If Karl Rove is the White House Leaker, But He Broke No Criminal Laws, Could Valerie Plame Still Sue Him for Revealing Her Identity?:
Part Two in a Two-Part Series

In my previous column, I raised the possibility that Valerie Plame might want to sue Karl Rove in a private lawsuit, if he indeed revealed her identity as a CIA agent. Since I wrote that column, there have been very few important factual revelations about the Plame affair. However, as recent news reports have made clear, it is not obvious that Karl Rove or anyone in the White House involved in the Plame affair broke any criminal laws.

However, even if no one in the White House committed a crime (or can be proven to have committed a crime), it is still possible that someone there wrongfully injured Plame, and that Plame can, therefore, still sue for damages in a civil lawsuit.

If all the White House did was to confirm what journalists already knew, then Plame's complaint is with those journalists and whoever outside the White House got them their information. But if the White House had a hand in providing Plame's identity to the media, then she might still want to consider suing the individual or individuals in the government who harmed her.

Why a Federal Tort Claims Act Suit By Plame Would Likely Move on To Discovery

In my last column. I noted that it would be very difficult for Plame to sue Karl Rove, or any other White House aide, in his individual capacity, unless she could show that her constitutional rights were knowingly violated or that she was harmed by a knowing violation of a federal law.

However, if Plame were willing to sue the federal government under the Federal Tort Claim Act (FTCA), then she would have a much easier time framing a lawsuit that would survive a motion to dismiss.

Under the FTCA, the federal government allows itself to be sued for certain torts which were committed by its employees in the scope of their employment. (The default rule is that, due to "sovereign immunity," the government cannot be sued in tort. So absent this statute, the government would be immune from such suits.)

As I argued in my previous column, given the amorphous nature of a White House aide's "job," it would not be hard to imagine that speaking to the press clearly falls within the scope of the employment of Rove - or, for that matter, within the scope of employment of anyone else at the White House who may have spoken to the media with the goal of raising Plame's identity as a CIA agent.

A Possible Pitfall: The "Discretionary Function" Exception

Bringing an FTCA claim is not without its own dangers, however. If Plame were to sue Rove or any other White House aide for redress under the tort laws of the District of Columbia, she would have to confront what is known as the "discretionary function exception."

As noted above, the FTCA generally authorizes a broad waiver of the government's sovereign immunity for claims in tort. But the statute also exempts from this waiver "any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government, whether or not the discretion involved be abused."

Over the years, the federal courts have held that decisions that implicate policy judgments are discretionary, and therefore exempt from the FTCA. In contrast, decisions which simply put a policy into action are rote and mechanical, and fall within the FTCA.

For example, in its 1987 decision in Bowman v. United States, the U.S. Court of Appeals for the Fourth Circuit held that the decision of whether to install a guardrail on a stretch of the Blue Ridge Parkway is a discretionary act because the National Park Service has to weigh various factors (cost, safety, etc). On the other hand, had the Park Service erected a guardrail and its foreman, in constructing the guardrail, decided to use cheap materials that failed to work properly and this caused an injury, the person injured by the foreman's negligent decision could sue the government.

If Plame has a complaint against Rove or anyone else in the White House who tried to get her name into the media, it is not because of the fact that they spoke to the media in order to promote the White House's political agenda. That's fortunate for her FTCA claim: Media relations in general--how much to communicate with the press, and with whom--seem very much a matter of policy judgment and would fall within the discretionary function exception.

Instead, Plame's complaint would be that, in specific conversations, to further the goal of promoting their agenda, Rove or others may have revealed her identity. She objects, that is, to the specific tactic - not the general strategy.

The specific content of any single conversation seems more like implementing, than creating, a policy of media relations; thus, it is less likely to fall within the discretionary function exception. Just as the National Park Service has to have someone put up guardrails once it has decided to have them, so must the White House have someone make phone calls once they have decided to talk to the press. If someone is injured as a result of the phone call, it would seem that the FTCA should allow the injured party to sue the government for compensation.

One might argue that the phone call that "outed" Plame was no rote or mechanical phone call, since, as Plame would allege, it was done with the intent to harm a CIA agent, and thus, it must have been an act reflecting a policy decision. But the President has suggested there was no get-Plame policy; indeed, he's promised to fire anyone convicted with a crime in connection with the revelation of her identity, and has supported the appointment of a Special Counsel to investigate the revelation.

In any event, this seems like a weak argument to me. It would be strange, to say the least, for the Bush Administration to try to get Plame's FTCA suit dismissed by arguing that it was doing something out the ordinary when Rove or others spoke to the press about her.

The alternative argument--that every contact with the press reflects a policy decision--sounds equally implausible. Some conversations employ tactics in service of a greater strategy; they are below the level of policy, and at the level of implementation.

Why Plame Would Have to Choose Her Tort Claims With Care

Assuming that the government could not invoke the discretionary function exception, Plame would still have to choose her tort claims carefully. The FTCA does not permit most intentional torts, including torts relating to the intentional interference of contractual relations. So Plame could not sue, for example, on the basis that Rove's actions may have interfered with her ability to get future employment with her old employer, the CIA, or with other private firms.

(At any rate, a suit for tortious interference with prospective economic advantage would be difficult for Plame to pursue. She would have to prove not only that she suffered the loss of some concrete economic opportunity, but that the White House intended to interfere with that opportunity. Again, we lack most of the basic facts, but it seems to me that both these claims would be hard to make out.)

On the other hand, the FTCA does permit suits for two torts that are quite relevant to Plame's complaint if Rove or someone else in the White House tried to out her. She could sue under the tort of intentional infliction of emotional distress ("IIED") or the tort of privacy.

Plame's Possible Intentional Infliction of Emotional Distress and Privacy Claims

Plame's IIED claim would be quite straightforward. She would need to allege that whoever revealed her identity to the press knew, or was substantially certain, that the revelation would cause her extreme emotional distress. Furthermore, she would need to show that the act of outing her is something which the reasonable person would find outrageous--she need not show, however, that it constituted a crime.

In pleading a privacy tort, Plame would allege, more specifically, that she was injured by the "public disclosure of a private fact." To prove, this Plame would have to show that Rove (or whoever outed her) publicly disclosed a private fact about her that is not of legitimate public concern and the disclosure of which is "highly offensive to a reasonable person."

First Amendment Objections Probably Do Not Bar a Civil Suit Here

Plame's suit might run afoul of some First Amendment issues, however. The issue here is whether the information disclosed is of public concern.

In its 1989 decision in The Florida Star v. B.J.F., the Supreme Court held that a newspaper which revealed the name of a rape victim--in violation of a state law--could not be sued for a privacy tort by that victim because of the First Amendment.

But there are a number of reasons to think that cases like Florida Star are distinguishable from the sort of suit Plame might bring.

To begin with, courts have discussed limiting the privacy tort only in the context of the First Amendment's protection of the press. Plame would not want to sue the reporter who published her identity, but the person who called the reporter.

Furthermore, in Florida Star, the Court contemplated the case of classified information, and hinted that it did not think that even the media should be allowed to invade a citizen's privacy by printing intelligence classified by the government with impunity. The Court would be likely to take an even dimmer view, crime or no, of a government employee's doing the same.

Some Possible Other Objections to Plame's Filing a Similar Suit

A skeptic might object that the lawsuits I have described are the kind of "junk" lawsuits that give tort lawyers a bad name. The skeptic might object that, unless Plame knows a lot more than has been revealed in the press, it would be pure speculation for her to sue Rove or anyone in the White House now.

Furthermore, the skeptic might argue, the suits seem pretextual, at best. Had the Bush administration really outed her, Plame might be angry at their lack of respect of the CIA or for the nation, but can she really claim that she has been injured? Has she truly suffered a loss of privacy, or extreme emotional distress? Doubtless, she wishes her identity as a CIA agent had been kept secret, and doubtless, its revelation distressed her. But this case - the skeptic might contend -- is really about national security, not personal injury. So wouldn't her claim for redress in tort just be a fig leaf?

I am more concerned about the first objection - the idea that a suit now would be premature -- than the second. If Valerie Plame believes that she suffered a loss of privacy when her identity as a CIA was revealed, we should take her seriously. The fact that after her identity was revealed she chose to appear in public with her husband does not change the fact that in our tort system, privacy, like reputation, belongs to the individual--and it cannot be taken away by force. Also, who is to say that she did not suffer extreme emotional distress in learning that her career might be ruined, and her contacts compromised?

But even if Plame could sue now, should she wait? This first objection concerns me a great deal. Paula Jones' lawsuit against Bill Clinton was finally dismissed, but not before it caused great mischief.

Plame should bring a suit against whomever she believes has wronged her, but she should not do so just to begin a fishing expedition or to harass the Bush White House.

On the other hand, however, Plame should not be forced to wait until she has all the facts, since without deposing certain key players under oath, she may never have all the facts. Nor should she be forced to wait until the Special Counsel makes his findings publicly available.

The Plame affair is about national security, among other things. But at its heart, it is about an individual whose interests in tort may have been violated. She should have the power to seek redress for herself if she wishes, without having to ask the permission of anyone.