Closing the Door

The Bush administration today unveiled a set of novel and controversial legal arguments in refusing to disclose key details about Vice President Dick Cheney's role in the leak of CIA operative Valerie Plame's identity.

In two letters released Wednesday, the Justice Department revealed that, upon the recommendation of Attorney General Michael Mukasey, President Bush had invoked executive privilege rather than turn over to Congress a never-released FBI report (known as a "302") recounting a confidential 2004 interview with Cheney about his knowledge of the Plame affair.

The White House move effectively closes the door on the last chance for the public to learn answers to a swirl of questions that have surrounded Cheney's actions from the outset of the Plame case. Indeed, in his summation to the jury last year in the trial that led to the conviction of the vice president's top aide, I. Lewis (Scooter) Libby, special counsel Patrick Fitzgerald repeatedly pointed to Cheney's actions, telling the jury at one point that "there is a cloud over what the vice president did."

The decision by the White House to refuse to honor the subpoena from Democratic Rep. Henry Waxman's House Oversight and Government Reform Committee for Cheney's interview was hardly unexpected, given the administration's history of fiercely protecting presidential prerogatives. What was surprising to some legal scholars was the basis for shielding the FBI interview report. It was covered, Mukasey said, by what he called "the law-enforcement component of executive privilege."

"As far as I know, this is an utterly unprecedented executive-privilege claim," said Peter Shane, an Ohio State University law professor who is an expert on executive privilege and separation-of-powers issues. "I've never heard this claim before."

Normally, claims of executive privilege are invoked to protect the disclosure of the president's communications with his top advisers. But in this case, the White House invoked the claim to keep secret Cheney's responses to FBI agents (hardly what anybody would call his advisers), who were grilling him as part of the now-closed criminal investigation headed by Fitzgerald.

Fitzgerald's probe focused on whether any administration officials broke the law when they disclosed to members of the press that Plame, an undercover CIA operative who was the wife of Iraq War critic Joseph Wilson, worked for the agency. The disclosures were allegedly made as part of a White House attempt to discredit Wilson by suggesting that a trip he took for the agency to investigate claims about Saddam Hussein's nuclear-weapons program was arranged by his wife. Evidence in the case showed that Libby—who was convicted of lying and obstruction—first learned about Plame's CIA work from Cheney and was later directed by the vice president to meet with reporters on an off-the-record basis to rebut criticism by Wilson.

What makes the decision to withhold the Cheney interview all the more unusual was the fact that the White House had already agreed to permit congressional investigators to inspect the FBI 302 reports of other top White House aides in the Plame case, including Karl Rove.

So what was different about Cheney?