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CREW v. DOJ: Re: Valerie Plame: 10/1/09 - Sullivan Opinion

CREW v. DOJ: Re: Valerie Plame: 10/1/09 - Sullivan Opinion

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Published by CREW
On August 25, 2008, CREW sued the Department of Justice for failing to provide records of Special Counsel Patrick Fitzgerald's interview with Vice President Richard Cheney stemming from the investigation into the leak of Valerie Plame Wilson's covert identity as a CIA officer. For over a year the House Committee on Oversight and Government Reform has been seeking documents from DOJ related to the leak of Ms. Wilson's covert identity. While some records have been provided, DOJ has refused to provide the committee with access to records related to the vice president's interviews, despite the fact that the interviews were not grand jury material and the Office of Special Counsel had made no promises to the vice president regarding their use.
On August 25, 2008, CREW sued the Department of Justice for failing to provide records of Special Counsel Patrick Fitzgerald's interview with Vice President Richard Cheney stemming from the investigation into the leak of Valerie Plame Wilson's covert identity as a CIA officer. For over a year the House Committee on Oversight and Government Reform has been seeking documents from DOJ related to the leak of Ms. Wilson's covert identity. While some records have been provided, DOJ has refused to provide the committee with access to records related to the vice president's interviews, despite the fact that the interviews were not grand jury material and the Office of Special Counsel had made no promises to the vice president regarding their use.

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Published by: CREW on Jan 28, 2011
Copyright:Public Domain

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04/06/2012

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA
___________________________________ )CITIZENS FOR RESPONSIBILITY )AND ETHICS IN WASHINGTON, ))Plaintiff, ))) Civ. Action No. 08-1468 (EGS)v. ))U.S. DEPARTMENT OF JUSTICE,  )
 
)Defendant. )___________________________________ )
MEMORANDUM OPINION
Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) brings thisaction under the Freedom of Information Act (“FOIA”), seeking records that were created by theFederal Bureau of Investigation (“FBI”) in conjunction with Special Counsel Patrick Fitzgerald’s(“Fitzgerald” or the “Special Counsel”) interview of former Vice President Richard Cheney.Defendant, the Department of Justice (“DOJ” or the “agency”), identified sixty-seven pages of records documenting the interview, which was conducted as part of the Special Counsel’sinvestigation into who exposed Valerie Plame Wilson as a covert operative for the CentralIntelligence Agency (“CIA”).  The agency withheld the records of the interview in their entiretyon the basis that disclosure of the documents could reasonably be expected to interfere with lawenforcement proceedings.
See
5 U.S.C. § 552(b)(7)(A).  In addition, DOJ identified limitedcategories of information within the documents that, according to the agency, were exempt fromdisclosure under other FOIA exemptions.
Case 1:08-cv-01468-EGS     Document 21      Filed 10/01/2009     Page 1 of 37
 
2Now pending before the Court are the parties’ cross-motions for summary judgment.Upon careful consideration of the motions, responses and replies thereto, the supplementalbriefing submitted by the parties, oral argument during the motions hearings held on June 18,2009 and July 21, 2009, the applicable law, and the entire record, the Court concludes that theagency has failed to meet its burden of demonstrating that the requested documents wereproperly withheld in their entirety under any FOIA exemption protecting law enforcementinterests.  Limited portions of those documents, however, were properly withheld under exemptions designed to protect information that is privileged or that could impinge on personalprivacy or threaten national security.  Accordingly, and for the reasons stated herein, the Court
GRANTS IN PART AND DENIES IN PART
both parties’ motions and directs thegovernment to produce the records with appropriate redactions to withhold the information thatfalls within the properly invoked exemptions identified in this Memorandum Opinion.
I. BackgroundA. Factual Background
Plame’s identity as a covert operative for the CIA was publicly revealed shortly after her husband, Ambassador Joseph Wilson, wrote a
New York Times
editorial in which he argued thatthe Bush administration had manipulated intelligence to support President Bush’s statement inthe 2003 State of the Union address that Iraq had purchased uranium from Niger.
See
Robert D.Novak, Column,
Mission to Niger 
, Wash. Post, July 14, 2003, at A21;
 
Joseph C. Wilson IV,Opinion,
What I Didn’t Find in Africa
, N.Y. Times, July 6, 2003, § 4, at 9.  An investigation intothe leak of Plame’s identity was commenced by the FBI, which eventually led to theappointment of Fitzgerald as Special Counsel.  As part of this investigation, a number of senior White House officials, including but not limited to President Bush, Vice President Cheney, and
Case 1:08-cv-01468-EGS     Document 21      Filed 10/01/2009     Page 2 of 37
 
3Vice President Cheney’s Chief of Staff, I. Lewis Libby, were interviewed by the FBI.  Compl. ¶19; Answer ¶ 19.  Libby was subsequently indicted and, after a jury trial, convicted on chargesof perjury, obstruction of justice, and making false statements, all of which arose from hisconduct during the investigation.
See
Tr. of Mot. Hr’g at 9 (June 18, 2009) (“First Mot. Hr’gTr.”).  Following the conviction, Libby was sentenced to 30 months of imprisonment.  Thesentence was subsequently commuted by President Bush on July 2, 2007.
See
Order,
United States v. Libby
, No. 05-394 (D.D.C. July 3, 2007) (citing Grant of Executive Clemency).  Noother criminal cases were brought as a result of the Special Counsel’s investigation.The House of Representatives Committee on Oversight and Government Reform (the“Committee”) conducted an independent investigation into the leak of Plame’s CIA identity,during which it sought to obtain relevant documents from DOJ.  Compl. ¶ 22.  As part of theCommittee’s investigation, DOJ made available redacted reports of FBI interviews with WhiteHouse personnel for Committee staff to review.  Answer ¶ 22.  DOJ, however, refused to providethe reports of the interviews with either President Bush or Vice President Cheney to theCommittee.  Pl.’s Statement of Material Facts Not in Dispute ¶ 4.  In June 2008, the Committeeissued a subpoena seeking the production of documents, “for which the former Special Counselhas not determined that disclosure would be barred by Federal Rule of Criminal Procedure 6(e)governing grand jury secrecy,” relating to interviews with the President, Vice President, andother senior White House officials.
See
Subpoena, attached as Ex. A to Decl. of Steven G.Bradbury (“Def.’s Ex. A”).  Specifically, the Committee demanded unredacted versions of “transcripts, reports, notes, and other documents relating to any interviews outside the presence
Case 1:08-cv-01468-EGS     Document 21      Filed 10/01/2009     Page 3 of 37

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