Case Detail
| Case Title | CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. U.S. DEPARTMENT OF JUSTICE | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2008cv01468 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2008-08-25 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2009-11-20 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Emmet G. Sullivan | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | U.S. DEPARTMENT OF JUSTICE | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Opinion/Order [21] FOIA Project Annotation: Judge Emmet Sullivan has rejected the Justice Department's claim that an FBI interview conducted with former Vice President Dick Cheney during the investigation of the leak of Valerie Plame's identity as a CIA operative is protected by Exemption 7(A) (interference with ongoing investigation or proceeding). Although the Plame investigation was closed and the government admitted that there was no likelihood of any further proceedings, DOJ argued that 7(A) applied because there was a likelihood of future investigations involving the White House and disclosing the Cheney interview might chill future White House staff from voluntarily cooperating in such an investigation. To support its claim, the agency relied upon Mapother v. Dept of Justice, 3 F.3d 1533 (D.C. Cir. 1993), a case in which the D.C. Circuit agreed that a report prepared by the Office of Special Investigations to support DOJ's decision to prevent former UN Secretary General and former Austrian President Kurt Waldheim from entering the U.S. because of his service as a Nazi army officer during World War II could be withheld under 7(A) even though there was no investigation or proceeding involving Waldheim. The D.C. Circuit reasoned that Waldheim could challenge the report if he chose to try to enter the U.S. and that "the index to the report compiled in Waldheim's case would 'provide the answer' to the question of what evidence DOJ had regarding Nazi war crimes, and would therefore be of great interest to other similarly situated individuals." Sullivan pointed out that "under DOJ's reading of Mapother, the 'critical question facing this court is not, as plaintiff contends, whether there is an "ongoing investigation" but whether "in the run of cases" going forward "there is a reasonable likelihood" that DOJ will require voluntary cooperation of the White House.'" CREW, which had requested the Cheney interview, argued that "even assuming the factual premise of DOJ's argument (that the history of past investigations involving the White House makes similar investigations reasonably likely to occur in the future), DOJ has failed as a matter of law to demonstrate that such investigations fall under the Mapother court's application of Exemption 7(A)." Agreeing with CREW, Sullivan noted that "although the proceedings in Mapother had not yet been commenced, the court could readily identify and articulate the scope and nature of those proceedings, in addition to the form that they would take and the potential harm that disclosure could cause to those future proceedings. By contrast, DOJ has notâ€"and cannotâ€"describe with any reasonable degree of particularity the subject matter of the hypothetical proceedings, the parties involved, when such proceedings might occur, or how the information withheld here might be used by these hypothetical parties to interfere with these hypothetical proceedings. DOJ may be correct that the precise scope of an investigation or the statute under which a proceeding is likely to be brought need not be discerned in order to conclude that a proceeding is 'reasonably anticipated' under Mapother's reasoning. Under this Court's reading of the statute and the relevant caselaw, however, the category of proceedings must be more narrowly defined than simply any investigation that might benefit from cooperation of some senior White House official at some undetermined future point regarding some undefined subject." Sullivan further distinguished Mapother and the Cheney interview by pointing out that there was a difference between "the nexus that existed between the information withheld and the proceedings that were ongoing or anticipated. In Mapother, the reasonably anticipated proceedings that the court identified were those in which accused Nazis might seek to use the withheld information to strengthen their challenge to their exclusion from the United States. Here, the lack of a nexus between the information DOJ seeks to withhold in this case and the unspecified and undefined future proceedings underscores the expansiveness of the reading of Exemption 7(A) advocated by DOJ." He added that other Exemption 7(A) cases had "recognized the necessity of identifying a 'concrete prospective law enforcement proceeding.' Such a requirement is consistent with the principal purpose of the exemption, which is 'to prevent disclosures which might prematurely reveal the government's cases in court, its evidence and strategies, or the nature, scope, direction, and focus of its investigations, and thereby enable suspects to establish defenses or fraudulent alibis or to destroy or alter evidence.' Adopting the vague category of hypothetical proceedings urged by DOJ in this case would not only be inconsistent with that purpose, but would also be in direct circumvention of 'the basic policy' of FOIA itself. Indeed, the dramatic and far-reaching extension to the current reach of Exemption 7(A) that DOJ urges this Court to adopt is more properly directed to Congress to consider and, in its discretion, to enact if it sees fit. The Court, however, is bound by the law in its current state, which does not sanction such an expansive reading of the statute." Justice also claimed the records were protected by Exemption 5 (privileges). The agency claimed the law enforcement privilege covered all the records and that the deliberative process and presidential communications privileges covered portions of the records. Even though CREW argued that the law enforcement privilege had never been recognized under Exemption 5, Sullivan pointed out that because DOJ characterized the privilege as co-extensive with the coverage of Exemption 7(A) his ruling that 7(A) did not apply necessarily implied that the law enforcement privilege was inapplicable as well. However, the agency succeeded with its deliberative process and presidential communications privilege claims. Sullivan agreed with the agency that information recounting a prior decision-making process was predecisional. He noted that "the information withheld by DOJ recounts the 'ingredients of the decisionmaking process,' and for that reason the information withheld qualifies as predecisionalâ€"despite the fact that the interview in which the information was disclosed took place after the decisions were made." CREW argued that much of the information withheld was already public. Sullivan found that none of the information was identical to information that was already public. Further, he noted that "CREW's argument ignores the purpose of the deliberative process privilege, which is designed to protect the decisionmaking process itself. Regardless of whether certain factual information is publicly available, the information in the withheld documents is protected precisely because it might compromise what information was considered and what role it played in the deliberative process." Sullivan found that the presidential communications privilege had only been claimed for two sentences and since it was unclear that CREW was actually contesting the withholding, he concluded that "this narrow class of information falls under the presidential communications privilege." CREW argued that Cheney had waived the privilege when he "voluntarily revealed" the information to Special Counsel Patrick Fitzgerald. Both parties argued that the D.C. Circuit's decision in In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), supported their contrary positions. In In re Sealed Case, the D.C. Circuit ruled that the White House had waived its privilege when it made information public and when it sent a letter to a private attorney. Sullivan indicated that "contrary to CREW's suggestion, the court in In re Sealed Case did not create a per se rule that a disclosure to any third party constitutes a waiver of any and all privilege claims. Rather, the court simply concluded based on the facts in that case that the deliberative process privilege could be asserted as to documents that had already been revealed to the public and to a private, non-governmental attorney. The president case, by contrast, involves the disclosure of information gained by Vice President Cheney in his official capacity and disclosed to Fitzgerald in his official capacity as a law enforcement officer. In re Sealed Case, quite simply, does not address the issue before the Courtâ€"whether the information given by Vice President Cheney to the Special Counsel constituted a protected inter-agency communication or a public disclosure to a third party. Nevertheless, and notwithstanding the unique role of the Special Counsel as both part of and independent from the executive branch, this Court agrees with DOJ that the discussion between Fitzgerald and Vice President Cheney is more appropriately considered a protected inter-agency disclosure." CREW also relied upon a letter Fitzgerald wrote to Rep. Henry Waxman (D-CA), in which he said Cheney had not been promised confidentiality. Sullivan pointed out that "such an agreementâ€"or lack thereofâ€"is not dispositive. To the contrary, because Vice President Cheney's statements qualified as an inter-agency disclosure, his failure to formally invoke any executive privileges did not preclude the White House's future reliance on those privileges."
Issues: Exemption 7(A) - Interference with ongoing investigation, Exemption 5 - Privileges - Deliberative process privilege - Deliberative | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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