Special Counsel Dot Gov

Special Counsel Patrick Fitzgerald today opened a website (still "under construction," no doubt).  As soon as the Special Counsel indicts or announces he will not, the Wilsons are expected to file a civil action.  A subpoena of President Bush should follow in due course--easy to justify given press reports like this in the Los Angeles Times: "[Libby] urged the White House to mount an aggressive public campaign against him [Wilson], former aides say."  (Urged the who?  And what did who do?)  The President enjoys absolute immunity from suit for official acts committed during his term of office.  Nixon v. Fitzgerald, 457 U.S. 731 (1982).  But his staff enjoy only a qualified or "good faith" immunity.  Harlow v. Fitzgerald, 457 U.S. 800 (1982).  A directive from the President would be relevant to establishing a defense of good faith immunity, bringing it easily within what Justice Scalia has called "the notoriously broad discovery powers of our courts."  That the President must comply with a subpoena duces tecum ("bring the thing"--e.g. the White House tapes in the Watergate probe) issuing from a criminal investigation was established in U.S. v. Nixon, 418 U.S. 683 (1974).  That the President may be compelled to give sworn testimony in a civil suit in which he is a fact witness is settled, I think, by reading U.S. v. Nixon together with Clinton v. Jones, 520 U.S. 681 (1997)--but the issue is not beyond argument.  (Thanks to Tad Brennan for correcting an earlier post: I was preoccupied with completing an important questionnaire.)