On October 1, federal judge Emmet Sullivan ruled that the Justice Department had to release records of Patrick Fitzgerald’s interview of Vice President Dick Cheney, conducted in the context of a criminal investigation that ultimately led to the prosecution and conviction of Cheney’s chief-of-staff, Scooter Libby. Sullivan ridiculed the government’s arguments as a “Daily Show defense,” making clear that he did not believe that the fact that disclosure would prove embarrassing to a political figure was a valid consideration. Still, the judge’s ruling excepted parts of the interview relating to Cheney’s communications with President Bush about the decision to declassify parts of a 2002 National Intelligence Estimate that were then leaked as part of an effort to disparage Ambassador Joseph Wilson.
But now the Obama Justice Department is signaling that it may appeal the decision to the Court of Appeals. In a motion filed with the court on October 5, the Justice Department asks for a 30-day stay of the order so that it can make a final decision about an appeal.
In 2008, Barack Obama made a pledge of “open government” one of the central pillars of his campaign. He specifically promised to move the Justice Department back to a position of compliance with FOIA legislation, which was routinely violated during the Bush years. But there has been little evidence that the Obama team is keeping this campaign commitment. They have been just as aggressive as their predecessors were in defending the right of the Executive to keep its dealings secret. The squabble over the Cheney interview notes is a prime example. The process began during the Bush Administration, and after the transition no change in the government’s position could be detected. Here’s Jason Leopold’s summary of the latest developments:
[Justice Department lawyer Jeffrey L. ] Smith… 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… 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.”
Smith now appears to be arguing for an appeal. The Court of Appeals for the District of Columbia features a heavily Republican bench, including not a few friends of Dick Cheney. The possibility that an appeals court panel would be willing to step in to shield Cheney from further embarrassment is considerable. This court has over the last decade been a consistent friend of secret government.