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  • Friday, July 14, 2006


    Wilson v. Libby, Rove, Cheney et al.

    Valerie Plame Wilson and Joseph C. Wilson IV, on July 13, 2006, filed a civil lawsuit in the U.S. District Court for the District of Columbia (Case No. 1:06-cv-01258-JDB) against Scooter Libby, Karl Rove, Vice President Dick Cheney and 10 unnamed government officials.

    A lot of misinformation has been published in the MSM and the blogosphere concerning this lawsuit. I would like to try to comment on a few aspects of the lawsuit in a more objective manner.

    Who is the Judge?

    The case appears to have been assigned to U.S. District Judge John D. Bates, a former Deputy Independent Counsel for the Whitewater Investigation from 1995 to 1997, who was appointed to the bench in December 2001 and, since February 2006, also serves as a judge on the FISA court. This is not a judge one would expect to be overly friendly to Wilson and Plame's position.

    Who Are The Attorneys for Wilson and Plame?

    The attorneys who filed the lawsuit are not some 14th Street ambulance chasers looking to cash in on a big contingent fee. Appearing on the Complaint as counsel of record for Plame and Wilson are three attorneys from the law firm of Proskauer Rose LLP, one of the nation's largest law firms, with its main office in New York City. Joining Proskauer as counsel is Professor Erwin Chemerinsky, a very well known and highly respected scholar of constitutional law who is currently a professor at Duke University School of Law. Chemerinsky has written several casebooks and treatises on constitutional law and federal jurisdiction, hundreds of law review articles that have appeared in all of the major law journals, and in April 2005, was named by Legal Affairs as one of “the top 20 legal thinkers in America.” Chemerinsky has argued numerous cases before the Supreme Court of the United States. Say what you want about Plame and Wilson, but the attorneys who prepared and filed this lawsuit on their behalf did not just fall off a turnip truck, and they are intelligent, skilled, and experienced enough to craft a complaint that will not subject them to sanctions for filing a factually or legally frivolous lawsuit. Speculate all you want as to the political and financial motivations for the filing of this lawsuit, but I strongly doubt these attorneys would risk their professional reputations or their personal or firm's finances on a lawsuit that is so legally flawed or factually unsupported that it would result in them being sanctioned by the Court.

    It should be noted, however, that Christopher Wolf, the Proskauer partner who is lead counsel, has been Wilson and Plame's next door neighbor and close personal family friend for the past eight years. In addition, Wolf appears to be politically connected to former Clinton administration officials and has personally made donations to Democratic candidates.

    How Are Wilson and Plame's Attorneys Being Paid?

    It is highly doubtful the attorneys involved would take a case like this on a contingency. Three characteristics of contingency cases are potential class action status, the potential for a huge damages award, and the lawyers view establishing liability as a "slam-dunk" or close to it. These characteristics do not appear to be present in this case. There is no class action involved. The amount of potential damages does not appear to be huge. Whatever else the attorneys may think about this case, it is highly doubtful they view it as a "slam-dunk" as to liability or anything close.

    Wilson and Plame do not appear to be financially-destitute or penurious and have established and publicized the existence of a fund and a website for the purpose of receiving contributions toward their attorneys' fees. These facts appear to preclude the notion that the attorneys have taken the case pro bono. Even if Wolf is Wilson and Plame's neighbor and friend, Proskauer is unlikely to allow Wolf to commit the services and resources of his firm for free. The Proskauer attorneys typically bill their clients anywhere between $400-800 per hour and are probably billing Wilson and Plame at their customary hourly rates and keeping detailed time records, as they usually do. I confess I am not familiar with the type of fee arrangements utilized by high profile law professors like Chemerinsky when they represent clients outside of their law school employment. Given the political subject matter of the lawsuit, it is certainly possible, or even likely, that Wilson and Plame may have received or been pledged, or will receive, financial backing for their attorneys' fees and court costs from liberal financiers or foundations, just as Paula Jones received such aid from conservative financiers or foundations. I have not heard anything yet to substantiate or disprove this. The actual fee arrangement pursuant to which the attorneys agreed to this representation is not likely to be disclosed and would not be subject to discovery unless and until such time as Wilson and Plame were to prevail on their claims and seek recovery of their attorneys' fees and court costs as prevailing parties in the lawsuit.

    What Are Wilson And Plame's Legal Claims?

    In summary, Wilson and Plame allege that Libby, Rove, Cheney, and ten unnamed government officials or political operatives (John Does 1-10) violated their First and Fifth Amendment constitutional rights, and their common law privacy rights, by conspiring to discredit, punish, and seek revenge against Wilson for making public statements perceived to be critical of the Bush Administration and that Libby and Rove acted in furtherance of this conspiracy by disclosing to various media reporters Plame's secret and classified status as a CIA employee. Wilson and Plame allege they were both significantly damaged by the public disclosure of Plame's classified status as a CIA employee.

    Don't Libby, Rove, and Cheney Have Automatic Immunity From Suit Since They Were Government Officials Acting Within the Scope of Their Employment?

    No. In the first four counts of the Complaint, Libby, Rove, and Cheney are being sued as individuals, under what is known as the Bivens doctrine, for allegedly depriving Wilson and Plame of certain constitutional rights. In Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the United States Supreme Court held that a cause of action for money damages exists against agents of the United States, in their individual capacities, for conduct in violation of the Fourth Amendment while acting under color of law. The right to recover exists although no statute establishes it - it is a judicially created cause of action. In Carlson v. Green, 446 U.S. 14 (1980), the Court noted that punitive damages "are especially appropriate to redress the violation by a government official of a citizen's constitutional rights" and reiterated the plaintiff's right to a jury trial in Bivens actions.

    While Bivens itself dealt only with the Fourth Amendment, the Court subsequently allowed Bivens claims arising under the Fifth Amendment. See Davis v. Passman, 442 U.S. 228, 248-249 (1979). The Third Circuit Court of Appeal extended the action to encompass First Amendment claims. See Milhouse v. Carlson, 652 F. 2d 371, 373-74 (3d Cir. 1981). In essence, Bivens claims may arise out of virtually any deprivation of a constitutionally protected right. The rationale of Bivens is to deter unconstitutional conduct by exposing individual officers to liability for their constitutional torts. See generally, Note, New Life for a Good Idea: Revitalizing Efforts to Replace the Bivens Action with a Statutory Waiver of the Sovereign Immunity of the United States for Constitutional Tort Suits, 71 Geo. Wash. L. Rev. 1055 (November 2003).

    Doesn't Special Prosecutor Fitzgerald's Failure to Indict Libby and Rove For Violating the Intelligence Identities Protection Act Necessarily Preclude Wilson and Plame's Civil Action?

    No. In order to establish a violation of Title 50, United States Code, Section 421 [the Intelligence Identities Protection Act], it would be necessary to establish that Libby or Rove knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. Apparently, the Special Prosecutor was not able to find evidence that Libby or Rove knew or believed that Plame was engaged in covert work.

    None of the claims contained in the civil action filed by Wilson and Plame are predicated on an alleged violation of 50 U.S.C. sec. 421. Instead, Wilson and Plame are claiming that Plame's status as a CIA employee was secret and classified and not publicly known until revealed for the first time in Novak's July 14, 2003 newspaper column. Wilson and Plame are claiming that Libby and Rove's disclosure to reporters of Plame's classified CIA employment status in furtherance of a conspiracy involving Cheney and others to discredit, punish, and seek revenge against Wilson for speaking out against the Bush Administration violated their constitutional and common law rights and caused them economic losses and fears for their and their childrens' safety.

    Therefore, in order to prevail on their civil claims, Wilson and Plame will not be required to prove Plame was a "covert" operative, only that her CIA employment status was classified, a fact that Fitzgerald announced at an October 28, 2005 press conference. Of course, this is not all Wilson and Plame will be required to prove in order to prevail on their civil claims. The point here is that Wilson and Plame will not have to meet the same standard with regard to Plame's CIA status as was required to be met by Special Prosecutor Fitzgerald in order to bring criminal charges against Rove and Libby for violating 50 U.S.C. sec. 421.

    Count Two of Wilson and Plame's Complaint Alleges a Violation of the Fifth Amendment Right to Equal Protection of the Laws, but the Fifth Amendment Does Not Contain an "Equal Protection" Clause. Doesn't This Show Wilson and Plame's Attorneys Are Stupid?

    No. The Fifth Amendment Due Process clause, although not expressly containing "equal protection" language, has been interpreted by the U.S. Supreme Court to afford the same protection as the 14th Amendment equal protection clause.

    Thus, in Bolling v. Sharpe, a companion case to Brown v. Board of Education, the Court held that segregation of pupils in the public schools of the District of Columbia violated the due process clause. ''The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The 'equal protection of the laws' is a more explicit safeguard of prohibited unfairness than 'due process of law,' and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process."

    ''Equal protection analysis in the Fifth Amendment area,'' the Court has said, ''is the same as that under the Fourteenth Amendment.'' So saying, the court has applied much of its Fourteenth Amendment jurisprudence to strike down sex classifications in federal legislation, reached classifications with an adverse impact upon illegitimates, and invalidated some welfare assistance provisions with some interesting exceptions.

    In sum, the fact that the Fifth Amendment does not contain an express equal protection clause does not mean that the Fifth Amendment does not prohibit violations of equal protection.

    Is There Precedent For Any of Wilson and Plame's Legal Claims?

    For anyone who would like some insight into the law relating to Wilson and Plame's First Amendment retaliation claim in Count One of their Complaint, and the standards governing a good-faith or qualified immunity defense that may be asserted by Cheney, Rove, and Libby, check out the decision in Blankenship v. Manchin, 410 F. Supp. 2d 483 (S.D.W.V. 2006), in which a similar claim of free speech retaliation against the Governor of West Virginia in his individual capacity survived a Rule 12(b)(6) motion (meaning the claim was allowed to proceed to the discovery phase at least). Interestingly, one of the attorneys for the Plaintiff in that case was none other than Robert D. Luskin, who is Libby's attorney now.

    Will Wilson and Plame's Lawsuit Be Immediately and Summarily Dismissed and Thrown Out of Court?

    None of my comments have been intended to imply that I think Wilson and Plame will "win" this lawsuit. I'm certain Wilson and Plame's lawyers, if asked, would have refused to guarantee or even predict that they will "win."

    Based on my review of Wilson and Plame's Complaint, and a very cursory review of the applicable law, I do believe the Complaint does not violate Rule 11 (imposing sanctions for frivolous lawsuits), and I believe at least one of the Complaint's eight counts would survive a Rule 12(b)(6) motion. In other words, leaving aside the ultimate merits of the case, it does not appear that Wilson and Plame's lawsuit will be automatically and summarily thrown out or laughed out of court.

    However, I have not yet looked into and have not formed any opinion on whether and to what extent the case might be stayed pending the resolution of the criminal case against Libby, or whether or to what extent Vice President Cheney might be excused from responding to a civil lawsuit while he remains in office.

    That's a fair synopsis. I'd agree that the plaintiffs are unlikley to face Rule 11 sanctions and that there is some possibility at least one claim might survive a motion to dismiss.

    Speculating about fee arrangements, bear in myind the unusual circumstances. this case gets evaluated differently than a run of the mill claim for damages because of the publicity and the attendant benefits that brings the firm. I'd bet the deal is that the Wilsons are not expected to provide any of their own money but simply will work to raise funds and that the firm believes that the enough funds will be raised to justify the case in light of the indirect benefits even if the ultimate payment to the firm is not close to its normal fees.

    I'd offer:

    Blankenship v. Manchin presents a very different factual background simply in terms of allegations (allegations in the complaint must be assumed true by the Court at the 12 (b) stage) because Blankenship alleges not merely that Manchin retaliated by SAYING things about Blankenship but that he directed government agencies to take adverse regulatory action against a company of which he is CEO.

    Therefore, in deciding Manchin's 12 (b)(6)motion the judge had to decide on the basis that adverse rgulatory action not mere speech was the basis for claim of a civil rights violation.

    In the Wilson case that does not exist. The court in wilson has to assume the allegations are true but he must find that the retaliation complained unlawfully violated a protected right of the plaintiffs.

    It would seem that in the absence of a violation of a stayute that will be very difficult. Public officials in neither their public or private capacities are forbidden from merely saying negative things about people even for purposes of political retaliation.

    I do think there is some possibility that Plame can perhaps get a court to agree she has stated a claim upon which relief can be granted based on a vilation of IIPA and, arguably, interference with her government employment. I do not see anything that would likely support a finding wilson has stated a claim upon which relief can be granted.

    But, as to Plame I do not see how she could possibly prevail without establishng a statute was in fact violated. The common law claims appear to be very weak.
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