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Legal Immunity: To Have and Have Not

By's Jennifer Hoar

Valerie Plame's lawyers want to use a legal precedent for her civil lawsuit from the 1997 Paula Jones case against former President Clinton, but some legal experts say that the case is not directly applicable and isn't guaranteed to succeed in yielding depositions from senior Bush administration officials.

Plame and her husband, Joseph Wilson, filed a lawsuit July 13 against Scooter Libby, Karl Rove and Vice President Cheney accusing them of "intentional and malicious exposure" of Plame's identity as an undercover CIA operative.

The issue at hand is whether or not public officials can be immune to testifying in legal actions taken against them. In 1997, Clinton had argued for, and was denied, immunity by the Supreme Court in the sexual harassment suit filed by Paula Jones while he was still in office.

The Court unanimously ruled that "deferral of this litigation until petitioner's Presidency ends is not constitutionally required." It also said that the president "like other officials, is subject to the same laws that apply to all citizens."

That seems, at first blush, useful in the Plame case. After all, if a president is unable to receive immunity, wouldn't officials in lower positions, such as the vice president, be in the same boat?

"If the argument can work vis-à-vis the president, then it can [be applied] in favor of the vice president," says Georgetown law professor Nicholas Rosenkranz, and that would support the push to make sure Cheney is not exempted from giving a deposition.

That is essentially the line that Plame's defense team will follow.

"[It's] the president on down," Plame's new attorney, Joseph Cotchett, says of the Clinton immunity precedent. "It doesn't single out; it doesn't make a distinction between president and vice president."

However, some interpret the law differently.

"A vice president's absolute immunity has never been specifically decided," says Melanie Sloan, a lawyer and executive director for Citizens for Responsibility and Ethics in Washington (CREW).

Other cases in the annals of legal history have dealt with the legal immunity of public officials, and they have engendered different outcomes. Case(s) in point: President Nixon won absolute immunity in Nixon v. Fitzgerald (1982), yet Earl Butz, a secretary of agriculture, did not in Butz v. Economou (1978).

"The question is whether the vice president is more like the president or a cabinet official," says Georgetown law professor and constitutional law expert Mark Tushnet.

Even if he doesn't get immunity at first, Cheney will certainly and immediately appeal, Sloan says, and like the other immunity cases before it, it could potentially end up in the Supreme Court.

Tushnet doesn't see that happening, though.

"I'd be surprised if the Supreme Court took the case," Tushnet explains, "it's possible it would get there, but it's not likely because it's even more unusual than the Clinton v. Jones case."

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."

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