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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,
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
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
Investigation and either the President or Vice President regarding the conduct and use of
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the interview or interviews.” Complaint, ¶ 23; Answer, ¶ 23; Letter from Special Counsel
Patrick J. Fitzgerald to Hon. Henry A. Waxman, July 3, 2008, attached hereto as Plaintiff’s
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
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.
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Counsel Patrick Fitzgerald’s investigation into the leak of the identity of Valerie Plame
Wilson, a covert CIA officer.” CREW explained that its request was coextensive with the
subpoena issued by the Committee to the attorney general on June 16, 2008, for the same
records concerning Vice President Cheney. CREW’s request was directed to the DOJ’s
Office of Information and Privacy (“OIP”), which is responsible for FOIA requests seeking
records of the attorney general, deputy attorney general and associate attorney general.
Complaint, ¶ 25; Answer, ¶ 25; Bradbury Decl., ¶ 6. CREW requested that DOJ expedite
the processing of its FOIA request, pursuant to the FOIA and DOJ regulations, in view of
the particular urgency to inform the public about the role Vice President Cheney played in
the leak of Mrs. Wilson’s covert CIA identity and the basis for Special Counsel
Fitzgerald’s decision not to prosecute the vice president. Complaint, ¶ 27; Answer, ¶ 27.
By letter dated July 24, 2008, DOJ acknowledged receipt of CREW’s FOIA request
and advised CREW that its request for expedited processing had been granted.
Notwithstanding that purported decision, DOJ failed to respond to CREW’s request within
the generally applicable twenty-day deadline for the processing of any FOIA request, 5
U.S.C. § 552(a)(6)(A). CREW initiated this action on August 25, 2008, and promptly
request. Based upon DOJ’s representation to plaintiff and the Court that it “expect[ed] to
complete processing of [CREW’s] request on or before September 12, 2008,” the parties
agreed that CREW’s motion for preliminary relief was moot. Joint Stipulation and
Proposed Order [Docket No. 5] at 1. Despite that representation, DOJ did not respond to
the request until September 18, 2008, when it advised CREW that it had “identified three
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. . . 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
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
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
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
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.)
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543 F. Supp. 2d 83, 93 (D.D.C. 2008) (citation omitted); see also Judicial Watch, Inc. v.
DOJ, 365 F.3d 1108, 1112 (D.C. Cir. 2004) (“The Supreme Court has long recognized that
Congress’ intent in enacting FOIA was to implement ‘a general philosophy of full agency
disclosure.’”).
Agency records requested under FOIA must be disclosed unless they squarely fall
within one of the statute’s nine enumerated exemptions. The exemptions “must be
narrowly construed,” and “do not obscure the basic policy that disclosure, not secrecy, is
the dominant objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
In reviewing a motion for summary judgment under the FOIA, the Court must
conduct a de novo review of the record. 5 U.S.C. § 552(a)(4)(B). In the FOIA context,
“de novo review requires the court to ‘ascertain whether the agency has sustained its
burden of demonstrating that the documents requested . . . are exempt from disclosure
under the FOIA.’” Assassination Archives & Research Ctr. v. Cent. Intelligence Agency,
334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. Dep’t of Justice, 140 F.3d 1077,
1080 (D.C. Cir. 1998)). Under the FOIA, all underlying facts and inferences are analyzed
in the light most favorable to the FOIA requester; as such, summary judgment is only
appropriate where an agency proves that it has fully discharged its FOIA obligations.
Moore v. Aspin, 916 F. Supp 32, 35 (D.D.C. 1996) (citing Weisberg v. Dep’t of Justice,
In Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973), the D.C. Circuit
established the “procedural requirements” that “an agency seeking to avoid disclosure”
must follow in order to carry its burden. Vaughn requires that “when an agency seeks to
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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
(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
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
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.”
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any explanation or elaboration, that “DOJ’s ability to conduct future law enforcement
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
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.
law enforcement purposes . . . to the extent that production of such law enforcement
See, e.g., Juarez v. Dep’t of Justice, 518 F.3d 54, 58-59 (D.C. Cir. 2008). In light of the
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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
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
proceedings.” Id. (citation omitted). The court approvingly cited the district court’s
prospective law enforcement proceeding’ at issue, Exemption 7A has also been extended
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).
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DOJ also cites Mapother v. Dep’t of Justice, 3 F.3d 1533, 1541 (D.C. Cir. 1993), to
support the proposition that Exemption 7(A) protects against interference with
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
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
331 F.3d at 926; and the “likelihood of a challenge . . . [to] an exclusion order” based upon
participation in Nazi activities, 3 F.3d at 1542. Permitting DOJ to withhold the material at
issue here solely to protect against hypothetical interference to some vague “future . . .
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investigations involving official White House activities” would violate the Supreme
Rose, 425 U.S. at 361. The Court should reject the agency’s sweeping and unprecedented
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
raise two initial matters in response to DOJ’s claims and then address the shortcomings of
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
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
Additionally, the latter two claims of privilege (“deliberative process privilege” and
“presidential communications privilege”) must be rejected because the White House has
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waived them.4 It is a basic tenet of privilege law that “any voluntary disclosure . . . to a
third party breaches the [claimed] confidentiality . . . and therefore waives the privilege.”
In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982). Indeed, in a holding that applies
with equal force in this case, the D.C. Circuit found in In re Sealed Case (“Espy”), 121
F.3d 729, 741-742 (D.C. Cir. 1997), that “the White House . . . waived its claims of
privilege in regard to the specific documents that it voluntarily revealed to third parties
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
conceded that “[the President], the Vice President and White House staff cooperated
Decl., ¶ 3 (the Committee’s subpoena “sought the reports of voluntary interviews of the
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.
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It is equally clear that the voluntary disclosure of the information contained in the
disputed interview reports was provided by the vice president without any “agreements,
conditions and understandings between the Office of Special Counsel or the Federal
Bureau of Investigation’ and either the President or Vice President ‘regarding the conduct
and use of the interview or interviews.’” Letter from Special Counsel Patrick J. Fitzgerald
to Hon. Henry A. Waxman, July 3, 2008 (attached hereto as Pl. Ex. A), at 2.6 Under these
circumstances, it is beyond dispute that the White House has “waive[d] [the asserted]
privileges for the . . . information specifically released” to the FBI and the Special Counsel.
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”).
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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
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:
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
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claims.8
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
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
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.
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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
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,
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
9
Although DOJ’s submissions are silent on the date of the interview, it appears to have
been conducted in June 2004. See Susan Schmidt, Bush Aide Testifies in Leak Probe;
Gonzales Appears Before Grand Jury, Washington Post, June 19, 2004; Page A07 (“Vice
President Cheney was recently interviewed by Fitzgerald’s staff”) (available at
http://www.washingtonpost.com/wp-dyn/articles/A53351-2004Jun18.html).
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Given that the withheld information was created more than a year “after the
decision[s] [at issue were] finally reached,” it is not properly subject to a claim of
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)
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
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.
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. . . [f]ollow the facts . . .); (“I’m confident that the facts will be found professionally . . .
by someone with impeccable judgment and impartiality, and that is Mr. Fitzgerald.”).
conducted in the course of a criminal investigation could be anything but “purely factual.”
Defendant DOJ’s failure to meet its burden of justifying the withholding of the
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
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:
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In considering DOJ’s claims, the Court must “proceed on the basis that ‘the
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
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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
among the Vice President and senior presidential advisers in the course of preparing
(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
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
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
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
interviews of federal officials who did not work in the White House, as well as interviews
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
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
Under similar circumstances, the district court for the Eastern District of Virginia
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
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
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
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
Given the subject matter of the material at issue in this case, there exists a
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
CONCLUSION
For the foregoing reasons, DOJ’s motion for summary judgment should be denied,
Respectfully submitted,
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
25
Case 1:08-cv-01468-EGS Document 10-2 Filed 10/30/2008 Page 1 of 3
PLAINTIFF’S EXHIBIT A
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
July 3, 2008
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."
vicAJ!J;;;::;-
PATRICK J. FITZGERALD
Special Counsel
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
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.
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
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:
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 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.
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
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
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
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
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
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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.
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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.
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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.
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?
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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
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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.
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
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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.
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,
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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.
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.
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 --
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.
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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?
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.
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 --
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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.
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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. 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.
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.
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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.
(end transcript)
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Case 1:08-cv-01468-EGS Document 10-5 Filed 10/30/2008 Page 1 of 5
Pursuant to Local Civil Rules 7(h) and 56.1, plaintiff respectfully submits this
3. This paragraph is not disputed, but plaintiff notes that it contains legal
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
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
10. This paragraph is disputed to the extent that the agency’s declarant lacks the
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:
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.
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
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
stated that “[the President], the Vice President and White House staff cooperated
also Bradbury Decl., ¶ 3 (the Committee’s subpoena “sought the reports of voluntary
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
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
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.
Draft Report of the Committee on Oversight and Government Reform, U.S. House of
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,
5
Case 1:08-cv-01468-EGS Document 10-6 Filed 10/30/2008 Page 1 of 1
ORDER
plaintiff’s cross-motion for partial summary judgment, the parties’ responses, and the
records responsive to the Freedom of Information Act request at issue in this action, in