JustOneMinute: The Wilson Civil Suit

Joe and Valerie Wilson announced their civil suit against Cheney, Libby, Rove, and ten Evildoers to be named later. From the left - anticipation! From the right - excitement!

In the brutal, zero-sum world of partisan politics, both parties cannot have their electoral prospects enhanced by this lawsuit. So why the shared excitement?

For the Democrats, this civil suit represents an opportunity to depose Bush Administration officials and maybe strike gold with some embarrassing or even illegal tidbit (think Paula Jones). On the Republican side, there is a sense that Joe Wilson may be humiliated in discovery, along with the media and the anti-Administration CIA cabal alluded to recently by Rep. Peter Hoekstra.

Advantage - Democrats! Neither Joe Wilson, Tim Russert, nor George Tenet are candidates for anything; Bush won't be either, but he is the leader of his party, notionally at least. The Dems have a puncher's chance of scoring a big win; the Reps are more likely to "win" this suit, but what is victory - humiliating Joe Wilson? Been there, done that, and John Kerry cut him loose to ice the cake.

Within the confines of his base on the far left, Joe Wilson is a teflon legend and no discovery can shame him. Nor is the media likely to self-flagellate, regardless of what the discovery process might reveal about, let's say, Nick Kristof or Andrea Mitchell, either of whom may have been aware of Ms. Plame's CIA affiliation. For Reps, this case may be entertaining but the upside is limited.

QUICK HITS: Byron York notes the Paula Jones precedent and calls this case " A LEFT-WING BLOG WITH A LEGAL CAPTION". Well, I'll call it the Paula Jones case with better fashion sense.

The Crank surveys the legal landscape from the right; I like this:

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.

Oooh, talk about A Time For Choosing - what will folks on the left say if St. Patrick himself puts a hold on the Wilson suit?

From the left, Paul Kiel of TPM Muckraker provides a helpful outline of the causes of action. I note what seems to be a clever feature of the suit - the plaintiffs have a possible problem with the immunity of Federal officials in the performance of their duties. My guess is that the attorneys have designed a work-around - some of the causes of action assert that by acting in their official capacity from their lofty perches of power in the White House, the defendants violated the free speech rights of private citizen Joe. (OK, Joe Wilson was on TV all the time and had hooked on to the Kerry campaign in May 2003, but never mind - the cause of action is, you can't bully from the bully pulpit in your official capacity.)

However, other causes of action assert that the defendants engaged in behavior that was beyond the scope of their official duties, and therefore (presumably) does not merit immunity.

My guess - this was written partly so that a judge can't dismiss all of the causes for the same immunity-related reason.

As to the Wilson Legal Trust - great idea! Shadowy financiers can keep Joe alive as a gadfly forever (I assume the donors will be anonymous). No whining from the right, please - this is all a Paula Jones flashback/payback. Buy his books, pay his speaking fees, keep Joe in clover, and he will risk personal embarrassment for the greater cause of taking a bite out of Bush.

Here is some NY Times coverage, and the WaPo. No mention of Ms. Plame's new book deal; no mention that Ms. Plame was not fired - she resigned with her pension. However, I like this from the Times:

But the suit is also likely to face major hurdles, notably the issue of whether the officials have any immunity for their actions. The general standard from a 1982 Supreme Court case is that federal officials may be sued for violating someone’s constitutional rights if a reasonable person would believe they had violated “clearly established law.”

The pretrial motions in the Libby case have not, as yet, produced evidence that there was any willful effort to leak Ms. Wilson’s identity.

STILL MORE: JOE v. JOE, or JOSH v. JOSH: I have to admit, Joe Wilson provides lots of fun. Let's track Josh Marshall, who has both of these posts appearing on his blog today:

Why is CNN's John King still repeating the Republican bamboozle (for a detailed forensic debamboozlement see this post) that Joe Wilson 'said Dick Cheney sent him to Niger'.

TPM Reader Joe Wilson on Bob Novak ...
Robert Novak, some other commentators and the Administration continue to try to completely distort the role that Valerie Wilson played with respect to Ambassador Wilson's trip to Niger. The facts are beyond dispute. The Office of the Vice President requested that the CIA investigate reports of alleged uranium purchases by Iraq from Niger.

Emphasis added. Let's follow the link to the "forensic debamboozlement:

[Wilson] said that the CIA, following up on a query from the vice president, sent him on a fact-finding mission to Niger.

Well, which is it - was the CIA "following up on a query", as per the debamboozlement, or did the "Office of the Vice President [request] that the CIA investigate reports"?

Well, the facts are clear, just like Joe said, if we can rely on the SSCI (p. 49 of the .pdf):

Officials from the CIA's DO Counterproliferation Division (CPD) told Committee staff that in response to questions from the Vice President's Office and the
Departments of State and Defense on the alleged Iraq-Niger uranium deal, CPD officials discussed ways to obtain additional information.

Everyone was asking, so the CIA decided to answer, and gosh - nothing about the OVP requesting an investigation. The facts are clear indeed.

And P.S. - why did Kristof write on June 13, 2003 in a column that relied on Wilson as an anonymous source that "an envoy investigating at the behest of the office of Vice President Dick Cheney" went to Niger? Why did Chris Matthews repeat "at the behest" as if hypnotized on July 8, 2003, *after* the publication of Wilson's op-ed in which he never said he was sent by Cheney?

ALMOST DONE: In fact, it's time to say Bye, Bye Ms. American Spy...

FOR THE REAL LAWYERS: Presumably Wilson's legal talent has considered this, but this comment from Brent Richardson was interesting and over my head:

The Plame lawsuit may be dismissed for failure to file an administrative claim under the Federal Tort Claims Act. The DOJ will move to substitute the name of the United States as defendant because the actions occurred in the individual defendant's scope of employment. The Westfall Act provides federal employees with absolute immunity and the DOJ will probably certify that the defendants were acting in scope. The federal court can have a hearing on the scope issue, but iff the govt prevails, the Court would dismiss for failure to file the prerequisite claim. The govt then has six months to investigate before a lawsuit can be filed under the Federal Tort Claims Act. An FTCA lawsuit would be subject dismissal due to the intentional torts exceptions of the Act. In addition, as a federal employee herself, Ms Plame would have to exhaust her administrative remedies prior to any lawsuit.

A link to the Westfall Act takes me here; an explanation of sorts is here.

Comments

PUK, I just got an email headed "Lord Has Chosen You As a Vessel"..How could I resist opening it..Seems there's a guy in Dubai who has money he wants me to distribute to a charity..Interested?

Posted by: clarice | July 22, 2006 at 08:50 PM

From radioblogger:

HH: Did the 9/11 Commission find differently?
JE: It did.

HH: Erwin?

EC: I don't...I would have to go back, to be honest, and look at what the 9/11 Commission found.

HH: You haven't looked at that yet???

EC: I read it, but I sure didn't look at this aspect of it, since...

HH: And you took the case???

Just to rise in defense of Professor EC - he may have been lost at sea when HH and JE began discussing the findings of the 9/11 Commission re Wilson. Presumably they were referring to the Senate Intel report (Niger and Wilson are not examined in the 9/11 report).

So when EC says "I read it, but I sure didn't look at this aspect of it", he may just have been thinking, man, I need to re-read that 9/11 report, I don't have a clue what they are talking about. Nor could he have.

That said, some of his other comments did not inspire confidence.

Posted by: Tom Maguire | July 23, 2006 at 12:59 AM

You may be right, though the facts that Eastman had raised are in the SSCI report and no matter how he (mis)titled it, it seems the Professor was unfamiliar with what they'd found.

Posted by: clarice | July 23, 2006 at 01:08 AM

Hey the rug made by the guy in Afghanistan is on Fox News!

Posted by: Jane | July 29, 2006 at 07:47 AM

US News and World Report blip:

Back Story to Spy Source Outing

Turns out that Richard Armitage, the No. 2 under Secretary of State Colin Powell, was the first Bush administration official to disclose the name of CIA analyst Valerie Plame to columnist Robert Novak. But why'd it take nearly three years for Armitage's role to emerge? One answer: Patrick Fitzgerald, the special counsel investigating the mess, suggested that Armitage keep quiet. In a July 2003 interview, Armitage casually mentioned Plame's affiliation to Novak. In October, after controversy erupted over Novak's outing of Plame, Armitage realized he was the columnist's primary source. According to a person familiar with his actions, Armitage immediately told Powell, took steps to tell the Justice Department, later met with Fitzgerald, and voluntarily appeared before a grand jury several times. He offered to resign but stayed because Powell couldn't easily explain his departure as Fitzgerald examined whether the White House had tried to dirty up Plame's husband, Joseph Wilson, an Iraq war critic. Earlier this year, Fitzgerald told Armitage he wouldn't be charged.

Posted by: topsecretk9 | September 03, 2006 at 01:25 PM