Does the Plame Lawsuit Have a Chance?

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Lots of legal experts greeted the Valerie Plame lawsuit against Vice President Cheney and White House senior officials Karl Rove and I. Lewis Libby with skepticism, largely because it will have to overcome an almost certain argument that Cheney and company are, as federal officials, immune to being sued for on-the-job behavior. But the argument to dismiss the lawsuit outright isn’t so simple to make.

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The general idea of executive immunity is that White House officials should be free to do their jobs without worrying about getting sued for any missteps, and without having to spend time defending themselves rather than serving the public. The key here is “do their jobs,” and while dalliances with White House interns clearly don’t qualify (sorry, Bill), there’s a decent debate to be had over whether certain policy conversations with members of the media do.

Filed yesterday with the U.S. District Court in Washington, the complaint accuses Vice President Dick Cheney, former top aide I. Lewis “Scooter” Libby, and presidential adviser Karl Rove of violating the couple’s rights to free speech, privacy and equal protection by conspiring to reveal Plame’s CIA identity, ostensibly in revenge for Wilson’s criticisms of the reasons for the Iraq war. The filing came on the same day that Robert Novak, whose syndicated column first reported that Plame was with the CIA, revealed that Rove was one of his sources for the information.

The Supreme Court has ruled that Presidents have immunity and that cabinet officers have “qualified immunity,” meaning that they cannot be sued unless, for example, they violated someone’s constitutional rights and had a pretty good idea they were doing so. That leaves open the question of whether Vice Presidents get immunity, but the consensus among constitutional scholars is that they do, so Cheney lucks out. As behind-the-scenes guys, Rove and Libby probably get only qualified immunity, which means they’ll have to show that the complaint fails to state any legal claims, if they want to get rid of it quickly.

And they may succeed on some counts. Plame and Wilson contend, for example, that the Administration violated their free-speech rights by taking “retaliatory action” after Wilson, a former U.S. ambassador to several nations, wrote an op-ed piece questioning a central reason for attacking Iraq: President Bush’s claim that Iraq tried to buy uranium from Niger to make a nuclear weapon. Presumably, the retaliation was the outing of Plame as a CIA official, but there’s room to debate how much harm came of that act. She didn’t lose her job or get demoted or suffer any other obvious damage. And even if the outing violated federal law (and there’s still no evidence that it did), that wouldn’t make it unconstitutional. So “the claim is much weaker than the typical claim” of harming speech through retaliation, says Eugene Volokh, a constitutional law professor at UCLA law school. If the judge believes the claim is weak enough, he will throw it out.

Plame argues that the Rove crew violated her constitutional right to privacy by revealing the nature of her job. But as Volokh points out, in Supreme Court jurisprudence, such privacy violations have involved embarrassing information, like sexual antics or medical conditions. The disclosure of Plame’s occupation may have been illegal, but it was probably not an unconstitutional intrusion on her privacy.

Which is not to say that the couple has no case. On several of their claims — that “vindictiveness and illegitimate animus” caused the Administration to treat them differently from others in similar positions, for example, or that the defendants wrongfully disclosed a private fact about Plame — there may be enough ambiguity about what really happened to propel them beyond a motion to dismiss and into discovery, a process that allows each side to demand piles of information from the other. That's a prospect an already shaky White House surely wants to avoid.