             Assertion of Executive Privilege Concerning the
            Special Counsel’s Interviews of the Vice President
                      and Senior White House Staff
It is legally permissible for the President to assert executive privilege in response to a congressional
    subpoena for reports of Department of Justice interviews with the Vice President and senior White
    House staff taken during the Department’s investigation by Special Counsel Patrick Fitzgerald into
    the disclosure of Valerie Plame Wilson’s identity as an employee of the Central Intelligence
    Agency.

                                                                                        July 15, 2008

THE PRESIDENT
    THE WHITE HOUSE

Dear Mr. President:
   I am writing to request that you assert executive privilege with respect to De-
partment of Justice documents subpoenaed by the Committee on Government
Reform of the House of Representatives (the “Committee”).
   The subpoenaed documents concern the Department’s investigation by Special
Counsel Patrick Fitzgerald into the disclosure of Valerie Plame Wilson’s identity
as an employee of the Central Intelligence Agency. The documents include
Federal Bureau of Investigation (“FBI”) reports of the Special Counsel’s inter-
views with the Vice President and senior White House staff, as well as handwrit-
ten notes taken by FBI agents during some of these interviews. 1 The subpoena also
seeks notes taken by the Deputy National Security Advisor during conversations
with the Vice President and senior White House officials and other documents
provided by the White House to the Special Counsel during the course of the
investigation. Many of the subpoenaed materials reflect frank and candid delibera-
tions among senior presidential advisers, including the Vice President, the White
House Chief of Staff, the National Security Advisor, and the White House Press
Secretary. The deliberations concern a number of sensitive issues, including the
preparation of your January 2003 State of the Union Address, possible responses
to public assertions challenging the accuracy of a statement in the address, and the
decision to send Ms. Plame’s husband, Ambassador Joseph Wilson, to Niger in
2002 to investigate Iraqi efforts to acquire yellowcake uranium. Some of the


    1
      Although the subpoena also sought the FBI report of the Special Counsel’s interview with you,
the Committee has effectively suspended that portion of the subpoena. See Letter for Michael B.
Mukasey, Attorney General, from Henry A. Waxman, Chairman, House Committee on Oversight and
Government Reform at 1 (July 8, 2008) (“July 8 Committee Letter”) (“[T]he Committee will not seek
access to the report of the FBI interview of President Bush at this time.”). Accordingly, the report of
your interview is not among the materials over which I am requesting that you assert executive
privilege.




                                                   7
                 Opinions of the Office of Legal Counsel in Volume 32


subpoenaed documents also contain information about communications between
you and senior White House officials.
   The Department has made substantial efforts to accommodate the Committee’s
oversight interests concerning the Plame matter by producing or making available
for the Committee’s review a large number of FBI reports of interviews with
senior White House, State Department and Central Intelligence Agency officials.
In view of the heightened confidentiality interests attendant to White House
deliberations, we consider our willingness to make the reports of interviews with
senior White House staff available for the Committee’s review, subject to limited
redactions, to be an extraordinary accommodation. On June 24, 2008, we informed
the Committee that we anticipate offering to make the remaining reports of
interviews with senior White House staff available for Committee review on the
same basis as the reports previously reviewed by Committee staff. See Letter for
Henry A. Waxman, Chairman, House Committee on Oversight and Government
Reform, from Keith B. Nelson, Principal Deputy Assistant Attorney General,
Office of Legislative Affairs at 1 (June 24, 2008) (“June 24 Department Letter”).
The only reports the Department has not expressed a willingness to make available
for review are those for the interviews of you and the Vice President, because of
heightened separation of powers concerns.
   Despite these substantial efforts at accommodation, the Committee insists that
the Department provide it with unredacted copies of all of the subpoenaed
documents except your interview report. In my view, such a production would
chill deliberations among future White House officials and impede future Depart-
ment of Justice criminal investigations involving official White House conduct.
Accordingly, for the reasons discussed below, it is my considered legal judgment
that it would be legally permissible for you to assert executive privilege with
respect to the subpoenaed documents, and I respectfully request that you do so.

                                          I.

   It is well established that the doctrine of executive privilege protects a number
of Executive Branch confidentiality interests. Preserving the confidentiality of
internal White House deliberations related to official actions by the President lies
at the core of the privilege. See, e.g., In re Sealed Case, 121 F.3d 729, 752–53
(D.C. Cir. 1997) (addressing presidential communications component of executive
privilege); Assertion of Executive Privilege With Respect to Clemency Decision,
23 Op. O.L.C. 1, 1–2 (1999) (opinion of Attorney General Janet Reno) (same). As
the Supreme Court recognized in United States v. Nixon, 418 U.S. 683 (1974),
there is a

      necessity for protection of the public interest in candid, objective,
      and even blunt or harsh opinions in Presidential decisionmaking. A
      President and those who assist him must be free to explore alterna-



                                          8
          Assertion of Executive Privilege Concerning Special Counsel’s Interviews


        tives in the process of shaping policies and making decisions and to
        do so in a way many would be unwilling to express except privately.
        These . . . considerations justify[] a presumptive privilege for Presi-
        dential communications. The privilege is fundamental to the opera-
        tion of Government and inextricably rooted in the separation of pow-
        ers under the Constitution.

Id. at 708.
    Executive privilege also extends to all Executive Branch deliberations, even
when the deliberations do not directly implicate presidential decisionmaking. As
the Supreme Court has explained, there is a “valid need for protection of commu-
nications between high Government officials and those who advise and assist them
in the performance of their manifold duties; the importance of this confidentiality
is too plain to require further discussion.” Nixon, 418 U.S. at 705; see also
Assertion of Executive Privilege With Respect to Prosecutorial Documents, 25 Op.
O.L.C. 1, 2 (2001) (opinion of Attorney General John D. Ashcroft) (“The Consti-
tution clearly gives the President the power to protect the confidentiality of
Executive Branch deliberations.”); Assertion of Executive Privilege With Respect
to Clemency Decision, 23 Op. O.L.C. at 2 (explaining that executive privilege
extends to deliberative communications within the Executive Branch); Assertion of
Executive Privilege in Response to a Congressional Subpoena, 5 Op. O.L.C. 27,
30 (1981) (opinion of Attorney General William French Smith) (assertion of
executive privilege to protect deliberative materials held by the Department of
Interior). 2
    Much of the content of the subpoenaed documents falls squarely within the
presidential communications and deliberative process components of executive
privilege. Several of the subpoenaed interview reports summarize conversations
between you and your advisors, which are direct presidential communications.
Other portions of the documents fall within the scope of the presidential commu-
nications component of the privilege because they summarize deliberations among
your most senior advisers in the course of preparing information or advice for
presentation to you, including information related to the preparation of your 2003
State of the Union Address and possible responses to public assertions that the


    2
      The Justice Department’s long-standing position finds strong support in various court decisions
recognizing that the deliberative process privilege protects internal government deliberations from
disclosure in civil litigation. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)
(“Manifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of
agency decisions.”); Landry v. FDIC, 204 F.3d 1125, 1135–36 (D.C. Cir. 2000) (describing how
agencies may assert the “deliberative process” component of executive privilege in litigation); Dow
Jones & Co. v. Dep’t of Justice, 917 F.2d 571, 573–74 (D.C. Cir. 1990) (describing the “‘deliberative
process’ or ‘executive’ privilege” as an “ancient privilege . . . predicated on the recognition that the
quality of administrative decision-making would be seriously undermined if agencies were forced to
operate in a fishbowl”) (internal quotation marks omitted).




                                                    9
                 Opinions of the Office of Legal Counsel in Volume 32


address contained an inaccurate statement. In addition, many of the documents
summarize deliberations among senior White House officials about how to
respond to media inquiries concerning the 2003 State of the Union Address and
Ambassador Wilson’s trip to Niger. Such internal deliberations among White
House staff clearly fall within the scope of the deliberative process component of
the privilege. As the Supreme Court explained, “[h]uman experience teaches that
those who expect public dissemination of their remarks may well temper candor
with a concern for appearances and for their own interests to the detriment of the
decisionmaking process.” Nixon, 418 U.S. at 705.
   Moreover, because the subpoenaed documents are from law enforcement files,
the law enforcement component of executive privilege is also implicated. The
President may invoke executive privilege to preserve the integrity and indepen-
dence of criminal investigations and prosecutions. See Response to Congressional
Requests for Information Regarding Decisions Made Under the Independent
Counsel Act, 10 Op. O.L.C. 68, 75–78 (1986) (“Independent Counsel Act”)
(explaining the Executive Branch’s authority to withhold open and closed law
enforcement files from Congress); Prosecution for Contempt of Congress of an
Executive Branch Official Who Has Asserted a Claim of Executive Privilege,
8 Op. O.L.C. 101, 117 (1984) (“Since the early part of the 19th century, Presidents
have steadfastly protected the confidentiality and integrity of investigative files
from untimely, inappropriate, or uncontrollable access by the other branches,
particularly the legislature.”); Assertion of Executive Privilege in Response to
Congressional Demands for Law Enforcement Files, 6 Op. O.L.C. 31, 32–33
(1982) (same concerning law enforcement files of the Environmental Protection
Agency); Position of the Executive Department Regarding Investigative Reports,
40 Op. Att’y Gen. 45, 49 (1941) (same concerning investigative files of the
Federal Bureau of Investigation). Although the law enforcement component of
executive privilege is more commonly implicated when Congress seeks materials
about an open criminal investigation, the separation of powers necessity of
protecting the integrity and effectiveness of the prosecutorial process continues
after an investigation closes. Independent Counsel Act, 10 Op. O.L.C. at 77. The
Department has long recognized that executive privilege protects documents
related to a closed criminal investigation where disclosure might “hamper
prosecutorial decision-making in future cases” or undermine the Executive
Branch’s “long-term institutional interest in maintaining the integrity of the
prosecutorial decision-making process.” Id.
   Even though the Special Counsel’s investigation and the Libby prosecution are
closed matters, the law enforcement component of executive privilege is applica-
ble here because the Committee’s subpoena raises serious separation of powers
concerns related to the integrity and effectiveness of future law enforcement
investigations by the Department of Justice. I have a general concern about the
prospect of committees of Congress obtaining confidential records from Justice
Department criminal investigative files for the purpose of addressing highly



                                         10
        Assertion of Executive Privilege Concerning Special Counsel’s Interviews


politicized issues in public committee hearings. More specifically, I am concerned
about the subpoena’s impact on White House cooperation with future Justice
Department criminal investigations. As the Department has explained to the
Committee, there “is an admirable tradition, extending back through Administra-
tions of both political parties, of full cooperation by the White House with
criminal investigations.” June 24 Department Letter at 2. In keeping with this
tradition, you, the Vice President and White House staff cooperated voluntarily
with the Special Counsel’s investigation, agreeing to informal interviews outside
the presence of the grand jury. Were future presidents, vice presidents or White
House staff to perceive that such voluntary cooperation would create records that
would likely be made available to Congress (and then possibly disclosed publicly
outside of judicial proceedings such as a trial), there would be an unacceptable risk
that such knowledge could adversely impact their willingness to cooperate fully
and candidly in a voluntary interview. They might insist, alternatively, on
disclosing information only pursuant to a grand jury subpoena in order to ensure
the secrecy protections of Rule 6(e) of the Federal Rules of Criminal Procedure.
Thus, if the Department were to release copies of interview reports with the Vice
President or senior White House staff, this precedent could discourage voluntary
cooperation with future Department criminal investigations involving official
White House actions. Such a result would significantly impair the Department’s
ability to conduct future law enforcement investigations that would benefit from
full White House cooperation.
   Accordingly, for the reasons discussed above, I believe that the subpoenaed
materials fall within the scope of executive privilege.

                                          II.

   Under controlling case law, a congressional committee may overcome an asser-
tion of executive privilege only if it establishes that the subpoenaed documents are
“demonstrably critical to the responsible fulfillment of the Committee’s func-
tions.” Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498
F.2d 725, 731 (D.C. Cir. 1974) (en banc). Those functions must be in furtherance
of Congress’s legitimate legislative responsibilities. See McGrain v. Daugherty,
273 U.S. 135, 160 (1927) (Congress has oversight authority “to enable it efficient-
ly to exercise a legislative function belonging to it under the Constitution.”). The
Committee has not satisfied this high standard.
   The Committee asserts that it needs the subpoenaed documents “to answer
important questions about how the White House safeguards national security
secrets and responds to breaches, and to make legislative recommendations to
ensure appropriate handling of classified information by White House officials.”
July 8 Committee Letter, supra note 1, at 6. The Department has acknowledged
that the Committee may have legitimate oversight interests in this area. See, e.g.,




                                          11
                 Opinions of the Office of Legal Counsel in Volume 32


June 24 Department Letter at 1, 3 (summarizing the Department’s efforts to
accommodate the Committee’s interests).
    It is not sufficient, however, for the Committee to assert that the subpoenaed
documents may, at some level, relate to a legitimate oversight interest. To
overcome an assertion of executive privilege, a congressional committee must
“point[] to . . . specific legislative decisions that cannot responsibly be made
without access to [the privileged] materials.” Senate Select Comm., 498 F.2d at
733. In this sense, the D.C. Circuit has emphasized, “[t]here is a clear difference
between Congress’s legislative tasks and the responsibility of a grand jury.” Id. at
732. “While fact-finding by a legislative committee is undeniably a part of its task,
legislative judgments normally depend more on the predicted consequences of
proposed legislative actions and their political acceptability, than on precise
reconstruction of past events.” Id.; see also Congressional Requests for Confiden-
tial Executive Branch Information, 13 Op. O.L.C. 153, 159 (1989) (“Congress will
seldom have any legitimate legislative interest in knowing the precise predecision-
al positions and statements of particular executive branch officials.”).
    The Committee has yet to identify any specific legislative need for the subpoe-
naed documents, relying instead on a generalized interest in evaluating the White
House’s involvement in the Plame matter as part of its review of White House
procedures governing the handling of classified documents. The Department has
already made extensive efforts to accommodate this interest. Among other steps,
the Department has produced or made available for the Committee’s review
dozens of FBI reports of interviews with senior White House staff and State
Department and Central Intelligence Agency officials. Indeed, with the exception
of the Vice President’s interview report (and yours), the Department has made
available for the Committee’s review, or indicated it anticipates making available
for review, all of the interview reports subpoenaed by the Committee, subject to
limited redactions to protect presidential communications and irrelevant personal
information. In the Department’s view, these accommodations, combined with the
voluminous record from the Libby trial, should satisfy the Committee’s legitimate
interests.
    The only subpoenaed document that the Committee addresses with any particu-
larity is the Vice President’s interview report, which the Department has not made
available for review because of heightened separation of powers concerns. Despite
repeatedly referencing the report, however, the Committee never articulates any
legitimate legislative interest in the document that might outweigh an executive
privilege claim. Instead, the Committee simply reiterates its general interest in
White House procedures for handling classified information, July 8 Committee
Letter at 6, and broadly asserts that “this Committee and the American people are
entitled to know” about the Vice President’s conduct in the Plame matter, id. at 2.
    These general assertions fall well short of the “demonstrably critical” particu-
larized need required to overcome an executive privilege claim. The Department




                                         12
        Assertion of Executive Privilege Concerning Special Counsel’s Interviews


has already accommodated any legitimate interest the Committee may have in
specifically understanding the Vice President’s actions. Interview reports and
other documents produced or made available to the Committee describe the Vice
President’s role in the Plame matter, including his involvement in responding to
Ambassador Wilson’s article about his trip to Niger and allegations that your State
of the Union Address contained an inaccurate statement. Numerous public
materials, including testimony and exhibits introduced at the Libby trial, also
discuss the Vice President’s participation in the matter. Much of the information in
the Vice President’s interview report is cumulative, and therefore not “demonstra-
bly critical” to the Committee’s legislative functions. See Senate Select Comm.,
498 F.2d at 731–32. And, even assuming that some of the information is not
duplicative, the Committee still has not explained the compelling legislative need
that requires it to understand all of the details of the Vice President’s involvement
in the matter. See id. at 732 (explaining that legitimate legislative functions rarely
require a “precise reconstruction of past events”).
    Moreover, Congress’s legislative function does not imply a freestanding au-
thority to gather information for the sole purpose of informing “the American
people.” July 8 Committee Letter at 2. Article I of the Constitution does not
explicitly vest Congress with an “informing function,” and the only informing
function of Congress implied under Article I, its oversight function, “is that of
informing itself about subjects susceptible to legislation, not that of informing the
public.” Miller v. Transamerican Press, Inc., 709 F.2d 524, 531 (9th Cir. 1983)
(citing Hutchinson v. Proximire, 443 U.S. 111, 132–33 (1979)).
    Accordingly, when I balance the Committee’s attenuated legislative interest in
the subpoenaed documents against the Executive Branch’s strong interest in
protecting the confidentiality of its internal deliberations and protecting the
integrity of future criminal investigations by the Department, I conclude that the
Committee has not established that the subpoenaed documents are “demonstrably
critical to the responsible fulfillment” of the Committee’s legitimate legislative
functions. Senate Select Comm., 498 F.2d at 731.

                                          III.

   I am greatly concerned about the chilling effect that compliance with the
Committee’s subpoena would have on future White House deliberations and
White House cooperation with future Justice Department investigations. For the
reasons set forth above, I believe that it is legally permissible for you to assert
executive privilege with respect to the subpoenaed documents. I respectfully
request that you do so.

                                                 MICHAEL B. MUKASEY
                                                    Attorney General




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