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Erwin Chemerinsky and John Eastman on the dismissal of the Plame case, and what the Constitution says about government keeping retirement obligations.

Thursday, July 26, 2007
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HH: That music means we’re joined by the Smart Guys, at least one of them. Erwin Chemerinsky is a professor of law at Duke University Law School, we’re standing by, waiting for John Eastman, who is the dean of Chapman University Law School. Erwin, welcome, good to have you.

EC: It’s great to talk with you again.

HH: I want to get to executive privilege, but first, you were the lawyer for Valerie Plame, were you not, or one of them?

EC: I was, I was the lawyer who argued the case in federal district court. I continue to be the lawyer for Valerie Plame Wilson and Joe Wilson, and I will be involved in writing and arguing the case on appeal in the D.C. Circuit.

HH: Now you got tossed out.

EC: That’s correct. The judge dismissed the case last Thursday.

HH: And why did he dismiss it?

EC: As you know, if you want to sue a federal government official for money damages under the Constitution, you do so pursuant to a Supreme Court case from 1971, called Bivens versus six unknown named federal agents. And the Supreme Court has restricted the ability to bring such Bivens suits, and the primary argument that Judge Bates gave as to why our Constitutional claims can’t go forward is that there’s a federal statute, the Privacy Act, and since he said that our claims are ultimately about privacy, we can’t go forward with our Constitutional claims under Bivens.

HH: And your grounds for appeal will be what?

EC: Well, the Privacy Act does not apply to the offices of the president and the vice president. That was conceded by all of the parties in this litigation, and the judge recognized it. And of course, at least as to Cheney, Libby and Rove, the Privacy Act provides no remedy. And our argument is a statute that doesn’t apply can’t be used to preclude a civil suit under the Constitution. Also, we have four Constitutional claims, a privacy claim, but also a 1st Amendment claim, an equal protection claim, and a due process claim. And our argument is that at most, the Privacy Act should preclude the privacy claim, but not the others.

HH: And what kind of timeline are you looking at?

EC: Well, we don’t have the briefing schedule yet from the D.C. Circuit. We filed the notice of appeal first thing on Friday morning last week. I would expect that our brief would be due early in the fall, and my guess is, given the nature of the appellate process, probably will have oral arguments early in 2008, or the spring of 2008, and a decision, again, spring of 2008.

HH: Now Erwin, I had Robert Novak on the program last week, and I asked him why Richard Armitage was not charged, and his answer was well, because there was no crime here. Why, in your opinion, was Richard Armitage not charged by Patrick Fitzgerald?

EC: I don’t know the answer to that. I think there’s only person who can answer to that, and that’s Patrick Fitzgerald. I do not share the sense of Robert Novak. I don’t share the sense of Robert Novak on virtually anything, but certainly don’t share his sense here that there was no crime committed. Why Patrick Fitzgerald chose to proceed as he did, not charging the crime of disclosing confidential information, only choosing to charge Lewis Libby for perjury and obstruction of justice, I think only Patrick Fitzgerald can answer.

HH: But let me ask you, do you think Richard Armitage committed a crime?

EC: Yes.

HH: And if you believe that, and you also believe that Scooter Libby committed a crime, would it not offend your sense of justice to have Libby charged and not Armitage?

EC: Well, no, but we’ve got to be clear that we’re talking about two different categories of crimes. One category of crime is disclosing a covert operative’s secret identity. The other category of crimes is the lying to the FBI and the Grand Jury.

HH: Oh, I understand that. I think everyone understands that, Erwin. But would you be comfortable with only charging one of the criminal perpetrators of what you believe to be a crime, and not the other?

EC: Sure, in the sense that none of the perpetrators were charged with disclosing classified information. And so all of them were treated the same in that regard. So far as we know, Libby was the only one of them who lied to the Grand Jury, and lied to the FBI. And so it’s completely equal to charge no one for revealing classified information, and charge only Libby for lying if he’s the only one who did it.

HH: But it seems to me that…what’s obvious to all of us is that Fitzgerald concluded there was no crime in the revelation of Valerie Plame’s identity, because she was not covert, and it was not what the intent of the law was intended to do in this instance, and that therefore, Armitage wasn’t charged, because there was no crime, and that therefore, Libby didn’t commit a crime, and the Grand Jury ought never to have met, because he knew, Fitzgerald did, before the investigation even opened, that Armitage was a leaker, and he never charged him, therefore no charges and no Grand Jury should have happened.

EC: Some of what you said is just false, some I don’t know. First, there’s no doubt whatsoever that Valerie Plame was a covert operative. The attorney for the United States government said that in open court on May 17th, in the District of Columbia. So I don’t think we can dispute that she’s a covert agent. The United States government said that they would agree that at least for a certain period of time, she was a covert operative.

HH: Erwin, we certainly can dispute that, because it was not made in a context at when it could be challenged to an impartial observer. And of course, the United States government’s going to say that in that circumstance. I don’t believe it for a second, I’ve never been persuaded of that, and I think it is nonsense to ask my audience to take that on fact. It’s a disputed issue.

EC: I’ll tell you, I mean, you’ve known me a long time, whatever trust you have in me, I know as fact she was a covert operative.

HH: And I know as fact that that law was not intended to reach whatever you’re defining as a covert operative. It was…

EC: On that, we’ll disagree, because I mean, Valerie Plame was a covert operative in the most secret sense of the word. Now again, let me put aside, the United States government said in open court she was a covert operative that established for purposes of this lawsuit. The other thing that you’re saying is…

HH: But Erwin, it was not established for the purposes of the lawsuit, because it was never charged. I mean, you can’t say that an element of a crime was established when that crime was never charged. That’s simply not responsible.

EC: No, but I think you’re confusing two things. One is whether a crime of disclosing the identity of a covert operative was charged, and the other is the fact of whether she’s a covert operative. Whether the crime was charged or not has nothing to do with the question of whether she was a covert operative.

HH: And I agree with that, but the fact is it was never established by any…is not collaterally estopped under any situation to argue that Valerie Plame was a covert operative. If you ever get the chance to bring your lawsuit, if a court doesn’t throw it out again, you’ll have to prove that. That is not something that’s been upheld by a court of law, is it?

EC: The interesting thing is, for all of the…none of the four defendants in this lawsuit, in any of their papers, deny that she’s a covert operative.

HH: But Erwin, you’re sidestepping my question to you, which is no court has ruled, in a manner that would estop the issue being tried in your lawsuit, that Valerie Plame was a covert operative, has it?

EC: Well, no court has found that, but what you have to realize in our lawsuit, none of the defendants is challenging that fact, and the United States government, that has intervened in the suit, has said that she was a covert operative. I’m being totally honest here. I think there’s many things that we’re going to have a hard time proving if it ever gets to trial. I’m confident we’ll win those. But I don’t think one thing that’s going to even be an issue is the question of whether she was a covert operative. None of the defendants are challenging that.

HH: We now have Dean Eastman joining us. I hope you guys can stay another segment.

EC: Sure.

HH: John, do you think that there’s any doubt over whether Valerie Plame was a covert operative?

JE: Well, I think she was at one point, but I don’t think she was in the relevant time period here. And you know, I think Patrick Fitzgerald’s decision not to prosecute, or bring charges or bring an indictment against the person who actually leaked her identity is pretty indicative of he knew that it was already out in public, her relationship with the CIA, and he didn’t pursue those for that very reason. And that’s the whole basis of the privacy claim that Erwin’s trying to bring here.

– – – –

HH: John, before you joined us, Erwin and I were talking about the dismissal of his Plame case, and this is my argument, and I’d love your commentary on it, that by not charging Richard Armitage, who first revealed to him that Valerie Plame was at the CIA, Patrick Fitzgerald admits, in essence, that there was no crime. Once there was no crime, and he had a crime in front of him, and he chose not to charge it, then or later, he ought not to have commenced on a Grand Jury witch hunt, and that is the best appeal that Scooter Libby has, that it was all political as proven by the non-charging of Armitage. Your reaction?

JE: Well, you know, I think that’s the likely scenario, Hugh. Let me play devil’s advocate just for a minute, and give a slightly different interpretation. Sometimes a prosecutor will decide not to proceed, not because he doesn’t think there’s been a crime committed, but because he doesn’t think he’s gained enough evidence to be able to prove it beyond a reasonable doubt. And prosecutorial discretion will lead him not to bring charges in that case, either. Now I don’t think that’s what’s happened here, and I think the facts that we know, that are swirling around this, suggests, in fact, that he knew from the get go that there was not a crime, an underlying crime of leaking the identity of a covert agent, and that everything that happened past that is something that a normal prosecutor wouldn’t have proceeded with, because now, you don’t have the crime that you’re trying to prove, and this is one of the problems with special prosecutors, that it’s no longer we begin with a crime and we try and prove who did it. We begin with a target, and try and find something that they did. And it’s one of the reasons that after the 1980’s, and then when the shoe was on the other foot in the 1990’s, both sides in the political aisle backed away from this notion of an independent special prosecutor. But now, you know, everybody’s jumping on the frenzy again, because oh, somebody else’s ox is going to be gored here.

HH: Now John, I want to challenge you on one point, which is that Robert Novak has asserted that Richard Armitage came forward, admitted to having been the source of the leak before Fitzgerald began, so it would not be a question of lacking evidence with which to charge.

JE: Yeah…no, the issue there, he had that. The issue there, it was very complicated, whether she was covert or not. And he may have decided that that was too complicated to prove.

HH: But if that’s the case, it would have been too complicated to prove for anyone.

JE: Exactly. Exactly.

HH: Erwin, your response?

EC: I don’t know why Fitzgerald didn’t go forward, and I just don’t accept your surmise because there was no crime. I think there’s many theories I could come up with, one that John mentioned, I can mention others as well. But I think that the premise of what you say is just wrong. Whatever reason the Grand Jury was convened, it is still a federal crime to lie to the Grand Jury. And if you heard the statements from the jurors after the Libby conviction, they said they felt bad for him, but there was no doubt that he had lied to a Grand Jury, and deserved to be punished for it, and the sentence should have never been commuted for it. He committed a federal offense.

HH: Now Erwin, is there any circumstance under which an improvidently convened Grand Jury, which has had perjury presented to it, would form an insufficient basis for charging perjury? In other words, a political motivated prosecution ought not to allow, even if someone does perjure themselves in front of it, that that Constitutionally provides a way out of that conviction? In any circumstance, would that be the case?

EC: But I’m astounded that you’d say this was a politically motivated…

HH: But Erwin, my question…

EC: Patrick Fitzgerald is not politically motivated.

HH: My question…

EC: We’re not talking about a Democrat.

HH: I know, but my question…

EC: We’re talking about…

HH: Just hypothetically, if a court concluded that a Grand Jury was politically motivated in its convening, and that someone perjured themselves to it, would that be perjury?

EC: It would still be perjury. It’s still lying under oath. And I don’t think there is the slightest argument that this was an improperly convened Grand Jury.

HH: John Eastman, is there a Constitutional argument on Libby’s defense here?

JE: You know, I…lying to a Grand Jury, no matter what the cause is…

HH: Bad stuff, I agree.

JE: Yeah, yeah.

HH: But I’m arguing, is there a way out for a D.C. Circuit to say that the perjury conviction ought not to have been rendered, because the jury ought not to have been convened, a sort of analogy to fruit of the poisonous tree.

JE: Yeah, you know, but it’s a stretch. I don’t think the D.C. Circuit’s going to do that. And you know, if he’s found to have lied to the Grand Jury, and part of his defense on appeal is going to be the factual claim that there was a lot going on, and memories and everything else, and that may be his better ground for appeal here. But you’re right. I mean, and again, I go back to it’s not the convening of the Grand Jury, and what Libby remembered or didn’t remember in his testimony before the Grand Jury. But I go back to the notion that once you convene a special prosecutor, all bets are off on our normal prosecutorial checks. Our normal function of a prosecutor is a prosecutor handed a crime, and his job is to try and use the Grand Jury and investigative techniques to figure out who committed the crime. What we do instead in these contexts, and it’s the reason we all backed away from it last decade, is you get a target, and you do everything you can to try and find out what that target has done wrong. And that’s what happened here, and that’s the real flaw.

– – – –

HH: Erwin, today the House of Representatives Judiciary Committee voted contempt citations against Harriet Miers, Josh Bolton, chief of staff to the President. Harriet Miers, of course, former counsel to the President. How’s this going to play out? Who’s going to win?

EC: First, we both hate the Red Sox.

HH: There we go. We can agree on that, good.

EC: Exactly. Second, I still believe it’s going to ultimately play out with a compromise between the White House and Congress, is how this usually works out. But if not, I mean, what’s going to happen is I assume that the House of Representatives, by a majority vote, will also vote contempt. They will send it to the United States Attorney to prosecute for contempt. The White House has said that the United States Attorney isn’t allowed to prosecute once executive privilege is invoked. I think then what you may see is a suit for mandamus against the United States Attorney, because the statute is written in mandatory language saying the United States Attorney shall convene a Grand Jury. Now it doesn’t say it has to go further than that, but he has to at least do that much. There’s also the possibility that if the White House won’t do anything else, Congress can dust off inherent contempt power. So I think there are so many possible ways this could play out, anyone’s just guessing at this point.

HH: John Eastman, your analysis?

JE: Well, all of those statutes, and I agree with Erwin’s analysis thus far, but they all have to be read against the backdrop of Constitutional separation of powers. And if the statute, in the mandatory statutory language, would require the U.S. Attorney to violate the direction from his superior, the president of the United States, that’s Congress intruding on executive powers, and that violates Constitutional separation of powers principles. And to that extent, the statute would normally be interpreted more narrowly so as not to confront that Constitutional violation. I think Congress is stepping on dangerous grounds here in exceeding its authority to try and force executive officials to testify against a claim of executive privilege.

HH: Erwin, you get the last word, and then I have an off the wall question for you both.

EC: Well, I think there’s so many hard questions here. First, it’s not at all clear that executive privilege can even apply in this context. Executive privilege applies to conversations with the president, or perhaps conversations on preparation advice to the president. The President said he had no involvement in this matter. Second, Harriet Miers didn’t even show up to claim executive privilege. And that’s never been the way it’s been done before. The President hasn’t formally invoked executive privilege. So whether executive privilege applies is questionable, and beyond that, the Supreme Court, in terms of separation of powers, said executive privilege has to yield if it’s interfering with other branches of government performing their Constitutional tasks, and that’s exactly what’s happening here.

HH: Now gentlemen, to close out our conversation today, there’s a story in the New York Times headlined $58 billion dollar shortfall for New Jersey retiree care. And it goes on to detail the fact that the State of New Jersey has made promises to its retired employees about health care, promises which they really have absolutely no way of meeting. They’re so far in the red, they may be able to postpone it for a couple of years, but it’s an incredibly deep hole that they’ve dug for themselves. Read further into the article, and you’ll find that many other states have done exactly the same thing with regards not only to health care, but to pensions. And as one retired teacher put it, I understand the problem, but you can’t wait until I’m 62 to tell me that the benefits you’ve promised me are too expensive because somebody made a mistake in 1994. Where does that leave me? I can’t go back and earn more money now. John Eastman and Erwin Chemerinsky, and I’ll start with you, John, can the government walk away from these commitments under the contracts clause?

JE: Well, look, under the contracts clause, but there’s also the thing called the appropriations clause of the federal government, and many of the state constitutions have similar things. And you’re not supposed to be making commitments now that are going to be funded by some future generation. That’s an imposition on future legislatures, and imposing an obligation on future legislatures that we’ve never permitted. The problem is that when they make these promises, they don’t immediately fund it by paying for annuity or what have you. If we would subject the state and local government pension systems, as well as the federal pension systems to the same rules that apply to private sector under ARISA and some of the others, we wouldn’t have these problems. You’ve got politicians who are promising the Moon, and passing off the tax raises to pay for it to a generation twenty or thirty years hence, and that’s what creates the problem.

HH: I know that that’s what creates the problem. My question, Erwin, is can the government get out of it?

EC: Well, the Supreme Court has said, as both of you know, that the government cannot abrogate its own contracts…

HH: Right.

EC: …unless it meets … There was a Supreme Court case, now almost 30 years ago, called United States Trust V. New Jersey, that specifically held that. Whether these can be regarded as contracts in a legal sense, I don’t know. And that would obviously be the key question. But the Supreme Court has very much limited the ability of the government to get out of its own contractual obligations.

JE: Let me put the other side of that. There’s a famous case in the 19th Century involving a lottery. And the state of Mississippi entered into a contract with a lottery company, and gave them an exclusive lottery license for multiple years. Now a couple of years later, the legislature revoked the lottery, and made it illegal to conduct a lottery. Now that essentially breached that contract. And the Court in that case held that the legislature, even though it can’t breach its contract, it also has a higher obligation not to exceed its authority under the Constitution. And it cannot take actions that truncate the authority of a future legislature. That prevails over the…what you’re essentially talking about is an agent, the current Congress, that cannot bind a future agent, or a future Congress, and implicit in any contract is that they can’t make a contract beyond their authority.

HH: But what’s interesting, and I’ll put this to Erwin, is the State of New Jersey has things it could do to meet its obligations. They could sell, for example, as the article discusses, the New Jersey Turnpike to a private consortium. They have real estate, they have present obligations which they could unfund. If they screw these retirees, they will simply be making a policy choice to screw them rather than to do other hard political things. That’s where, I think, it becomes very difficult to imagine allowing them to get away with this.

EC: You and I agree on this, and I think the problem with John’s argument is we’d keep the state from ever making a contract beyond the term of a single legislature, and courts have never taken that approach. And I think there’s a difference between a policy choice with regard to whether or not to have a lottery, and making a promise to individuals for their retirement that they rely on, and then changing their mind and not funding it. That seems to me exactly the kind of breach of contract that the contract clause is meant to prevent.

– – – –

HH: I want to close by going back to this issue. Hundreds of billions of dollars, maybe even trillions of dollars of unfunded commitments by the government, John Eastman. Doesn’t the conservative and the Constitutionalist say live up to what you promised, even if you have to sell the last light bulb in the last building that you’re wholesaling off?

JE: No, I don’t think so, because I don’t think legislators who get the union reps in lobbying them to give more things than the tax base promises, that violate the Constitution’s restrictions on budget requirements and everything else. It’s something that the rest of the taxpayers ought to be obligated to pay for. The authority of the Congress or the state legislature is bound by Constitutional restrictions for a reason. And one of the big restrictions is you don’t get to spend money for 50 years out and not raise for it now. You know, that creates huge incentive problems for legislators, and all we’re doing is passing…they get the benefit of the promise, and we taxpayers have to pick up the bill years later, even though they violated their oath of office, and they violated Constitutional restraints on their authority.

HH: Erwin Chemerinsky, I think John just blew a hole in his originalist credentials when it comes to the contracts clause.

Ec: Article I, section 10, no state shall impair the obligation of contracts. John is taking a position that would keep the government from promising people social security or pensions, or even entering into any contract that lasts beyond the length of that legislative session. That can’t be right. If the government makes a promise that people rely on, assuming it’s a valid contract, it has to be enforced.

JE: And when we require that a private sector company make a promise to pay for their pension, we make them fund it now. They don’t get to pretend that they’re going to fund it fifty years out. That’s why we have all the rules about funding, and the amount of money that’s supposed to go into it. Government is the only entity that gets to make the promise without coming up with the money to pay for it.

HH: Well, I know that, but we still have a dilemma that the Constitution says they can do that.

JE: No, the Constitution doesn’t say they can do that. Article I, section 8 specifically limits the appropriations authority to one year, and it’s for just this reason. The founders understood the propensity of legislators to want to make promises and commitments now, and then not fund it for years. And the reason that annual appropriation requirement is there is to prevent just this kind of thing. If you want to fund fifty years of social security, you put enough money into an annuity right now so that it’ll pay for it. You don’t require a future generation of taxpayers, who may have different priorities and different policy preferences, to pick up your tab.

HH: Erwin, you get the last word.

EC: Again, I think what John is saying is really interesting Constitutional theory, but it’s never been the Supreme Court’s holding that a legislature can’t create a program with obligations beyond its term, or a contract beyond its term. I here want to take the language of the Constitution, no state shall impair the obligation of contracts. These are contractual obligations, the state has to fund them.

HH: Remember this, America, you heard about this debate first on this program, and it’s going to be back a lot, because the debt is huge.

End of interview.

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