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About Those Poison Pills…


UPDATECrooks and Liars has the video up of the Wilson press conference.  Thanks, John!

So, I spent some quality time with my highlighter, a fine point red pen, and the Wilson complaint last night.  And I had a fine conversation with a couple of lawyer friends about the complaint as well — it has been a while since I had my hands on a civil matter, and I wanted to double check some of my gut reactions to the document. 

There are a number of complex legal issues wrapped into this twenty-three page complaint filed on behalf of the Wilsons yesterday, and I want to be sure that I have a solid understanding of the legal precedents involved, so that everyone can get a good understanding of where things stand with this.  Especially with regard to the Bivens case and the issues of qualified immunity and other immunity grounds that may be argued on behalf of the defendants therein. 

But I know everyone is also waiting for some analysis on the complaint, so I want to take a first pass on it with everyone and get some thoughts from the legal folks in the readership based on their federal civil litigation experience (something that I do not have a lot of in my legal background, let me just say right up front). 

This civil complaint is a bit unusual, in that from the very first page, it reads like a political document aimed just as much at the media and at the public discourse as at the court itself.  This is to be expected, I suppose, when youa re dealing with high level government officials who are accused of stepping outside their public duties in a personal mission of payback against a man who called them on their lies to the public — but still, from my read through, it is very different from every other civil complaint that I have dealt with in my legal career.  (That said, I sure as hell haven’t spent time suing the President’s cronies, either, and I haven’t exactly lived my life in the beltway legal power circles, so ymmv.)

Here are my initial observations on the Wilson’s complaint (and the Muck has a non-PDF version for your perusal):

— On page 1, para. 1, the case starts with a bang, with the quote from GHWB:

….I have nothing but contempt and anger for those who betray the trust by exposing the name of our sources. They are, in my view, the most insidious of traitors."

This is a poke on several levels, and amusing in that standing outside the fray looking in sort of way.  GWB has issues with his father, we have been told over and over by family and friends and insiders in the Bush milieu, and this quote just rubs salt in that wound by pointing daddy’s finger directly at all of Junior’s minions.  Beyond that, I have heard that not only did Joe Wilson try directly and through back channels to let the Administration quietly know that the "16 words" were in error, but that a number of GHWB’s old gang tried to also do so on Amb. Wilson’s behalf, much to the irritation of Junior and the consternation of Dick Cheney.  This has always been tied up in the run-up to the Iraq conflict and ego and hubris and all those nasty bits in between.

And the civil case will allow a whole lot more of this to come out, if it survives the initial attempts at summary judgment.  (But that is an involved topic for later this weekend, I’m afraid, because explaining the odds on the various permutations is a post all its own, I’m afraid.)

— There are a number of other pokes along these same lines as well.  On page 3, para. 8, the mention of the GHWB commendation to Wilson.  (Junior is, reportedly, miffed that dad gives out praise to others, but doesn’t often give him the same praise, I have heard through the grapevine.  And Babs, while overprotective of her Georgie, isn’t the same as getting a pat on the head from dear old dad.  Interesting, no?) 

Smack #3 at the President comes out of his own mouth, on page 5, para. 15:  "if there is a leak out of my administration, I want to know who it is.  And if the person has violated law, the person will be taken care of."  (Oh, really?)

— The conspiracy counts deal with current and former high-level Administration officials in the White House and actions taken by and on behalf of those officials (p. 1-2, para. 2) and "persons who were either employed by the United States government in senior positions at all times relevent to this Complaint or who were political operatives with close ties to such persons."  (p. 4, para. 12)

Here’s a good question:  "political operatives"  — does this include Mary Matalin after she left government service as well as Karen Hughes, both of whom were members of the WHIG?  How about Ken Mehlman at the RNC?  There are a LOT of Cheney/Rove/Bush surrogates out there who were doing an awful lot of whispering, including the Boris and Natasha duo of Joe DiGenova and Victoria Toensing, at various points.  (Just peeking back through Meet the Press after Joe Wilson’s op-ed is going to be a hoot, let alone Andrea Mitchell’s dinner party listing, including the high-level neocon guest list that she and Alan Greenspan host each year for various functions.)  That little piece of the complaint alone is worth a whole lot of thought, consideration, speculation and clip digging.  Let the games begin…

— The "John Doe" defendants are placeholders.  This is a common strategy in civil complaints at the beginning of a case, prior to discovery being initiated, where you have likely defendants in mind and some evidence of their involvement in problematic behavior, but not enough evidence to survive summary judgment on them.  So you hold their place until you have enough discovery and evidence to add them into the complaint.

— Do the Wilsons know who Pincus’ source was for his mid-June article?  (p. 7, para. g.)  How about the source for the Pincus/Allen article?  Because if they do, they may have some Administration insiders who have been feeding them information out of disgust for the Cheney cabal taking things too far…and wouldn’t THAT be interesting?

— Something that has been bugging me for a while, who was the CIA contact that fed Cheney the information on Valerie?  (p. 8, para. h)  How high did they go?  Was it Fleitz — or Tenet?  That would be an interesting nugget to know, wouldn’t it?

— On the poison pills:  there are various points in the complaint that assert issues as the government (via Patrick Fitzgerald in his indictment and case against Libby) has asserted them.  There are a lot of arguements either way on this (and looseheadprop and I batted this back and forth a bit yesterday, because I needed to bounce this issue around a bit — it’s complicated in a good mental chess sort of way).  Generally, the "government" is tied to its arguments.  But you have individual defendants here, sued in their individual capacity — but it will be very difficult for themto argue against what the government has already laid out as its case.

Here’s an example:  on p. 10, para. o, they pull information directly out of one of Fitzgerald’s filings (of 5/12/06) regarding the Wilson op-ed that Cheney ripped out of the paper, annotated in his own handwriting with "marching orders" on the Wilsons, and that Libby saw.  And that the government, via Fitzgerald, has argued showed focused attention by Cheney and Libby on the Wilsons, including on Valerie.  ("Wife sent on boondoggle" ring any bells?)

There are a number of these written into the complaint.  And the reason they are "poison pills" in my estimation is because it will be hard for the individual defendants to argue a completely different point of view from that which the government has alreayd taken and, in a few cases, the poison pill arguments are in the form of a "when did you stop beating your wife" sort of construction.  That is going to be a very interesting maneuver for defense counsel in a few points.  And I wanted to bring that to everyone’s attention, because I really want some thought process on the ones everyone else spots.

I hope to have a more substantial analysis for everyone tomorrow morning, likely the second thread of the day — but first, I need to re-read the Bivens case and look at a whole line of Presidential and government employee immunity issues.

…glad I stocked up on coffee…

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com