By Anthony J. Sebok, FindLaw columnist
Special to CNN.com
(FindLaw) -- In 1998, President Bill Clinton was almost forced from office because he lied about whether he had "sexual relations" with Monica Lewinsky in a deposition. The deposition was conducted by lawyers for Paula Jones -- who had sued the president under federal civil rights law and Arkansas tort law.
One of the greatest features of the American civil justice system -- especially its tort law -- is that it gives average citizens the power to force anyone to answer them in court. Could Valerie Plame, the CIA agent whose identity was leaked to the press, take matters into her own hands and use the civil justice system to get Karl Rove -- who may, it seems, have been the leaker -- to answer her in court?
In offering possible answers to this question, I need to also offer a caveat: Media reports on this case may be incomplete and are, in some cases, based on second-hand information and leaks. The facts may turn out to be very different once more is known.
However, as I will discuss in my next column, the holes in the public record may themselves motivate Plame to sue: A civil suit can be an excellent way to force information into the open.
This column explores whether Plame can start that process.
Rove and immunity
A hypothetical case by Plame against Rove would have a number of difficulties, some of which may be fatal to her claim.
The first and most important problem that Plame would have, is that Rove could claim that he is immune from suit because he was a federal employee working for the president when he allegedly injured Plame.
One classic case which deals with the immunity of a federal officer from civil suit -- and that comes close to the Rove/Plame situation -- is the Supreme Court's 1959 decision in Barr v. Matteo.
There, William G. Barr, Acting Director of Rent Stabilization for the United States, suspended two high-level employees whom he accused of misconduct, and he announced this in a press release. The two employees, John J. Madigan and Linda Matteo, sued Barr in the District of Columbia for defamation, alleging that not only had Barr defamed them, but he did so with malice.
The Supreme Court held that Barr was immune. It reasoned that a federal officer "should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties."
Otherwise, the Court feared the onslaught of "suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous and effective administration of policies of government."
In Barr's case, the Court held that the issuance of a press release was within the "outer perimeters" of his official duties and within the scope of his immunity, since as acting director of an executive office, his job required that information be issued to the public through the media. The Court also held that the allegations that there was a malicious motive behind the press release and that it was false, did not compromise the immunity Barr enjoyed.
Does the Barr ruling mean that Rove cannot be sued? I am not so sure.
The Supreme Court has not granted total personal immunity to federal officers exercising their official capacities. And in 1978,in Butz et. al. v. Economou et. al, the Court distinguished Barr from cases where an official is alleged to have violated someone's constitutional rights.
The question presented in Butz was whether the Secretary of Agriculture and lawyers in the Department of Agriculture had deprived some businessmen of their property without due process. The businessmen claimed that after they publicly criticized the department, the department -- in retaliation -- initiated a series of groundless administrative investigations against them.
The Butz Court noted that state officials enjoyed only qualified immunity for knowing violations of their citizens' constitutional rights, and that it would be incongruous to grant federal officials greater immunity.
The Court emphasized, however, that the immunity for federal officers would be lifted only when two conditions were met. First, the federal officer had to "know" he or she was violating someone's rights. Second, the right in question had to be based on a law (such as the Constitution) that directly controlled the federal officer's powers.
Applying immunity doctrines
If we apply the holdings of both Barr and Butz to the hypothetical Rove/Plame case, what can we conclude?
Recall, from Barr, that the justification for any sort of immunity for federal officers is that they should be able to pursue the public good without the distractions of litigation. Does this justification apply in Rove's case?
Rove was not running an agency when the leak occurred, in 2003. He did not even have the title he has now, of Deputy Chief of Staff. Still, in the 1981 case of Harlow v. Fitzgerald, the Court held that qualified immunity was available to presidential advisers.
In that case, Harlow, who was "counselor" to President Nixon, was accused of conspiring to violate the constitutional and statutory rights of A. Ernest Fitzgerald by getting him fired. The Court held that advising the president about who should be fired was unquestionably within an advisor's official capacity.
However, Harlow also endorsed the "functional" approach to immunity law, prescribing that immunity extend "no further than its justification would warrant." Does the justification for advisor's immunity cover Rove -- who was not providing advice to the president when (and if) he apparently spoke to the press about Plame?
Also, does Plame's claim have to hang on a knowing violation by Rove of her constitutional rights in order for her to have a claim? An intriguing line from Harlow suggests otherwise. There, the Court stated that a presidential aide could be sued personally for civil damages insofar as his or her conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known."
One point seems very clear: If Plame wants to sue Rove personally (rather than in his official capacity), it seems that she will have to craft her claim so that she alleges a constitutional (rather than a common law) tort.
Typically, a constitutional tort would involve a deprivation of property, life or liberty without due process of law -- or it could involve an interference with another protected right, such as freedom of speech.
Based on the few publicly available details about Plame's life since her identity as an undercover CIA agent was revealed, it is not clear whether she could identify an injury which would fit easily into one of these categories.
Rove is alleged by some to have violated certain federal laws -- as FindLaw columnist John Dean discussed in a column this month. Could Plame argue that Rove's immunity does not extend to injuries caused by his knowing violation of federal laws prohibiting the unmasking of covert agents?
The advantage of this approach is that Plame would not necessarily have to limit her suit to a claim based on a constitutional injury. Instead, she could argue, for example, that the violation of the federal laws protecting her identity as a covert agent gives her an implied private right of action to sue for damages resulting from Rove's violation of a federal law designed to protect her. (An "implied private right of action" is a civil claim that is inferred from -- but not expressly created by -- a given statute.)
Plame's best chance would be to argue that Rove's actions were not taken within even the "outer perimeters" of his official duties, but beyond those perimeters. Could she prove that? It is difficult to say, given the limited facts publicly available and the murkiness of this area of law.
Given that Rove's job seems to be nothing other than to promote the political power of the president, one could easily imagine him arguing that defending the president -- even by attacking others -- is part of his "official job."
Let's suppose that on both of the issues I've discussed above, Rove prevails: He convinces a court that his actions were taken within his official capacity, and Plame cannot characterize her injury as a constitutional tort or base it on an implied right of action. If so, Plame's next best option would be to sue the federal government under the Federal Tort Claims Act (FTCA).
Under the FTCA, the United States government waives its sovereign immunity and consents to be sued for the torts of its employees. Because the federal government is large and solvent, many plaintiffs would rather sue under the FTCA, than try to sue the individual government employee who injured them.
In the Rove case, in contrast, Plame might prefer to sue Rove personally -- for reasons I will explain in my next column. Yet even a suit against the government might suit Plame's purposes, since she would still be able to pursue discovery and force Rove to sit for depositions.
The FTCA has its own limitations, of course. It permits torts based in negligence, but not most intentional torts. For example, if Rove had accidentally driven his government-owned limousine into Plame's car while on official business, she could have sued the government under the FTCA. But if Rove had maliciously driven the car into her car, she could not sue under the FTCA for battery -- which is an intentional tort. In addition, the FTCA does not waive the government's immunity with regard to suits for defamation.
So once again, the question of whether Plame could sue comes down to what injuries she has suffered and how she would frame her tort claims -- even though, in this context, her claims would be based on the common law, not on the Constitution.
Interestingly, the claims that Plame would most likely be able to allege -- public disclosure of private facts and intentional infliction of emotional distress -- are allowed under the FTCA.
However, even if Plame were permitted to sue the government for Rove's actions under the FTCA, that would not be the end of the story. The underlying common law tort claims that Plame would bring would still have to be good enough to survive a motion to dismiss, if her goal of starting discovery were to be achieved. (A motion to dismiss asks the court to dismiss an action based on legal -- not factual -- claims; hence, judges often stay discovery while they are considering a motion to dismiss.)
In my next column, I will examine the common law tort claims Plame could bring if she did indeed initiate a FTCA suit.
I will also discuss whether a suit by Plame -- were she to bring one -- should be compared to Paula Jones's suit against Bill Clinton, and if so, whether that should make Democrats nervous.
Anthony J. Sebok, a FindLaw columnist, is a professor at Brooklyn Law School.
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