Valerie Plame's Lawsuit Against Vice President Cheney, I. Lewis "Scooter" Libby and Karl Rove: Was It a Good Idea, Or a Bad One?

By MATTHEW R. SEGAL
Friday, Jul. 21, 2006

Nearly three years after columnist Robert Novak publicly disclosed her CIA affiliation, former operative Valerie Plame Wilson and her husband, former envoy Joseph C. Wilson IV, have sued the Bush Administration officials they hold responsible for leaking Plame's identity to Novak: Vice President Dick Cheney, Cheney's former Chief of Staff I. Lewis "Scooter" Libby, and presidential advisor Karl Rove. The Wilsons allege that Cheney, Libby and Rove engaged in a "whispering campaign" to punish Plame and Wilson for Wilson's public criticisms of the Administration's case for war in Iraq.

The complaint alleges that the disclosure of Plame's CIA status short-circuited Plame's career, violated Plame's and Wilson's privacy, and exposed the couple to possible attack by America's enemies (who now know that Plame was a CIA operative). Although the suit seeks money damages, its main goal may well be to subject the defendants to civil discovery, which could provide key details about their conduct in allegedly leaking Plame's identity to the press.

Although this conduct is also the subject of the Special Counsel's grand jury investigation, grand jury secrecy rules apply there. But different rules apply in the civil discovery context--where defendants must apply for special court orders if they want to keep secret discovery materials that could otherwise be publicly filed as attachments to motions.

Is the Plame suit a good idea, or a mistake? On one hand, subjecting top executive branch officials to burdensome civil litigation is a potentially costly and very circuitous way to learn about what those officials told the press. On the other hand, it may be Plame and Wilson's only option right now. If, three years ago, Cheney, Libby, and Rove had simply told the public the truth about their conduct, Plame and Wilson might not now be seeking clever and imperfect ways to reveal that truth.

The Special Counsel Investigation: Its Progress and Current Status

Depending on whom you believe, the disclosure of Valerie Plame's CIA affiliation amounts either to nothing at all, or to a vast, high-level conspiracy to silence a whistleblower.

As readers may recall, Novak's July 14, 2003, column revealing that affiliation appeared only eight days after Joseph Wilson, writing in the New York Times, had criticized the Bush Administration's claim that Saddam Hussein had sought to purchase yellowcake uranium from Niger. Specifically cited by the President, this claim was an important component of the Administration's case for going to war.

Novak's column suggested that Plame had used her CIA connection to help initiate her husband's trip to Niger, implying that Wilson was not qualified to assess the yellowcake claim. Novak's sources for the information were identified in the column only as two senior Administration officials.

The Plame suit alleges that her identity was disclosed to reporters as revenge against Wilson's criticism, not because it might be newsworthy. (Administration defenders suggest, however, that it was newsworthy precisely because it properly cautioned readers to take Wilson's views with a grain of salt, and because these views concerned a matter of intense public importance: The justification for initiating the Iraq war.)

On July 12 of this year--one day before Plame and Wilson filed their lawsuit, and about three years after his initial column's publication--Novak published a new column, purporting to show that there was no conspiracy to out Plame. In it, he asserted that though Karl Rove was one of his sources for the initial, 2003 column, his "principal source"--whom he still refuses to name--was not a "political gunslinger," but instead someone who had inadvertently mentioned Plame "in the middle of a long interview." (Some observers, such as Vanity Fair and Slate columnist Christopher Hitchens, suspect that this source was then-Deputy Secretary of State Richard Armitage--who, indeed, is not known as a Republican political hack, but would surely have qualified as a senior Administration official.)

The Flagging Special Counsel Investigation May Have Prompted the Lawsuit

The combination of Novak's new column and the lack of fresh developments in the Special Counsel investigation may have convinced the Wilsons to sue. So far, that investigation has resulted only in the indictment of Scooter Libby, and the charges against him are somewhat odd and limited.

According to the indictment, Libby learned about Plame's CIA affiliation from Cheney (among others) and repeated that information to reporters. But the indictment does not allege that this disclosure violated the law. Instead, it charges Libby with obstructing the investigation and lying to the grand jury and investigators about what really happened. In addition, the Special Counsel has not indicated how many times Plame's name was leaked to the press, or what the leakers understood about her classified status.

No wonder, then, that the Wilsons may be frustrated. Indeed, they may have timed their suit to reinvigorate this flagging scandal (as well as to avoid a potential statute-of-limitations problem).

Evaluating Criticisms of Plame and Wilson: Are They Fair?

Because the lawsuit's purpose and timing appear to be strategic, Plame and Wilson have faced claims that they are seeking to drag top officials into court just for the sake of publicity. CNN's Jeffrey Toobin ranked the lawsuit "somewhere between an actual lawsuit and a publicity stunt."

But is there anything wrong with that? Lawsuits are often designed to bring public attention to a perceived wrong, and it's not unusual that the wrong may be corrected as a result of publicity instead of, say, a monetary damages award. Here, Plame and Wilson want the Bush Administration to face public scrutiny for allegedly working behind the scenes to punish them personally for Wilson's whistleblowing.

Critics also doubt the merits of the suit. For instance, the Boston Herald's editorial page recently argued that because Plame made public appearances and signed a book deal after being outed, she somehow has waived her privacy rights. But this criticism is very weak. If the lawsuit's allegations are true, trading a CIA operative career for a book deal was hardly a choice Plame made voluntarily; it was thrust upon her. Earlier, Plame had chosen one of the least public career paths possible.

Finally, the personal nature of these attacks on the Wilsons--styling them as eager publicity hounds--is richly ironic. After all, a key point in the Wilsons' suit is that arguments should be on the merits, not ad hominem: That is, they wish the Administration had listened more carefully to Wilson's views on the uranium, rather than belatedly mounting a personal attack on him for voicing those views.

Could This Suit Succeed? The Stumbling Block of Official Immunity

Should the Wilsons' lawsuit succeed on the merits? Dragging a sitting Vice President and other top officials into a civil action would arguably interfere with their official duties and tie up public resources. After all, many now believe the Supreme Court erred in allowing the Paula Jones case to go forward--and the conduct alleged in that case, dating back to Clinton's time in Arkansas, was far afield from official Presidential duties. Suits like the Wilsons' raise the specter of literally dragging ongoing Presidencies (and even wars) into court.

Fortunately, the Court has different rules for conduct that is public, and not private. Thus, Cheney can argue that vice presidents should be immune from suit under the doctrine of Nixon v. Fitzgerald, a 1982 decision recognizing "absolute Presidential immunity from damages liability for acts within the 'outer perimeter' of his official responsibility." Here, even if Cheney did act improperly, he did so in his capacity as one of the Administration's chief advocates for war in Iraq. This capacity probably falls within the "outer perimeter" of Cheney's official responsibilities, which means Cheney arguably should be entitled to immunity.

Winning a suit against Libby and Rove might also be an uphill battle. Because Libby and Rove are public officials, the Wilsons can't win unless they can show Libby and Rove violated their constitutional rights. That won't be easy.

The lawsuit alleges, for example, that the defendants violated the First Amendment by disclosing Plame's identity as retaliation for Wilson's criticism of the Administration. But, as Akhil Reed Amar has observed in Slate, the alleged retaliation was itself speech arguably protected by the First Amendment. In the end, it's probably a stretch to say that a third-party's constitutional rights can be violated simply by talking to reporters--even if classified information about the third party is disclosed.

Discovery Might Succeed Even If the Lawsuit Itself Fails--But Should It?

But even if the lawsuit were ultimately to be dismissed, some civil discovery might happen before then--meaning the defendants will have to answer interrogatories, produce documents, and give sworn deposition testimony.

That seems to be just what the Wilsons are hoping for. In a July 17 interview with MSNBC's Keith Olbermann, for instance, Joseph Wilson conceded that, in light of Novak's recent column, Novak's initial disclosure of Plame's identity might not have been the result of a plot to out her. But he also insisted that some in the Administration did tell reporters about Plame's CIA affiliation as part of a "vendetta." "Hopefully when we go through discovery we'll be able to learn some of this," he said.

Leveraging a lawsuit of questionable merit merely to force discovery is rarely a defensible strategy. Here, it's even less defensible, as this is a suit against busy, high-ranking officials. The Supreme Court has pointed out--in the 1991 case of Siegert v. Gilley--that one reason to protect officials from suit is simply to spare them "unwarranted demands customarily imposed upon those defending a long drawn out lawsuit."

The trial judge will have some leeway here--and may opt to conduct discovery in stages, or on some other limited basis, to lessen the burden on the defendants. But the time may well come when discovery goes forward, and the costs the Court described are indeed incurred.

If Officials Had Only Told the Truth, There Would Be No Need for the Suit

In the end, though, who is at fault for those costs? Plame and Wilson surely have resorted to an imperfect method of learning the truth only because, for the past three years, Administration officials have decided not to reveal it. (The Administration's secrecy must be particularly frustrating to those who believe that there was no vendetta to disclose Plame's identity and, consequently, nothing to hide.)

President Bush said in September 2003 that he wanted "to know the truth." And the public deserves to know it too--because Administration officials may have committed crimes, and, more fundamentally, because this case is connected to the justification for the war that costs us lives, and dominates our politics now. Ironically, then, the same connection that may be the ground for the official immunity that may let Cheney, Libby and Rove off the hook, shows exactly why they should have told the public the truth from the beginning.

Consider Nixon v. Fitzgerald, the Court's key official-immunity decision. It held that such immunity does not put anyone "above the law" because immunized officials, though protected from civil liability, do remain subject to political checks, such as "scrutiny by the press" and "oversight by Congress." But that's true only if those political checks work--and if the relevant officials keep their conduct secret from Congress and the public, they won't.

In sum, there is indeed plenty to dislike about the lawsuit filed by Plame and Wilson. But there is also plenty to dislike about the conduct of the Administration officials whose failure to level with the public brought us to this point.


Matthew R. Segal is an attorney at Robbins, Russell, Englert, Orseck & Untereiner LLP in Washington, D.C. The opinions expressed in this column are his alone. His email address is matthew.segal@yahoo.com.

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