Within days, if not hours, the special prosecutor in the CIA leak case will announce the outcome of his two-year investigation. But Patrick Fitzgerald probably won't have the last word. For months now, ambassador Joseph Wilson and his wife, Valerie Plame, the covert CIA agent unmasked by the White House, have been preparing to file a civil lawsuit against the Bush administration officials who disclosed her identity and scuttled her career.
"There is no question that her privacy has been invaded. She was almost by definition the ultimate private person," said the couple's attorney, Christopher Wolf, of the law firm Proskauer Rose, on Monday. "Suffice it to say, they have been substantially damaged, economically and personally." He said the couple would make a final decision on filing a lawsuit after Fitzgerald has completed his investigation.
If they do sue, Wilson and Plame could be the first litigants to depose senior White House officials since Paula Jones, an employee of the state of Arkansas, opened a can of worms by suing President Bill Clinton for allegedly exposing himself in a Little Rock hotel room. In a deposition for the Jones lawsuit, Clinton lied under oath about his relationship with another woman, Monica Lewinsky, a White House intern, triggering his impeachment by the House of Representatives and the disclosure of oral sex in the Oval Office. "The questions can range far afield. You can ask all kinds of stuff," said Gilbert Davis, an attorney who represented Jones in her sexual harassment lawsuit. "You can start free-wheeling with all kinds of discovery methods."
Such discovery would be invaluable for historians -- and political partisans -- if Fitzgerald decided not to return indictments by Oct. 28, the day the grand jury investigating the leak of Plame's name to the press is scheduled to be dismissed. Though Democrats in Congress have requested a report from Fitzgerald on his findings, legal observers say Fitzgerald is under no obligation to provide one if he decides that no crimes were committed. The possibility of greater public disclosure has not escaped the notice of Wolf, the attorney for Wilson and Plame. "By its nature a civil case is somewhat more transparent than a criminal case," he said.
Wolf is a close personal friend of the couple's, having lived for years next door to them in the outskirts of Washington. His cousin, Audrey Wolf, served as a literary agent for Joseph Wilson's bestselling memoir, "The Politics of Truth." In an Op-Ed published in USA Today this summer, Wolf wrote that he was "collecting facts for any eventual civil suit" on the couple's behalf. Early this week, Bloomberg reported that Wilson said he may file a civil suit against Bush, Dick Cheney and others, "seeking damages for the alleged harm done to Plame's career."
Wilson, who could not be reached by Salon for comment for this story, wrote in "The Politics of Truth" that his wife was "crestfallen" when she discovered that syndicated columnist Robert Novak had disclosed her identity as a CIA "operative."
"She would never be able to regain the anonymity and secrecy that her professional life had required; she would not be able to return to her discreet work on some of the most sensitive threats to our society in the foreseeable future, and perhaps ever," he wrote.
In some ways, the Paula Jones case clears the way for a lawsuit by Plame and Wilson. In 1997 the Supreme Court issued a unanimous decision giving the green light to Paula Jones' lawsuit against Clinton, despite the fact that he was a sitting president. The court ruled that Jones' allegations, which involved personal conduct during Clinton's years as a governor, were not protected by any claims of executive immunity. After much legal wrangling, Clinton finally settled with Jones in 1998 for $850,000, though he offered neither an apology nor an admission of guilt. (Clinton's top lawyer in that case was Robert Bennett, who is representing New York Times reporter Judith Miller in the CIA leak investigation.)
However, there is one constitutional defense that senior White House officials, or at least Bush, could attempt to use. In a 1982 case, Nixon v. Fitzgerald (no relation to the current special prosecutor), the Supreme Court found, in a split decision, that a president enjoys "absolute immunity from damages liability predicated on his official acts." It is not clear whether this immunity extends to the vice president or senior White House aides, or if the White House could claim that discussions of Plame's identity should be viewed as an "official act."
Most likely, the White House would try to litigate any civil case in the court of public opinion. One attorney from the Jones case, John Whitehead, said that the White House would likely renew its attacks against Wilson and Plame, working through intermediaries. "They shift the focus from the wrongdoer to the non-wrongdoer," said Whitehead, who works at the Rutherford Institute, a conservative civil rights group. (Some might argue that this strategy is now being played out in the Texas prosecution of Rep. Tom DeLay, R-Texas, on charges of money laundering and conspiracy. Republican supporters, and DeLay himself, have spent weeks attacking the prosecutor, Ronnie Earle, and have even filed a suit against him for misconduct.)
"This is a media case," said Whitehead, adding that the attorney for Wilson and Plame had better be ready for a fight. "There will be people saying things about them that they have never heard before."