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June 14, 2006

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Dwilkers

A Wilson civil suit? In the dreams of the fever swamps, at least the ones I visited yesterday.

The last thing Wilson is going to allow is some hot-shot attorney grilling him without limit.

And they don't need the money anyway, and make no mistake this is and has been about money and status for Wilson (Me Me Me, the narcissist's credo). They have 2 streams of book revenue, his and her's government retirements, speaking tours, etc.

Not. Gonna. Happen.

ordi

I posted this on the thread below but thought this thread was more appropriate.

Rove's lawyer speaks out about TruthOut's actions. Let's just say he was not pleased. Plus other interesting tidbits.

ove Case Lawyer Blackberries Karl: ‘Fitzgerald Called’

ttp://www.observer.com/20060619/20060619_Anna_Schneider-
Mayerson_pageone_newsstory2.asp

Can someone tell me how to link this correctly? Thanks


Patton

The only credible standing would be for Valerie to sue Joe.

ordi

Bob Novak is on Fox and Friends. He says he is dying to tell his side. He hopes the investigation ends soon so he can say a few things about his part in it. He wants to put to rest the nonsensical stuff that has been said about him.

Us too Bob, us too!

Fellow Dancer Amends Account in Duke Rape Case

Legal Affairs
Fellow Dancer Amends Account in Duke Rape Case
by Juan Williams

Audio for this story will be available at approx. 10:00 a.m. ET

Morning Edition, June 14, 2006 · There were two performers at a Duke University lacrosse team party that ended in rape charges. Kim Roberts says she saw no rape and could not at first believe that a rape could have occurred. Now, she feels differently.

ordi

Wow the Wash times takes MSNBC's Wilson cheerleaders to task! OUCH!

Sorry, Ambassador Wilson

http://www.washtimes.com/op-ed/20060613-095036-4345r.htm

dorf

The civil suit eh? Bring it on, it's called the counter-claim and it can bite ya!

Jane

There isn't going to be a civil suit...but here is the criteria - assuming Wilson/Plame would bring a tort action - the plaintiff's burden is to prove:

1. A duty owed
2. A breach of that duty
3. A breach that is a proximate cause of damages
4. damages.

My head spins when I think of what would be involved in just step one. The CIA refuses to release her status. The defense moves for summary judgment on the notion that there was no duty, the plaintiff employs scary Larry as an "expert", who says she was a covert agent; the defense calls Victoria Toensig or someone like that who says she doesn't qualify under the statute, etc etc etc. My gawd, work on that case hourly and you would never ever have to work again.

Doesn't that suggest his first defense against any civil action will be to assert that he is a public official engaged in the performance of his duties?

Well yeah except there are different standards. The standard against Rove in a criminal case is "proof beyond a reasonable doubt". The standard in a civil case is "more probably than not". The civil standard is loser (remember OJ whose "not guilty finding was not a bar to civil damages).

If (2) is correct, presumably the Wilson's can sue the US Government, i.e., the US taxpayer.

I'm tired this morning after all yesterday's excitement, but I don't really see for what. Failure to properly supervise karl Rove?

Just how was Ms. Plame's career damaged by the leak (if that is the basis for the suit)?

I can't think of any way. I tell you tho, they sue Karl Rove he should implead John Kerry as a third party defendant - and Joe Wilson if he isn't party to the Plaintiff's suit. And then things would get really fun.
And besides, if you calculate the damages in money, I'm pretty sure the Wilson's have been enriched by this entire thing.

Wilson's lawyer is puffing to save face. There is not going to be a civil suit. (I don't know what the statute of limitations is in DC but he's probably pushing up against it.) A year or so in the future someone will announce that they didn't go forward it "for the good of the country".

I wouldn't lose one night's sleep over this threat.

Jane

The civil suit eh? Bring it on, it's called the counter-claim and it can bite ya!

The thought of that gets me all a-tingle. How much fun would that be?

TMF

Im an attorney and I simply dont see a cause of action.

Whats the theory of liability? Defamation? All they did was tell the truth- i.e., that Plame is married to Wilson, which is an absolute defense.

Infliction of Emotional Distress? Id say anyone who knowingly puts themselves and their position in the public spotlight by:

A. Using their influence to get their husband a high profile intel gathering assignment and then

B. Approving his dissemination of the info gathered as a result in the FING NY TIMES could have "reasonably forseen" that their involvement would be exposed.

Hence, there are some pretty huge assumption of the risk/contributory negligence issues that the Plamewilsons probably dont want to come out in the wash.

Im not seein' it. Sounds like a bluff.

sbw

Ordi: Can someone tell me how to link this correctly?

Try: Rove case lawyers...

Dwilkers

Ordi we had a thread recently where some folks gave some instructions on linking, I can't remember which one though. Maybe someone else does and will link it up.

Here lemme give it a shot.

(a HREF="URL")NAME(/a)

Replace every parenthesis with the correspondingly handed "<" or ">". In place of URL put the web address you are linking and in place of NAME put what you want to call the link.

So:

(a HREF="http://justoneminute.typepad.com/main/2006/06/a_wilson_civil_.html#comment-18504309")ORDI(/a)

produces

ORDI

when the 5 parens are replaced with the properly handed ">".

One thing I will recommend is keeping sample links in a file in notepad so you can just pop 'em open when you need them.

TMF

Im not a trial lawyer, but even I can come up with some tasty cross-examination possibilities for Ms. Plame.

There is NO WAY this suit is being filed.

Specter

Would they even make it through depositions before they folded the tent?

ordi

Thanks! I was partly right. I was using the > rather than the ).

I do have a file with sample links but had not come across the variant before.

THANKS for your help!

Specter

LOL ordi - when i first started blogging I was told to open the page source and find the right code....I'd'a given it to you if Dwilkers hadn't beat me to it.

ed

Hmmmm.

I've maintained, amongst others, that it was Joe Wilson that probably acted as a go-between for the CIA cabal and journalists. This would give both groups plausible deniability. The Valerie Wilson/Plame could claim it was accidental pillow talk and that she never directly spoke to any journalists. The journalists could claim that none of their sources *worked* at the CIA or for any intellience agency.

Jane

Would they even make it through depositions before they folded the tent?

They would never get to depositions that I can tell. But I may be missing the proposed cause of action.

ordi

Specter,

When I first got going I had to ask my 21 year old! UGH! I felt like a dummy. At least he was gracious.

dorf

Jane: right on. The thing about civil is that your world becomes open. Open for attack, open for peering, open for discovery. Joe better get another book contract soon to fund it, although at this point who's buying?

dorf

Here is the cause of action: Damages for being defeated by a successful balls to the wall, unafraid to go around the main stream media, republican dude and being completely EXPOSED.

Sue

You have to mitigate your damages. How do the Wilsons get around the obvious problems they created for themselves?

Jane

Wilson's lawyer was spinning to save face.

It was a bad day in Plame-land yesterday.

Wonderland

Just a few notes:

The cause of action couldn't possibly be anything related to defamation, because it's pretty clear that Rove didn't say anything "false" about Ms. Plame. The only possible actions sounding in tort would be an invasion of privacy claim and/or a tortious interference with contractual relations claim. I'm not sure where D.C. law stands on these issues (not every jurisdiction allows the above causes of action).

You could argue that Rove's disclosure of Plame's employment with the CIA amounted to "unreasonable publicity given to the other's private life," which is a tort under the Restatement.

You could possibly also argue that Rove's intentional or negligent disclosure of Plame's classified employment with the CIA made it impossible for her to continue her employment there. If I'm not mistaken, even Ms. Plame's at-will employment with the CIA would constitute a "contract." To establish a claim, the Wilsons would have to show that Rove knew that she worked there, that he knew or should have known that his statements to the press would result in her not being able to work there, and that but for the discloure, Ms. Plame would have continued working there.

It's also worth noting that the rules governing the handling of classified information, which Rove acknowledged and signed upon gaining his security clearance, almost certainly prohibited his behavior, even if all he did was confirm Plame's employment. If the Wilsons could show that Rove violated those rules, it would be akin (if not identical) to negligence per se and they'd have an easier time proving a critical element: that Rove acted unreasonably.

I agree all this is unlikely, but it's fun to speculate.

Sue

Wouldn't they also have to sue Libby and UGO?

Anonymous Liberal

Re: the potential civil suit.

While I do think Plame has a prima facie negligence claim against Rove, it would encounter a whole host of problems.

The claim would be that Rove had a duty not to reveal classified information. He negligently revealed classified information which cost Plame her job.

Here are the problems, though:

1) Because Rove is a government official acting, at least arguably, in an official capacity, there are a host of sovereign immunity/Tort Claims Act issues to be grappled with.

2) Causation: Rove was merely a confirmatory source for Novak, not his primary source. Rove would certainly want to implead whoever was the primary source and argue that he should be liable for any damages.

3) Damages: Even if you allege a valid theory of liability, you have to prove damages. Yes, Plame lost her job, but there is evidence she was transitioning out of that job anyway. And Rove's attorneys will point to her and her husband's book deals as evidence that the complained of injury caused no net damages.

4) State secrets: This is actually the sort of case the "state secrets" doctrine was intended to apply to. If Plame would need to rely on classified information to prove her case, the government would rightfully intervene on state secrets grounds.

Long story short, I don't expect they'll be a civil suit.

jerry

I always think of "quashed" as a mostly illegitimate act of suppression by a powerful group (sketchy company or government)... well, this might apply then, unfortunately.

verner

Wonderland.

We also must take into account the five witnesses that Libby has who Joe told Val worked at the CIA.

Then there's Valerie's forced leave of absence. Are we sure that it was because she was outed? As has been stated here today, she was moving from NOC (if she hadn't already) over to State. Why would having her name made public harm her career? There are lots of CIA employees who are public.

I think her career was ended not by the outing, but by her role in sending Joe in the first place, and her conduct afterwards. You can't blame Rove for that. Indeed, it looks like a lot of CIA employees either got canned or demoted right about that time (for example, Fulton Armstrong is no longer on the NIC.) She can not prove that Rove, or anyone else, caused her harm unless all of her own info is released in a trial. You think she wants that to happen?

If they go forward in a civil suit, they won't have Judge Walton controlling the evidence stream as they do in the Libby trial. They have already thrown everything they've got against Rove, but in a Civil Suit, Rove would get to fight back. And you've got to admit--Bush's brain is a genius at that sort of street fighting.

Al

I think the Wilsons have always thought of the theory as intentional infliction of emotional distress - after all, it is their theory that Rove et al outed Valerie as a punishment.

cathyf

On the other hand, it seems to me that Mr. Rove has excellent grounds for a defamation suit against Mr. Wilson, Mr. Johnson, and the other VIPS pals. He'd lose, of course, because it's basically impossible for a public figure to win such a suit. But on the other hand all of the defendents would have to pay big legal bills getting to that point. And probably lots of people would get deposed under oath. And journalists go to jail for refusing to devulge that Wilson, Johnson, et al were their sources. If Rove has really good lawyers they can probably get Lying Joe and Scary Larry to fall into a perjury trap, and then we can throw a blog sh**storm demanding their prosecution.

Yeah, given that Farmer Joe has worked so hard sowing and cultivating the wind, it would be very satisfying to watch him reap the whirlwind.

But, alas alack for my entertainment purposes, Rove is a grownup with far better things to do with his time and energy than to use it seeing that the Wilsons and the VIPS get what they have coming to them...

cathy :-)

MayBee

Wouldn't they also have to sue Libby and UGO?

It seems to me any damage done to them was done via Novak's article, therefore via Novak's source. Rove is arguably a source, but not the main source.

UGO was the main source. Perhaps she could sue Hadley and the CIA, for not protecting her enough.
Overall, Wilson would get dragged through the mud too much for this.

MayBee

aak miss you, larwyn

MayBee

Other Tom

I tend to agree with those who feel that Valerie, but not Joe, could probably state a tort claim of one kind or another, depending on D.C. law (or Virginia or Maryland, depending on where she lives). Regardless of where she lives she could probably bring an action in Maryland, if its law is friendly, since that's where she worked. I just can't remember enough about government officials' immunities to know whether she could get past those barriers. She couldn't show a great deal of damage, but her lost wages are enough to keep her in court, and she could seek punitive damages as well.

But all this is simply enjoyable theorizing. As a practical matter, if she brings an action and can get past the immunity issue on a summary judgment motion, she is going to expose herself and her husband to the joys of civil discovery. I don't think Joe wants to get into that ordeal at all--he's got a great deal of baggage trailing him around, and as much as he loves seeing his name in print, I think he knows that he'll simply get destroyed in his deposition.

MayBee

I have always wondered how Joe "knew" Rove was part of it. He obviously had a lot wrong, but he went right for the frogmarch. Pretty risky, considering he should have had no idea.


TM-civilmas. I suspect you wrote the whole post for that one word.

Sue

Anon,

What about Plame's own obligation to protect her identity? ie, keeping Joe on a short leash..

Neo

As for Joe and Val .. their mouths are their biggest enemy. They should stuff a cork in.

Sue

This is fun, but this is also the biggest timewaster in a long time. They have as much intention of bringing a civil case against Rove as they did against General Valleley.

topsecretk9

She couldn't show a great deal of damage, but her lost wages are enough to keep her in court, and she could seek punitive damages as well.

This is what I am unclear about...what lost wages? She was not fired and elected to retire...in full.

Also, this could be another can-o-worms that TM raises...if she was being moved to DOS liaison that would come out in a civil case and that would only reenforce there was NO OUTING.

Bruce Hayden

I would suggest that the problem with intentional infliction of emotional distress, etc., is with the "intentional" element. Maybe negligent infliction, but there appears to be quite a bit of evidence that this whole "outing" was incidental.

Negligence requires duty, breach, proximate cause, and damages. The Wilsons are likely (IMHO) to lose on duty, proximate cause, and damages. Duty is likely to be met with a sovereign immunity defense, esp. with the evidence that at least the VP was involved. And damages? Obviously would have to offset any loss of salary with the book deals.

Privacy claims? Joe Wilson pretty much lost that cause of action when he wrote that original NYT article, making him a public figure. They might have a claim if the issue was, for example, their sex life. But it isn't. Rather, the issue is Plame's loss of covert status, and that is a direct and consequential result of the precise place where Wilson ejected himself into the public realm - how he got the Niger job in the first place that he was talking about in that article. Wilson lost his privacy here intentionally by writing that article, and Plame lost it through getting him the Niger job.

Other Tom

I was unaware that she had elected to retire. If so, that poses yet another problem for her. Apparently, at a MoveOn.org meeting last week Joe made some noises about bringing a civil case, but I think when he is apprised of his own potential embarrassment in the discovery process he will re-think the matter.

topsecretk9

BTW...if he filed against Rove...Wilson himself knows he just gave new meaning to the word legal defense fund...people would fall over themselves to give Rove money if only for the chance at stripping Wilson bare (AND Rove's would dwarf Wilson's)

PD Shaw

Some excellent comments above.

If I were trying to bring a civil suit, I think my eye would first turn to the statute Fitz was investigating and claim that Rove violated the statute (thus the source of the duty), causing loss of employment opportunities, etc. As already mentioned, just because criminal liability was not evidenced, doesn't mean that civil liability on a lesser standard couldn't be proven.

The problem is that court's don't assume that every violation of a statute creates a right to bring a civil suit for its violation. One thing the courts will ask is why the legislature didn't include one in the law. They will also ask whether the purpose of the statute would be effectuated by civil suits. They will also ask whether the statute was intended to protect individual rights or public interests.

On all those considerations, there are problems. I don't believe the statute had a civil suit provision. Civil suits necessarily entail disclosure that is antithetical to purpose of the statute. And ultimately, confidentiality is far more a public issue than a personal issue (thought not exclusively).

topsecretk9

--I was unaware that she had elected to retire.--

Yep...she was not fired and she **elected** to retire...in full. I'm sure this pissed them off too...I'm sure they were hoping she would be shoved out for this very reason, when it turned out no? The only other alternative was to wait it out to qualify for full retirement.

Patrick R. Sullivan

Rove has a much stronger case against Joe Wilson than vice versa. And Wilson isn't a newspaper or a reporter, so Rove's status as a quasi-public figure wouldn't protect Joe.

Anyway, there's malice aplenty in evidence from Joe toward Rove. Rove can show Wilson's a liar, easily, and that those lies caused him both emotional and financial harm.

I doubt Rove would sue him, but Wilson's on thin ice threatening to sue Rove. That's how Alger Hiss ended up in prison. He threatened Whittaker Chambers with legal action if he ever repeated his (protected) testimony from the HUAC hearing in a non-protected venue.

Chambers then repeated his charges on Meet the Press. When Hiss failed to follow through with a lawsuit, he kept getting asked why he hadn't. Finally the pressure got to him, so he did sue Chambers.

To defend himself, Chambers produced the famous Pumpkin Papers and Hiss eventually was charged with, and convicted of, perjury.

Bruce Hayden

Yeh, I do agree that Rove would have an easier time proving malice on the part of Wilson than the opposite. The "Frog March" quote would seem to be pretty damming here.

Of course, it would be unseemly for an administration figure to sue one of his detractors, so I don't expect to see Rove as a plaintiff. But counter-claimant? Oh yes.

But then we get into causes of action. I don't see privacy or negligence. After all, what duty did Wilson owe Rove? But maybe that intentional infliction of emotional distress might be useful. Also, maybe defamation? I think we might have some actual malice here (to overcome that Rove is a public figure).

Other Tom

There are no provisions in the IIPA for a civil suit, and it seems certain to me that no court would ever find a private right of action under that statute. As for a Rove defamation action, (a) I can't think of any specific thing Wilson has said that would give rise to a claim, and (b) my recollection is that the actual malice standard for public figures applies even where the defendant is not a newspaper. I don't believe Rove would fool with it anyway, even as a counterclaim (or cross-complaint) in the event Joe (or Valerie0 tries to sue him.

JM Hanes

The most entertaining take on this topic comes from TM's earlier Jane Hamsher quote:

The Wilsons have backed off on their civil suit in order to give Fitzgerald the room he needs to maneuver, but that will not last forever.

While nothing lasts forever, I think this may be the single funniest bit of Wilson spin to date, and that's really saying something.


THIS JUST IN! from R/S/S/(F*): "So, sue me!"


(*Pending)

clarice

Exactly. JMH. We should write Joe and encourage this. BTW in any defamation suit, Joe himself would come within the public figure test so he, too, would have to show either actual malice or reckless disregard.

Speaking of that, the suit I'd like to see is one by Kilo Company against Time and Human Rights Watch.

Barney Frank

While the public figure thing does make it tough for a defamation suit by Rove, I suspect the question of malice would be more than taken care of in depositions regarding Wilson's PRIVATE statements which are just as tortious as his public ones.

But as Sue said its all irrelevant because the chance of a civil suit by either side is near nil, the one caveat being just how Narcissistic Joe is. A true Narcissist, if he is one, can go to some unimaginably stupid lengths to punish their perceived enemies.

sad

Joe would take the stand and answer truthfully that he had no personal animosity toward anybody. It was all about the money, baby!!!!

vnjagvet

Other Tom has smashed the nail here. Civil discovery is the main deterrant to a civil action by the Plamewilsons.

For the same reason Fitz is not featuring him as a witness in his case against Libby (too much dirty linen), he can not afford the pain of a well taken deposition by a thoroughly prepared(after well-directed requests for document production) highly skilled trial attorney.

PeterUK

In this, a most uncivil of civil suits,the Wilson's third date would raise interesting questions."Oh Joe Darling I'm covert",she cried.."Me too Darling!",he ejaculated

Neo

Forget the trial and all that stuff.

Just imagine the depositions. Under oath, penalty of perjury.

Rove (err .. Luskin) will be able to ask each and every question about what happened before and after the trip to Niger. Ask about every contact or affiation with VIPS, the Kerry campaign, Tim Russert and the media et al.

I'd give money to have Wilson (or Rove) sue.

vnjagvet

Yeah, Neo, and it can be videotaped,to preserve for trial, but more importantly, all the better for future campaign ad fodder.

Can't you imagine the clips that could be made from Wilson in action? Sweeeeeeet.

Truzenzuzex

Anonymous Liberal said:

While I do think Plame has a prima facie negligence claim against Rove, it would encounter a whole host of problems.

The claim would be that Rove had a duty not to reveal classified information. He negligently revealed classified information which cost Plame her job.

Well, I suppose that could work. Of course, it does require the modest virtue of being true, which I don't believe it is.

As far as I am aware, Plame was not fired, forced out or into retirement by the actions of the Bush administration. In fact, unless I missed it, she still works for the CIA. Her retirement is intact, and although her fame has undoubtedly removed her from any "covert" operations, I think arguing that it "cost Plame her job" would be a rather difficult legal hill to climb.

verner

Hey, If the Wilsons sue, I'll start a fund to pay Clarice to be on Rove's team! LOL

Clarice, I'd love to see you deposing the Wilsons!

verner

"As far as I am aware, Plame was not fired, forced out or into retirement by the actions of the Bush administration. In fact, unless I missed it, she still works for the CIA. Her retirement is intact, and although her fame has undoubtedly removed her from any "covert" operations, I think arguing that it "cost Plame her job" would be a rather difficult legal hill to climb."

Agreed. And as I said before, around the same time that Plame left, there was a pretty major shake-up at the agency, as there should have been. Their pre-war intelligence work was a total disaster. And I doubt that getting her husband the Niger job helped her career. Dumb move. She played hard ball, and got pinged in the head. What did she expect? A promotion?

clarice

verner, I think lots of attorneys would bid for the right to do that..

verner

Yeah Clarice, but who else has such an intimate knowledge of Joe and Valerie? You would be their worst nightmare. Oh the witnesses you could call!

I volunteer to do research for you pro bono. It would be an honor. Just give me access to lex-nex, a carton of ciggies and all the coffee I can drink.

clarice

HEH1 Ciggies and coffee..I see we both have the same diet.

JM Hanes

Cigs & diet cokes here (which is a distinction without much difference caffeine wise or diet wise).

Other Tom

It's true that Rove had a duty not to disclose classified information. While it's by no means clear that he did so, there is also a question whether that was a duty he owed to Valerie Plame. The Jane Hamsher quote is truly a stitch: no way a civil suit has any effect whatsoever on a prosecutor's ability to maneuver. It does, however, allow deposition (and other) discovery, which Rove's attorneys could use in the criminal trial for the purpose of impeaching witness testimony, among other things.

JM Hanes

Other Tom

"It does, however, allow deposition (and other) discovery, which Rove's attorneys could use in the criminal trial for the purpose of impeaching witness testimony, among other things."

Great observation. In a similar vein, it occurs to me that maybe Wilson can neither afford nor risk being deposed by anyone before Fitz closes up shop.

topsecretk9

---For the same reason Fitz is not featuring him as a witness in his case against Libby (too much dirty linen), ---

Not only that Fitz has told the judge he will stipulate that things WIlson asserted in his op-ed as true i.e. big fat fibs.

topsecretk9

will NOT stipulate...arghhh

topsecretk9

Rove (err .. Luskin) will be able to ask each and every question about what happened before and after the trip to Niger. Ask about every contact or affiation with VIPS, the Kerry campaign, Tim Russert and the media et al.

Just imaginge Wilson's answers:

I misspoke

I think that was when I misspoke

I was missatributed

I didn't have my glasses so I misspoke againg

I don't recall

I don't recall

I don't recall

I don't recall

I don't recall

I was using literary flair again

I don't recall

I don't recall

I don't recall

Oh that?, I misspoke

I don't recall

I don't recall

I don't recall

Misatributted again

Mispoke

I don't recall

I don't recall

I don't recall

I don't recall

I don't recall

Misspoke

I don't recall

I don't recall

I don't recall

I don't recall

I don't recall

Literary Flair


and on and on...

Lurker

What a great idea for Clarice to defend Rove and Verner to do the finger lurkin'! Verner and topsecret are good at that!

Amazing how quickly Joe Wilson's lawyer came forth with the announcement of a civil case.

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Wilson/Plame