Clinton, Dick, and Immunity

by emptywheel

Forgive me for being really really crass.

But I'd love some press person--if Cheney ever made it within an armed phalanx-length of press people anymore--to ask Cheney one question about his claim to have absolute immunity:

The lawyers said any conversations Cheney and the officials had about Plame with one another or with reporters were part of their normal duties because they were discussing foreign policy and engaging in an appropriate "policy dispute." Cheney's attorney went further, arguing that Cheney is legally akin to the president because of his unique government role and has absolute immunity from any lawsuit.

U.S. District Judge John D. Bates asked: "So you're arguing there is nothing -- absolutely nothing -- these officials could have said to reporters that would have been beyond the scope of their employment," whether the statements were true or false?

If Clinton's ... um, Vice President ... wasn't entitled to absolute immunity, why is Bush's?

Comments

[njr]

Labdancer, you out there?
I'm waiting... tell Marcy what she wants to know...
and please let me listen...

[Mimikatz]

Because Cheney and Addington had the balls to assert that Cheney SHOULD have immunity. It is just more of the Right's sociopolitical Darwinism in which the strong push aside the weak.

[Frank Probst]

If I recall correctly, even Clinton himself wasn't immune to civil suits.

[emptywheel]

Frank

That "Vice President" reference was a bit of a pun. I was referring to WHY Clinton didn't have immunity...

[Jodi]

Clinton was sued for something before office as I remember.

As I remember NOW just looked the other way as usual whenever Clinton acted "boyishly."

[Sara]

EW, I am surprised you have never found that secret part of the Constitution the learned Cheney is referring to in his lawyer's argument.

It is sometimes referred to as the Jake Garner Codicil -- you remember, "The Vice Presidency is not worth a bucket of Warm Spit." What Garner was hiding, of course, was that his enormous power was actually substantially greater than the contents of the bucket on his Texas porch, where he sat out and kept his mouth shut about the New Deal.

[Canuck Stuck in Muck]

To constitute depraved indifference, the defendant's conduct must be 'so wanton, so deficient in a moral sense of concern, so lacking in regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes a crime. Depraved indifference focuses on the risk created by the defendant’s conduct, not the injuries actually resulting.

[Frank Probst]

EW--Doh! I TOTALLY missed the pun.

Jodi--I don't see how that matters. The "I was just doing my job!" defense makes a little bit more sense to me, but even that one isn't going to fly, since what they did wasn't quite legal. The Veep shouldn't be able to commit crimes and then claim that he was doing it as part of his job. If he runs somebody over on the road, does he get a free pass if he was on his way to a meeting? Before you know it, they'll be claiming that he can just shoot someone in the face and not face any legal consequences for it.

[freepatriot]

but we LOVE you when you're "being really really crass."

sure, we could forgive you for that

the only thing we couldn't forgive you for is NOT "being really really crass."

and IIRC, wasn't getting a blow job a part of Clinton's regular duties in office ???

[ab initio]

Any info on Judge Bates? Are these just pretrial motions to see if the case merits a trial?

[obsessed]

that "Vice President" reference was a bit of a pun. I was referring to WHY Clinton didn't have immunity...

jajajaja ... I totally missed that - you're too much EW

[Sara]

The motions are about standing. Does Valerie have a proper cause of action under the law? It is about the intersection between her professional career, and her rights to benefit from 20 some years of quality service to CIA and country, and Cheney's claim that it was a policy discussion, and not about using her as a political football against her Husband for his and Bush's benefit.

If this thing gets legal traction and goes forward, I hope a composer of Grand Opera takes note.

[Outahere]

Oh good one! He really is a lit'l ---

[marksb]

Ha. I was looking up a quote for my daughter and found this:
"The illegal we do immediately. The unconstitutional takes a little longer."
-Henry Kissinger

[Dee Loralei]

I think the judge hearing the Plame case was appointed by W in 2001, And before that he was on Ken Starr's staff, during impeachment. I have little hope he'll allow the case to proceed. But after what he said about Cheney immunity today, I have a bit more gope than I did.

[bmaz]

Clinton did not have immunity to the Paula Jones civil suit because the conduct alleged happened Outside of, and prior to, his duties as President. The precedent resulting from Jones v. Clinton, however, doesn't address immunity from liability, it addressed whether or not Clinton was immune to process during his tenure in office. the decision held that, as long as Clinton being subjected to process (i.e. the case being allowed to proceed) did not materially interfere with his ability to perform the duties of his office, he had no immunity to process during his time in office and the case could, indeed, proceed.

Cheney, on the other hand, is arguing that any and all conduct on his part that the Wilson's complain of was performed in the course and scope of his duties of office. Generally, the Federal Government and it's officers are immune from acts committed within the course and scope of their duties. The Federal Tort Claims Act creates numerous exceptions that permit liability; however Constitutional officers of the Executive Branch arguably are not within any of the exceptions and therefore would possess immunity. It is my belief that the Wilsons are arguing, and Judge Bates was contemplating by way of his question described above, that the actions of Cheney in exposing Plame were not rationally related to the reasonable performance of the course and scope of his duties of office and were so egregious so as to subject him to individual personal liability. This is an extremely steep hill to climb for the Wilsons. Keep in mind that the benefit of the doubt in this determination will be given to Cheney under a long history of precedence.

Here is where it gets interesting. I have not read the Wilson's pleadings yet, but if I was in their shoes, I would have framed the conduct as joint and conspiratorial between Cheney, Libby et. al. and private individuals and entities such as Novak, his syndicator and maybe Richard Hohlt. This way, I would argue that the suit was viable even if the Federal officers and agents had immunity. I would then argue that the immunity granted to the Federal officers and agents (Cheney, Libby et.al.) was only immunity from liabilty, not immunity to process and, therefore, they could be deposed, subpoened to testify, and otherwise subject to discovery on the record. I am not sure this theory would work either but it is much more likely to succeed than the argument that liability attaches. In many regards, I think obtaining discovery on the record from Cheney, Libby et.al. may be more important to the Wilsons than obtaining a monetary judgment. All this pretty hypothetical, we shall see how it turns out.

[ab initio]

Thanks bmaz for helping out on the legal issues of the case. I'm sure the Wilson's have thought long and hard and have had access to good counsel. The key question is the judge predisposed considering he was a Ken Starr toadie or will he give the Wilson's a fair shot.

I agree that allowing the suit to proceed and as a result for discovery to happen would be most valuable.

Howver, this is going to be a tough and uphill case with Cheney claiming complete executive immunity and they will use the usual "classified" foil to prevent anyone from getting near any smoking guns.

[bmaz]

A little followup to my comment above. First the good news. Judge Bates is clearly a solid Republican; however, he has a solid, extensive and impressive record. He was appointed during 2001 by Bush, but the Senate was still Dem controlled and he was apparently confirmed without incident. He held senior managerial positions in the US Attorney's Office for five years while Clinton was in office, so he was not that poorly thought of. Overall, he was a career AUSA for nearly two decades in the DC District. I am going to give this guy the benefit of doubt until someone gives a valid reason otherwise.

Now the bad news. I am sure the Wilson's attorneys have reasons for their tactical pleading of the complaint; but damn if I can figure them out. The complaint is rather unsophisticated and, strangely, makes no attempt, not even a perfunctory one, to shoehorn private party defendants such as Novak etc. in. Even if they were only going to name Federal officers/agents as defendants, the complaint is not framed to optimally protect against immunity defenses. This is very troubling. I am not sure this complaint is going anywhere. That is sad, because, at least from where I sit, it was possible to plead claims that stood a fair chance of surviving the motion to dismiss and making it through discovery.

[Jodi]

Frank,

all I said was that as bmaz said the civil suit Clinton was subjected to occurred outside of his time in office.

bmaz mentioned Paula Jones,
but there was Jennifer Flowers too.
It must have been hard to keep track of that horny guy.

[MayBee]

Why are they not suing Bill Harlow, who confirmed to Novak that Plame was at the CIA? He also told Martin, apparently without warning her if/that Plame's was covert. Why are they not suing Fleisher, who told Pincus and/or Dickerson?
Why are they not suing whomever told David Corn Valerie was NOC?
Why not sue Novak, Corn, and Matthew Cooper? They all printed information about her job while she was still employed.

[Beel]

Let's just stipulate that Clinton was "a horny guy" and stop bringing it up forever whenever anything the Rs do that's dubious comes to the surface. We're in Nixon land with the current people, or worse. And JFK was a much "hornier" guy, for that matter: start with Sy Hersh's "Dark Side of Camelot" and you'll get to the Bushs and what they represent a lot quicker than if you try to shoehorn Clinton into things. He was an outsider.

[nolo]

". . .I am sure the Wilson's attorneys have reasons for their tactical pleading of the complaint; but damn if I can figure them out. The complaint is rather unsophisticated and, strangely, makes no attempt, not even a perfunctory one, to shoehorn private party defendants such as Novak etc. in. Even if they were only going to name Federal officers/agents as defendants, the complaint is not framed to optimally protect against immunity defenses. This is very troubling. I am not sure this complaint is going anywhere. That is sad, because, at least from where I sit, it was possible to plead claims that stood a fair chance of surviving the motion to dismiss and making it through discovery."

Posted by: bmaz | May 18, 2007 at 02:57

hey bmaz --

i have read the pleadings, on both sides,
and -- at least as to the dark-prince's claim
of unlimited immunity -- i think he's the loser.

i have much more analysis at the
above-link, but let me offer a snip
of part of it here:

mr. cheney's lawyers claim that the
federal appeals court case of schneider v.
kissinger provides an absolute bar
to the wilsons' recovery.

three premliminary notes -- first,
schneider's case was not filed as a bivens-
type-action -- that route is
only available to u.s. citizens (as
it is premised on 14th amendment
"equal protection" of u.s. law
claims). next, schneider's family
sued under the FTCA -- as it was
their only viable option to procure
u.s. jurisdiction. as citizens, juris-
diction is little barrier to the wilsons.
armed with bivens, they need not,
and do not, rely solely on FTCA claims.
finally, mr. bush has indicated that
it is NOT "u.s. policy" to out c.i.a.
assest for political retribution -- he
said he would fire anyone who did, and
in doing so, said they would have violated the law. . .

[there are six factors, under the seminal
supreme court case on political question
immunity, baker v. carr, that would grant
the dark prince absolute immunity from the
wilsons bivens-type claims. none of them
grant him the shelter he claimed in
yesterday's oral argument. . .]

the statement of the schneider
case-facts really tells it all,
here -- schneider was not a u.s.
citizen, he was the commanding
military-junta general of the chilean
army -- he refused to order a military
intervention in elections; thus he was
shot during an attempted kidnapping.
mr. kissinger did not personally
direct his kidnap or shooting;
there was a nixon-ian u.s. policy to
cause a "regime change" in chile;
so far as we know, there was NO u.s.
policy to forge evidence of WMDs;
there was NO u.s. policy requiring
the outing of c.i.a. assets as "fair"
retaliation for their spouses' dissent
from u.s. pronouncements. . .

and on, and on, and on. . .

do take a look -- but i think judge
bates will rule solidly that mr. cheney
is not absolutely immune to a bivens-type
claim, here. . . more on my site as the
coffee really kicks in. . .

s m i l e. . .

[emptywheel]

For the record, I feel pretty much as bmaz does. I think adding a private citizen (I think Matalin and Hohlt would be the most productive two) would have helped things significantly. But that, on its face, the Wilsons have a very low chance of not getting thrown out. That chance probably went up with Dick claiming absolute immunity, though, which would make me very happy if it happened.

And yes, the point on this is to get subpeona power on Rove and Armitage, not to get rich.

[nolo]

". . .And yes, the point on this is to get subpeona[s issued to] Rove and Armitage, not to get rich. . ."

p r e c i s e l y.

EW -- that is precisely why only
government actors were sued, in my
humble estimation. . .

the lawsuit essentially asks "was
all of this -- or was this NOT -- a
policy of the united states govern-
ment?"

thus -- to my eye, at least -- adding
any press-pool-stenographers to the
list of defendants simply obscures
the central issue. the central claim
is that a "rogue" [or -- more damagingly,
a perhaps an AUTHORIZED -- not-so rogue]
agent of the u.s. government violated the
wilsons' rights. among those rights, a
fourth amendment right to privacy, just
as mr. bivens' fourth amendment right
to be free from unreasonable seaches
was violated by the narcotics agents. . .

i think it has a decent chance
of either (a) succeeding because cheney
was a rogue -- or (b) losing, because
cheney was acting upon an implicit POLICY
that simply reflected this administration's
view of the united states role as a military
bully-boy in the larger world. . .

as i type that, i think the wilsons
losing the civil suit might be the
most-damaging thing ever to happen
to this presidency. it will flatly
equate bush-cheney-rove-rice-rumsfeld. . .

with

nixon-agnew-kissinger-erh-rumsfeld-cheney. . .

yes -- that's exactly right. res ipsa. . .

[mk]

I was watching South Park last night when it came to me: Cheney is using the Cartman defense: "I do what I waaaant."

[MayBeex]

And yes, the point on this is to get subpeona power on Rove and Armitage, not to get rich

Why? What do they hope to accomplish with their subpoena power?
Getting rich is one thing, but are you saying this is strictly a political ploy?

[nolo]

MayBeex -- i think the goal is
to let the truth come out. libby
lied to hide it -- and he was con-
victed of perjury. . . but we never
did get to the truth. did dick
cheney set the whole plan in motion,
as a "rogue" agent, or was it part of
an "un-official official" policy of the
bush 43 government?

the most disappointing outcome would
be that the courts dismiss the wilsons'
claims on grounds entirely unrelated to
the "twin horns of the dilemma" i laid out
above, for messrs. cheney, bush and rove.

just my $0.02.

[bmaz]

nolo - I thought a discussion of Bivens was probably a little beyond the scope of a comments thread so I didn't go that far. I understand what you are saying about about a clean action against the governmental misconduct, because that is the root of the evil. But you got to get to discovery and a jury or you got nothing. I agree with your position that these defendants are not entitled to complete, I think you used the term "ultimate", immunity. Although as to Cheney, his claim is better than you think; the others flat out are not going to get it. But if you have a group of governmental defendants who all have qualified immunity, and no other defendants, you are done because you have no hope for recovery of even nominal damages, and your suit dies. I have been confronted with exactly this situation before, and I will never repeat that history.

I think by far the better way to get through discovery and to a jury is to phrase the conduct as egregious and outside of rational governmental conduct. Private civilian defendants also pretty much insure you can get to discovery, and that is when the pigeons come home to roost against all the defendants. I have had at least one case, and probably others too, where the governmental actors were dismissed without prejudice on early immunity claims, but later reinstated when discovery proved up the nature of their culpability. I would have been dead in the water if the civilian defendants had not allowed me to go forward.

[Mimikatz]

Bates worked in the Clinton Admin and worked for Starr. Unlike the Bush/Cheney cabal he can see beyond the present Admin and knows that power can change hands. Does he want to create that kind of immunity for the Dems who win in 2008? And 2012? Not likely. I say Cheney loses on this claim, even if it is narrowly. Bates isn't going to create wide-open precedents.

[bmaz]

Mimikatz - Agree as to Bates; but it is more than just seeing the political handwriting on the wall. Guys like Bates, irrespective of their party affiliation, are often simply creatures of the law and they care about getting it right. I am hopeful that Bates is, indeed, one of these types. I have to respectfully disagree with your second proposition, however. From a legal standpoint, Bates would be going out further on a limb, and creating more "wide open precedent", in light of how the complaint is framed, by ruling in the Wilson's favor; not the other way around. on this one, I sincerely hope I am wrong.

[earlofhuntingdon]

You see, it's really Dick who's President, so he should have immunity; he wasn't elected to do that, but his sock puppet lets him have his way anyway. This would be so tedious if it weren't about Cheney and his cohorts taking a blowtorch to the Constitution.

I can well imagine that Mr. Cheney, et al, considered the PlameGate business just a routine part of their normal work day. Except that I'm not sure even a Nixon-appointee judge would consider such things a constitutional part of their official duties as members of the executive branch. This argument alone, if a stake is not driven into its heart before the next sundown, should be litigated to the Supreme Court.

Given Cheney's record in litigating his refusal to disclose his energy task force discussions all the way to the SCt, I would expect him to do the same here. Delay being a key goal. I imagine he's counting on the public losing interest and the Wilson's running out of money. Let's not let that happen.

[greenhouse]

EW, that Clinton's VP reference is, what can I say, absolutely punnilicious!

[Neil]

wasn't getting a blow job a part of Clinton's regular duties in office ???
Posted by: freepatriot

Yes, and so was lying about it.

The VP may find his arguments play better in the media than in the court of law. Let's hope so. Round 1 goes 2-1 for Plame.

[Neil]

if I was in their shoes, I would have framed the conduct as joint and conspiratorial between Cheney, Libby et. al. and private individuals and entities such as Novak, his syndicator and maybe Richard Hohlt. This way, I would argue that the suit was viable even if the Federal officers and agents had immunity. I would then argue that the immunity granted to the Federal officers and agents (Cheney, Libby et.al.) was only immunity from liabilty, not immunity to process and, therefore, they could be deposed, subpoened to testify, and otherwise subject to discovery on the record. I am not sure this theory would work either but it is much more likely to succeed than the argument that liability attaches bmaz

Thanks bmaz. This is great stuff for we non professionals to ponder.

[hauksdottir]

We see the Ambassador, who might worry about America's reputation in dealing with other sovereign nations. We see the Intelligence Analyst, concerned with ferreting out the truth from a mountain of misdirection and deceit, and worried about nuclear proliferation.

Perhaps we should also see the Parents, who might not want their children raised in a dictatorship, especially where the dictator is a theocratic, strutting, arrogant little puppet.

I suspect that the Wilsons could retire somewhere and live comfortably, but what sort of America will their children grow up in if lawbreakers are not called to account?

[lizard]

DRAFT AL GORE!
Vote For President Clinton's Dick......Cheney

[nolo]

". . .I think by far the better way to get through discovery and to a jury is to phrase the conduct as egregious and outside of rational governmental conduct. Private civilian defendants also pretty much insure you can get to discovery. . ."

Posted by: bmaz | May 18, 2007 at 11:32

i absolutely concur that many of my
best surprises are a result of good,
solid agressive discovery. . . and,
i do think the wilsons would be helped
immensely if they could get that far. . .

having said that i definitely see your
approach as of great merit, here, i will
stop for a moment, and wonder aloud whether
one of the main thrusts of the wilsons'
amended complaint is -- if one fears that
judge bates is likely not to allow intensive-
fact discovery -- over several days -- of a
"busy, important government official" like
dick cheney(hah!) -- to allow it to sink or
swim solely "on the law". that is, to style
it in a manner that the matter is ultimately
decided in an appelate court FIRST -- as bivens
was. the idea being, you'll get bounced on
the motion to dismiss here in front of bates,
you'll take an immediate appeal on the issue
of whether cheney has absolute immunity; and
you'll bank on winning the right to a trial, there,
or at least unrestricted factual discovery
(once cheney has left office -- crap!). . .

i dunno -- but at about page 34-35 of the
wilsons' memo of law in support it struck me
how little mention they make of the need for,
and their black-letter right to, discovery under
bivens (and its progeny) -- to figure out whether
they can actually prove a cognizable claim against
the dark-prince. . .

okay -- i'm rambling -- time to stop typing.

i've enjoyed this to and fro. . . thanks!

[Mimikatz]

I phrased my point inartfully. I meant Cheney would lose on the absolute immunity for the reasons I said. If the suit is dismissed, it would be on narrow grounds.