Valerie Plame is back in the news, since her civil suit against the Administration was subject to a court hearing today.
The excellent Josh Gerstein of The Sun has pre-game coverage.
Carol Leonnig of the WaPo covers the hearing. This bit on official immunity is an instant classic (emphasis added):
The lawyers said any conversations Cheney and the officials had about Plame with one another or with reporters were part of their normal duties because they were discussing foreign policy and engaging in an appropriate "policy dispute." Cheney's attorney went further, arguing that Cheney is legally akin to the president because of his unique government role and has absolute immunity from any lawsuit.
U.S. District Judge John D. Bates asked: "So you're arguing there is nothing -- absolutely nothing -- these officials could have said to reporters that would have been beyond the scope of their employment," whether the statements were true or false?
"That's true, Your Honor. Mr. Wilson was criticizing government policy," said Jeffrey S. Bucholtz, deputy assistant attorney general for the Justice Department's civil division. "These officials were responding to that criticism."
Put your hand up if you think the judge is accurately summarizing and the reporter is actually capturing the defendants' position - as an illustration, your hand should be raised if you think the defendants were arguing that they had the right to discuss Joe Wilson's tax return, his State Dept personnel file, his mother-in-law's taxes, or anything else.
OK, put your hand down - you're annoying me and embarrassing yourself, because that position is so absurd that it can't be what they meant. Here is the AP version:
The Justice Department has asked Bates to drop an invasion of privacy count in the suit because government officials cannot be sued personally for such claims when acting in their official capacity.
"There is nothing these officials could have said that could go beyond the scope of their employment?" asked Bates.
Not in the context of the Plame affair, replied Justice Department lawyer Jeffrey Bucholtz. What the suit alleges amounts to a government policy dispute in which the defendants tried to discredit Plame's husband, Bucholtz said.
Ahh - "Not in the context of the Plame affair". The suit does not allege that tax returns and personnel files were discussed, now does it? The judge's apparent hyperbole notwithstanding, the real issue is whether what was actually discussed could reasonably be interpreted as within the scope of official duties; it does not appear from this version that the defendants were making an abstract "Anything Goes" claim.
I belabor this mainly because of the comically over-heated response at the Daily Kos. Big Tent at TalkLeft is more reasonable but drifts away from reality here:
The inquiry is was the Vice President acting in his official capacity or in his unofficial capacity. If, for example, Cheney ordered Libby to disclose Plame's identity, he would be ordering him to engage in an illegal act, and that simply can not be considered an act thought to be in good faith an official act by Cheney.
Well, one would need to establish at a minimum that Cheney was aware of Ms. Plame's classified status, that she met the other requirements of the IIPA, and that Bush had not delegated to Cheney a de-classification free pass. Seeing as how there were no criminal indictments for leaking her identity, I suspect the facts are not favorable to the Wilsons on these points.
I had earlier coverage of the civil suit here and here; the complaint is here, and outlined at TPM Muckraker. My guess - in a few weeks this suit is dismissed.
Gosh, TOm, I have always thought that, too, but is it a good idea to have Mr. 70% taking the same position I do?
Posted by: clarice | May 17, 2007 at 11:21 PM
Ah, Plame on once again and all is right with the world!
That and Rosie sailing completely over the world's edge.
Posted by: JJ | May 17, 2007 at 11:24 PM
IMO, three things have never been reconciled in this mess:
1. Libby told some small stories to a grand jury.
2. Fitz overreached in his investigation to protect grand jury testimony.
3. Fitz completely overreached in his thesis that a "cloud hung over the vice president's office." Whatever that might mean.
Someone come up with a way to connect those dots, and I'm happier. There are some large problems with 2. and 3. fitting together. And neither 2. or 3. fits at all with 1.
I speak for the great unwashed and uninformed who deal evidence and not with nuance and psychic powers!
Posted by: JJ | May 17, 2007 at 11:46 PM
On a motion to dismiss a complaint before the defendants have answered, the judge must consider only what is alleged in the complaint, and he must assume those allegations are true. I don't believe there is any allegation that any criminal disclosures were made, and of course there's no allegation of any discussion of tax returns. I take the judge's question to be a rather routine one, asked for the purpose of testing the boundaries of the lawyer's position.
Regardless of the scope of the various defendants' immunity from civil liability, there are a number of other issues that could be fatal to the complaint regardless of whether the judge agrees that Cheney is immune. In particular, there is the statute of limitations, and there is the question of whether either Plame or Wilson had any protected rights that the defendants' conduct violated, even if they did everything the plaintiffs claim they did. I think the plaintiffs have a real problem.
Posted by: Other Tom | May 18, 2007 at 12:20 AM
Yes. I remember going thru all that when the pleadings were filed. My favorite claim is that the disclosure "chilled" Wilson's right o speak out. LOL/
Armitage's answer BTW is very hard hitting and quite hilarious.
Posted by: clarice | May 18, 2007 at 12:41 AM
In particular, there is the statute of limitations, and there is the question of whether either Plame or Wilson had any protected rights that the defendants' conduct violated, even if they did everything the plaintiffs claim they did. I think the plaintiffs have a real problem.
And well there are a few mitigating circumstance that negate the whole premise...such as, Did Ms. Plame adhere to her oath as a CIA employee (unless she was a contractor - i don't think they need to do this) and seek permission to be photographed and participate in the big splashing Vanity Fair?
I think there was one report she did not (and that made CIA insiders pissed at her) - BUT if she was permitted, doesn't that negate the whole argument at some level - the CIA thought so little of her and her "cover" and "contacts' they gave the A OK to broadcast for all to see? As in - she with CIA approval revealed herself to the bad guys?
fat chance - and that side stepping approval to do Vanity Fair for VANITY WHILE STILL A CIA EMPLOYEE pretty much crushes any "dissent" or "reprisal" argument.
I thought Valerie Plame was suppose to be the smartest gal on earth. I'd hope a smart CIA gal wouldn't think it was groovy to do a photo shoot for an international magazine while STILL EMPLOYED!
Posted by: topsecretk9 | May 18, 2007 at 01:53 AM
nuts
Posted by: topsecretk9 | May 18, 2007 at 01:54 AM
There's a whole list of additional people she could be suing if they are serious in their claims.
Harlow
Fleisher
-- both of these guys told reporters Valerie worked at the CIA
Bob Novak
Matthew Cooper
David Corn
--These three reporters printed what they claim to be very damaging information about Valerie (as Tops points out about VF) while she was still employed and WELL before she became a public figure.
Whoever told David Corn, I assume, also was spreading around damaging classified information about Valerie. Sue that guy.
Posted by: Maybeex | May 18, 2007 at 03:27 AM
I was able to attend the arguments--I work across the street from the courthouse--and the report in the Post was largely correct. The defense argued that the VP has essentially absolute immunity to say anything about anyone so long as it is done within the context of his official duties. As a matter of law this may well be correct. There has always been a fairly broad grant of immunity for govenment officials conducting official business, but it seems arguing absolute immunity, which is what his attorney's argued, seems more than this judge is willing to swallow. We shall see.
Posted by: dmh | May 18, 2007 at 07:07 AM
What a welcomed sight this topic is!
Posted by: Jane | May 18, 2007 at 07:12 AM
TM:
My guess - in a few weeks this suit is dismissed.
Who are you and what have you done with the real TM??????
Where's the TM of the BOLD PREDICTION?
Posted by: Jeff Dobbs | May 18, 2007 at 07:47 AM
OT: Arlen Specter predicts that Gonzales will resign by the time their investigations are completed.
Now they're seeking a "No Confidence" vote.
Guess they'll garner enough votes....
This whole Plame story continues to be ridiculous.
Posted by: lurker9876 | May 18, 2007 at 08:27 AM
...the comically over-heated response at the Daily Kos.
Jeeez, you could have a whole category of posts for this.
Posted by: Charlie (Colorado) | May 18, 2007 at 09:02 AM
I enjoy hearing the argument that refuting Joe Wilson's allegations was part of the Administration's normal and appropriate duty to defend its foreign policy decisions.
Won't bother me a bit to hear that over and over for a few months.
Posted by: MikeS | May 18, 2007 at 09:07 AM
dmh: Is it possible for you to summarize what was said on the issues of the statutes of limitations and the failure to allege that any protected right was violated? I'd be particularly interested in what the judge had to say, if you recall. Thanks.
Posted by: Other Tom | May 18, 2007 at 09:31 AM
I would like to see the defense enter Wilson's testimony from the Senate Committee that had previously investigated Plamegate with all the literary flair and reporters misattributing Wilson's leaks.
Posted by: danking | May 18, 2007 at 10:26 AM
Plame never had permission from CIA to admit she was a CIA operations officer paramiltiarily trained and get the operations officers in Iraq assassinated. Jim and Larry Johnson had no permission to verify they were all trained at the farm together just before the Iran desk came out.
Specter is after Gonzales because he threatened to not renew the NSA charter. The real answer is to not renew all the charters at Congress that create agencies that think they work for Congress and not the President.
What most want to know is if Plame is part of the genetic material thieving by nurses from Bethesda Naval hospital. The postpartum and the clinics for the material are too good to pass up. So, is postpartum how they pay off one of those who use the material from a drugged person? Maybe it's space alien abductions stealing material and it has something to do with the move to Langley by Air force(NASA) and creation of the new Geospacial intelligence agency at Congress and the war between CIA and Air Force regarding 'time travel.' Should it be CIA agents like Plame or the traditional astronauts trained for that type of travel? Maybe it's all psy ops designed to drive victims insane, but, apparently, even with Lucifer's reminders, is impossible because Satan created perfection in God's creations as they originally were?
The psy ops will go on because the truth is there really is a cabal at Bethesda naval hosptial that collects genetic material from drugged victims or, maybe, that is a psy op in itself, but, it appears to affect more than one victim and has some foundations in the military. So, the question is what is a CIA agent doing with this type. the excuse would be investigating, but this might just result in the predicted outcome as has occurred in the past, putting the persons who drugged the victim in harms way because of the admission to doing this, which, of course, might result on murder atttempts on the victim in a traditional style like, as before, drugging. The answer is the victim can't talk once the admission is there because that would put the people who drugged and stole in danger, which is why she made the admission. That and a possible investigation that had the desired outcome for the investigator, which the investigator would have known before investigating, and talking would put the victim in danger because of the nature of the drugging and, later, more attempts would be made on the victims life by drugging again and this would also be known to the investigator. The pattern would be known if the investigator knew the victim and the past druggings. So, did the investigator have the victim's file and proceed with things that were dangerous to the victim also knowing the victim?
The dissent and reprisals are in Plame's actions and maybe the last bits aren't that interesting unless someone wants more victims. Someone wants immunity. The last
bits would be the question and whether or not the victim's file was available? It easy to make a victim with known facts.
Anyway, TM has been mugged? I'm calling his mother and having her fetal stem cells checked just in case. TM, maybe we need some tests. It's just a bunch of females and it's like a dream, but, if you wake up, remember to act like you can't tell what's happening.
Posted by: Roger | May 18, 2007 at 12:28 PM
Huh?
Posted by: danking | May 18, 2007 at 01:12 PM
I've said it before, but I love to repeat myself, so I'll say it again.
Federal elected officials may discuss almost anything with with almost anyone and still remain within the scope of their employment. I quote the DC circuit in an opinion (warning, pdf) binding on this court:
[snip]
In other words, if a Congressman can slander third parties with impunity whilst gossiping about his divorce because that is within the scope of his employment, Cheney can talk about the actions of government employees and contractors to his heart's content.
Remember, however, that "scope of employment" doesn't end the inquiry into liability. It only stops those causes of action for which the US claims sovereign immunity. Please note that the US will pay off when, within the scope of his or her employment, a US employee discloses information protected under the Privacy Act. Some of your examples, TM, fall into that category.
Posted by: Walter | May 18, 2007 at 02:10 PM
There is also the not inconsequential problem for the plaintiffs..an utter inability to shoe damages.
Posted by: clarice | May 18, 2007 at 02:20 PM
There is also the not inconsequential problem for the plaintiffs..an utter inability to show damages.
Posted by: clarice | May 18, 2007 at 02:21 PM
Where's the TM of the BOLD PREDICTION?
LOL. I kinda think he'll be back eventually. Maybe.
...an utter inability to shoe damages.
Fortunately they have well-heeled attorneys.
Posted by: Tom Maguire | May 18, 2007 at 04:51 PM
*THWACK!!!**********
Posted by: clarice | May 18, 2007 at 04:52 PM
The trick in this case is to get it dismissed on the insufficiency of the complaint, i.e. without discovery of either side. Once discovery is taken, it's a defense slam dunk, on lack of damages and a number of other grounds, but the plaintiffs' entire purpose has been to get into discovery. Unfortunately for them, they might fare quite a bit worse than the defendants do.
I suppose it's good that the late, great Chick Hearn, who is said to have coined the term, didn't live to see "slam dunk" so discredited.
Posted by: Other Tom | May 18, 2007 at 08:11 PM
OT- yes, EW says as much in her latest Plame post. This isn't about getting "rich" (getting damages), this is about getting subpoenas on Rove and Cheney.
One wonders what they want to do with those subpoenas.
clarice- thanks for the newest Murray Waas link. What an odd duck.
The arrival of the Plame trial really showed me how odd he is. The way he didn't even show up at the trial, and barely blogged about it. When the trial first opened, he spent more of his time writing about Jane Hamsher's health than discussing the trial.
Posted by: Maybeex | May 18, 2007 at 10:07 PM
--Whoever told David Corn, I assume, also was spreading around damaging classified information about Valerie. Sue that guy.--
HEH. Well, and she admitted she spoke to Kristoff with out getting permission -in direct violation- as well. (and listened to her husband detail- falsely - information she herself was not permitted to talk about directly related to her employer and employment)
Posted by: topsecretk9 | May 18, 2007 at 10:43 PM
--This isn't about getting "rich" (getting damages)--
riiight. filing it prolly sealed the Warner Brothers movie deal. I mean they need SOME meat to get that 2.6 million.
Incidentally, I think Monica had a better claim against smear merchant Sidney Blumenthal than does Valerie Plame's lame suit.
Posted by: topsecretk9 | May 18, 2007 at 11:12 PM
OH and wouldn't be hilarious if the judge throws out all defendents except the actual blabber - Armitage?
Posted by: topsecretk9 | May 18, 2007 at 11:14 PM
I've never understood why the WH defenders make it so complicated. Wilson was all over the media insinuating Cheney sent him to Niger. Cheney, knowing it wasn't true, corrected the record. It isn't necessary to roll in all the other foreign policy differences between the two. That one element was the impetus behind finding out who sent Wilson.
As for invasion of privacy, the Wilsons are as much "public figures" as I can imagine. And no one drug them into the spotlight...they eagerly sought it.
Posted by: JeanneB | May 19, 2007 at 06:21 AM
Ok, just in case anyone is still noticing the dead threads...
How does discovery work? Suppose that the plaintiffs demand discovery for A, B & C, while the defense demands X, Y & Z. Suppose the defense vigorously objects that A, B & C are irrelevant. Suppose that the plaintiffs either don't object, or their objections are dismissed summarily. We see the case as being embarassingly lopsided, with the plaintiffs having no legal leg to stand on. If the courts take the same view, is there a risk to the plaintiffs that the courts could allow defense discovery to go forward, while simultaneously keeping the plaintiff's discovery motions in litigation, and then dismissing them after plaintiffs have already been forced to spill their guts? Or would pending litigation on the plaintiffs discovery motions automatically suspend any defense discovery motions?As TSK9 points out, there is the amusing possibility of the judge dismissing everything except the suit against Armitage. Of course the Wilsons will immediately drop the suit if that happens (and they can't be prevented from doing that, right? And unless Armitage and/or the others countersued, then it would just be over, right?)
Posted by: cathyf | May 22, 2007 at 10:03 AM