Sure, we’ve known for quite some time that the Bush White House takes an expansive view of executive branch power. But as a defense against the Plame civil suit, Cheney’s legal team has managed to push the envelope to surprising degree. (And given these guys’ track record, that’s saying something.)
Attorneys for Vice President Cheney and top White House officials told a federal judge yesterday that they cannot be held liable for anything they disclosed to reporters about covert CIA officer Valerie Plame or her husband, former ambassador Joseph C. Wilson IV.
The officials, who include senior White House adviser Karl Rove and Cheney’s former chief of staff, I. Lewis “Scooter” Libby, argued that the judge should dismiss a lawsuit filed by the couple that stemmed from the disclosure of Plame’s identity to the media. […]
The lawyers said any conversations Cheney and the officials had about Plame with one another or with reporters were part of their normal duties because they were discussing foreign policy and engaging in an appropriate “policy dispute.” Cheney’s attorney went further, arguing that Cheney is legally akin to the president because of his unique government role and has absolute immunity from any lawsuit. (emphasis added)
U.S. District Judge John D. Bates, a Bush appointee and former aide to Ken Starr, asked Cheney’s lawyers, “So you’re arguing there is nothing — absolutely nothing — these officials could have said to reporters that would have been beyond the scope of their employment,” whether the statements were true or false?
“That’s true, Your Honor. Mr. Wilson was criticizing government policy,” said Jeffrey S. Bucholtz, deputy assistant attorney general for the Justice Department’s civil division. “These officials were responding to that criticism.”
Sometimes, it’s tempting to just sit back and marvel at how far these guys are willing to go. In a dark and depressing kind of way, the Bush gang and their lawyers are truly impressive — in much the same way the tobacco industry is “impressive” marketing to kids and lying about the addictive qualities of their product.
Writing over at Kos, Devilstower explains the rationale behind the legal argument here.
The lawyers for the whole crew are claiming that it’s okay for White House staff to say anything, true or false, with no threat of civil prosecution. Nice theory. Naturally, such privileges do not extend to the common folk. For Cheney, they’re going further, claiming an immunity that in the past has been limited to the president. He could literally do anything, and you peasants would just have to live with it.
And at TalkLeft, Big Tent Democrat takes on the claim that Cheney is “legally akin to the president.”
I think the argument fails because the Vice President is NOT the President and his only official power is to break ties in the Senate. One could argue, indeed, Cheney has, that the Vice President is a member of the legislative branch Constitutionally, not the Executive branch. In short, there is no separation of powers issue for suits against the Vice President at all. Members of Congress are, of course subject to lawsuits. So this argument seems a nonstarter for me.
Cheney can claim, as can almost all government officials, that his actions are subject to the qualified immunity that is granted to government officials acting in their official capacity. Motions to dismiss on qualified immunity grounds are commonplace and perhaps Cheney can establish that his duties as Vice President required whatever it is he did. We’ll see.
But Cheney went further, claiming absolute immunity. That is pretty clearly a reach, absent equating the Vice President with the President.
And even if the court were to consider the Cheney some kind of presidential equivalent, the Clinton v. Jones case should make clear that constitutional officers are not exempt from civil suits.
I’m tempted to tell these guys, “Nice try,” but that would be giving them too much credit. How about “Imaginative try”?