Mukasey's recommendation of exec privilege to hide Cheney transcript revealed
Nick Juliano
Published: Wednesday December 31, 2008


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The Justice Department this week released Attorney General Michael Mukasey's recommendation that President Bush invoke executive privilege in refusing to release to Congress transcripts of Dick Cheney's conversations with the FBI.

The seven-page letter (pdf), dated July 15, argues that disclosure of such records would hinder future presidents' ability to receive guidance from their advisers because Cheney's conversations detailed internal White House deliberations. The House Oversight and Government Reform Committee requested the transcripts along with other documents related to its investigation into the leak of former CIA agent Valerie Plame's identity.

A bipartisan committee report has already determined the claim was inappropriate, and a separate report (pdf), that the committee has delayed voting on recommends holding Mukasey in contempt of Congress. It's unclear if the committee will ever vote on that report; a spokesperson did not immediately respond to a request for comment Wednesday.

Mukasey's letter, which was released by the Justice Department's Office of Legal Counsel Monday, provides a fuller look at the Bush administration's attempt to keep its secrets regarding the Plame leak, which many observers believe the vice president orchestrated. Cheney's former chief of staff, I. Lewis "Scooter" Libby, was the only person convicted in Special Prosecutor Patrick Fitzgerald's probe, but Bush commuted his sentence.

Investigative reporter Murray Wass has been told some of what's included in the Cheney FBI interview transcript at issue.

Vice President Dick Cheney, according to a still-highly confidential FBI report, admitted to federal investigators that he rewrote talking points for the press in July 2003 that made it much more likely that the role of then-covert CIA-officer Valerie Plame in sending her husband on a CIA-sponsored mission to Africa would come to light.

Cheney conceded during his interview with federal investigators that in drawing attention to Plameís role in arranging her husbandís Africa trip reporters might also unmask her role as CIA officer.
Blogger Emptywheel, who has reported on the Plame investigation since the beginning, notes that the disclosure "would make it more likely that Cheney had a role in outing Plame."

Mukasey's recommendation of executive privilege invokes several arguments made by Richard Nixon as he tried to avoid handing over White House tape recordings regarding Watergate. The letter's release was previously reported by the Legal Times.
In Cheney's case, the records are protected by the law enforcement component of executive privilege, Mukasey said. Even though the investigation has run its course, disclosing the records would raise "serious separation of powers concerns related to the integrity and effectiveness of future law enforcement investigations," Mukasey wrote. "I have a general concern about the prospect of committees of Congress obtaining confidential records from Justice Department criminal investigative files for the purpose of addressing highly politicized issues in public committee hearings."
The Oversight Committee's final report took specific issue with this law enforcement claim.

"There is no basis to support the proposition that a law enforcement privilege, particularly one applied to closed investigations, can shield from congressional scrutiny information that is important for addressing congressional oversight concerns," the committee's report says. "The Attorney General did not cite a single judicial decision recognizing this alleged privilege. Even the Departmentís own opinions that he cited, which do not have the force of law, only apply the privilege to open law enforcement inquiries, not to closed matters like the Special Counsel investigation."

 
 


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