The Daily Show Defense

A new legal precedent has been introduced by the Obama Justice Department. If permitted by the court, defendants nationwide may have a powerful new tool to assert in pursuit of legal vindication.

Citizens for Responsibility and Ethics in Washington filed a Freedom of Information Act request for documents containing statements by former Vice-President Dick Cheney to Special Prosecutor Patrick Fitzgerald. The documents were part of Fitzgerald’s investigation into the leaking of Valerie Plame’s identity as a CIA operative. Scooter Libby was convicted of obstruction of justice and perjury for his role in the matter, but his sentence was later commuted by George W. Bush as he slinked from office.

The Bush administration originally denied a congressional request for these documents citing executive privilege. Now Obama’s Justice Department is also seeking to prevent this disclosure for many of the same reasons that Bush’s lawyers argued. But going further, civil division lawyer Jeffrey M. Smith, claimed that the documents should remain confidential because their release might inhibit future vice-presidents, or other officials, from speaking candidly to investigators researching criminal activity.

That is a rather surprising argument in that most Americans probably expect their representatives to be cooperative in criminal investigations. The notion that they would deliberately impede an investigation because their testimony might be made public is disturbing, to say the least. But the specific reference made by Smith as to what might scare off official witnesses is even more disturbing. He said that the prospect that “it’s going to get on ‘The Daily Show’, “ was enough for the judge to grant a denial of the FOIA request.

Seriously? Is the Daily Show now considered to be so influential that the mere mention of its name can squelch a court case? Does that mean that anyone previously convicted of a crime, who happened to have been the subject of satire by Jon Stewart can now seek to have the conviction overturned on appeal? Does Comedy Central need to seek legal counsel prior to Photoshopping public figures with funny hats or broadcasting video of them saying stupid things (which happens with way too much frequency). Is the “Daily Show Defense” this generation’s “Twinkie Defense”?

At this point the judge seemed to be unconvinced and asked the attorney to come back with more evidence to support denying the FOIA request. But just the fact that a professional, respected, government lawyer would advance this argument is pretty sad. I can’t wait to see what Jon Stewart and Stephen Colbert say about it.