October 14, 2008 -- President Bush sidetracked a congressional probe by wrongly invoking executive privilege, according to a draft bipartisan congressional report released today.
This June, the House Oversight and Government Reform Committee served a subpoena to the Justice Department for reports of interviews between FBI agents and Bush and Cheney.
The interviews had been conducted for former Special Counsel Patrick Fitzgerald's probe into the outing of former CIA undercover operative Valerie Plame, which concluded last year. The House panel was conducting its own inquiry into the matter.
The White House objected to the committee's subpoenas, and the panel dropped its efforts to obtain the Bush transcript, the draft report said. But the committee said it reiterated its request for the Cheney report, even threatening a contempt citation for Attorney General Michael Mukasey if the document was not produced.
In response, the White House asserted its executive privilege to withhold the document, according to the panel's draft report. The White House's argument, crafted by Mukasey, asserted among other things that the report "summarize[d] deliberations" among top aides preparing advice for Bush himself, and therefore is protected by the executive privilege, the report related. The power is meant to ensure presidents can receive confidential advice.
The panel disagreed, calling the move "legally unprecedented" and "inappropriate."
"There is no precedent holding that summaries of presidential conversations given to third parties — as opposed to the original conversations themselves — are subject to claims of executive privilege," it wrote in its report. The document, considered a draft because it had not been voted on by the full committee, was nevertheless approved by the panel's ranking Republican, Rep. Tom Davis, Va.
The panel also said it was "puzzled" by the White House's use of executive privilege to shield documents relating to Cheney, since the vice president himself had earlier argued he was not a member of the executive branch.
Former Special Prosecutor Fitzgerald wrapped up his investigation without indicting Cheney. He won a conviction against Cheney's senior aide, I. Lewis "Scooter" Libby, for obstructing justice.
"There is a cloud over the vice president," Fitzgerald said in his closing argument in that trial. "And that cloud remains because this defendant obstructed justice."
A year later, Cheney's role in the Plame affair is still obscured, the report said -- this time due to Bush, whose executive privilege claim "prevented the Committee from learning the extent of the Vice President's role in the disclosure of Ms. Wilson's identity," the panel wrote.
In a separate draft report released today, the committee concluded that Bush abused his authority when he used executive privilege to justify withholding 2,000 pages of documents relating to the EPA's compliance with the Clean Air Act. Without those documents, the panel said, it was unable to fully answer questions relating to the EPA's decision to bar California from regulating greenhouse gases.
"Rather than releasing a politically-motivated draft report attacking the President just three weeks before Election Day, Democratic leaders in Congress should focus on addressing the important economic and security needs of our nation," said White House spokesman Scott Stanzel.