Retiring GOP Congressman Tom Davis must have accepted that we’ll soon have a Democrat in the White House. He has joined Henry Waxman in declaring Bush’s (Mukasey’s, really) invocation of executive privilege with regards to the Cheney interview notes in the CIA Leak Case to be improper.

 On a bipartisan basis, the Committee finds that the President’s assertion of executive privilege over the report of the Vice President’s interview was legally unprecedented and an inappropriate use of executive privilege. The assertion of executive privilege prevents the Committee from having access to a complete set of records and thus results in the Committee’s inability to assess fully the actions of the Vice President.

Mind you, I don’t know what effect this report will have. As we’ve seen with the US Attorney subpoenas, the White House can stall anything until the end of the Administration (and until Bush pre-emptively pardons Cheney and Libby for outing a CIA spy). At which point–given the way the polls are headed–Obama’s new AG could turn over the Cheney interview materials. 

I’m most curious about Davis’ cooperation on this, but not Waxman’s demand that DOJ unredact the reports the Committee already has (these redactions include references to both Bush and Cheney), because I believe Davis was party to the Administration’s second firewall on the CIA Leak Case–the Cheney claim that he could (and presumably did) insta-declassify Plame’s identity all by himself.

When the Oversight Committee had a hearing on CIA Leak Case, remember, Davis went to some length to try to get Bill Leonard to state that both the President and the Vice President had authority to declassify at will. 

And, after the country’s head of Information Security, Bill Leonard, asserted at the Waxman hearing that the President has absolute authority to declassify things, Congressman Tom Davis tried to sneak such authority for the Vice President into the Congressional Record:

Davis: Mr. Leonard, let me ask. Does the President or the Vice President have the authority to declassify on the spot?

Leonard: As I mentioned earlier, Mr. Davis, the President’s authority in this area is absolute, pursuant to the Constitution, …

Davis: So they can do it on the spot. Can they declassify for limited purposes?

Leonard: Absolute is absolute.

Everything we’ve learned since this hearing suggests that the Administration made an after the fact attempt to shield Bush from responsibility of insta-declassifying Plame’s identity before Cheney ordered Libby to leak it to Judy Miller. By claiming Cheney had the authority to insta-declassify Plame’s identity himself, they have invented a scenario through which Plame’s identity was leaked "legally" but without Bush’s knowledge. Knowing that–and seeing Davis’ sly attempt to extend Leonard’s comments in this hearing–has always made me think that Davis was party to the White House plan.

In other words, what Davis appears to be doing is re-establishing some limits to executive privilege just in time for an Obama administration, and, at the same time, attempting to help the Administration shore up the Cheney firewall to hide Bush’s involvement in the outing of a CIA spy.



Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.