- The Washington Times - Wednesday, July 22, 2009

A federal judge questioned Tuesday whether the Justice Department’s request to not release notes from an FBI interview with former Vice President Dick Cheney essentially would require the judge to create new law, something he said he couldn’t do.

The government asked Judge Emmett Sullivan to keep the notes from being made public because, officials say, revealing them may discourage top White House officials from cooperating with future investigations. Judge Sullivan, however, said adopting the government’s reasoning would essentially create new limits for freedom of information laws.

“What the government is asking this court to do is to create another exemption, to legislate, something judges cannot do,” he said in federal court in Washington. “Why isn’t this a job for Congress? Why aren’t you before Congress asking them to carve out this additional category that you want me to create?”

His remarks came during a hearing on a government motion to end a freedom of information case seeking the release of the notes, which were taken in 2004 as part of the FBI’s investigation into the leak of former CIA operative Valerie Plame’s identity. The case was brought by the watchdog group Citizens for Responsibility and Ethics in Washington (CREW).

Judge Sullivan heard arguments from the Justice Department and CREW, but did not rule on the government’s request for a summary judgment, which would have stopped the case. The judge said he would take the government’s request “under advisement.”

He did say that even if he ultimately were to decide the case in CREW’s favor, he would withhold the actual documents in order to give the government a chance to appeal.

The case puts the Obama administration in the paradoxical position of protecting the interests of Mr. Cheney, one of its most vociferous critics.

But department lawyer Jeffrey Smith argued that the case is about a broader issue: that releasing such notes would dissuade future vice presidents and other top White House officials from cooperating with criminal investigations for fear that their words would be used as fodder for political opponents and even late-night comedians.

Mr. Smith said the documents could be released years later for “historical purposes,” but shouldn’t be released now because they would be used in the “political fray.”

David Sobel, a lawyer for CREW, argued that freedom of information laws do not allow for that type of exemption. He said the documents should be released because the investigation into the leak of Mrs. Plame’s identity is complete.

That investigation resulted in the conviction of Mr. Cheney’s chief of staff, I. Lewis “Scooter” Libby Jr., on charges of lying to a grand jury investigating the leak. President George W. Bush commuted Libby’s 2 1/2-year prison sentence before he spent a day behind bars.

• Ben Conery can be reached at bconery@washingtontimes.com.

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