Also published at my web magazine, The Public Record.
The Department of Justice, in refusing to release Vice President Dick Cheney’s interview transcript with the special prosecutor who investigated the leak of covert CIA operative Valerie Plame Wilson, said for the first time last week that contents of Cheney’s interview have been classified.
In a letter sent Thursday to Citizens of Responsibility and Ethics in Washington (CREW), the government watchdog group that filed a Freedom of Information Act request last month seeking access to the transcript, the DOJ’s Office of Legal Counsel (OLC) said the documents have been withheld, in due part, because it contains information “protected from disclosure by the National Security Act.”
“We are withholding the records...because they are protected by the deliberative process, presidential communications, and law enforcement investigative privileges,” states the Sept. 18 letter sent by OLC attorney Paul Coborn to CREW chief counsel Anne Weissman. “We are also withholding them...because the records were compiled for law enforcement purposes and their production “could reasonably be expected to interfere with enforcement proceedings.” “The Department is concerned that releasing the records could interfere with future Department investigations by discouraging voluntary cooperation.
“Finally, we are withholding portions of the records...because they are classified and contain information protected from disclosure by the National Security Act of 1947.”
In a separate development, a federal judge on Saturday ordered Cheney to preserve all documents during his seven years as vice president. CREW sued the vice president challenging Cheney's narrow interpretation of his obligations under the Presidential Records Act, based in large part on his claim that he is not part of the executive branch. In granting CREW's request for a preliminary injunction, the court rejected the arguments of the White House that they were preserving all vice presidential records, which they defined narrowly to include only functions "specially assigned" to the vice president by the president and his duties as president of the Senate.
Henry Waxman, the Democratic chairman of the House Oversight and Government Reform Committee, subpoenaed Attorney General Michael Mukasey in June for Cheney’s interview transcript as well a copy of the transcript of President George W. Bush’s interview with Special Prosecutor Patrick Fitzgerald, and the grand jury testimony of Karl Rove, Bush’s former top aide.
But Mukasey did not state that either of the transcripts contained classified information when he refused to comply with Waxman’s subpoena. Mukasey advised Bush to assert his executive privilege powers to block release of the transcripts.
“I am greatly concerned about the chilling effect that compliance with the [House Oversight] Committee's subpoena would have on future White House deliberations and White House cooperation with future Justice Department investigations,” Mukasey wrote in a letter to Bush on July 16.
Yet Patrick Fitzgerald, the special prosecutor who spent three years investigating White House officials’ role in the Plame leak, said in a letter sent to Waxman in July that the interviews he conducted with Bush and Cheney in 2004 were not protected by grand jury secrecy rules and could arguably be turned over to Congress if authorized by the Justice Department.
Moreover, Fitzgerald said that in his capacity as special counsel he did not enter into a pre-arranged agreement with the White House to keep secret Bush and Cheney’s interview transcripts.
“I can advise you that as to any interviews of either the President or Vice President not protected by the rules of grand jury secrecy, there were no "agreements, conditions and understandings between the Office of Special Counsel or the Federal Bureau of Investigation" and either the President or Vice President "regarding the conduct and use of the interview or interviews,” Fitzgerald’s July 3 letter addressed to Waxman says.
Fitzgerald has turned over to Waxman’s committee “FBI 302 reports” of interviews with CIA and State Department officials and other individuals involved in the CIA leak, Waxman said in a letter to Mukasey last December.
But “the White House has been blocking Mr. Fitzgerald from providing key documents to the Committee," including transcripts of Fitzgerald’s interviews with Bush and Cheney, Waxman said.
Two senior DOJ officials knowledgeable about the CIA leak investigation said Saturday that officials in the Office of the Vice President issued a request to the DOJ recently to classify Cheney’s transcript. However, the DOJ officials did not know the exact timing of when the DOJ classified portions of the transcript. A DOJ spokesman did not return calls for comment Saturday.
House Judiciary Committee Chairman John Conyers has also been actively pursuing the interview transcripts. In June, he issued a subpoena to Mukasey for a wide-range of documents related to Fitzgerald’s probe and was also rejected.