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Judicial Watch • Lib by Amicus Brief

Lib by Amicus Brief

Lib by Amicus Brief

Page 1: Lib by Amicus Brief


Number of Pages:9

Date Created:January 19, 2007

Date Uploaded to the Library:February 20, 2014

Tags:absolute, constitutional, Fitzgerald, immunity, Const, Dismiss, Cheney, Supreme, EXECUTIVE, Plaintiffs, complaint, watch, president, judicial, Supreme Court, states, court, united, EPA, IRS, ICE, CIA

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Plaintiffs, Civil Action No. 06-1258 (JDB)
 LEWIS (a/k/a SCOOTER) LIBBY JR., al.,) 

Defendants. ____________________________________) 

Judicial Watch, Inc. (Judicial Watch), counsel, respectfully submits this amicus curie brief, not support any the parties this action, but address important issues laws raised Defendant Vice President Richard Cheney (the Vice President).  Judicial Watch states follows:  

INTEREST THE PROPOSED AMICUS set forth Judicial Watchs motion seeking leave file this proposed amicus curiae brief, Judicial Watch not-for-profit organization that seeks promote accountability, transparency and integrity government and fidelity the rule law. furtherance these goals, Judicial Watch regularly monitors on-going litigation, files amicus curiae briefs, and pursues public interest litigation its own, among other activities.  Judicial Watch seeks participate amicus curiae this matter for two separate, but interrelated reasons.  First, Judicial Watch particularly concerned about the Vice Presidents assertion absolute immunity. Second, the absolute immunity advocated the Vice President based largely which Judicial Watch was party.  This gives Judicial Watch unique perspective the U.S. Supreme Courts ruling Cheney  perspective that other party this case has. 

The Vice President seeks establish never before recognized absolute immunity for the Vice President based overly broad interpretation the U.S. Supreme Courts ruling Cheney and misplaced reading the U.S. Supreme Courts ruling Nixon Fitzgerald, 457 
U.S. 731 (1982). his brief, the Vice President contends that the Amended Complaint should dismissed its entirety because the Vice President the United States absolutely immune from civil suit when acting his official capacity.  Defendant Vice President the United States Richard Cheneys Motion Dismiss Plaintiffs Amended Complaint (Mot. Dismiss) 18.  This sweeping assertion based two primary points: (1) the U.S. Supreme Courts decision Fitzgerald regarding the absolute immunity the President; and (2) the U.S. Supreme Courts ruling Cheney. Id.  These two points, argues the Vice President, compel the conclusion that the Vice President absolutely immune from civil suit for his official acts.  Id. This not, however, the case, the Vice President has misapplied the holding Fitzgerald and overstates the holding Cheney. addition being contrary precedent, the Vice Presidents assertion absolute immunity strikes out unnecessarily dangerous path that threatens long held principle judicial restraint. particular, seeking unnecessarily sweeping and absolute immunity, the Vice Presidents request runs contrary the longstanding principle deciding constitutional 
Tennessee Valley Authority, 297 U.S. 288, 347 (1936). 
ARGUMENT 	U.S. Supreme Court Precedent Does Not Support the Vice Presidents Assertion Absolute Immunity. 
Contrary the Vice Presidents contentions, the U.S. Supreme Court did not recognize blanket, absolute immunity for the President Fitzgerald. Rather, the Court held that, under certain set circumstances, the President entitled absolute immunity.  Fitzgerald, 457 U.S. 754. Specifically, the Court held that private suits for damages based Presidents official acts, exercising judicial jurisdiction over the President not warranted.  Id. However, this did not result blanket grant absolute immunity from the exercise all judicial jurisdiction over the President. fact, the Court clearly confirmed that there were circumstances under which the exercise judicial jurisdiction over the President was warranted.  Id. 753-54 (serving broad public interests maintaining the proper separation powers and vindication the public interest ongoing criminal prosecution are two such exercises).  Therefore, the President can subject judicial jurisdiction certain circumstances, then certainly the Vice President subject judicial jurisdiction certain circumstances well. 
Also contrary the Vice Presidents contentions, the Courts application Fitzgerald Cheney does not compel the conclusion that the Vice President absolutely immune from civil suit for his official actions. Mot. Dismiss 18. First, the Cheney holding applied narrow set circumstances and did not result broad finding absolute immunity.  The specific question before the Court Cheney pertained discovery orders and whether the Vice President state that the Vice President entitled absolute immunity. fact, the phrase absolute immunity does not appear the Courts opinion. Rather, the Court held that the separation powers analysis Fitzgerald should inform the court appeals evaluation mandamus petition involving the President the Vice President. Cheney, 542 U.S. 382. This narrow holding far too thin reed support extending the absolute presidential immunity Fitzgerald the Vice President. 
Second, like the lawsuit Fitzgerald, the causes action Cheney were based acts performed official capacity. Cheney, those acts were relation meetings the National Energy Policy Development Group, which the Vice President had been asked the President chair. Cheney, 542 U.S. 372. The Court Cheney expressed concerned with the Executives ability perform its constitutional duties and any interference that might result from the exercise judicial jurisdiction over it. Cheney, 542 U.S. 382 (Accepted mandamus standards are broad enough allow court appeals prevent lower court from interfering with coequal branchs ability discharge its constitutional responsibilities.); see also Fitzgerald, 457 U.S. 754 (applying the immunity merely private suit[s] for damages based ... official acts). this case, the Vice President being sued his individual capacity, not his official capacity.  Amended Complaint  11. This distinction not insignificant. both Fitzgerald and Cheney, the Supreme Courts deference the Executive was based large degree protecting the Executive from interference and distractions the performance its constitutional duties. Fitzgerald, 457 U.S. 753, n.32; Cheney, 542 U.S. 382. Logically, lessor Executive Branch official his her individual capacity.  See, e.g., Clinton Jones, 520 
U.S. 681 (1997). Suits brought against Executive Branch officials their individual capacities limit, least some degree, the danger intrusion the authority and functions the Executive Branch. Fitzgerald, 457 U.S. 754; Clinton, 520 U.S. 702-03. this regard, seeking extend the absolute presidential immunity Fitzgerald the Vice President, the Vice President argues that important consideration the close link  both the public eye and the operation the respective office  between the President and the Vice President. Mot. Dismiss 20. Even the link between the two offices close one, does not justify extending absolute immunity the Vice President. 
Importantly, the Vice President himself has relatively limited constitutional role. Unlike the plethora powers and duties vested the President, the Vice President has only one constitutional duty: the Vice President the United States shall President the Senate, but shall have vote, unless they equally divided.  U.S. CONST. Art.  3.1 This can hardly considered such close link with the powers and duties vested the President that the absolute immunity afforded the President should extended the Vice President well. While the Vice President may take duties and responsibilities beyond those set forth the Constitution order assist the President the exercise the Presidents constitutional 
The Vice President also argues that U.S. CONST. amend. XXV justifies absolute immunity for the Office the Vice President.  Mot. Dismiss 20. However, the event that 
U.S. CONST. amend. XXV became necessary, the Vice President would longer acting his role Vice President, but instead the role President, affording him all the powers and duties that office. Triggering U.S. CONST. amend. XXV does not grant absolute immunity the Vice President.  Rather, makes the issue moot. 
President should not entitle the Vice President absolute immunity. fact, the Supreme Court previously denied presidential aides and cabinet secretaries this same type derivative absolute presidential immunity. See Harlow Fitzgerald, 457 U.S. 800, 811 n.17 (1982) (Suits against other officials including Presidential aides generally not invoke separation-ofpowers considerations the same extent suits against the President himself); Butz Economou, 438 U.S. 478 (1978). Cheney, the Court only commented the visibility the Office the Vice President factor considered determining whether grant deny mandamus relief, not whether the Vice President should afforded derivative absolute presidential immunity absolute immunity his own right.  Cheney, 542 U.S. 386. Cheney thus does not support granting any form absolute immunity the Vice President, and the holdings Harlow and Butz control instead. 

II. 	Judicial Restraint Does Not Support the Vice Presidents Request For Absolute Immunity. fundamental principle judicial restraint that courts should not decide question constitutional law when alternate grounds exist adjudicate issue. See Ashwander, 297 
U.S. 288, 347 (1936); see also Massachusetts Westcott, 431 U.S. 322, 323 (1977). Longstanding principles judicial restraint also require that courts not formulate rule constitutional law broader than required the precise facts which applied. Ashwander, 297 U.S. 347. The Vice Presidents request for absolute immunity seeks turn these fundamental principles their head order expand very unique immunity previously afforded the President only. 
President, incident the Presidents unique office, and rooted the constitutional tradition the separation powers. Fitzgerald, 457 749. was the Presidents constitutional grant authority that provided the Court with the foundation for absolute immunity. Id.; see also U.S. CONST., Article II,   Later, Cheney, the Court looked Fitzgeralds constitutional, separation powers analysis reviewing the denial petition for writ mandamus that sought challenge district courts order authorizing discovery the Vice President. Cheney, 542 U.S. 381-82. his motion dismiss, the Vice President himself acknowledges the constitutional foundation his claim absolute immunity from suit. The Vice President argues that, the Cheney Courts separation-of-powers analysis and the Vice Presidents unique constitutional status together justify finding absolute immunity from suit the present case. Mot. Dismiss 20. Clearly, the Vice Presidents request implicates important, constitutional concerns. 
However, one the most basic principles constitutional law the doctrine constitutional avoidance. beyond peradventure that longstanding precedent requires consideration constitutional issues only last resort.  Ashwander, 297 U.S. 345-48. way example, Lyng Northwest Indian Cemetery Protective Assn, 485 U.S. 439, 445-46 (1988), the Supreme Court held that judicial restraint required determination statutory claims prior addressing constitutional claims. The Court reasoned that delaying consideration constitutional issues, refraining from considering them entirely, was essential determine whether decision that question may entitle claimants relief beyond that which they are constitutional decision unnecessary and therefore inappropriate.  Id. this case, the Vice President has put forth various non-constitutional grounds for disposition the Plaintiffs claims. correct any one those grounds, and Judicial Watch takes position the merits any the Vice Presidents non-constitutional arguments, then may entitled the dismissal the Plaintiffs claims against him. Premature consideration the Vice Presidents assertion absolute immunity would, however, run contrary the doctrine constitutional avoidance. consistent with the doctrine constitutional avoidance, well with fundamental principles judicial restraint, this Court should only consider the Vice Presidents absolute immunity arguments rejects all the other grounds asserted the Vice President for the dismissal the Plaintiffs claims. also well established that judicial restraint exercised adjudicating common law questions, among which questions immunity should included. Dretke Haley, 541 
 386, 394 (2004), the Supreme Court held that stewards  judge-made rules, courts must exercise restraint, adding expanding them only when necessary. part 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 American Postal Workers Union, 498 U.S. 517, 531 (1991) (concurring opinion, Stevens, J., with whom Marshall, and Blackmun, concur). Air Courier, the U.S. Supreme Court held that faithful adherence the doctrine judicial restraint provides fully adequate justification for deciding this case the best and narrowest ground available. See also Barnes
 Gorman, 536 U.S. 181, 191-92 (2002) (concurring opinion, Stevens, J., with whom Ginsburg,
 and Breyer, concur). steward common law, this Court should exercise judicial 

restraint and decline the Vice Presidents invitation unnecessarily expand the absolute 
immunity set forth Fitzgerald. 

For the foregoing reasons, Judicial Watch respectfully requests that the Court exercise 
judicial restraint and refrain from considering the Vice Presidents absolute immunity argument. 
Dated: January 19, 2007 Respectfully submitted, 
/s/ Paul Orfanedes 
 Bar No. 429716 /s/ Meredith Liberto 

 Bar No. 487733 JUDICIAL WATCH, INC. 501 School Street, S.W. Suite 500 Washington, D.C. 20024 

(202) 646-5172 
Counsel for Amicus Curiae