Jeralyn has an interesting piece up wherein she defends the Obama White House’s decision to continue to assert Executive Privilege in order to withhold the Cheney interviews concerning the Valeria Plame investigation.

Her analysis appears to stem from the notion that any interview taken on the same subject matter and during the same period as a Grand Jury investigation should somehow be afforded the same confidentiality protections as if it were, in fact, grand jury material.

"Even though the FBI reports of the interview, and the agents’ notes taken during it, don’t fall under grand jury secrecy rules, I think the same principles should apply.

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

This is a pretty remarkable statement coming from a criminal defense lawyer. If I did criminal defense work, I would want the utmost access to such materials and would be arguing about my client’s right to know. What if you represent someone who is a potential target?

Aside from the practical considerations, I do not believe that such a statement is an accurate reflection of the law. Grand Jury material is pretty clearly defined in the Rule 6. In short, it consists of information, including testimony, that is presented to the Grand Jury as well as material that has been subpoenaed by the GJ, whether or not the Grand Jury actually ever sees it.

Everything else is regular investigative material and therefore subject to the Freedom of Information Act. Now FOIA does have some exemptions from disclosure, but I disagree with the assertions in the Bradbury Declaration that such exemptions apply here.

Now, because the interviews were conducted by an Executive Branch official (Fitzgerald) acting under authority conferred by another Executive Branch official (Comey) the interview could/would be considered an internal Executive Branch investigation and the interview is a non-final document of that investigation. A list of FIOA exemptions (with definitions) is here. However, since the investigation is now over, the considerations covered in the subsets to FOIA exemption 7 either no longer apply, or in the case of things such as private personal information, they could be handled with minor redactions.

So, although the American Public treated the investigation like an outside prosecutor and Fitzgerald acted as a de facto outside prosecutor; the simple fact is, je jure, he was an Executive Branch guy. So, even though a claim of executive privilege hangs by the thinnest of threads here, there is that one frail fiber.

HOWEVER, unlike other privileges where if you waive it for one purpose, you waive it for all purposes (See, eg, attorney client privilege here), the most singular feature of executive privilege throughout the ages has been its highly selective use. Presidents pick and choose when to use it.

So, there is no possibility that they are forced to preserve the privilege now in order to have it when they -or some future president- really need it, the Obama Administration’s hands are not tied here. Hey, it wasn’t that long ago that they released internal, non-final Gitmo investigation reports.

I do believe the Cheney interview documents should be released. I believe the public has the right to know. I also believe the reasons advanced by both the Bush and Obama administrations for not releasing these documents are……fertilizer.

Look, this whole mess exists because Congress did not do its job as a co-equal branch of government and appoint a special prosecutor of its own. That prosecutor would have conducted his/her investigation under the authority and auspices of a co-equal branch of government and the Executive Branch would not have any say in how the products of that investigation were used.

But the Rubber Stamp Congress did not do their job. So, one man, Jim Comey, screwed up his courage and constructed a leaky, barely seaworthy life raft for the rule of law out of some fallen tree branches held together with bailing wire and chewing gum. Pat Fitzgerald and his crew somehow managed to sail that life raft safely to the lee shore.


Related posts:

  1. The Cheney Interview: Judge Sullivan Rebukes Obama, but Still Shields Crucial Info
  2. Fitzgerald-Cheney Interview: A Comedy of Excuses
  3. Does Lanny Breuer Have a Conflict in the Cheney Interview FOIA Case?
  4. The Contents of the Fitzgerald-Cheney Interview, Annotated Edition
  5. The Contents of the Fitzgerald-Cheney Interview, Annotated Edition