Dear Congress

by emptywheel

John Bates has issued a ruling I've been anticipating--dismissing the Wilson lawsuit against Cheney, Rove, Libby, and Armitage. If I'm reading correctly, Bates ruled that he has no jurisdiction to rule in this matter.

This Court therefore lacks subject matter jurisdiction over plaintiffs' tort claim for public disclosure of private facts.

He therefore did not deal with many of the arguments the Wilsons and the defendants raised in this case--including Cheney's claim to absolute immunity. But he prefaces his detailed discussion with the following comment.

The merits of plaintiffs' claims pose important questions relating to the propriety of actions undertaken by our highest government officials.

All of which is a 40-page way of saying what Cheney and Libby and Rove and Armitage did was wrong. But a civil suit is not the appropriate venue to address that wrong. And with Bush's self-serving commutation of Libby's sentence, the criminal courts have been foreclosed as the means to address that wrong, too.

Which leaves Congress. There is abundant evidence already in the public record showing top members of the Administration--including Bush himself--abused their positions of power to rebut Joe Wilson. Some of those actions--including the commutation itself, since it removed Bush from criminal liability for his actions--fit well within the purview of Congress.

It's time to step up, Congress. That crappy hearing last week did much to polarize the two parties. But did little to address the evidence before us, pertaining directly to Bush's potential move to declassify a CIA spy's identity for political retaliation. Two judges who have reviewed the facts agree the actions were wrong. What is Congress going to do about it?

Comments

[Jodi]

I guess Mr Novak was correct again.

[emptywheel]

Jodi
I'm curious. Do you have a citation for that? I recall Novak saying he wouldn't respond to a subpoena in this case (which tells you something about his testimony in the Libby case). BUt right? And righter than those of us here on the site that have presumed this would be dismissed, based on at least as much knowledge as Novak had?

[Jodi]

Yes. I am a bit proud too. It is not often I know something you don't.

Friday, Jul 14
Novak Says Plame/Wilson Suit Will Be Dismissed
In an interview to be aired this weekend on Bloomberg's "Political Capital with Al Hunt," Bob Novak says that the civil suit Plame and her husband brought against Vice President Cheney, his former aide and White House adviser Karl Rove probably will probably be thrown out.

Full transcript when you click below...

http://www.mediabistro.com/fishbowlDC/television/novak_says_plamewilson_suit_will_be_dismissed_40185.asp

[marksb]

Even a blind squirrel finds a nut once in awhile.

[bmaz]

Hell, Jodi AND Novak probably read that here months ago. Didn't take any genius to predict this.

[ab initio]

"What is Congress going to do about it?" - EW

This is a question that many citizens like me have. What is Congress going to do about the abuse of power and obstruction of justice by Cheney and Bush - from conspiracy to out a CIA agent to warantless spying on Americans to a many other activities.

Can some smart marketing types suggest a focused campaign where many of us citizens could help Sen. Leahy and Rep. Conyers and Speaker Pelosi and Majority Leader Reid discover courage and a spine in standing up for the rule of law?

[Elsie]

I'm sure that the Wilsons must have been bracing themselves for this ruling as well, but I'm curious: Why such a long delay in rendering it? Shouldn't it have been apparent to the judge well before now that he didn't have jurisdiction over the case?

[bmaz]

Elsie - I trust you didn't mean your question to be funny, but it is. That WAS a fast ruling on a motion like this. I didn't expect it for at least another month. I have waited close to a year on occasion for rulings on motions to dismiss and/or summary judgment in Federal Courts.

[marksb]

ab initio, maybe the focused campaign is on electing more congressional members and getting a near 60-vote majority in the Senate, while taking the White House by a "clear mandate" majority. Giving us four years in which to mend the fabric of democracy.

[emptywheel]

Fair enough, Jodi.

May you make citing links a habit...

[Elsie]

You don't have much to be proud about, Jodi. Novak was obviously implying that the case would be thrown out because it didn't have merit, not on jurisdictional grounds. That's apparently not how Judge Bates felt.
In case you missed it above:

"The merits of plaintiffs' claims pose important questions relating to the propriety of actions undertaken by our highest government officials."

[melior]

2 for 2... All that remains is for Bush to pardon Tom DeLay to hit the summer 2007 obstruction of justice trifecta!

[Ralph]

Great post, Marcy. Very helpful.

[phred]

marksb -- As John Nichols eloquently pointed out in the Bill Moyers' show the other night, impeachment is the remedy to the problems at hand. Congress is, in principle, a co-equal branch of government. In their oath of office they are sworn to defend the Constitution against all enemies foreign and domestic. That is their job. Their oath mentions faith and allegiance, doing their duties of office, but it explicitly makes them swear to defend the Constitution against all enemies. The Constitution has no greater enemies on earth than George W. Bush and Richard Cheney.

I know I'm repeating myself, but this is all about precedent. If their conduct is allowed to stand, what will be left to deter a future President from even more alarming abuses than this one has achieved? Nothing. Certainly not the political elite in either party who currently reside in Washington, D.C. And with the judicial and electoral systems already rigged (e.g., DoJ and gerrymandering to protect incumbents), what makes you think an election will somehow make everything better? Remember there are Democrats hiding embarassing documents now as EW discussed in a thread below. Dems have already shown themselves to be prone to corruption in the past (which is what got them chucked out of the majority last time).

If the Dems fail to execute their oaths of office, then there are a lot of people who will see no reason to vote for them in November of 2008. The Dems now own the mess in DC as much as the Rethugs do, so they better find the spine to do something about it or all their dreamed of gains will fail to materialize.

[windansea]

you've been anticipating?? LOL

have to confess I'm being a bit irresponsible in making my argument this way. My point is, if we can describe how any of these non-governmental employees (a the time of the leak, that is) were involved in the conspiracy, then we get to discovery; the suit doesn't get dismissed on Cheney's immunity claim.

It probably won't be GannonGuckert who gets us there. My bet's on Newt.

But how funny would it be if it were GannonGuckert!

oops!

[windansea]

U.S. District Judge John D. Bates said that Cheney and White House aides cannot be held liable for the disclosure of information about Plame in the summer of 2003 while they were trying to rebut criticism of the administration's war efforts levied by her husband, former ambassador Joseph C. Wilson IV. The judge said such efforts were certainly part of the officials' scope of normal duties.

"The alleged tortious conduct, namely the disclosure of Mrs. Wilson's status as a covert operative, was incidental to the kind of conduct that defendants were employed to perform," Bates wrote in an opinion released this afternoon.

BOOOM

[bmaz]

Windansea - There is a difference between dicta and a dick. One is what you may have quoted; the other is you.

[Woodhall Hollow]

Thank you Marcy for your talent, your intelligence, and your tenacity. And for having the nimbleness of mind and finger to write down and publish what so many of us would like to say.

(& Jodi, Jodi, Jodi...your schtick is really boring and tiresome)

[emptywheel]

windansea

Your difficulties with the English language apparently continue.

Perhaps you didn't see the discussions in the past thread where we all talked about the necessity to cite a non-governmental employee on these issues? Same thing that you're citing here. See, with your limited English skills, you probably don't get this. But if I was saying we need a non-gov to get to discovery with Cheney, then I was implying that without we don't get to discovery with Cheney. Not sure if you know this, but Rove, Cheney, Libby, and Armitage were all gov employees in July 2003.

Let me know when you've passed out of basic English.

[JEP]

On some of the other blogs, there's a concerted movement to answer this miscarriage of justice with a counter threat of monumental proportions.
... so they won't let Joe and Valerie take their fight to the courts? Well. then we'll send Joe Wilson to the Senate!

Wilson v Domenici, if I thought the Wilsons wanted to be back with the weenie crowd, I would second the nomination.

But it is an interesting tack; If they won't give the Wilsons justice, then we'll give them The Wilsons, up front and in their faces!!!

I will say this, if Joe Wilson EVER expresses an interest in serving as a Congressman or Senator, then consider me one of the volunteers willing to help him any way I can.

[JohnJ]

I noticed the trolls' new tactic is to get the first comment in at "dangerous" blogs like this one. Who's running these trolls? Maybe this is the Big Dick's intern program for mail order lawyers he likes so much. Maybe the Big Dick or his line snortin' puppy is running the program, which would explain the low IQ behind the talking points.

[looseheadprop]

Spot on Marcy!

And Phred, You must be reading my mind

[marksb]

phred, thanks for the encouraging words. I'm with you all the way. And while I'm eternally hoping that progress can be made in Congress, I'm quite discouraged at the brick wall the media uses to contain any progressive moves, and the cautious attitude that seems to run though our elected representatives. Thanks again for the gentle reminder not to give up.

[Woodhall Hollow]

JEP -- that's right. Joe Wilson for Senate (D-New Mexico)! Can you see him on the Senate Foreign Relations or Intelligence Committees?

I can.

[phred]

bmaz -- tip o' the hat to you my friend, you could give freepatriot a run for his money with your troll-handling abilities :)

[windansea]

Windansea - There is a difference between dicta and a dick. One is what you may have quoted; the other is you

gee I'm sorry, I thought this blog liked to quote the rule of law

[phred]

marksb -- my pleasure :) I'm doing all the encouraging I can these days :) Hope I didn't give the impression that I thought you weren't in favor of impeachment earlier, but I'm trying to speak up whenever I see a "wait until the election" comment. I don't want anyone to think those of us whiling away our time on the blogosphere are ready to let the Congresscritters off the hook :)

LHP -- thanks for the compliment, I wish I could take a peek at some of the legal details you have tucked away up there, I would learn a lot!

[windansea]

Perhaps you didn't see the discussions in the past thread where we all talked about the necessity to cite a non-governmental employee on these issues?

gosh...sorry for quoting you in this thread claiming how you predicted this previously

kinda like how you claimed the Armitage leak no?

[maggierose]

I had a conversation with Joe Wilson at the TBA Conference when Congressman Tom Davis was howling about bringing back Valerie Plame to testify, basically accusing her of lying in her testimony. Living in VA, I phoned the Congressman's office and sent an e-mail, but Joe Wilson's comment to me was why didn't someone else run against Davis.

I think Joe Wilson for Senate in NM is a great idea! He would have to win in an election about the war since Domenici brings home a lot of bacon for New Mexico, but I think it's possible.

[P J Evans]

windansea

Tiresome troll. Tired-out talking points. You should take a vacation. Try a year or two.

[windansea]

let's repeat for clarity

Bates wrote. "But there can be no serious dispute that the act of rebutting public criticism, such as that levied by Mr. Wilson against the Bush administration's handling of prewar foreign intelligence, by speaking with members of the press is within the scope of defendants' duties as high-level Executive Branch officials."

[JEP]

Semi-fiction from JEP;

US Headlines, ca. July 2007;

In response to their devastating election loss in November 2006, a secret branch of the Republican Party has developed a new organization, called "Trolls for The New American Way", which channels funds from Republican campaign coffers around the country to pay these "trolls," as they are known on the blogosphere.

"It is good to see experienced right wing bloggers are finally getting paid for their work," said one well-known troll who calls himself "King of Zouk, and who also uses many other names on "The Fix" blog at The Washington Post (despite the fact that The Fix host has promised not to let people post under more than one name).

According to sources close to the source, this new wave of Republican paid trolls has been recruited to infest the left-leaning, liberal blogs on the internet. When asked why these blogs were targeted, one Republican operative, who spoke anonymously, answered "cuz those go%$#&mn tinfoil-hat lib'rul sunsabitches on the blogs lost us the last election!"

When asked what they were being paid for their pieces, "Jake", a recent newcomer to the paid-troll ranks, said "We only get paid when someone responds, but that's so easy to do, all you gotta say is "Bush is Great!" and you get a whole string of responses from these stupid leftwing geeks! I'm rakin' in the dough, especially over at TPMMuckraker!"

When asked how much he was paid for his work, the new troll responded, "about a hundred bucks for every one who responds."

The interview then ended, because a fight broke out immdeiately among the trolls, apparently because some of the other trolls were only getting $50 for each response.

[windansea]

hmmm so I should expect a check for $700 or so?

nice try though

[JEP]

There's a day coming when these judges will be judged, and I don't mean Jusdgement Day, I mean 2009.

[victoria2dc]

*What is Congress going to do about it?" - EW*

Marcy - What can Congress do about it? Is there some special procedure they can initiate? Can this issue be part of impeachment proceedings?

[JEP]

$100 per response?
That's for premium trolls, you only get the $50 dummy fee.

[bmaz]

JEP - I have not read the decision yet, so it is possible I may rescind this comment; but in all fairness, it appears to me that Judge Bates issued the proper ruling based on how the complaint was stated. He would have had to be, shall we say, "creative" to a small extent to let the matter proceed as it was pled. It would not necessarily have been a huge stretch to do so, but at least from my experience, Bates' ruling appears to be on sound footing.

[windansea]

That's for premium trolls, you only get the $50 dummy fee.

heh..better than you are getting dummy.

[boris]

The part I like best is this one ...

Cheney and White House aides cannot be held liable for the disclosure of information about Plame in the summer of 2003 while they were trying to rebut criticism of the administration's war efforts levied by her husband, former ambassador Joseph C. Wilson IV. The judge said such efforts were certainly part of the officials' scope of normal duties.

Yeah, I know Marcy, those Republican judges, they're CRAAAAZZZZY.

[Jodi]

Don't people realize that they clutter up the thread with all these comments to and about Trolls.

Ooops!

[windansea]

I told you guys the bottom line

Val recommended Joe and Joe did not sign a non disclosure

Joe told some lies and got rebutted

Val outed herself

Liberals died

[emptywheel]

boris

As I said to windansea (but since he doesn't read so good, he doesn't understand) this is something I expected. It is, as bmaz said, probably the correct ruling given the way the suit was written.

So yes, it won't go forward. I wasn't holding my breath. Thanks for stopping by, though.

[windansea]

As I said to windansea (but since he doesn't read so good, he doesn't understand) this is something I expected

windansea reads good! I keep googling this and come up emptywheel with posts previous to today in which you claimed the Plame lawsuit would be denied

[JEP]

"The judge said such efforts were certainly part of the officials' scope of normal duties."

Treason = normal duties?!?!? Only a Republican appointee could suggest such a travesty. And, bmaz, you made a casual point in your comment that really should be the thrust of it.. "He would have had to be, shall we say, "creative" to a small extent to let the matter proceed as it was pled. It would not necessarily have been a huge stretch to do so,"

That is called jurisprudence, I think (IANAL), but it seems that if they can press some of the charges so "creatively" against Democratic Governors and other national Democrats, surely this civil suit would be less of a stretch than many of these politicized cases across the country. I guess my point is, jusriprudence equals leeway, if the judge wasn't a redneck Republican, he could quite easily have found to the contrary.

Like I said, IANAL, but I do believe Justice is gonna be pissed when she looks out from under that blindfold and sees that Republican thumb on her scales...

Like I said before, "they" have the past, "we" have the future.

The transition may seem frustrating, but the promise of a progressive future has been absolutely assured by the misdeeds of these anti-progressives who ruled at the dawn of the 21st Century. Their lust for instant financial gratification, even at the cost of war, has left the American people with a bad Iraqi hangover and the taste of corruption in our mouths. Worse than Viet Nam, and worse than Watergate, probably the worst time in our history...

The People aren't going to drink from that poison cup again.

[boris]

Italiacto

[Mary]

I've always thought Wilson's had an uphill battle, but for pretty different legal reasons than the ones Bates addresses. As a matter of fact, his approach seems to be to cut off the very evidentiary hearings that would be required before there could be a ruling on the matters that he rules on, as a matter of law. He really sets up some interesting conundrums with his attempt to duck having evidence put on in this case.

He basically says that Valerie Wilson/Plame was injured. Then, without allowing for any evidentiary hearings, he rules blind that a) the injury arose from (or was incidental to) the performance, by all defendants, of their Executive duties, and b) the injury was negligently inflicted and not intentially inflicted.

He can scattershot say, all he wants and over decapages, that it was within the duties of Cheney, Libby, etc. to "respond to criticism" of the president but he does not allow for evidentiary hearings as to whether or not that was really what they were doing. Without evidentiary hearings there is no proof that they were "responding to criticism" as opposed to "abusing classified information for the ultra vires purpose of personally retaliating against an administration critic by ruining his wife's career and exposing his wife and their young children and other US assets to life threatening situations."

The fact that Libby was convicted on felony cover up counts goes directly to the evidentiary findings as to whether or not there was a valid (within parameters of performance of executive duties) "response to criticism." It cannot be said, IMO, that seeking to covertly and without attribution plant harmful stories about a critic is an incident to performing executive branch duties - but I'd be willing to hear evidence both ways on that.

Even so, you end up being bound by the remedial provisions of the tort claims act only when the performance (and under the Bates analysis the incidents of performance as well I guess) of exec duties are handled in a negligent manner. Not when there is malicious and intentional injury. And Bates refused to allow for evidentiary hearings on negligence v. intent as well (another item which is touched upon by the Libby trial - Fleischer in seeking immunity and Libby in his convictions are both items that are evidentiary as to intentional attacks v. negligent disclosure).

I don't think the Wilson's case is a great case for other reasons, but Bates made weaker rulings than could have been expected imo. There were too many issues of fact relating to the "incident to executive branch duty of responding to criticims" v. "ultra vires executive branch plot to launch unwarranted attack on spouse of critic" and too many issues of fact relating to intentional v. negligent to support the ruling without allowing for evidence, depositions, etc. IMO.

Worth what you paid for it.

[boris]

it won't go forward. I wasn't holding my breath. Thanks for stopping by, though

Of course, you're basically sane.

I just find Bates refreshing after Walton on this subject.

You're welcome. Anytime.

[Woodhall Hollow]

Thank you Mary. In other words, the law, as it is as written, applies to pigs rather than dogs.

[litigatormom]

I heard about the decision while listening to Hardball. The Wilson’s need someone better than Melanie Sloan to be handling their case — she let Ed Rogers walk all over her.

I’ve read the decision. I am not suprised by the bottom line, but I am quite troubled by the way the judge got there. The importance of Bivens suits is that if you can allege that a governmental official violated your "clearly established constitutional rights," it doesn't matter whether he was acting within the scope of his employment. The violation of a "clearly established" constitutional right makes the "scope of employment" defense irrelevant. I always was concerned that the courts would say that the rights being asserted in the Wilsons' case were not clearly established -- that there wasn't enough precedent for applying the First and Fifth Amendments to the factual situation presented by the Wilsons. The court didn't reach that question, however, going on the "special factors" analysis.

It’s apparently been a long time since I did any reading on Bivens suits, because that whole "special factors" analysis was news to me. It creates a very signficant limitation on the Bivens line of cases, especially since it is based on pretty circular reasoning — the original rationale for Bivens suits was that there weren’t other available means of redress for constitutional violations, but now the absence of remedies becomes a factor weighing AGAINST permitting a Bivens suit to go forward as long as you can persuade a judge that the absence of a statutory remedy was not “inadvertent.” The Privacy Act analysis seemed pretty result-oriented to me -- I don't see how it evidences Congressional intent to deny a remedy for an outed CIA agent -- but I may be wrong about that. I’m just not familiar enough with the statute, or the “special factor” cases. I’ll have to go back and read the underlying cases when I have time, which is not now, alas.

On the Federal Tort Claim Act claim, I’m not surprised at all. Yes, under the FTCA a federal employee can act illegally and still be acting within the scope of his employment. And yes, the challenged action can be motivated by malice and still be immune from suit. It's the nature of the act, and not whether it was maliciously motivated, that counts. Yes, you can abuse your governmental authority and be immune from damage suits. There are tons of cases that say that. I assume that is why the Wilson’s didn’t explicitly rely on the FTCA in their complaint, and instead asserted a common law tort for invasion of privacy. But asserting a common law tort doesn't get around the FTCA. That part of the judge’s decision is, I’m afraid, on pretty solid ground.

As noted above, the court did not reach the question of whether the Wilson’s constitutional claims were “clearly established” at the time of Ms. Wilson’s outing -- the wingnuts will ignore that. The court recited as fact that Wilson was a covered operative within the meaning of the IIPA, although the wingnut noise machine will ignore that. Indeed, I turned the TV off and came here when Ed Rogers started yelling over Melanie Sloan that Valerie Wilson was never covert -- to which she was quite ineffectual in responding. The court also said it was a reasonable inference that Karl Rove learned of Ms. Wilson’s identity from Cheney, Libby or Armitage. The wingnuts will ignore that too.

I’m sorry for the Wilsons, and they should appeal. I don't know whether they need another lawyer. But even if she's an ace lawyer, Melanie Sloan should not be their TV spokesperson.

[JEP]

"his approach seems to be to cut off the very evidentiary hearings that would be required..."

That struck me, too, and Bates' well-known loyalties certainly support that theory. A civil case would expose the dirty laundry that Cheney in particular did not want hung out to dry, at least where anyone could see it.

Marcy, I am not sure if it was in a comment or a post at FDL or here, or one of the other blogs you occasionally inhabit, but I actually mentioned on another blog this morning that I had heard more than one blogger suggest this civil case could hit a Republican-judge wall.

I'll keep looking for the reference, but I am quite certain you were one of those who warned us all that Wilson's lawsuit might be tough to get past the first layer, and not to get our hopes up so high we'd be disappointed.

Let me be candid; I really do not immediately trust most opinions I read on "the blogs," left or right, but when I do start to rely on someone, it is always because they are consistently CORRECT, especially looking back at their prognostications and opinions AFTER THE FACT.

You are one of the most perceptive and surely one of the most fully-evolved bloggers in the 'Sphere right now, so don't let these professional naysayers ever discourage you.

But look who's talking, you take it in stride much better than I do. I promise, no more troll baiting.

(fingers crossed behind my back)

Hey, so it's a lie,
if Bush can do it,
so can I!

(Not quite haiku..)

[bmaz]

Mary - And this is also for what it is worth, especially considering I won't have a chance to actually read the decision until tonight. for the most part, I agree with your thoughts and points, and to really discuss them I need to read the stinking decision. But as a practical matter, and in the past I did a lot of civil rights and 1983 litigation, without individual defendants that are clearly going to survive an immunity assertion, it is pretty common to get to the motion to dismiss decision and never have had meaningful discovery. Even if you attempt it, it is stalled through various devices and then argued that it is not necessary for what, governmental entities argue anyway (not me) is effectively a jurisdictional question. Don't get me wrong, I neither like nor accept all of this spiel, but that is how it plays out all to often. It should also be noted that the wilsons did not aggressively pursue discovery. I would have lodged a whole batch right with the complaint; but that is just me.

[Dismayed]

Trolls are kinda like pelicans, big mouths, they shit all over everything, but they show you where the fish are.

Hopefully sooner rather than later, but these trolls will shut the @$%^ up. End of next year their day is done. The 2009 election is going to be a bloodbath, and there ain't shit they can do about it.

[JEP]

"...Ed Rogers started yelling over Melanie Sloan that Valerie Wilson was never covert -- to which she was quite ineffectual in responding..."

the words "Ineffectual" and "Melanie Sloan" should never be in the same sentence.

Sorry, but she is not now and never has been an official spokeswoman for anyone but CREW, so if she didn't pick up the ball one of us might have grabbed, it doesn't make her "ineffectual."

Ed Rogers doesn't "walk all over" people without help frm the show's hosts. But if you think you can have an intelligent, meaningful debate with Ed Rogers, you'd better have a bullhorn and a couple big linebackers handy to shout him down and shut him up.

[litigatormom]

bmaz and Mary,

Yes, I agree with bmaz, the absence of discovery is very common in immunity cases. Indeed, there are cases that say that the whole purpose of immunity is not just to protect government officials from liability, but from the expense and distraction of pretrial proceedings such as discovery. Thus, many courts hold off on permitting discovery to go forward even when the plaintiff makes discovery demands -- only if the complaint survives a motion to dismiss do the plaintiffs get to take discovery.

[Semanticleo]

EW;

I know you're getting tired of all the contextual boners and myopia of the trolls (Jodi, Windy, Boris) but remember;
they don't get out much.

They have been breathing too much
carbon dioxide at JOM and need the oxygen provided here.

[emptywheel]

JEP

With another judge, there might have been more leeway. But I still think it had little chance. I'll say again--I think the chances would have been better of a non-gov was named. And I think the trial provided enough evidence for either Hohlt and/or Matalin to be included--both were demonstrably involved in the leak. But that didn't happen.

[JEP]

litigatormom;

just want you to know you are one of my all-time FAVORITE commentors, and your perspective has always been enlightening. But your expectations for Melanie Sloan's performance as a debator are wquite demanding.

But, quite sindcerely, and no offense to Melanie, I do believe if you had the opportunity she had, you'd have torn Rogers a new orifice to flubber from.

Melanie's great, and her work was instrumental in the last election. If she got bullied by Rogers, it doesn't make her weak, it just makes Rogers a loudmouth bully.

Can anyone argue with that last assessment?

[litigatormom]

JEP:

Melanie Sloan is the Wilsons' lawyer, right? She's on TV to talk about her clients' case, right? Then she needed to do a better job than she did this afternoon, and on other shows where I've seen her, in rebutting the talking points.

Yes, Ed Rogers is a bully, and yes, Barnacle wasn't exerting any control over him. He also let Barbara Comstock yammer on for way too long in an earlier segment about how Barack Obama wants to teach 5 year olds about masturbation (don't ask). But part of a lawyer's job, whether she's pro bono or privately hired, is to advance the clients' position. Advancing or protecting the organization's interests becomes secondary once you've taken on the ethical responsibilities of a advocate for a particular person(s).

Melanie Sloan may be a very capable person in other respects, but I wouldn't want her as my spokesperson on TV, even if her opponent was better behaved than Ed Rogers.

[JEP]

"Hohlt and/or Matalin to be included" you mean Matalin, as a political advisor, is not "gov?"

I see your point, if this suit had been against individuals associated with but not employed by the White House, then the judge's "you can't sue the government" precedent is nullified.

How about Novak? He's non-gov... And the proof of his outing is right there in print...

[litigatormom]

JEP:

Our last two comments crossed. Like I said, Ms. Sloan may be very capable in other respects. I don't mean to dump on her. And yes, Rogers is a bully -- one of those know-nothing assholes whose continued presence on TV talk shows is frankly inexplicable. I wouldn't want him as my spokesperson either, because I wouldn't want his ignorance and offensiveness reflecting back on me.

I guess it just makes me angry when the Wilsons' position isn't effectively put forward. Maybe it's not possible with a jerk like Rogers on, but even if I couldn't actually create a new orifice for him, I'd damned sure try.

[Boo Radley]

Mary, bmaz, emptywheel, litigator mom, and many others, thanks so much for the terrific legal analysis.

It's probably way too early to make any decisions, but it seems to me that Bates' ruling is an opportunity for us to push back hard on the House and Senate Judiciary Committees.

[litigatormom]

Alas, I think at the time Matalin was "gov." She was Special Counselor to the Vice President, I believe. I'm sure she had a policy portfolio, as well as her political role. Just like Turdblossom.

I hadn't thought before about why the Wilsons didn't sue Novak. I suppose that as far as the IIPA is concerned, Fitz probably couldn't show that he KNEW she fell within the strict provisions of the IIPA. As far as the constitutional claims go, Novak is a non-government actor and therefore cannot violate someone's constitutional rights. I don't know whether a non-government actor can be held liable for aiding and abetting or conspiring to violate someone's constitutional rights, however. Worth thinking about.

[Frank Probst]

I thought Melanie Sloan more than held her own, to be honest. Ed Rogers was doing what all of the trolls on the thread have been doing: He was trying to declare victory and go home. Melanie Sloan effectively pointed out that (a) this was a ruling on procedural grounds, and no one was in any way vindicated of any wrongdoing by it, and (b) the district judge does not have the final word here, and Sloan and her clients fully plan to appeal his decision. That's really all she needs to do.

Yes, there are a lot of right-wingers doing little end-zone jigs right now. And yes, we're now going to have to constantly listen to them say, "Judge Bates said Cheney, Libby, Rove and Armitage were totally innocent!" But all of that is par for the course for this scandal. Melanie Sloan went out and calmly explained what happened today. She also gave the counterpoint to a few wingnut zombie talking points. I thought she did a great job.

[JEP]

Well, how about Novak's newspaper? That might stir up the MSM pretty quick...

[JEP]

Can she sue the paper for publishing Novak's outing, without knowing for certain IF she was covert? I know there's a screwy loophole that says you can't be accused of outing an agent if you don't know they are an agent. But to assume that Novak's sources "did not know" just makes us all laugh.

Seriously, can she sue the paper that published the information? If for no other reason, but to break this case open again.

[lolo]

Jep,

If you are still here (HA) catch the Hardball repeat. Tweety is off today and Ed jumped on the she's not covert bs. I turned it off and came to find out what happened too. I was shocked that she didn't stand up for Val.

[Woodhall Hollow]

Folks, there is a brain-fuck at play here.

Notice how carefully the Wilson's speak when they are talking about Valerie's status. Most of who she was, and what she did at the CIA is still classified. Those who do not have security clearance are free to "speculate" to their heart's content as to her status, but the only people who can definitively describe her role, her actions, and her status are bound not to speak by their various oaths which govern their security clearance.

Except, it seems, like several high-level White House officials (including Rove, Libby, and Cheney) who, it seems, according to Bates' ruling, can say whatever the hell they want, due to their definition as political operatives.

Hopefully, in a future Dem admin, much of this will be declassified so that the American people can benefit from the truth.

[litigatormom]

I have absolutely no doubt that The Dick, Scooter and Turdblossom knew exactly what they were doing. But proving it to a jury beyond a reasonable doubt is a different thing. Fitz apparently did't think he could prove it beyond a reasonable doubt, and decided not to prosecute them without having such confidence. That doesn't mean he thought they were innocent -- and it certainly isn't a finding of innocence, as the wingnuts keep suggesting -- and on the whole, we are better off if prosecutors don't bring cases they aren't confident they can win.

The fact that Fitz didn't indict anyone for the "underlying crime" doesn't mean there wasn't one -- it probably means that Scooter's obstruction of justice was successful. But you can indict someone based on the fact what you THINK the truth is if you can't prove it.

[JEP]

and a happy (HA) to you, too, lolo... Is that a Chris Matthews "HA" like the one Olberman uses in the audio intro of his "goofy news clips" segment?

Actually, I'll confess, too, since we seem to be learning so much about everyone today, here's a sceret I have never shared on the blogs before; I am that househusband guy in his pajamas who sits around home all day with nothing more to do than pontificate online and scrap with the trolls.

Seriously. Not that I never work, I'm occasionally a campaign staffer, and once in a while I do some video work, Ihave a portable 4-camera rig that I cobbled together over the past few years.

But between gigs I'm that guy they all lament in the MSM who gets to sit around in his PJ's all day and pretend he's important because he blogs.

I'm not here at TPM ALL the time, but it is surely one of my favorites. It is listed on my own blog as one ofmy favorite places to lurk, along with FDL and TNH and many of the usual blog suspects.

And as for anyone who thinks we (liberal bloggers)are hiding behind our pen names, for those who don't already know, put your cursor on the initials of anyone who comments, and if it turns red, then there's a link there to their website.

No secrets here, I'm not pretending to be someone I'm not. I have nothing to hide, or to be ashamed of, (at least in this group of shameless liberal pagans.)

Just food for thought.
Over and out...

[litigatormom]

SPEAKING OF ED "FUCKFACE" ROGERS:

He's on the Hardball re-run, and in commenting on comments from the generals in Iraq that the Surge is making progress, Rogers said, "'Progress being made' is probably not the best talking point." Right, the war should be debated in terms of what the best talking points are, not what the best policy is. THEN he says, "I've been saying we're making progress for years, AT THE INSTRUCTIONS OF MY CONTACTS IN THE GOVERNMENT."

It's not often that someone admits in such clear, unequivocal terms, that he's just a shill.

[flyover_27]

Yes, yes, and yes. Nice work Empty Wheel!

[pdaly]

Let's turn this around. This is more proof that the WH was afraid Libby would blab on them.

Here's my thinking.
The Rightwingers alwsys said this civil case would be dismissed. But they were Rightwingers--who could believe them? However, since Emptywheel believes this case was weak and she too suspected this result then doesn't Bush's commutation of convict Libby's prison time provide even MORE evidence that BushCo feared Libby would turn States evidence on the occupants of the WH? (or is that National evidence?). Afterall since this civil suit was a nonstarter for the rightwingers, preserving Libby's right to plead the 5th was never an issue (yeah right) for them. As others have mentioned before, if 30 months was too harsh a sentence for the Whitehouse's convict to serve, why was zero time just right?

[bmaz]

Litigatormom - Excellent. We have a winner, and it is you. I had been kind of hoping that no one would dredge up the real pitfalls of this process as it relates to my thoughts on the complaint pleading; because, quite frankly, this is incredibly detailed and complex stuff and I haven't done any civil rights litigation in some time now. In a nutshell, you raise the germane issue of government versus non-government actors. For FTCA and Bivens concerns, without question, non-governmental (I call these "individual") defendants are not generally contemplated. There are, however, ways to get at individuals under 1983, 1985 and the common law for civil rights violations. In a case like this, you plead it as concerted action in conjunction/conspiracy with the governmental actors while simultaneously alleging that the conduct of the governmental actors is so wanton, willful and beyond the scope of duties and decency as to be beyond the cloak of immunity. You also link it all up, i.e. all the actors and their conspiracy, under pendant state/common law claims in the same complaint. There are a lot of pitfalls here, and you lose counts and defendants along the way; but I have never failed to get meaningful and necessary discovery completed before having to argue a governmental motion to dismiss on immunity grounds, but there may just be some dumb luck involved too. I will also note that I practice in the 9th Circuit which, as you may have heard, is a bit more liberal than most.

[Neil]

Here's an apropos link from the Urban Dictionary. You can't make this stuff up.

1. shit stain

a lingering asshole

That dude cannot take a hint, he won't go away and every time he opens his mouth he turns into an asshole. link

[Neil]

The merits of plaintiffs' claims pose important questions relating to the propriety of actions undertaken by our highest government officials.

By what mechanism can Waxman and/or Leahy gain access to the prosecutor's case files? Does it require impeachment? Does Bates' ruling sufficiently increase the merit in the case for pursuing impeachment?

[JohnJ]

I look at the troll stink as evidence this blog is on to something. We are now up to 3! This blog must really be scaring fourthbranch.

Now if we can catch them working on Government computers, on government time......

[Ishmael]

Hi everyone, a little late to the party today! FWIW, it seems to me that it is difficult to judge the adequacy of the Wilsons pleadings, without knowing some of the constraints that they could be under in respect of classified information, or other secrets that they may be both legally and ethically proscribed from revealing, or even alluding to. Melanie Sloan may have been under instructions that effectively required her to fight this case with one hand tied behind her back. I'm sure the Wilsons are both aware of the extreme glee with which Bushco would smash them for even an inadvertent release of information - or, maybe, as crazy as it sounds, they might leak some classified information themselves in such a way as to make it look that it came from Valerie in the course of discovery. Crazy, I know, but we live in interesting times.

[JohnJ]

Oh yeah, I got another Dem newsletter, asking for money. I wrote back and basically said:
"No impeachment; no money, in fact no jobs for you guys after next year. We overwhelmed the voting "fix" to put you guys in power to defend our constitution, and you're acting like wimps."

[rhfactor]

Marcy, I admire how you can remain emotionally-centered when you analyze and then write about this subject matter.

I'm beyond outraged. I'm sad. This is not the country I was born and raised in. I never imagined it could ever be in this state, the totality of all going on around us.

But your piece here is of course, elegant and cuts to the chase. Tell me, if you have the time to answer a few posts, you're very astute at reading the landscape and predicting the way a situation may go down, how the players will respond if A happens or B happens instead:

Given one of the most progressive leaders in America, Russ Feingold, has taken impeachment off the table, alleging we must focus on "the people's work" and pass legislation (while rome burns), and given Madame Decider's intransigence, and given a leading Presidential candidate, Barak Obama, doesn't even believe any impeachable offenses have occurred -- and we should reserve impeachment for "really serious matters" -- and that instead we need to let this play out in a "throw the bums out" election (which, hey everybody, I'm running for that role!) -- given all of this, do you honestly believe that there will be movement in any of these three sectors:

The House - tamped down due to nancy
The Senate - "hey, it's out of hands; we only try the case, and not enough votes"
The Presidential Candidates - We'll solve all your problems in 2009, right now, we can't help, we're campaigning

??

Anyone's comments appreciated.

[Ishmael]

Re trolls - I just spent the last while going through all todays threads, and when you read all the threads at once, the trolls here lately are as thick as flies on a sh*t stain. I also note that EW and others have been quick to challenge and slapdown - have the rules of engagement on trolls suddenly changed? - first the trolls ignore you, then they mock you... etc!

[Gunner]

Way to go EW as you know I am not a expert in this area but you do have so idiots commenting on this see ya later

[bmaz]

Ishmael - Interesting thought, but I am not buying it for a second. The only piece that might have been critical for purposes of the complaint that had classification issues was her CIA employment, and there was enough on the record from the Libby case and trial to serve as prima facie support for the necessary allegations in the complaint. Complaints are generally "notice pleading" anyway, so if you need to be a little vague, you just do it and make the other side move for a more definite statement. Irrespective of any constraints, you simply have to protect relevant causes of action and parties defendant from statute concerns; and you have to tactically provide for a way to proceed in the face of the immunity assertion you know is coming. A case like this is exceedingly difficult under the best of circumstances and with everything done just right; but to bring it at a late date and with both hands tied behind your back at the start is a fool's errand.

[Ishmael]

Bmaz - points taken. A shame, the Wilson's litigation never got to the point where the Freepers could complain about a "perjury trap".

[phred]

rhfactor -- Funny you mentioned "Rome burning", as I was driving this afternoon I was mulling the Roman analogy to the state we are in, and was thinking that somehow we have managed to skip Julius and gone straight to Nero...

I'm curious to see what EW thinks as well, as she seems to possess nearly psychic prognostication abilities. But FWIW, here's my take on things, our "leaders" have failed to lead and ultimately the country "of the people, by the people, and for the people" belongs to us. The Dems in Congress have made it clear that they will not initiate impeachment. That means we must demand it.

Like JohnJ above , I have started returning all Dem solicitations with the message "No Impeachment, No Money, No Vote".

However, the first hurdle we seem to have is convincing the rest of the lefty blogosphere that this is necessary. There is still too much waffling, hand wringing, and calculating based on what is best for the Democratic Party rather than the country. And in my estimation that is the path to ruin for the Democrats, who already have a reputation for not standing for anything.

If the Dems muster up the courage to impeach, I believe there will be a groundswell of support as the evidence is presented to the public which will spill over into the voting booths. Without impeachment, I see no significant legislative progress. Even once enough R's get skittish enough to change their votes, there is still the Presidential veto to contend with, so Bush can keep slow walking everything -- which as we know has been their very successful game plan with the USAs. This will put Dems in the awkward position of having to ask for support in 2008 with little to no success to show for the victory in 2006.

[Maeven]

Which leaves Congress.

If they coulda, they woulda, so they're not gonna.

Everyone has been passing the buck, looking to someone else to do it, or (not unlike Bush-Cheney) to run out the clock. We lack for serious adult leadership in this country.

If Democrats could only get four Republicans to abandon the filibuster Tuesday night, there is no way they're going to get Republicans to sign on to impeachment.

Even the last best hope, the courts, were a longshot.

If Plame-Wilson appeak, it will take months, if not years, for it to make its way through the courts. Bush and Cheney will be long gone from office should it ever make it to the U.S. Supreme Court. And if it does make it through to the U.S.S.C., can there be any doubt how a Roberts Court would decide?

The same ending is true for all of the Congressional committee hearings: Congress subpoenas testimony and documents, Bush-Cheney stonewall. The only recourse then is the courts, which are either unlikely to get involved (declaring it a political issue, to be worked out between the executive and legislative branches), or overrule Bush's claims of executive privilege, but again, it would take months/years, beyond Bush-Cheney's term in office. Once Bush-Cheney are out of office, a court could dismiss the case(s) on grounds that it's "moot," because Bush-Cheney are no longer in office.

The fix is in. The Bush-Cheney cabal is resting safely knowing that they have covered all of their tracks, and that their backs are covered by their appointed watchdogs.

The Democratically-controlled 110th Congress, just as the Republican-controlled Congresses preceding it, have failed the American people. All roads lead to the same place: The Judiciary --> Legislative --> Judiciary --> Legislative, etc., bouncing back and forth, with neither of these branches willing to save the democracy for the country and the world.

For whatever reason (and obviously there is some other reason than the stock answers we've been given as to why Democrats haven't begun impeachment proceedings) impeachment is a non-starter.

Whereas Nixon went relatively easily, there is nothing remotely approaching easy when it comes to Bush-Cheney; they play for keeps and probably wouldn't vacate even after the Senate reached a verdict to remove them from office. Just as they're resisting all efforts to leave Iraq, Bush-Cheney seem to have gone to great lengths to make sure impeachment won't happen. If I had to guess (and that's all I can do, guess) at what their public moves indicate, some hints loom menacingly in a document that's gotten no media or Congressional reaction: The "National Continuity Policy."

Released by the White House on May 9, 2007, the "National Continuity Policy" announced National Security Presidential Directive 51 (NSPD 51) and the Homeland Security Presidential Directive-20 (HSPD-20). In it, Bush establishes a policy for the continuity of "our form of government" in the event of "a catastrophic emergency" (defined as “any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government function”). Whereas this directive identifies "our form of government" includes "the functioning of three separate branches of government," Bush declares, “The President shall lead the activities of the Federal Government for ensuring constitutional government.”

The legalization of the Unitary Executive, aka 'King George, and his regent, Dick.'

With NSPD 51 and HSPD-20 (and Michael Chertoff's announcement last week of his 'gut feeling' that a terrorist attack on the U.S. is imminent), I think it's fair to assume a repeat of 9/11, should momentum build for (or any investigations, legal actions gain ground that might lead toward) impeachment.

It's either that, or the Democrats in Congress aren't sly enough, smart enough to unravel the knots of the Bush-Cheney conspiracy before the public so that impeachment and removal from office take place forthwith. Or are lazy and lack the fortitude, and thus, lack the courage and loyalty to fight for the Constitution.

Whatever the reason, unless Congress acts, and soon, Bush and Cheney will have expanded their "war on terror" (Iran, Pakistan, and points far and wide) to where it will be impossible to put the Djini back in the bottle.

[radiofreewill]

Info on Bates

http://www.truthout.org/docs_2006/071907R.shtml

[phred]

Maeven -- "If Democrats could only get four Republicans to abandon the filibuster Tuesday night, there is no way they're going to get Republicans to sign on to impeachment."

This is exactly where I disagree. The filibuster was in the Senate. To vote for articles of impeachment only requires a simple majority in the House (the lawyers here are welcome to correct me on this point, if I am mistaken). The Dems have the majority in the House, if we can light a fire under them to defend the Constitution as they all swore to do.

Once, the articles are approved, the trial moves to the Senate. You are correct we need 61 votes there, but the process of the trial will put all the evidence against Bush and Cheney squarely in front of the public. The public hates powerful people who think they can play by a different set of rules than the rest of us little people. Independent and conservative (of a particular mindset, not the 28%ers) will lean on their Rethug Senators hard to convict. Americans by and large believe in the rule of law being applied to fairly to everyone. It may not in fact be true, but we all know it should be true. I don't think the Rethugs will be able to withstand the pressure (esp. those up for re-election in 2008).

To be fair, I don't think the R's will be able to hold up too long this fall in dragging their feet on changing course in Iraq. I think they are about ready to break ranks to save their own political hides as it is. But this is where my point about the Presidential veto earlier comes in. As long as Bush and Cheney are in office they will be able to continue to stonewall and impede progress on any substantive legislation passed by Congress. This is why I have greater faith in the success of turning Rethug votes on impeachment, than on legislation.

[P J Evans]

Maeven

I'm assuming middle-of-the-night phone calls suggesting harm will come to family or close friends if Congress doesn't keep the opposition down. Or blackmail, although threats seem more likely with this crowd. (If I were going to a large protest demonstration, I think I'd want at least a flak jacket. Full body armor sounds better. I don't trust them not to order live fire on a crowd.)

[JEP]

oops... I flipflopped TNH and TPM earlier, these acronyms are getting downright transposable.

Sorry I missed Rogers again, L-mom, sounds like he's already doing the two-step around that favorite old "I'm only taking orders" argument.

Wonder how many more R's are already formulating their stories, and getting together with select "committees" to make sure they are all on the same page? This suggests even the top operatives are already in survival mode.

[Sue]

What exactly are the articles of impeachment going to include? You have to have actual crimes, not wishful thinking or policy differences.

[bmaz]

Sue - That depends on who is being impeached, which you did not specify. I assume you are referring to Bush, so we could start off with the illegal wiretapping, which indeed constitutes a crime and has been all but directly admitted by the Administration, and then include some counts on obstruction of justice. There are any number of grounds that could be made, those two are simply the easiest off the top of my head. And, quite contrary to your assertion, the words "high crimes and misdemeanors" in the impeachment provisions most definitely DO NOT require "actual crimes".

[Ballerina X]

L-mom @18:38
Great minds think alike...
hehe
you rec'd my comment on d-kos on july 5th

Had the very same feeling (2+ / 0-)

Recommended by:
litigatormom, paddykraska

she is representing Wilson in the civil case,I am proud of what CREW is doing for America, but she is not the best spokesperson for her own cause, although I sure hope she is an excellent lawyer For Valerie's sake.
she could hardly hold her own against tweety, the other guy was just creepy. But she kept saying "no" with her head as she attempted to get her valid points across.
It scared me because She appeared unprepared on issues of her own case.

by ballerina X on Thu Jul 05, 2007 at 04:44:05 PM MDT
thanks EW, L-mom, bmaz,...et al for keeping us informed and educated

[phred]

Sue -- The founders intended impeachment to be a broad authority that could be applied to remove an executive even if a crime had not been committed. IANAL, but I've run this by some lawyers in these parts and at least some have agreed on this point. Perhaps an equivalent notion would be "conduct unbecoming an officer", but again IANAL so that may be a poor analogy. The way I think of it mostly, is in terms of someone who is charming and persuasive enough to get elected, but once in office turns out to be a drunk who parties all night, sleeps all day, and is simply not carrying out their duties. Impeachment would be the remedy for such an untenable situation, even though being a drunk isn't a crime.

That said, while I personally think that incompetence ought to be included in the articles of impeachment, along the lines of appointing incompetent people into positions that directly led to loss of life, property, and gross misuse of the treasury (e.g., Michael Brown at FEMA, Paul Bremer at IPA), there are several crimes that could be included. I have it on good authority that one of my favorite lawyers around here is working on articles of impeachment and is planning a post on the subject, so I'll leave it at that for now.

[J. Thomason]

Litigatormom & BMAZ--Several years ago I brought a 1983 action against a private employer in the District of New Mexico where a Colorado County had attempted to garnish a New Mexico resident under child support procedures and where the attempt to register the Colorado judgment in New Mexico had previously failed. In my mind a garnishment clearly met the 1983 "color of law" requirement. Other processes of execution have been characterized by the Supreme Court as processes that substantiate the "color of law" element. A liberal district judge dismissed in response to the argument that 1983 claims applied only to governmental actors. The ruling appertained to the issue of whether a garnishment respondent acted under the "color of law." The pendant conversion claim was allowed against the employer and moved ahead.

Just as an aside, and somewhat OT, I understand that Alito authored several opinions previously allowing 1983 to move past motions to dismiss. My understanding is that governmental immunity is not absolute in these claims but subject to a "good faith" test allowing liability where "good faith" fails.

In this light the assertion of an absolute immunity on behalf of Cheney et al. does seem premature. I do not no whether the allegation was made that the actions alleged in this civil action were characterized to suggest actual malice. Or maybe I just can't get the requisite cognitive harmony in place to understand that any governmental rebuttal is permitted to claims against it no matter whether founded in fact or made with a specific intention to harm.

[bmaz]

J. Thomason - Exactly. Your scenario is an illustration of the necessity of having individual defendants and concurrent pendant claims. I also have some issue with the way "absolute immunity" has been discussed in terms of Cheney, and the remaining defendants not named Bush. Specifically, I think there is a pretty decent argument that absolute immunity, as opposed to limited immunity, is only available to the "sovereign" himself, not others below him in the executive. Cheney and the others should not be being discussed in terms of absolute immunity. This is somewhat of a hyper-technical point because limited immunity is plenty sufficient to shield Cheney and the others if it is granted. Go over to the CREW website and take a look at the Wilson complaint. It is pretty short, so it will not take long. I think you will pretty quickly see why, although I am disappointed and hoped for different, and although I would otherwise be happy to bash him for the wingnut he is, I have a hard time hammering Bates for his decision. I am sure there will be an appeal, but with the DC Circuit looming as the reviewing banc, I think this case is done.

[Mary]

Well, there's no good way to do justice to any of it without a lot more time and effort than I have tonight (and I never really read the underlying complaint/motions -just the Bates opinion).

But here some additional take. First, as you know (but this may not be clear to laymen) there is a difference in the nature of claims v the government vs claims against the individual actors and nature of the immunities that may or may not attach and this analysis varies (or is not relevant) depending on the nature of the claim being pursued. So FTCA, prima facie torts, Bivens actions, etc. give rise to differing analysis. For example, if the gov does waive immunity on its own behalf for direct suit - it is not appropos to be able to maintain a suit directly against Gov as an entity under its waiver of immunity and ALSO recover on claims against the individual actors that they were acting outside the scope of their duties and are not covered by immunity at all for the actions they undertook or claims against the individual actors that they were acting within the scope of what they were told/reasonably believed their duties to be but they nonetheless violated the constitutional rights of a citizen, etc.

And there are - or will be - two settings for the illegality/scope arguments - the first dealing with substituting GOV and FTCA for the individuals (this case), the second will be the FTCA analysis itself if and as the Wilson's get there

Different kinds of claims - different theories of recovery - often all tied up in in a tightly wound nexus of events. The protection of gov for the actions of tortfeasors who work for it being somewhat separate from the protection of the tortfeasors themselves under derivative qualified (or absolute) immunity and the scope of the activities covered by that immunity. (BTW - I would kind of like to see the certification that was filed by the AG that the individual defendants were acting within the scope of their office or employement --- it kind of seems to me that perhaps if Fitzgerald was acting AG for the investigation into the leak, there's a claim that he is acting AG for the determination of whether the leakers were acting in the scope of their employment as well - I wonder who did file it and what it said).

Second, and in particular with respect to claims against the government v. the actors, I agree that it is absolutely the case that matters involving assertions of immunity often do proceed with no discovery or with blocked discovery bc one of the functions of immunity, after all, is to prevent gov from having to get bogged down in reams of meaningless claims. Here, though, keep in minds Bates isn't saying whether a suit should go forward or not -but rather is finding that GOV is the property party instead of the named defendants.

To do this, Bates makes a factual determination that what was involved was the act of "rebutting public criticism" by "speaking with members of the press" and that this would be within the scope of defendants' duties. He does not allow any evidentiary matters to proceed for the plaintiffs to flesh out their evidence that what was involved, instead, was deliberate employment retaliation against family members of an administration critic. The "scope of authority" and illegality lines can be blurry and litigatormom is correct that "mere" illegality doesn't always result in a finding of ultra vires acts. However, while "mere" illegality isn't enough to prevent something from being within the scope of authority, were the illegality involves actions that are not related to an authorized purpose (retaliation & punishment v. responding publically to criticism) and where the illegal actions taken are even in direct violation of the requirements of employment (to protect classified information, for example), then I don't think Bates is well served in just airly making a factual determination that all that was involved was rebutting criticism by talking to the press.

Bates is comfortable finding as a matter of law and with no supporting evidence that engaging in acts that are directly contrary to the terms of employment (i.e., illicitly and covertly disclosing and planting classified information with the press without attribution - something that not only laws, but confidentiality agreements specific to OVP and WH and State Dep employment and security clearances all indicate are directly CONTRARY to the terms of employement) is somehow "within" the scope of employment so long as there was an "intent" by the employees here to "serve their master" (that being - as even Bates seems to admit - the US and not the President).

So he resolves intent with no evidentiary hearings and resolves scope of employment as including things that are specificially prohibited by the employment, also with no evidentiary hearings as to how precluded matters became included matters. And all of this with the President clearly saying publically at the time of the outing that whoever did it was acting outside of the President's perception of their employment authorization (the President indicated it was an offense that would result in termination- that doesn't sound like a good grounds for claiming it was "within scope" IMO).

IMO, Bates could have gotten around Wilson's claims other ways (with other pros/cons), but this portion of what he did I do not think is well supported.

BTW - I agree with litigatormom that the Bivens issue of a "clearly established constitutional right" was going to be a tough hurdle (as well as the issues relating to contract/employment rights in general for covert activities employment).

I don't agree with Bates' special factors analysis vis a vis the privacy act (he caves on IIPA) bc I don't know that he ever really supports his summary statement that "...the absence in these statutory schemes of a civil damages action against the offending officials was not inadvertent..." On the privacy act front, I think what happened with the OVP et al trawling through information to find ways to covertly plant it in the press without attribution robs the tortfeasors of any claim to protection of the privacy act - because they did not invoke public attribution of their disclosures in their official capacity.

If someone could claim that the Privacy Act was "the" comprehensive scheme meant to be applied to their covert private dissemination of information, Larry Franklin might need to revisit the outcome in his case. I think the privacy act is pretty clearly meant to apply to publically attributable agency actions - not private covert retaliations without attribution.

I do believe that the Wilson's have all kinds of serious difficulties with their case - but I can concurrently believe that and still think Bates did a pretty bad job with parts of his opinion. Someone needs to reintroduce him to "frolic and detour" and a bit more and deeper exposure to agency law would be in order too IMO.

But even though I yammered on more than I meant to, it is still only worth what you pay for it.

[Dismayed]

As if things were'nt scary enough --

http://rawstory.com/news/2007/Oldline_Republican_warns_somethings_in_works_0719.html

There's a part of me that doesn't want to believe that even Dick Cheney and his cabal would actually take over the country. That part of me gets quieter and quieter all the time.

Not that an actual totalitarian state would be run so different than things are right now. With Congress either already purchased or just ball less I'm not sure there is any operative difference, but Bush and his signing statements and executive orders is really really starting to feel like a monarchy.

[Dismayed]

Sorry, Here's the complete address. It's over at raw story. I really need to learn how to link.

http://rawstory.com/news/2007/Oldline_Republican_warns_somethings_in_works_0719.html

[Dismayed]

Okay, apparently I can't cut and paste so well either. Raw Story, Headline - "Oldline Republican Warns Somethings Up"

[rhfactor]

phred - moving from online news-processong & analysis --> into cross-site coordinated action has been my big theme online for years. As a simple point of reference, Salon did a piece in 2003 on how does Howard Dean transition to offline, and because I was very involved in media, I was interviewed then quoted.

After Dean's campaign failed and he later announced formation of DFA 2.0, I remained involved -- UNTIL -- a confab in April 05 with head of DFA and DNC's new exec Director -- who'd just formerly been exec dircetor of Dean's new DFA 2.0. Suffice to say that series of meetings lead me to conclude they were not going to become agents for cross-site collaboration. When I asked why DFA doesn't collaborate with MoveOn -- a logical 1-2 punch, I was told MoveOn refuses to do anythung with DFA, and we refuse to do anything with MoveOn.

Here is my point: for the past two years I have been developing some version of what you're talking: a cross-site project initiation & project management tool that enables people on any site to cross reference ideas and launch them into discrete projects. Rather than describe IT, I want to echo your note: Congress has abandoned duty to uphold the Constitution, the Exec Branch is surely not going to volunteer themselves to be brought to justice, the Justice Department has been madeover into an arm of the GOP, and the alleged 4th Estate -- the Conglomerate Media Cartel as I call it -- is a joke and n longer operative.

But yes, there is one other branch: The People -- who have been given all unenumerated rights -- and if my civics from high school is still valid (seems to NOT be in this era), that's actually the BULK of power reserved for the People.

So, as Marcy notes much more elegantly atop, through process of elimination, the ball should be in Congress's hands. But it appears they will pass. Thus in order to coordinate cross-site action around specific projects with specific goals -- and I don't mean symbolic protesting or faxing & emailing Senators -- I mean something on a whole other order, what's needed is the ralley-point. There are many such people populating blogs. Naturally there is marcy here - and i've argued she needs a much bigger platform -- a TV media platform given her unique "crunching" ability. There's Jane at FDL. There's John Amato at Crooks and Liars/ John Aravosis at AmericaBlog, Kos (but highly unlikely), Josh Marshall (highly unlikely due to journalistic firewall, there's Digby (potentially a GREAT rally-point byt one gets the feeling that's not her thing). i'm stopping here with a vastly incomplete list. But it would not be hard LOGISTICALLY to pull together a cross-site gathering of the minds to "whiteboard" a series of tangible action proposals, and send them out to the various communities for a pass at critiquing, then reconvening a strategy group, choosing an action or actions -- and set it as a published goal -- not unlike the fundraising challenges that populate candidate blogs.

There is a ready-made venue for holding this meeting of the minds -- in weeks in Chicago at YearlyKos.

Pulling that off require the event coordinator scheduling a room -- and since the are likely long since booked with the programs designed a while back, that would mean after hours. To me that is doable. However, it won't be me that takes this on. i have my hands full with the citizen media project.

So theres' my schematic for tangible action. Anyone interested? grab it and run with it.

rhfactor+