reform
and Terrorism Prevention Act of 2004, which, as DOJ explains, “requires the Director of
National Intelligence [“DNI”] to ‘protect intelligence sources and methods from
unauthorized 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 the
material at issue here.

22
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 24 of 26

the Court with sufficient information from which it can conclude that an
official 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, the
Agency’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 (has
been) 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 the
Court.

23
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 25 of 26

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. 360418
1875 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 time
suggested to the House Committee that material concerning the FBI’s interview with Vice
President Cheney was classified. See, e.g., Draft Committee Report. Serious questions
thus exist as to when, and for what purposes, the determination to classify the material was
made.

24
Case 1:08-cv-01468-EGS Document 10 Filed 10/30/2008 Page 26 of 26

Washington, DC 20009
(202) 246-6180

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


MELANIE SLOAN, D.C. Bar No. 434584
Citizens for Responsibility and
Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
(202) 408-5565

Counsel for Plaintiff

25
Case 1:08-cv-01468-EGS Document 10-2 Filed 10/30/2008 Page 1 of 3

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 10-2 Filed 10/30/2008 Page 2 of 3

Office of Special Counsel

Patrick J. Fitzgerald Chicago Office: Dirksen Federal Building Washington Office: Bond Building
Special Counsel 2/9 South Dearborn Street. Fifth Floor /400 New York Avenue, Ninth Floor
Chicago, Illinois 60604 Washington, DC NW 20530
(3/2) 353-5300 (202) 5/4-1/87

Please address all correspondence to the Wat~hington Office

July 3, 2008

The Honorable Henry A. Waxman


Chairman, Committee on Oversight and Government Reform
United States I-louse of Representatives
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 of August 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
the Vice President ofthe 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 documents would be protected
by Rule 6(e).

As to interviews which we have determined are not protected by Rule 6(e), we have 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
Case 1:08-cv-01468-EGS Document 10-2 Filed 10/30/2008 Page 3 of 3

correspondence, the Special Counsel team is not responsible for determining whether executive
branch confidentiality 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 Federal
Bureau 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. Nelson
Principal Deputy Assistant Attorney General
Office of Legislative Affairs
Department of Justice
Case 1:08-cv-01468-EGS Document 10-3 Filed 10/30/2008 Page 1 of 11

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)
Case 1:08-cv-01468-EGS Document 10-3 Filed 10/30/2008 Page 2 of 11

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

On July 16, 2008, President George W. Bush asserted executive privilege regarding
documents 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 an
interview 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, “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.” 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 the
Committee 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 as
follows:

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 by
White House officials to members of the media. …

[W]e will be asking three questions: (1) How did such a serious violation of our
national 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).
Case 1:08-cv-01468-EGS Document 10-3 Filed 10/30/2008 Page 3 of 11

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 the
development and use of weapons of mass destruction against the United States”; that she had
taken “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 colleagues
and 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 Executive
Order 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 to
classified 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 the
disclosure 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 applicable
executive order and regulations; and
• There was no suspension of security clearances or any other administrative sanction for
Mr. 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, 110th
Cong. (Mar. 16, 2007) (H. Rept. 110-28).

2
Case 1:08-cv-01468-EGS Document 10-3 Filed 10/30/2008 Page 4 of 11

On July 16, 2007, Chairman Waxman wrote to Special Counsel Fitzgerald to request
documents 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 interviews
outside 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 Department
produced 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 State
Department officials, including the Vice President’s CIA briefer.

Mr. Fitzgerald did not provide any records of interviews with White House officials
because 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 matters


normally 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 nor
the February 2004 clarification delegated to me the authority of the Attorney General to
provide counsel to the White House concerning the assertion of executive branch
confidentiality 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 to
transmit 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 are
attached in Appendix A.
9
Letter from Henry A. Waxman, Chairman, to Patrick J. Fitzgerald, Special Counsel
(July 16, 2007).
10
Letter 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
Case 1:08-cv-01468-EGS Document 10-3 Filed 10/30/2008 Page 5 of 11

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

On December 3, 2007, Chairman Waxman wrote to Attorney General Mukasey to request


that 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, Chairman
Waxman 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 had
numerous 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 the
withheld 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 the
disclosure 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. Libby
stated 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, to
renew 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).
13
Letter 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
Case 1:08-cv-01468-EGS Document 10-3 Filed 10/30/2008 Page 6 of 11

On June 11, 2008, the Justice Department responded to the June 3, 2008, letter by again
refusing 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, unredacted
versions of five interview reports previously shown to Committee staff, and all remaining
responsive 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 would
not “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 future
law 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 additional
access 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 Vice
President’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
Case 1:08-cv-01468-EGS Document 10-3 Filed 10/30/2008 Page 7 of 11

In his July 8, 2008, letter, Chairman Waxman also responded to arguments made by
Attorney 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 documents
with 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 General
Mukasey 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 the
Department 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 argues
that 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 “summarize
deliberations” 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 seeks
documents 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, and
addressee, 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).
24
Letter 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
Case 1:08-cv-01468-EGS Document 10-3 Filed 10/30/2008 Page 8 of 11

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 Vice
President. 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 an
inappropriate 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 asserting
executive privilege in a situation like this. The Vice President had no reasonable expectation of
confidentiality regarding the statements he made to Mr. Fitzgerald and the FBI agents. 27 As Mr.
Fitzgerald wrote the Committee: “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.” 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 — are
subject 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 over
communications 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 President
is 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 party
outside 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
Case 1:08-cv-01468-EGS Document 10-3 Filed 10/30/2008 Page 9 of 11

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

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 President
and 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 foreign
policy or national security.

The Attorney General’s argument that the subpoena implicates the “law enforcement
component” 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 oversight
concerns. 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 involving
White 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 and
Vice 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 law
enforcement 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 even
mentions 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 enforcement
files”); 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 investigative
files” 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 closed
investigative 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
Case 1:08-cv-01468-EGS Document 10-3 Filed 10/30/2008 Page 10 of 11

In addition, the “law enforcement evidentiary privilege” recognized by courts in civil


litigation “do[es] not have the constitutional dimension” of the presidential communications
privilege recognized in United States v. Nixon 32 or the state secrets privilege noted in United
States v. Reynolds. 33 Rather, the privilege is “rooted in common sense as well as common
law.” 34 Thus, the claimed law-enforcement privilege is more akin to the deliberative process
privilege than to the one encompassing presidential communications. 35

Attorney General Mukasey also erred by refusing to produce privilege logs containing
essential information about other withheld documents, such as the authors, addressees, and
subject matters of the withheld documents. This action significantly impedes the Committee’s
ability to evaluate the accuracy of the Attorney General’s characterization of certain withheld
documents as falling within the scope of executive privilege. Short of viewing the purportedly
privileged documents themselves, the only manner in which Congress can properly review the
soundness of an executive privilege claim is through an itemized description of the documents
withheld. Such procedures have been found not to be overly burdensome, intrusive, or
unnecessary, and in fact, courts have held such procedures to be necessary to the fair disposition
of disputes involving the executive branch. 36

In addition to seeking the report of the Vice President’s interview and other responsive
documents that were being withheld, the Committee’s subpoena sought unredacted copies of the
reports of FBI interviews with senior White House officials. These unredacted FBI interview
reports were also withheld from the Committee. This report does not address this aspect of the
President’s assertion of executive privilege because Chairman Waxman and Ranking Member
Davis could not reach a consensus. Additional views submitted by Chairman Waxman and other
members reject the validity of the assertion of executive privilege. On the other hand, the
additional views submitted by Ranking Member Davis and minority Members support the
invocation of the privilege.

IV. CONCLUSION

The Committee on Oversight and Government Reform is the principal oversight


committee in the U.S. House of Representatives. House Rule X grants to the Committee broad

32
418 U.S. 683 (1974).
33
345 U.S. 1 (1953).
34
Black v. Sheraton Corp. of Am., 564 F.2d 531, 542 (D.C. Cir. 1977).
35
Id..; see also In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).
36
See Nixon v. Sirica, 487 F.2d 700, 721 (D.C. Cir. 1973) (“Without compromising the
confidentiality of the information, the analysis should contain descriptions specific enough to
identify the basis of the particular claim or claims”); Black v. Sheraton Corp. of Am., 564 F.2d
531, 543 (D.C. Cir. 1977) (asserting that an affiant must “specify the documents for which
protection is sought, and … explain why the specified documents properly fall within the scope
of the privilege”).

9
Case 1:08-cv-01468-EGS Document 10-3 Filed 10/30/2008 Page 11 of 11

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

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

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 10-4 Filed 10/30/2008 Page 1 of 12

PLAINTIFF’S EXHIBIT C

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 10-4
Attorney General Ashcroft Recuses Himself from CIA Leak Investigation Filed 10/30/2008 Page 2 of 12 10/26/08 12:22 PM

DOJ Investigations Corporate investigation Find Jobs in Health Care Security Clearance Attys
Preparing for investigations: Get Private Investigators in Your Area Find Local & National Job Need Help with Security
your house in order. Can Get the Information You Listings- Post a Resume & Get Clearance? Call Experienced
www.Deloitte.com/us Need! Career Advice Attorneys Now!
www.Superpages.com careers.msn.com www.EmploymentLawGroup.net

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 Attorney
General Christopher Ray. We are here to announce a couple of procedural developments in the
investigation into allegations that the identity of a CIA employee was improperly disclosed to
the media last July.

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

The attorney general, in an abundance of caution, believed that his recusal was appropriate
based 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 appropriate
time, the appropriate point in this investigation.

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

http://www.fas.org/irp/news/2003/12/doj123003.html Page 1 of 11
Case 1:08-cv-01468-EGS Document 10-4
Attorney General Ashcroft Recuses Himself from CIA Leak Investigation Filed 10/30/2008 Page 3 of 12 10/26/08 12:22 PM

By his recusal, of course, the attorney general left to me the decision about how to choose a
counsel, 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 decided
that, 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 and
impartiality. He is an absolutely apolitical career prosecutor. He is a man with extensive
experience in national security and intelligence matters, extensive experience conducting
sensitive investigations, and in particular, experience in conducting investigations of alleged
government misconduct.

I have today delegated to Mr. Fitzgerald all the approval authorities that will be necessary to
ensure that he has the tools to conduct a completely independent investigation; that is, that he
has the power and authority to make whatever prosecutive judgments he believes are
appropriate, without having to come back to me or anybody else at the Justice Department for
approvals. Mr. Fitzgerald alone will decide how to staff this matter, how to continue the
investigation and what prosecutive decisions to make. I expect that he will only consult with me
or 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 other
alternatives. I first considered having the matter handled by Assistant Attorney General Ray and
myself 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 and
impartial. 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 this
department 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 in
regular contact with the agencies and entities affected by this investigation. As part of our
counterterrorism responsibilities, Assistant Attorney General Ray and I work every single day
with the national security intelligence community here in Washington. Mr. Fitzgerald, in
Chicago, does not.

At a time when fighting terrorism is the department's top priority, as it should be, it is
imperative that Mr. Ray and I be able to focus on that responsibility without the complication
that 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 they
have done it. We have a fabulous team of FBI agents working this case, coordinating with some
of our very best career lawyers. I now know in great detail the work that they have done very
quickly 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 has
been working this case, but that's entirely his call.

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

http://www.fas.org/irp/news/2003/12/doj123003.html Page 2 of 11
Case 1:08-cv-01468-EGS Document 10-4
Attorney General Ashcroft Recuses Himself from CIA Leak Investigation Filed 10/30/2008 Page 4 of 12 10/26/08 12:22 PM

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

When I read that, I realized that it describes Pat Fitzgerald perfectly. I once told a Chicago
newspaper 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 the
perfect man for this job.

The attorney general and I agree that all leak investigations must be conducted with energy and
urgency. That is all the more true when the investigation centers on allegations that there has
been a disclosure of national security information. To date this investigation has been conducted
professionally and expeditiously, and I believe it would not be in the public interest for
anything 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 move
forward immediately and to avoid the delay that would come from selecting, clearing and
staffing an outside special counsel operation. In addition, in many ways the mandate that I am
giving to Mr. Fitzgerald is significantly broader than that that would go to an outside special
counsel.

In short, I have concluded that it is not in the public interest to remove this matter entirely from
the Department of Justice, but that certain steps are appropriate to ensure that the matter is
handled properly and that the public has confidence in the way in which it is handled. I believe
the 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 Justice
Department to handle it, and now all the sudden you're appointing Mr. Fitzgerald. What
happened to tip it?

MR. COMEY: Well, I think what the Department of Justice has said to date is that all options
were open; that it was being handled professionally by the career lawyers and FBI agents on the
matter. 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: career
prosecutors working very, very hard on it.

It's just that we reached a point in the investigation where the attorney general and I thought it
was 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 was
going so well?

http://www.fas.org/irp/news/2003/12/doj123003.html Page 3 of 11
Case 1:08-cv-01468-EGS Document 10-4
Attorney General Ashcroft Recuses Himself from CIA Leak Investigation Filed 10/30/2008 Page 5 of 12 10/26/08 12:22 PM

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

What happened is that the attorney general and I have periodically looked at these facts that
have been developed and made a judgment, based on the totality of the circumstances, as to
whether 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 I
said, for the attorney general to step aside -- a conclusion he reached on his own -- and for me
to 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 actual
conflict of interest that arises normally when someone has a financial interest or something. The
issue that he was concerned about was one of appearance. And I can't go beyond that. That's the
reason he decided, really in an abundance of caution, that he ought to step aside and leave me
as 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 role
in this decision. Should this be seen as a sign that the evidence has taken you closer to people
that Mr. Ashcroft has a connection with and that could create at least the appearance of a
conflict? 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 this
judgment based on the totality picture, looking at all the circumstances and facts and evidence
in the case. If you were to speculate in print or in media about particular people, I think that
would be unfair to them. The reason, as you know, that we work so hard -- I've done this for a
long 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 been
worked very, very hard and very, very well, and it reached a point where we simply thought
these 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't
talk about the details of any criminal investigation. Is it at least safe to say that it's the details at
this point that tipped the balance? Is that accurate?

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

http://www.fas.org/irp/news/2003/12/doj123003.html Page 4 of 11
Case 1:08-cv-01468-EGS Document 10-4
Attorney General Ashcroft Recuses Himself from CIA Leak Investigation Filed 10/30/2008 Page 6 of 12 10/26/08 12:22 PM

speculate about.

Yes, sir?

Q: Without getting in the details of people, can you describe sort of the scope of the
investigation in terms of how many agents are working on it? I guess there's another prosecutor
that's been added recently. How many agents, how many prosecutors, and how many people
have been interviewed?

MR. COMEY: That's the kind of detail -- exactly the kind of detail I can't get into. All I can
tell you is that based on my inspection of it, it's been worked well, it's been worked
appropriately, it's been staffed appropriately. But beyond that, I can't say.

Yes, ma'am?

Q: Do you have any sort of timeline about when you think this investigation will be over?

MR. COMEY: I do not. That will be Mr. Fitzgerald's call. He'll be in charge of the matter and
he'll make that judgment.

Q: How will this work from a procedural standpoint? Mr. Fitzgerald clearly is in Chicago, over
500 miles away. How will he lead an investigation that (normally ?) takes place here in
Washington?

MR. COMEY: Well, there are -- I think hourly -- flights, maybe very half-hour, to Chicago.
And he'll get to know those folks.

Q: (Off mike) -- from Chicago? I mean, how will this work?

MR. COMEY: That's his --

Q: How will he juggle it with his duties based in Illinois?

MR. COMEY: Well, that's a call he'll have to make. He understands the priority here. I told
him that my mandate to him was very simple: Follow the facts wherever they lead, and do the
right thing at all times. And that's something, if you know this guy, is not something I even
needed to tell him.

Yes, ma'am?

Q: Can you clarify the timeline a little bit? You said Ashcroft made the decision to recuse
himself and informed you of it. Can you tell us when that decision was made, when he told
you? You said you've been thinking for a couple days on how to proceed. Can you tell us about
that timeline?

MR. COMEY: Well, this has come together really in the last week. The attorney general
entered -- I don't know whether it was entered an order, but a document was created this
morning that memorialized the recusal. It has to be done kind of officially. Once that was done,
I officially became assistant -- excuse me, acting attorney general for the purpose of this case,
and then was in a position to do what I've described. But because we've been discussing this

http://www.fas.org/irp/news/2003/12/doj123003.html Page 5 of 11
Case 1:08-cv-01468-EGS Document 10-4
Attorney General Ashcroft Recuses Himself from CIA Leak Investigation Filed 10/30/2008 Page 7 of 12 10/26/08 12:22 PM

matter and had sort of reached this conclusion over the last week, I had plenty of time to think
about 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 can
tell you is that it was always in his mind that it might be necessary at some point for him to step
away from this, step aside from this, and that it might be necessary to change the way it was
approached, 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 that
he could make the very judgment he made here. And I can tell you none of that acted to delay
this investigation in any way. The attorney general learned enough about the case that at a point
where 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 it
was appropriate for him to step aside, but also reaching the conclusion that it was appropriate to
change 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 my
judgment was, simply because of the subject matter involved here and our duties -- which most
people don't realize, but we spend part of every day working on national security intelligence
stuff -- that it was better for us to be able to focus on that, which is our nation's number-one
priority, and not, at the same time, be making judgments about who to interview and all the
things 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's
overseen some major prosecutions. Where's the line between the contact you two have versus
the kind of contact that he -- he's also fairly well-known, I think, for his work in national
security.

MR. COMEY: He is, but his -- not to say what he's doing now is not real important, but his
role is very, very different. I mean, every day Chris Ray and I are dealing with the key national
security intelligence agencies. Mr. Fitzgerald is not. He may have a case that occasionally
brings him into contact with that, but he's running a U.S. attorney's office, working on
corruption 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 the
FBI, 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,

http://www.fas.org/irp/news/2003/12/doj123003.html Page 6 of 11
Case 1:08-cv-01468-EGS Document 10-4
Attorney General Ashcroft Recuses Himself from CIA Leak Investigation Filed 10/30/2008 Page 8 of 12 10/26/08 12:22 PM

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 being
recused. Why was that decision made? And who and how many people are included in that
recusal?

MR. COMEY: I don't know how many people. The entire -- "personal staff" is not what they
call it, but the entire staff of the office of the attorney general would be recused. And that, I
believe, is fairly standard fare, because they are -- just as my staff, whether they like it or not, is
an 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 all
this came up -- that many of the investigations -- leak investigations are closed without a
suspect ever being identified. Can you tell us if a suspect or suspects, in your term of art, has
been identified in this case, or do you -- are you confident that that is likely to happen in this
case?

MR. COMEY: I can't do that. Just -- and it's not this particular investigation. I would never say
that kind of details on any pending criminal investigation. I just can't do it, for the reasons I
said. We don't want people that we might be interested in to know we're interested in them. We
also don't want to smear somebody who might be innocent and might not be charged. That's
why 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 the
only 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 the
delegation 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 the
media, for example, or if he wants to grant immunity to somebody or if he wants to take an
appeal, has to come for approval to the Department of Justice. Pat Fitzgerald will not, for these
purposes.

http://www.fas.org/irp/news/2003/12/doj123003.html Page 7 of 11
Case 1:08-cv-01468-EGS Document 10-4
Attorney General Ashcroft Recuses Himself from CIA Leak Investigation Filed 10/30/2008 Page 9 of 12 10/26/08 12:22 PM

He is a --

Q: If you don't like what he's doing, you can end it.

MR. COMEY: Well, in theory, if I know what he's doing, in theory I could, yeah. And I'd
better have a darn good reason for doing it, because you'd have your hands in the air.

Yes, sir?

Q: I wanted to ask you an unrelated question about the Code Orange and the terrorism alert. As
we go into the New Year's Eve, can you discuss at all what the current status is, whether you
think threats are diminishing or staying the same or getting more intense? And also if you can
comment at all about the flights from Paris, the Air France flights, and what seems to be a
disconnect between the French, saying that there doesn't appear to be that much of a problem,
and people here saying that they do believe there was a threat on that flight?

MR. COMEY: Okay. All of those questions really are best addressed to Homeland security.
What I can tell you is I think what Secretary Ridge has already said, and that is that we are in a
period of heightened concern, and as he said, I think, that extends into January. Folks shouldn't
think that if the New Year's Eve passes, that we're out of the woods with regard to the
heightened alert. So that remains.

With respect to the Air France flight, that's really not something I could comment on.

Yes, sir?

Q: How was the White House informed about this decision?

MR. COMEY: I contacted each of the general counsels of the agencies that had been affected
in some way or contacted as part of this investigation. That is, I called Defense, State, CIA and
White House Counsel's Office to simply inform them that there was going to be a change in the
prosecutor in charge of this matter, I would announce it at 2:00. I did that in the last several
hours.

Q: But there was no separate consultation with the White House?

MR. COMEY: No. No. All I did was just inform them, as I did, as I said, State, Defense, CIA:
I just want to tell you, here's what I'm announcing at 2:00.

Q: And the attorney general didn't consult with them or inform them personally of his decision?

MR. COMEY: I can't speak to -- I don't believe so. I can't speak to that. I don't think there was
any consultation of the attorney general with those agencies.

Yes, sir?

Q: You mentioned that the -- you felt that Fitzgerald will have a broader -- actually a broader
mandate, broader abilities than an outside counsel. Can you expand on that a little bit? In what
respect will he have a --

http://www.fas.org/irp/news/2003/12/doj123003.html Page 8 of 11
Case 1:08-cv-01468-EGS Document 10-4
Attorney General Ashcroft Recuses Himself from CIA Leak Investigation Filed 10/30/2008 Page 10 of 12 10/26/08 12:22 PM

MR. COMEY: Yes. An outside counsel has a -- the regulations prescribe a number of ways in
which they're very similar to a U.S. attorney. For example, they have to follow all Department
of Justice policies regarding approvals. So that means if they want to subpoena a member of the
media, if they want to grant immunity, if they want to subpoena a lawyer -- all the things that
we as U.S. attorneys have to get approval for, an outside counsel has to come back to the
Department of Justice. An outside counsel also only gets the jurisdiction that is assigned to him
and 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 it
wherever he wants to pursue it.

An outside counsel, according to the regulations, has to alert the attorney general to any
significant event in the case; file what's called an "urgent report." And what that means is just
as U.S. attorneys have to do that, he would have to tell the attorney general before he brought
charges against anybody, before maybe a significant media event, things like that. Fitzgerald
does 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 process
to 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 approval
authorities that rest -- that are inherent in the attorney general; something that does not happen
with 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 alert
situation? 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) -- halfway
through 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 deliberations
about raising that.

More generally, I hope you know what we do, and that is the men and women of the FBI and
all of our agencies are out there working like crazy to try and keep the homeland safe. I can't
answer it other than -- as broadly as that. A lot of people's holidays have not been holidays
because 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't
know exactly where it stands.

http://www.fas.org/irp/news/2003/12/doj123003.html Page 9 of 11
Case 1:08-cv-01468-EGS Document 10-4
Attorney General Ashcroft Recuses Himself from CIA Leak Investigation Filed 10/30/2008 Page 11 of 12 10/26/08 12:22 PM

Eric?

Q: President Bush said, soon after the leak story broke, that he wasn't sure that the leaker would
ever 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, but
I'm not going to do it about this case. All I can tell you is that I'm confident that the facts will
be found professionally and that the judgments will be made by someone with impeccable
judgment 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 is
too 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 make
sure that he gets it. I would expect that because he's already in the Department of Justice, we
already have a team in place, he'll at least be able to draw on some, maybe all, of those
resources and supplement them. He happens to run one of the best U.S. attorney's offices in the
country, and he has senior people with great experience in a host of issues that might be
relevant. 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 what
happens to Mr. Dionne (sp)? Will he work for MR. Fitzgerald? Will he continue to play an
important role in this investigation since he's conducted the majority of the investigation to this
point?

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't
want to prejudge that. It's entirely his call as to how he staffs it. Like I said, I wouldn't be
surprised 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 works
quickly. He understands that justice delayed is not a good thing. So I would expect -- and that's
one 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 be
possible with the alternative.

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

http://www.fas.org/irp/news/2003/12/doj123003.html Page 10 of 11
Case 1:08-cv-01468-EGS Document 10-4
Attorney General Ashcroft Recuses Himself from CIA Leak Investigation Filed 10/30/2008 Page 12 of 12 10/26/08 12:22 PM

MR. COMEY: The answer to that is I don't know. And I really would not presume to tell him
that. 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 able
to prosecute the leaker. That's a pretty high standard of proof. Are you confident that you will
be 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)

http://www.fas.org/irp/news/2003/12/doj123003.html Page 11 of 11
Case 1:08-cv-01468-EGS Document 10-5 Filed 10/30/2008 Page 1 of 5

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. )
__________________________________________)

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.

2. 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.

4. This paragraph is not disputed.

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.


Case 1:08-cv-01468-EGS Document 10-5 Filed 10/30/2008 Page 2 of 5

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.

9. This paragraph is not disputed.

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

2
Case 1:08-cv-01468-EGS Document 10-5 Filed 10/30/2008 Page 3 of 5

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”) .

3
Case 1:08-cv-01468-EGS Document 10-5 Filed 10/30/2008 Page 4 of 5

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 FBI


interview with the Vice President. 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 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

4
Case 1:08-cv-01468-EGS Document 10-5 Filed 10/30/2008 Page 5 of 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. 434584
Citizens for Responsibility and
Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
(202) 408-5565

Counsel for Plaintiff

5
Case 1:08-cv-01468-EGS Document 10-6 Filed 10/30/2008 Page 1 of 1

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. )
__________________________________________)

ORDER

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

Вам также может понравиться