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Feds fight to keep White House e-mails secret in Breitbart-Sherrod libel suit

The Obama administration is fighting to keep secret hundreds of pages of emails detailing White House involvement in the 2010 firing and attempted rehiring of Agriculture Department employee Shirley Sherrod after the late conservative blogger Andrew Breitbart published a blog post and video clips suggesting Sherrod was a racist.

Lawyers for Breitbart's business partner, Larry O'Connor, filed the White House and USDA documents in federal court in Washington in May in connection with a libel suit Sherrod filed over the blog post, which appeared on Breitbart's BigGovernment.com website. However, last week, Justice Department lawyers urged U.S. District Court Judge Richard Leon to keep the documents from the public by maintaing them under seal.

Court filings are normally public, but the Justice Department said the emails from the accounts of nine White House staffers and an additional number of Agriculture Department officials should be kept under wraps in part because the public already has enough information through official statements about Sherrod's forced resignation and the ensuing events.

"The parties to this case have no need for 'public access to the documents at issue' because they can litigate under seal any issue to which those documents are relevant. Neither does the public at large have any need for access to those documents. As the United States has acknowledged in this case, plaintiff’s resignation from USDA 'implicate[d] sensitive issues and significant public interest," DOJ lawyers Charles Glass and Arthur Goldberg wrote. "Those matters have already been addressed, however, by the statements about plaintiff made by Secretary of Agriculture Thomas J. Vilsack and by then-White House Press Secretary Robert Gibbs at or about the time of plaintiff’s resignation. Those matters have also been addressed by the thousands of pages of documents dealing with plaintiff that USDA has produced to the public pursuant to [the Freedom of Information Act]."

In the July 13 motion (posted here), the Justice Department lawyers also invoke a deference to "Presidential confidentiality" as a basis for keeping the contents of the emails secret.

"The Office of the President occupies a 'unique position in the constitutional scheme' and 'the public interest requires that a coequal branch of Government afford Presidential confidentiality the greatest protection consistent with the fair administration of justice,'" Glass and Goldberg wrote, quoting the 2004 Supreme Court case granting such deference to Vice President Dick Cheney in connection with records relating to the Energy Task Force he headed.

The U.S. government is not a party to Sherrod's lawsuit, which seeks damages from O'Connor and Breitbart. Breitbart died unexpectedly in 2012. His wife, Susannah, has been substituted as a defendant in the suit.

Leon has not yet ruled on the government motion to keep under seal the documents the government has designated as "confidential." However, he has made clear his intention to have Vilsack testify at a deposition in the case. The Justice Department has attempted to block that deposition by filing an unusual petition, known as a request for mandamus, with the U.S. Court of Appeals for the D.C. Circuit. That court has not yet ruled on the petition, but the parties have agreed not to press for Vilsack's testimony until the D.C. Circuit acts.

Sherrod was fired as a rural development director in Georgia in 2010, ostensibly in response to the Breitbart post and the suggestion in the video clips of a speech she gave that she believed white farmers should get inferior service from the USDA. After the full video of Sherrod's speech emerged, the White House and the USDA apologized, saying the administration had acted too rashly. She was offered another job at USDA, but declined. Breitbart defenders insist that the clips initially posted provided the full context that the White House and Vilsack said exonerated Sherrod.

Monday afternoon, Leon held an hourlong hearing on the lawsuit, attempting to resolve a dispute about what documents Breitbart's companies (which were not sued) must turn over as part of the litigation. Much of the discussion turned on whether some of the records are protected by attorney-client privilege, because a top executive at the firms, Larry Solov, was acting as an attorney in various emails he exchanged relating to the Sherrod post.

Leon set a hearing for next Monday to comb through some of the documents and try to determine whether they are privileged, a question that could be complicated by the fact that Breitbart's enterprises are located in California while the suit was filed in D.C. The judge warned that Solov may have to come to Washington to answer questions about his role.

"If the Secretary of Agriculture can sit for a deposition ... Mr. Solov may have to get on an airplane and sit in that chair to my right," Leon said.

There were a few moments of levity at Monday's hearing as Breitbart companies lawyer Eric Dubelier announced that he had a family vacation coming up and could not be in court — the type of situation which has set off Leon in the past. The judge responded by insisting he hadn't been angry about the earlier situation involving a government lawyer in the case but might have been frustrated.

"Sometimes you get frustrated, and it sounds like you're angry," Dubelier replied, to laughter from several people in the courtroom.

The cantankerous Leon insisted that "it's pretty rare" he gets angry in court.

"It's a long fuse ... but a large powder keg," the judge said to more laughter.

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