Covering the Front and Back Pages of the Newspaper
July 13, 2006
LAW: The Plame Complaint
So, Joe Wilson and Valerie Plame have filed suit against Dick Cheney, Karl Rove, and Scooter Libby, among others, over Bob Novak's disclosure that Plame worked for the CIA. I've read the complaint, which is posted over at NRO; it alleges various theories of denial of civil rights, essentially on a theory of retaliation against Plame, as a government employee, for Wilson's exercise of his free speech rights. Thoughts:
1. There's a good deal of predictable partisan posturing here, and big chunks copied from the Libby indictment and press accounts, but Plame and Wilson cagily allege as few additional facts as they can. Basically, a blogger who had never spoken to Plame or Wilson could have written most of this. In particular, there's no detail on Plame's career at the CIA other than that she was "an operations officer in the Directorate of Operations" and "her employment status was classified," neither of which necessarily implies any covert activities.
2. Fitzgerald's press conference is quoted as providing a basis for a civil lawsuit against people who were not even indicted, giving a good example of why prosecutors should not give press conferences about topics outside the four corners of their charges.
3. There's a cause of action for violation of a "Fifth Amendment right to privacy," and while I'm not familiar with the caselaw on constitutional torts, that sounds like a stretch. The complaint does not reference the Vanity Fair photo shoot or what happened to the profits from the book deal Joe Wilson got out of all this.
4. The complaint provides nothing to connect Cheney or Libby to the actual press disclosure of Plame's identity.
5. It appears from the "JDB" docket number on the NRO version of the Plame complaint that the case was initially assigned to Judge John D. Bates, a George W. Bush appointee. However, it may be that Judge Bates would recuse himself from a lawsuit naming Cheney and Rove in their personal capacities, and it is possible that the case could be sent to Judge Walton, who is handling the Libby trial.
6. The initial issue in the case, before the legal sufficiency of the allegations and before any discovery is taken, is whether some or all defendants (or other interested parties) will ask for a stay or dismissal of the litigation. There are three bases for doing so. One, the liberal quotation from the indictment underscores the fact that this suit overlaps substantially with the subject of a pending criminal trial. Fitzgerald may well intervene to ask for a stay of all proceedings - he won't want his trial witnesses deposed in a civil suit. Second, Dick Cheney in particular has duties as the Vice President, including dealing with an unstable and dangerous world potentially lurching into another war on top of the two-front war we're already fighting in Iraq and Afghanistan. Under Clinton v Jones, there's no absolute bar to such a suit but the district court can balance the intrusion of the litigation, among other factors - here, with the case focusing on Administration foreign policy, the level of intrusion could be significant. And third, there's the state secrets privilege, described extensively in this opinion (later upheld by the DC Circuit) dismissing claims by Sibel Edmonds, who charged retaliation by the FBI relating to her work as a translator of national security documents. Basically, if a civil suit would involve discovery of national security information (such as, for example, details of any covert activities by Plame, to say nothing of discovery directed at Cheney), the court can dismiss it in the greater national interest. The Bush Administration has been loath to press the envelope on the kinds of legal privileges asserted by the Clintons to deflect personal scandals (as opposed to expanding the rights of the Executive Branch more broadly) but the desire to get this lawsuit out of the way may compel them to seek a stay or dismissal on this basis.