In case you thought it did, the Plame Case hasn’t gone away. Buried beneath the unsurprising news that the Bush Administration’s political office (read: Karl Rove) originally wanted to fire not 9 USA’s but 30 and that Paul Wolfowitz is out after gaming the system for his girlfriend and doing absolutely nothing he promised to do when he was hired (corruption and broken promises being the hallmark of neoconservatives everywhere), the Joe Wilson/Valerie Plame lawsuit filed against Li’l Dick, Scooter, MC Rove, and Dick Armitage is actually in court. Sort of.
Led by SCOTUS Judge Sam Alito’s former law clerk and current Dep Asst AG in Gonzo’s civil division, Jeffrey Bucholtz, govt lawyers went before U.S. District Judge John D. Bates and asked him to dismiss the case. Their reason for dismissal? Pure D-for-Dick “Unitary Presidency” Cheney:
[A]ny 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.
The judge, who apparently wasn’t sure he was hearing right, wanted to make certain he understood what they were saying.
“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.”
Now, before I go on I have to note that asking for a dismissal is a standard defense tactic nowadays, and that many defense lawyers will do it, especially in high-profile cases, even if they don’t think they’ve got a snowball’s chance in hell of winning the argument. That, in turn, has led to them often coming up with some pretty creative legal grounds for the dismissal that have little to do with legal precedent and everything to do with desperation. There was, for instance, the famous example of a lawyer who claimed that one of her cases should be dismissed because a proper defense would require her to call the plaintiff’s dog to the witness stand.
This might be one of those “It sucks but this is the best we’ve got” arguments, but I don’t think so. Dopey as it is, it fits too comfortably inside the neocon version of the Constitution as recently defined in Hedrick Smith’s spying documentary by ex-DoJ hitman John Yoo and Cheney’s “unitary president” theory, viz: The president – and by extension everyone who works for him – has the power to do anything he wants and therefore can’t do anything illegal because he is the law.
Yes, it’s fucked up, but it also forces a civil case originally about damages for misuse of office into a Constitutional crisis: the first real judicial test of Cheney’s absurd and highly dangerous legal theory that no one acting for the president can, by definition, misuse his office.
I know what you’re thinking: “But wasn’t this tested by the Supreme Court when it upheld Cheney’s secret energy commission?”
No. That case was questionable but well within established legal parameters for conduct of govt officials in the official performance of their duties. This is not – not unless you’re actually prepared to argue that taking revenge on anyone who “criticizes govt policy” is a legitimate function in a White House official’s performance of his duty.
That’s precisely what Bucholtz is arguing, and it’s a position that doesn’t just push the Constitutional envelope, it rips it to shreds. It does – in fact and in law – require the courts to accept an erasure of the Constitution’s careful system of checks and balances intended to limit executive power and make it clear the president is not above the law. The energy commission case approached that line but didn’t cross it. This argument would erase the line completely by demanding that the court replace Constitutional limitations with the absolute, unchecked, unrestricted power of the classic monarchy – and then extend even that by including everyone who works for the
It’s too early to tell if this is just another time-wasting legal maneuver or the actual defense theory Bucholtz would use in a trial, but if it is the latter, the Plame case could precipitate a Constitutional crisis, especially if Judge Bates – who’s thinking it over – accepts it and orders a hearing so Bucholtz can defend his theory and Plame’s lawyer – Erwin Chemerinsky, a Duke University law professor – can try to knock it down.
Bates has a long resume with no obvious political bias in it except that he was Deputy Independent Counsel for Ken Starr’s Whitewater investigation for a year-and-a-half (not a particularly good sign) and for 7 years was an attorney at Miller & Chevalier, a firm specializing in defending corporations with govt contracts from allegations of contract violations. There’s nothing in his background that offers a real clue as to which way he’ll jump.
I don’t want to leap to far into the lagoon of assumption but Bucholtz’s legal theory is extremely dangerous both to the Constitution and, frankly, to the whole concept of a democratic government. If Bates even allows the arguments to be made, we’re potentially in a crisis unlike any we have ever faced.
What he should do is dismiss the claim out of hand as clearly and unambiguously unConstitutional. At this point, I have no idea at all whether he will or not.