Citizens for Ethics and Responsibility in Washington has notched another win in its battle to preserve and expand the reach of the Freedom of Information Act. The victory comes in a complicated case seeking records related to a FBI interview voluntarily given by Vice President Cheney during special counsel Patrick Fitzgerald’s investigation of l’affaire Plame/Libby.
FOIA provides an exemption allowing the government to withhold records compiled by law enforcement, if releasing the records “could reasonably be expected to interfere with enforcement proceedings.” The Bush administration—and later, their Obama successors—cited that portion of the law to withhold the records, arguing that releasing them could establish a chilling effect that would make future executive branch officials, wary that their words might one day become public, reluctant to give such interviews. (In June, a government lawyer made this argument by suggesting that a future Vice President might say something like “I’m not going to cooperate with you because I don’t want to be fodder for ‘The Daily Show.”‘”)
But Judge Emmett Sullivan of D.C. District Court agreed with CREW’s contention that mountains of case law made it clear that this restriction was only applicable in the case of ongoing or specifically impending law enforcement action, not for hypothetical cases that, the judge wrote, “might benefit from the cooperation of some senior White House official at some undetermined future point regarding some undefined subject.”
CREW’s victory is somewhat undercut by other portions of the Sullivan’s ruling that, after an in camera review of the documents, sided with the government’s arguments that parts of the interviews discussed information that can be properly withheld under other FOIA exemptions protecting classified information, pre-decisional discussions, personal privacy, and certain advice given to the President. That’s a shame for Plameologists, because the judge says that certain “information identical to the information contained in those documents [has not] been made public.”
The judge has ordered the Justice Department to produce properly redacted versions of the records by October 9, though either side could appeal the decision. Links to the Sullivan’s opinion and other relevant documents are available at CREW’s website.
Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.