Valerie Plame has sued Dick Cheney, Karl Rove, and Lewis "Scooter" Libby for allegedly revealing her "secret" CIA identity.
As a litigation attorney, the lawsuit sounds like an uphill battle to me. Not an impossible battle, mind you, but a long uphill slog for Plames' attorneys in which the outcome is far from guaranteed. First Plame has to prove that Cheney, and/or Rove, and or Libby leaked her identity and that her identity was not previously known; then she has to prove that it was illegal for the defendants do so and that there is no valid defense.
Without having seen the complaint yet, I believe there's quite possibly a strong privilege defense in one form or another. Assuming for sake of argument that someone in the administration revealed the connection between Plame and Wilson, it was quite probably necessary to do so in order to participate in full and fair public discussion and debate of an important national security issue involving the Iraq war. Plame's lawsuit itself alleges that Cheney disclosed Plane's identity for a logical reason -- to let people know the complete and unvarnished truth about an issue of public importance:
According to court filings in Libby's case, Cheney played a key role in a White House effort to counter Wilson's charges.
Cheney cut out Wilson's New York Times article and scribbled on it, "Have they done this sort of thing before? Send an ambassador to answer a question? Do we ordinarily send people out pro bono to work for us? Or did his wife send him on a junket?"
Libby told a grand jury that Cheney was so upset about Wilson's allegations that they discussed them daily after the article appeared. "He was very keen to get the truth out," Libby testified, quoting Cheney as saying, "Let's get everything out."
Ironically, the lawsuit reportedly accuses White House officials of violating the Wilsons' "constitutional rights to equal protection and freedom of speech." But if Plame and Wilson have a right to freedom of speech, Cheney, Rove, Libby, and the rest of the administration surely have those rights too. It is within the range of reasonable discussion of a public issue to point out that a speaker involved -- Wilson in this case -- may have a built-in bias on the issue arising from his own personal circumstances.
While this certainly does not mean that every CIA officer's identity is fair game for disclosure, there is room for debate about whether Plame's identity was really a secret at the time. The White House especially needs latitude to fully debate issues of public importance, and that may sometimes require it to reveal secret information if it is in the public interest to do so.
Which judge is assigned to hear and try this case should not be important in theory, but may prove to be critically important in practice. Expect an early skirmish over which judge will be assigned. If the judge hearing the case turns out to be the sort that is driven by politics, heaven help the party on the opposite side of the political aisle. Every ruling in the case, even on seemingly objective matters, could be affected.
There are plenty of good judges out there who do not allow themselves to be influenced by political concerns, even in a high-stakes political case like this one. Unfortunately, the judges who honorably strive to remain neutral and to simply apply the law fairly in each case are mixed in with at least a few judges who do allow themselves to be politically influenced on rare occasions, either consciously or subconsciously. But I don't need to tell you that. If you're an informed American, you no doubt remember the 2000 election, and you're probably still at least slightly annoyed with the Florida Supreme Court, the U.S. Supreme Court, or both. I hasten to add that thousands of cases are resolved fairly every day across this country. Many judges are unfairly accused of bias if only because -- well, losing hurts.
Plame's attorneys have named at least three defendants in the lawsuit, according to reports (Cheney, Rove, and Libby). If any one of the defendants prevails in Plame's lawsuit, Plame will end up on the receiving end of a claim for their costs of suit, and perhaps for sanctions. In the meantime, Plame will rack up a fortune in attorneys' fees pursing this high-stakes claim.
Of course, Plame will receive financial support from the left in pursuing the lawsuit. After all, this lawsuit isn't really about Cheney, Rove, Libby, or Plame's "secret" identity. It's about the all-consuming, all-important War on Bush. It's about bringing "Fitzmas" back -- the one that Patrick Fitzgerald has failed to deliver.
But whatever the outcome, the lawsuit will buy what Plame and her husband Joe Wilson seemingly want more than anything else on this earth -- another precious 15 minutes (or 15 months) of fame. With any luck, it will also bring them assorted plaudits from the left, speaking opportunities, plaques, awards, television interviews, and more.
The end result of the lawsuit will be largely irrelevant in the long run, regardless of the outcome. If Plame loses, she'll suffer some minor embarrassment. Not a problem -- she and her husband Joe Wilson seem impervious to shame.
Even if Plame prevails in the lawsuit, Cheney, Rove and Libby will probably be entitled to indemnity, or, failing that, any judgment would be paid by a legal defense fund. In that case, Plame might have some net recovery, although attorneys' fees would presumably consume a big chunk of that.
In the meantime, the lawsuit will have absolutely zero impact on Cheney's and Rove's ability to continue in their present duties -- although the left will try to turn the lawsuit into a springboard to call for their resignations yet again.
How should the rest of us view this lawsuit? For what it is: a largely irrelevant political football game. Or to mix metaphors wildly: A "do over" of Patrick Fitzgerald's investigation -- a mulligan. Another bite at the apple. Another letter to Santa, pleading for one more Fitzmas.
Unfortunately, unless Cheney, Libby and Rove can come up with a basis for a counterclaim against Plame or Wilson, they stand to gain absolutely nothing from this lawsuit. At best it will be a distraction.
Thus, coverage of this lawsuit will be vigorously fanned by the left, if only for purpose of throwing sand in the gears of whatever else Cheney and Rove may have on their agendas in any given week. The fact that their agendas may include America's national security and avoiding another 9/11 is not of concern to this crowd. They'll cross that bridge when they come to it -- assuming that the bridge is still there, that is.
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Update 7/13/06: Sure enough, Wilson and Plame are already soliciting donations for their lawsuit. The complaint is here. It seeks to recover attorneys' fees. That can be a double-edged sword; if the defendants prevail, they may recover their fees from the plaintiffs instead.
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