Keeping Up With the Joneses

The civil suit filed this month against Vice President Dick Cheney -- pertaining to his tenure as CEO of Halliburton Co. -- evokes an eerie sense of d�j� vu. After all, it wasn't long ago that a small case brought by one Paula Jones against then-President Clinton mushroomed into a political brushfire. Jonathan E. Smaby offers that if Clinton were to give Cheney personal advice, he'd say: You can run from the lawyers, but you can't hide.

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Here we go again. Just when you thought it was safe to go back in the political waters, Vice President Dick Cheney finds himself the target of a civil suit pertaining to conduct before, and completely unrelated to, his official duties. The suit, filed this month in federal court in Dallas, alleges that Halliburton Co., the company at which Cheney spent five years as CEO, overstated its revenues to the tune of $450 million dollars. The prospect of a sitting vice president — especially one who brings enormous power and clout to the historically weak office — being forced to deal with the cumbersome realities of modern civil litigation may evoke an eerie sense of d�j� vu. After all, it wasn’t long ago that a small civil case brought by one Paula Jones against then-President Bill Clinton eventually mushroomed into the political brushfire that consumed a nation. Like Jones v. Clinton, the suit against Cheney has begun not with a bang, but with a whimper. The news that the vice president was being named in a suit, Stephen S. Stephens v. Richard Cheney, et al., merited only a blip of media coverage, competing with the spate of recent accounting scandals and ongoing saga of President George W. Bush’s business practices a decade ago. Like Jones, this case will move slowly, so it may take awhile to find out if there is indeed any “there” there. The two cases are quite different, however. Jones involved private conduct that, despite the massive media coverage, did not involve public policy and ultimately concerned the legal rights of only the plaintiff and defendant. From day one, the Jones case was essentially hijacked by conservative lawyers who saw it as a vehicle to question Clinton, under oath, about his sex life and to inflict major political damage in the process. No one paid much attention to the fact that the allegations, even if true, were legally questionable — no one, that is, until the judge granted Clinton’s motion for summary judgment. Cheney’s problems with the Halliburton case could prove far more intractable, legally and politically. From a legal perspective, the allegations could, if proven, involve thousands of victims and millions of dollars in damages. The fact that the Securities and Exchange Commission already is investigating the accounting practices at issue here suggests strongly that the case will not be easily disposed of prior to trial. And some of Cheney’s former colleagues already have contradicted one of his better potential defenses — lack of knowledge — by telling the media that Cheney was fully involved in all accounting decisions. On the political front, Cheney has the misfortune of defending his tenure at Halliburton at a time when the high-flying CEOs of the 1990s are now regarded less as capitalist heroes and more as the snake oil salesman of the new century. And Cheney can’t even blame the allegations on his favorite nemeses, Democrats. A watchdog group that built its reputation primarily by chasing the Clinton administration filed this suit. So now, at a time when the administration faces war in Afghanistan, threats of terrorism at home, violence in the unstable Middle East, a weak economy, a rapidly growing budget deficit and a shaky stock market, the vice president of the United States will be forced to divert what could be a substantial amount of his time to personal matters. How he will accomplish this task is unknown, given Cheney’s reputation for putting in long hours on behalf of the more relaxed Bush. WHOM TO BLAME If he is looking for somebody to blame, however, he might just point the finger at some of his most ardent supporters. Back in the late 1990s, when CEO Cheney was working away in his corner office plotting corporate strategy, a group of conservatives were at the same time working away in smoke-filled rooms plotting a political and legal strategy to get Clinton. At the time, these conservatives — who called themselves the “elves” — probably never gave a second thought to the fact that their broadside might one day swing around and bite one of their own. During those years, Clinton-haters were so obsessed that they used any means imaginable to expose the president’s sex life: private suits, criminal investigations and even an ill-fated drive for impeachment. So when Clinton’s lawyers tried to defer the civil suit on the basis that defending a personal suit would distract him from his constitutional duties — a concern the historical record suggests was well-founded — these conservatives refused to accept the trial judge’s ruling in the president’s favor. They relentlessly pursued, and got, a U.S. Supreme Court decision that a sitting president has no right to postpone discovery or trial in such circumstances. Inevitably, the mines they laid in presidential waters would trip up Republicans and Democrats alike. Because of their efforts, though, Cheney — unlike Clinton — won’t be able to spend the next two years litigating whether the war on terrorism effectively trumps the rights of disgruntled shareholders. If a president can’t claim executive immunity, a vice president certainly cannot. Of course, Cheney can claim that the suit is politically motivated, that his situation is somehow distinguishable or that Clinton himself is to blame for “eroding” the power of the presidency. More likely, we will see congressional legislation designed to protect the president and vice president from private suits that interfere with their duties, a solution the Supreme Court’s Jones decision specifically contemplates. But given what happened to Clinton as a result of Jones, Democrats are not going to allow Congress to retroactively protect Cheney from the same fate. The opportunity for the lawyers to reach a mutual, reasonable and forward-looking accommodation regarding executive immunity passed a long time ago. The relentless pursuit of Clinton by judicial means was merely the first part of a political tit-for-tat battle, the end of which may well play out at the vice president’s expense. The vice president would no doubt prefer fighting terrorists to dealing with the headaches that this suit may bring. But if Clinton were to offer Cheney some personal advice, he might tell him: You can run from the lawyers, but you can’t hide. Jonathan E. Smaby is a partner in the Dallas firm of Roberts & Smaby. He also serves as a political analyst for KDFW Fox 4 News.

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