The Obama administration asserted a legal argument that a federal judge called the Jon Stewart "Daily Show exemption," as the Justice Department continued a court fight to protect ex-Vice President Dick Cheney from disclosures about his role in the leak of a CIA officer's identity six years ago.
At a federal court hearing Tuesday, Jeffrey Smith, an attorney in the Justice Department's Civil Division, argued that the transcript of Cheney's 2004 interview with special prosecutor Patrick Fitzgerald about the CIA leak should remain secret for as long as 10 more years.
Last month, Smith cited the possibility that the transcript's release might discourage future vice presidents from cooperating with criminal investigations because their words could become "fodder for The Daily Show."
When Smith revived that argument on Tuesday, U.S. District Court Judge Emmett Sullivan said, "You're getting back to the Daily Show exemption. You're not going back there, are you?"
A skeptical Sullivan asked Smith, "How do you distinguish the political fray from the public's right to know what the government is up to?"
Smith said he was simply arguing that high-level officials like Cheney would be unwilling to speak to criminal investigators if there was a chance that what they said privately would become public. "Presidents don't really have to cooperate if they really don't want to," Smith said.
Last week, Smith argued in court documents that just because Cheney voluntarily agreed to be interviewed by the special prosecutor investigating the leak of Valerie Plame's covert CIA identity doesn't mean Cheney "waived any privileges to which he may have been entitled to" since "none of the privileges at issue here was ever his to waive."
In a footnote contained in a 12-page court filing, Smith wrote, "These privileges belong to the government. The presidential communications privilege belongs to the President; the deliberative process privilege asserted here belongs to the White House; and the law enforcement privilege asserted here belongs to DOJ.
"A government official, even one as senior as the Vice President cannot implicitly waive these governmental privileges by individually submitting to an interview."
Though Judge Sullivan didn't issue a ruling in the case, he didn't appear swayed by the government's arguments. He said the Justice Department was, in effect, requesting that he "legislate" by issuing some sort of special Freedom of Information Act exemption for vice presidents, which was something "the courts can't do," according to a transcript of the hearing.
"What you are asking the court to do is issue a ruling that says every time a special investigator calls a vice president to come down to testify, that information is protected from the public," Sullivan said.
"No, that's not it at all," Smith responded.
Smith said he simply was concerned the transcript would become part of the "political fray" and that by withholding it for as long as 10 years, its use would be limited to historical purposes.
That argument brought another incredulous response from Sullivan. "Would there be some impediment to putting this information in a time capsule to be examined by future inhabitants of this world?" Sullivan asked. "Where do I draw the line? This happened five years ago."
The case stems from a FOIA lawsuit filed last year by the public interest group, Citizens for Responsibility and Ethics in Washington (CREW), which is seeking access to Cheney's interview transcript and now has confronted denials from both the Bush and Obama administrations. [For more background on the case, see Consortiumnews.com's "Bush-Cheney Linked to CIA Leak Case."]