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Thursday, July 13, 2006

Seeking a little justice and maybe some cash!

Big and sad news day today on many fronts, but my smile did appear when I saw that Joseph Wilson and Valerie Plame have filed a suit against Cheney, Rove, and Scooter Libby.  Here's a copy of the complaint.  Note that Plaintiffs have secured the services and counsel of a good firm (Proskauer, Rose) and my former co-counsel and uber-prawf, Erwin Chemerinsky.  So, in the spirit of open-source lawyering, I invite Paul Gowder and other folks to read the complaint and offer their assessment here.  Which defenses will be raised at 12b6 and how are they best overcome? 

Posted by Administrators on July 13, 2006 at 05:40 PM in Law and Politics | Permalink


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Well, I enjoyed your penultimate post (surely you have more to say). But let's bring this back to where it began: you contested the notion that Robert Novak would be necessarily more prone to prevarication than a generic liberal. I gave some specific evidence as to why he would be more prone to prevarication than a generic anybody, and then rather foolishly observed as an afterthought that conservatives generally might be more prone to prevarication because of political cultural differences. I don't think that I brought up the idea of merit at any point. Certainly, by one score, the conservative tendency to discount factual basises has paid off very well until recently. On the other hand, intellectuals tend to be liberal and it is hard for conservatives to get any love in the academy. But these are all bigger questions. The most important thing is that Robert Novak is a tool. Be good.

Posted by: Bart Motes | Jul 20, 2006 2:37:56 AM

You may be right about that, though I doubt it, at least in the long run. After all, for all its defects, the United States remains without question a comparatively free and open society, although whether it stays that way is always up for grabs. Hence my naive attachment to intellectual honesty and ideological independence. In any event, I think you've undermined any principled basis you otherwise might have for complaining about conservatives' "dishonesty," since you're endorsing the same methods. It reminds me of Luther, who in a moment of candor described himself, in contrast to his bete noire Erasmus, as “a barbarian.” If (but only if) we’re all barbarians, then as you say intellectual honesty and ideological independence are for suckers. On the plus side, barbarians make excellent lawyers, so you’ve got that going for you. I’ll let you have the last word.

Posted by: Anon | Jul 19, 2006 10:09:32 AM

Yeah, dude, that's exactly what I'm saying. Intellectual honesty and ideological independence are losers in a culture that has a short memory.

Posted by: Bart Motes | Jul 18, 2006 10:36:43 PM

I think we're using different conceptions of virtue. The mere fact that subordinating a good faith attempt to reach the truth, the reasoned evaluation of evidence, and the like, to the advancement of one’s political objectives is perhaps effective as propaganda does not make it a virtue. If anything, the fact that such tactics work arguably makes them worse, morally speaking, unless advancing one’s political objectives trumps intellectual honesty and ideological independence, which I thought it was your original intention to deny. But I must have been mistaken, since you now seem to be implying that liberal commentators like Mark Shields should be more (rather than less) like their supposedly benighted conservative counterparts in the service of "the greater good."

Posted by: Anon | Jul 18, 2006 11:24:24 AM

Actually, no, I think there are definite virtues to the message control that conservatives are able to achieve. And I curse Mark Sheilds every time I see him try and see both sides to a question on the News Hour. Honesty doesn't pay in this political climate, at least not the ambivalent, "well, you may have a point there, kind."

Posted by: Bart Motes | Jul 17, 2006 11:48:19 PM

I suppose I should add, to avoid misunderstanding, that I assume that you meant "intellectual honesty and independence" to be virtuous qualities, and "prioritizing party loyalty and discipline" over honesty and indepedence to be a vice. My point is simply that, at least within the bounds of standard political discourse, neither liberals or conservatives can claim anything approaching a monopoly on such virtues, and that dismissing one's opponents as bad, as opposed to merely mistaken on the merits, is a crude form of ad hominem.

Posted by: Anon | Jul 17, 2006 3:46:09 PM

This is really good. First, I quote your own words to you. In response, you insist that I "talk about what you said."

Let's try this one more time. You said "Liberal commentators go out of their way to see both sides, conservative commentators almost invariably advance the party line." You now concede that both sides are "obviously" biased, which I take to include yourself. But if so, you prior claim about the intellectual qualities of liberals and conservatives must be false, which is what I've been suggesting all along. Virtue and vice are not respecters of political ideology.

Posted by: Anon | Jul 17, 2006 11:58:13 AM

Both sides are biased, obviously. Try talking about what I said instead of what you'd like for me to have said.

Posted by: Bart Motes | Jul 16, 2006 9:15:42 PM

If you are a "liberal commentator" and thus "go out of your way to see both sides," then how can you (on pain of contradiction) dismiss conservative commentators as such as hopeless biased?

Posted by: Anon | Jul 16, 2006 11:01:02 AM

Speaking of dishonest, the "it's gotta be a joke" reply is right up there. Liberal commentators go out of their way to see both sides, conservative commentators almost invariably advance the party line. Do you have a substantive response?

Posted by: Bart | Jul 16, 2006 1:02:22 AM

"The right prioritizes loyalty and discipline, whereas the left prioritizes intellectual honesty and independence." This is a joke, right?

Posted by: Anon | Jul 15, 2006 9:46:35 AM

Eric Alterman points out here: http://www.msnbc.msn.com/id/13802919/#060712 uh, maybe.

Novak has been associated with a number of sketchy sourcing events in his career. The Boys on the Bus paints a picture of him as a weasely character thirty years ago--as opposed to David Broder, who comes across as an all-around good guy. So, you be the judge.

Also, while I don't think that conservatives are necessarily liars whereas their liberal counterparts are not, I think they *can be* more prone to lying, simply because of the cultural differences between left and right. The right prioritizes loyalty and discipline, whereas the left prioritizes intellectual honesty and independence. The result is that there is more of a stigma on the left for being dishonest in the cause of "the greater good."

Posted by: Bart Motes | Jul 14, 2006 11:45:38 PM


My comments have nothing to do with my political perspective. I'm not a fan of Novak's brand of social conservatism, which strikes me as obnoxious, but why would he lie about this incident? Moreover, why would he lie to a grand jury about it? Are social conservatives simply liars, whereas critics of the Bush administration are not?

Posted by: Anon | Jul 14, 2006 10:10:00 AM

Conservative Law Student,

I thought the new meme was that Bush is not a conservative and therefore his manifest, abject failures in every realm of governance are his alone and do not reflect back on the pure, crystaline goodness of the conservative movement?

Please Advise.

Faithfully yours,


P.S. Anon, I get a funny smile of my own whenever I hear the phrase "if Novak is to be believed."

Posted by: Bart Motes | Jul 14, 2006 2:13:17 AM

Come on guys. Aside from the dubious nature of the legal claims being asserted, isn't an even more fundamental issue that the plaintiff's don't really have a good faith basis for asserting either that (1) Plame's identity was genuinely a "secret" and (2) that any of the named defendants "leaked" that information to reporters who didn't already know it? If Novack is to be believed, for example, neither of those claims is true. I understand that Fitzgerald made some statements to that effect in his news conference, which the complaint duly recites, but that is hardly evidence. Moreover, it's more than a little instructive that no criminal charges were filed against anyone for "leaking classified informaiton." I get that these are factual questions but the entire premise of the complaint seems dubious, even if they manage to survive a motion to dismiss. I think Chemerinsky and company will end up being embarrassed.

Posted by: Anon | Jul 13, 2006 11:40:25 PM

P.S. See also my earlier post on the subject...

Posted by: Steve Vladeck | Jul 13, 2006 9:36:42 PM

Paul -- It's interesting: There really is very little case law about the _Vice_-President and those doctrines specific to the President. A lot of this came up during the National Energy Policy Development Group litigation two years ago, where the Supreme Court ducked [sorry] the deeper questions as to "Vice-Presidential Privilege" and whether the Vice President is also entitled to absolute immunity... Sitting Vice Presidents have even been indicted _before_ they were impeached.

For interesting background, see this OLC memo from 2000.

Posted by: Steve Vladeck | Jul 13, 2006 9:35:21 PM

On a closer (complete) read of the complaint, a couple more preliminary thoughts.

- Count 2 is very difficult. While the Supreme Court has said that there is a "class of one" equal protection claim, the reality is, there have basically been no cases where plaintiffs have actually recovered on that theory.

- Does anyone know anything about Count 3? I don't think I've ever heard of a fifth amendment right to be free from the disclosure of personal information having been the basis of a lawsuit.

- Count 4 is also very difficult. Did Plame actually have to leave her employment? (The complaint doesn't plead that.)

Honestly, I think all of the constitutional claims except the First Amendment one are stretching it a bit just on the face of things, without regard to the potential affirmative defenses, privileges, etc. The idea that there's a due process right to be free from government disclosure of your secret government affiliation is ... well... iffy. Even if the court finds that such a right exists, it's very unlikely that the right would be clearly establshed, such that the defendants can't get out from under Bivens liability with a qualified immunity defense. (That being said, it would still be a wonderful service to the country if they established that such a claim existed.)

I also think it was a major error on the plaintiffs' part to focus it on employment-related consequences. To the extent Plame was forced to leave her job, or suffered some other job-related injury, the CSRA defense I mentioned above will be a very serious hurdle.

Someone who knows more about it than me can comment on the executive privilege thing.

Posted by: Paul Gowder | Jul 13, 2006 9:28:51 PM

"Where Intellectual Honesty Has (Almost Always) Trumped Partisanship Since 2005"

Ya'll aren't even making any effort to be objective anymore!

Smile on my face, this is the best that you can do after Fitzmas failed to materialize.

On a serious note, law professors like Mr. Chemerinsky loose credibility with conservative students when they inject themselves into playground fights like this one.

What about these "legal trusts" that both parties have created (although the Wilsons from an offensive position)? I'd be interested to hear your thoughts on this creative litigation financing strategy.

A conservative law student

Posted by: Tounge in Cheek | Jul 13, 2006 7:40:50 PM

I think prawf can be understood as law prof only; the raw part of the term is unnecessary, especially when preceded by "uber."

Posted by: Dan Markel | Jul 13, 2006 7:31:55 PM

Not that I've ever fully understood what a "prawf" is, but my understanding is that you have to be "raw" -- that is, relatively new to the game. I don't think Chemerinsky qualifies under any definition.

Posted by: Ethan Leib | Jul 13, 2006 6:34:32 PM

There's an invitation I can't pass up. We'll all have to give some more thought to how they can be overcome, but there are some terribly obvious defenses that will certainly be raised. Just off the top of my head:

- Presidential immunity (does it apply to the VP? Almost certainly.) is the #1 shot.

- A good old-fashioned qualified immunity defense might come up.

- Probably most menacing, however, is a national security dismissal. Civil suits touching "national security" issues (including a case I was tangentially involved in, about which I won't say more) are falling to these motions left and right. The premise is that the government will have to disclose official secrets even to defend the suit. (Often raised by the government as intervenor in suits against individual officials.) See an ACLU blurb on the problem, which includes a link to one of their briefs on the issue.

More arcanely, the exclusive remedies under the Civil Service Reform act might preempt this Bivens claim. There's caselaw suggesting that this preemption is very broad, barring Bivens relief for anything even remotely connected with federal employment.

More thoughts later.

Posted by: Paul Gowder | Jul 13, 2006 5:59:52 PM

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