Cheney & Libby:Not Over By a Long Shot

Lost in the tsunami of commentary on the Libby perjury trial verdict is that a second trial looms that could be far more damaging to Vice President Cheney and the Bush administration.

That trial would be on the lawsuit that Joseph Wilson and Valerie Plame have filed against Cheney, Libby, Karl Rove and Richard Armitage.

The lawsuit would have proceeded no matter the outcome of the criminal trial. That is because it is not about whether Libby obstructed justice and lied, but whether the high-profile defendants violated the constitutional rights of the former diplomat and his CIA agent wife by conspiring to retaliate against them after Wilson revealed that one of the key rationales used by the administration for going to war in Iraq was phony.

Plame and Wilson are asking for unspecified monetary damages for what they describe as a "gross invasion of privacy" that could jeopardize the safety of their children and target Plame for retribution by enemies of the U.S. They also allege that the incident has impaired their professional opportunities.

Conservatives have called the civil suit "an alternative version of reality" and worse, but it is not going to be wished away.

Although the analogy is less than perfect, the O.J. Simpson criminal and civil cases help explain why the suit could be so damaging.

Under the rules of criminal procedure, Simpson could be found guilty at his criminal trial only if the evidence showed beyond a reasonable doubt that he was the murderer. Largely because of an inept prosecution, the jury did have doubts and Simpson walked.

Under the rules of civil procedure, Simpson could be found guilty at his civil trial on a lawsuit brought by the families of the victims if there was merely a preponderance of evidence that he was responsible for the murders. The jury found there to be more than enough evidence, Simpson was found guilty and ordered to pay the families $33.5 million.

The same test will apply to a Wilson-Plame civil trial and the defendants, if found guilty, would have to pay the plaintiffs big bucks for violating their civil rights. No jail time would be involved.

'DISCOVERY WILL BE A BITCH'

But it will be the run-up to a civil trial that could be even more problematic for Cheney and his posse than the trial itself. I am fond of saying that "discovery will be a bitch" in my sometime role as a legal consultant and for good reason because that often is where the most blood is spilled.

Discovery is the process in which attorneys obtain information before trial through demands for documents, depositions of the plaintiffs and potential witnesses under oath and written interrogatories. Under the law, that process is pretty much wide open on the theory that both sides have a right to go to trial with as much knowledge as possible and that no side should be able to keep secrets from the other.

All of this begs the question of whether there will be a trial.

In November, the defendants filed a motion to dismiss the suit on the grounds that their positions as high-level government employees protect them from prosecution and, even more unbelievable, that outting Plame was within the scope of their responsibilities.

In other words, they were just doing their jobs. And besides which, they're above the law.

The motion is pending and I would not be so rash as to predict what the court will do.

But for what it is worth, my gut tells me that the suit will proceed to discovery and then to trial if there is not a whopper of an out-of-court settlement. That is if Wilson and Plame would even accept one.

The plaintiffs are not particularly sympathetic characters. Wilson has been especially self aggrandizing on the talk show circuit, but that won't matter when a jury is confronted with the spoils of discovery and the harsh reality of what rotten sons of bitches have run the U.S. for the last six-plus years.

It is beyond obvious that had Cheney let pass the kerfuffle over Wilson's disclosure that the Niger uranium story was false there would not have been a grand jury, a perjury trial and now the threat of a civil trial that will bring further shame to a presidency drenched in failure.

The vice president had been revealed as an extraordinary bully who has put the U.S. at grave risk. Or as Josh Marshall put it, "a screw-up and a moron of historic proportions."

I think that Josh let Cheney off easy. A civil court jury is likely to agree.