CREW v. DOJ: Re: Valerie Plame: 7/10/09 - CREW's Supplemental Brief (1-3) (Document 18)

8/7/2019 CREW v. DOJ: Re: Valerie Plame: 7/10/09 - CREW's Supplemental Brief (1-3) (Document 18)

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enforcement proceedings that must be at issue, and the manner in which an agency must

demonstrate the requisite interference.

1. Antonelli v. Bureau of Alcohol, Tobacco, Firearms & Explosives and

the Meaning of a Concrete Prospective Law Enforcement ProceedingDuring the hearing on July 18, the Court referenced Antonelli v. Bureau of Alcohol,

Tobacco, Firearms & Explosives, Civil Action No. 04-1180, 2005 U.S. Dist. LEXIS 17089

(D.D.C. August 16, 2009), and directed the parties to address the opinions discussion of a

concrete prospective law enforcement proceeding. Transcript of Motion Hearing (Tr.)

(attached hereto) at 3-4; 71-72. In pertinent part,Antonelli states:

Exemption 7(A) requires a demonstration that disclosure (1) could

reasonably be expected to interfere with (2) enforcement proceedings thatare (3) pending or reasonably anticipated. Mapother v. Department of

Justice, 3 F.3d 1533, 1540 (D.C. Cir. 1993). Reasonably anticipatedmeans a concrete prospective law enforcement proceeding. SeeBevis v.

Department of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986) (quoting Carsonv. United States Department of Justice, 631 F.2d 1008, 1018 (D.C. Cir.

1980)).

2005 U.S. Dist. LEXIS 17089, at *12-*13.

In Bevis, the court of appeals, quoting Carson, stated that exemption 7(A) . . .

cannot justify withholding unless the material withheld relates to a concrete prospective

law enforcement proceeding. 801 F.2d at 1389, quoting 631 F.2d at 1018. Applying that

standard to the material at issue (FBI files concerning the murder of American citizens in

El Salvador), the court found the prospect of relevant proceedings was sufficiently

concrete:

[W]e cannot discount the prospect of further Salvadoran proceedings. Foryears, the accepted wisdom has been that no one in El Salvador would ever

be brought to trial in any of these murder cases. Yet the Salvadoranproceedings have now resulted in a number of convictions, including those

of the two gunmen directly responsible for the AIFLD killings. A StateDepartment cable reporting on these most recent convictions stated that the


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government of El Salvador continues its efforts to fully prosecuteremaining [AIFLD case] defendants. Furthermore, information in the FBI

investigatory records implicates suspects in the AIFLD murders in otherdisappearances and killings under active investigation. We find, therefore,

a sufficient showing of concrete prospective law enforcement

proceeding(s) to support the exemption.801 F.2d at 1389 (citations omitted).

In Carson, the D.C. Circuit identified the source of its reference to a concrete

prospective law enforcement proceeding as the legislative history of the 1974 FOIA

amendments and the Supreme Courts reliance upon that history in NLRB v. Robbins Tire

& Rubber Co., 437 U.S. 214, 230-232 (1978). 631 F.2d at 1018 n.47 (other citations

omitted).1

In Robbins Tire, the Court noted that the interfer[ence] with enforcement

proceedings component of Exemption 7 was added by an amendment offered by Sen.

Philip Hart. The Court reviewed Sen. Harts explanation of his amendment and concluded

that [t]he tenor of this description of the statutory language clearly suggests that the

release of information in investigatory files prior to the completion of an actual,

contemplated enforcement proceedingwas precisely the kind of interference that Congress

continued to want to protect against. 437 U.S. at 232 (emphasis added). Lest there be any

doubt as to Congress intent, the Court cited Senator Harts explicit statement that

Exemption 7(A) would apply whenever the Governments case in court a concrete

prospective enforcement proceeding would be harmed by the premature release of

evidence or information not in the possession of known or potential defendants. Id.,

1

The court in Carson was unable to ascertain whether the investigations undertaken

remain active or whether, as seems more likely given the age of the documents, they havebeen ended, and thus remanded for further clarification. 631 F.2d at 1018.


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citing House Committee on Government Operations and Senate Committee on the

Judiciary, Freedom of Information Act and Amendments of 1974 (Pub. L. 93-502) Source

Book, 94th Cong., 1st Sess., 333 (Joint Comm. Print 1975) (emphasis added).2

The genealogy of the phrase concrete prospective law enforcement proceeding

thus makes plain that Exemption 7(A)s application to a reasonably anticipated

enforcement proceeding requires a showing that the Governments case . . . would be

harmed by the premature release of evidence or information not in the possession of

known or potential defendants. Id. Such a showing can be made only when there is a

clear nexus between the evidence or information at issue and a concrete prospective

enforcement proceeding identified by the government. Thus, inCtr. for Natl Sec. Studies

v. U.S. Dept of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003), on which defendant seeks to

rely, the court of appeals cited the ongoing September 11 terrorism investigation as an

adequate basis for withholding the identities of potential suspects under Exemption 7(A).

See, e.g., id., at 928 (This information could allow terrorists to better evade the ongoing

investigation and more easily formulate or revise counter-efforts.). InMapother v. Dept

of Justice, 3 F.3d 1533, 1541 (D.C. Cir. 1993), another case defendant has cited, the court

2 The Court noted in Robbins Tire that Senator Hart stated specifically that theamendments purpose was to respond to four decisions of the District of Columbia Circuit

giving an expansive reading to Exemption 7. 437 U.S. at 227-228. In each of thesecases, no enforcement proceeding was contemplated, much less imminent. Id., at 229

n.10. As Congressman Moorhead explained to the House, the Senate amendment wasneeded to address recent court decisions that had applied the exemptions to investigatory

files even if they [had] long since lost any requirement for secrecy. Id., at 230 (citationomitted). See also, Campbell v. Dept of Health & Human Servs., 682 F.2d 256, 262 (D.C.

Cir. 1982) (1974 amendment would restore the intent of the Congress that had enacted theoriginal FOIA by rejecting four decisions of this court [which had] applied Exemption 7 to

materials related to investigations that had been terminated and to cases in which noenforcement action was contemplated.) (citations and footnote omitted).


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found an adequate basis to withhold evidence of Nazi war crimes assembled by the Justice

Department to avoid interference with prospective challenges to exclusion orders based

upon alleged Nazi activities, proceedings that were deemed reasonably anticipated. See,

e.g., id., at 1543 (Uppermost in the minds of any persons implicated in [Nazi war crimes]

must be a single question: What evidence of these alleged crimes has survived the war to

fall into the hands of my accusers? An index such as this one would provide the answer.).

Mapotherthus arose under circumstances that bear no resemblance to those present here:

the withholding ofspecific evidence was found to be appropriate because its disclosure

would hamper the Governments case against an identifiable group of potential litigants

(individuals implicated in Nazi war crimes) by prematurely divulging evidence that could

be used against them.3

This review of the relevant legislative history and caselaw makes clear there must

be a direct relationship between the investigative material the agency seeks to withhold and

a specific or concrete proceeding that would be hampered by the release of that specific

information. See Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 870 (D.C.

Cir. 1980) (In determining whether or not the information to be released will interfere

3

In Boyd v. Criminal Division, 475 F.3d 381 (D.C. Cir. 2007), which DOJ oddly cites in

support of its position here, the D.C. Circuit provided a clear example of the kind ofshowing an agency must make in order to establish interference with a concrete

prospective law enforcement proceeding. The court found that sufficient specificityregarding the governments investigation is provided by its identification of the targets of

the investigation: individuals . . . to some degree, related (to), controlled (by), orinfluenced by Boyd, that the investigation at issue involves the ongoing collection of

data and that the withheld records relate to potential criminal proceedings againstindividuals. Id., at 386 (citation omitted). The agency asserted disclosure of the

withheld information would allow [the targets] to avoid arrest and prosecution, andprovide them information that would allow them to change their operations to avoid

detection. Id. (internal quotation marks omitted). That showing is a far cry from theassertions defendant makes here.


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with a law enforcement proceeding it is only relevant to make such determination in the

context of the particular enforcement proceeding.) (quoting remarks of Sen. Hart; citation

omitted). Here, defendant does not even attempt to suggest the information former Vice

President Cheney provided to investigators is in any way related to a reasonably

anticipated or particular proceeding, let alone that disclosure of the specific information

contained in the Cheney interview could interfere with such a proceeding. The Court

should not countenance defendants attempt to stretch the meaning of Exemption 7(A) so

far beyond its established bounds.4

2. Sussman v. United States Marshals Service andSpecific Information About the Impact of the Disclosures

The second case the Court identified during the July 18 hearing, Sussman v. U.S.

Marshals Service, 494 F.3d 1106 (D.C. Cir. 2007), addresses the adequacy of agency

declarations proffered in support of withholdings under Exemption 7(A). There, the

agencys declarant stated the withheld records were relevant to pending grand jury

investigations into the financial activities of plaintiffs associates, and [r]elease of this

information could reasonably be viewed as revealing the focus of the grand jury

investigation. Id. at 1114 (citations omitted). The court held the declaration inadequate,

reasoning:

4

At the June 18 hearing, government counsel conceded that, aside from Mapother,

defendant cannot point to any case in which a court has found [Exemption] 7(A) to beapplicable where there is no investigation or enforce[ment] proceeding actually pending.

Tr. at 8-10. As plaintiff has shown, evenMapother which appears to be unique in itslack of an identifiable, pending investigation relied upon a clear and logical nexus

between the specific investigative material being withheld and a narrowly defined set ofreasonably anticipated proceedings in which the protected information would be relevant

and, if disclosed, detrimental to the governments position. In fact, among the largequantity of records in dispute, the court was able to identify only one document that is

clearly covered by Exemption 7(A). 3 F.3d at 1543 (emphasis added).


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[I]t is not sufficient for an agency merely to state that disclosure wouldreveal the focus of an investigation; it must rather demonstrate how

disclosure would reveal that focus. . . .

[W]e require[] specific information about the impact of the disclosures.

Absent testimony of similar or greater specificity, and without an in camerareview of the documents at issue, courts cannot determine that, as a matterof law, disclosure could reasonably be expected to interfere with

enforcement proceedings.

Id. (emphasis in original; citations omitted). Noting the standard of review in FOIA cases

is de novo a more probing standard of review, id., n.4 the D.C. Circuit remanded the

case and directed the district court to determine whether disclosure of the materials

withheld pursuant to Exemption 7(A) could in fact reasonably be expected to interfere with

enforcement proceedings. Id.

In response to concerns raised by the Court at the July 18 hearing that the

declaration proffered in support of its Exemption 7(A) claim here did not meet the

requirements ofSussman, Tr. at 4, 11-12, the government has now submitted a declaration

executed by Lanny A. Breuer, Assistant Attorney General for the Criminal Division of

DOJ. Declaration of Lanny A. Breuer (Breuer Decl.). As an initial matter, plaintiff

notes any agency declarant would be seriously hobbled in his or her attempt to demonstrate

the requisite interference with an enforcement proceeding for the simple reason that, as

we have shown, the government has failed to identify the requisite concrete prospective

law enforcement proceeding. In the absence of such a proceeding, it is impossible for the

agency to specify how the Governments case in court . . . would be harmed by the

premature release of evidence or information not in the possession of known or potential

defendants. Robbins Tire, 437 U.S. at 232. While much of the vagueness and lack of

specificity in Mr. Breuers declaration flows from that fatal defect in the agencys


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argument, there are other reasons for the Court to reject defendants latest attempt to justify

its withholding of the disputed material.

The Court must consider Mr. Breuers assertions in the context of its de novo

review of the case, a standard that requires little, if any, deference to agency predictions of

harm.

While a court may have to accord considerable deference to agencyexpertise on review of a predictive judgment under [other statutory regimes]

. . . it need not do so when, as here, it is charged with deciding de novowhether disclosure is required by FOIA. . . . [D]eparting from traditional

practice, Congress placed primary responsibility for interpreting FOIA, noton the agencies, but on the judiciary, whose institutional interests are not

in conflict with . . . statutory purpose (of disclosure).

Washington Post Co. v. U.S. Dept of State, 840 F.2d 26, 32 (D.C. Cir. 1988), vacated on

other grounds, 898 F.2d 793 (D.C. Cir. 1990) (quoting Reporters Comm. for Freedom of

the Press v. U.S. Dept of Justice, 816 F.2d 730, 734 (D.C. Cir. 1987); other citations

omitted). Indeed, even in national security cases, where agency determinations are entitled

to some deference, the court must be satisfied . . . that the information logically falls into

the exemption claimed. Gardels v. CIA, 689 F.2d 1100, 1104 (D.C. Cir. 1982) (emphasis

added). Here, the Court should reject Mr. Breuers predictive judgment for a number of

reasons.

a) The Court has indicated it found the earlier declaration of Mr. Bradbury

proffered by defendant to be deficient, inter alia, because [h]e didnt base [his opinion]

upon any experience, and the Court noted it could have carried greater weight for such a

declaration to come from a law enforcement official based upon his or her experiences

. . . . Tr. at 11-12. Like Mr. Bradbury, Mr. Breuer does not claim to have any relevant

law enforcement experience, and certainly does not purport to base his opinions upon any


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such experience.5 Indeed, the declarant does not identify any experience that forms the

basis for his statements.

b) Mr. Breuer does not in any way address the specific circumstances surrounding

former Vice President Cheneys interview with the Special Counsels investigators, nor

attempt to explain the impact of those circumstances on the willingness of White House

officials to cooperate voluntarily in future investigations. Thus, while Mr. Breuer avers

the non-public nature of law enforcement interviews can be a significant factor in

securing the voluntary cooperation of witnesses, and notes it is not uncommon for

prosecutors and law enforcement investigators to inform witnesses that . . . they will

attempt to maintain the confidentiality of information provided, Breuer Decl., 4, he does

not address the fact that Mr. Cheney was given no such assurance of confidentiality,6

nor

does he explain why the provision of such an assurance which he asserts is not

uncommon would be insufficient to facilitate the cooperation of a reluctant witness in a

future investigation.

5

The only experience plaintiff is aware of Mr. Breuer having with law enforcement

investigations involving the White House is his tenure as special counsel to PresidentClinton during the Independent Counsels Whitewater investigation. Mr. Breuer

appeared before the grand jury . . . and invoked Executive Privilege, a claim that wasrejected by Chief Judge Johnson and that the Independent Counsel described as

interposed to prevent the grand jury from gathering relevant information. Referral to theUnited States House of Representatives Pursuant to Title 28, United States Code, 595(c),

Submitted by the Office of the Independent Counsel, September 9, 1998, at 249-250(available athttp://icreport.access.gpo.gov/report/7grounds.htm#L112).

6 As plaintiff previously has noted, there were no agreements, conditions, and

understandings between the Office of Special Counsel or the Federal Bureau ofInvestigation and [Mr. Cheney] 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, attached to Memorandum in Support

of Plaintiffs Cross-Motion for Summary Judgment (Pl. Mem.) as Plaintiffs Exhibit A,at 2.


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c) Mr. Breuer does not address the fact that, on a number of occasions, the Office

of the Vice President provided requested documents to the Special Counsels investigators

with an explicit request for confidentiality. On those occasions, David S. Addington,

Counsel to the Vice President, stated in transmittal letters:

The enclosed documents are furnished for the limited purpose of assisting inthe investigation you are conducting and on condition of confidentiality.

. . . The documents are furnished reserving all legal authorities andprivileges that apply with respect to other governmental entities and private

parties.

Exhibits A, B, C & D (attached hereto). Mr. Breuer does not discuss the significance of

Mr. Cheneys failure to similarly insist his interview with the Special Counsels

investigators was given on condition of confidentiality, nor does he explain why, under

these circumstances, the public disclosure of the interview would discourage other White

House officials from cooperating voluntarily in future investigations.7

d) Mr. Breuer does not address the fact that, on numerous occasions, President

Bush and his Press Secretary publicly committed the White House to cooperate fully

with the Special Counsels investigation. See, e.g., Exhibit E (attached hereto) at 1

(President Bush: I have told our administration people in my administration to be fully

cooperative. I want to know the truth.); Exhibit F (attached hereto) at 2 (Scott McClellan:

The President has directed the White House to cooperate fully, that message was sent as

7

In addition to its significance in the context of the governments Exemption 7(A) claim,Mr. Addingtons reservation of all legal authorities and privileges when requested

documents were transmitted to the Special Counsels investigators also supports plaintiffsassertion that Mr. Cheney waived any privileges to which he may have otherwise been

entitled under Exemption 5 when he voluntarily consented to the interview at issue herewithout any agreements, conditions, [or] understandings . . . regarding the conduct and

use of the interview. See Pl. Mem. at 11-13. Mr. Cheney and his counsel clearlyunderstood that voluntarily providing information to the Special Counsel without an

express reservation of privileges would constitute a waiver of those claims.


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soon as he learned of the investigation. . . . We will cooperate fully with the investigation

and make sure that we preserve the integrity of the investigation.). Mr. Breuer does not

state whether, if a future President were to make a similar repeated public commitment to

full cooperation with an investigation, he believes White House officials would

nonetheless refuse to cooperate with investigators out of concern their interviews might

eventually be disclosed.

e) Mr. Breuer does not address, or attempt to dispute, the widely-held belief that, at

least since Watergate, refusing to cooperate with a law enforcement investigation

stonewalling has not been a viable option for high-ranking public officials. That view

has been expressed by a number of knowledgeable, experienced observers, including

DOJs former Inspector General:

As a practical matter, White House officials including presidents and vicepresidents must cooperate with Justice Department criminal investigations

involving their administrations, noted Michael Bromwich, a former federalprosecutor who investigated White House wrongdoing during the Iran-

contra affair and later served as the Justice Departments inspector general.The alternative to submitting voluntarily to FBI interviews is simple:

officials would invariably receive grand-jury subpoenas and pay a ratherhigh political, if not legal cost if they refused to cooperate. In the real

world, high-level White House officials dont have the choice of notsubmitting to FBI interviews, Bromwich said.

Michael Isikoff and Mark Hosenball, Closing the Door: An unusual new privilege claim

shields Cheney in Plame probe, Newsweek Web Exclusive, July 16, 2008 (attached hereto

as Exhibit G) at 2. Indeed, as the long list of cooperative White House officials identified

by the parties demonstrates, such individuals are likely to continue providing requested

information to investigators, regardless of whether they believe the contents of their

interviews will be made public. Indeed, as plaintiffs research indicates,infra, public

disclosure of such material is the norm.


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In sum, the Court, upon de novo review of Mr. Breuers declaration, should

conclude that the agency has failed on numerous grounds to show that the materials

withheld pursuant to Exemption 7(A) could in fact reasonably be expected to interfere

with enforcement proceedings. Sussman, 494 F.3d at 1114 (emphasis added).

Instances in Which High-Level White House Officials Have Engaged in Interviews

with Law Enforcement Officials Outside the Context of a Grand Jury Subpoena

Through its research of publicly available documents, plaintiff identified the

following White House officials who engaged in interviews with law enforcement officials

and for whom plaintiff could find no evidence of a grand jury subpoena predating their

interviews. See Declaration of Ryan Jham (Jham Decl.) (attached hereto). For the

Courts convenience the individuals are listed with the investigation for which they were

interviewed.

1) Watergate

a) Kathleen Ann Chenow, former secretary to David Young;

b) Charles W. Colson, Special Advisor and Special Counsel to the President;c) Anne Dawson, a secretary at the White House;

d) John Dean, both during and after his tenure as White House Counsel;8

e) John Ehrlichman, former White House Counsel;

f) Fred Fielding, Associate Counsel to the President;g) Robert H. Finch, former Counsel to the President;

h) Leonard Garment, former Assistant to the President;i) H.R. Haldeman, former Chief of Staff to the President;

j) Joan Hall, former personal secretary to Charles Colson;k) Lawrence M. Higby, Deputy Assistant to the President;

l) Richard Howard, Special Assistant to the President;m) Tom Charles Huston, White House Aide;

n) Jeb Magruder, former Special Assistant to the President;o) Fred Malek, Deputy Director of the Office of Management and Budget;

p) Melinda Maury, receptionist to White House Counsel John Erlichman;q) David Young, Special Staff Assistant to the National Security Council.

8 Although John Deans conversations with Watergate prosecutors were initially to be offthe record and no information or leads derived therefore were to be used in the

investigation, these restrictions were later dropped. Jham Decl., 3.


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2) Hamilton Jordan (Allegations of Cocaine Possession)

a) Eleanor Connors, Confidential Assistant to White House Chief of Staff;

b) Hamilton Jordan, White House Chief of Staff;

c) Timothy Kraft, White House Appointments Secretary and Assistant to thePresident;d) Joel McCleary, Deputy Assistant to the President for Political Liaison;

e) Joseph L. Powell, Jr., Press Secretary to the President.

3) Iran-Contra

a) George H. W. Bush, Vice President;b) Donald Gregg, National Security Advisor to the Vice President;

c) Robert McFarlane, National Security Advisor;d) Ronald Reagan, President.

4) Inquiry Into Misuse of Passport Files

a) George H.W. Bush, President.9

5) Eli Segal

a) Eli Segal, Assistant to the President and CEO of the Corporation for National

and Community Service.

6) Monica Lewinsky

a) Bill Clinton, President;b) Sidney Blumenthal, Aide to the President;

c) Betty Currie, Secretary to the President.

7) Vincent W. Foster

a) Hillary Clinton, First Lady;b) Bruce Lindsey, Deputy White House Counsel;

c) Bernard Nussbaum, White House Counsel;d) George Stephanopoulos, Senior Advisor.

8) Clinton-Gore Fundraising Investigation

a) Bill Clinton, President;

b) Al Gore, Vice President;

9

Former President Bush may have sought to protect against the content of his interview

with the FBI from becoming public. Jham Decl., 3.


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c) Harold Ickes, former Deputy Chief of Staff.

9) Bruce Babbitt

a) Loretta Avent, White House Aide;

b) Cheryl Mills, Associate Counsel to the President;c) Jennifer OConnor, Special Assistant to the President.

10) Henry Cisneros

a) Lloyd Cutler, White House Counsel;b) Webster L. Hubbell, White House Liaison to the Department of Justice;

c) Joel Klein, White House Counsels office;d) Leon Panetta, Chief of Staff.

Of the 45 officials listed above, the contents of the interviews of 34 individuals

were made public, in whole or part. Mr. Jhams declaration describes the manner in which

the information was disclosed, and all of the available materials concerning these

interviews are attached thereto as exhibits. Jham Decl., 4.10

CONCLUSION

For the foregoing reasons, and those set forth in plaintiffs previous submissions

and oral argument, DOJs motion for summary judgment should be denied, and CREWs

cross-motion for summary judgment should be granted.11

10 Plaintiff was able to locate references to the cooperation of several former presidentswith investigations, but the references did not indicate whether they testified in response to

a subpoena. Id., 5. In addition, plaintiff notes DOJ in its supplemental filing hasidentified several law enforcement interviews of White House officials that plaintiff did

not locate in its research. Id., 6.11

In light of the information set forth in the declarations of David J. Barron and Ralph S.DiMaio, filed by defendant on July 1, 2009, plaintiff is now able to identify previously

disclosed information that appears to be similar, if not identical, to information thegovernment continues to withhold in this case. To assist the Court in itsin camera

inspection of the disputed material, plaintiff submits herewith the Declaration of James J.Duane IV, which identifies previous disclosures that are likely to bear upon the propriety

of the challenged withholdings. Such disclosures raise the issue of whether any of the


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Respectfully submitted,

/s/ David L. Sobel

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

1875 Connecticut Avenue, N.W.Suite 650Washington, DC 20009

(202) 246-6180

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

Citizens for Responsibility andEthics in Washington

1400 Eye Street, N.W., Suite 450Washington, D.C. 20005

(202) 408-5565

Counsel for Plaintiff

withheld information is already in the public domain, an issue that both Mr. Barron andMr. DiMaio fail to address in their declarations.

Additionally, based upon its review of defendants newly-submitted declarations, plaintiff

is now able to represent to the Court it does not seek the disclosure of the followinginformation, identified in the designated paragraphs of the agency declarations:

1) Those portions of the Special Counsels outline created in preparation for the

Cheney interview that do not include questions asked, responses given, or anyother matter or information actually discussed or exchanged with Mr. Cheney.

Barron Decl., 9.

2) Classified information to the extent it does not include Valerie Plame Wilsonsidentity as a covert CIA agent and does not include information already made

public through the Libby trial, Wilson lawsuit, or other disclosures. DiMaio Decl., 52-65.

3) Mr. Cheneys Social Security number. Barron Decl., 11(a).

4) Name of CIA briefer. Barron Decl., 11(c).

5) Names of FBI agents. Barron Decl., 11(d).


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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBIILITY :

AND ETHICS IN WASHINGTON :

:

Plaintiff, :: Docket No. CA 08-1468

v. :

: Washington, D.C.

U.S. DEPARTMENT OF JUSTICE, : Thursday, June 18, 200

: 3:05 p.m.

:

Defendant. :

-------------------------------x

TRANSCRIPT OF MOTION HEARINGBEFORE THE HONORABLE EMMET G. SULLIVAN

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiff: DAVID L. SOBEL, Esquire

1875 Connecticut Avenue, NW

Suite 650

Washington, DC 20009

MELANIE SLOAN, Esquire

ANNE L. WEISMANN, Esquire

Citizens for Responsibility

and Ethics in Washington

1400 Eye Street, NW

Suite 450Washington, DC 20005

For the Defendant: JEFFREY SMITH, Esquire

ELIZABETH SHAPIRO, EsquireJOHN TYLER, Esquire

U.S. Department of Justice

Civil Division

20 Massachusetts Ave., NW


Case 1:08-cv-01468-EGS Document 18-2 Filed 07/10/2009 Pag


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Appearances continued:

Court Reporter: Crystal M. Pilgrim, RPR

United States District Court

District of Columbia

333 Constitution Avenue, NW

Room 4704


Proceedings recorded by machine shorthand, transcript produced

by computer-aided transcription.



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1 THE DEPUTY CLERK: Civil action 08-1468, Citizens for

2 Responsibility and Ethics in Washington versus United States

3 Department of Justice.

4 Would counsel please identify yourselves for the record?

5 MR. SMITH: Your Honor, Jeffrey Smith for the defense

6 along with John Tyler and Elizabeth Shapiro from the Department

7 of Justice.

8 THE COURT: Good afternoon.

9 MR. SOBEL: Good afternoon, Your Honor, David Sobel

10 for the plaintiff, and with me are Ann Weismann and Melanie

11 Sloan for the plaintiff.

12 THE COURT: All right, good afternoon. All right,

13 Let me hear briefly from plaintiffs.

14 Unless I'm mistaken, there are two cases, before I hear

15 from plaintiff, there are two cases that no one cited to unless

16 I'm mistaken and they're cases from our circuit that I think

17 have a direct bearing on the issues.

18 One is an opinion issued by my colleague Judge

19 Kollar-Kotelly, the Antonelli case. It may be unpublished, I'm

20 not sure, we were able to find it. Antonelli versus Bureau of

21 Alcohol Tobacco Firearms and Explosives.

22 It is a 2005 opinion in which she interprets Mapother and

23 holds that exemption 7a requires a demonstration that quote

24 disclosure could reasonably be expected to interfere with

25 enforcement proceedings that are pending or reasonably



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1 anticipated. Then she further discusses what she means by

2 reasonably anticipated. And drawing on other precedent that I

3 think the parties have alluded to, Bebis and Carson, she says

4 that reasonably anticipated means a concrete perspective, law

5 enforcement proceeding. Concrete perspective which I don't

6 think we have here. But no one found that case or thought it

7 was relevant.

8 The other case again, I don't believe, if I'm mistaken

9 someone tell me, I don't believe anyone cited to Sussman versus

10 United States Marshal Service which is a Circuit opinion, 494

11 Fifth 3rd 1106. If I'm wrong, someone tell me before I start

12 reading from it. I guess I'm right.

13 In the context of exemption 7(a) which is what we're

14 talking about here folks, the affidavits we have approved in

15 the past have all gone a significant distance further than the

16 Keys declaration which in many ways can be compared to the --

17 what's this man's name -- Bradbury.

18 MR. SMITH: Bradbury.

19 THE COURT: Right, to the Bradbury declaration and

20 Judge Brown goes on to say that we require specific information

21 about the impact of the disclosures. And she says absent

22 testimony of similar or greater specificity and without an in

23 camera review of the documents at issue, courts cannot

24 determine that as a matter of law disclosure quote could

25 reasonably be expected to interfere with enforcement



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1 proceedings.

2 Hence, we must vacate the District Court's finding that

3 exemption 7(a) was properly applied.

4 It seems to me those opinions are highly relevant to our

5 discussion. If I understand the government's principal

6 argument, the government principally relies on 7(a) as an

7 exemption, but maybe I'm wrong. Look at those cases, maybe

8 they aren't relevant.

9 MR. SOBEL: Well, Your Honor, I think you're right,

10 but --

11 THE COURT: Right but what? You looked at them and

12 they're not relevant?

13 MR. SOBEL: No, your characterization of the fact

14 that there needs to be a concrete expectation.

15 THE COURT: Well, it's not mine, it's precedent that

16 what if, you know, help form the Court's consideration of this.

17 MR. SOBEL: But I believe that our discussion in

18 reaction to the government's citation of the Center for

19 National Security Studies case gets into that point where the

20 government --

21 THE COURT: I guess my question is why didn't

22 plaintiffs bring these other cases to my attention? Don't

23 these cases help you?

24 One is a Circuit opinion from our Circuit. You rely on

25 other Circuits. You know, it's great reading those cases



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1 sometime but I'm not bound by those cases, I'm bound by what

2 our Circuit says.

3 MR. SOBEL: I believe that is encompassed within the

4 Center for National Security Studies decision.

5 THE COURT: All right, I'm not going to get an answer

6 there. All right, all right, but you agree that those cases

7 are highly relevant, right?

8 MR. SOBEL: As the Court characterizes them, I would

9 agree.

10 THE COURT: Well, I characterize them, I read

11 verbatim from the cases, I didn't characterize them at all.

12 All right, I'll hear from plaintiffs briefly.

13 You know what I'm inclined to do, to deny both motions

14 and send both sides back and make you do some more work. I

15 shouldn't have to do the lawyer's work.

16 MR. SOBEL: Well, Your Honor, I believe that not only

17 7(a) is at issue but also the exemption 5.

18 THE COURT: I'm just focusing on 7(a) right now.

19 That's the government's principal argument 7(a) basically the

20 law enforcement documents even though Scooter Libby could never

21 be prosecuted again. He's not the subject of the

22 investigation. No one suggested that he is the subject of any

23 future investigation or could be.

24

25 Before I hear from plaintiffs, let me ask government



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1 counsel one question. I have to ask you this because these

2 pleadings were filed last fall when there was a different

3 administration in place.

4 I have to -- I don't want to assume anything, but no one

5 has supplemented pleadings, there's a new administration. Am I

6 correct in saying that the new administration supports the

7 arguments previously made by the political appointee Bradbury

8 who filed the declaration and the legal arguments in the Casey

9 declaration, is that correct?

10 MR. SMITH: Yes, Your Honor, the new leadership of

11 the department supports these arguments and this has been

12 vetted by the leadership offices and they do support the

13 argument.

14 THE COURT: Okay. I had to make that assumption but

15 I shouldn't have to make it. Do you plan to file anything or I

16 guess your presence today in supporting your motion is a pretty

17 good indicator that you stand by those arguments made by your

18 predecessors?

19 MR. SMITH: I believe that is correct. We do not

20 normally, you know, update cases that are pending simply

21 because there's a new administration. I mean, this --

22 THE COURT: Sometimes they have a different legal

23 opinion about issues.

24 MR. SMITH: Oh, sure. If it there was a different

25 legal opinion then, of course, we would have updated it.



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1 But, you know, the Department of Justice is an ongoing

2 entity and while you were right that leadership could disagree

3 with prior leadership, I mean, this is a department position.

4 And it's not normal for us to simply update pending papers in a

5 FOIA case or any other kind of case simply because we have a

6 new Attorney General unless, you know, the new leadership had

7 changed or something which isn't the case here.

8 THE COURT: Right, but Bradbury was a political

9 appointee, correct?

10 MR. SMITH: Yes, that's correct.

11 THE COURT: While you're at the podium, let me ask

12 you this question and then I'll hear from plaintiffs.

13 Aside from the Mapother decision, can you point to any

14 case in which a court has found 7(a) to be applicable where

15 there is no investigation or enforceable proceeding actually

16 pending? And I'll add something to that, and no anticipated

17 enforcement proceeding or investigation?

18 We're talking about Scooter Libby, obviously that's what

19 we're talking about.

20 MR. SMITH: Well, Your Honor, let me put the last

21 part aside.

22 THE COURT: No, I want an answer to the last part

23 first.

24 MR. SMITH: The first part about Scooter Libby?

25 THE COURT: Right. That's the investigation we're



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1 talking about, it's over, he was convicted, he was sentenced,

2 his sentence was commuted. He has not been pardoned, he could

3 be at some point in time, but he's never going to be prosecuted

4 again for anything.

5 MR. SMITH: Yes. The investigation that was done was

6 an investigation into how Mrs. Wilson's name came to be

7 published.

8 THE COURT: I understand all of that. Just answer my

9 question, okay.

10 MR. SMITH: Okay. Well, it wasn't a specific

11 investigation of Mr. Libby. Mr. Libby ended up being indicted

12 and convicted of activities that he undertook during the

13 investigation; that is, perjury and obstruction of justice. So

14 you have the right investigation, but it wasn't simply an

15 investigation of Mr. Libby. It was, you know --

16 THE COURT: All right. With respect to the subject

17 investigation that brings us all here today, I need an answer

18 to my question.

19 Can you point to any case and with any Court anywhere in

20 this country or anywhere in this world has found 7(a) to be

21 applicable where there is no investigation or enforcement

22 proceedings actually concretely pending or anticipated?

23 MR. SMITH: Mapother is the case we rely on for that

24 and I'm not aware of any other case.

25 THE COURT: So Mapother is your support?



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1 MR. SMITH: Yes, sir.

2 Would you like me to address the two cases?

3 THE COURT: No, no.

4 You know what, in fairness I asked plaintiff's counsel.

5 Maybe there's a reason why these cases weren't brought to my

6 attention. I would have expected the plaintiffs to bring them,

7 not necessarily -- actually, wait a minute.

8 You have got an obligation to bring to the Court's

9 attention authority that doesn't support position, so why

10 didn't the government bring these cases to my attention?

11 MR. SMITH: Binding authority we would have an

12 obligation.

13 The Antonelli case is not a case that I'm familiar with.

14 That's a District Court case. And we wouldn't have an

15 obligation to bring that because it's not binding, but I'm

16 actually just not familiar with that case. I don't know

17 anything about it.

18 THE COURT: Well, we found it very easily just

19 shepardizing Mapother.

20 MR. SMITH: Okay. The Sussman case --

21 THE COURT: Circuit authority.

22 MR. SMITH: Yes, sir. It is Circuit authority and

23 it's binding authority.

24 THE COURT: You recognize you have an obligation to

25 bring that to my attention?



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1 MR. SMITH: Well, if it were binding on a point of

2 law before the Court, yes. I don't believe that it is. And we

3 certainly weren't trying to hide that case.

4 THE COURT: Why do you think it's not binding, why do

5 you think it's not relevant?

6 MR. SMITH: Well, as I recall, and I'm sure that you

7 looked at it more recently than I have, that was a case where

8 the Circuit Court found that an in camera review would be

9 necessary to see whether 7(a) would apply.

10 THE COURT: Right.

11 MR. SMITH: In this case I don't see -- the law

12 enforcement issue here is very unique and it's very different

13 than I think in Sussman and in most other cases. It's an

14 interest, it's basically a chilling interest that if the

15 Vice-President's interview is released, that could have a

16 chilling effect on future senior leadership.

17 THE COURT: Says who?

18 MR. SMITH: Says the Attorney General Mukasy, that

19 was his conclusion.

20 THE COURT: He didn't file a declaration.

21 Mr. Bradbury filed a declaration. He didn't base it upon any

22 experience, he didn't base it upon anything. He didn't

23 articulate the bases for his declaration. Other than he was

24 designated to follow declaration.

25 So it wasn't Mr. Mukasy who filed the declaration which



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1 arguably could have carried great weight.

2 If the chief law enforcement officer says based on my

3 experience and experience of others in law enforcement, it

4 could have but that's not the case here. Bradbury was a

5 political appointee. I don't know what his experience was. He

6 was appointed to, maybe he was appointed to file this

7 declaration. I don't know what else he did. He's no longer

8 there at OLC. And essentially the government in footnote says

9 I should defer to his declaration.

10 This is not a deferential review. I want to be clear I'm

11 not suggesting that the Attorney General should sign a

12 declaration. I'm not ordering, certainly not ordering him to do

13 anything, but I'm just saying in response to what you just said

14 arguably it could have carried greater weight for such a

15 declaration to come from a law enforcement official based upon

16 his or her experiences with respect to this chilling effect.

17 Otherwise, it's just an assumption this man makes based

18 upon nothing he can point to. He didn't say that he had spoken

19 with the Vice-President, the Vice-President told him in

20 retrospect had I known that, I never would have done this

21 absent a subpoena. So that's the problem the Court finds

22 itself in. There's not a lot said in the declaration other

23 than this will happen.

24 MR. SMITH: Could I address that briefly?

25 THE COURT: Sure.



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1 MR. SMITH: The way the Department of Justice handles

2 FOIA requests is in most cases on a component by component

3 basis and in this case although the plaintiff sent their

4 request to OIP, the Office of Information Policy, it was

5 determined that OLC had the documents that they were looking

6 for so it was transferred to OLC.

7 OLC was the responding component. And so in this case

8 the highest ranking person in OLC at the time was Mr. Bradbury.

9 That is somewhat unusual. Normally in FOIA cases, I'm sure

10 you've seen before relatively low ranking people, FOIA officers

11 who may not be lawyers do the declaration.

12 So this was the highest person in the component. I

13 don't disagree that a declaration from the Attorney General

14 would carry particular weight.

15 THE COURT: I am not arguing on one, I'm not asking

16 for one, I'm certainly not ordering one. I'm just using that

17 as an example that this says a lot.

18 MR. SMITH: I understand. Mr. Bradbury --

19 THE COURT: And maybe would say a lot, maybe it

20 wouldn't.

21 Go ahead.

22 MR. SMITH: I think Mr. Bradbury was interpreting the

23 position of the Attorney General which was the position of the

24 Department of Justice that had been taken in the letter to the

25 President and I think that's binding. When the Attorney



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1 General takes a position on behalf of the department that's

2 binding on lower ranking officials including Mr. Bradbury who

3 was a deputy.

4 THE COURT: Let's put it in context. But what the

5 Attorney General had done essentially though was to advise the

6 President to invoke executive privilege --

7 MR. SMITH: Yes, sir.

8 THE COURT: -- with respect to the request for

9 congressional documents. The documents we are talking about

10 here are a subset of those documents, right?

11 MR. SMITH: Yes.

12 THE COURT: Right. They're not asking about what

13 went into the, the inaugural speech and things. No one is

14 concerned about that at this point.

15 But what he would be talking about is the subset of

16 documents that arguably the declaration of the Attorney General

17 didn't even pertain to.

18 MR. SMITH: I don't agree with that.

19 THE COURT: All right.

20 MR. SMITH: I think the Attorney General --

21 THE COURT: Did the Attorney General, did the

22 President, did the President avail himself of executive

23 privilege with respect to the documents we're discussing today?

24 MR. SMITH: Yes.

25 THE COURT: All right. Has that privilege been



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1 asserted in this case?

2 MR. SMITH: Yes. What the --

3 THE COURT: So it is executive privilege then, is

4 that the government's defense?

5 MR. SMITH: Could I explain it just briefly?

6 What the, in terms of interbranch relations this

7 privilege is often referred to and is in the Attorney General's

8 letter as the law enforcement component of executive privilege.

9 In interbranch relations basically all executive specific

10 privileges like deliberative process, presidential

11 communication are all components of executive privilege.

12 In civil litigation normally that language is not used.

13 Normally you just say the law enforcement privilege, the

14 deliberative process, the President's communications privilege.

15 So it's the same privilege but it is worded a little bit

16 different, but it is a law enforcement privilege, yes.

17 THE COURT: But it's clear from the record the

18 President and no one in the executive branch has clearly

19 asserted executive privilege here. There are the law

20 enforcement exemption and there's certain other deliberative

21 process et cetera, et cetera, exemptions that the government

22 avails itself of but it's not an executive privilege.

23 MR. SMITH: As I say, it's a matter of nomenclature.

24 THE COURT: It's a different analysis though if the

25 executive privilege has been asserted.



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1 MR. SMITH: I mean, a law enforcement privilege is a

2 privilege of the executive branch.

3 THE COURT: Right.

4 MR. SMITH: So in that sense, most people when they

5 think of it, including myself, when they think of executive

6 privilege they are thinking of the presidential communications

7 privilege, the type of thing that was in say Nixon versus

8 United States.

9 THE COURT: I think if the President wanted to invoke

10 executive privilege in this case, it would have been done, it

11 would have been clearly asserted, don't you think? As opposed

12 to these 7(a) exemptions, et cetera, et cetera.

13 Just as it was clearly asserted with respect to the

14 congressional request for documents, correct?

15 MR. SMITH: I think it's fair to say that the

16 President has not invoked executive privilege in this case but

17 that we are relying on the law enforcement privilege --

18 THE COURT: Right, I understand that.

19 MR. SMITH: -- as set forth as well as the common law

20 enforcement privilege in this Circuit.

21 THE COURT: All right. Is there some reason why this

22 Court should not order an in camera inspection of the

23 documents?

24 MR. SMITH: The only reason I can think of it would

25 be unhelpful in analyzing the Attorney General's prediction as



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1 to what --

2 THE COURT: It would be unhelpful if the Court looked

3 at the documents?

4 MR. SMITH: I believe so. But --

5 THE COURT: You have to really help me out on that

6 one. If I really reached out to look at the documents, it

7 wouldn't help the Court resolve the issues?

8 MR. SMITH: In this case, I don't think so, but I am

9 more than willing --

10 THE COURT: Okay. No, no, but tell me what's your,

11 tell me what your reason is so I'm interested now. I'm really

12 interested in the in camera review.

13 MR. SMITH: The reason is --

14 THE COURT: No, seriously. You tell me, I want to

15 know why it wouldn't help me if I look at the documents?

16 MR. SMITH: The Attorney General's prediction is

17 based on the fact that simply by allowing a voluntary interview

18 in a Department of Justice investigation to become public, to

19 become used in the papers, to become used by the

20 Vice-President's political enemies perhaps that would chill

21 future Presidents and Vice-Presidents from being candid in

22 future law enforcement operations.

23 THE COURT: But what is that based on?

24 MR. SMITH: That's based on his expertise as the

25 Attorney General, and I think that knowing the specifics in



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1 this particular document.

2 THE COURT: But that's the whole point, he's not the

3 declarant, Bradbury is. He's long gone, you know, he was the

4 political appointee, he didn't base his declaration on any

5 experience or anything else.

6 But I'm really intrigued though why an examination, to

7 me as a trial judge, it seems to me that viewing the documents

8 would be the better part of this because that way I could avoid

9 hopefully committing error by looking at the documents and

10 saying I've seen the documents, and indeed the documents, in my

11 view the documents supports the Government's invoking exception

12 7(a)53 or whatever it is, but you don't think that that would

13 lead me with that conclusion?

14 MR. SMITH: Your Honor, I am more than happy to

15 provide them in camera as soon as I can figure out how to

16 handle the secret classification, I am more than willing. I

17 just don't --

18 THE COURT: You just don't think it would be helpful

19 though?

20 MR. SMITH: I don't think it's helpful in analyzing

21 the Attorney General's expertise.

22 THE COURT: So I'm in a better position to analyze

23 the issue without looking at the documents?

24 MR. SMITH: No, I don't think that you are in a

25 better position.



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1 THE COURT: Wait, wait. I am not in a better

2 position by not looking, but it wouldn't be helpful if I did

3 look at them?

4 MR. SMITH: No, sir. It's based on the Attorney

5 General's prediction that by simply giving someone's candid

6 interview out to the public that that's going to deter other

7 high ranking government officials from giving candid

8 interviews.

9 But it's not the specific content of this interview that

10 is embarrassing, so it's more, it's a process issue that the

11 Attorney General, the former Attorney General found to be a

12 possible chill on future cooperation that they might require

13 for example, they might demand a grand jury secrecy.

14 THE COURT: The government has also invoked other

15 exemptions 5.3 and 6. Would examination of the documents

16 assist the Court or will it not be helpful with respect to an

17 analysis of those exemptions?

18 MR. SMITH: I think it might assist the Court with

19 regard to the presidential communications privilege and the

20 deliberative process privilege and the 6 and 7(c).

21 I don't know that the Court would be able to or that I

22 or any lawyer without more security knowledge would be able to

23 judge the 1 and 3 exemptions, but I, you know, I would leave it

24 to you.

25 THE COURT: It seems to me though that the



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1 government, if I take this step of reviewing the documents in

2 camera, it seems to me before I do that the government has some

3 work to do with respect to -- what is it 76 documents, 67 --

4 the documents to essentially everything that the government

5 seeks protection, the government has to articulate what that

6 exemption is and the rational for it, what's troubling about

7 the Bradbury declaration is page after page he says portions of

8 this and portions of that and, you know, I don't know what he's

9 talking about. But the government, I just don't want to, you

10 know, have these documents dumped on my desk without some sort

11 of further written analysis with regards to what portion of the

12 documents are indeed protected by which exceptions.

13 MR. SMITH: There's only three documents, it may be

14 about 70 pages, so it's not like a ton of documents.

15 THE COURT: All right, 70 pages, okay, same thing

16 though because they say portions of the document, that's

17 throughout his declaration.

18 MR. SMITH: Okay. So you would --

19 THE COURT: I mean, I'm not going to get the

20 documents and then try to figure out which one of these

21 portions is protected and which ones should be segregated,

22 that's not my job to do, it would be the Government's job.

23 MR. SMITH: So you would be surmising an order to

24 broaden in camera with markings as to which exemptions apply

25 where?



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1 THE COURT: Absolutely, and the reason for it and not

2 just the deliberative process here and, you know, law

3 enforcement, would that be helpful to the Court?

4 MR. SMITH: It could be.

5 THE COURT: You sound reluctant there.

6 MR. SMITH: I think it could be of assistance, sure.

7 THE COURT: I mean, as opposed to saying absolutely,

8 Judge.

9 MR. SMITH: Absolutely, Judge.

10 THE COURT: No, seriously. I'm kind of puzzled

11 though because I would think that you would welcome the

12 opportunity because in your view it should be a home run,

13 absolutely, we welcome it, we'll do it and once you read the

14 documents, we assume, we have every reason to believe that

15 you'll agree with the government's position.

16 MR. SMITH: Well, I do on most of these exemptions,

17 but as I say, I don't know that one can evaluate the Attorney

18 General's predictive law enforcement expertise based on what is

19 in this particular document. It's based on his --

20 THE COURT: Then that's problematic for the

21 government though if I can't do that.

22 MR. SMITH: Well, in our view the Attorney General of

23 the United States warrants some deference on his views on law

24 enforcement policy even by the Court.

25 THE COURT: I would probably agree with you



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1 wholeheartedly. All right. I'll bring you back.

2 Thank you.

3 MR. SMITH: Thank you.

4 THE COURT: Let me hear from plaintiffs briefly.

5 MR. SOBEL: Your Honor, first of all, I think that

6 the Court has accurately touched upon one of the evidentiary

7 problems here which is that the Attorney General's views are

8 not before the Court. It's Mr. Bradbury's declaration.

9 THE COURT: But counsel said he's interpreting the

10 Attorney General's views. I mean, is that clear from the

11 declaration?

12 MR. SOBEL: It's not really clear. Mr. Bradbury is

13 really just making reference to the Attorney General's advice

14 to the President in terms of the President's invocation of

15 executive privilege to the congressional committee. So it's a

16 couple of times removed here in terms of the, you know, what

17 the position of the executive branch is. I mean, it seems to

18 be derivative at best. But in any event --

19 THE COURT: Isn't it fair though to say that Bradbury

20 was, as counsel argues, attempting to in a declaration say what

21 the Attorney General meant when he advised the President to

22 invoke the executive privilege?

23 MR. SOBEL: Yes, but ultimately, Your Honor, there's

24 a more serious problem.

25 I think that the Court also touched upon this which is



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1 the Court has the authority to conduct a de novo review of this

2 matter. There isn't any requirement to defer to even the

3 Attorney General's position with respect to this material. In

4 fact, even if the Attorney General's position --

5 THE COURT: There's no case from our Circuit that

6 sanctions a deferential view here. But should the views of the

7 Attorney General be given some deference though as chief law

8 enforcement officer?

9 MR. SOBEL: Well, some, but not when they fly against

10 logic and common sense which is the case here.

11 So I'd like to if we can talk a little bit about this

12 chilling effect that the government relies on. Because their

13 discussion is completely devoid of the real world circumstances

14 that are present in this case that I think really --

15 THE COURT: What the Government's concerned about is

16 future investigations which looking at the past, the past law

17 is a predicator of what we can expect in the future I guess.

18 Looking at the past and the fact that there have been

19 investigations involving the executive branch high level, high

20 ranking officials, President, Vice-President, the government is

21 saying basically this could happen in the future, Judge.

22 What we're concerned about is someone not having the

23 protection of 6, Rule 6 and basically saying subpoena me for

24 information, I'll go before the grand jury and it will never be

25 released.



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1 We're concerned about the ability of the President

2 and/or Vice-President being able to with some confidence that

3 their declarations unsworn, in a casual conversation with the

4 prosecutor will never be released, we're concerned about the

5 chilling effect that a release in this case will have on that.

6 Why is that so unreasonable?

7 MR. SOBEL: Well, I think that allover chill would be

8 what Vice-President Chaney did in this case which was for

9 political reasons, for purposes of appearances, the Bush

10 administration wanted to give the impression that it was an

11 open book. It had nothing to hide.

12 The election was coming, this interview took place in

13 June 2004. And the White House position at this time was

14 nobody in the White House had anything to do with the leak of

15 Plame's covert identity.

16 The President said that if any member of his

17 administration was involved, they would immediately be removed

18 from the administration, so the position of the administration,

19 the political position was we have nothing to hide.

20 So the Vice-President voluntarily goes to the interview

21 as the Special Counsel Fitzgerald has said and it's the most

22 important fact that is in this record. That the Vice-President

23 places no conditions, understanding or agreements with respect

24 to the use of the information that he was sharing with the

25 investigators. Those are the facts that are present here and



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1 if the question is a chilling effect, I think we know that in

2 the past in other White House officials under these

3 circumstances have appeared before a grand jury. As the D.C.

4 Circuit recounted in the In Re: Lindsey case, C. Boyden Gray

5 when he was White House counsel in the first Bush

6 administration spoke to the special counsel but placed

7 conditions on the use of the information for the express

8 purpose of ensuring that any privileges were not waived by

9 virtue of his cooperation with that investigation.

10 Mr. Chaney is a very savvy individual. If he wanted to

11 protect the confidentiality of this information and we know

12 that he knows how to protect confidentiality of information

13 when he wants to, he would have done so, he would have known

14 what he, the steps that he needed to take and he didn't take

15 them. And again, it was for a, it was for a calculated

16 political purpose to make the argument that he had nothing to

17 hide, the Bush administration was an open book with respect to

18 this administration.

19 And that is now the circumstances that the government

20 finds itself in, in attempting to protect the confidentiality

21 of information which at the time it was disclosed had any

22 confidentiality claims waived.

23 So I think the most important factor in this case is the

24 waiver argument that plaintiff has made.

25 THE COURT: Did congress, to your knowledge did



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1 congress ever get these documents to your knowledge?

2 MR. SOBEL: To my knowledge they have not.

3 I also want to note speaking of congress --

4 THE COURT: Is that search for documents by congress

5 still ongoing? Is congress still pursuing the documents that

6 we're discussing today?

7 MR. SOBEL: I'm not aware that there is any ongoing

8 congressional efforts to obtain the material, Your Honor.

9 THE COURT: Do you agree or not that executive

10 privilege has been asserted here?

11 MR. SOBEL: In the context of the FOIA exemptions I

12 think exemption 5 encompasses claims that vis-a-vis a

13 congressional request we would think of in terms of executive

14 privilege. But those are encompassed within the claims that

15 the government is making under exemption 5. But again, we feel

16 very strongly that those claims have been waived under the very

17 specific circumstances of this case.

18 Where the Vice-President --

19 THE COURT: I disagree with you with respect to

20 waiver. What's wrong with the declaration of Bradbury,

21 incomplete?

22 MR. SOBEL: I think so. I mean, we devoted a

23 substantial part of our brief to talk about the well, the well

24 established Vaughn requirements and how this declaration

25 clearly is deficient in terms of the level of specificity that



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1 is required.

2 You know, in addition to the lack of specificity, I

3 think it can be fairly characterized as conclusory with respect

4 to all of the exemption claims that we're talking about.

5 THE COURT: When you say conclusory, why?

6 MR. SOBEL: For instance, the question of this

7 chilling effect. Without any real analysis and recognition as

8 I say of the fact that in the past executive branch officials

9 have appeared before grand juries. They have when meeting with

10 special prosecutors placed conditions on their cooperation.

11 Without discussing that history and that background and

12 just to make the conclusory assertion that disclosure of this

13 material would chill future cooperation on the part of White

14 House officials, you know, I think leaves the, in effect

15 misleads the Court by --

16 THE COURT: Why is that so patently unreasonable? I

17 mean, if I rule that these documents should be produced, why is

18 it so unreasonable that the incumbent Vice-President or one ten

19 years from now wouldn't think twice about having an informal

20 interview with the prosecutor as opposed to saying I'm not

21 going to do that.

22 MR. SOBEL: Well, I don't know. I mean, there is no

23 suggestion --

24 THE COURT: Subpoena me and I'll go before the grand

25 jury.



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1 MR. SOBEL: I don't know that the word informal

2 really comes into the record, Your Honor. This was an

3 interview with the FBI, and I think certainly if it was found

4 that there was any misinformation that was provided, perjury

5 liability would certainly be at issue.

6 THE COURT: I'm sorry, when I say informal I meant

7 without subpoena, without attempts to force discussion, it was

8 basically an invitation I assume to speak with the special

9 prosecutor.

10 MR. SOBEL: It was an invitation and whatever his

11 reasons and I believe they were political, Mr. Chaney chose not

12 to place any conditions on his sharing of information. Unlike

13 as the record shows C. Boyden Gray during the first

14 administration when he cooperated with the Iran Contra special

15 prosecutor, he did see fit to place conditions on his interview

16 with the special prosecutor.

17 So again, Mr. Chaney made the decision he made for

18 whatever reasons he made them, but I don't think that can be

19 used now to become, you know, this overarching principal in

20 terms of White House cooperation with law enforcement

21 investigations.

22 I think it's at least been established since the

23 Watergate era that whether they want to cooperate voluntarily

24 with a criminal investigation or not, White House officials

25 from the President on down can be compelled to do so.



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1 So I don't understand the argument that disclosure of

2 this information under the circumstances present here would in

3 some way interfere with future investigations. Even, you know,

4 let's set aside this other question of whether --

5 THE COURT: Would you answer me any differently if

6 Chaney was still in office?

7 MR. SOBEL: I don't think so. I don't think that has

8 any real significance. I think there are a couple of parts of

9 the 7(a) argument that are deficient. One is as the Court

10 initially discussed. I apologize for not having brought that

11 authority to the Court's attention. There's no concrete basis

12 for believing that there are future proceedings of the kind

13 that the courts have required. But even if there was, we then

14 have to look at the chilling effect.

15 THE COURT: What does that mean, future proceedings?

16 Does that mean involving Plame and Libby and Chaney or does

17 that just mean future proceedings involving a Vice-President?

18 MR. SOBEL: Well, I don't think that it can be read

19 that broadly to mean any investigation that might involve a

20 future Vice-President or a future White House official. That's

21 the government's position, that it can be that open ended.

22 THE COURT: That would be a narrow focus though. I

23 mean, those type of investigations don't as far I know occur

24 that often. So we're not talking about a broad sweeping.

25 MR. SOBEL: But then we can't reasonably anticipate



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1 them as being an upcoming investigation and the kind of

2 concrete showing that the Court has noted the D.C. Circuit

3 requires.

4 THE COURT: What does she mean by concrete showing?

5 What does our Circuit, what do the cases mean when they talk

6 about a concrete showing?

7 MR. SOBEL: Again, I believe that the cases that show

8 where you start to get close to the line are Center for

9 National Security Studies and Mapother. And in both of those

10 cases there was a clear nexus between the closed investigation

11 or the previous investigation and what the courts were

12 referring to as the reasonably anticipated future proceeding.

13 In Center for National Securities Studies it was the

14 then ongoing larger post September 11th, the anti terrorism

15 investigation. So that was clear, it was identifiable.

16 In Mapother --

17 THE COURT: Is it Mapother? I was calling it

18 Mapother.

19 MR. SOBEL: You might be right, Judge.

20 THE COURT: I don't know, what's the government's

21 view on that? No, seriously, what is it? I mean, you like to

22 pronounce these things correctly. Is it Mapother?

23 MR. SMITH: We pronounce it Mapother.

24 THE COURT: Okay, we have three different. All

25 right.



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1 I'll defer to the government.

2 MR. SOBEL: In Mapother, the investigation was the

3 Kirkwall Hime exclusion proceeding concerning the Justice

4 Department's investigation of Nazi war crime activity, and the

5 reasonably anticipated future proceeding in that case was other

6 exclusion proceedings on the basis of Nazi activity.

7 THE COURT: So there was a nexus to something else?

8 MR. SOBEL: There's a clear nexus, we're talking

9 about the same statutes. We're talking about the same kind of

10 activity.

11 Here the Government's argument would apply to a murder

12 in the White House, the use of drugs in the White House.

13 Bribery in the White House. And it's just too open ended.

14 If the Court were to accept that rational, we would be

15 carving out White House activity for special treatment. We

16 would basically be saying that White House officials are above

17 the law and whereas in every other kind of case, we require a

18 clear concrete nexus. So long as you work in the White House

19 we're just going to say that nothing involving investigations

20 that you're involved in can be disclosed because there might be

21 some vague future chilling effect. The case law just doesn't

22 support that broad application.

23 THE COURT: I may stand corrected, and I have

24 probably been corrected with respect to Sussman. Sussman

25 actually did say that it's not absolutely required in camera



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1 review but there must be a specific explanation for harm that

2 disclosure would bring.

3 And that's -- we don't have that here, do we?

4 MR. SOBEL: No. And that gets us to the question of

5 in camera inspection which I would like to weigh in on, Your

6 Honor.

7 THE COURT: Why should I be enthusiastic now? The

8 government tells me, Judge, at the end of the day it may help

9 you or may not help you.

10 MR. SOBEL: Or make you even less enthusiastic by

11 telling you that it isn't necessary.

12 Their legal rational doesn't have the degree of merit

13 that would require the Court to take a look at the documents.

14 The in camera review is really a factual, a review of the

15 factual material.

16 The Court doesn't need to get there because of the

17 deficiency of the legal position of the government in this

18 case.

19 THE COURT: Let's make it even easier. I mean, you

20 agree that the documents are indeed law enforcement documents

21 7(a)?

22 MR. SOBEL: Yes, they were compiled --

23 THE COURT: So I don't need to review 70 pages of

24 documents to reach that conclusion. That's not controverted.

25 MR. SOBEL: No, understood.



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1 THE COURT: So then what would be the purpose of

2 reviewing these documents?

3 MR. SOBEL: I'm not sure, Your Honor. The only thing

4 that I could identify is and again, it gets back to the

5 deficiency of the Bradbury declaration.

6 The problem, one of the problems here is this question

7 of the withholding of some material; for instance, the

8 classified material where they describe that as portions of the

9 documents have been withheld.


11 MR. SOBEL: This isn't a case where we're looking at

12 a document and we can see the redactions and we can say okay,

13 we see that three sentences here are missing and two sentences

14 over here. We don't see anything.

15 THE COURT: The name of a confidential informant or

16 stuff like that, that's not here at all.

17 MR. SOBEL: Right.

18 THE COURT: So you have to guess at what the portions

19 are.

20 MR. SOBEL: Under 7(a) they are withholding

21 everything in its entirety.


23 MR. SOBEL: So we don't see where these portions are.

24 THE COURT: What difference does it make though if

25 you agree that these are all law enforcement documents, what



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1 difference does it make which portions are being withheld?

2 MR. SOBEL: Well, because they haven't met the second

3 -- they've met the threshold but they haven't met the harm

4 standard which is that disclosure would interfere --

5 THE COURT: So I have to review the documents to see

6 whether or not there's harm?

7 MR. SOBEL: I don't think so.

8 THE COURT: If the harm deals with something that may

9 or may not happen in the future and has nothing to do with

10 Chaney, Libby or Plame at all then there is no harm, there is

11 no concrete expectant harm.

12 MR. SOBEL: That's correct. There's no chilling

13 effect for the reason I cited where like Mr. Gray a future

14 White House official could ask for a confidentiality when he

15 meets with the special prosecutor or they could be resistant

16 and say you will have to give me a grand jury subpoena. We've

17 certainly seen that occur in the past as well.

18 THE COURT: Why should we require that of a

19 Vice-President or a President?

20 MR. SOBEL: Well, it's happened before.

21 THE COURT: Yeah.

22 MR. SOBEL: It is not as if this is unprecedented.

23 As I said before, going back to the Watergate period

24 we've seen that cooperation can be compelled. So to suggest

25 that there would be this interference if there wasn't



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1 voluntarily cooperation, I just don't think that there's any

2 merit to that argument.

3 THE COURT: The argument probably is that, Judge,

4 absent this opportunity to meet pursuant to an invitation

5 you're setting up a system whereby discussions with either a

6 President or Vice-President have to be compelled.

7 Do we want that in our society?

8 MR. SOBEL: I don't think that's true. Because I

9 think the Boyd and Gray example shows that all Mr. Chaney would

10 have had to have done as Mr. Gray had done was say Mr.

11 Fitzgerald, I'm very happy to meet with you. However, by

12 virtue of doing so, it must be understood that I am not waiving

13 any privilege claims and that was not done.

14 THE COURT: That was not done here?

15 MR. SOBEL: Plaintiff's Exhibit A attached to our

16 cross motion is Mr. Fitzgerald's letter to Congressman Waxman

17 in which he states very clearly that there was no such request,

18 there were no conditions, no agreements, and that is really the

19 critical factor here.

20 And that is why disclosure would not chill a future

21 cooperation. It would merely require the witness as Mr. Gray

22 did in the Iran Contra investigation to say to the special

23 prosecutor I'm happy to meet with you, but by doing so please

24 have it understood that I am not waiving any privilege claims.

25 And that's really what this case boils down to.



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1 Mr. Chaney's failure to ask for that assurance and again, it's

2 our belief that that was because for political reasons they

3 wanted to, the Bush administration wanted to give the public

4 the impression that they had nothing to hide with respect to

5 this investigation. We now know that that's not true.

6 Mr. Libby was indicted and convicted, and now after we

7 have that knowledge, now suddenly there's this claim that this

8 information is sensitive and can't be disclosed. They can't

9 have it both ways, Your Honor. And that's really what's at

10 issue.

11 THE COURT: Did he testify during the trial, Chaney?

12 MR. SOBEL: The Vice-President I don't believe he

13 did.

14 THE COURT: I don't believe he did either.

15 MR. SOBEL: I don't believe so.

16 But Your Honor, that's another factor that needs to be

17 taken into account. As the Supreme Court recognized in the

18 Landano decision when a witness talks to the FBI, gives

19 testimony to the FBI, it is done so with the knowledge that

20 that information might be used in a public forum, a trial and

21 again, Mr. --

22 THE COURT: Right, but it wasn't used in a trial. He

23 didn't testify.

24 MR. SOBEL:

CREW v. DOJ: Re: Valerie Plame: 7/10/09 - CREW's Supplemental Brief (1-3) (Document 18)

Documents

Transcript of CREW v. DOJ: Re: Valerie Plame: 7/10/09 - CREW's Supplemental Brief (1-3) (Document 18)