First, 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.

What if we granted that point? Would it still work? I thyink not and I think Clinton v. Jones is instructive. In Clinton v. Jones, the Supreme Court said:

The principal rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. In cases involving prosecutors, legislators, and judges we have repeatedly explained that the immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability. [n.18] We explained in Ferri v. Ackerman, 444 U.S. 193 (1979):

"As public servants, the prosecutor and the judge represent the interest of society as a whole. The conduct of their official duties may adversely affect a wide variety of different individuals, each of whom may be a potential source of future controversy. The societal interest in providing such public officials with the maximum ability to deal fearlessly and impartially with the public at large has long been recognized as an acceptable justification for official immunity. The point of immunity for such officials is to forestall an atmosphere of intimidation that would conflict with their resolve to perform their designated functions in a principled fashion." Id., at 202-204.

That rationale provided the principal basis for our holding that a former President of the United States was "entitled to absolute immunity from damages liability predicated on his official acts," Fitzgerald, 457 U. S., at 749. See id., at 752 (citing Ferri v. Ackerman). Our central concern was to avoid rendering the President "unduly cautious in the discharge of his official duties." 457 U. S., at 752, n. 32. [n.19]

This reasoning provides no support for an immunity for unofficial conduct. As we explained in Fitzgerald, "the sphere of protected action must be related closely to the immunity's justifying purposes." Id., at 755. Because of the President's broad responsibilities, we recognized in that case an immunity from damages claims arising out of official acts extending to the "outer perimeter of his authority." Id., at 757. But we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity. See id., at 759 (Burger, C. J., concurring) (noting that "a President, like Members of Congress, judges, prosecutors, or congressional aides--all having absolute immunity--are not immune for acts outside official duties"); see also id., at 761, n. 4.

Moreover, when defining the scope of an immunity for acts clearly taken within an official capacity, we have applied a functional approach. "Frequently our decisions have held that an official's absolute immunity should extend only to acts in performance of particular functions of his office." Id., at 755. Hence, for example, a judge's absolute immunity does not extend to actions performed in a purely administrative capacity. See Forrester v. White, 484 U.S. 219, 229-230 (1988). As our opinions have made clear, immunities are grounded in "the nature of the function performed, not the identity of the actor who performed it." Id., at 229.

Petitioner's effort to construct an immunity from suit for unofficial acts grounded purely in the identity of his office is unsupported by precedent.

Functionally speaking, the inquiry is exactly the same for qualified and absolute immunity. The inquiry is was the Vice President acting in his official capacity or in his unofficial capacity. If, for example, Cheney ordered Libby to disclose Plame's identity, he would be ordering him to engage in an illegal act, and that simply can not be considered an act thought to be in good faith an official act by Cheney.

If he ordered Libby to perjure himself or obstruct justice, for example, this too could not be an act believed to an official act taken in good faith.

Remember the standard for qualified immunity:

Under the doctrine of qualified immunity, public officials "generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). The doctrine protects such officials from liability for mere "mistaken judgments" about the legality of their actions. Malley v. Briggs , 475 U.S. 335, 343 (1986). To determine whether a public official has violated clearly established law, a court must evaluate the objective reasonableness of the alleged conduct in light of legal precedent. See Harlow , 457 U.S. at 818 . "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton , 483 U.S. 635, 640 (1987). We therefore focus our analysis on specific facts and not on the right in the abstract, see Rivera-Ramos , 156 F.3d at 279-80, but "the very action in question [need not] ha[ve] previously been held unlawful," Anderson , 483 U.S. at 640 ; see also Mitchell v. Forsyth , 472 U.S. 511, 535 n.12 (1985) ("We do not intend to suggest that an official is always immune from liability or suit for a warrantless search merely because the warrant requirement has never explicitly been held to apply to a search conducted in identical circumstances."); accord St. Hilaire v. City of Laconia , 71 F.3d 20, 25 (1st Cir. 1995). Rather, "a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful." United States v. Lanier , 117 S. Ct. 1219, 1227 (1997) (alteration in original; internal quotation marks omitted). 2 Thus, all that is needed is that, "in the light of the preexisting law[,] the unlawfulness must [have] be[en] apparent." Anderson , 483 U.S. at 640.

It appears to me that Cheney must face the same standard. The facts will determine the result but Cheney's claims seem to clearly be an overreach.