I notice that there is mention of "John Does 1 thru 10" as co-defendants. A few questions immediately pop into my head:

1) Who does this include? Most importantly, does it include Novak or any of the other 7 members of the White House Iraq Group?

2) Are they all "Johns", or are there a few "Janes" mixed in with the Johns?

On the whole, I'm really curious as to why Novak seems, at first glance, to get a free pass in the filing. Hopefully, he's one of the Does, but not having his name at the top of the indictment along with Larry, Moe & Curly ("Shemp"?) looks like a huge omission.

I see problems with it. Legally, it must surely be hard to establish the injuries. It's a broad interpretation of the right to privacy, it could be ridiculed as suggesting that anyone criticized by the administration deserves cash, and one could argue that the publicity actually helps their careers, by giving them fame to cash in on. Politically, it puts the focus on the injuries to these two parties, whereas Americans may be willing, as usual, to sacrifice some individual liberties for the usual reasons.

The good side is that it makes the point that governments shouldn't use their power to punish critics. It also makes the point that an issue for us has been outing CIA agents, not just leaking, which can be an act of conscience. But I'm not convincd it will put those into focus clearly enough or succeed on its merits.

And yes, no question Fitzgerald decided that the law was too hard to enforce, presumably because it requires too much proof of the intention of the leaker. We suspected that when we didn't know enough about who leaked what, even Rove, but did know that the prosecution of Libby was on anothre charge. With all the clarity now about Bushies who did leak, we can see the problem.

So the question becomes: what can be done to make clear that Fitzgerald hasn't resolved the conduct in the Bushies' favor, just not been able to go near the story?

John

http://www.haberarts.com/

I notice that there is mention of "John Does 1 thru 10" as co-defendants.

This is common in legal pleadings. It merely indicates that there may some unknown others that have some legal responsibility for the damages alleged.

The first thing that I noticed was that the Second Count is for violation of the equal protection clause of the 5th Amendment. Now, when we think of equal protection, we usually think of the 14th Amendment. Indeed, that is *the* main thrust of the 14th. What about the 5th? Well, I did a little research, and if I learned this in Constitutional Law I forgot it. It seems that the Courts have imputed equal protection into the 5th when it comes to actions of the Federal Government. For s summary, I cut and paste from Wikipedia:

The Fifth Amendment applies, of course, to the Federal Government (see Barron v. Baltimore), and the Fourteenth Amendment, by its own terms, applies against the States. While the Fifth Amendment includes a Due process clause, it does not include - as the Fourteenth amendment does - an equal protection clause. However, in Bolling v. Sharpe 347 U.S. 497 (1954), the Supreme Court averred that it was absurd that the Constitution could deny the states the power to abridge equal protection of the laws, yet permit that power to the Congress. "[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive," reasoned Chief Justice Earl Warren. The Court thus amended the Fifth Amendment's due process clause to include an equal protection element - although curiously, has continued to hold that there is a difference between due process and equal protection in its Fourteenth Amendment jurisprudence.

Interesting, huh?

It is also worth noting that these types of claims - the ones based upon violation of Constitutional rights - can only be brought against state actors, that is, the government and those acting on its behalf. Bob Novak is not a state actor and would not be subject to suit under these claims.

In all likelihood the Wilsons filed for statute of limitations reasons and the decision to file when they did has nothing to do with the Fitzgerald investigation.

You may recall the original Novak column was published on July 14, 2003, 2 years and 364 days ago. Any tort-based claims, public disclosure of private facts for example, (and possible others) would, I believe, have a three-year statute of limitations period.

 The thought I immediately had on hearing about this was that it will be resolved not before 2010, and, by then it will not be newsworthy.  So, my guess is a settlement as the resolution.  But, I'm still enjoying this!

Hoppy in Sacramento

Yeah, it's almost certainly a SoL concern that prompted the timing. They gave it as long as they could within the three years.

Inherent in the antebellum notion of Due Process (just the abstract legal principle) was an antipathy toward legislation that bore unequally on different classes of citizens. So, one can look at it as what some call "reverse incorporation," or just a strain of preexisting Due Process jurisprudence.

Most interesting will be the difficulty that Cheney will have in arguing that a sitting VP should not be subject to civil suit. The SCOTUS disposed of that issue in Jones v Clinton.

This is a common misunderstanding. Jones dispatched the argument that a sitting President was immune, for the duration of his presidency, from service for suits that arose from pre-presidential conduct. Clinton was trying to extend immunity to conduct that didn't take place in his official capacity.

It's established that the President is immune from (at least most) civil suits for acts undertaken as President, but the decisions are based on the unique constitutional role of the President. Cheney will have a harder time arguing that the VP's role is as special.

I generally agree with jhaber that one of the main obstacles which the Wilsons will need to overcome is demonstrating that they’ve been injured in some legally cognizable sense. What I’m taking to be “right to privacy” or wrongful disclosure of true private facts claims seems a real stretch.

Which is why I think that the defendants will try to stay discovery (Libby’s motion should be a slam-dunk because he’s already facing a criminal trial, while the other defendants can quite legitimately argue that discovery should not begin while they are still in jeopardy criminally) and then attack the pleadings for various defects—like no injury, no cause of action,etc. There clearly will be a political price in essentially taking the 5th as a part of the stay motion, but I doubt it will be more than a one day story in the current media/political environment.

On the other hand, I think the defendants will be very, very careful in raising the issue of immunity. Remember, it is not enough that the defendant did the thing being complained of while he was serving/working in some official capacity. This is a considerable oversimplification, but in order to claim “official immunity” a defendant must show both that he was “an official” and that his conduct was within the commonly recognized scope of his official duties. Thus, for example, if the POTUS orders the military to bomb your pharmaceutical plant because he believes (rightly or wrongly) that it is a WMD factory—he is surely immune from suit. Making such decisions is a part of his job. But if, say, he accidently runs over a policeman while out riding his bike, he can be sued like anybody else. To put it another way, not everything that a President or a police officer or a judge does while serving in an official capacity is an “official act”. The other problem with raising a claim of “official immunity” is that it would probably open all of the defendants (and everyone else in the White House) to nearly unlimited discovery about their political activities and motives during the run-up to the Iraq War, the extent to which they believe that classified information can be disclosed for purely political reasons, and their personal feeling about things like Wilson’s NOT article. Also, it would require them to argue that disclosing the identity of a covert CIA operative was somehow part of somebody’s official duties. Shaky ground legally, very uncomfortable politically.

Also, several people (including jhaber) have mentioned the problem with proving “intent”. Here I would disagree with jhaber. Intent would not be easy, but it should be less of a problem for Wilson both because the plaintiffs can force defendants to answer questions about their intent----no “automatic” 5th Amendment privilege against making a defendant answer questions or produce personal diaries, etc.---- and because the burden of proof is much lower. An example would be the OJ trial: Plaintiffs were able to force OJ to explain himself and answer questions about his activities in ways which were not available in the criminal case, and also the civil plaintiffs just had to prove that OJ probably did it (Also, the plaintiffs were represented by good lawyers, while the People were represented by idiots).

Bottom line: If Wilson has or can get sufficient financial resources, a reasonably talented, reasonably nasty legal team, and also draws a reasonably sympatric judge, this could be a real nightmare for the White House.

Article Two, Section Two of the Constitution, gives the President the "Power to Grant Reprieves and Pardons for Offenses against the United States." This power applies to criminal cases, United States v. Somebody, not to a civil case.

Unfortuantely, if Rove, Cheney and Bush can get away with any responsibility for dropping the ball pre-9/11, killing thousands in illegal wars they started by lying to the world, hardly ever telling the truth about anything, having conversations with phone jammers on election day, appointing horse judges to emergency positions and losing one or two thousand citizens in a major US city, and having loaded the courts with right wing rubber stamp judges, nothing at all will develop from this lawsuit except big lawyer bills.

Additionally, Wilson and wife may be Faux-painted as self-serving greedy liberals who are interfering with Rove and Cheney in their unselfish sworn patriotic duty to battle against evildoers to preserve freedom and the American way of life.

J. McCutchen "JmacSF"

San Francisco. CA

 Proskauer, Rose major NYC firm

J. McCutchen "JmacSF"

San Francisco. CA

 A reasonably calendar conscious ass-kickin judge could have this baby in trial late 2007 easy

This will go nowhere.

It will be shot down by DoJ manipulating the judge assignment and other measures that were effective (so far) in preventing Sibel Edmonds from having her day in court on her FBI whistleblower and DoJ gagging case.

The Wilson case is doomed. Hopefully it might pry open some documents or other leaks, however, before it gets dismissed altogether.