Plame Lawsuit Could Be Extremely Damaging To Bush Administration -- After President Leaves Office
Here's a key question about Joe and Valerie Plame Wilson's lawsuit against Dick Cheney and Karl Rove: Even if it does manage to get to a potentially embarrassing discovery and trial phase, will this even happen before George W. Bush retires in 2009 to a life of full-time brush-clearing?
Probably not, unfortunately.
At least that's the opinion of Jonathan Turley, a law professor at George Washington University and an expert on constitutional and national security law. We checked in with him for a quick interview and he gave us a snapshot of the issues in the case and the enormous challenge the Wilsons face as they seek to wrest retribution from the White House officials who ended her career by blowing her cover.
QUESTION: What's your opinion of the validity of the Wilsons' complaint?
TURLEY: I don't think it's as frivolous as people make it out to be. The complaint raises fairly standard claims in terms of the injury allegedly suffered by the Wilsons.
QUESTION: But isn't the lawsuit a long-shot at best?
TURLEY: The key is going to be whether they can overcome the threshold constitutional issues -- whether the Vice President is immune from this type of lawsuit. [Administration lawyers] are likely to ask the court to rule on [this question] and to appeal before any discovery occurs.
QUESTION: What would discovery in a trial like this look like?
TURLEY: Discovery in this case would be extremely damaging to the White House. This is a highly secretive White House. The notion of a team of lawyers with subpoenas is an obvious concern. These attorneys would be operating under a lower standard of proof than the criminal standard applied to [Patrick] Fitzgerald. And because the Wilsons are raising conspiracy claims the scope of discovery could be quite broad. It would include emails as well as in-person depositions of the White House staff.
QUESTION: Is this case at all winnable?
TURLEY: [The Wilsons] would achieve considerable success if they were to get past the motion-for-dismiss stage and make it to discovery. And anything could happen in discovery. I've seen remarkable things happen in discovery...But it's going to be hard to prove these claims. You're going to see a great deal of activity just on the threshold constitutional questions. The Wilsons have a very long road ahead. [The result] will depend on the evidence and it will depend on the judge.
QUESTION: How long until we see a result?
TURLEY: Unless the case is dismissed it could easily take a couple of years to fully litigate on the trial level. This administration may be out of office by the time the case ever gets to trial.
after the supremes ruled against clinton on the paula jones lawsuit, it's hard for me to see how cheney could be regarded as beyond the pale for a suit like this....
July 14, 2006 12:37 PM | Reply | Permalink
Nice to see my old torts prof quoted on TPM Cafe
Howard -- the Clinton case involved conduct that occurred before he was President.
This case involves conduct occurring during the term in office. So, the precedent isn't precisely on point.
I would not be surprised to see a SCOTUS opinion come out of this case before we even get to the discovery phase.
July 14, 2006 12:43 PM | Reply | Permalink
but hexagon, it was my understanding that the question addressed by the supreme court was whether a civil action could be pursued against the executive or should be put on hold until clinton left office, and the supremes (quite wrongly) thought that it wouldn't be much of a burden and hence could proceed. i agree that the circumstances aren't precisely the same, but basically, we've got a civil suit directed against a member of the executive - why shouldn't it be allowed to proceed?
since you're a lawyer (and i'm not) maybe you can set me straight.
btw, i agree, we will see it tested in court and potentially up to the supreme court.
July 14, 2006 1:04 PM | Reply | Permalink
I wonder: would the newly elected Democrat president have to issue an EO abrogating Bush's EO which locked-up presidential papers in order to proceed to discovery?
Neoboho
July 14, 2006 1:18 PM | Reply | Permalink
In the good old days Wilson would have just called Cheney out for a duel. The results for the last VP to be so involved were interesting, to say the least.
--- Policies not Politics
Daily Landscape
July 14, 2006 1:33 PM | Reply | Permalink
I believe everyone here agrees with you that a lawsuit against Cheney is not beyond the pale, Howard. The problem is that just gets us in the ballpark. The lawsuit could, I presume without any legal training beyond TV shows, be dismissed without prejudice. It could be that this issue could be put off until Cheney is out of office.
Honestly, I don't think that would be too much of a setback. We were never expecting a perp walk for the Vice President even if this were a criminal case. A judgement against this misadministration once it is out of office would be a pretty damning legacy.
John
For more go to my online journal.
July 14, 2006 1:55 PM | Reply | Permalink
The suit can proceed a la Clinton-Jones, but the issue is whether the VP and others were acting as part of their official duties. The Jones case involved conduct that was not part of Clinton's official duties. Cheney et al will argue that they were acting in their official duties and as such, are entitled to immunity.
The counterargument is probably something along the lines of "the VP and others can't violate someone's constitutional rights as part of their official duties." (I'm surmising, but I think the arguments are roughly similar to when a cop gets sued for excessive use of force and then tries to claim immunity.)
July 14, 2006 1:56 PM | Reply | Permalink
Howard,
I'm not a lawyer just yet, but I play one in school. ;)
I think you are precisely right in the sense that this is exactly the argument the Wilson's should be making when the case is challenged on immunity grounds.
The problem is that Cheney will respond that he is immune form suit for actions taken while in office. That issue has never been conclusively resolved by the SCOTUS (to my knowledge). The Nixon v. Fitzgerald case found absolute immunity for the President in his official actions. We don't know if that applies to the VP.
Both arguments have merit, so we'll have the lengthy appeals and thus I agree with Turley that this case will take forever to get to a judgement.
In my (amateur) opinion what Cheney did should not be considered within the bounds of his official duties, therefore the suit should be allowed to preceed, given the Clinton v. Jones precedent.
July 14, 2006 1:58 PM | Reply | Permalink
The "elves" will return to Washington and reorganize to defend Vice, Rove, Libby and the 10 John Does from those evildoers, Valerie Plame and Joe Wilson. We will see the likes of Ann Coulter, Laura Ingraham, Ben Ginsberg, Ted Olsen and all their buddy elves briefing the case to death.
Everybody knows that Republican lawyers are better than Democratic lawyers. Petition to dismiss the complaint will without doubt succeed because this White House will claim it was acting to defend the national security when they declassified the information about Valerie Plame's identity, despite the haphazard manner in which they did it. You know, Vice spread the word and after he did he told Libby that is was OK because Addington said it was virtually declassified.
Oops, there goes another rubber tree plant.
July 14, 2006 2:14 PM | Reply | Permalink
"Everybody knows that Republican lawyers are better than Democratic lawyers."
Huh? Possibly the silliest thing I've ever read on this site.
"Petition to dismiss the complaint will without doubt succeed because this White House will claim it was acting to defend the national security when they declassified the information about Valerie Plame's identity, despite the haphazard manner in which they did it."
I have no idea if the petition to dismiss will succeed or not. But if recent history is our guide, it will depend a lot more on the political leanings of the judge hearing than case, and on the quality of his jurisprudence, than on any nonsensical prejudice like "Republican lawyers are better than Democratic lawyers."
July 14, 2006 2:42 PM | Reply | Permalink
I think we can count on Scalia to wield the argument of immunity based on the fact that Cheney was doing his job. The question is how many people he'll get to buy the argument. Let's see...Alito and Thomas will definitely line up behind that, and Roberts and Kennedy might, too.
It would be a farcical decision. One wonders exactly how far the administration is allowed to go in the pursuit of its goals.
July 14, 2006 2:45 PM | Reply | Permalink
I'll bet Valerie would be better in a duel than Joe.
She WAS an undercover trained CIA agent.
Oh, wait, maybe that was the "Wilson" you were referring to?
Never mind.
July 14, 2006 3:05 PM | Reply | Permalink
Burr and Cheney have something in common - they both shot someone. Burr, I believe, was tried for treason. Cheney ought to be impeached and convicted for treason - he placed revenge against Joe Wilson (who blew the whistle on Cheney's lying arrogance) above Valerie's work on WMD's in Iran.
Tom
July 14, 2006 3:05 PM | Reply | Permalink
The lawsuit is doomed. The DoJ will use judge selection and other methods that were effective in preventing Sibel Edmonds from getting her day in court.
The only hope is that it MIGHT get as far the discovery phase - but don't count on it.
July 14, 2006 3:06 PM | Reply | Permalink
J. McCutchen "JmacSF"
San Francisco. CA
It is hard to disagree with Turley, who knows a helluva lot more about the DC trial bench than I but I will stand by my previous comments. An ass-kicking calendar conscious judge could have this puppy in the dock by the end of 2007, 2008 should be a lock
July 14, 2006 3:08 PM | Reply | Permalink
I'd be curious to know what other lawsuits are possible and useful -- as for instance in the matter of NSA and other invasions of privacy? Maybe a full-scale onslaught of legal actions might help pull former allies apart, get more whistles-a-blowin'.
July 14, 2006 3:09 PM | Reply | Permalink
I doubt it. If somebody pleads immunity--hardly a longshot--the order denying immunity is immediately appealable under the collateral order doctrine. So it goes to the D.C. Circuit. If the order denying immunity survives THAT, it likely gets cert to the Supreme Court. So there would likely be two rounds of appeals just on Pacemaker Dick's assertion of VP immunity from civil suit before you got to discovery, much less a trial.
July 14, 2006 7:06 PM | Reply | Permalink
Well, when I try to go to sleep at night I don’t count sheep. I count the possibilities of lawsuits, subpoenas, indictments, and any and all legal means possible to bring these miscreants to heel, and then send them on to hell. I am not a particularly religious person, but I’ve made a special exception for this hell part. I fall asleep with a smile on my face. Ah, “Some people call me a dreamer, but I’m not the only one…”.
I really don’t care how long it takes. Of the triumvirate: Cheney, Rumsfeld, and Bush; the only one, actuarially speaking, who has a real chance of standing in the dock is Bush. I am willing to suffer the lack of immediate results for the surety of justice for that one.
Now, of course I’m not a lawyer, just a tired old man, tired of the same old shit. This dreaming is what keeps me going. I guess I owe part of my longevity to the President. I just don’t want to miss any of this.
I want to see “the smirk” wiped from his face. I also want him to testify on his own behalf. That alone would be worth the price of admission – the stammering, the gibberish, and the absolute distain for ordinary people having the temerity to question him. After the jury is selected I want him to look at that them and say, “Okay, Bring it on”! And he wouldn’t be able to make use of professionally done signs, and banners behind him saying “Honest and Innocent”, “Honest and Innocent” over and over, again. The “Decider” would be having his fate decided by others. Oh, what wonderful irony!
Well, I’ve reduced the seriousness of this post enough. It’s time for bed, but one last thing. I do find myself, in my dreams, marching around the White House chanting: Pinochet, Nuremburg, Milosevic. I wonder what that means?
July 14, 2006 9:19 PM | Reply | Permalink
Plame will lose. Guaranteed. In fairness she deserves a handsome monetary settlement in exchange for silence. Even if this debate is not settled until after Bush leaves office, the GOP will attack it with everything it has; and that is a lot.
July 14, 2006 10:07 PM | Reply | Permalink
Remember Paula Jones V.Clinton. It was allowed to go to discovery. The Supreme Court unanimously ruled against Clinton, and allowed the lawsuit to proceed.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=95-1853
July 15, 2006 3:30 AM | Reply | Permalink
In light of your expression that you apparently feel that this case has no merit by your opinion that Plame will lose this case, could you please expand and clarify on your opinion why Plame deserves a handsome monetary settlement in exchange for silence?
From this perspective in an alternate universe, where up is down and in is out and the monkeys fly home for dinner, please tell us all why. . .
~OGD~
July 15, 2006 9:10 AM | Reply | Permalink
OldenGoldenDecoy
Plame was wronged. But this is not a case in which the facts need to be (or shoulld be) made public domain. More harm than good will come of it.
July 15, 2006 10:08 AM | Reply | Permalink
Harm?
And pray tell what will be the harm?
What is there to hide? In a free and open democratic society, isn't sunshine the best disenfectant?
~OGD~
July 15, 2006 11:25 AM | Reply | Permalink
Ah yes! A man of my heart...
A fellow tired old man who would make a perfect keeper-of-the-keys of the brig aboard the tall ship USS Lollipop....
Good men are hard to come in this day and age to accompany a fellow man of honor on Shore Patrol duty . . .
~OGD~
July 15, 2006 11:31 AM | Reply | Permalink
This is a very good point:
You mean like, add one more small piece of straw to the proverbial camel's back?
~OGD~
July 15, 2006 11:34 AM | Reply | Permalink
Pardon me ...
Are we mixing up "elves' in place of flying-monkeys, or is that a different story?
~OGD~
July 15, 2006 11:40 AM | Reply | Permalink
I'm not about to make a judgement on whether or not "...the lawsuit is doomed..." And please, don't take this as a knock on Sibel Edmonds, but Sibel is no Joe and Valerie. The Wilson's combined horsepower behind the curtain in the Beltway is a wee bit more influential than that of Edmonds.
~OGD~
July 15, 2006 11:51 AM | Reply | Permalink
OGD
Not when the CIA and other intelligence gathering information is at the center of the debate.
July 15, 2006 12:03 PM | Reply | Permalink
A difference between the Jones v. Clinton case and this is that Jones v Clinton was related to 'damages' incurred as a result of actions not related to Clinton's official duties.
This case is related to offical duties. Wouldn't Cheney be exempt from such lawsuits?
July 15, 2006 1:49 PM | Reply | Permalink
The battalion of attorneys who joined forces to "get" Clinton [out of office] called themselves "elves". Who were the "flying monkeys"?
July 15, 2006 3:58 PM | Reply | Permalink
These guys ... They were last seen somewhere in the vicinity of Kansas.
July 15, 2006 7:07 PM | Reply | Permalink
Nice try, Gettysburg, but the center of this debate is not the gathering of intelligence but instead the deliberate revelation of state secrets to people lacking security clearances such as journalists Matt Cooper and Robert Novak and the deliberate betrayal of government undercover agent Valerie Wilson (yes, surprise, the U.S. government had given her a cover and hadn't taken it away before her betrayal, therefore she was a government undercover agent at the time of the betrayal).
Someday, could you please explain why your nearly every post at this site appears to be the work of a dishonest Republican troll? Oh, wait, never mind; I remember. See below.
Honesty isn't particularly important.
-- Gettysburg 4/11/06
July 15, 2006 7:21 PM | Reply | Permalink
Rhetoric Buster
Why do you insist on continually using that sentence out of context?
If you had read my earlier posts you'd know that I acknowledged that Plame had been "wronged" (betrayed is what I was implicitly implying) and that she was deserving of a settlement.
What I was arguing above is that even if the U.S. government deliberately betrayed her it is not necessarily the business of everyone to know the specifics of the case.
A settlement is enough proof that the government lied. We don't need to go the extra mile by divulging secrets of the intelligence community as a whole; even if that's what they did to Plame. Your inverse logic is a bit impotent.
July 16, 2006 12:42 AM | Reply | Permalink
Gettysburg
If you retract your claim that honesty is not particularly important and express regret for claiming it I'll stop using it.
You repeated exactly the false Republican talking point that I objected to above. There are simply no "intelligence-gathering" or further "divulging secrets of the intelligence community" matters at issue here. The issue instead is why any patriotic American would deliberately betray a government undercover agent. With this lawsuit the American public might actually find out that the reason is that that loyalty to nation has little effect on the Bush administration's decision-making.
July 16, 2006 4:29 AM | Reply | Permalink
There is the key question.
Was this part of his "offical duties" or part of the Bush re-election campiagn?
I'd say getting positive press coverage by the likes of Robert Novak isn't part of the official duties of the Vice President.
July 16, 2006 11:50 AM | Reply | Permalink
Here's an article on that topic. It suggests absolute immunity is likely for the VP (as w/ the Pres) for official acts and qualified immunity for others.
http://www.time.com/time/nation/printout/0,8816,1214526,00.html
I think some limited discovery may be necessary to determine whether these acts were official or not in order to litigate the immunity issue.
The other possible monkeywrench will likely be getting access to classified info.
July 17, 2006 4:05 PM | Reply | Permalink
Another wrinkle, as I noted in a later comment:
Here's an article suggesting that absolute immunity is likely for the VP (as was noted is the case for the President) for official acts and qualified immunity for other members of the Administration.
http://www.time.com/time/nation/printout/ 0,8816,1214526,00.html
I think some limited discovery may be necessary to determine whether these acts were official or not in order to litigate the immunity issue.
The other possible monkeywrench will likely be getting access to classified info.
July 17, 2006 4:08 PM | Reply | Permalink
Please accept my high fives for picking up this thread with this pompous brainfart that I dropped when I saw it was going exactly where all this person's threads go ... into a spiraling swirl of the toilet trap of circular reasoning, red herrings and unfounded balthering suppositions... And it's apparent by Gettysburg's lack of response that there will be no retraction forthcoming related to the brainfart quote... That's real Ayn Rand of 'em . . .
~OGD~
July 18, 2006 1:59 AM | Reply | Permalink