The Obama administration indicated in court papers it may appeal a federal judge's ruling ordering the Justice Department to release portions of the transcribed interview between former Vice President Dick Cheney and Patrick Fitzgerald, the special prosecutor appointed to probe the roles Bush administration officials played in the leak of covert CIA operative Valerie Plame Wilson six years ago.
Last week, Jeffrey M. Smith, an attorney in the Justice Department's civil division, filed an emergency motion in US District Court in Washington, DC, requesting a 30-day stay of the court's October 1 order that called for the parts of the Cheney interview to be released by October 9.
Smith said the stay, which US District Court Judge Emmet Sullivan granted, was needed "in order to allow the Solicitor General [Elena Kagan] sufficient time in which to exercise her statutory authority to determine whether the [Department of Justice] will file an appeal in this action."
"This case involves an important issue that will require consultations at high levels of Government," Smith said, adding that the stay "is necessary to avoid the irreparable harm that would result if the Government is forced to disclose its documents to the public before it has the opportunity to consider whether to pursue its appellate rights."
The case stems from a Freedom of Information Act lawsuit filed last year by the public interest group Citizens for Responsibility and Ethics in Washington (CREW). The organization has been trying to gain access to Cheney's interview transcript and has found its efforts thwarted first by Justice Department attorneys in the Bush administration, who had said the interview transcript was being withheld on national security grounds, and now by the Obama administration, whose attorneys said the material, if released, could become "fodder for The Daily Show."
The resistance from the Obama administration has left some of its supporters shaking their heads. Not only does the obstruction go against President Obama's pledge of government openness, but it is protecting the reputation of Cheney, one of Obama's most vocal critics.
It was Smith who argued in July that the transcript of Cheney's 2004 interview with Fitzgerald about the CIA leak should remain secret for as long as ten more years to protect Cheney from any political embarrassment that would result from the transcript being released.
As previously reported by Truthout, Sullivan rejected Smith's argument as well as others that claimed releasing the contents of the transcript would derail law enforcement efforts to obtain the cooperation of sitting vice presidents in future criminal probes.
"Any attempt to predict the harm that disclosure of these records could have ... is therefore inherently, incurably speculative," Sullivan wrote in his ruling. "Accordingly, the Court concludes that DOJ has failed to meet its burden of demonstrating that the records were properly withheld."
Sullivan, however, did agree that the Justice Department can keep under wraps, on national security grounds, statements Cheney had made to Fitzgerald about declassification discussions he had with George W. Bush, conversations Cheney had with former CIA Director George Tenet about Ambassador Joseph Wilson's February 2002 trip to Niger to investigate allegations that Iraq was seeking to purchase yellowcake uranium, discussions surrounding the 16 words in Bush's January 2003 State of the Union address that asserted Iraq had attempted to purchase the uranium, talks between Cheney and then National Security Adviser Condoleezza Rice and conversations between Cheney and other Bush officials about how to respond to media inquiries about the Plame Wilson leak.
Senior Bush administration officials disclosed Plame Wilson's identity to several journalists in June and July of 2003 amid White House efforts to discredit her husband, Ambassador Joseph Wilson, for challenging Bush's use of bogus intelligence to justify invading Iraq.
Plame Wilson's CIA employment was revealed in a July 14, 2003, article by the late 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, Bush was interviewed by Fitzgerald 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.
"The President ... was pleased to do his part to help the investigation move forward," McClellan said. "No one wants to get to the bottom of this matter more than the President of the United States."
A couple of weeks earlier, Cheney was interviewed by Fitzgerald. Cheney retained a private attorney, Terrence O'Donnell, to represent him in the matter.
Fitzgerald's criminal investigation led to Libby's indictment in October 2005 and his subsequent conviction in March 2007 on four counts of perjury and obstruction of justice, which Bush later commuted.
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.
Court papers filed by Obama's Justice Department in July revealed that Bush and Cheney were in contact about the scandal, including what is described as "a confidential conversation" and "an apparent communication between the Vice President and the President."
That court filing also revealed that Fitzgerald questioned Cheney about his participation in the decision to declassify parts of a 2002 National Intelligence Estimate regarding Iraq's alleged WMD. It ultimately fell to Bush to clear selected parts of the NIE so they could be leaked as part of the White House campaign to disparage Wilson.