Joe Wilson's lawsuit
Well, I just spent some time reading the
complaint in the case of Wilson v.
Libby, et. al. (you can get it in PDF form
here at Wilson's website) As some may recall, I
alluded to the possibility that Wilson might sue in my post about the Courtney fund raiser on June
30th. During that fundraiser Wilson told us more about the potential lawsuit
than I wrote about. I didn't repeat what he said, because I didn't think he
would want anyone repeating his statements at that time about potential
defendants, et. al. since he had not, at least officially, decided to sue.
I haven't researched these issues in depth. I have some passing familiarity with some of them. Since we bloggers are notoriously irresponsible, there's nothing to stop me from commenting, so here I go with some more or less informed opinion about the complaint and the lawsuit's prospects:
First, they couldn't have gotten a worse judge . Judge John D. Bates is a former Ken Starr deputy , who has already issued some questionable rulings shielding the Bush Administration from the kind of scrutiny to which he fought so hard to subject Clinton. He apparently believes that public policy affairs should be conducted in private, while those of a sexual nature are matters of grave public concern.
Bates ruled that the GAO had no right to find out how Cheney conducted his energy task force. He also ruled that members of Congress lacked standing to sue to overturn the President's unilateral withdrawal from the ABM treaty , thus vesting unconstitutional powers in the President. His Honor will be looking for a way to let the Un-Holy Trinity off the hook, and believe me, he'll find more than one.
I'm not sure what to make of the way in which the complaint was drafted. To some extent drafting pleadings is a matter of personal style, but there doesn't seem to be any question but that this complaint was drafted with a wider audience in mind than a judge or jury (if the case ever gets that far). In my own humble opinion, the less factually specific the complaint, the better. There are exceptions, of course, but the fewer facts you plead (so long as you plead enough to state a cause of action) the fewer you have to try to prove, and the less foolish you look if you can't prove what you have pled. On the other hand, if the complaint is drafted for public consumption, you would tend to go heavy on the facts, including the legally irrelevant facts, which are peppered throughout the complaint. (For instance, it is legally irrelevant that the first Bush condemned leakers, but it makes for great quotes).
Each of the defendants has been sued in his individual capacity only. I assume the purpose for not suing them in their official capacity is to maximize the possibility that the case will not be dismissed on a claim of immunity. Wilson will be arguing that Cheney, Rove and Libby were acting outside of the scope of their employment and are therefore not entitled to any immunity.
The federal based claims are of two types. Bivens claims and claims under 42 USC 1985. Bivens refers to the case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. In that case, the Supreme Court held that citizens of the United States could sue government employees for violations of their constitutional rights. The court held that citizens had a right to bring suit as a matter of constitutional right, and that there was no need for them to rely on any enabling legislation.
You really can't argue with the idea that a public official shouldn't be sued every time they act in good faith, and turn out to be wrong. There are a lot of unanswered constitutional questions. So the courts have fashioned the doctrine of qualified immunity. One court put it this way :
The balance of societal interests is achieved by shielding public officials from liability for civil damages so long as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818. “[A]s long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated,” federal employees are protected from suit. Anderson, 483 U.S. at 638.
You and I might think that the right to speak your mind free of government retaliation is a clearly established constitutional right. We might also think that Wilson had a clearly established statutory right to have her identity kept secret by government officials. And yet..., somehow I don't think Judge Bates will see it that way. Might he even accept one of the most loathsome justifications advanced by the right-that this is merely an attempt to criminalize hard ball politics?
Wilson is also suing under 42 U.S.C. 1985(3). Most lawyers know about 42 U.S.C. 1983. It's probably the most heavily annotated statute in the Code. But I had to look up 1985. It was passed shortly after the Civil War, as was 1983, and was intended to combat the KKK, though it's sweeping language goes far beyond that (Where would we be without Thaddeus Stevens and the rest of the Radical Republicans?) . It's been years since I read it, and I had to read it two or three times before I could untangle the diction, but I finally got it. Taking out the language that doesn't apply, it authorizes a civil action :
If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person ... of the equal protection of the laws, or of equal privileges and immunities under the laws.
I suppose we can assume that it applies in DC, as well as any state or Territory, and if that's the case, the shoe seems to fit. But again, Judge Bates will probably find that it doesn't.
There are some common law claims, which won't survive if the federal claims are knocked out.
If this lawsuit is allowed to proceed Wilson and his lawyers will be allowed to expose the seamy side (some would say the only side) of the Bush Administration in an unprecedented way. The most secretive Administration in history will be publicly called to account for the first time. That is why it is almost certain that this case will not be allowed to proceed, at least not while Bush is in office.
Bates will rule against Wilson. The DC Circuit may or may not reverse. This will not be a judicial process, it will be a political process, with decisions being made for political reasons. Most likely it will end up in the Supreme Court. Bush's judges will be sorely taxed. They will have to come up with a justification for dismissing this case, while leaving the door open for a wholesale judicial assault on Bush's successor, should that person be a Democrat. We know that Scalia, Alito, Roberts and Thomas are up to the task. Once again, Kennedy will be the swing vote, and my guess is he swings to the right on this one.
Possibly, the case will take so long to get to the Court that Bush will be out of office when it gets there. If that's the case, the court may allow the case to go forward, since the issues will be almost moot at that point, and they might want to leave the door open to going after Democrats, even if it meant sacrificing Cheney.
Even if Wilson wins the right to proceed with the case, Bates can frustrate the process by limiting discovery on the grounds of national security, etc., such that Wilson will be unable to develop his case. In fact, that might be the preferred vehicle to destroy the case, since it leaves no major precedent behind.
All that being said, it's still worth a try. We have already donated some of our meagre resources to the effort. You can donate here .
I haven't researched these issues in depth. I have some passing familiarity with some of them. Since we bloggers are notoriously irresponsible, there's nothing to stop me from commenting, so here I go with some more or less informed opinion about the complaint and the lawsuit's prospects:
First, they couldn't have gotten a worse judge . Judge John D. Bates is a former Ken Starr deputy , who has already issued some questionable rulings shielding the Bush Administration from the kind of scrutiny to which he fought so hard to subject Clinton. He apparently believes that public policy affairs should be conducted in private, while those of a sexual nature are matters of grave public concern.
Bates ruled that the GAO had no right to find out how Cheney conducted his energy task force. He also ruled that members of Congress lacked standing to sue to overturn the President's unilateral withdrawal from the ABM treaty , thus vesting unconstitutional powers in the President. His Honor will be looking for a way to let the Un-Holy Trinity off the hook, and believe me, he'll find more than one.
I'm not sure what to make of the way in which the complaint was drafted. To some extent drafting pleadings is a matter of personal style, but there doesn't seem to be any question but that this complaint was drafted with a wider audience in mind than a judge or jury (if the case ever gets that far). In my own humble opinion, the less factually specific the complaint, the better. There are exceptions, of course, but the fewer facts you plead (so long as you plead enough to state a cause of action) the fewer you have to try to prove, and the less foolish you look if you can't prove what you have pled. On the other hand, if the complaint is drafted for public consumption, you would tend to go heavy on the facts, including the legally irrelevant facts, which are peppered throughout the complaint. (For instance, it is legally irrelevant that the first Bush condemned leakers, but it makes for great quotes).
Each of the defendants has been sued in his individual capacity only. I assume the purpose for not suing them in their official capacity is to maximize the possibility that the case will not be dismissed on a claim of immunity. Wilson will be arguing that Cheney, Rove and Libby were acting outside of the scope of their employment and are therefore not entitled to any immunity.
The federal based claims are of two types. Bivens claims and claims under 42 USC 1985. Bivens refers to the case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. In that case, the Supreme Court held that citizens of the United States could sue government employees for violations of their constitutional rights. The court held that citizens had a right to bring suit as a matter of constitutional right, and that there was no need for them to rely on any enabling legislation.
You really can't argue with the idea that a public official shouldn't be sued every time they act in good faith, and turn out to be wrong. There are a lot of unanswered constitutional questions. So the courts have fashioned the doctrine of qualified immunity. One court put it this way :
The balance of societal interests is achieved by shielding public officials from liability for civil damages so long as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818. “[A]s long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated,” federal employees are protected from suit. Anderson, 483 U.S. at 638.
You and I might think that the right to speak your mind free of government retaliation is a clearly established constitutional right. We might also think that Wilson had a clearly established statutory right to have her identity kept secret by government officials. And yet..., somehow I don't think Judge Bates will see it that way. Might he even accept one of the most loathsome justifications advanced by the right-that this is merely an attempt to criminalize hard ball politics?
Wilson is also suing under 42 U.S.C. 1985(3). Most lawyers know about 42 U.S.C. 1983. It's probably the most heavily annotated statute in the Code. But I had to look up 1985. It was passed shortly after the Civil War, as was 1983, and was intended to combat the KKK, though it's sweeping language goes far beyond that (Where would we be without Thaddeus Stevens and the rest of the Radical Republicans?) . It's been years since I read it, and I had to read it two or three times before I could untangle the diction, but I finally got it. Taking out the language that doesn't apply, it authorizes a civil action :
If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person ... of the equal protection of the laws, or of equal privileges and immunities under the laws.
I suppose we can assume that it applies in DC, as well as any state or Territory, and if that's the case, the shoe seems to fit. But again, Judge Bates will probably find that it doesn't.
There are some common law claims, which won't survive if the federal claims are knocked out.
If this lawsuit is allowed to proceed Wilson and his lawyers will be allowed to expose the seamy side (some would say the only side) of the Bush Administration in an unprecedented way. The most secretive Administration in history will be publicly called to account for the first time. That is why it is almost certain that this case will not be allowed to proceed, at least not while Bush is in office.
Bates will rule against Wilson. The DC Circuit may or may not reverse. This will not be a judicial process, it will be a political process, with decisions being made for political reasons. Most likely it will end up in the Supreme Court. Bush's judges will be sorely taxed. They will have to come up with a justification for dismissing this case, while leaving the door open for a wholesale judicial assault on Bush's successor, should that person be a Democrat. We know that Scalia, Alito, Roberts and Thomas are up to the task. Once again, Kennedy will be the swing vote, and my guess is he swings to the right on this one.
Possibly, the case will take so long to get to the Court that Bush will be out of office when it gets there. If that's the case, the court may allow the case to go forward, since the issues will be almost moot at that point, and they might want to leave the door open to going after Democrats, even if it meant sacrificing Cheney.
Even if Wilson wins the right to proceed with the case, Bates can frustrate the process by limiting discovery on the grounds of national security, etc., such that Wilson will be unable to develop his case. In fact, that might be the preferred vehicle to destroy the case, since it leaves no major precedent behind.
All that being said, it's still worth a try. We have already donated some of our meagre resources to the effort. You can donate here .
Posted: Thursday - July 13, 2006 at 09:56 PM
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