And furthermore …

WARNING TO THE INNOCENT: long, weedy, potentially confusing, at worst just confused.

Your exchange with JThomason may have arrived at as good or better a spot than I was seeking.

I was trying to work it out from the stand point of how the legal process is supposed to work in FOIA reviews, including onuses and presumptions, because if there’s theoretical legal differences between the approaches, there’s just got to be a practical difference. But ach, maybe not: on reflection, it’s the design of the FOIA itself that may not allow for any such difference be emerge as practical. FOIA doesn’t, for example, provide anything like the scope Judge Sirica had back during Watergate.

Apart from that, I still find this tough to articulate, and when something’s tough to articulate, often it lies between dubious and spurious.

But there is something in here, maybe like Mary’s expressions back a few threads on a related subject. So for what it may be worth, here goes.

I start by taking 2 small bites from your comment at #42:

[1] You: “I think you’re arguing suggests Cheney, with the knowledge of the Bush WH, already decided to waive privilege on this, which would mean the FOIA claim is particularly bogus.”

I am suggesting exactly that, both as to the attitude Cheney had toward the process, and as to the potential legal effect O’Donnell would have to have advised him about, because O’Donnell’s role, better practices, prudence and his duties to Cheney would make it plain, and there’s nothing either obvious or apparent that suggests otherwise.

The distinction may be little more than quibble: that such forethought wouldn’t so much render a subsequent claim to withhold “particularly bogus” – adding bogosity like oil additive – as it would render ANY claim to withhold ANY part of the interview bogusae ab initio.

[I’d love for that to be an actual Latin maxim. AFAIK it’s not. What I mean is: ‘bogus from the get go’.]

I envision an approach to the process of scepticism rooted in evidence relevant to the controversy – which potentially might open up the process beyond what might come from ‘merely’ [using that word with respect for all the work you put into this, and not at all prejoratively] examining each claim of privilege against any public record about the same content from this interview.

Not that a judge can’t do both. If it’s present IMO a judge OUGHT to do both, due to the potential for review on appeal.

[2] You: “I originally saw it as supporting a weaker claim–basically supporting the larger case that this is already in the public record and therefore not privileged.”

I can’t tell what you intend by as “a weaker claim”. Is it possible you meant to refer to this line of attack on the privilege claim as being “weaker”?

I won’t go far down this line, because we may already be in eddies of confusion – my own, at least mostly – but I do venture this:

Characteristically, you’ve shown a greater sensibility and related gifts than me on what can be drawn reliably from public reports.

[At least I have company; nobody does it better.]

Plus, my approach may suffer from that paucity inherent in the drier language of legal theory, in addition to limits of my own making [maybe more the latter].

So — back to basics:

What’s at stake here is the investigator’s record of an interview, conducted by a duly authorized commissioned officer of an executive branch agency, of a material witness who:

[a] also happens to be a public official,

[b] holds an office the Constitution specifically associates in two respects with the executive branch [election, succession], and in two others with the legislative branch [budget, breaking Senate tie votes],

[c] would have known his materiality involved using authority, actual or assumed, different from and not at all necessarily incidental to those the Constitution grants his office, and

[d] variously had some control over parts of the process that involved him directly.

[I’m not convinced Cheney would argue point [c]. He might ‘dispute’ it, or get his daughter or that repulsive Bush apologist lawyer to dispute and argue it; none of that makes it less true.]

So the only sense for O’Donnell being there is due to Cheney’s personal liability, criminal and/or civil – NOT the liability of office, which, if that was involved, would allow for Addington, or at least someone in his stead.The only person who could assert executive privilege for the subject matter of what Cheney did from office is the person who held the authority he was using: Bush [now Obama, another issue].

Meaning what to Judge Sullivan? Well …

[A] One possible meaning to that ‘someone’ decided [the Decider?] Cheney was not being questioned on anything Bush expected to assert privilege over.

That’s where any judge should go to first. The law should, generally does, and in many specifics has been found to presume that the most likely thing among several possibilities, is the most lawful and orderly one – and particularly against others that are illegal or smelly or messy or scuzzy
[Judges tend to use more nuanced words. Reference: freepatriot.]

That means to me Judge Sullivan would first have to note the assertion of executive privilege at the FOIA stage flies in the face the appearance of the context in which the material in controversy was produced – and by operation of ‘presumption of regularity’ would force the government to come up with additional materials to support the its position – because just reading the materials from the interview, which Judge Sullivan has to the power to do to resolve even garden variety controversies, does not appear capable of cutting the mustard for the government in these circumstances.

[As you point out this appears to be where we are anyway, to which I respond with an emphatic: … could be…]

[B] Another possible meaning is Bush may have decided, at the time by actual or implied reservation, or subsequently based on how things turned out, to assert privilege at some point after the proceedings appeared to have closed – certainly after the trial of Libby where Cheney so robustly did not testify.

We have bases for doubting Bush would have worried himself about it, or that Cheney would have shared his true intentions with Bush going in, even if Cheney was earnestly willing to testify. But even Cheney could not absolutely foretell on the possibility or none of his testifying, in some form, in some forum, and in some respect; such investigations bear too much inherent uncertainty. And surely one of the many lawyers constantly hanging paper around Bush would realize this, and mention it to him; Hadley if not his WH counsel.

We can point to some of Fred Fielding’s correspondence in support of the latter variation on this approach – but still, Sullivan’s approach could possibly be subtly yet importantly different from that for [A].

Among other things, you wouldn’t expect the DoJ, particularly one under a new president of the opposing party, to have to work so hard at putting up new materials on the point.

And without all the additional material, you wouldn’t expect an attitude of bogusea ab initio, like what seems to have happened with Judge Walker in the al Haramain litigation.

So I think this is less likely.

No matter which of these approaches, we see avoidable risk taken on by the WH – but the WH approach on this at every stage reeks of avoidable risk, which is why this one can’t be entirely discounted.

[C] Another possible meaning is the idea of O’Donnell being present and Addington being ‘denied access’ represents a misreading of the process, or the presence of a gambit.

Whatever the reasoning at the time, it certainly turns out to have been prescient not to let Addington sit in, so I think that part may well have come from Fitz, who by then had more than enough from and about Addington to indicate something like a probability of his being a witness if case went ahead.

But the implication of no one being allowed in for the WH? That’s got some hoohah in it. How exactly would Fitz enforce against that? He could argue HIMSELF as the administration’s lawyer”.

My take is this had to have been the subject of discussion and negotiation between Fitz and O’Donnell, with Fitz ending up with at least an unsullied ‘record’, an unsullied Addington, a heads up on Cheney’s testimony if he were to attend any hearing, possibly more; and Cheney ending up with mere appearances and otherwise faith in his own bureaucratic skills to control the situation no matter what might happened, despite objective signs it had already spun out of control.

So [C] is my choice for what happened.

It’s not the picture being presented or argued — but the conclusion may be irresistible.

Taking this to the practical:

no matter whether the conclusion, [A], [B] or [C], FOIA means Judge Sullivan has to look at the information that is the subject of the controversy, within the context of further materials submitted as supposedly in support of the privilege claims — “facts” in the form of affidavits and supporting documents, sealed and unsealed.

However, the nature and degree of deference he ought to apply in that look-see process can vary based on good faith or bad faith of the parties involved, and through that may have effects on the outcome.

Well I think you’re right, too; but it does tend to cause problems when neither of Fitz’ bosses agrees with either of us.

Wonder what Dawn Johnson would think …

At least something came of it.

I started out hoping to add a little value to all that fab work you did for the poor downtrodden in the MSM, maybe even a bit for CREW and Judge Sullivan; but it fizzled. This is really your world and the rest of us are just fortunate to watch.

[tho I did think you’d like that Atin-lay it-bay].