Plame Judge: 'Outing' Just Part of the Job

None of us should be surprised that a federal trial judge Thursday tossed out a civil lawsuit brought against current and former Bush administration officials by Valerie Plame Wilson and her husband, Joseph Wilson, the man whose op-ed column about yellowcake in Africa started us all down this merry road to ruin.

The law is set up precisely to quickly and efficiently take down these sorts of claims and causes; to provide in extraordinary breadth and depth legal immunity to public officials, even sleazy ones; and to make it as difficult as possible for people like the Wilsons, or people like you and me, to successfully challenge in court bad acts and bad actors of our government. Even the unhappy couple, the plaintiffs, can't be surprised that they lost-- and surely they figure they won't prevail on appeal.

But what did surprise me, and what ought to surprise you, is the part of U.S. District Judge John D. Bates' 41-page body slam of a ruling where he declares that the "underlying conduct" of the defendants-- Vice President Dick Cheney, his former deputy and current pardoned felon, I. Lewis "Scooter" Libby, fabled political operative Karl Rove and former Deputy Secretary of State Richard Armitage (the actual leaker of the name) -- was so close to the recognized scope of their duties that they deserve to find solace within the boundaries of Congress' benevolent immunities. If that isn't defining integrity down, I don't know what is.

Here is what Judge Bates wrote:

[T]his Court must look beyond the alleged disclosure of Mrs. Wilson's covert identity and assess whether the underlying conduct was of the type defendants were employed to perform. The proper inquiry in this Court's view, then, is whether talking to the press (or, in Cheney's case, participating in an agreement to do so...) in order to discredit a public critic of the Executive Branch and its policies is within the scope of defendants' duties as federal employees.

The alleged means by which defendants chose to rebut Mr. Wilson's comments and attack his credibility may have been highly unsavory. But there can be no serious dispute that the act of rebutting public criticism, such as that levied by Mr. Wilson against the Bush Administration's handling of prewar foreign intelligence, by speaking with members of the press is within the scope of defendants' duties as high-level Executive Branch officials. Thus, the alleged tortious conduct, namely the disclosure of Mrs. Wilson's status as a covert operative, was incidental to the kind of conduct that defendants were employed to perform.

For those of who still believe that the intentional disclosure a covert operative was and is against the law, this snippet from the Bates' ruling probably has you scrambling around walls. Surely the judge is not suggesting that criminal conduct is covered by immunity when its purpose happens to sync with the regular political duties and responsibilities of powerful government officials. Surely he didn't meant to diminish into the category of "highly unsavory" conduct by our highest ranking public servants which was monstrous at best and illegal at worst.

The lessons here? The White House savages its enemies all the time; the Congress explicitly and implicitly endorses and protects the odious conduct in the name of "immunity"; and the courts are unable or in this case unwilling to do anything about it. It's no surprise that the Plame-Wilson lawsuit got tossed. But it is jarring to read the ugly yet sanctified rationale for its demise.

By Andrew Cohen |  July 19, 2007; 3:52 PM ET
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The release of classified information, whether it is operational, status, or identity information is a violation of the law. That is true whether in the military, no matter what the rank, or in civilian occupation. Apparently, this judge considers the realease of such information Totally within the purview of personal discretion, if one is placed high enough in the government. What that does is make the members of the Executive branch unaccountable for their actions. In simpler terms, if politically expedient for the party in power, violation of the law is to be excused or, that members of the Executive are above the law. There goes the notion that this is a nation of laws, and not of men.
One has to wonder what type of education, if any, some judges have received in their lives to write such gibberish in a legal opinion.
Some have criticized members of the judiciary for being "activist." If this is not "judicial activism", in this case used for the purpose of excusing members of the Executive, nothing is.

Posted by: Robert I. Laitres | July 20, 2007 09:38 AM

What!! Werent the means not only unsavory, but didnt one of the folks who did all the unsavory work just convicted for perjury... Unsavory work by felons might warrant something better than - oh its just conduct the defendants were expected to perform.... And they did leak classified information didnt they - so it is ok to do that....

Time to get the pots and pans out on the streets and banging them like Molly Ivins said - "Stop it, now!"

Man I am so furious....

Posted by: Houston | July 20, 2007 10:03 AM

LEADERSHIP COMES FROM THE TOP, WHETHER IT BE FOR GOOD OR ILL. WE ALL KNOW WHAT LEADERSHIP WE HAVE CURRENTLY. THE QUESTION I HAVE, WITH ALL THE TALK OF IMPEACHMENT, WHY HAVE THESE PEOPLE NOT BEEN CHARGED WITH TREASON??? THE TWO PARTY SYSTEM HAS COLLAPSED, AND ITS ONLY A MATTER OF TIME BEFORE THE PEOPLE ARE FORCED TO ADMIT IT. THE POLITICIANS HAVE MADE A DEAL WITH THE DEVIL AND WILL SELL THEIR OWN TO MAKE A PROFIT.

Posted by: Richard Jagielski | July 20, 2007 10:11 AM

By logical extension of this torturous legal reasoning it would have been just as legal for the Bush administration to have Plame shot. Surely that would also have been incidental to their duties to rebut critics.
Nor do I consider it remotely feasible to ajudge discreditting a critic to be a legitimate governmental duty. Any administration will seek to answer, rebut or belittle their critics. But to discredit is another matter entirely. That is an act of partisan politics, not governmental function.
And lest we forget, Wilson was correct in every particular. This made rebuttal impossible.
In addition, disclosing that Wilson's wife was a CIA agent did nothing to discredit his conclusions. His wife worked in counter proliferation for the U.S. government. How was this fact a disqualifier of Wilson's critiques?
No, the outing of Plame was intimidation and retaliation. These are not acts covered by any statute.

Posted by: Shannon Parker | July 20, 2007 10:33 AM

The only real legal issue is what they did to Plame, not about what they did or did not want to do to Joe Wilson. Legally, Wilson should have been irrelevant to this case.

But the judge based his entire ruling on the declared presumption that Plame was an acceptable target if they wanted to go after her husband.

If Plame and Wilson were business partners and someone tried to hurt Wilson by damaging his business partner, there would be no question of liability. Damage to her would be seperate and actionable on its own meirts, and those who damaged her would be liable. But, since she's "the wife", she loses her rights?

Is this guy a judge or a Mullah?

The judge, like the Bushies, has legally trivialized her into a non-person with no legal standing as an entity unto herself. He has declared that she is merely an extension of her husband.

Therefore, what is done to her can be justified as action against him and judged on those merits alone. As a legal non-person, she can claim no personal damages.

Those who willfully damaged her to get to her husband can act with impunity not because, as he also erroneously ruled, this is part of their job, but because she can be acted upon as a vehicle to get to her husband and she has no legal standing against it.

But there is a bright side: According to this judge's ruling, Joe Wilson has a case for destruction of personal property, i.e., his wife's career.

Posted by: roooth | July 20, 2007 11:11 AM

Bates must be an adherent to Justice Scalia's philosophy that you define the issue narrowly or broadly depending on how you want the case to turn out. In this case, Judge Bates defined the conduct in question about as broadly as it could possibly be defined. Anyone who says that what Cheney was doing when he ordered Plame's identity compromised in retaliation against Wilson was merely "speaking to the press to rebut administration critics" has a few loose screws.

Official immunity is a high hurdle to jump, but knowingly violating a criminal statute can never be within the scope of official duties. This is a travesty.

Posted by: Nellie | July 20, 2007 11:18 AM

It strikes me that the Plame/Wilson issue ought to be considered in the context of the current ruling that prevents Congress from citing members of the Bush administration for contempt relating to the politicization of state attorney general selection. Clearly, politicization is being construed as "incidental to the duties" of political employees, irrespective of the impacts it may have on the citizenry. It seems that the judicial and executive branches have coalesced outside the interests of the country and left Congress to react in ways that will be construed as political. The irony is that the "good politics" of Congress will get washed in the same water as the "bad politics" of exec and judicial. Tragic.

Posted by: ron damasauskas | July 20, 2007 11:22 AM

I happen to work for the IRS, and often have to call taxpayers to discuss matters concerning their tax returns. This is clearly "within the scope of (my duty) as a federal employee."

Sometimes I find taxpayers quite annoying, but am told I must act professionally and courteously at all times, which I have always managed to do.

But it seems my superiors were wrong! According to Judge Bates, I am now free to curse, insult, demean and threaten anytime I d**n well feel like it, providing the reason for the call was official.

This job has suddenly gotten to be a lot more fun!

Posted by: Revenooer | July 20, 2007 11:31 AM

Lewis Carrol had nothing on these folks when it comes to the creation of black=white arguments.

Bottom line: their goal is support for the powerful, and dismissal of claims by the powerless. They'll string together whatever sets of ridiculous thoughts they chance upon to support that goal.

The founders are writhing in their graves. If we are to meet our responsibilities as inheritors and custodians of this remarkable nation and its Constitution, we must find a way to reverse this madness.

-- stan

Posted by: Stanley Krute | July 20, 2007 12:05 PM

As the US Ambassador to Baghdad during the Kuwait-Iraq war, Ambassador Wilson offered himself in exchange for the international hostages held by Sadam. These hostages were then released. Now that's leadership!
Then there's his wife, Valerie Plame, an expert in an extremely sensitive and needed area of intelligence. This administration with all the "chicken hawks" should blush with shame! Instead of challenging Ambassador Wilson's assertions directly they "pick on a girl"! But then she's of such remarkable fiber, she's showing them for what they are- true cowards!
Once again we as a nation are blessed with this couple's service. While Ambassador Wilson is standing up for his wife, he stands for this nation's character and integrity. A lie is a lie, and intelligence was fabricated by this administration to justify what has subsequently become a USA INVASION of Iraq! Since this administration insists on calling it a war, "outing a spy" during said war is TREASON! Impeachment, followed by the proper war criminal trials would be a beginning to restore this nation's internal and international credibility. But please let's have Judges who can understand the BIG picture!
Oh! And while we're on that topic, has anyone done a proper analysis of the discrepancy between the voting exit poles & the computer print outs? Perhaps it's time to bring in the high tech purple thumb to insure we actually have a democracy? Is anyone else out there thinking we've just had a "corporate coup-de-tat"?


Posted by: Dr. Bruns | July 20, 2007 12:12 PM

As the US Ambassador to Baghdad during the Kuwait-Iraq war, Ambassador Wilson offered himself in exchange for the international hostages held by Sadam. These hostages were then released. Now that's leadership!
Then there's his wife, Valerie Plame, an expert in an extremely sensitive and needed area of intelligence. This administration with all the "chicken hawks" should blush with shame! Instead of challenging Ambassador Wilson's assertions directly they "pick on a girl"! But then she's of such remarkable fiber, she's showing them for what they are- true cowards!
Once again we as a nation are blessed with this couple's service. While Ambassador Wilson is standing up for his wife, he stands for this nation's character and integrity. A lie is a lie, and intelligence was fabricated by this administration to justify what has subsequently become a USA INVASION of Iraq! Since this administration insists on calling it a war, "outing a spy" during said war is TREASON! Impeachment, followed by the proper war criminal trials would be a beginning to restore this nation's internal and international credibility. But please (this time) let's use Judges who can understand the BIG picture!
Oh! And while we're on that topic, has anyone done a proper analysis of the discrepancy between the voting exit poles & the computer print outs? Perhaps it's time to bring in the high tech purple thumb to insure we actually have a democracy? Is anyone else out there thinking we've had a "corporate coup-de-tat"?
Barbara


Posted by: Dr. Bruns | July 20, 2007 12:20 PM

Whatever anyone, including Cohen, thinks about the defendants, the fact of the matter is- and here is where you have to understand how Bivens actions, and particularly scope of employment/respondeat superior works when government employees are sued in their individual capacities, -the court absolutely applied the law and the correct result was obtained. Why?

Under scope of employment law-the test is this: "were the actions complained of arguably in furtherance of the employer's interests?" Answer? Yes, whatever MEANS they used to do it, is secondary to the fact that the actions of the unsavory Cheney (and I detest Cheney btw) were in furtherance of his employment-they were NOT outside the scope of his employment.

That's one issue. The key inquiry in all Bivens cases is this: Did the defendant(s) KNOWINGLY violate the plaintiff's constitutional rights?

Very very difficult standard to meet. In this case the Complaint, filed by the Citizens for Ethics in Govt. WAS VERY POORLY CRAFTED. The "alleged knowing" violation of the P's constit. rights was a nebulous claim of violation of free speech on the part of Joe Plame. Plame not only lacked standing (as there was no actionable harm) to raise that claim, but he did not suffer the alleged retaliation-the Complt. alleged that the harm for Mr. Plame's speech was destroying Plame's cover-that has nothing to do with HIS harm, but HERS. Such alleged "retaliation" on the part of the USG did not "knowingly" (and the "knowingly" is the operative word here) violate his First Amend. Rts.

Secondly, Libby's disclosure of Plame's CIA status DID NOT violate the 5th Amend. Due Process clause-because the court has never recognized such a right of informational "privacy" as falling under the 5th Amend Due Process clause in the first instance.

Further, the attorneys filing this Complt. apparently did not realize how the FTCA works: tortious acts alleged against the government must go through the FTCA-which is a 6 mo. admin. process where you have to file a claim alleging negligence on the part of the govt. employee(s) in question, and the tort alleged must be recognized under DC law-if it is not a tort recognized under DC law, then you are out of luck. The Plaintiffs did not do this, and arguably they might have had a tortious claim of intentional infliction of emotional distress, negligent supervision, both of which ARE recognized under DC law, but they didn't file in time, thus, their claims are extinguished.

Melanie Sloan and Co. didn't know what the hell they were doing, in other words.

Posted by: | July 20, 2007 12:33 PM

Like everything else... I have always stated that IF YOU HAVE TEN PEOPLE READ THE SAME LAW... you will GET 12 DIFFERENT UNDERSTANDING OF THAT LAW.

It just depends on what you want the LAW TO READ. THE BUSH WAR ON TERROR... even applies to the LAW IN THE UNITED STATES.. DEMOCRACY IS DEAD in the UNITED STATES. So why should we be looking at bringing DEMOCRACY.

Those IN POWER CONTROL THE LEGAL SYSTEM. Guess what... we are dying by slow DEGREES because of the Lack of LEADERSHIP ON THE HILL. The common people KNOW THAT GOD BUSH is BAD FOR AMERICA... but his CRONIES ON THE HILL lack the COURAGE, HONOR AND INTEGRITY to IMPEACH BUSH AND CHENEY TO insure that NO OTHER PRESIDENT IN THE FUTURE OF THE UNITED STATES.. tries to CONTROL THE DEMOCRACY of the United States.

Posted by: Bob51550 | July 20, 2007 01:09 PM

I must disagree with the poster who claims that these actions were in the proper furtherance of their employer's duties.
No criminal act can be considered legal simply because you are obeying orders.
I thought we settled that after WWII.
If the actions were illegal then they are also subject to civil penalties.

Posted by: Shannon Parker | July 20, 2007 01:10 PM

Actually, Shannon, you aren't properly stating the analysis: it is once again, are the actions complained of "arguably in furtherance of the employer's interests"? In other words, talking on the phone to reporters about issues related to Plame's speech IS within "the scope of the VP's employment, because it IS work-related. AND THAT IS THE ONLY ISSUE IN THIS CIVIL LAWSUIT-NOT THE CRIMINALITY, BUT WHETHER IT FALLS WITHIN THE SCOPE OF EMPLOYMENT-PERIOD.

Posted by: | July 20, 2007 01:21 PM

I love how the lawyer types debate the legal merits and legitimacy of the ruling, etc.

Guys, it was politics, pure and simple.

Posted by: | July 20, 2007 02:18 PM

Just further notice , the Bush Brigade will NOT be held accountable/responsible nor suffer consequences due to any of their beleagured, egregious, ineptness, misguided, wrong deceions that have cost others far more than ANY should have had to bear but proven to have been PROFITIBLE to the Bushlers. Rather disgusting, but the present reality and sets up the scenario for future abuses by any and all who gain the reins to reign over us mere ordinaries who continue to brunt the fallout/consequences and are mere fodderings and acceptable collateral damagees.

Posted by: Boawell | July 20, 2007 02:37 PM

There's a saying I like that comes from left-wing radio talk show host Mike Malloy -- "To fight tyranny, you need to use four boxes, in this order: soap, ballot, jury, ammo."

We can speak out against the tyranny of lawless one-man rule all we want from soapboxes like this blog. And President Cheney is free to ignore us.

We can try to vote the tyrants out. But stolen elections in Florida 2000, Ohio 2004 and the potential cancellation of the 2008 election due to some "state of national emergency" (i.e. obliteration of the Republican Party at the polls) means the ballot box is not the answer.

This nakedly political decision shows that the tyrants have control of the jury box, if anyone tries to check their power via the legal system.

That leaves the ammo box. I'm a peaceful person, which is why I left the country instead of staying around until it hits the fan. But sooner than later, events in America are going to get to the point where stuff starts burning down and blowing up.

Because tyrants don't stop with a half-dictatorship. Power-mongers keep grabbing until they have it all. And the fascists behind George Bush didn't take all this executive authority only to hand it to Hillary Clinton in January 2009. You gotta ask yourself, what are you going to do when the nakedness of the power grab is too obvious to deny?

This court decision, and the administration's ruling that the Justice Department will not take action against anything the Executive Branch does (yeah, yeah, I know it hasn't gone that far yet, but it will) are two more items of clothing torn off in that naked power rape.

Posted by: Bukko in Australia | July 21, 2007 08:26 AM

Hey Andrew,

How was that "Max Havoc" movie you were talking about?

It sounded great....

Posted by: | July 22, 2007 06:12 PM

the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country

Hermann Göring, Nazi Reichsmarshall and Luftwaffe-Chief - Interview in his jail cell during Nurenburg War Trials
http://en.wikiquote.org/wiki/Hermann_G%C3%B6ring
Wilson and his wife are pure heros..taking a stand for America. The criminality of this administration should be no surprise. Those who do not learn from history will surely repeat it.

Posted by: Mary | July 22, 2007 10:13 PM

I'm sure during the Whitewater prosecution that now Judge Bates urged repeatedly against further prosecution on the basis that the actions of the involved parties were merely "highly unsavory".

The "incidental" line of argument too seems to be lowering the bar even further. Those "incidental" actions directly contravened the sworn oaths of the defendants in their official duties.

In the private sector, if a person were to engage in "incidental" actions to their employment, such as taking money from the cash register to serve purely personal ends, then that would be acceptable behavior based on the judge's standard.

I can envision quite a few problems arising there. Somehow it doesn't require great imagination to see those problems increased exponentially in terms of societal costs when those thieves are put in a position of public trust.

The good judge would have been better off simply stating that the plaintiff's suit lacked jurisdiction without providing a reason.

It's not exactly reassuring that this guy is on the FISA court either.

Well, perhaps it would be, if as a public official, I wanted to use our surveillance system to gain insider trading tips, or to eavesdrop on political opponents for purely personal advantage. Remember, it's work that's pure incidental to my officially stated responsibilities, and just like the good Judge said anything goes!

As a private citizen though it's not exactly reassuring to know that there are guys like Judge Bates watching over the Constitution. No reason would have been better than the one he provided.

Posted by: JP2 | July 23, 2007 02:11 AM

The President's own father, George,H.W. Bush, once stated that outing a C.I.A. agent is an act of treason. I do remember some sort of legislation to that effect, it was more than likely recinded after the Plame case, i.e. the "Patriot" act.

Posted by: L. Sorensen | July 23, 2007 10:27 AM

The President's own father, George,H.W. Bush, once stated that outing a C.I.A. agent is an act of treason. I do remember some sort of legislation to that effect, it was more than likely recinded after the Plame case, i.e. the "Patriot" act.

Posted by: L. Sorensen | July 23, 2007 10:27 AM

To have a judge excuse illegal behaviour in a judgement is outrageous. The judge should be reported to the Judicial Council for conduct bringing the system of justice into contempt. Of course the whole Administration should be held in contempt for their activities relating to the judicial system in the U.S.

Posted by: Archie1954 | July 23, 2007 12:55 PM

anon at 2:18: I know what you're saying, but (maybe not directly related to what you were responding to) I'm tired of people saying that whenever people lie, cheat etc..that would be undesirable in itself, in government "that's just politics!" Just some good ol' initiative and competitiveness! Oh those charming naughty kids, at it again!

Posted by: Zal | July 23, 2007 01:47 PM

Stanley, people keep saying that. What are we going to do, allow more havoc for another year and a half (no question they don't refrain from using their capital in the meantime, even when there isn't any)?

Posted by: Old Hickory | July 23, 2007 01:51 PM

As Judge Bates noted in his opinion (and did so by qouting precedent): the idea of "immunity" would be absurd if immunity only applied in situations where it wasnt needed--in other words, where the conduct was legal in the first place.

So to everyone stomping and crying about the defendants' actions being illegal: its irrelevant.

Think about when one witness is given immunity in exchange for their testimony against a co-defendant. No one claims that their actions were legal, but they get away with it anyway, because THATS WHAT "IMMUNITY" IS!

Moreover, the judge did not give the defendant's immunity, CONGRESS did!.


Congress wrote a statute saying that government officials have immunity from civil suits for many kinds of illegal acts. Pure and simple. And thats all the judge ruled.

Posted by: sammy | July 29, 2007 11:19 PM

To Bukko: I know it's late, but hopefully you see this. Of course I'm not happy with the 2004 election result, but how sure is it that 2004 in Ohio was a stolen election?

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