A Quick Guide to the Plame Civil Suit
I've been getting quite a few emails over the last few days asking for my take on the Joe Wilson/Valerie Plame civil suit. Given everything else that's been going on this past week, I've been focusing on other things, but I finally got around to reading the complaint.
Let's start by dispensing with some right wing disinformation. This is a civil suit, so the fact that Patrick Fitzgerald has not indicted anyone in connection with the underlying leak of Plame's identity is not particularly relevant. The Wilsons' claims have nothing to do with whether anyone violated the IIPA or Espionage Act. If you accidentally run me over in your car, you might not have committed a crime, but I can still sue you for damages. Civil claims and criminal charges are very different things. Moreover, in a civil suit the burden of proof is substantially lower. You need only prove your case by a preponderance of the evidence (i.e., more likely than not); you don't need to prove anything beyond a reasonable doubt.
The prevailing talking point among the right wing crowd is that Fitzgerald's decision not to indict Rove or Libby for the underlying leak establishes conclusively that neither man did anything wrong, that this is all a big non-story. But a prosecutor's decision not to indict someone means no such thing. All it means is that 1) he doesn't think he can prove beyond a reasonable doubt that the individual committed the crime, or 2) he thinks he can prove the case, but is nevertheless exercising his discretion not to bring charges.
It's not clear which of these is the case here, but either way, the lack of a criminal indictment is hardly dispositive of the underlying issues. For instance, it's readily apparent from reading Libby's indictment that Fitzgerald believes Libby committed perjury and obstruction of justice in order to cover up underlying wrongful conduct either by himself or his boss, the Vice President. And every indication is that the decision not to indict Karl Rove was a very close call. In other words, there is plenty of reason to believe that Cheney, Libby, and Rove's conduct in this affair was not entirely on the up-and-up.
That said, I'm not sure I follow the basic 'plot' of the Wilson's civil claims. In a civil suit, no matter what type, you have to establish a causal connection between the wrongful behavior you're alleging and the injury you claim to have suffered.
Let's assume for the moment that Bob Novak's disclosure of Plame's identity caused legally cognizable damages to the Wilsons. The person most directly responsible for those damages (other than Bob Novak) is Novak's original source. The problem, however, is that neither Cheney, Libby, nor Rove was Novak's original source. Rather, the consensus seems to be that Novak's source was Richard Armitage.
While Libby appears to have leaked Plame's identity to a number of reporters, perhaps at the behest of Cheney, these leaks did not lead to publication. So unless the Wilsons can establish that Cheney and Libby were somehow in cahoots with Armitage (or whoever Novak's source was), it will be very difficult to establish the necessary causal link.
Because Rove was one of Novak's confirming sources, the causal link is a little stronger in his case, but still, if it ever reaches that point, his attorneys will undoubtedly argue that the lion's share of the blame lies with Novak's original source.
But focusing on these issues is really putting the cart before the horse. After all, we don't really know the whole story. The real question is whether any of the Wilsons' claims can survive the initial volley of motions to dismiss and get to the discovery stage.
The Wilsons have retained very good attorneys, including a professor who is an expert on constitutional law issues, and undoubtedly a lot of thought went into the structuring of their complaint. But these claims chart untested legal waters. The attorneys for the defendants will undoubtedly file a 12(b)(6) motion, arguing that the Wilsons have failed to state a claim upon which relief may be granted. In other words, they'll argue that even if everything the Wilsons allege is true, they have not stated a valid cause of action. Lawyers for the plaintiffs and defendants will argue back and forth over issues of sovereign immunity, constitutional law, and plain old tort law. And all this motion practice could take a while.
But if some or all of the Wilsons' claims survive this process, things will really start to get interesting. At that point, the Wilsons would seek to proceed with discovery, which would no doubt include attempts to depose all the key players, including Rove, Libby, Cheney, and perhaps even the President himself. Attorneys for the subpoenaed individuals would likely file motions to limit, postpone, or even quash discovery. The Justice Department might well intervene on state secrets grounds. And Patrick Fitzgerald might seek to suspend discovery in the case pending resolution of Libby's criminal prosecution (I'm not sure how that would work, to be honest, but I suspect there's a way).
If discovery is allowed to proceed, the attorneys for the defendants will fire back with deposition subpoenas of their own. Besides the obvious targets of Joe and Valerie Wilson, the defendants would likely seek to depose other key players such as Richard Armitage, Colin Powell, Marc Grossman, Ari Fleischer, etc. If it gets to that point, expect everyone even remotely related to this story to get subpoenaed by one side or the other.
I personally would pay good money for a ringside seat to Dick Cheney's deposition. If it happens, it just might be the most contentious deposition of all time.
Speaking of which, I've noticed that a number of right wing bloggers are salivating at the idea of Joe Wilson being subjected to a deposition. Wilson might indeed find such a deposition to be an unpleasant experience (most people do). But he's surely aware that if this case gets to that stage, he'll be deposed, and yet he elected to proceed with the suit anyway. I think he's wagering that however uncomfortable the situation is for him, it would be far more uncomfortable for the defendants. And he's probably right. Although he's a high-profile figure now, Wilson is not subject to the same political pressures as Rove, Libby, and Cheney. And he doesn't have any collateral criminal consequences to worry about or grand jury testimony to worry about contradicting. The worst he'll suffer is a wounded ego.
Long story short (too late, I know) if this suit manages to make it to the discovery stage, anything can happen. A lot of dirty laundry might finally be aired out, and who knows what that might lead to. Before we get to that point, however, there are any number of obstacles that the Wilsons' attorneys must successfully negotiate. This suit implicates so many different (and extraordinarily complex) areas of the law, that it is almost impossible to know how likely it is to reach that next, all important stage. It will certainly be interesting to see how this develops, though.
Let's start by dispensing with some right wing disinformation. This is a civil suit, so the fact that Patrick Fitzgerald has not indicted anyone in connection with the underlying leak of Plame's identity is not particularly relevant. The Wilsons' claims have nothing to do with whether anyone violated the IIPA or Espionage Act. If you accidentally run me over in your car, you might not have committed a crime, but I can still sue you for damages. Civil claims and criminal charges are very different things. Moreover, in a civil suit the burden of proof is substantially lower. You need only prove your case by a preponderance of the evidence (i.e., more likely than not); you don't need to prove anything beyond a reasonable doubt.
The prevailing talking point among the right wing crowd is that Fitzgerald's decision not to indict Rove or Libby for the underlying leak establishes conclusively that neither man did anything wrong, that this is all a big non-story. But a prosecutor's decision not to indict someone means no such thing. All it means is that 1) he doesn't think he can prove beyond a reasonable doubt that the individual committed the crime, or 2) he thinks he can prove the case, but is nevertheless exercising his discretion not to bring charges.
It's not clear which of these is the case here, but either way, the lack of a criminal indictment is hardly dispositive of the underlying issues. For instance, it's readily apparent from reading Libby's indictment that Fitzgerald believes Libby committed perjury and obstruction of justice in order to cover up underlying wrongful conduct either by himself or his boss, the Vice President. And every indication is that the decision not to indict Karl Rove was a very close call. In other words, there is plenty of reason to believe that Cheney, Libby, and Rove's conduct in this affair was not entirely on the up-and-up.
That said, I'm not sure I follow the basic 'plot' of the Wilson's civil claims. In a civil suit, no matter what type, you have to establish a causal connection between the wrongful behavior you're alleging and the injury you claim to have suffered.
Let's assume for the moment that Bob Novak's disclosure of Plame's identity caused legally cognizable damages to the Wilsons. The person most directly responsible for those damages (other than Bob Novak) is Novak's original source. The problem, however, is that neither Cheney, Libby, nor Rove was Novak's original source. Rather, the consensus seems to be that Novak's source was Richard Armitage.
While Libby appears to have leaked Plame's identity to a number of reporters, perhaps at the behest of Cheney, these leaks did not lead to publication. So unless the Wilsons can establish that Cheney and Libby were somehow in cahoots with Armitage (or whoever Novak's source was), it will be very difficult to establish the necessary causal link.
Because Rove was one of Novak's confirming sources, the causal link is a little stronger in his case, but still, if it ever reaches that point, his attorneys will undoubtedly argue that the lion's share of the blame lies with Novak's original source.
But focusing on these issues is really putting the cart before the horse. After all, we don't really know the whole story. The real question is whether any of the Wilsons' claims can survive the initial volley of motions to dismiss and get to the discovery stage.
The Wilsons have retained very good attorneys, including a professor who is an expert on constitutional law issues, and undoubtedly a lot of thought went into the structuring of their complaint. But these claims chart untested legal waters. The attorneys for the defendants will undoubtedly file a 12(b)(6) motion, arguing that the Wilsons have failed to state a claim upon which relief may be granted. In other words, they'll argue that even if everything the Wilsons allege is true, they have not stated a valid cause of action. Lawyers for the plaintiffs and defendants will argue back and forth over issues of sovereign immunity, constitutional law, and plain old tort law. And all this motion practice could take a while.
But if some or all of the Wilsons' claims survive this process, things will really start to get interesting. At that point, the Wilsons would seek to proceed with discovery, which would no doubt include attempts to depose all the key players, including Rove, Libby, Cheney, and perhaps even the President himself. Attorneys for the subpoenaed individuals would likely file motions to limit, postpone, or even quash discovery. The Justice Department might well intervene on state secrets grounds. And Patrick Fitzgerald might seek to suspend discovery in the case pending resolution of Libby's criminal prosecution (I'm not sure how that would work, to be honest, but I suspect there's a way).
If discovery is allowed to proceed, the attorneys for the defendants will fire back with deposition subpoenas of their own. Besides the obvious targets of Joe and Valerie Wilson, the defendants would likely seek to depose other key players such as Richard Armitage, Colin Powell, Marc Grossman, Ari Fleischer, etc. If it gets to that point, expect everyone even remotely related to this story to get subpoenaed by one side or the other.
I personally would pay good money for a ringside seat to Dick Cheney's deposition. If it happens, it just might be the most contentious deposition of all time.
Speaking of which, I've noticed that a number of right wing bloggers are salivating at the idea of Joe Wilson being subjected to a deposition. Wilson might indeed find such a deposition to be an unpleasant experience (most people do). But he's surely aware that if this case gets to that stage, he'll be deposed, and yet he elected to proceed with the suit anyway. I think he's wagering that however uncomfortable the situation is for him, it would be far more uncomfortable for the defendants. And he's probably right. Although he's a high-profile figure now, Wilson is not subject to the same political pressures as Rove, Libby, and Cheney. And he doesn't have any collateral criminal consequences to worry about or grand jury testimony to worry about contradicting. The worst he'll suffer is a wounded ego.
Long story short (too late, I know) if this suit manages to make it to the discovery stage, anything can happen. A lot of dirty laundry might finally be aired out, and who knows what that might lead to. Before we get to that point, however, there are any number of obstacles that the Wilsons' attorneys must successfully negotiate. This suit implicates so many different (and extraordinarily complex) areas of the law, that it is almost impossible to know how likely it is to reach that next, all important stage. It will certainly be interesting to see how this develops, though.
posted by A.L. at 5:32 PM
5 Comments:
Thank you for your prospective analysis. The Republican noise machine has the m asses cheering for the perpetrators and holding the victims in contempt. The MSM is almost completely disinterested. I'm glad there are people like you that think a lttle justice would go a long way at this pont in our nation's history.
Excellent analysis. I especially loved the part about Cheney's deposition.
Even a right wing blog has written that there is more potential downside here for the Bush Administration than there is for Wilson. But I think that this case will be dismissed.
I would love to see Wilson deposed. Although the rightwingers keep insisting otherwise, nothing he has said (that I'm aware of) has turned out to be a lie.
Some things can be twisted to be lies; some beg for clarification. But I have yet to hear anyone show that he said something untruthful in this entire mess.
There are 10 "John Does" named in the filing. Perhaps Armitage is one of them?
I want to excerpt two bits of the suit here:
34. On information and velief, the principal means of punishing Mr. Wilson for his public statements, both oral and written, was to disclose to selected reporters the classified CIA identity of his wife, Plaintiff Valerie Wilson... An integral part of their scheme was the identification of Mrs. Wilson as a classified CIA employee. ?
and
Pursuant to, and in furtherance of, this common scheme, defendants Rove and Libby unlawfully disclosed to members of the press Plaintiff Valerie Wilson's classified CIA employment.
The second excerpt especially ties back to your accurate point that we can't conclude that Fitzgerald's failure to indict proves that no crime was committed.
However - does it also mean that the Wilson's are taking it upon themselves to prove an IIPA violation where Fitzgerald could not (subject to a lower civil evidentiary threshold?)
Or do they need to find some other law that was broken by the leak to Novak and others, what might it have been, and why didn't Fitzgerald charge under it? (The Espionage Act comes to mind, I guess).
And in those cases, and for the punishment theory described in the first paragraph to make sense, the defendants need to have known that Ms. Plame's status was classified. However, it is highly likely that Fitzgerald was not able to prove that knowledge (E.g., Libby testified he was not aware of her classified status and did not get hit for perjury on that very signifiant point).
Tom Maguire
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