Report: Bush's Claims of Executive Privilege Thwarted Plame Probe

14 Oct 2008 // President George W. Bush “inappropriately” asserted executive privilege when he refused to turn over to Congress interview transcripts of Vice President Dick Cheney’s testimony in the CIA leak case, according to a bipartisan draft report on Bush's use of executive privilege. The report was released Tuesday by Henry Waxman, the Democratic chairman of the House Oversight and Governmental Affairs Committee.

In the draft 10-page report expected to be discussed at a committee meeting next week, Waxman and the Oversight Committee’s ranking Republican member, Rep. Tom Davis, R-Va., said Bush overstepped his authority by withholding the Cheney transcript from lawmakers probing the July 2003 leak of covert CIA operative Valerie Plame Wilson.

“On a bipartisan basis, the Committee finds that the President’s assertion of executive privilege over the report of the Vice President’s interview was legally unprecedented and an inappropriate use of executive privilege,” the draft report says. “The assertion of executive privilege prevents the Committee from having access to a complete set of records and thus results in the Committee’s inability to assess fully the actions of the Vice President.

“There is no precedent holding that summaries of presidential conversations given to third parties — as opposed to the original conversations themselves — are subject to claims of executive privilege. The Administration’s refusal to produce the Vice President’s interview report is particularly puzzling in light of the position taken by the Office of the Vice President that the Vice President is not an “entity within the executive branch.” The logical extension of the Vice President’s position is that executive branch confidentiality interests would not be relevant to his communications.”

In June, Waxman subpoenaed Attorney General Michael Mukasey for Cheney’s interview transcript as well a copy of Bush’s interview with Special Prosecutor Patrick Fitzgerald, and the grand jury testimony of Karl Rove, Bush’s former top aide.

Mukasey refused citing “serious separation of powers and heightened confidentiality concerns.”

Furthermore, Mukasey argued “providing the interviews to the Committee would undermine future law enforcement investigations, as future Presidents or Vice Presidents “might limit the scope of any voluntary interview or insist that they will only testify pursuant to a grand jury subpoena and subject to the protection of the grand jury secrecy provision.”

Yet Fitzgerald 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.

When Waxman threatened to hold Mukasey in contempt for refusing to comply with the subpoena, the attorney general 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 in July.

The Oversight Committee’s draft report said Mukasey “erred” in advising Bush to withhold Cheney’s transcript from congressional investigators.

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.

Conyers and Waxman’s interest in the CIA leak case was revived with the publication in June of former White House press secretary McClellan’s memoir which suggested Bush and Cheney played a larger role in the matter than they have admitted publicly.

Conyers was set to hold a vote Sept. 10 on a contempt citation for Mukasey for refusing to turn over the subpoenaed documents to his panel but decided to “defer” the matter when the DOJ reluctantly released 681-pages of documents related to a voter identification law implemented last year in the state of Georgia that the Michigan Democrat had sought.

But in a letter sent to Conyers Sept. 9, Keith Nelson, a deputy attorney general, did not say that Cheney’s interview transcript was classified. Nelson said he could not release the document because Bush had already asserted executive privilege.

Additionally, the government watchdog group Citizens for Responsibility and Ethics in Washington (CREW) sued the DOJ to gain access to Cheney’s interview transcripts.

The DOJ rejected CREW’s Freedom of Information Act request claiming that contents of Cheney’s interview have been classified; the first time the agency has made such claims. Neither Mukasey nor any other senior Justice Department official have told lawmakers that Cheney’s transcript contained classified material.

Mukasey said Cheney’s interview transcript contained “summarize[d] deliberations" between Bush and his aides and therefore the document was protected under executive privilege, but he never told Congress that portions of the document were classified.

In a letter sent last month to CREW, 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 Weismann. “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.”

Senior Bush administration officials disclosed Valerie Plame Wilson’s identity to several journalists in June and July of 2003 amid White House efforts to discredit her husband, former U.S. Ambassador Joseph Wilson, for challenging Bush’s use of bogus intelligence to justify invading Iraq.

Valerie Plame Wilson’s CIA employment was revealed in a July 14, 2003, article by right-wing columnist Robert Novak, effectively destroying her career. Two months later, a CIA complaint to the Justice Department sparked a criminal probe into the identity of the leakers.

Initially, Bush professed not to know anything about the matter, and several of his senior aides, including political adviser Karl Rove and the vice president’s chief of staff I. Lewis Libby, followed suit.

However, it later became clear that Rove and Libby had a hand in the Plame leak and that Bush and Cheney had helped organize a campaign to disparage Wilson by giving critical information to friendly journalists.

On June 24, 2004, Fitzgerald interviewed Bush for 70 minutes about the Plame leak. The only other member of the Bush team in the room during the meeting was Jim Sharp, the private lawyer that Bush hired, according to a press briefing by then-press secretary Scott McClellan.

Fitzgerald had interviewed a couple of weeks earlier, Cheney.

According to sources knowledgeable about the vice president’s testimony, Cheney was specifically asked about conversations he had with senior aides, including Libby, and queried about whether he was aware of a campaign led by White House officials to leak Plame’s identity.

It is unknown how Cheney responded to those questions. Cheney retained a private attorney, Terrence O’Donnell.

At the time of Waxman's comments, Fitzgerald’s criminal investigation was still underway, leading to Libby’s indictment in October 2005 and his subsequent conviction in March 2007 on four counts of perjury and obstruction of justice.

During closing arguments at Libby’s trial, Cheney was implicated in the leak, as Fitzgerald acknowledged that Cheney was intimately involved in the scandal and may have told Libby to leak Plame's status to the media.

Fitzgerald told jurors that his investigation into the true nature of the vice president's involvement was impeded because Libby obstructed justice.

Libby's attorney, Theodore Wells, told jurors during his closing arguments that Fitzgerald had been trying to build a case of conspiracy against the vice president and Libby and that the prosecution believed Libby may have lied to federal investigators and to a grand jury to protect Cheney.

“Now, I think the government, through its questions, really tried to put a cloud over Vice President Cheney," Wells said.

Rebutting Wells, Fitzgerald told jurors: "You know what? [Wells] said something here that we're trying to put a cloud on the vice president. We'll talk straight. There is a cloud over the vice president. He sent Libby off to [meet with New York Times reporter] Judith Miller at the St. Regis Hotel. At that meeting - the two-hour meeting - the defendant talked about the wife [Plame]. We didn't put that cloud there. That cloud remains because the defendant obstructed justice and lied about what happened."