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.
All interesting points. I would wager Murtha is not a happy camper about this ruling and Feldman points out just how far his butt is hanging out, I love it.