Are Congressmen above the law? The case of Staff Sergeant Frank Wuterich against Congressman John Murtha (D-PA) tests this basic question.
Of course there are other reasons to ask the same question. In a year when Congressional committees see no limits to what they will subpoena from the executive branch or about what they will interrogate its officers and employees, they rushed to court to keep the Department of Justice from subpoenaing the records of a Congressman caught with tens of thousands of dollars in his freezer.
Bad as shielding suspicious Congressional cold cash from view may be, insulating Congressmen when attacking ordinary citizens, or worse yet active duty Soldiers, is an invitation to tyranny. We are all potential targets if this holds true. Are they totally unaccountable for their conduct against ordinary citizens? I certainly hope not, but if that ultimately proves to be the case in court, I hope we have the strength to demand a change in the law.
The news that Staff Sgt Wuterich was going to be permitted to proceed to discovery in his defamation suit against Congressman Murtha was a cheering note to people like me who have consistently considered the Congressman's conduct unacceptable. As you will recall on November 19, 2005 there was an incident in the then-insurgent infested town of Haditha in which a number of people were killed. Beginning in May of 2006, long before a full official inquiry, and prompted by a very suspect bit of anti-US propaganda in Time, Congressman Murtha hit the media circuit repeatedly. He publicly and falsely accused SSgt Wuterich and the men of the Marines' Kilo Company of being involved in cold-blooded (premeditated) murder and of covering up the events of that day.
Wuterich sued Murtha, alleging he'd been libeled, that Murtha had repeatedly asserted "false and malicious lies" about Wuterich and his Company, that these lies were made with full knowledge that they were false and libelous and with gross negligence or reckless disregard for the truth, invading Wuterich's privacy and placing him in a false light. Further, the complaint alleges that since these lies were disseminated throughout the world by others, Wuterich has a new cause of action each time these false and defamatory stories were repeated publicly by any news outlet,
The statement carried around the world and referred to in Count III (Republication) was this one:
"‘There was no firefight. There was no IED...that killed those innocent people,' Representative Murtha, D. Pa., said during a news conference on Iraq. ‘Our troops overreacted because of the pressure on them. And they killed innocent civilians in cold blood, that is what this report is going to say'."
To date, charges have been dropped against a number of the members of the Company. He had an Article 32 proceeding (equivalent to a grand jury) from Aug 30 - Sept 7. The IO issued a recommendation yesterday but the document has not been released to the public yet. He recommended that murder charges against SSgt Wuterich be dismissed.
His counsel notes:
The charges alone, and the Marine Corps press conference that was held at the time of the announcement, already actually unequivocally refute many of Mr. Murtha's outrageous statements such as that the killings were committed in ‘cold-blood'(premeditated) and that Wuterich and his Marines were not fired upon."
Wuterich offered Murtha an opportunity to resolve the dispute with a simple retraction. Congressman John Kline acknowledged that similar statements made by him were "premature and inappropriate" and issued a public apology. Murtha has refused to do so and is the subject, therefore, of this suit.
Following a successful suit against Senator Proxmire, Hutchinson v. Proxmire, 443 U.S. 111, 122 (1979) Congress amended the Federal Tort Claims Act to cover Congressmen. The issue in this case has nothing to do with whether Murtha's remarks constitute defamation: they are libel per se. Immunity from suit under the Tort Claims Act depends on whether or not he can make a plausible claim supported by fact that this defamation was made within what is called the "scope of his employment". The plaintiff argued that he needed to depose Murtha and get some discovery from him -- discovery as to the context in which Congressman Murtha made these statements, what factual basis he had for them, and his motive for making them.
The Westfall Act, as the amendment to the Federal Tort Claims Act 28 U.S.C. Sec. 2680(h) is known (after the case which spurred its passage), allows the government to defend such cases and move for their dismissal if it appears that the defendant was acting in the scope of his employment. The government has sovereign immunity from suit unless it agrees otherwise and the federal government has never waived this immunity with respect to tortious conduct like defamation.
The Supreme Court there, and the District Court in the Wuterich case, make clear that the government may not be substituted for the defendant and move to dismiss under the Westfall case unless it can establish that the conduct was made within the scope of the original named defendant's employment. And establishing that requires more than a perfunctory, conclusory affidavit on the issue:
c) Construction of the Westfall Act as Lamagno urges--to deny to federal courts authority to review the Attorney General's scope of employment certification--would oblige this Court to attribute to Congress two highly anomalous commands. First, the Court would have to accept that, whenever the case falls within an exception to the FTCA, Congress has authorized the Attorney General to sit as an unreviewable judge in her own cause--able to block petitioners' way to a tort action in court, at no cost to the federal treasury, while avoiding litigation in which the United States has no incentive to engage, and incidentally enhancing the morale--or at least sparing the purse--of federal employees. This conspicuously self serving interpretation runs counter to the fundamental principle that no one should be a judge in his own cause, and has been disavowed by the United States. Pp. 8-11.
(d) Second, and at least equally perplexing, Lamagno's proposed reading would cast Article III judges in the role of petty functionaries, persons required to rubber stamp the decision of a scarcely disinterested executive officer, but stripped of capacity to evaluate independently whether that decision is correct. This strange course becomes all the more surreal when one adds to the scene the absence of any obligation on the part of the Attorney General's delegate to conduct proceedings, to give the plaintiff an opportunity to speak to the scope of employment question, to give notice that she is considering the question, or to give any explanation for her action. This Court resists ascribing to Congress an intention to place courts in the untenable position of having automatically to enter judgments pursuant to decisions they have no authority to evaluate. Pp. 11-12. [Source]
In fact that is what the Department of Justice unsuccessfully tried to do in the Wuterich case -- get it dropped without offering conclusive proof that these outrageous statements were made within a Congressman's scope of employment and without allowing the defense to probe the facts by deposition and document discovery to establish that the conduct complained of was outside that scope and that Murtha, therefore, must defend the case on his own dime and be liable for any defamatory statements he made.
Wuterich argues that many of Murtha's comments were made outside the scope of his employment. He notes that Murtha has claimed to have been provided the defamatory information by others such as General Hagee who have challenged his recollection of how he came to be in possession of the information. (Hagee has said he never spoke to Murtha until well after Murtha began making these charges.)
In particular, Wuterich raised the following concerns about the affidavit submitted by the Department of Justice certifying that Murtha made these statements in the scope of his employment "at the time of the alleged incidents":
(1) The certification did not detail even one fact upon which it relied in coming to this conclusion. Murtha made many such statements and every single one had to be within the scope of his employment for him to avail himself of statutory immunity.
(2) The government Certification contains no details nor explains the bases for its conclusion.
Affirmatively, Wuterich asserts that Murtha relies solely on the declaration of his former Communications Director, but she never specifically addressed the factual circumstances in dispute; she doesn't indicate she is even familiar with any of the relevant facts in this matter; nor does she address each and every one of the statements made by Murtha nor any republication of those statements by others.
Wuterich concedes that in other circumstances the courts have held that
"speaking to the press is a critical part of the expected and authorized conduct of a United States Congressman."
"However," Wuterich argues,
"there is no indication, nor case law, that would seemingly endorse a view that every single circumstance where a congressman speaks to a member of the media falls within the scope of employment and is thereby entitled to immunity."
The court agreed, and said, despite the Certification, the Government will not be substituted for Murtha (and the case therefore dismissed) until after Wuterich has had an opportunity for discovery to determine whether or not these statements come within the scope of his employment.
What can we expect the plaintiff will explore in this limited discovery?
a. He will want to find out where all these statements were made and the circumstances surrounding all these interviews. Three of the interviews cited in the complaint, he notes, were made in Murtha's "campaign office", not his district or D.C. offices;
b. Murtha will be asked to state what legislative responsibilities pertained to his actions. None seem evident.
c. Wuterich will explore whether Murtha commented upon Wuterich "for his own personal gain outside of his role as a representative for his constituents" If he did, his conduct is not cloaked in statutory immunity. In this context, Wuterich notes that Murtha made these statements at a time when he was vying for the role of Majority Leader, anticipating the Democrats would gain control of the House.
d. Wuterich will certainly seek all records in Murtha's possession of all comments to the media made on this issue and the circumstances surrounding all these interviews.
e. Wuterich will explore who provided Murtha the information he said he relied on. His pleadings refer, in fact, to leakers from among people inside the Department of Defense.
I think that there was no legislative purpose in smearing Wuterich and Kilo Company. Personal aggrandizement and political ambition motivated this Murtha media blitz. I think the very fact that a number of the statements were made in Murtha's campaign office rather than his official offices supports the claim that these statements were not made in the scope of his employment as a Congressman.
It is my understanding that the court-ordered discovery will take place in November, and we will not know whether the suit will proceed until it is completed. But if Congressmen are protected by statutory immunity from accountability after making facially libelous statements based on no solid evidence against the troops in time of war, something is wrong with the law.
Clarice Feldman is an attorney in Washington, DC