Legal Immunity: To Have and Have Not

Plame Defense Will Use Clinton Precedent In Bid To Depose Cheney, Libby, Rove

(CBS)  Also, the circumstances of Clinton v. Jones that precluded Clinton's immunity are distinct from those in the Plame case insofar as: the type of conduct in question, and the timing of its perpetration.

In Mr. Clinton's case, the charges against him involved private, thus unofficial, acts. Plus, they were allegedly committed before he became president. Both of these points were cited in the Supreme Court ruling refusing his immunity.

Yet the Plame lawsuit involves actions taken by Cheney, Libby and Rove that a.) occurred while they were public servants and b.) were, arguably, of an official, not personal, nature.

Tushnet believes that if Cheney's defense team tries to argue, for instance, that the Plame disclosure was not in the scope of the vice president's job, "it's not going to work."

"He had access to Valerie's name only because he was vice president," Tushnet explains, he "couldn't have done the harm unless he was officially employed in the position he held."

Cotchett said he recognizes the burden in proving whether the officials' actions can be considered official. Either way, he insists that the law was broken in the officials' revealing his client's name.

"We have to show what the conduct was," he says, "and even if the conduct wasn't 'private,' we have to show the conduct was illegal."

In the end, Tushnet does not believe that Cheney will be found liable anyway.

"There are lots of escape hatches he has: one is absolute immunity, two is he didn't do anything wrong," Tushnet says. As for Rove, he "is a more obvious political figure, and he doesn't have the same aura as the vice president."