Thursday, June 29, 2006

Pardoning Libby

* findlaw:
"Pardoning Libby would deliver something that prosecuting him might not: evidence that the Bush Administration sanctioned Libby's conduct.
Pardoning Libby, however, would amount to an acknowledgment--from the President, no less--that the leaks were done on behalf of a grateful Administration. The pardon would tell the American people, "Even if Libby did leak Plame's CIA affiliation, obstruct justice, and lie repeatedly to investigators and the grand jury, that's okay because he was trying to help us politically." The Administration's critics have tried--unsuccessfully, as yet--to make that point. A Libby pardon would do it for them.
Pardoning Libby would visit those repercussions upon President Bush. Convicting him would only make him a fall guy and leave the real responsibility for the leak vague.

* yesterday i asked: "(speaking of words, if any other country did was israel is doing tonight, do you think the corpmedia would call it an 'incursion'?)"
amy goodman steps up to the plate (surprise!):
"Israeli forces have invaded the Gaza Strip for the first time since withdrawing ten months ago."
More from the demnow interview:
ALI ABUNIMAH: And we see that reflected also in the world reaction. Is it not astonishing that the entire world knows the name and face of the Israeli soldier, Gilad Shalit, while the hundreds of Palestinian children held in Israel's dungeons, not to mention 10,000 adult prisoners, thousands held without charge and trial, abducted from their homes in the middle of the night by Israeli occupation forces, remain nameless and faceless before a silent world?


oldschool said...

I don't know that there's a whole lot of precedent or case law surrounding the area of presidential pardons, or if there is it's not an area with which I'm familiar. However, it would seem to me that a pardon's most important aspect would be that it should serve to remove any basis for Libby claiming 5th Amendment rights in order to avoid testimony in other matters.

One possibility that comes to mind would be in a civil suit brought by Valerie Plame/Wilson. If I'm representing Libby in such a suit, I advise him to take the 5th until such time as all statutes of limitation for any possible criminal actions have expired. If the pardon, which is sure to come, is a blanket pardon, Libby would have no choice available to him other than to answer anything and everything (assuming relevance). And if there's an effort to stonewall behind a State Secrets claim, you've got a whole lot of Repubs on record as saying that this case represents nothing more than garden-variety Washington hardball politics - not important enough to criminalize, let alone subject to national secrecy.

Another scenario which comes to mind is Libby sitting in front of John Conyers, forced to answer questions in an impeachment investigation. Or facing Russ Feingold in the Senate Judiciary Committe with his Motion for Censure back on the table. Both of these, obviously, depend upon the outcome of the 2006 elections, but a guy can hope, can't he?

lukery said...

thnx oldschool - i'm not an expert in such matters either.

i did see someone (soto?) say recently that the wilsons' civil case has a three-year limitation - which would expire in the next week or two (i'd guess - depending on the starting point)

great point about States Secrets.

i think that you are correct about the 5th. let's hope fitz has war-gamed that one to death. i suspect he's also studied the iran-contra situation extensively as well.

AFAIK - pardons are nullified by impeachment if the impeachment is for the same crime(s) as the pardon. let's hope that whoever writes the articles of impeachment keeps that in mind...

oldschool said...

I've been trying to figure out how a Plame v. Libby et al case might be styled - that is, on what grounds would she sue? I haven't had a whole lot of luck constructing it, but I'm thinking a civil rights violation (for which the statute seems to be four years) combined with one or more state claims, like unlawful interference with a contractual relationship, e.g. It's quite possible that some of the state claims may be close to being time-barred (unsure which state the case would be brought), but I'm pretty sure the civil rights portion has another year.

Fitz's war-gaming - fascinating stuff I think. High-stakes poker indeed. Bush has the ability to pardon, Fitz has the ability to bring more indictments. Fitz is holding more and better cards . IMO, Bush can play the pardon card maybe once while in office, once at the end of his term - tops. Two would be seriously pushing it - to even use his one in-office pardon on Libby is risky in a few ways: a) it smacks of Saturday-Night-Massacre a la Nixon, b) as per above, a blanket pardon makes Libby an potential unprotected witness against the administration, c) pardoning Libby as to only the areas charged (obstruction, perjury, false statements) might just induce Fitz to go all-in and charge the underlying offenses involving blowing the cover of a CIA agent (which play would not necessarily be limited to Libby - all sorts of fun names could pop up). I just don't see how GWB could extend an in-office pardon to Libby which would cover the possibility of Libby's outing a CIA agent - total political death - he needs to save that one for December 2008. Of course, in Dec 2008, he can just pardon anybody he feels like pardoning for anything they've ever done while 'serving' the president.

Now, a smart prosecutor might, if faced with a pardon of Libby's obstruction, realize that *Conspiracy* to obstruct is an altogether different, stand-alone charge (the crime is the conspiracy, not the obstruction). It would, I think, be sufficiently different from the original charges so as to stand on its own, and have the added benefit of once again necessarily bringing in some of those other interesting names.

I also like the conspiracy angle because the statute of limitations on a conspiracy to obtruct charge wouldn't even begin to run until said conspiracy has ceased functioning. Let's just say - no problems there.

I'm just scratching the surface here - but it sure is interesting. And if I had to pick which side of the game I'd rather be on - for this one time I'm gonna pick the prosecution.

And fwiw, my understanding of pardon/impeachment principle is that an impeachment can't be pardoned, not that pardons issued by one who is later impeached are nullified. And I'm never wrong. Never. Ever. Nope. Uh-uh. Doesn't happen.


p.s. I left jayt's saturday night pizza recipe for you down below.

lukery said...

oldschool. sweet analysis - i'll FP it.

i'm not sure what plame vs others would look like. fwiw, soto said: "Depending on where that suit is filed, there may be a 3-year statute of limitations on that filing, and the original action that led to Valerie Plame’s exposure hits the three-year mark . . . next month."

re pardons/impeachment - it is my understanding that if the president is impeached for crime A, any pardons related to Crime A are nullified. but im oft wrong.

saw the pizza recipe. thnx. funny. i'd like for jayt to 'cook' for me one time - although i'd have to claim dibs on one of those glasses of wine.

Wake up said...

The SOL that applies to a § 1983 civil rights action is the one that would apply in the state it arose based on the underlying claim. (that varies from state to state-- the most common is 2 but some are more and some are less.)

I think one could at least argue that a claim based upon publication "arose" in any state where it was forseeable to the defendant it would be published. (there would be other jurisdictional issues of course).

The bigger question is assuming a case would not be time barred is whether a complaint could be crafted that would state a claim upon which relief can be granted. If that can't be done then the case would be dismissed under 12(b) without even any discovery. And, of course, it would be discovery that Wilson and Plame would really be seeking because if allowed it would let them embarrass people.

The questions one must ask are: what if any civil rights arising under the Constitution or statutes were violated by the defendants?

I can't think of any constitutional right a private citizen has not to be criticized by government officials so I think Wilson and as he is certainly a public figure defamtion type theories are non-starters so he is likely gone from the equation.

As for Plame, even if she could prove a violation of disclosure statute by the plaintiffs, she would have to to convince a court that the disclosure statute was intended to create a PRIVATE cause of action. That seems unlikely as no even arguably applicable statute of which I am aware expressly creates a private cause of action and there is nothing in the legislative history suggestive of such an intent by Congress.

I think the talk of a civil suit is probably just talk but I could see them filing one just to keep the story in the news (finding a lawyer willing to take it for no money knowing it will likely lose should be no problem because of both political motives and the chance to get one's name in the paper). the chances of it even surviving a motion to dismiss prior to dicovery would seem remote.

Wake up said...

" - it is my understanding that if the president is impeached for crime A, any pardons related to Crime A are nullified. but im oft wrong."

You are correct; you are wrong. I addressed this in a nother post. all Article II, section 2, par. 1 means is that a Preident cannot issue a pardon applicable to cases of impeachment. It does not mean that a president cannot pardon someone in a criminal case before the courts if the person is also subject to impeachment. The pardon would relate only to criminal action before the courts and not to the impeachment but its effect on the criminal action would not be affected.

Kathleen said...

And lawyers never disagree on the interpretation of a statute, not ever.

Plame could be bringing a suit for damages to her profession, assests, which damages may have occured outside the country, then a different SOL might apply and perhaps even a different venue than State Court.

Usually when there is diversity of residences of the Plaintiff, the Defendants or where the damage is alleged to have happened, the Plaintiff can bring the suit in Federal Court, especially if the amount of the damages alleged exceeds a certain minimum.

Wake up said...

"And lawyers never disagree on the interpretation of a statute, not ever."

No. they disagree frequently on particular applications.

"Plame could be bringing a suit for damages to her profession, assests, which damages may have occured outside the country, then a different SOL might apply and perhaps even a different venue than State Court."

An action against federal officials acting in their official capacities would have to be brought under the FTCA or § 1983. FTCA specifically excludes actions for libel, slander, misrepresentation, and interference with contract or other business relationships. In any event, FTCA has a 2 year SOL which has expired.

To state a claim under § 1983 you have to allege a FEDERAL CIVIL RIGHT was violated by the defendants acting under color of law. As I said, I doubt anything the potential defendants would be construed as violating her civil rights as opposed to generally just harming her.

"Usually when there is diversity of residences of the Plaintiff, the Defendants or where the damage is alleged to have happened, the Plaintiff can bring the suit in Federal Court, especially if the amount of the damages alleged exceeds a certain minimum"

Not usually-- ALWAYS when there is total diversity (all plaintiffs reside in different states than all defendants) and the amount in controversy is pleaded to exceed the jurisdictional threshold tha action CAN be brought in federal court. Also, cases in cases asserting both federal and state law claims the federla court can exercise jurisdiction over the federal AND STATE LAW claims under ancillary and pendent jurisdiction. However, this does not work the other way and state courts cannot exercise jurisdiction over federal law claims only federal courts can do that.

The point you are MISSING is that in this situation it seems almost certain any case would be REQUIRED to be tried in federal court because the state courts would lack jurisdiction over claims against federal officials acting in their offical capacities because those are by definition federal law claims.

However, under § 1983, the SOL that would apply IN FEDERAL COURT is the SOL of the state where claim arose -- which as I said, at least arguably could be any of them.

Why you persist in arguing about things you don't understand, I cannot explain.

lukery said...

thnx WU.

Sibel's FTCA case was filed march 05 - but she was sacked early 02 - so presumably there's at least a 3 year SOL? - or perhaps there are some complications around when the clock starts ticking?

Incidentally, looking at Sibel's claim, there are a number of things listed there such as foregone wages, and lawyers costs and whatnot. Perhaps Plame could argue for similar items?

In any case, the Wilsons put out a statement that they are still considering legal action when rover was 'exonerated' - so i presume they have considered these things and have some sort of plan.

Wake uo said...

i don;t know about Sibel's case. The way FTCA works is you must file a claim with the agency within 2 years. Under the FTCA filing that adminisstrative claim is a prequisite to filing a civil action in court. If the agency does not render a decision within 6 months then one can file the civil action (and of course one can file in court if the agency decision is adverse).

In FTCA cases there can sometimes be actions by the agency that would toll the SOL. For example, as in other types of cases, if the defendant is shown to have concealed or misrepresented information from a plaintiff that prevented the plaintiff from relaizing he had a claim the SOL would not begin running until the plaintiff knew or should have known. (That's not the only grounds for tolling but it is quite common).

Wake up said...

As for plame's case. First, she was not terminated. Second, there appears to be no argument her earning capacity was impaired in terms of working for the agency or otherwise. (In fact, financially it is probably the best thing that ever happened to her.)

One could, I think, argue that even though there was no actual financial loss that damages should be awarded on the basis that she lost the ability to pursue a line of work she would have otherwise pursued and that loss has value. It's a variant of hedonistic or loss of ability to enjoy life damages. That's an iffy basis for damages but i do think it is possible.

However, one first must have a legally cognizable claim upon which relief can be granted-- so she will still have to establish that a PRIVATE cause of action exists under any violated statutes. There is no common law tort of exposing a spy, so the action will probably have to be based on statute and I doubt any court will hold a private cause of action was created by Congress.

lukery said...

thnx again WU

IANAL - so i cant even comment - but if you are interested - here is sibels ftca claim

wake up said...

Wow. I don't recall reading about that. The allegations are quite damning and the complaint certainly suggests to me that at least many of them are well documented.

Note, that she specifically pled in paragraph 4 that she did file her administrative claim within 2 years to satisfy the FTCA SOL. Also, in paragraph 2 she also alleges the FBI is continuing 9as of the date of the complaaint) to engage in actions causing her harm

lukery said...

jeebus. i'm a sibel expert. her stuff is really serious. and if you are surprised, i suspect you've only read a quarter of it.

check out the links at the top/right of my site - let me know if you have any questions.

Wake up said...

All I read was the complaint you linked in your last post. The allegations speak for themselves. My comment on the "documentation" was based on the many excerpts from internal memoranda and investigative reports that supported her position. Paper trails like that obviously make lawyers happy- especially when they were generated by agents of the adverse party.

I'll take a look at some of the other links.

Wake up said...

I've looked at some of your stuff on Edmonds (you might want to organize a single comprehensive narrative!).

It's a LOT less persuasive than the allegations in the FTCA complaint that the Dickerson's had very suspicious ties to Turkish interests and Edmonds was retaliated against for alerting her superiors. In fact, were I representing the defendant, i'd most likely want to make sure everyone knew that in addition to the straightforward and seemingly well-documented allegations she made in complaint and identified as the reason for her termination that she was additionally making very extreme allegations that appear to consistently draw the most extreme conspitatrial conclusion from every basic fact and also may well involve her disclosing some of that basic information when she should not have been disclosing it because she read it as part of her job. As a defendant, i would try to establish she wasn't canned for her legitimate points about operational shortcomingd in the linguistics section or her complaints about Dickerson and the response but because all this other stuff revealed her to be a loose cannon not suited for this type of employment.

Her case looked a lot better to me before the additional background.

emptywheel said...


Is there grounds for suit on Privacy violation? Among other things, we know that two SAOs were floating Plame's W-2 from 1999 as proof she worked for Brewster Jennings (this would be Fall 2003).

Kathleen said...


Enjoyed your observations, found them instructive on pardons, impeachment and what it is. The conspiracy charge feels plausible to me.


I think Sibel and Plame both being employed by the US gives their claims a simuilarity. In Plame's case, her profession being leaked, thus rendering her inoperable, could be viewed as her employers concealing that Plame had a cause of action by covering up their leaking.


ALWAYS on diversity works for me and CAN for Federal court too, THANKS for the info.

Also, Federal court has jurisdiction, blah, blah, I know that's why I raised the issue of diversity, venue and jurisdiction.

No thanks for your handslapping for daring to enter the discussion. Hear and there, I have learned some things from you, not the ones you want to shout at me, but your scolding, insulting manner make it unpleasant.

lukery said...

WakeUp - yeah - my sibel stuff is very messy. apologies for that.

and, yep, a lot of the case is very conspiracy-sounding. there's a very good reason for that.

re her dismissal, the IG has already basically ruled that she was fired illegitmately. that report is here (altho i dont recommend reading it - it focuses on some very low-level stuff)

you probably have a somewhat incorrect understanding having read my stuff (as disjointed and speculative as much of it is)

For a more measured take, read the VanityFair article

and also see her letter to the 911 Commission after the report was released (she testified a few times)

also - this interview with larisa mentions how the plame / brewster jennings / sibel stories intersect - which might be of interest

lukery said...

wakeup - one other story for you to read re sibel

she says this is the best synopsis of her story