The DOJ OLC website disclosed a pdf file: The AG's memo to the President making a case to assert executive privilege. Congress would like to look at the FBI-gathered White House memos. The AG argues these are protected.

We disagree for one reason: The conversations were after the decision to out Plames' name; these conversations were from a "post decisional" conversation, and executive privilege does not apply.

However, the AG, implicitly seeing his fleeting argument for privilege, shifted the burden from the President to the Congress. The AG absurdly argues, without establishing a bondide executive privilege claim, that Congress hasn't explained why it needs the (still unknown) information. This is irrelevant.

The AG's memoranda is full of logic flaws, which we discuss at the jump.

Background: Other, later coverage here.

I.

Congress wants access to White House staff notes taken during a conversation after a Presidential decision. These notes were obtained by the FBI. The Congress would like to review the White House records of these conversations.

The AG claims these White House records, as attached to the FBI files, are protected. This is a dubious claim.

The AG (incorrectly) reverses the legal argument by shifting the burden to Congress. However, Congress has no responsibility to explain anything as long as the President cannot credibly invoke a privilege claim. Without establishing a bonafide claim of executive privilege, the Congress has no obligation to explain to the AG or the court why the information is needed or what it might be used for.

A Constitutional reporting requirement does not permit the President to meet that requirement using false, dubious, or unreliable information; nor knowingly communicate that information to mislead the Congress. The question is whether the President and others violated one law; and used a subsequent reporting requirement to "justify" other illegal activity.

The Government Reform Committee is not bound to recognize the claim of privilege, but can independently gather other information. The Congress has no burden to justify their request when the President makes a dubious claim of privilege. The AG's note established a dubious claim of privilege, and pretends Congress has the burden of proof.

The AG is being disingenuous when he claims future investigations might be compromised: This AG has thwarted effective law enforcement.

The proper decision is whether the President has or has not adequately invoked privilege for documents unrelated to an Executive decision, but post-deliberative. The court need not consider whether Congress has or has not defined how it plans to use this information.

These are not internal deliberations; they were discussions after a decision; and those involved appear to have made statements they assumed would be protected on a dubious claim of privilege because they did not expect those discussions to be known or disclosed. Future Executive Branch personnel must know it is impermissible to hide evidence of illegal activity; and it is unreasonable to assume discussions and notes related to alleged illegal activity will be protected from Congress; or that a criminal investigation in the Executive Branch will forever shield evidence related to impeachment investigations.

The AG recognizes that the special counsel has legal authority to interview the Vice President and White House Staff. Invoking executive privilege is something the President must do. The Vice President and White House staff do not have "executive privilege".

Inapposite:

A. Post Decisional Discussions Not Covered: The AG is citing case law that claims deliberations are protected. Those cases are not relevant here. Deliberations must occur before a decision. Here, unlike  Sears, Roebuck & Co., 421 U.S. 132, 151 (1975) the discussions were after the original illegal activity-decision, and fall outside what the Supreme Court ruled.

B. Procedural: The AG in citing Landry v. FDIC, 204 F.3d 1125, 1135-36 (D.C. Cir. 2000) focuses on whether the agency is citing the process to invoke privilege; but has failed to address whether that process is appropriate or relevant to post-decisional discussion. IT is not.

C. Public Policy: The AG's citation of Dow Jones & Co. v. Dep't of Justice, 917 F.2d 571, 573-74 (D.C. Cir. 1990) excludes key language, and absurdly turns the idea of public oversight on it head. Once the President and his staff take their oath, they agree to conduct their affairs within the fishbowl called the Constitution, oath, and Supreme Law.

This President wants to hide inside a fishbowl, but cast aside waters of justice. Whether the Executive, OVP, or his staff are or are not an agency has no relationship to the reasonableness or unreasonableness of their expectation that post-decisional discussions related to illegal activity would or would not be protected. Their error was to incorrectly assume the discussions would never be disclosed. Their note taking represents an intent to record evidence of conversations they knew or should have known were outside what was reasonably shielded, especially after a decision, while a grand jury and FBI investigation continued. It is improper to guide future White House staff to how they should "better" hide evidence of illegal activity.

A. We need to understand why the senate, as a continuing body, did not take the lead in gathering evidence and issuing subpoenas.

Subsequent Discovery: Nixon reminds us that even the President is not immune to being compelled to provide information. The Executive privilege may be asserted; the question turns on whether the privilege is recognized. It does not have to be recognized, especially when there are claims that there has been official misconduct, and the assertion of privilege does not hide a bonafide state secret.

The real question is why isn't the Vice President and other claiming the information is classified? One answer is that evidence of illegal activity - although it might be (illegally) classified - is not immune to all judicial review.

Pre- vs. Post-Decisional Conversations: The AG's citation of Nixon relates to decisions. This would apply if the question was whether there were pre-decisions. This does not apply in this case. United States v. Nixon, 418 U.S. 683 (1974), The AG openly admits that some of the documents could be redacted. The communication and deliberations must occur before a Presidential decision. Here, the AG admits the discussions were after Plame's name was invoked. We set aside whether the AG has or hasn't adequately cited or quoted from the Nixon case.

Post Deliberative: The issue is not narrowly whether Plame's identity was or was not disclosed; but were there subsequent events and conversations designed to mislead the Grand Jury. It is a stretch to claim that all questions related to Plame's outing as a CIA agent are protected by a claim of privilege. Had a claim of privilege been relevant, the President is hard pressed to explain why he did not claim privilege when Libby testified. Once the President permitted Libby's testimony - and there being no demonstrated impact on US national security - the President cannot credibly argue that further questions into Libby-connected issues re Plame can be shielded.

Post-Decisional: That information might or might not contain communication between the President and senior White House officials is a separate issue from the first step of the analysis: Is the information before or after the decision to out Plame? Once the AG admits that the memoranda is after the outing, the President cannot adequately justify hiding that evidence on a claim of deliberation. A reasonable court would ignore whether the claim of communication was or wasn't valid; and look at the public interest in knowing how the President and others - after Plame's name was disclosed - interwove the discussions into other areas, not limited to possible agreements to mislead the Grand Jury.

The question isn't whether there were or were not communications, but whether those communications were proper, or whether they were made without a reasonable expectation that they could be protected because of the known relationship between those discussions and the alleged criminal activity. Merely suggesting the President spoke with someone is not sufficient for a claim of executive privilege to prevail, especially where Libby has been convicted of perjury. It remains unclear how Libby's conviction on these issues do or do not relate to the communications between the President and other. Accordingly, the greater weight falls on the public interests, and on the special prosecutor getting access to this post-decisional discussion.

White House Documents Separate From FBI Investigation Reports: The President has a hard time convincing the court that FBI agent notes are protected. The FBI agents' notes are not Executive Branch documents for purpose of privilege. They are not deliberative notes between the President and others. The FBI files are investigation notes related to a criminal investigation; but the White House documents are not intermeshed with the FBI files. They are separate and can be disentangled, as Reynolds requires.

FBI Files Distinguished From White House Conversation, Notes: The information from the White House is a White House record. How the FBI or DOJ incorporates that record into their investigation is separate than the original file.Indeed, the information has no relationship to information contained only within White House control, but are from the FBI files. It is absurd, on top of this President's efforts to thwart investigations into NSLs and NSA's FISA violations, for the AG to claim the President is concerned with "integrity" or "independence" of criminal investigations. The cited DOJ OLC opinion was written before Congress updated FISA and there were changes to the intelligence protection requirements after 2001. [Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act ("Independent Counsel Act"), 10 Op. O.L.C. 68, 75-78 (1986) ] Had there been a bonafide interest to protect this information, then those changes should have been made in the wake of 2001. 

The cited DOJ OLC opinions do not adequately address "reasonable" access. The information isn't narrowly an FBI product; but within FBI control. A disclosure of that FBI-acquired information cannot be credibly argued to compromise a prosecution when Congress alone decides the meaning of that White House information. 

These are not FBI files, but White House notes gleaned by the FBI. The prosecution only has an interest in protecting investigation notes, not in protecting White House notes. It is disingenuous for the AG to claim that a prosecution might be compromised because of disclosure of White House documents. This would impermissibly permit any agency or President to use "ongoing investigations" as an excuse to forever hide all evidence.

The goal of the AG isn't to protect the information, but to delay disclosure of information outside what the FBI developed or created. These White House products are notes of disclosed conversations and admissible evidence.Congress is not demanding access to FBI files, but White House records. The AG absurdly would ask that all information before, during, and after a criminal investigation - because it is connected with the White House--is protected. This is inconsistent with Nixon where, even after leaving office, the President does not have absolute power to protect information, even after a criminal investigation is over.

Privilege Cannot Hide Evidence of Illegal Activity: Executive privilege does not broadly hide all information, especially on matters of criminal activity. Such a broad sweeping claim of privilege, if recognized, would, in effect, nullify the oath of office and duty to enforce the law. The President and others, on any claim, could assert that all evidence of any illegal activity should be shielded.

Withheld Document Inventory: Even if privilege were recognized, it appears the President plans to refuse to provide even an inventory. The AG's note does not address a likely Presidential decision not to provide a document inventory.The question turns on whether the Committee on Government reform has or has not been given an inventory of the protected documents. DOJ OLC appears to suggest that the President need not respond. However, the Vice President's discussions with the Deputy National Security Advisor are not deliberative, but appear to be more connected with the concerns about the criminal investigation. It is reasonable to raise the concern that the Libby-connected perjury statements could be included in these discussions and not adequately shielded.

Disclosure: Privilege protects information. Privilege is more difficult once the object of that protection is disclosed, as appears to be the case here.Once the existence of the notes is disclosed, the President loses an absolute claim of privilege. Rather, the notes - because they are contemporaneous records - are admissible and cannot be shielded, unless the President shows that the notes contain only deliberative notes. The President has a hard time explaining how notes - from a criminal investigation interview - fall within the deliberative shield.

Congressional Independence: The court can independently review whether the notes are or are not shielded; but the Congress has the authority to compel the production of notes which are not protected, or shielded on the basis of dubious grounds. Indeed, the Congress could hold the President - even after he leaves office - in contempt if he refuses to turn over the information contained in the OVP-DOJ archives.

Notes Distinguished From Conversations: The issue is less what is in the notes, than what reason the President disclosed the existence of these notes, without first securing a shield. Once their existence is disclosed, they are bonafide targets of a subpoena. The President's problem is that he cannot shield them nor hide them; but he must invoke a claim of privilege to thwart access to information he and others have voluntarily disclosed.

Distinguishing Original Communication, Subsequent Notes, FBI Files: The AG's concern does not appear to be one that is broadly applied to all Presidential communications, but the narrow method by which a specific conversation was or wasn't recorded. If the President's claim of privilege were bonafide, there would be no reason to distinguish between the communication and the recording of that communication. We believe this distinction is important and one that Congress and the public should explore: 

-          Why is the AG distinguishing between the original conversations, and the content of the recording of those original conversations?

-          Why is the AG attempting to shield post-decisional conversations?

-          If this information was genuinely protected, why was its existence - the conversations, and the notes of that conversation - disclosed; and why didn't the witnesses decline to discuss or reveal?

AG Admits Some Notes Outside Protection: Note the AG's problematic statement, which does not say "all" or "most" but "many":

"Many of the subpoenaed materials reflect frank and candid deliberations among senior presidential advisers, including the Vice President, the White House Chief of Staff, the National Security Advisor, and the White House Press Secretary."  

Even if we take the AG's assertion as true - that there are "many" documents - this also means there are some that do not fall within this exclusion. This means there are some that do not; and the second question is whether the claim of "frank and candid" deliberations should or should not be believed. 

Dubious Deliberative Claim: It is appropriate to review what "deliberations" mean: These are pre-decisional discussions, which are not what the AG says happened. Rather, these are post-decisional, post-detection discussions related to previous alleged criminal decisions. This again falls outside what the shield protects.

Subsequent Illegal Acts With Congressional Oversight Authority: Contrary to the AG's assertions, the Committee has a specific reason to review the documents: The President appears to have induced others to believe information would never see the light of day; and relying on that dubious claim he and others allegedly discussed subsequent improper conduct.

Subsequent Alleged Improper Activity: The question turns on why notes related to the Plame outing are then involved with the State of the Union. The public has an interest to know why - after an effort to apparently smear and retaliate Plame - was the post-decisional discussion leaking into many areas. This, on the White House theory, would mean that anything after-the-outing is protected merely because it is connected with something else. That is circular. The question isn't whether the information might be connected with other events, but how the original alleged illegal activity did permeate into other events. The greater weight should fall on the public's interest in knowing how the original decisions did affect subsequent activities, and this would fall outside what the President can shield, especially when these notes and their connection to the Plame-events have been disclosed. 

Subsequent Misconduct: Putting aside whether the Committee has or has not had access to FBI reports, notes, and interviews, the question is whether the President and others are still withholding evidence of other illegal activity well within the scope of the committee. The President and AG jointly appear to claim that the Congress, court, investigators, and public should take a deferential view to this claim. We do not agree this deference is warranted given Libby's conviction for perjury. The public has a reasonable interest in knowing how the President's communications on these narrow issues do or do not relate to criminal activity. 

Disingenuous Accommodation: We do not share the AG's assertion that the Department has made meaningful efforts to accommodate Congress. Rather, we observe the opposite: Frivolous excuses and blatant false statements by witnesses under oath without a timely effort to cure these deceptions. This smacks of a reckless policy to thwart law enforcement, not a bonafide effort to accommodate anything.

One-Sided Accommodation: It is a misreading of "extraordinary accommodation" to suggest that responding to a lawful subpoena is or isn't reasonable. Accommodation requires incorporating the interests of the Congress and the President. In this case, the AG is not respecting the former despite their valid concerns; but he is asking for special immunities on the back of dubious assertions. This does not meet a reasonable standard of "extraordinary" nor it is accommodative of the legal requirements of Congress, especially in conducting oversight of the President during wartime on illegal activity and perjury before a grand jury. 

Disclosure At Odds With AG Claim: We believe the claim of "heightened confidentiality interests" is a dubious one given the "confidentiality" - if it were real - should have prompted the White House staff to protect the existence of the documents; not disclose that there were notes taken; and properly safeguard the notes before any public statements were made about their existence or the subject matter. Rather, it appears the opposite is true: Someone knew the documents were important for litigation, that they had a duty to keep them, and their destruction could subject them to additional penalty. The way the documents have been handled do not send the message that anyone intended for the original conversations to be kept secret; nor that there was no written record of the events. It is a separate issue what the content of those notes are. 

AG Misconstrues Subpoena: We cannot agree with the AGs assertion that the subpoena (July 8, 2008) has in any way been suspended. That is up to the Committee to agree, not for the AG to assume or assert. The key language is, "At this time." Rather, the AG is in error is saying that the President does not have to invoke privilege for all the documents. This is a misreading of the requirements on the President: He must assert privilege on the communications; it is irrelevant how those communications were recorded. The content of the communications are distinct from the recording in note form. The President is being misled to believe he can narrowly shield a document related to that communication, but not shield the original communication content. The President, in not shielding the conversation, has opened himself to discovery into recollections of that conversation using other methods. 

Indications of FBI Informant Still On White House Staff: Once disclosed, even inadvertently, the information cannot be put back into the genie bottle. This means there is likely a second set of data which the FBI and other have not disclosed; and do not include written transcripts, but could include a secondary recording system which is outside what the White House wants to admit, but which the FBI does not want to admit it knows about. There is a reliable record of the original conversation which the FBI appears to know about prompting its original inquiry into the note taking. Someone working with the FBI appears to have disclosed who specifically was taking notes; and their details of the conversations are sufficiently specific to prompt the RFBI and Special prosecutor to bring this evidence of accuracy and reliability to the court. The Congress should inquire more deeply into the methods the FBI used - absent access to these notes - to convince leadership that the claims related to these notes and the original conversations are reliable; and the methods they have to demonstrate that these reports are valid and credible. At best, it appears someone loyal to the President has secretly cooperated with the FBI, and this cooperation does not appear to be known to the President.

Qualified Claims: Note also the claim of privilege is not absolute. The AG is not saying that all notes of the conversations must be shielded. He's doing the opposite: Saying that they can be redacted. This defeats the President's claim of privilege: the AG is implicitly admitting that there would be no harm should there be redactions. Whether those redactions are or are not limited has no relevance to whether the conversations and notes (two separate issues) can or cannot be shielded. This tilts in the favor of an adverse ruling against the President, Vice President, and White House staff.

Cursory AG Review: We do not have confidence the AG has adequately included in his timely the necessary details required to review whether the White House has or has not been reasonable. The AG's representations of overtures to the Committee are biased.

Overlapping Jurisdictions: It is a misreading of the Separation of Power doctrine to suggest Congress cannot review Presidential communications. There are overlapping jurisdictions which include a reasonable Congressional interest in examining Presidential communications related to allegations of illegal activity before a grand jury. Whether there was illegal activity before or after a decision has no relationship to the Committees interest in looking at post-decisional discussions attached with grand jury perjury or other obstruction during the FBI investigation.

No Article II Power To Hide Illegal Activity: The President may have the power to protect documents, but this does not mean he can shield conversations, and all records of that alleged illegal activity. He may have the power to do something; the question turns on whether has power to lawfully enforce silence and suppression of all evidence. He knows the documents could be reviewed; otherwise we would have destroyed them.

Again, the AG's error is to not broadly invoking privilege claims on all documents:  

AG [emphasis added]: "Much of the content of the subpoenaed documents falls squarely within the presidential communications and deliberative process components of executive privilege."  

The public and Congress can reasonably ask: 

1.       Which of the content is not within the deliberative process;

2.       Which of the notes are outside protection

3.       Which actions are after a decision and not shielded?

4.       Which conversations are reasonably connected with conversations the participants knew or should have known were not protected because of their connection with illegal activity?  

The President's problem is that someone has disclosed there are summaries of conversations. This means there are secondary records which could point to other records or non-protected communications. Whether those communications are protected is a secondary issue that whether the conversations were or were not connected with illegal activity, after a decision. 

Unprotected Exercise of Power: The Constitution requires the President provide information to Congress. It does not permit the President to make misleading statements to Congress; nor can the conversations before that presentment be protected when those involved knew the decision to out Plame was attached with the information re Iraq WMD contained in the information to Congress. 

Requirement To Report Truthful Information: The AG argues that the summaries were part of deliberations about the State of the Union. The State of the Union is not a decision, but a constitutionally required presentation to Congress. The AG hasn't made the case that the discussions related to Plame are protected because of a decision; nor has the AG adequately shown that post-Plame-outing disclosures to Congress necessarily shield all conversations related to those alleged deceptions.

Public Law Enforcement Interest: There may be a valid personal interest to hide evidence of illegal activity; but this interest is subordinate to the legal counsel requirements to enforce the law and remove themselves from illegal activity. The Congress has an interest in knowing the details of these discussions to review the timelines of legal counsel decisions; and examine whether White House and OVP legal counsel did or did not do the right thing. How their decisions did or did not touch on other issues remains party of the mystery warranting public access to this information.

Illegal Activity Cannot Be Shielded: The AG claims privilege extends to "all" deliberations. This is untrue, especially when the deliberations are related to illegal activity and other lawless conduct which might violate treaty obligations, Geneva, FISA, or the Supreme Law. Legal counsel have a duty to enforce the laws of war; and when they are involved in discussions of planned illegal activity, they know or should know that their involvement with those discussions is a matter of judicial review not secrecy. The question isn't whether deliberations are always protected - they are not - but what legal counsel convinced themselves, despite the illegal activity, to not resign as required under the attorney standards of conduct. Either they recklessly continued discussing illegal things, as it appears Libby did prompting his perjury; or they were so reckless in discussing and documenting post-decisional conversations because they incorrectly assumed these discussions would never see the light of day. Legal counsel appears to have miscalculated on multiple levels.

Public Interest In Law Enforcement: There is another view on what the "public interest" is re Presidential communications. The public's interest is not narrowly whether the President has candid discussions; but whether the public can have assurances the President, VP, or others in the White House are or are not cooperating with lawful inquiry and criminal investigations.

The AG may desire to have a candid exchange of ideas, but these discussions cannot be after a decision with the aim of disseminating false information to the Grand Jury or disseminating unlawful domestic propaganda. The AG fails to account for these public interests which trump the President's claim of privilege after a decision.

Public Interest To Chill Illegal White House Staff Plans: It is a misreading of the "deliberative doctrine" for the AG to suggest post-decisional conversations (after Plame's name was leaked" will have a chilling effect on lawful activity. Indeed, it is in the interest of public policy for unlawful, post-decisional discussions related to illegal activity be chilled; or made with the understanding that they cannot be lawfully protected. Had there been a lawful objective to protect Plame's name (which did not happen), we might have a discussion whether those speculative Presidential efforts to protect here name were or were not lawful. Rather, we have the opposite: No compelling demonstration the President took swift action to protect anything, nor ensure the post-decisional communications were consistent with public policy. It appears the original illegal activity - that of disclosing Plame's name and the perjury before the Grand jury - is compounded by efforts to thwart discussions related to other strands of evidence linked with other activity. The President's gal is to isolate the information; the objective of the public through Congress is to examine how the original illegal activity seeped into other operations and Presidential plans. Once the original illegal activity occurred, the President cannot claim that all subsequent conversations related to that original misconduct are protected. Rather, they are genuine objects of public and Congressional interest.

Legal Compliance, Enforcement Trumps Evidence Suppression, Privilege: Privilege is not so fundamental to government that it becomes the cornerstone to device ruses to suppress information. Rather, there is a careful balancing between the interests of the Government to protect information needed to conduct matters of state; and that of conducting oversight; and the public interest in ensuring the President and others are not allowed to secretly hide evidence of their criminal wrong doing.

Public Law Enforcement Interest Trumps Dubious, Speculative Risks: The AG has not adequately shown that the disclosure of this information will adversely affect lawful activity or deliberations before a decision. Rather, we have the opposite: The disclosure, as intended, would have a chilling effect on post-decisional discussions related to alleged illegal activity. Once the notes of those conversations are disclosed, the participants knew or should have known that there was an adverse party cooperating with the FBI; and that those discussions would be subject to lawful review. Rather than preserve all evidence, it appears some are feigning ignorance. This claim and ruse does not withstand the tests related to contemporaneous notes, nor whether they have or have not adequately recollected events. Feigned "lack of recollection" could subject someone to obstruction or perjury.

Privilege Standards Inapplicable: For there to be a presumption of privilege on Presidential communications, the communications must be before a decision; must be related to lawful activity; and connected with a substantial public interest in holding information not yet known. None apply. The President and others have disclosed these conversations, admitted that there were contemporaneous records, and these discussions were after the original decision. Indeed, the AG might have correctly pointed to some language that may protect the President's communications; but he's not pointed to any case law which protects disclosed records of conversations the President wants to shield, especially after a decision has been made. A "presumption of privilege" cannot be accepted as a credible starting point.

Fleeting AG Argument: The AG has not adequately convinced this reader that the protection of this information is lawful or within what the privilege doctrine allows. The duties of elected officials cannot lawfully include discussions to thwart the FBI; nor proceed with any assurances that records of that questionable conduct will never see the light of day. Again, we have the opposite: Someone with sufficient credibility and specificity has provided the FBI and special counsel with sufficient detail to prompt particularized questions related to notes on conversations and discussion after questionable conduct.

Assertions Without Demonstration: The error for the AG is to argue the discussion were to provide "accurate" information, but the grand jury concluded Libby was not interested in accuracy but deception. The error was those involved with the post-decisional conversations related to Plame's outing did not adequately consider their remarks would be subject to criminal investigation. This is not cured by shielding the conversations, them, or the evidence; but to ensure the information related to this alleged illegal activity is publicly known so Congress can reform the laws. 

Disclosure, Confirmation of Thing To Be Protected: The AG's error is to disclose the content of the deliberations, but claim that they should be shielded. It's a matter of debate whether the responses to the media inquiries were or were not based on deception.

Unresponsive DOJ: Here, the prospect that disclosure of White House evidence might affect future prosecutions is moot: The evidence has yet to be examined for the prosecution after Libby. Indeed, privilege might affect a closed investigation, but this investigation remains open. Whether future prosecution decisions are affected is moot until this investigation is closed, which it is not.

Open Issues Into Non-Libby Personnel: The AG incorrectly says the Libby prosecution matters are closed issues. This misses the point: The investigation continues into non-Libby personnel. Whether Libby's prosecution is or isn't ended has no relationship to the discussions White House staff recorded; and how these conversations affected subsequent illegal activity.

Congress Is Separate: The AG would have us believe that the Congress can only investigate if the AG and others agree. This defies the intent of the framers in creating separate branches. Congress can only review legislation if it understands, outside prosecutions, how the White House staff are or are not complying with statute.

Failure of President To Safeguard Information: The President could have invoked his 5th Amendment right to silence. He did not. The President agreeing to an "informal" interview does not mean that the interview is shielded. The "voluntary cooperation" was voluntary; had there been problems, the President could have relied on counsel to protect the information by invoking his right to silence. The President, VP, and others chose to speak. This is not a deliberation, but a communication from the White House to law enforcement. Once disclosed, the information is outside the umbrella of the Executive's privilege. Once they agreed to cooperate with the FBI, all evidence obtained was foreseeablly a public record; the President, VP, and other staff had no reasonable expectation that this information would be shielded. Moreover, it is speculative that Presidents will only cooperate if their evidence is suppressed; or that an agreement to disclose will be matched by a promise to hide that disclosed information. The time for the President to invoke privilege was during the FBI interviews in the form of invoking his 5th Amendment right. If future White House staff do not wish to participate in future discussions, that refusal to cooperate may or may not be probative.

The AG's conclusion that the material is within privilege are fleeting. He did not adequately address disclosed evidence, in advertent disclosures, or exceptions Nixon recognized.

II.

The above discussion shows Congress has no obstacle to getting access. Indeed, the Congress only has an obligation to prove it must access the information only when the Executive privilege claim succeeds.  

AG Inappropriately Shifts Burden of Proof: The AG incorrectly starts with the false premise that Congress must "overcome" the President's claim. This presupposes the privilege claim is valid, which it is not in this case. Until we know what is in the document, we cannot be sure what legislative decisions might be related to this undisclosed record. The AG's reasoning is flawed in asserting the White House notes within the FBI files are predecisional. 

Congress does not have to provide any reason for an interest when there is not a recognizable executive privilege claim. Congress is not required to provide a specific reason when the Executive fails to provide a generalized reason for protecting what has been disclosed outside the White House: The White House notes within FBI files the AG says Congress can selectively review

Because the AG has failed to show there is a bonafide executive privilege claim, the Congress is not required to show that it needs the documents, for either a generalized or specific reason.

Committee Powers Outside DOJ, AG, Presidential Power: It is up to the Committee, not the AG, to decide what will or will not satisfy the Committee. The AG's problem is that he's accepted redactions might be permissible; but broadly and inconsistently said all OVP-connected documents with these White House discussions should be shielded. The AG has not adequately explained why some FBI reports can be reviewed; while others cannot. The AG's claim that there is an ongoing investigation is fleeting because the AG accepts that the Committee can review some FBI reports, regardless the speculative impact on future prosecution decisions.

Here, the AG describes the very information peaking Congressional interest:

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 "demonstrably critical" to the Committee's legislative functions.

The Committee --not the AG, President or Court-- decides whether the information contained in the FBI files does or does not answer the Committee questions about the Vice President and White House staff.

- How does the information contained in the White House notes complement or contradict what is known to Congress?

Privilege Claims Erode When Non-Duplicative: The AG kept open the option the still-suppressed/shielded information is not duplicative. The Congress does not have to explain its reasons with any precision as long as the Executive Privilege claim fails. Indeed, if more information is not needed, the President, VP, and White House staff cannot explain

- Why they've detained POWs in Guantanamo. Why does the President have a superior right to information than Congress?

- What methods did the President use to ensure that when there was unreliable, but duplicative information from Guantanamo, that the POWs were released?

Oversight Duty As Congress Defines: Whether Congress does or does not inform the American people is secondary to the Congressional interest in reviewing whether the President has been misinforming Congress. Congress has the power to examine anything it deems relevant, and not shielded, in deciding how it will use or not use its Article I powers. It is Congress alone that decides what Article I means; nor can the AG say that Congress "got it wrong" on what Article permits or does not permit. Putting aside the AG's fleeting justification for privilege, the Committee has an interest in knowing why the President wants to hide information that should show he did the right thin.

III.

The President has no adequately invoked privilege for each piece of evidence that the Vice President and White House staff are linked. The President's claim of privilege is dubious, unsupportable, and not grounded in case law.

The President's claim of privilege is dubious. The prospect of Congress getting access to this information should be a reasonable check on future White house staff in planning illegal activity; or hiding evidence from the FBI, special prosecutor, or Congress. However, this risk seems lost on Executive branch personnel. We should assume this will continue. Reforms are needed to compel compliance.

Dubious Risk: The AG is disingenuous when he argues that Congressional oversight and access to this information will affect future DOJ investigations: In this case, where the DOJ has refused to fully assert its legal obligations, Congress must do what the AG has refused to do: Gather information to make a decision on how to proceed.

Fair Warning To Executive Branch Personnel: Future Executive Branch personnel should know that their continued involvement with alleged illegal activity is not protected; and that information they provide to the FBI could be used against them by Congress. The way forward is for Executive Branch personnel to remove themselves from illegal activity; not expect evidence of illegal activity to be shield; and know that when the President cannot lawfully shield information, that information is subject to public review, even if it is contained within an FBI interview. The proper course of action was for the White House staff, VP, and others to have discussed these legal issues before making a decision to out Plame; or send a green light to Libby to mislead the Grand Jury.

Eye To Reforms: The problem is when this check on executive power is not asserted, or ignored. The question becomes what will compel the Congress to assert power, when, as now, the Executive refuses to comply, and the Congress will not swiftly move to assert its power. Arguably, the States and We the People need separate powers that will check and unresponsive Congress; and compel action when Members of Congress refuse to assert their power against a reckless executive.