Judge Sullivan: Steven Bradbury Not Qualified to Withhold Cheney’s Plame Materials
Though we may need new rules about linking to the WaPo after they canned Dan Froomkin, not only is this story not an AP story (what with their expansive claims of fair use), but it has a bunch of more interesting details. So here’s the story about Judge Emmet Sullivan, demanding the government allow him to review the Dick Cheney FBI interview materials they’re trying to withhold from FOIA before he’ll allow them to withhold the materials.
U.S. District Judge Emmet G. Sullivan expressed surprise during a hearing here that the Justice Department, in asserting that Cheney’s voluntary statements to U.S. Attorney Patrick J. Fitzgerald were exempt from disclosure, relied on legal claims put forward last October by a Bush administration political appointee, Stephen Bradbury. The department asserted then that the disclosure would make presidents and vice presidents reluctant to cooperate voluntarily with future criminal investigations.
But career civil division lawyer Jeffrey M. Smith, responding to Sullivan’s questions, said Bradbury’s arguments against the disclosure were supported by the department’s current leadership. He told the judge that if Cheney’s remarks were published, then a future vice president asked to provide candid information during a criminal probe might refuse to do so out of concern "that it’s going to get on ‘The Daily Show’ " or somehow be used as a political weapon.
Sullivan said Bradbury, who was the acting head of the Office of Legal Counsel, was not obviously qualified to make such claims and that they were in any event unsubstantiated. Sullivan said the department needed new evidence, if it hoped to prevail, and said the administration should supply him with a copy of Cheney’s statements so he could directly assess whether the claims are credible.
No word on whether Sullivan believes Bradbury is unqualified because this is not the purview of OLC, or whether he has just read Bradbury’s crappy ass OLC opinions and made the same conclusion the rest of us have: his legal judgment ain’t worth much.
Sullivan appears to be predisposed to accept CREW’s–and frankly, Fitz’s–argument that, since Cheney didn’t have to appear before a grand jury, he (and the government) can’t now claim his interview materials can’t be released because of grand jury secrecy laws.
Also note, there are three items responsive to the CREW subpoena, all in some way pertaining to the FBI interview. That means in addition to the interview report, we’ll get notes. Which I’m guessing will be far more interesting to read.
And it’s finally looking like we might get to read them.
“… since Cheney didn’t have to appear before a grand jury, he (and the government) can’t now claim it can’t be released because of grand jury secrecy laws.” – Marcy
Oh snap !
Apparently, elections don’t have consequences.
Hopefully we’ll get to read them! (And you’ll give us the real read on them.)
What’s most disturbing is that the crew who’s victory in large part represented a backlash against the prior administration, is now defending the treason of Dick Cheney.
Almost as disturbing is the CIA recruitment ad on the WaPo page.
I am anxiously awaiting the documents release tomorrow, and especially your analysis of them. It’s great having you do all the hard work so I can just read what it all means. Thank you, Ms. Wheeler.
– Josh
Ain’t she something? Welcome. (at least I haven’t seen you here before)
*waves to Loo Hoo*
Alright. Sullivan did well here; I give him credit. Still think he was late and lame on Stevens. It is a fascinating question as to the basis for disqualification of Bradbury. Probably that such a privilege claim would have to be made by a White House counsel not a DOJ hack I imagine.
I think what you are trying to say is “When Emmet Sullivan says you’re lame, man you are lame.”
Further on the question of Bradbury’s ‘competence’ [snark aside; snark merited, but aside nonetheless] is the issue of the limit on enforcement: disciplining the government agency officer making the bogus claim. We know Dawn Johnson isn’t at OLC, but neither is Bradbury, and the issue would involve when removal of meaningful enforcement eliminates the only means of holding the government’s feet to the fire.
Going a bit further [appreciating you and the rest of the lawyers here, plus of course fearless leader, along with the razor and some others who might as well be, don’t need this], there’s a material distinction between what Jason Leopold raised above — the letter appearing to assert, among other things, a “national security” claim — and nuking the application with a state secrets claim. Everything raised in the letter, and IMO everything raised in the Bradbury affidavit, is reviewable by the court.
[Which, if the transcript or report is ordered released, also could implicate Bradbury’s license.]
Oh, I think Bradbury is on safe ground ON THIS FRONT. After all the key question Fitz likely asked is, “did you order Scooter Libby to out Valerie Plame?”
I have no idea how he answered–but he may well have said, “VP has power to declassify yadda yadda yadda.”
That;s national security information. It’ll just be embarrassing for Cheney that it revealed he put it behind his own political vendetta.
And keep in mind, the transcripts MIGHT just be some big parsing.
Declassifying, as I understand it, is a process and can’t be done instantly. There is also the question of authority: did Bush authorize Cheney to declassify this kind of thing. Also, as I understand it, classifying and declassifying are tightly related and person A can’t declassify something person B classified…at least not easily or instantly.
Parsing is a pain, but there are some existing rules and precedents, so what happened, regardless of how it’s described, can be reviewed for legality.
My guess is that if Cheney is in serious trouble it’s because he didn’t receive a proper authorization or Bush was vague, but implied authority, or Bush would simply lie and stab Darth in the back (the Bush modus operandi) to place blame on Cheney.
[ Note: Is it operandi or operandus? Hmmm. ]
Of course Bush wouldn’t say anything in front of witnesses or sign a piece of paper, but there may be some other evidence. Who knows? I’d ask Armitage if he knows anything about it.
Also, remember how diligently Mukasey avoided being the one to make this call–he did not, IIRC, do all that the AG normally would have done in this case, he had Bradbury do it for him.
Sullivan no doubt still feels like he missed his chance to hold Mkuasey in contempt for refusing to turn over docs in the Stevens case. So he may sense the weakness of what Mukasey did (along with the shrewdness of Fitz agreeing to non-grand jury appearances) and see his opening.
Agreed
Hey Petro. Hugs. How are the girls doing? Growing up nicely?
They are splendid and looking forward to Summer Holidays.
Walter Cronkite gravely ill.
Sob…I was in 6th grade when Kennedy was killed, and will never forget Cronkite’s coverage.
News.
I’m sure all of you have already seen this, but in the event that some of you haven’t here is the DOJ’s response from last year stating that Cheney’s interview transcript was classified for national security reason.
I don’t have a great read on Sullivan, but he was wishy washy beyond reason in letting the govt. get away with stuff in Stevens.
Here is the Bradbury Declaration in question
awesome! Thanks for posting this!
In reading both documents provided by you and Jason, my mind runs wild in imagining what or who they may be referring to with their objections.
The response that release of the interview with Cheney might hinder some future criminal investigation makes me crazy. I keep thinking that DOJ and OLC may not be referring to a future administration but in fact refers to further criminal charges to the Bush/Cheney administration.
Cheney, in particular, is the master of all masters in “compartmentalizing” his crimes. He did so with a knowledge that he could respond to questions and limit the focus to a minute subsection of the investigation and offer a valid response although not an ethical one and maybe not even a legal one if the questions were posed correctly by the FBI.
I agree with EW that the handwritten notes from the FBI might be the most telling of the documents. I can see now the small, almost illegible note that he reads….”He’s lying on this point”.
Most people have forgotten that this statement “Bradbury, who was the acting head of the Office of Legal Counsel, was not obviously qualified to make such claims” means more than most will understand. Bradbury held that office illegally towards the end of the Bush term. He served past the legal time to to a “acting head” and I believe he was recessed appointed to the limit and that time ran out also. Bush just refused to remove him and so did Mukasey. The Judges would of known this and many would of been highly offended. That Bradbury still has his license is as puzzling as Yoo and Gonzales having theirs.
Late to the vigil … I’d support a rule, or at least a mandatory apology/act of expiation.
Uncannily enough, I’d already been suffering an acute case of the same dark suspicions that many are having over the motive for the Post’s bizarrely stupid move. So much that I was driven to look up an old Jules Feiffer cartoon that I recalled from about 1966 or so (oh my, just typoed 1066 … get over there, digit!) Couldn’t find one on-line, but the curious might try a little subterfuge: the comic appears in a Feiffer collection called Explainers: The Complete Village Voice Strips which I am likely to own fairly soon. If one does a “Search Inside” on the word “criticism” and then goes to the choice on page 466, one finds it.
Those who remember LBJ’s usual diction and manner in public speaking can compare the number of frames it takes to put them on the floor; Feiffer absolutely nails the man here. I’m a goner by the second frame. Those who do not recall LBJ, please take my word that this is a masterpiece of satire, accomplished with hardly a single obvious gesture of lampooning. And I do think we might have a similar case at present.
Thanks bmaz for posting Bradbury’s declaration.
There might be a goodie or two in the material that is claimed to be protected under the deliberative process privilege, particularly this:
Remember that Libby’s story–which I assume was vetted by Cheney–was that Cheney had determined others at the WH were incompetent and so Libby was forced to deal with the press, which is where teh assessment of senior White House staff would come in (and that likely includes Tenet).
I’m sure Cheney got asked whether he heard back from his inquiries into the trip.
I hope to hell he got asked who told him about Plame’s employ at counter-proliferation (FTR, I think he was showed two memos she wrote).
Which leaves the big kahuna, IMO-discussions around Cheney’s insta-declassifiaction of what we know to be Plame’s ID
Yep, that quoted section really seems to address the heart of the matter.
I believe the use of “or” in the above sentence is uncalled for. I think it is clear that Sullivan believes (accurately) both that OLC is talking out of its tail AND Bradbury’s legal chops are . . . ahem . . . below those of a first year law student.
Aside from the asinine fretting over Jon Stewart’s Grade A ridicule that concludes this sentence, this assertion is very troubling. While I understand that a sitting President cannot be prosecuted while in office (hence impeachment — thanks a lot Nancy), I do not believe that they are not obligated to cooperate in a criminal probe, especially if there are others implicated in the crime. Since when (yeah yeah Jan 2001) have the President and VP been entirely above the law? I hope when Sullivan makes his decision, he lambastes DoJ on this point.
And to think, Comey was concerned about Bradbury bending to pressure during his “trial” period:
Looks to me like Bradbury’s lifelong dream was to compete with Addington to be Cheney’s favorite sub. Bending to pressure was the most stimulating part of the job.
ianal but my interpretation is that this is not saying the information is not protected it’s saying the person making the claim has no authority
or, if obama makes those claims then they will likely stand and from everything obama has done to date, he will make those very same claims
Then why in the world did Obama send out Bradbury to make the claims in the first place?
I’d say it goes the other direction: Obama knew that the claims were dubious, but didn’t want to be seen as “politicizing” things by not defending Cheney. Thus, he in effect sends out Bradbury to do it — “I’ll send in one of Cheney’s own” — and if/when Sullivan laughs it out of court, Obama doesn’t have to take as much political heat. “Your guy argued the case in his brief, not mine.”
I’m not one for 11 dimensional chess, but that’s the only reason I can see for having Bradbury advance these claims.
Then why in the world did Obama send out Bradbury to make the claims in the first place?
The Bradbury declaration was made Oct 10, 2008.
Peterr’s question is valid though:
I’m not sure I would agree with that being the “only” reason. Now that Obama is in the oval office, he undoubtedly has a new appreciation for being beyond the reach of the law. His defense of the BushCo claims to unreviewable power may be less of a defense of past BushCo, than it is a future projection of his own interests.
I’ve said this before concerning a sitting president’s percieved or actual authority
the president IS king unless congress stops him, the supreme court can’t stop him from anything nor can our law
the only thing that can stop him is the threat of impeachment, once that is off the table he is king
obama is king until it becomes clear to him even the democrats will be all too happy to impeach if he continues with the depraved policies of bush
now we all know that is not going to happen
therefore, it does not matter how we read the law, how we interpret the law, how the law was written and the intention of that law
none of that matters, the president can do whatever he wants, so can the vice president
this is the most important thing we have learned from the bush administration, that the president is king unless and until congress says he is not
challenging the issues before a court or judge does nothing, threat of impeachment and then impeachment is the only means of stopping our president as he sits after bush
From the OP: “Sullivan said Bradbury, who was the acting head of the Office of Legal Counsel, was not obviously qualified to make such claims and that they were in any event unsubstantiated.”
Left hanging is the question of whether the judge actually said “not obviously,” or “obviously not.” The meanings are quite different.
It’s been alluded to already, but I think, esp after looking at the Declaration bmaz linked @15 that Sullivan is referring to legal competence, not so much in the snarky sense of not knowing the difference between torture prisons and vacation spas, but in the sense of not having the agency and ability to make the invocations made.
That is a strange Declaration. On the Exec privilege types of issues, it goes out of its way to say things about which Bradbury has no first hand knowledge, without any supporting affidavit. I mentioned this on the Panetta Declaration that has a weird bit in it about the judgments in the Declaration being all his own, but Declarations aren’t typically meant to be able to be put on as “evidence” of someone’s “judgment” under a standard where that judgment is just then required to be accepted. They are meant to be statements of fact based on knowledge or supported by other info acquired after due diligence.
So when Bradbury starts off with all kinds of odd references to what the Attorney General did (pleading with the President to purty purty please invoke Exec privilege) it is strange both in that the AG should be putting that in his own affidavit or declaration and also strange in that it seems a very deliberate attempt to paper over to show that the President (and counsel) didn’t go to the AG and obstruct by invoking privilege, but instead it was all the AG’s idea, the AG talked the President into it, is how the Dec reads, more or less.
Anyway, the privilege is for the WH to invoke, not for the OLC to “tell a story” about how the AG went to the WH and pleaded for it to invoke. On the Classification front, too, I’m wondering how that is working. Seems like the statement is being originated by DOJ. Cheney is being interviewed, but isn’t acting in a delegation of power from the President. Seems like the Acting AG for the matter would have had to be involved in the “classification” if that is what actually happened.
[That’s one of the things that always bugs me – that no one has really required DOJ to nail down what happened with the acting AG status and the mandate to Fitzgerald after Comey left – sure, things went originally to Margolis, but what happened when McNulty came on and later with Mukasey, and after all the filings Fitzgerald made and his letters/responses to Congress, all confirming that his mandate could be modified or withdrawn at any time and for no reason by the acting AG for his matter, it seems that someone should at least nail down what did happen on that front]
It seems like Smith was almost working to set out the argument that the real “reason” for the non-production was so that no one would make fun of Cheney – iow, that it was being invoked to prevent embarassment which is pretty much an “on its face” violation of the EO on classification. Of all the approaches he (Smith) could have taken under the Bradbury Declaration, focusing on whether or not The Daily Show would make fun of Cheney seems almost a deliberate choice to pick a road that has a closed sign on it.
What with Bush joining Cheney on taking aim at Obama, one place where Obama might feel like he could safely throw a bone without getting the CIA and military mad at him might be on something like the Plame investigation and the USA firings. From the universe of arguments offered up by the incompetent Declaration, for Smith to pick “Jon Stewart might snigger at Cheney” as the heart of his argument doesn’t sound like there was a lot of dedication to winning.
Most of the Bush administration’s ‘take it or leave it’, ‘ying and yang’ responses were strange declarations” No?
Heh heh, ya think??
As to your last, god forbid they actually man up and just tell the court that they are withdrawing their pleadings or simply take no position. So we should be impressed that Obama is taking action in the one place where the old spooky military spook complex can’t scare him? Eh, not so much from me.
On the impressed front, I’m not buying the t-shirt either.
When he looks Arar’s and el-Masri’s children in the eye and tells the truth about what we did, then maybe. But it’s hard to be impressed ever when everyone seems to have to be drug kicking and screaming for every inch of progress.
So, is there a new legal defense that I am not aware of; namely, that certain types of information should be withheld from the public because it might produce fodder for the Daily Show? Should this be called henceforth the Daily Show Defense?
Government officials shouldn’t have the choice as to whether they cooperate with criminal investigations. Cheney’s “interview” with the FBI should be a matter of public record and if he wasn’t lying [huge “if”] then what is there to hide?
The larger issue is how troubling it is to see the Obama DOJ mirroring in virtually every case the ludicrous arguments posited by Bush lawyers. In case after case, the current DOJ is just like the old DOJ…
With regard to Froomkin: his was the only column worth reading anyway. Aside from Carrie Johnson’s occasional tidbits, Froomkin took the Administration to task [whether Bush or Obama] and this can only mean the WaPo Board is interested in kow-towing to Obama while trying to attract neocons from the Wash Times by showcasing Wolfowitz — the disgraced former World Bank President and War Criminal.
Screw Bradbury,Dick Cheney’s not qualified to hold Valerie Plame’s Jock.
or breathe the same air. Screw the Bush administration they knowingly outed a CIA undercover agent. They knowingly undermined U.S, National security. Will the public ever have access to the C.I.A’s report on how this outing effected national security?
I’d love to hear a Bushie lawyer try to explain how disclosing the nature of Valerie Plame Wilson’s work (’outing’ a NOC agent) is somehow “normal in the course of work for a President, Vice President, Political Adviser, Press Secretary or Adviser to the Veep”.
It isn’t ‘normal’ in my world. And, if it isn’t ‘normal’ then it can’t be protected, even now.
Go Judge Sullivan try to make us believe that “no one is above the law” because right now most of Americans do not believe this.
The Bush administration IS ABOVE THE LAW and that is a fact
CAUTION: Publication of Bush admin information may cause widespread hilarity.
*g*
@40 – or possibly the Jon’s Defense?
dare i say that this would appear to make Jon Stewart the most feared ‘journalist’ in amerika?
and what in turn does that say about the MSM, particularly the inside the beltway MSM?
what the hell is going on this has to be the last straw we all have to face the facts when it come to obama and the folks in his administration darn near all of them are tri lateral commision and the bilderburgs and skull n bones.earlier this week crew ask to see secret service logs obama said no just like bush,he is expanding the war in afgannistan, increasing the milatary budget, broke his promise to gay community, i can go on and on from day 1 he has lied and no one is saying a damm word am i the only one that has eyes and ears people wkae up we been had
Mathews is screaming at Congressman Cohen who sponsored the apology for slavery. WE HAD NOTHING TO DO WITH IT!
f chris mathews we all no who signs his paycheck
http://www.youtube.com/watch?v…..re=related
everyone check this out and make up your own mind
Swopa is upstairs at the Mothership!
Tightrope Walking in Tehran (and Washington, D.C.)
I’m beginning to get a little irked at the O Admin. No more money—and I gave plenty—until they shape up.