The Ham Hock of Liberty

Friday, July 14, 2006

Wilson v. Cheney et al. For Dummies

A .pdf of the lawsuit filed by Joe Wilson and Valerie Plame against Dick Cheney, Karl Rove, Scooter Libby, and John Does 1-10 is available online. I read the complaint last night, and then watched John Dean and Lawrence O'Donnell on Olbermann's show explaining their take on it. Dean seemed to think that the Wilsons had a strong case. O'Donnell thought it was weak. I think it's somewhere in between.

The Wilsons brought eight counts:
  1. Violating the Wilsons' first amendment right to freedom of speech

  2. Violating the Wilsons' fifth amendment rights to equal protection.

  3. Violating Plame's right to privacy under the fifth amendment.

  4. Deprivation of property without due process under the fifth amendment, as to both plaintiffs.

  5. Conspiracy to deprive the Wilsons of their civil rights under 42 usc 1985(3).

  6. Failure to prevent deprivation of civil rights under 42 USC 1986.

  7. Public disclosure of private facts.

  8. Civil conspiracy.

I'm a little surprised there was no defamation claim, based on the "Joe's trip to Niger was a nepotism vacation" attack, though.

The Wilsons sued all of the Defendants in their individual capacities; no actual governmental entity was named. As a result, the million dollar question will be whether Cheney, Rove and Libby are immune from being sued for their actions. Unlike the Paula Jones/Bill Clinton lawsuit, this one involves actions taken by the defendants while they were in office, acting on the job. Because most of the claims here are based on the improper deprivation of Constitutional rights, whether or not Cheney/Rove/Libby can be sued will depend on how the District Court applies the relevant line of cases - most importantly, Harlow v. Fitzgerald and Bivens v. Six Unknown Federal Narcotics Agents.

To oversimplify a little bit, the rules for suing executive branch officers is that some executives are absolutely immune from suit, while others have only a qualified immunity. The President, in the past, has been held to have absolute immunity. To the best of my knowledge, the Supreme Court hasn't explicitly stated whether the Vice President is absolutely immune, but it's likely that he is. So, Cheney is probably safe.

Lesser executive officers including Presidential advisers, however, don't get absolute immunity. When an official is performing a "discretionary" act, that official is immune from suit if his or her conduct "does not violate clearly established statutory or constitutional rights." The conduct here is discretionary (as opposed to "ministerial," which is basically something that an officer is mandated to do as a basic part of her job), so the wrangling should come down to whether Rove and Libby violated "clearly established statutory or constitutional rights" when they outed Plame. The Wilsons have tried to frame their complaint with that in mind - they alleged that their rights of speech and equal protection were violated. It's a decent claim, but the hurdle is still a high one to clear, because courts are generally reluctant to allow government officials to get sued for their on-the-job conduct, even if the conduct is inappropriate. This issue really could go either way, in my opinion.

IF Libby and Rove don't get the case knocked out on immunity grounds, however, I think they're in trouble. The facts are damning and relatively straightforward. Of all the specific injuries alleged by the Wilsons, I think the strongest is probably Valerie Plame's claim to deprivation of her job without due process. The law is pretty settled that if you're a public employee who can't be fired "at will" (and I assume that Plame was not, as a CIA operative), you're entitled to a certain amount of due process before you lose your job. By outing Plame and making it impossible for her to do her job, she was essentially fired without the process to which she was entitled. The conspiracy and free speech claims are probably the next strongest, with the equal protection and public disclosure tort bringing up the rear.

The bottom line: Cheney will probably be excused on absolute immunity grounds. Rove and Cheney have a good chance of being excused on qualified immunity grounds, but -probably- won't be. If they aren't, they're in trouble.


  • I wonder if the Wilson's suit will get underway before Patrick Fitzgerald wraps up his investigation and possible prosecution? Might be interesting to have this new suit running parallel to Fitzgerald, as a supplementary source of expository information.

    By Blogger peter, at 12:18 PM  


    I think this guy is the judge on the Wilson/Plame case. Not good.

    By Blogger peter, at 1:49 PM  

  • "

    I think this guy is the judge on the Wilson/Plame case. Not good.

    There's only so much you can tell just from a judge's bio; most judges I know do a good job of setting aside their personal political beliefs and just call cases as they see them. It breaks down as you get higher up in the food chain, because when you have Constitutional interpretations involved, there isn't a clear line between personal political opinions and judicial philosophies. I don't know anything about Judge Bates, but we'll find out soon enough...

    With respect to Libby's prosecution, there's a good chance that the defendants will ask for the civil suit to be stayed until the criminal case is closed. They may ask for a dismissal on immunity grounds and see if they can't get it knocked out quickly on legal grounds, and -then- ask for a stay, if they lose that motion.

    By Blogger Nim, at 4:28 PM  

  • I'm a little surprised there was no defamation claim, based on the "Joe's trip to Niger was a nepotism vacation" attack, though.

    Maybe because it's such a laughable accusation on its face. Niger is not exactly a renowned garden paradise.

    By Blogger Eli, at 6:10 PM  

  • Nim,

    Bates is a GOP loyalist. Check out what he had to say after serving as a member of Ken Starr's witch hunt team:

    "It has truly been a privilege to serve with Judge Starr and the rest of the outstanding OIC staff, and I look forward to continuing to work with them in this important effort. Judge Starr has led the investigation with integrity, balanced judgment and extreme care, in the best tradition of prosecutors on behalf of the United States. I also look forward to resuming my responsibilities in the United States Attorney's Office, from which I have been absent for far longer than originally anticipated."

    Anybody who thinks that Starr's jihad was a fair and balanced affair is a wingnut, period.

    By Blogger peter, at 1:49 PM  

  • Well, remember too that the biggest issue in this case (imo) will be the preliminary determination of the purely legal issue of whether Cheney, Rove and Libby are immune from suit. Regardless of how that issue is decided by Judge Bates, it will almost certainly be appealed by the losing side. The ultimate say on that issue will be either with the circuit court for D.C., or the SCOTUS itself. And given that there's never been an explicit ruling on whether VPs are absolutely immune from this kind of suit, I wouldn't be at all surprised if it ended up before the Supremes.

    If the Wilsons ever make it to trial on the facts themselves, Judge Bates' politics won't have nearly as much of an influence. In all likelihood, it will ultimately end up in a jury's hands.

    By Blogger Nim, at 3:42 PM  

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