Why Did Mukasey Claim Executive Privilege?

Here at The Washington Independent we just intrepidly combed through the entire six page letter that Michael Mukasey sent to President George W. Bush, asking him to assert executive privilege in the House oversight committee’s Valerie Plame investigation. Here’s what it says: Mukasey is fine with handing over an edited version of all interviews Patrick Fitzgerald had with White House officials about the Plame investigation, except for those with George Bush and Dick Cheney. In even allowing these censored interviews, Mukasey writes that he’s making an "extraordinary accommodation."

So why are interviews with the president and vice president beyond the pale? Mukasey believes "such a production would chill deliberations among future White House officials and impede future Justice Dept. criminal investigations." His constitutional claims for executive privilege, however, seems dubious.

Mukasey cites the famous 1974 executive privilege case, U.S. v. Nixon, where the U.S. Supreme Court found the president can withhold documents from Congress that display "blunt or harsh opinions in Presidential decisionmaking…between a President and those who assist him." The document in question here, though, is an interview Cheney had with a federal prosecutor, not a policy discussion with his staff. Mukasey acknowledges this, arguing that the interview with Fitzgerald talked about instances of White House decision making (for example deliberations among senior White House officials about the president’s state of the union claim that Saddam Hussein wanted Uranium from Niger).

As for undermining future Justice Dept. investigations, Mukasey admits that executive privilege is "more commonly implicated when Congress seeks material about an open criminal investigation." The Plame case has been closed for more than a year. Mukasey, though, is concerned that the oversight committee simply wants the Cheney interview "for the purpose of addressing highly politicized issues in public committee hearings."

This turns out to be the crux of the attorney general’s argument: maybe there’s not much constitutional precedent backing me up but the Cheney interview isn’t that important. This is an old case and the interview won’t change anything.

Which raises the question: What is stopping the administration from providing the interview, giving the oversight committee their moment of publicity, and then moving on from the Plame saga?

Rep. Tom Davis (R-Va.), the House oversight committee’s top Republican, rose to Mukasey’s defense at oversight committee business meeting. He assailed oversight committee chairman Henry A. Waxman (D-Calif.) for not unveiling Mukasey’s letter until this morning. The letter to Waxman is dated yesterday. Davis moaned that he didn’t have enough time to digest the letter where Mukasey asked George Bush if he could assert executive privilege (The president immediately replied that he could). Davis has long questioned the merits of continuing the Valerie Plame Wilson investigation.