The president may assert executive privilege to withhold from Congress records of an FBI interview with Vice President Dick Cheney regarding the leak of CIA agent Valerie Plame’s identity, the attorney general concludes in legal opinion released today.
The House Oversight and Government Reform Committee subpoenaed the records as part of its long-running investigation into what roles, if any, President George W. Bush, Cheney and their aides may have played in the leak.
Mukasey warned that, were the records turned over, White House officials would be less likely to cooperate in future investigations out of fear that their words would become public, forcing the department to rely on grand jury subpoenas instead. “I am greatly concerned about the chilling effect that compliance with the Committee’s subpoena would have on future White House deliberations and White House cooperation with future Justice Department investigations,” Mukasey wrote in the opinion, which is dated July 15.
In a July 8 letter, Committee Chairman Henry Waxman (D-Calif.) threatened to cite Attorney General Michael Mukasey with contempt of Congress for withholding the records.
The seven-page opinion addresses a range of material subpoenaed by the committee and Cheney’s interview records in particular. The opinion comes from the Justice Department’s Office of Legal Counsel -- the arm that provides legal advice to the president and all other executive branch agencies -- and is signed by the attorney general himself, rather than by the head of the office.
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."
Mukasey noted that the Justice Department has complied or has signaled its intent to comply with all the committee’s document requests, save for the Cheney interview records. With all the committee has been given already, it neither has shown that the vice president’s records are critical to the investigation nor identified any specific legislative need for them, Mukasey wrote.
“In the Department’s view, these accommodations, combined with the voluminous record from the Libby trial, should satisfy the Committee’s legitimate interests,” Mukasey wrote.