Tag Archives: Richard Cheney

From the Archives — At the U.S. Supreme Court:

Originally reported June 2012.


The Supreme Court issued a decision in Reichle v. Howards this week, a case involving a confrontation between then Vice-President Richard Cheney and a member of the public, Steven Howards.

Howards was arrested by members of the Secret Service, agents Reichle and Doyle, after he interacted with the Vice President at a mall in Colorado.  Howards was critical of the Vice President, asking him “how many kids he killed that day,” and he also touched the Vice President on the shoulder.  When Howards lied about touching the Vice President during subsequent questioning by the Secret Service, he was arrested.

Charges against Howards were dropped, but Howards sued the Secret Service agents, Reichle and Doyle, petitioners in the Supreme Court, claiming his constitutional right to free speech was infringed by the arrest, which he saw as a retaliatory act, resulting from the expression of his political views.

The legal issue of the case at a preliminary stage was the immunity from liability that Secret Service agents should be accorded in the conduct of their official duties.   The court accepted certiorari on two related issues concerning such liability.

First, should the agents receive qualified immunity because there was not clearly-established law at the time of the incident — regarding liability for infringement of first amendment rights in the course of an arrest? Qualified immunity shields government officials from civil damages liability, unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.

Secondly, should the agents receive absolute immunity because there was probable cause for the arrest?  The Supreme Court has held that there is absolute immunity from First Amendment claims in the context of retaliatory prosecutions if probable cause existed.  Some federal jurisdictions have also held that if there is probable cause for making an arrest, then this is a complete defense to a claim of First Amendment violation by retaliatory arrest.

Both of my earlier podcasts on this case, at the certiorari stage and again at the oral argument stage, focused primarily on the question of whether the legitimate grounds for arrest (probable cause) provided a basis for absolute immunity.  As it turns out, the Supreme Court decided not to decide this issue, despite a split of authority in the Circuit Courts of Appeal on this point.

Instead, the Court, with Justice Clarence Thomas writing, in an opinion joined by five justices, held that the law — whether retaliatory arrest could be a basis for liability — was not clearly established at the time of the incident.   This, in itself, provided the qualified immunity that would protect the Secret Service agents from suit in this case.

The High Court reversed the 3rd Circuit Court of Appeals, which had held that the law was clearly established, and that probable cause did not automatically defeat a First Amendment retaliatory arrest claim.   Thomas noted that his approach “comports with our usual reluctance to decide constitutional questions unnecessarily.”

In an opinion marked by subtle distinctions, Thomas explained that “courts may grant qualified immunity on the ground that a purported right was not ‘clearly established’ by prior case law, without resolving the often more difficult question whether the purported right exists at all.”

Thomas explained the court’s reasoning: “This clearly established standard protects the balance between vindication of constitutional rights and government officials’ effective performance of their duties, by ensuring that officials can reasonably anticipate when their conduct may give rise to liability for damages.”

Thomas also noted that the Supreme Court’s position on retaliatory prosecution in Hartman v. Moore – a case finding qualified immunity existed in the context of retaliatory prosecution — “injected uncertainty into the law in the tenth as well as other circuits because of the similarity between retaliatory prosecution – for which Hartman held probable cause was a basis for immunity — and retaliatory arrest for which Hartman did not make a determination.

Thomas was careful not to suggest that the instant case decided the issue of absolute immunity either.  Instead, he said only that clearly-established law governing liability did not exist at the time of the incident.

Justice Ginsburg, in a concurrence joined by Justice Breyer, agreed that Secret Service agents such as petitioners Reichle and Doyle, were entitled to qualified immunity, saying that their responsibilities protecting officials necessitated immunity so long as their decisions were rational, but Ginsburg would not recognize qualified immunity based on lack of clearly-established law for ordinary law-enforcement officers.  Ginsburg distinguished Hartman because retaliatory prosecution was different than what ordinary law enforcement officers consider in terms of arrests.  Hartman was inapplicable and thus did not add any confusion to the law as it concerned ordinary law enforcement officers.

The majority found that the clearly-established law standard was not satisfied in the context of First Amendment liability for retaliatory-arrest claims.  Uncertainty existed where the Supreme Court had never recognized a First Amendment right to free speech in the face of probable cause for arrest, and there was a split of authority in the circuits on the issue.

Thomas also considered whether there might be clearly-established law within a federal circuit despite conflicting decisions in other circuits, but found, “assuming arguendo that controlling court of appeals authority could be a dispositive source of clearly established law in the circumstances of this case, the Tenth Circuit’s cases do not satisfy the clearly established standard here.”

Justice Kagan did not participate in this case.

War Crimes for President Bush?

Originally published February 4, 2009, at politicsunlocked.com

Cheney, Bush, Rumsfeld

Dick Cheney, George Bush, and Donald Rumsfeld

Photo by milesgehm; licensed creative commons http://creativecommons.org/licenses/by/2.0/


The recent executive order issued by President Barack Obama, aimed at opening more presidential records to the public, has renewed discussion of the potential investigation and prosecution of Bush administration officials, including the former President himself.

Talk show host Rush Limbaugh has gone so far as to call the executive order ‘not American,’ foreseeing a media frenzy to find evidence of war crimes against former President George W. Bush.  

In its own right, the executive order, geared toward opening presidential records to scholars and journalists, is sound policy aimed at making government “of the people” more accountable.

Prosecution of George Bush, Vice President Dick Cheney, Secretary of Defense Don Rumsfeld, or other former Bush administration officials would certainly be a colossal mistake.  

Prosecuting leaders who make unpopular decisions, instead of removing them from office by electoral vote, undermines the office of the Presidency and the democratic process itself.  The belief that such prosecution would be objective, outside politics and justified by the death and destruction in Iraq or detention facilities around the globe, is simplistic.

The decisions of George W. Bush and his administration, in response to 9/11, in protecting the nation’s securitythrough the conduct of foreign wars, through surveillance, investigation, prosecution and detention, were exactly the kinds of profoundly difficult choices that those in high office are required to make.  True, they didimpinge upon the rights and freedoms of citizens and treat some non-citizen detainees brutally.  And while we may disagree, we should not underestimate the dilemma inherent in such decisions.

The President must lead in the face of rival and enemy nations, competing ideologies, religious and ethnic strife, economic turmoil and natural calamity.  At stake is the freedom, prosperity, justice and dignity of not only 300 million Americans, but also that of the nations with whom we cooperate, guide, and in many cases, help protect.

Balancing individual rights and national security is the President’s responsibility.  There are counterbalancing institutions of Congress and courts, but they generally exist to provide legislation and oversight, constitutional interpretation and protection of individual rights.  It is not perfection we seek, but balance.  

Barack Obama expressly campaigned against controversial Bush administration policies on Iraq, detentions and torture.  His election represents a shift in policy — a sign that the democratic system is working. 

Using civil or criminal courts against Bush administration officials, even in the belief that laws have been broken, will be political and would devastate our governmental system. 

The actions of the former President have outraged many, but cannot be equated with the war crimes or genocide for which international criminal laws have been devised.