CREW v. DOJ: Re: Valerie Plame: 10/30/08 - CREWs Cross Motion for Summary Judgement

8/7/2019 CREW v. DOJ: Re: Valerie Plame: 10/30/08 - CREWs Cross Motion for Summary Judgement

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND )ETHICS IN WASHINGTON, )

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

)U.S. DEPARTMENT OF JUSTICE , )

)Defendant. )

__________________________________________)

PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT

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

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

authorities.

Respectfully submitted,

/s/ David L. Sobel

DAVID L. SOBEL, D.C. Bar No. 3604181875 Connecticut Avenue, N.W.Suite 650Washington, DC 20009(202) 246-6180

ANNE L. WEISMANN, D.C. Bar No. 298190MELANIE SLOAN, D.C. Bar No. 434584Citizens for Responsibility and

Ethics in Washington1400 Eye Street, N.W., Suite 450Washington, D.C. 20005(202) 408-5565

Counsel for Plaintiff

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


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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND )ETHICS IN WASHINGTON, )

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

)U.S. DEPARTMENT OF JUSTICE , )

)Defendant. )

__________________________________________)

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TODEFENDANTS MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT

OF PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENTINTRODUCTION

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. Fitzgeralds investigation into the leak of Valerie Plame Wilsons 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 DOJs

motion and grant plaintiffs cross-motion for summary judgment.

BACKGROUNDThe CIA Leak Investigation and the Role of Vice President Cheney

As part of Special Counsel Fitzgeralds investigation into the leak of the covert

CIA identity of Mrs. Wilson, the FBI interviewed I. Lewis Libby, the vice presidents chief

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

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

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



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Answer, 19. The leak of Mrs. Wilsons covert identity followed the publication of a New

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

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

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

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

participated in a press strategy to discredit Ambassador Wilsons account. Complaint,

20; Answer, 20.

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

prosecution of Mr. Libby, stated that [t]here is a cloud over what the Vice President didthat 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 didnt 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 Committees investigation into the leak of Mrs. Wilsons 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 FBIs interviews of

the president and vice president, there were no agreements, conditions, and

understandings between the Office of Special Counsel or the Federal Bureau of

Investigation and either the President or Vice President regarding the conduct and use of



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

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

Exhibit (Pl. Ex.) A, at 2.

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

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

the FBIs reports of the Special Counsels interviews with the vice president as well as

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

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

Committee with the subpoenaed documents. Complaint, 24; Answer, 24; Declaration of Steven G. Bradbury (Bradbury Decl.), 4-5. 1

Plaintiffs FOIA Request and DOJs Decisionto Withhold All Responsive Material

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

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

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

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

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

The central document in this dispute is the report of the FBI interviewwith the Vice President. Both the Chairman and the Ranking Member arein agreement that the Presidents assertion of executive privilege over thisdocument was legally unprecedented and an inappropriate use of executiveprivilege.

Draft Report of the Committee on Oversight and Government Reform, U.S. House of Representatives, Regarding President Bushs Assertion of Executive Privilege in Responseto the Committee Subpoena to Attorney General Michael B. Mukasey (Draft CommitteeReport), attached hereto as Pl. Ex. B, at 7.



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Counsel Patrick Fitzgeralds 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. CREWs request was directed to the DOJs

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 inthe leak of Mrs. Wilsons covert CIA identity and the basis for Special Counsel

Fitzgeralds decision not to prosecute the vice president. Complaint, 27; Answer, 27.

By letter dated July 24, 2008, DOJ acknowledged receipt of CREWs FOIA request

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

Notwithstanding that purported decision, DOJ failed to respond to CREWs request within

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

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

moved for a preliminary injunction to compel DOJ to respond immediately to CREWs

request. Based upon DOJs representation to plaintiff and the Court that it expect[ed] to

complete processing of [CREWs] request on or before September 12, 2008, the parties

agreed that CREWs 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

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

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

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

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

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

Exhibit E (attached to Bradbury Decl.). In support of its motion, DOJ asserts that all of this material is exempt from disclosure under FOIA in its entirety. For the reasons set

forth below, CREW opposes the governments motion.

ARGUMENT

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

people to know what their Government is up to. Dept 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. Dept of Justice, 218

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

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

2 DOJ further advised CREW that, notwithstanding the agencys purported decision toexpedite the processing of CREWs FOIA request, responsive documents were not evenreferred to the Office of Legal Counsel, the component apparently responsible for thedisposition of the material, until September 4, 2008 more than 40 days after the agencyacknowledged its statutory obligation to expedite processing. Exhibits D & E (attachedto 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 statutes 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. Dept of Air Force v. Rose , 425 U.S. 352, 361 (1976).

In reviewing a motion for summary judgment under the FOIA, the Court mustconduct 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. Dept 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. Dept of Justice ,

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

I. DOJ Has Failed to Meet the Procedural RequirementsNecessary to Sustain its Burden Under the FOIA

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

established the procedural requirements that an agency seeking to avoid disclosure

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



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withhold information it must provide a relatively detailed justification, specifically

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

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

Inc. v. United States Dept of the Air Force , 566 F.2d 242, 251 (D.C. Cir. 1977) (citations

omitted). 3

In King v. United States Dept of Justice , 830 F.2d 210, 219 (D.C. Cir. 1987), the

court of appeals reviewed the caselaw applying Vaughn and emphasized that

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

merely reciting statutory standards, or if they are too vague or sweeping.To accept an inadequately supported exemption claim would constitute anabandonment of the trial courts obligation under the FOIA to conduct a denovo review.

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

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

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

categorical indication of anticipated consequences of disclosure is clearly inadequate.

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

Here, as we discuss more fully below in the context of DOJs specific exemption

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

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

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

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

3 The Vaughn requirements are typically satisfied through an agencys submission of anaffidavit describing the basis for its withholdings, and providing justifications for redactions, accompanied by an index listing responsive records and indicating the preciseredactions made to the records. We refer to the affidavit and index collectively herein as aVaughn submission.



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any explanation or elaboration, that DOJs ability to conduct future law enforcement

investigations that might require White House cooperation would be significantly

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

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

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

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

inadequacy of DOJs Vaughn submission is apparent, and that shortcoming standing

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

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

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

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

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

countenanced by this or any other court. DOJs 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 governments

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

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

The exemption permits the withholding of records or information compiled for

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

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

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

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

See, e.g ., Juarez v. Dept of Justice , 518 F.3d 54, 58-59 (D.C. Cir. 2008). In light of the



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fact that the Special Counsels investigation and the Libby prosecution are closed

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

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

documents could reasonably be expected to interfere with future enforcement proceedings

that can be reasonably anticipated . . . Defendants Memorandum in Support of its

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

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

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

Natl Sec. Studies v. U.S. Dept of Justice , 331 F.3d 918, 926 (D.C. Cir. 2003), to the effectthat, 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

governments ongoing September 11 terrorism investigation is likely to lead to such

proceedings. Id . (citation omitted). The court approvingly cited the district courts

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

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

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

as in this case. Ctr. for Natl 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

Natl 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. Dept of Justice , 3 F.3d 1533, 1541 (D.C. Cir. 1993), to

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

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

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

between an enforcement action brought on an agencys 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 reasonablyanticipated was intended to account for the possibility that other aliens excluded from

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

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

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

possibility that some vague future Department of Justice criminal investigations involving

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

Decl., 9.

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

courts confronted in Ctr. for Natl Sec. Studies and Mapother , where the government

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

disclosure of the disputed records the ongoing September 11 terrorism investigation,

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

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

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



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investigations involving official White House activities would violate the Supreme

Courts longstanding command that FOIAs exemptions must be narrowly construed.

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

application of Exemption 7(A).

III. Defendant DOJ Has Not Met Its Burden of Showing that theRecords Are Exempt From Disclosure Under Exemption 5

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

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

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

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

raise two initial matters in response to DOJs claims and then address the shortcomings of

the three individual assertions of privilege.

First, we note that the utter inadequacy of DOJs purported Vaughn submission,

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

validity of the agencys claim that portions of the disputed records are exempt from

disclosure under the latter two privileges. DOJs motion thus runs afoul of the D.C.

Circuits repeated admonition that when an agency seeks to withhold information, it must

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

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

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

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

should reject the governments exemption claims.

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

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



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

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

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

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

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

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

outside the White House. 5

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

presidents interview with the FBI) was voluntarily revealed to third parties outside theWhite House. In his July 15, 2008, letter to the president requesting an assertion of

executive privilege in response to the Committees subpoena, Attorney General Mukasey

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

voluntarily with the Special Counsels investigation, agreeing to informal interviews

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

Decl., 3 (the Committees subpoena sought the reports of voluntary interviews of the

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

4 We describe the party in interest as the White House guardedly, as it is not clear fromthe governments cursory Vaughn submission which entity or individual is actuallyasserting the privilege claims at issue here. In his declaration, Mr. Bradbury alternatelyasserts that the Attorney General requested that the President assert executive privilege inresponse to the Committees subpoena, that the President subsequently assertedexecutive privilege, and that the documents at issue in this case have been withheld byOLC. Bradbury Decl., 4, 5, 17. 5 The court made clear that the White Houses waiver applied to executive privilegesgenerally, [and] to the deliberative process privilege in particular. 121 F.3d 729 at 741.



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

disputed interview reports was provided by the vice president without any agreements,

conditions and understandings between the Office of Special Counsel or the Federal

Bureau of Investigation and either the President or Vice President regarding the conduct

and use of the interview or interviews. Letter from Special Counsel Patrick J. Fitzgerald

to Hon. Henry A. Waxman, July 3, 2008 (attached hereto as Pl. Ex. A), at 2. 6 Under these

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

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

Espy , 121 F.3d at 741.7

A. The Records Are Not Properly Withheld Under The Law Enforcement Privilege

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

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

to validate the agencys novel invention a law enforcement privilege that supposedly

trumps FOIAs 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 thekind at issue here. Thus, C. Boyden Gray, White House Counsel during the [first] BushAdministration, and his deputy, John Schmitz, refused to be interviewed by theIndependent Counsel investigating the Iran-Contra affair and only produced documentssubject to an agreement that any privilege against disclosure . . . [] was not waived. Inre Lindsay , 148 F.3d 1100, 1111 (D.C. Cir. 1998) (citation omitted). 7 In the absence of an assurance to the contrary, individuals providing information to theFBI do so recognizing the likelihood that the information may be used in a variety of ways.See, e.g ., U.S. Dept of Justice v. Landano , 508 U.S. 165, 174 (U.S. 1993) (at the time aninterview is conducted, neither the source nor the FBI agent ordinarily knows whether thecommunication 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

Socy, 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. DOJs failure to cite any authority holding that FOIAs Exemption

5 encompasses a law enforcement privilege is not surprising; plaintiffs research has

similarly failed to locate any such authority.

The only case that appears to address the issue is Dean v. FDIC , 389 F. Supp. 2d780 (E.D. Ky. 2005), in which the district court rejected the novel proposition DOJ asserts

here:

The defendants also argue that Exemption 5 encompasses somethingreferred to as the law enforcement privilege, which exists to prevent harmto law enforcement efforts that might arise from public disclosure of investigatory files. The defendants acknowledge that the Sixth Circuit hasnot ruled on the existence of the law enforcement privilege, but assert thattwo sister courts within the Sixth Circuit have recognized its existence. . . . The Court is unwilling to recognize the law enforcement privilege in thepresent case. Neither of the cases cited by the defendants were FOIA casesand a number of the factors to be considered in whether to apply theprivilege are already covered in other FOIA exemptions . . . . Further, theCourt is of the opinion that if this privilege were to be recognized at all, itshould be recognized under Exemption 7, not Exemption 5.

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

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

Dow Jones & Co. v. U.S. Dept of Justice , 724 F. Supp. 985, 989 (D.D.C. 1989)

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

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



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

claims. 8

B. No Portions of The Records Are Properly Withheld

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

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

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

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

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

address each of these issues in turn.

1. The Withheld Material Is Not Predecisional

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

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

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

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

of the vice presidents FBI interview relates to decision[s] the government ha[d] already

made by the time the interview was conducted. DOJs declarant states in support of the

governments privilege claim:

Portions of the withheld documents reflect or describe frank and candiddeliberations involving, among others, the Vice President, the White HouseChief of Staff, the National Security Advisor, the Director of the CentralIntelligence Agency, and the White House Press Secretary. Thesedeliberations concern, among other things, the preparation of the PresidentsJanuary 2003 State of the Union Address, possible responses to media

8 DOJs declarant concedes that [t]he reasons supporting the applicability to thesedocuments of Exemption Five by virtue of the law enforcement privilege are the samereasons that are set forth . . . to support the applicability of Exemption Seven. BradburyDecl., 12.



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inquiries about the accuracy of statement in the Presidents address and thedecision to send Ambassador Joseph Wilson on a fact-finding mission toNiger in 2002, the decision to declassify portions of the October 2002National Intelligence Estimate, and the assessment of the performance of senior White House staff.

Bradbury Decl., 13. All of the referenced matters pre-dated the vice presidents FBI

interview by more than one year. 9

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

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

requirement of being predecisional. Access Reports v. Dept of Justice , 926 F.2d 1192,

1194 (D.C. Cir. 1991).[A]n agencys . . . after-the-fact explanation of a decision will often bedeliberative as the word is used in common parlance, in that it carefullyweighs the arguments for and against various outcomes before announcinga winner. Because the courts have determined that Congress did not intendto exempt such explanatory documents from FOIAs disclosurerequirements, they have denied the privilege in these circumstances byfinding that the documents are not predecisional.

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

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

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

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

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

9 Although DOJs submissions are silent on the date of the interview, it appears to havebeen 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 (VicePresident Cheney was recently interviewed by Fitzgeralds staff) ( available at http://www.washingtonpost.com/wp-dyn/articles/A53351-2004Jun18.html).



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. . . [f]ollow the facts . . .); (Im confident that the facts will be found professionally . . .

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

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

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

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

C. No Portions of the Records Are Properly WithheldUnder the Presidential Communications Privilege

Defendant DOJs failure to meet its burden of justifying the withholding of the

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

communications privilege to withhold unspecified portions of the disputed records.

Review of DOJs cursory justification leads to the inescapable conclusion that the

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

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

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

251. DOJs showing with respect to the presidential communications privilege is, in its

entirety, as follows:

[P]ortions of each of the withheld documents are also protected by thepresidential communications privilege, which protects communications withthe President and confidential communications that relate to possiblepresidential decisionmaking and that involve the President, his senior advisors, or staff working for senior presidential advisors. Portions of thewithheld documents summarize communications among the Vice Presidentand senior presidential advisers in the course of preparing information or advice for potential presentation to the President. In addition, some portionsexplicitly reference a conversation between the President and the VicePresident. Disclosing such sensitive conversations involving the President,the Vice President, and other senior White House officials could impair effective Executive Branch decisionmaking.

Bradbury Decl., 14.



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19

In considering DOJs claims, the Court must proceed on the basis that the

presidential communications privilege should be construed as narrowly as is consistent

with ensuring that the confidentiality of the Presidents decisionmaking process is

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

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

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

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

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

the President. Id ., 365 F.3d at 1123; see also id . at 1115 (there is, in effect, a hierarchyof 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 advisors proximity to the President is not the only relevant factor in assessing

the propriety of a privilege claim. In Espy , the court of appeals described the dual hat

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

communications are being withheld.

Of course, the privilege only applies to communications that these advisersand their staff author or solicit and receive in the course of performing their function of advising the President on official government matters. Thisrestriction is particularly important in regard to those officials who exercisesubstantial independent authority or perform other functions in addition toadvising the President . . . . The presidential communications privilegeshould never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President . If the government seeks to assert thepresidential communications privilege in regard to particular communications of these dual hat presidential advisers, the governmentbears the burden of proving that the communications occurred inconjunction with the process of advising the President.



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20

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

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

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

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

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

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

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

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

presidential decisionmaking.11

The agency clearly has failed to carry its burden of showing that portions of the requested records are exempt from disclosure under the

presidential communications privilege.

IV. Defendant DOJ Has Not Met Its Burden of Showing that Portions of the Records Are Exempt From Disclosure Under Exemptions 6 and 7(C)

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

the Court to balance the individuals right to privacy against the publics interest in

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

6); U.S. Dept 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 DOJs 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 DOJsclaims. As this Court has recognized, there is no authority to suggest that the privilegeextends to documents prepared for the purpose of advising the Vice President alone.United States v. Philip Morris United States, F/K/A Philip Morris , 2004 U.S. Dist. LEXIS24517, 21-22 (D.D.C. Sept. 9, 2004).



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21

activities. Bradbury Decl., 15.

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

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

criminal investigation. That investigation resulted in the conviction of the Vice Presidents

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. Dept 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). DOJs bald assertion of no legitimate public interest does not even attempt to

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

gave rise to the underlying FBI interview.

Likewise, the agencys 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. Libbys

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

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

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

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

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

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



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23

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

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 [affiants] official capacity [as

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

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

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

Partnership Inc. v. Cuomo , 166 F.3d 473, 480 (2d Cir. 1999) (FOIA affidavit on use of records rejected where affiant was not shown to have had personal knowledge of the use of

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

withheld material was properly classified. 14

Mr. Bradburys lack of personal knowledge concerning the CIAs determination to

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

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

investigation involving a breach of CIA security and the disclosure of a covert operatives

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

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

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

14 DOJ asserts that [t]he issue for the Court is whether on the whole record, theAgencys judgment objectively survives the test of reasonableness, good faith, specificityand plausibility in the field of foreign intelligence in which (the agency) is expert and (hasbeen) given by Congress a special role. Def. Mem. at 18 (citation omitted). Here, thejudgment of the agency that classified the material the CIA is not even before theCourt.



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24

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

Id ., 1.8(a); see, generally, American Civil Liberties Union v. Dept of Defense , 2008 U.S.

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

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

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

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

possibility of abuse and the potentially improper classification of information to

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

embarrassment to a person, organization, or agency. Because DOJs declarant has notattested to the propriety of the purported decision classification and, indeed, cannot the

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

exempt from disclosure under Exemptions 1 and 3. 15

CONCLUSION

For the foregoing reasons, DOJs motion for summary judgment should be denied,

and CREWs cross-motion for summary judgment should be granted.

Respectfully submitted, /s/ David L. Sobel

DAVID L. SOBEL, D.C. Bar No. 3604181875 Connecticut Avenue, N.W.Suite 650

15 It should be noted that there is no indication in the record that Attorney GeneralMukasey, Special Counsel Fitzgerald, or any other executive branch official at any timesuggested to the House Committee that material concerning the FBIs interview with VicePresident Cheney was classified. See, e.g. , Draft Committee Report. Serious questionsthus exist as to when, and for what purposes, the determination to classify the material wasmade.



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25

Washington, DC 20009(202) 246-6180

ANNE L. WEISMANN, D.C. Bar No. 298190MELANIE SLOAN, D.C. Bar No. 434584

Citizens for Responsibility andEthics in Washington1400 Eye Street, N.W., Suite 450Washington, D.C. 20005(202) 408-5565

Counsel for Plaintiff



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PLAINTIFFS EXHIBIT A

Plaintiffs Cross-Motion for Summary Judgment

Citizens for Ethics and Responsibility in Washington v. U.S. Department of Justice ,C. A. No. 08-1468 (EGS)

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


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Office of Special Counsel

Patrick J. FitzgeraldSpecial Counsel

Chicago Office: Dirksen Federal Building2/ 9 South Dearborn Street. Fifth FloorChicago, Illinois 60604(3/2) 353-5300

Washington Office: Bond Building/400 New York Avenue, Ninth FloorWashington, DC NW 20530(202) 5/4-1/87

Please address all correspondence to theW a t ~ h i n g t o n

Office

July 3, 2008

The Honorable Henry A. WaxmanChairman, Committee on Oversight and Government ReformUnited States I-louse of Representatives2157 Rayburn House Office BuildingWashington, DC 20515-6143

Dear Mr. Chairman:

I write in response to your letter of June 27, 2008. I incorporate by reference my earlierletters to you of August 17,2007; September 6, 2007; January 18,2008; February 8, 2008; and June18,2008; all addressing the issues raised in your July 16,2007, letter to me.

In your most recent letter, you requested documents concerning "all agreements, conditionsand 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 interviewsof the President conducted as part of the Valerie Plame Wilson leak investigation."

Similarly, you also sought documents concerning "all agreements, conditions andunderstandings between the Office of Special Counselor the Federal Bureau ofInvestigation" andthe Vice President o f the United States "regarding the conduct and use ofthe interview or interviewso f 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 Committeeconcerning witness interviews (and related documents), we have endeavored as to all witnessesinterviewed at any time to separate out interviews that are protected by Rule 6(e) of the FederalRules of Criminal Procedure (the rule providing for grand jury secrecy) and those that are not soprotected. As to the former, we have declined to provide any information whatsoever and have notforwarded responsive documents to other agencies to review as such documents would be protectedby Rule 6(e).

As to interviews which we have determined are not protected by Rule 6(e), we have providedresponsive information to you, after allowing the appropriate executive branch agencies to reviewthe documents consistent with the process described in my earlier letters. As discussed in prior



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correspondence, the Special Counsel team is not responsible for determining whether executivebranch 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 thePresident or Vice President not protected by the rules of grand jury secrecy, there were no"agreements, conditions and understandings between the Office of Special Counselor the FederalBureau of Investigation" and either the President or Vice President "regarding the conduct and useof the interview or interviews."

Very truly yours,

vicAJ!J;;;::;-PATRICK J. FITZGERALDSpecial Counsel

cc: The Honorable Tom DavisRanking Minority Member

Keith B. NelsonPrincipal Deputy Assistant Attorney GeneralOffice of Legislative AffairsDepartment of Justice



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PLAINTIFFS EXHIBIT B





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DRAFTR E P O R T

OF THECOMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

U.S. HOUSE OF REPRESENTATIVESREGARDING PRESIDENT BUSHS ASSERTION OF

EXECUTIVE PRIVILEGE IN RESPONSE TO THE COMMITTEE SUBPOENA TOATTORNEY 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 formerCIA officer Valerie Plame Wilson that the Committee subpoenaed on June 16, 2008, fromAttorney General Michael Mukasey. The principal document in contention is a report of aninterview that Special Counsel Patrick J. Fitzgerald and FBI investigators conducted with VicePresident Richard B. Cheney. This interview was conducted by Mr. Fitzgerald as part of his

criminal investigation into the leak of Ms. Wilsons identity. According to Mr. Fitzgerald, therewere no agreements, conditions, and understandings between the Office of Special Counsel orthe Federal Bureau of Investigation and either the President or Vice President regarding theconduct and use of the interview or interviews. 1

On a bipartisan basis, the Committee finds that the Presidents assertion of executive

privilege over the report of the Vice Presidents interview was legally unprecedented and aninappropriate use of executive privilege. The assertion of executive privilege prevents theCommittee from having access to a complete set of records and thus results in the Committeesinability to assess fully the actions of the Vice President. I. THE COMMITTEES INVESTIGATION

The Committee initiated an investigation in March 2007 into the disclosure by officials inthe White House of the identity of Valerie Plame Wilson, a covert CIA agent. At a hearing onMarch 16, 2007, Chairman Waxman explained the purpose of the Committees investigation asfollows:

In June and July 2003, one of the nations most carefully guarded secrets theidentity of covert CIA agent Valerie Plame Wilson was repeatedly revealed byWhite House officials to members of the media. [W]e will be asking three questions: (1) How did such a serious violation of ournational security occur? (2) Did the White House take the appropriateinvestigative 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).



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On July 16, 2007, Chairman Waxman wrote to Special Counsel Fitzgerald to requestdocuments from the Special Counsel investigation that were relevant to the Committeesinvestigation into the leak of the identity of Valerie Plame Wilson. 8 The Committees letterincluded a request for transcripts, reports, notes, and other documents relating to any interviewsoutside the presence of the grand jury of President George W. Bush, Vice President Richard B.

Cheney, and members of the White House staff.9

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

documents responsive to the Committee. These documents consisted of FBI interviews of federal officials who did not work in the White House, as well as interviews of relevant privateindividuals. 10 Combined with a later production made on June 18, 2008, the Justice Departmentproduced at total of 224 pages of records of Federal Bureau of Investigation interview reportswith 31 individuals, including materials related to a former Secretary, Deputy Secretary,Undersecretary, and two Assistant Secretaries of State, and other former or current CIA and StateDepartment officials, including the Vice Presidents CIA briefer.

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

[M]y responsibilities as Special Counsel encompass making decisions on mattersnormally incident to the execution of prosecutorial authority for the assigned matter,including making determinations of what information is protected by the rules of grandjury secrecy. However, I have concluded that neither the December 2003 delegation northe February 2004 clarification delegated to me the authority of the Attorney General toprovide counsel to the White House concerning the assertion of executive branchconfidentiality interests in response to possible Congressional oversight, or to representsuch executive branch interests in responding to an oversight request. Accordingly, the Office of Special Counsel will complete our work providing responsivedocuments to the White House and other appropriate agencies after assuring ourselvesthat such materials are not protected by grand jury secrecy. We will also continue totransmit to you the materials to which the White House or other agencies do not assertexecutive branch confidentiality interests. To the extent there are materials we forward tothe White House for which the executive branch asserts confidentiality interests, we willnot 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



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Departments Office of Legislative Affairs will correspond with you regarding thoseinterests. 11

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

that he make an independent judgment as the Attorney General about producing the White

House interview reports and the other requested materials.12

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

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

redacted versions of reports of FBI interviews of White House staff, but refused to permit anyaccess 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 requesteddocuments would take place. Through an accommodation process, on March 31 and April 7,

2008, the Department of Justice made available for Committee staff review a subset of thewithheld documents. These documents included redacted reports of the FBI interviews with Mr.Libby, Andrew Card, Karl Rove, Condoleezza Rice, Stephen Hadley, Dan Bartlett, and ScottMcClellan and another 104 pages of additional interview reports of the Director of CentralIntelligence, and eight other White House or Office of the Vice President officials.

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

and other developments raised questions about the involvement of Vice President Cheney in thedisclosure of Ms. Plame Wilsons name and place of employment and the White House responseto this disclosure. For example, the review of Mr. Libbys FBI interview showed that Mr. Libbystated that it was possible that Vice President Cheney instructed him to disseminateinformation about Ambassador Wilsons wife to the press. 15 To assist the Committee inanswering these questions, Chairman Waxman wrote the Attorney General on June 3, 2008, torenew the Committees 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



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In his July 8, 2008, letter, Chairman Waxman also responded to arguments made byAttorney General Mukasey to justify withholding the report of Vice President Cheneys FBIinterview, and advised the Attorney General that the Committee would meet on July 16, 2008, toconsider a resolution citing the Attorney General in contempt unless all responsive documentswith the exception of the FBI interview report of President Bush had been provided to the

Committee or a valid assertion of executive privilege had been made.22

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

II. THE PRESIDENTS ASSERTION OF EXECUTIVE PRIVILEGE

On July 16, 2008, Keith Nelson, principal deputy assistant attorney general at theDepartment of Justice, responded to Chairman Waxmans July 8, 2008, letter. Mr. Nelsonstated: the Attorney General has requested that the President assert executive privilege withrespect to these documents, and the President has done so. 23

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

this subject from the Attorney General himself. The Attorney Generals legal opinion arguesthat executive privilege applies in this case because much of the content of the subpoenaeddocuments falls squarely within the presidential communications and deliberative processcomponents of executive privilege, noting that several subpoenaed interview reports summarizeconversations between the President and his advisors, and other portions summarizedeliberations among the Presidents senior advisors in the course of preparing information oradvice for presentation to the President. 24 The Attorney General further claimed that thesubpoena implicates the law enforcement component of executive privilege because it seeksdocuments from law enforcement files. 25

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

specific description of the documents being withheld from production on the basis of executiveprivilege, including the type of document, subject matter of the document, the date, author, andaddressee, and the relationship of the author and addressee to each other. 26 The Administrationto date has not provided this information to the Committee.

22 Id.23

Letter from Letter from Keith B. Nelson, Principal Deputy Assistant Attorney General,to Henry A. Waxman, Chairman (July 16, 2008).24 Letter from Michael B. Mukasey, Attorney General, to President George W. Bush

(July 15, 2008).25 Id.26 Letter from Henry A. Waxman, Chairman, to Michael B. Mukasey, Attorney General

(Aug. 5, 2008).

6



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III. ASSESSMENT OF THE PRESIDENTS ASSERTION OF EXECUTIVEPRIVILEGE

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 Presidents

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

At its core, the doctrine of executive privilege is intended to preserve the ability of thePresident to receive confidential advice from the Presidents closest advisors. In the case of theFBI interview with the Vice President, there is no legal basis or precedent for assertingexecutive privilege in a situation like this. The Vice President had no reasonable expectation of confidentiality regarding the statements he made to Mr. Fitzgerald and the FBI agents. 27 As Mr.Fitzgerald wrote the Committee: there were no agreements, conditions, and understandingsbetween the Office of Special Counsel or the Federal Bureau of Investigation and either thePresident 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 Presidents interview. There is no precedent holding that summaries of presidentialconversations given to third parties as opposed to the original conversations themselves aresubject to claims of executive privilege. Courts have carved out a presidential communicationsprivilege, but they have limited it quite narrowly to communications had directly with thePresident 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 Administrations refusal to produce the Vice Presidents interview report is particularlypuzzling in light of the position taken by the Office of the Vice President that the Vice Presidentis not an entity within the executive branch. 30 The logical extension of the Vice Presidents

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

28 Letter from Patrick J. Fitzgerald, Special Counsel, to Henry A. Waxman, Chairman(July 3, 2008).

29

See In Re Sealed Case,

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

Department of Justice, 365 F.3d 1108, 1115-1117 (D.C. Cir. 2004).30 See Letter from Henry A. Waxman, Chairman, to Richard B. Cheney, Vice President

(June 21, 2007); Testimony of David Addington, Chief of Staff to the Vice President, HouseCommittee 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 theVice President belongs neither to the executive nor the legislative branch).

7



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

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

Committee is not seeking to examine sensitive questions of foreign policy or national security.Rather, the Committee is seeking information on the role, if any, played by the Vice Presidentand others in the White House in the leak of the identity of a covert CIA officer and what steps,if any, the Vice President and others took to investigate and respond to the leak after it occurred.There is no reason to believe that the Special Counsels interview with the Vice President wentbeyond these questions and into areas relating to presidential decisionmaking about foreignpolicy or national security.

The Attorney Generals argument that the subpoena implicates the law enforcementcomponent of executive privilege is equally flawed. There is no basis to support the propositionthat a law enforcement privilege, particularly one applied to closed investigations, can shield

from congressional scrutiny information that is important for addressing congressional oversightconcerns. The Attorney General did not cite a single judicial decision recognizing this allegedprivilege. Even the Departments 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 SpecialCounsel investigation. 31

Further, the Attorney Generals chilling effect argument that the Committee

subpoena would discourage voluntary cooperation with future criminal investigations involvingWhite House actions contradicts both experience and logic. The previous Department of Justice production to this Committee of the reports of FBI interviews of President Clinton andVice President Gore from the 1998 campaign finance investigation did not deter President Bushand Vice President Cheney from submitting to voluntary interviews with Special CounselFitzgerald in this investigation. Executive officials decisions whether to cooperate with lawenforcement investigations will be shaped primarily by political pressures to be forthcoming andthe knowledge that grand jury subpoenas can issue to compel their testimony if they do notvolunteer 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 Congressof an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C.101, 117, 118 (1984) (referring only to open law enforcement files and open enforcementfiles); Assertion of Executive Privilege in Response to Congressional Demands for Law

Enforcement Files, 6 Op. O.L.C. 31, 31, 33, 34 (1982) (referring only to open investigativefiles and the release of files in the course of the investigation); Position of the ExecutiveDepartment Regarding Investigative Reports, 40 Op. Atty Gen. 45 (1941) (no mention of closedinvestigative files). Moreover, the 1941 opinion by Attorney General Robert Jackson, on whichmany subsequent Department opinions have been based, is fundamentally flawed because it wasbased 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 publicinterest is one for the executive and not for the courts to determine. 40 Op. Atty Gen. at 49.

8



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oversight jurisdiction, including authority to conduct investigations of any matter within thejurisdiction of any standing committee of Congress. 37 The same rule directs the Committee tomake available the findings and recommendations of the committee to any other standingcommittee having jurisdiction over the matter involved. 38 Under House Rule XI, theCommittee is authorized to require, by subpoena or otherwise, the attendance and testimony of

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

The Committees investigation into the alleged White House involvement into theimproper disclosure of the employment status of Central Intelligence Agency officer ValeriePlame Wilson was undertaken pursuant to these authorities. The investigation sought to answerbasic questions about this incident, including (1) how the Valerie Plame Wilson leak occurred,including whether there was a concerted effort to knowingly disclose classified information; (2)whether senior White House officials complied with requirements governing the handling of classified information; (3) whether the White House took appropriate steps to address animproper leak and sanction any individuals involved; and (4) what legislative or other actions

are needed to ensure appropriate identification and handling of classified information by WhiteHouse officials so that such leaks do not occur in the future.

The Committee has been unable to completely investigate these matters, in part, becauseof the Presidents assertion of executive privilege over the report of the FBI interview of VicePresident Cheney. This invocation of executive privilege was legally unprecedented and aninappropriate use of executive privilege. It prevented the Committee from learning the extent of the Vice Presidents role in the disclosure of Ms. Wilsons identity.

37 House Rule X, clause (4)(c).38 Id .39 House Rule XI, clause (2)(m)(1)(B).

10



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PLAINTIFFS EXHIBIT C





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10/26/08 12:22 Pttorney General Ashcroft Recuses Himself from CIA Leak Investigation

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

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DEPARTMENT OF JUSTICE PRESS CONFERENCEWASHINGTON, D.C.

APPOINTMENT OF SPECIAL PROSECUTOR TO OVERSEEINVESTIGATION INTO ALLEGED LEAK OF CIA AGENT IDENTITYAND RECUSAL OF ATTORNEY GENERAL ASHCROFT FROM THE

INVESTIGATION

DEPUTY ATTORNEY GENERAL JAMES COMEYASSISTANT ATTORNEY GENERAL CHRISTOPHER RAY

DECEMBER 30, 2003

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

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

The attorn ey gener al, in an abunda nce of caution, believe d tha t his recusal was appropriatebased on the totality of the circumstances and the facts and evidence developed at this stage of the investigation. I agree with that judgment. And I also agree that he made it at the appropriatetime, the appropriate point in this investigation.

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

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10/26/08 12:22 Pttorney General Ashcroft Recuses Himself from CIA Leak Investigation

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

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

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

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

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

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

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

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

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

not a reflection on the people who have conducted this investigation to date

CREW v. DOJ: Re: Valerie Plame: 10/30/08 - CREWs Cross Motion for Summary Judgement

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