U.S. District Judge Emmet Sullivan's decision to review the documents followed arguments by Obama administration lawyers that sounded much like the reasons the Bush administration provided for keeping Cheney's interview from the public.
Justice Department lawyers told the judge that future presidents and vice presidents may not cooperate with criminal investigations if they know what they say could become available to their political opponents and late-night comics who would ridicule them.
"If we become a fact-finder for political enemies, they aren't going to cooperate," Justice Department attorney Jeffrey Smith said during a 90-minute hearing. "I don't want a future vice president to say, `I'm not going to cooperate with you because I don't want to be fodder for 'The Daily Show."'
Sullivan said the Justice Department must give him more precise reasons for keeping the information confidential than they had in previous court filings.
Cheney agreed to talk to FBI agents in June 2004 as they were investigating the leak of former CIA operative Valerie Plame's identity to reporters the year before. Her name was revealed after her husband, former Ambassador Joseph Wilson, criticized the Bush administration's prewar intelligence on Iraq.
The leak touched off a lengthy inquiry that led to Cheney's former top aide, I. Lewis "Scooter" Libby, being convicted on charges of obstruction of justice and lying to investigators. During his trial, jurors found that Libby lied to the FBI and a grand jury about his conversations with reporters. Bush commuted Libby's sentence, and he never served prison time.
Libby was the only person charged in the case. No one was charged with leaking Wilson's name.
In July 2008, the liberal watchdog group Citizens for Responsibility and Ethics in Washington submitted a Freedom of Information Act request to the Justice Department seeking records related to Cheney's interview in the investigation. The Justice Department declined to turn over the records, and CREW filed a lawsuit in August.
The Justice Department reported in court filings that it found three documents totaling 67 pages that related to the watchdog group's FOIA request, but said the documents were exempt since they were part of a law enforcement matter and their release could interfere with future cases. They also said the interview contained classified material and that presidential communications were shielded to allow candor with the president and his advisers.
CREW argued that the public has a right to know the role that Cheney played in the leak and why he was not prosecuted.
Libby told the FBI in 2003 that it was possible that Cheney ordered him to reveal Plame's identity to reporters. The prosecutor in that case, Special Counsel Patrick Fitzgerald, said in his closing remarks at Libby's trial that there was a "cloud" over Cheney's role in the case.
Fitzgerald told members of Congress who also sought the information that Cheney set no conditions about the use of his interview with investigators.
A Cheney spokeswoman declined to comment on the case.