Cheney and the Absolute Immunity

From the court hearing on Thursday:

Attorneys for Cheney and the other officials said any conversations they had about Plame with each other and reporters were part of their normal job duties because they were discussing foreign policy and engaging in an appropriate "policy dispute." Cheney's attorney went farther, arguing that Cheney is legally akin to the president because of his unique government role, and has absolute immunity from any lawsuit.

Jeralyn from Talkleft.com makes some valid points regarding Clinton vs. Paula Jones case and Cheney's absolute immunity defense:

The argument is akin to the absolute immunity granted to judges and prosecutors and the qualified immunity granted state actors in Section 1983 and Bivins suits. Except Cheney is arguing that the Vice President is like the President.

Does the argument make any sense? Does Jones v Clinton shed any light on this, considering the Jones suit was for alleged acts when Clinton was not President? First, I think the argument fails because the Vice President is NOT the President and his only official power is to break ties in the Senate. One could argue, indeed, Cheney has, that the Vice President is a member of the legislative branch Constitutionally, not the Executive branch. In short, there is no separation of powers issue for suits against the Vice President at all.

Members of Congress are, of course subject to lawsuits. So this argument seems a nonstarter for me.
Cheney can claim, as can almost all government officials, that his actions are subject to the qualified immunity that is granted to government officials acting in their official capacity. Motions to dismiss on qualified immunity grounds are commonplace and perhaps Cheney can establish that his duties as Vice President required whatever it is he did. We'll see.

But Cheney went further, claiming absolute immunity. That is pretty clearly a reach, absent equating the Vice President with the President.

What if we granted that point? Would it still work? I think not and I think Clinton v. Jones is instructive. In Clinton v. Jones, the Supreme Court said:

The principal rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. In cases involving prosecutors, legislators, and judges we have repeatedly explained that the immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability. [n.18] We explained in Ferri v. Ackerman, 444 U.S. 193 (1979).

In the filing by the Judicial Watch on January 25, 2007, Judicial Watch wrote Vice President Cheney was being “sued in his individual capacity, not in his official capacity. “Logically, this concern was at least somewhat less significant where a suit is brought against the President or a lessor Executive Branch official in his or her individual capacity. See, e.g., Clinton v. Jones, 520 U.S. 681 (1997).” Here is the Judicial Watch filing.