No Easy Answers

For those who don't check the list of Libby pleadings ...

February 9: Libby Motion to Admit Mitchell [Doc 275]

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This is good for something. Wilson's January 16 Opposition to the Motions to Dismiss is a good read too.

/cough/

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      Case 1:06-cv-01258-JDB            Document 35        Filed 01/25/2007       Page 1 of 9



                        IN THE UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


VALERIE PLAME WILSON, et al.,       )
                                    )
                    Plaintiffs,     )
v.                                  )
                                    )                  Civil Action No. 06-1258 (JDB)
I. LEWIS (a/k/a "SCOOTER") LIBBY    )
JR., et al.,                        )
                                    )
                    Defendants.     )
____________________________________)


                  AMICUS CURIAE BRIEF OF JUDICIAL WATCH, INC.
                         IN SUPPORT OF NEITHER PARTY

       Judicial Watch, Inc. ("Judicial Watch"), by counsel, respectfully submits this amicus

curie brief, not in support of any of the parties to this action, but to address important issues of

laws raised by Defendant Vice President Richard B. Cheney ("the Vice President"). Judicial

Watch states as follows:

                           INTEREST OF THE PROPOSED AMICUS

       As set forth in Judicial Watch's motion seeking leave to file this proposed amicus curiae

brief, Judicial Watch is a not-for-profit organization that seeks to promote accountability,

transparency and integrity in government and fidelity to the rule of law. In furtherance of these

goals, Judicial Watch regularly monitors on-going litigation, files amicus curiae briefs, and

pursues public interest litigation of its own, among other activities. Judicial Watch seeks to

participate as amicus curiae in this matter for two separate, but interrelated reasons. First,

Judicial Watch is particularly concerned about the Vice President's assertion of absolute

immunity. Second, the absolute immunity advocated by the Vice President is based largely on an

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overly broad interpretation of Cheney v. U.S. District Court, 542 U.S. 367 (2004), a case in

which Judicial Watch was a party. This gives Judicial Watch a unique perspective on the U.S.

Supreme Court's ruling in Cheney ­ a perspective that no other party in this case has.

                              SUMMARY OF THE ARGUMENT

       The Vice President seeks to establish a never before recognized absolute immunity for the

Vice President based on an overly broad interpretation of the U.S. Supreme Court's ruling in

Cheney and a misplaced reading of the U.S. Supreme Court's ruling in Nixon v. Fitzgerald, 457

U.S. 731 (1982). In his brief, the Vice President contends that the Amended Complaint should

be dismissed in its entirety because "the Vice President of the United States is absolutely immune

from civil suit when acting in his official capacity." Defendant Vice President of the United

States Richard B. Cheney's Motion to Dismiss Plaintiff's Amended Complaint ("Mot. to

Dismiss") at 18. This sweeping assertion is based on two primary points: (1) the U.S. Supreme

Court's decision in Fitzgerald regarding the absolute immunity of the President; and (2) the U.S.

Supreme Court's ruling in Cheney. Id. These two points, argues the Vice President, "compel the

conclusion that the Vice President is absolutely immune from civil suit for his official acts." Id.

This is not, however, the case, as the Vice President has misapplied the holding of Fitzgerald and

overstates the holding of Cheney.

       In addition to being contrary to precedent, the Vice President's assertion of absolute

immunity strikes out on an unnecessarily dangerous path that threatens a long held principle of

judicial restraint. In particular, by seeking an unnecessarily sweeping and absolute immunity, the

Vice President's request runs contrary the longstanding principle of deciding constitutional




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questions only as a last resort and in the least expansive way possible. See, e.g., Ashwander v.

Tennessee Valley Authority, 297 U.S. 288, 347 (1936).

                                           ARGUMENT

I.     U.S. Supreme Court Precedent Does Not Support the Vice President's
       Assertion of Absolute Immunity.

       Contrary to the Vice President's contentions, the U.S. Supreme Court did not recognize a

blanket, absolute immunity for the President in Fitzgerald. Rather, the Court held that, under a

certain set of circumstances, the President is entitled to absolute immunity. Fitzgerald, 457 U.S.

at 754. Specifically, the Court held that in "private suits for damages based on a President's

official acts," exercising judicial jurisdiction over the President is not warranted. Id. However,

this did not result in a blanket grant of absolute immunity from the exercise of all judicial

jurisdiction over the President. In fact, the Court clearly confirmed that there were circumstances

under which the exercise of judicial jurisdiction over the President was warranted. Id. at 753-54

(serving broad public interests in maintaining the proper separation of powers and vindication of

the public interest in an ongoing criminal prosecution are two such exercises). Therefore, if the

President can be subject to judicial jurisdiction in certain circumstances, then certainly the Vice

President is subject to judicial jurisdiction in certain circumstances as well.

       Also contrary to the Vice President's contentions, the Court's application of Fitzgerald in

Cheney does not compel the conclusion that the Vice President is absolutely immune from civil

suit for his official actions. Mot. to Dismiss at 18. First, the Cheney holding applied to a narrow

set of circumstances and did not result in a broad finding of absolute immunity. The specific

question before the Court in Cheney pertained to discovery orders and whether the Vice President



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could obtain mandamus relief from those orders. Nowhere in Cheney did the Supreme Court

state that the Vice President is entitled to absolute immunity. In fact, the phrase "absolute

immunity" does not appear in the Court's opinion. Rather, the Court held that the separation of

powers analysis in Fitzgerald should "inform the court of appeals' evaluation of a mandamus

petition involving the President or the Vice President." Cheney, 542 U.S. at 382. This narrow

holding is far too thin a reed to support extending the absolute presidential immunity of

Fitzgerald to the Vice President.

        Second, like the lawsuit in Fitzgerald, the causes of action in Cheney were based on acts

performed in an official capacity. In Cheney, those acts were in relation to meetings of the

National Energy Policy Development Group, which the Vice President had been asked by the

President to chair. Cheney, 542 U.S. at 372. The Court in Cheney expressed concerned with the

Executive's ability to perform its constitutional duties and any interference that might result from

the exercise of judicial jurisdiction over it. Cheney, 542 U.S. at 382 ("Accepted mandamus

standards are broad enough to allow a court of appeals to prevent a lower court from interfering

with a coequal branch's ability to discharge its constitutional responsibilities."); see also

Fitzgerald, 457 U.S. at 754 (applying the immunity to "merely private suit[s] for damages based

on ... official acts).

        In this case, the Vice President is being sued in his individual capacity, not in his official

capacity. Amended Complaint at ¶ 11. This distinction is not insignificant. In both Fitzgerald

and Cheney, the Supreme Court's deference to the Executive was based to a large degree on

protecting the Executive from interference and distractions in the "performance of its

constitutional duties." Fitzgerald, 457 U.S. at 753, n.32; Cheney, 542 U.S. at 382. Logically,


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this concern is at least somewhat less significant where a suit is brought against the President or a

lessor Executive Branch official in his or her individual capacity. See, e.g., Clinton v. Jones, 520

U.S. 681 (1997). Suits brought against Executive Branch officials in their individual capacities

limit, at least to some degree, the "danger of intrusion on the authority and functions of the

Executive Branch." Fitzgerald, 457 U.S. at 754; Clinton, 520 U.S. at 702-03.

       In this regard, in seeking to extend the absolute presidential immunity of Fitzgerald to the

Vice President, the Vice President argues that an important consideration is the "close link ­ both

in the public eye and in the operation of the respective office ­ between the President and the

Vice President." Mot. to Dismiss at 20. Even if the link between the two offices is a close one,

it does not justify extending absolute immunity to the Vice President.

       Importantly, the Vice President himself has a relatively limited constitutional role.

Unlike the plethora of powers and duties vested in the President, the Vice President has only one

constitutional duty: "the Vice President of the United States shall be President of the Senate, but

shall have no vote, unless they be equally divided." U.S. CONST. Art. I, § 3.1 This can hardly be

considered such a "close link" with the powers and duties vested in the President that the

absolute immunity afforded to the President should be extended to the Vice President as well.

While the Vice President may take on duties and responsibilities beyond those set forth in the

Constitution in order to assist the President in the exercise of the President's constitutional



       1
                The Vice President also argues that U.S. CONST. amend. XXV justifies absolute
immunity for the Office of the Vice President. Mot. to Dismiss at 20. However, in the event that
U.S. CONST. amend. XXV became necessary, the Vice President would no longer be acting in his
role as Vice President, but instead in the role of President, affording him all of the powers and
duties of that office. Triggering U.S. CONST. amend. XXV does not grant absolute immunity to
the Vice President. Rather, it makes the issue moot.

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powers and duties, having a "distinctive and highly visible position" closely linked to the

President should not entitle the Vice President to absolute immunity. In fact, the Supreme Court

previously denied presidential aides and cabinet secretaries this same type of "derivative"

absolute presidential immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 811 n.17 (1982) ("Suits

against other officials -- including Presidential aides -- generally do not invoke separation-of-

powers considerations to the same extent as suits against the President himself"); Butz v.

Economou, 438 U.S. 478 (1978). In Cheney, the Court only commented on the visibility of the

Office of the Vice President as a factor to be considered in determining whether to grant or deny

mandamus relief, not whether the Vice President should be afforded derivative absolute

presidential immunity or absolute immunity in his own right. Cheney, 542 U.S. at 386. Cheney

thus does not support granting any form of absolute immunity to the Vice President, and the

holdings of Harlow and Butz control instead.

II.    Judicial Restraint Does Not Support the Vice President's Request For
       Absolute Immunity.

       It is a fundamental principle of judicial restraint that courts should not decide a question

of constitutional law when alternate grounds exist to adjudicate an issue. See Ashwander, 297

U.S. 288, 347 (1936); see also Massachusetts v. Westcott, 431 U.S. 322, 323 (1977).

Longstanding principles of judicial restraint also require that courts "not formulate a rule of

constitutional law broader than is required by the precise facts to which it is applied."

Ashwander, 297 U.S. at 347. The Vice President's request for absolute immunity seeks to turn

these fundamental principles on their head in order to expand on a very unique immunity

previously afforded to the President only.



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       Absolute immunity, as held by the U.S. Supreme Court in Fitzgerald, and applied to the

President, is "incident of the President's unique office," and "rooted in the constitutional

tradition of the separation of powers." Fitzgerald, 457 at 749. It was the President's

constitutional grant of authority that provided the Court with the foundation for absolute

immunity. Id.; see also U.S. CONST., Article II, § 1. Later, in Cheney, the Court looked to

Fitzgerald's constitutional, separation of powers analysis in reviewing the denial of a petition for

writ of mandamus that sought to challenge a district court's order authorizing discovery of the

Vice President. Cheney, 542 U.S. at 381-82. In his motion to dismiss, the Vice President

himself acknowledges the constitutional foundation of his claim of absolute immunity from suit.

The Vice President argues that, "the Cheney Court's separation-of-powers analysis and the Vice

President's unique constitutional status together justify a finding of absolute immunity from suit

in the present case." Mot. to Dismiss at 20. Clearly, the Vice President's request implicates

important, constitutional concerns.

       However, one of the most basic principles of constitutional law is the doctrine of

constitutional avoidance. It is beyond peradventure that longstanding precedent requires

consideration of constitutional issues only as a last resort. Ashwander, 297 U.S. at 345-48. By

way of example, in Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445-46

(1988), the Supreme Court held that judicial restraint required a determination of statutory claims

prior to addressing constitutional claims. The Court reasoned that delaying consideration of

constitutional issues, or refraining from considering them entirely, was essential to determine

"whether a decision on that question may entitle claimants to relief beyond that to which they are




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entitled on their statutory claims; in such a case, if no additional relief is warranted, a

constitutional decision is unnecessary and therefore inappropriate." Id.

        In this case, the Vice President has put forth various non-constitutional grounds for

disposition of the Plaintiffs' claims. If he is correct on any one of those grounds, and Judicial

Watch takes no position as to the merits of any of the Vice President's non-constitutional

arguments, then he may be entitled to the dismissal of the Plaintiffs' claims against him.

Premature consideration of the Vice President's assertion of absolute immunity would, however,

run contrary to the doctrine of constitutional avoidance. To be consistent with the doctrine of

constitutional avoidance, as well as with fundamental principles of judicial restraint, this Court

should only consider the Vice President's absolute immunity arguments if it rejects all of the

other grounds asserted by the Vice President for the dismissal of the Plaintiffs' claims.

        It also is well established that judicial restraint is to be exercised in adjudicating common

law questions, among which questions of immunity should be included. In Dretke v. Haley, 541

U.S. 386, 394 (2004), the Supreme Court held that as stewards of "judge-made rules," courts

must "exercise restraint, adding to or expanding them only when necessary." As a part of that

stewardship, the Supreme Court has held that courts should refrain from unnecessarily expansive

holdings and instead use the "best and narrowest grounds available." See Air Courier

Conference v. American Postal Workers Union, 498 U.S. 517, 531 (1991) (concurring opinion,

Stevens, J., with whom Marshall, J. and Blackmun, J. concur). In Air Courier, the U.S. Supreme

Court held that "faithful adherence to the doctrine of judicial restraint provides a fully adequate

justification for deciding this case on the best and narrowest ground available." See also Barnes

v. Gorman, 536 U.S. 181, 191-92 (2002) (concurring opinion, Stevens, J., with whom Ginsburg,


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J. and Breyer, J. concur). As a steward of common law, this Court should exercise judicial

restraint and decline the Vice President's invitation to unnecessarily expand the absolute

immunity set forth in Fitzgerald.

                                        CONCLUSION

       For the foregoing reasons, Judicial Watch respectfully requests that the Court exercise

judicial restraint and refrain from considering the Vice President's absolute immunity argument.

Dated: January 19, 2007                              Respectfully submitted,

                                                     /s/ Paul J. Orfanedes
                                                     D.C. Bar No. 429716
                                                     /s/ Meredith L. Di Liberto
                                                     D.C. Bar No. 487733
                                                     JUDICIAL WATCH, INC.
                                                     501 School Street, S.W.
                                                     Suite 500
                                                     Washington, D.C. 20024
                                                     (202) 646-5172

                                                     Counsel for Amicus Curiae




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