Cheney Claims Absolute Immunity From Suit

Via Devil's Tower, Vice President Cheney makes an extraordinary argument:

Attorneys for Vice President Cheney and top White House officials told a federal judge today 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.

. . . Attorneys for Cheney and the other officials said any conversations they had about Plame with each other and reporters were part of their normal job duties because they were discussing foreign policy and engaging in an appropriate "policy dispute." Cheney's attorney went farther, arguing that Cheney is legally akin to the president because of his unique government role, and has absolute immunity from any lawsuit.

"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 it was] true or false?," U.S. District Judge John D. Bates asked.

The argument is akin to the absolute immunity granted to judges and prosecutors and the qualified immunity granted state actors in Section 1983 and Bivins suits. Except Cheney is arguing that the Vice President is like the President.

Does the argument make any sense? Does Jones v Clinton shed any light on this, considering the Jones suit was for alleged acts when Clinton was not President? I'll explore these issues on the flip.

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.

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  • Display: Sort:
    heh (5.00 / 1) (#1)
    by taylormattd on Thu May 17, 2007 at 06:10:12 PM EST
    I made this same argument back when the suit was filed. Glad to see someone agrees with me.

    Darth Cheney (5.00 / 1) (#2)
    by profmarcus on Thu May 17, 2007 at 06:45:49 PM EST
    the staggering, unbelievable, unmatched arrogance of power...

    And, yes, I DO take it personally

    Interesting. (none / 0) (#3)
    by Edger on Thu May 17, 2007 at 06:53:58 PM EST
    The legal arguments are beyond my knowledge. But he didn't deny any wrongdoing. Is that significant?

    Not so simple (none / 0) (#4)
    by Tom Maguire on Thu May 17, 2007 at 08:25:10 PM EST
    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

    Naturally it is not that simple - if Cheney was not aware of Ms. Plame's classified status then such an order would be a good-faith mistake, rather than a crime.

    Or, if despite her classified status she did not meet the other requirements of the IIPA, then it would not be a crime.

    Too bad we never had a Special Counsel sort through all this... oh, wait - no one was ever charged with a criminal leak.  I wonder if that will be a clue for the court to consider?

    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.

    Setting aside the lack of indictments on this point, my recollection of the Wilson suit is that they claim the damage was in the leaks to the reporters, not the lies to the investigators.

    The perjury might be relevant in establishing his credibility or state of mind but I am not so sure it would be relevant in determining whether he damaged the Wilsons or was immune with respect to the press leaks (not the subsequent investigation.)

    That said, I'll go along with your take on the Vice-Presidential immunity not being the same as the Presidents.  However, folks falling down over Cheney's arrogance should remember this is a legal argument, not a campaign speech.  If it is wrong, the judge will say so, but the lawyer is paid to give it a spin.

    My examples were (5.00 / 4) (#5)
    by Big Tent Democrat on Thu May 17, 2007 at 09:41:12 PM EST

    I think most of your points valid.

    Your last graf goes without saying.

    I do think the VP is like the Prez argument an unnecessary overreach.

    And unnecessarily provocative. Non-lawyers were sure to react to it and I do not see the legal ground gained by arguing it.


    oddly enough (none / 0) (#6)
    by cpinva on Thu May 17, 2007 at 11:17:43 PM EST
    no one is immune from suit, for an illegal act. so, that is the defining issue: were mr. cheney's acts illegal?

    Lovely Analysis (none / 0) (#7)
    by Batocchio on Fri May 18, 2007 at 01:48:06 PM EST
    Lovely analysis, very clearly spelled out.  While a layman can smell there's something wrong with Cheney's argument, it's nice to have the thorough and detailed reasoning here.

    Potential law review article. Well written. (none / 0) (#8)
    by oculus on Fri May 18, 2007 at 02:33:25 PM EST
    Cheney is just stating the obvious, (none / 0) (#9)
    by Palli on Fri May 18, 2007 at 06:31:32 PM EST

    Cheney is just stating the obvious, he is the president.  They don't even have to pretend to hide Bushes' work product....they explained it away long time ago. Remember: "I don't (do) email" from Bush.  

    We won't impeach the president because we are afraid of Cheney.
    We accepted the Supreme Court selection because we were afraid of what it might to the nation, instead of what they might do to democracy,

    I know this is complicated, trying to get out of this hole,,,but

    the canyon of history, it rhymes -- not echoes (none / 0) (#10)
    by the rainnn on Sat May 19, 2007 at 11:58:21 AM EST
    just to round out this
    discussion -- the meat of
    which i missed while out
    of the country -- but i
    did find time to jot down
    some answers -- in the form
    of points-and-precedents-legal
    analysis, after reading the
    wilsons' memo of law, and the
    simply preposterous one submitted
    by mr. cheney's lawyers -- it is
    simply nixonian silliness
    . . .

    ". . .i think the wilsons have a decent chance
    of either (a) succeeding because cheney
    was a rogue -- or (b) losing, because
    cheney was acting upon an implicit policy
    that simply reflected this administration's
    view of the united states as a military
    bully-boy in the larger world. . .

    as i type that, i think the wilsons
    losing the civil suit might be the
    most-damaging thing ever to happen
    to this presidency. it will flatly
    equate bush-cheney-rove-rice-rumsfeld. . .


    nixon-agnew-kissinger-erh-and-rumsfeld-cheney. . .

    yes -- that's exactly right -- res ipsa. . ."

    and, thinkprogress has a priceless
    link to 10 seconds of nixon at
    his finest on the "absolute
    immunity/unitary executive thingie
    . . ."

    little wonder that cheney would
    ape it -- given that he got his
    start, with rumsfeld, in the nixon
    white house. . .

    sheesh.  see mine for the video, too.

    Nice confession, though. (none / 0) (#11)
    by eplebneesta on Sun May 20, 2007 at 08:20:29 PM EST
    Since when is discussing classified information with uncleared reporters a legitimate part of discussing foreign policy?  Perhaps Bush could convince a judge that he had no idea he was doing something wrong.  But not Cheney. I doubt that discussing classified information with uncleared people is in anyone's job description.

    But it was nice of him to confess.


    How can anyone anywhere possibly believe that Cheney will hand over the power of the unitary executive to anyone but his hand picked successor?  Can you imagine him allowing Hillary to have the power to wire tap him and his Haliburton cronies?  Republicans have, after all, received donations from confessed supporters of terrorism.
    I seriously doubt that he has done unto others as he would have them do unto him.

    We need to investigate the voting process NOW.

    If HPV vacciniation promotes promiscuity,
    ... then confession promotes sin.

    We can survive attacks by AQ.
    We can't survive attacks on our Constitution by our representatives.
    ... We may still be called Americans, but we won't be Americans.

    E Pleb Neesta
    Blessed are the cheese makers.