President Barack Obama's Justice Department is arguing that former Vice President Dick Cheney's interview with prosecutors in the CIA leak case should remain secret for five to 10 years to persuade high-level government officials to cooperate in future investigations.
"In making public the vice pesident's interview, you will chill them," Justice Department attorney Jeffrey Smith told Judge Emmet Sullivan during a two-hour hearing Tuesday on a Freedom of Information Act lawsuit seeking release of records about the Cheney interview, which took place in 2004.
Sullivan sounded highly skeptical of the government's arguments, but he said he had not decided how he would rule in the case. "Where do I draw the line? This happened five years ago," the judge said. "Would there be impediments to putting this information in a time capsule?"
As the hearing concluded, Sullivan said he thought Congress had drawn a "bright line" with language in the Freedom of Information Act that generally exempts information about pending investigations from disclosure, but not closed probes, like the CIA leak case. He also said he would stay any ruling so the government could appeal before he released any documents.
Smith said the Justice Department's view was that a delay of five to 10 years was appropriate, marked from the time the official or his or her administration left office. "It's a judgment call," Smith acknowledged.
Smith suggested that such a delay would make it more likely that the information was used for historical purposes and not for political embarrassment. "The distinction is between releasing it for historical view and releasing it into the political fray," Smith said.
At a court session last month, Smith said the government feared the material could end up being used to mock Cheney on "The Daily Show."
"How do you distinguish the political fray from the public's right to know what the government is up to?" Sullivan asked.
At another juncture, the judge said the Justice Department seemed to be urging him to create a new vice presidents' exception to the Freedom of Information Act.
"What the government's asking me to do is create another exemption ... legislate - something courts can't do," Sullivan complained.
Smith said the danger was not only that officials might not cooperate with investigators but that the officials would be less candid. "People speak differently when they're speaking in public than when they're speaking in private to an investigator," he said.
An attorney for the liberal public-interest group seeking the documents, Citizens for Responsibility and Ethics in Washington, told the court that the government's arguments amounted to rank speculation.
"It's all about hypothetical posturing," the lawyer, David Sobel, said. "Where does that rationale end?"
"There is no reason why the claims [the government] makes couldn't be extended to members of Congress. ... What about the CEO of a publicly traded company?" Sobel argued. "The list of who might have apprehensions about their interview becoming public is endless."
At the hearing last month, Sullivan said he was not satisfied with the Bush administration's legal filings on the issue. In response, the attorney Obama appointed to head the criminal division, Lanny Breuer, filed a declaration saying disclosure of Cheney's interview could lead to a lack of cooperation that would "hamper" future investigations.
While prosecutors could resort to grand jury subpoenas to gather information, that could "have the effect of injecting the law enforcement investigation itself into the political process," Breuer warned.
"Presidents don't really have to cooperate if they really don't want to," Smith noted, referring to President George H.W. Bush's refusal to agree to an interview sought by Iran-Contra independent counsel Lawrence Walsh.