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Monday, October 17, 2005

Suing for a Piece?

So here I go again, piggybacking on Mark Kleiman, who posts this excerpt from Richard Keil's Bloomberg piece:

In an interview yesterday, Wilson said that once the criminal questions are settled, he and his wife may file a civil lawsuit against Bush, Cheney and others seeking damages for the alleged harm done to Plame's career.

If they do so, the current state of the law makes it likely that the suit will be allowed to proceed -- and Bush and Cheney will face questioning under oath -- while they are in office. The reason for that is a unanimous 1997 U.S. Supreme Court decision ruling that Paula Jones' sexual harassment suit against then-President Bill Clinton could go forward immediately, a decision that was hailed by conservatives at the time.

My wife-the-insider and I were just discussing the Jones case over the weekend. What prompted our discussion was this statement by uber-hypocrite William Kristol on Bill O'Reilly's show:
I am worried about what happens to the administration if Rove is indicted. I think it’s the criminalization of politics that’s really gotten totally out of hand.
(I got this quotation from ThinkProgress; I can't seem to find online transcripts of the O'Reilly show).

Now, Bill Kristol is the same man who wrote in 1998 that
I'm against a return to normal business--until we render a verdict on Bill Clinton's behavior. I think he deserves to be impeached.
I found that quote of Kristol's without trying very hard. What a delightful bunch of lying hypocrites he and his ilk are: they were so exercised about Clinton's (alleged) perjury that they were willing to remove---indeed insisted on removing---the duly elected President for his sins (I say alleged because my understanding is that the technical---i.e. legal---definition of perjury is quite a bit more stringent than simply lying or misleading, etc---the lies have to be legally important; that said, nothing about my argument hinges on that point, so I'd happily drop it for argument's sake).

Now, the point that my wife and I discussed over the weekend started with the issue of whether it matters that Clinton's lies and other misbehavior came in the context of a politically motivated private lawsuit financed, staffed and engineered for the transparent purpose of running him out of the White House. If I remember correctly, the initial foray into Lewinsky matters came after Paula Jones's lawyers were tipped off by Linda Tripp (via Lucianne and Jonah Goldberg) that they should word certain questions in precise ways when deposing Clinton for the Jones case. When Clinton answered untruthfully, Jones's lawyers presented the matter to Ken Starr's office, which then seized the opportunity to ask Janet Reno for jurisdiction over the Lewinsky matter (quite far afield of the initial Whitewater matter).

The whole point of this exercise was to put Clinton in the position of either conceding an extramarital affair while in the WH or lying under oath. That saga sounds to me like the criminalization of politics: abusing the legal process to damage your political opponents.

Interestingly, the unanimous Supreme Court opinion mentioned above ends with this paragraph:

We add a final comment on two matters that are discussed at length in the briefs: the risk that our decision will generate a large volume of politically motivated harassing and frivolous litigation, and the danger that national security concerns might prevent the President from explaining a legitimate need for a continuance.

We are not persuaded that either of these risks is serious. Most frivolous and vexatious litigation is terminated at the pleading stage or on summary judgment, with little if any personal involvement by the defendant. See Fed. Rules Civ. Proc. 12, 56. Moreover, the availability of sanctions provides a significant deterrent to litigation directed at the President in his unofficial capacity for purposes of political gain or harassment.
So far, the Court's lack of concern regarding "a large volume of politically motivated harassing and frivolous litigation" has been vindicated. Really, there's only been that one little case. Which led to the impeachment of the President in what was essentially an attempted coup. One might say the Court got it wrong because it focused on the likelihood of "frivolous and vexatious litigation" rather than on the possibility that litigation able to clear minimal standards might be used as a sort of lever that would allow them to set a perjury trap---the possibility of which exists only because of the political constraints uniquely relevant to politicians (of course, if Clinton hadn't been such a lout of a person, the issue would never have arisen, but that fact is irrelevant if we want to develop legal policies that allow for the possibility that Presidents might not be the most upstanding citizens in town).

My discussion with the wife concerned the irony that the Jones-Clinton-Lewinsky-Scaife-Starr-Congress debacle could get started only because the fishing expedition was allowed to leave shore. No one serious believes the underlying issue of adultery should lead to the removal of a duly elected President (I recognize that some people believe this, but that belief renders them unserious in my view). So the only real issues regarded Clinton's mendacious conduct after the fishing line was cast. Our weekend discussion concerned the fact that there hasn't been a flood of politically motivated lawsuits against W. Some might say that's because Democrats are better people than Republicans, some might say that it's because Democrats are no bettter than Repubs but are just less effective at securing their goals, others might say it's b/c W is so squeaky clean and still others might say that there are grounds to gin up a flimsy lawsuit, that Dems would do it if they thought it would work, but that they've concluded it wouldn't work. Who knows? The fact is that it hasn't happened so far.

Now, the irony of guys like Bill Kristol whining about the criminalization of politics is that their scourge is not some Democratic partisan. Rather, it's a Special Prosecutor who was not only chosen by then-Dep AG James Comey (then-AG John Ashcroft recused himself due to a conflict of interest b/c he had a history with Karl "Leaky" Rove), he was nominated by W to be US Attorney for N. Illinois. Quite a contrast to Ken Starr, who replaced a Republican Ind Counsel named Robert Fiske. Here's how the Washington Post's Dan Froomkin describes things:

The original Whitewater special prosecutor was Robert B. Fiske Jr., a moderate Republican selected in January 1994 by Attorney General Janet Reno, who had the authority to make the appointment because the independent counsel law had expired.

In August 1994, with the law renewed and Fiske under fire from conservatives for being insufficiently aggressive in pursuit of the president, the three-judge panel in charge of appointing independent counsels abruptly replaced him with a conservative activist named Kenneth W. Starr.

Moreover, the substance of Clinton's transgressions pales by comparison to those alleged of the various WH folks who appear to be in trouble (Rove and Libby for starters). After all, if there is anything seriously troubling about what Clinton did, it's that he committed perjury (if he did) and (again, I don't know if it's actually true) obstructed justice in proceedings whose obvious ends were to damage him and his administration politically. I do think the process issues are serious: obeying the law matters. Which is why I find so silly the recent discussions of how bad it will be if Fitz indicts only on supposedly not "real" grounds like perjury and obstruction (mostly the hand-wringers have been GOP types, though mushily liberal Richard Cohen made one of his classic cameos the other day).

But more importantly, the substance of the WH leak is itself a very troubling matter. I won't recite all the reasons, having done so before (I think), except to point out that Valerie Plame/Wilson's job involved WMD issues. Remember them? Important enough to start a war over, right? Then surely important enough to justify a criminal investigation. This isn't about the criminalization of politics, it's about the prosecution of criminal acts.

It is ridiculous that GOP partisans like Kristol who told us perjury and obstruction concerning a private lawsuit were worth removing a President over now say that such process issues constitute criminalization of politics in a case whose substantive issues actually matter for public policy.

Put differently, there is no way to rationalize Kristol's view that impeaching Clinton was mandated while prosecuting Rove and Libby for "only" perjury or obstruction is wrong. By contrast, the converse is plausible: impeachment was wrong because the issues were pedestrian and not in any way Constitutional (I believe this is the position that Cass Sunstein takes in his book on judicial minimalism), but prosecution of Rove et al on process grounds only (if necessary) is mandatory because they involve a public policy issue of grave importance.

The Kristols of the world want to have their cake and rub it in your face, too.

They deserve to be mocked openly and mercilessly for supporting an attempted coup on the US electorate and then defending those who put political gain over national security.

Oh, and what does this all have to do with the possibility of a Wilson lawsuit against Bush, Cheney and their goons? Plenty: turnabout being fair play surely suggests that the SCOTUS should let such a lawsuit proceed. That said, I have two caveats. First, the opinion linked above does include a potential national security exception, which no doubt the Goon Squad and its lawyers would seek to invoke.

Second, from a public policy perspective, I think there's a very strong case that the SCOTUS had it wrong a decade (or so) ago, and that private lawsuits against the POTUS should be stayed until the end of his or her term. It is absurd in light of the Clinton years to suggest that the Presidency can withstand such lawsuits: most people who make it to the WH very likely are lousy people, and there will be lots of grist for the litigious mill. The Court should do us all a favor and insulate the country from the sort of venomous coup launched by the Scaife-Jones-Starr-et-al conspiracy. The correct venue during a presidency for dealing with truly important Executive transgressions is Congress and the impeachment process, where it is appropriate.

It would be entirely reasonable for Congress to start discovery concerning the WH's actions on the Plame/Wilson matter with an eye toward impeaching Bush and Cheney, if indeed they were involved in a conspiracy to leak Plame/Wilson's CIA employment status. Unlike oral sex in the Oval Office and obstruction/perjury related to its revelation, such conspiracy would truly constitute a High Crime. It would also be appropriate for the Wilsons to sue Dick Cheney and W for all those Halliburton and (taxpayer-funded) Texas Rangers millions -- after Bush and Dick leave office.

Update: I should say that when the news about Clinton and Lewinsky was first breaking, I thought he deserved impeachment. I think my view was colored by the fact that I felt that Clinton betrayed his supporters repeatedly as President, and that he was more worried about his legacy---esp including his reelection than about doing what was right. I still do feel those things in a lot of ways. But I was wrong about impeachment. Happily, as I sat watching ABC's This Week on a Sunday around the time the story broke and declared my support for impeachment, one of my more reasonable (and also quite progressive) friends said she thought I was crazy. I said, "But he lied under oath!" She said, "Presidents lie about policy all the time. Do we really want to lose a President over this?" Those of you know me may be surprised, but I conceded the point. She was right then and is still right now.

9 Comments:

Blogger Bu$h Ate My Baby said...

While you were quoting someone else, I think it's unfair to characterize Ken Starr as simply a "conservative activist." I pulled this from his current bio on Kirkland & Ellis' website:

From May 27, 1989 to January 20, 1993, Mr. Starr served as Solicitor General of the United States, where he argued 25 cases before the Supreme Court involving a wide range of governmental regulatory and constitutional issues of commercial importance. Prior to taking the oath of office as Solicitor General, he served as a United States Circuit Judge, having been appointed to the United States Court of Appeals for the District of Columbia Circuit on October 11, 1983. In January 1981, Judge Starr became Counselor to United States Attorney General William French Smith, a position he held until his judicial appointment. He practiced in Los Angeles and Washington, D.C. with the firm of Gibson, Dunn & Crutcher, where he was a partner in the litigation practice.

I think it's also unfair to call the Clinton impeachment process an "attempted coup," regardless of whether you agreed with it or thougt it politically motivated. A coup is commonly considered as an act which is outside a country's constitutional process (to the extent it has one). You yourself say that you were initially in favor of impeachment -- were you participating in a coup before you changed your mind?

Finally, "turnabout being fair play" is not (yet) a constitutional doctrine, but the underlying premise of your post -- that the case law stemming from the Jones suit may well impact any future civil litigation here -- is a fair one. Though it would be interesting if a Roberts court reached a different conclusion from a Rhenquist court.

"It would be entirely reasonable for Congress to start discovery concerning the WH's actions on the Plame/Wilson matter with an eye toward impeaching Bush and Cheney." Now you're straying a bit from the reservation. You point out, correctly, that POTUS having to answer to private litigation is public policy danger, yet without yet any evidence that Bush or Cheney were involved in any of this you think it's appropriate for "discovery" to begin? And that wouldn't be distracting? Again, at this stage, where there is not yet any evidence of any malfeasance?

10/18/2005 3:57 PM  
Blogger Jonah B. Gelbach said...

I think it's unfair to characterize Ken Starr as simply a "conservative activist."

Sorry. Perhaps I should have also noted that he was a political appointee in the Administration that President Clinton's campaign turned out of office. And also that he had no experience as a prosecutor. My bad.

A coup is commonly considered as an act which is outside a country's constitutional process (to the extent it has one).

And that is exactly the point that Sunstein makes in his book: impeachment is (or should be) reserved for political/constitutional crimes of grave public policy concern. Clinton's conduct didn't come close. For that reason I think that the GOP conduct was indeed outside the (normative) Constitutional process. Therefore, "attempted coup" is entirely appropriate language. (By the way, if you mean to say that the language is not appropriate on the grounds that the GOP followed the positive process -- vote in the House, trial in the Senate, etc -- then you have an awfully low standard; I'm not saying this is your standard, but in my view it is the only relevant sense in which they did follow the Constitution.)

You yourself say that you were initially in favor of impeachment -- were you participating in a coup before you changed your mind?

To reiterate, I was wrong. And part of why I was wrong is precisely the fact that there was no Constitutionally relevant offense here. No, I was not participating in a coup -- as you likely realize, I was not actually an elected member of either the House or the Senate at the time. Nor did I support the cabal that pushed the coup. If I had done something material to support that cabal, you'd be justified in concluding that I did, in fact, participate in said attempted coup. Of course, merely believing that the cabal should succeed would not make me a participant in the attempted coup, either. The First Amendment does protect people's right to believe what they like (so far, anyway).

Finally, "turnabout being fair play" is not (yet) a constitutional doctrine,

Agreed. Which, actually, was largely my point. That said, precedent is in fact such a doctrine (at least, a common law one), no?

the underlying premise of your post -- that the case law stemming from the Jones suit may well impact any future civil litigation here -- is a fair one.

Funny, I thought that my real conclusion here was that the Clinton v. Jones case was wrongly decided and should be overruled. Maybe you should read this paragraph (bold emphasis on the conclusion part):

I think there's a very strong case that the SCOTUS had it wrong a decade (or so) ago, and that private lawsuits against the POTUS should be stayed until the end of his or her term. It is absurd in light of the Clinton years to suggest that the Presidency can withstand such lawsuits: most people who make it to the WH very likely are lousy people, and there will be lots of grist for the litigious mill. The Court should do us all a favor and insulate the country from the sort of venomous coup launched by the Scaife-Jones-Starr-et-al conspiracy. The correct venue during a presidency for dealing with truly important Executive transgressions is Congress and the impeachment process, where it is appropriate.

Lastly, you write:

You point out, correctly, that POTUS having to answer to private litigation is public policy danger, yet without yet any evidence that Bush or Cheney were involved in any of this you think it's appropriate for "discovery" to begin? And that wouldn't be distracting? Again, at this stage, where there is not yet any evidence of any malfeasance?

Yes, it would be distracting. It should be distracting. First, I think your contention that there is no evidence is simply false. There isn't any publicly known smoking gun, sure. But there is plenty of circumstantial reason to think that Bush and/or Cheney may have known about -- and possibly helped direct, in Cheney's case -- what appears to have been a conspiracy to violate the law in a particularly damaging way that is hugely relevant to their constitutional duties. In the meantime, neither of them will stop saying no comment, ongoing investigation (a posture adopted in mid-course, once the initital WH non-denial denials were exposed).

Moreover, Bush and Cheney appear remarkably uninterested either in knowing the facts or purging the Administration of staffers willing to jeopardize natl security for narrow political gain. That alone is an impeachable offense in my book.

The contrast with Clinton's conduct is stark.

Your argument here seems puzzlingly detached from any relevant facts.

10/18/2005 4:20 PM  
Blogger Jonah B. Gelbach said...

ps discovery for impeachment by Congress is not a private lawsuit, by the way.

10/18/2005 4:23 PM  
Blogger Bu$h Ate My Baby said...

One more question for Jonah: if indictments are handed down and they are for perjury or obstruction of justice only -- in other words, if there is no indictment for violating the substantive law, only for acts committed after the fact -- do you still see a large difference? In both cases isn't there a cover-up for an act that itself turns out not to be illegal?

10/18/2005 4:23 PM  
Blogger Bu$h Ate My Baby said...

Yes, I am aware that discovery for impeachment by Congress is not a private lawsuit. My point was that simply because Congress takes up a "discovery" process does not make it any less distracting if there is underlying frivolity. You seem to suggest that because of the serious nature of the potential offense, that insulates such discovery from claims of frivolity. But if there is no evidence of an offense, and the "discovery" is merely a fishing expedition, does not that make it any less inappropriately distracting?

You say: "There isn't any publicly known smoking gun, sure. But there is plenty of circumstantial reason to think that Bush and/or Cheney may have known about -- and possibly helped direct, in Cheney's case -- what appears to have been a conspiracy to violate the law in a particularly damaging way that is hugely relevant to their constitutional duties." Well, we should know soon enough. Indictments should be handed down in the next few weeks. As one wag once put it, you can indict a ham sandwich. If there is any such evidence of Bush/Cheney involvement, then that evidence should come out then.

My obervation about your initial reaction re impeachment was not to say that you were engaged in a coup. My point was that people could disagree on the issue. You yourself took positions on both sides. When you took position A, you were not an evil person. When you switched to position B, that does not make people who support position A all of a sudden evil. Yet you seem to think the worst of people who hold (even potentially wrong) positions even when you for a short-lived time held the offending position. Why can't it simply suffice that they were wrong and you say the light? Why must they also have been engaged in an "attempted coup"?

10/18/2005 4:34 PM  
Blogger Jonah B. Gelbach said...

if indictments are handed down and they are for perjury or obstruction of justice only -- in other words, if there is no indictment for violating the substantive law, only for acts committed after the fact -- do you still see a large difference? In both cases isn't there a cover-up for an act that itself turns out not to be illegal?

First of all, the absence of a substantive-law indictment would not necessarily mean that the initial "act ... itself turns out not to be illegal". Rather in this case it could mean that the illegality could not be established.

Second, I never said Clinton shouldn't have been prosecuted. Indeed, the IC could have chosen to indict him and didn't in the end (evidently his misdeeds were terrible enough to justify impeachment, but not bad enough to bother with the mundane details of a criminal trial). What I said is that his alleged crimes were pedestrian and not constitutional in their criminality.

I'd have been happy to have Starr's chamber prosecute him for perjury and obstruction (interestingly, neither Starr nor his successor saw fit to have the evidence tested in an adversarial fashion---at least, not fit enough to decline to offer Clinton a plea-bargain).

Third, unlike Clinton's alleged crimes, the substantive act itself in this case -- revealing the name of an undercover operative whose job it is to deal with WMD proliferation, thus jeopardizing national security, and only for political rather than policy purposes -- is one of grave public policy...and thus CONSTITUTIONAL...relevance.

If there were involvement (or willful negligence) by Bush or Cheney, I'd be willing to consider the possibility of impeachment even if the leak was totally legal, on the grounds that the President's oath to "faithfully execute the office of President of the United States" contravenes such behavior.

As another example of a legal but impeachable offense, I would think the use of lies together with willful distortion of intelligence facts to start a war that jeopardizes natl security also is in principle impeachable. Perhaps I'm wrong, but such misdeeds are unique to the President in his or her capacity as the Chief Executive, which should be the threshold for impeachment.

10/18/2005 4:35 PM  
Blogger Jonah B. Gelbach said...

Why can't it simply suffice that they were wrong and you say the light? Why must they also have been engaged in an "attempted coup"?

Because their actions were, in fact, tantamount to an attempted coup. I think the worst of them because their actions justified it.

Lots of people think lots of things in the heat of the moment. Some of them see the light, others don't.

I recognize that you feel I am too quick to draw the worst conclusions about people with whom I disagree, but this issue is overarching. You may not agree with my position, but surely you can agree that one who holds my position is justified in thinking the worst. That is, if in fact the GOP's actions were an attempted coup, then surely one ought to think the worst. Our dispute concerns a factual question, not a moral one given the facts.

By the way, it was great having dinner with you guys last night....

10/18/2005 4:40 PM  
Blogger Bu$h Ate My Baby said...

I have never agreed with you more.

10/18/2005 5:07 PM  
Blogger Jonah B. Gelbach said...

lol

10/18/2005 5:08 PM  

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